How Are Elections Run and How Secure Are They?
“One of the penalties of refusing to participate in politics is that you end up being governed by your inferiors.”
— Plato
A Slippery Slope
After long setting standards many nations strived to emulate, the United States is now facing election challenges we once thought took place only in other countries. W’ll take a look at how elections are run in America, as well as how secure they are. I’m familiar with all this from my years working with State and Local election officials.
Did You Know…?
Beginning with the 2nd Congress in 1792 and prior to 1845, when were States required to hold Presidential Elections?
A) On the first day of November
B) On any Tuesday in November
C) On Thanksgiving
D) During the 34 days before the first Wednesday in December
You can find the correct answer at the bottom of this page.
How U.S. Elections Are Run
In America, national elections are, perhaps surprisingly, decentralized. Congress has the Constitutional power to alter “The Times, Places and Manner of holding Elections for Senators and Representatives,” but this has not changed for a very long time. In 1845, Congress established the first Tuesday after the first Monday in November as Election Day. It would require another act of Congress to change this.
By modern standards, it may seem strange that Election Day was not scheduled for a weekend for a holiday. In the mid-1800s, though, America had an economy predominantly rooted in agriculture. It was also a time before automobiles, and so voting typically required at least a day’s travel for most voters. On Sunday, many people attended church, and on Wednesday, farmers went to market, making both days poor choices for Election Day. Allowing for travel on Monday, and voting and return travel on Tuesday seemed best for society as a whole.
For the most part, Federal elections are administered at the State level, as specified in Article I, Section 4 of the Constitution. Each State’s Secretary of State oversees their elections, but the elections are actually run locally, primarily at the County level. Most election officials perform their duties with great objectivity and professionalism.
At the same time, election officials can influence how day or difficult it is to vote. For example, increasing or decreasing the number of voting machines in a precinct can have significant impacts on how long it takes to vote. Campaigns for Secretary of State used to be relatively low-key affairs. Sadly, the rabid partisanship that has enveloped races for higher-profile offices has jnfected some of these contests as well. In many states, elections for Secretary of State are conducted as partisan contests. Campaigns for Local offices, such as County Clerks or Registrars of Voters, are usually run on a nonpartisan basis.
Of course, having more elections overseen by nonpartisan Secretaries of State would likely increase public confidence in their integrity. Like too many other things today, conducting fair elections should not be seen as the province of one or another political party, but they are. That’s what happens when the thirst for power overwhelms principled leadership.
Looking for Election Fraud in All the Wrong Places
Though many states and counties use the same elections hardware and software, decentralization makes hacking them more difficult as it requires breaching multiple systems.
Election officials can influence how easy or difficult it is to vote, for example, by the number of voting machines each precinct has which impacts wait times. Most election officials perform their duties with great objectivity and professionalism.
Campaigns for Secretary of State used to be relatively low-key affairs. Sadly, the rabid partisanship that's enveloped races for higher profile offices has morphed into some of these contests as well.
In many states, elections for Secretary of State are conducted as partisan contests. Campaigns for local election offices such as County Clerks or Registrars of Voters, are usually run on a non-partisan basis.
Having more elections overseen by non-partisan Secretaries of State would likely increase public confidence in their integrity.
Federalism — Divided Power, Checks and Balances
The Constitution divides Federal power by creating three coequal branches of government. The Executive branch enforces laws, the Legislative branch makes laws, and the Judicial branch interprets laws and ensures that they do not violate the Constitution. In addition, the Constitution provides a system of Checks and Balances, which allows for the different branches to influence or limit the others. The principle paramount to the Framers exemplified by this system is that no single branch of government could become more powerful than any other.
The ability for Congress to make laws and the President's ability to veto them, or the power of the President to nominate Federal Judges and Justices, but the need for the Senate to confirm them, are just two good examples of these checks and balances.
So too was establishing a system of Federalism, with Federal, State, and Local governments, that diversified power and let people live in communities with local laws that they supported.
For example, I once lived in a small town that wanted to keep it that way. So the City Council approved a measure banning large franchises from operating there. But it wasn't a big problem if you craved a burger or something else from a national chain. Any number of them sat just outside the city limits.
Federalism establishes a hierarchy of national and regional laws. Looking at one state, California has, from top to bottom, Federal, State, County, City, and Special Districts (for specific purposes, such as providing water and sewer service).
In a Federalist system, each level of government can enact laws within their jurisdiction, but must also comply with the laws of all levels of the governments above them. For example, a city or county can pass a law (usually called an ordinance at the local level), but it must also comply with all Federal and State laws.
Most conflicts occur between Federal and State laws. The Supremacy Clause of the Constitution gives Federal laws priority when there's a conflict between the two. However, the President also has the option of not aggressively enforcing a conflicting Federal law, which they would do through Federal agencies.
Since the COVID-19 pandemic, we've seen conflicts between some State and Local governments, mostly over mandated safety restrictions. Some Governors banned more restrictive measures taken by Local governments in their state.
Did You Know…?
How many words are in the Constitution, including all of the Amendments?
A) 7,500
B) 17,500
C) 27,500
D) 37,500
You can find the correct answer at the bottom of this page.
Amending the Constitution
Article V of the Constitution lays out the process for amending it. The Framers established a high bar for doing so because they didn't want it easily changed to meet the mood of the day.
Amending the Constitution is a two-step process. Proposed Amendments must first be passed by two-thirds majorities of both the Senate and the House of Representatives. If successful, the Amendment is then sent to the 50 State legislatures, where three-quarters of them (38 states) must ratify it in order for it to become law.
Though it has never been done, the States can bypass the three-quarters ratification threshold by having two-thirds of the State legislatures demand a new Constitutional Convention.
The high bars to passage have been successful in limiting the number of new Amendments passed. In over 200 years, the Constitution has only been amended 27 times, a number that includes the 10 Amendments in the Bill of Rights.
With political divisions so high today, it’s difficult to envision any proposed Constitutional Amendment receiving the requisite majorities required to make it law. For example, it took more than two centuries to ratify the 27th and most recent Amendment in 1992—all that for a change over when Congressional pay raises go into effect.
Even ideas like women having the same rights as men couldn't clear the high Amendment bar. The Equal Rights Amendment, passed by both chambers of Congress in 1972, failed to receive ratification by the necessary 38 states. Only 35 states ratified it.
The idea of eliminating the Electoral College in favor of a national popular vote is itself broadly supported, with one poll showing 65% in favor of the idea. Popular or not, it’s hard to get two-thirds of the Congress to agree on anything, much less a major change to how we elect our Presidents. Even if such a legislative miracle occurred, the chances of getting three-quarters of the State legislatures to agree to this change would be even worse. States with lower populations benefit from the current Electoral College system, and most would be very reluctant to give it up.
Summing It Up
The Constitution was written as a framework for establishing the basic structure, workings, and principles of our new government. It was never intended to be the definitive civil or criminal code for the country.
A central question about interpreting it is whether it should be taken literally, based on the views at the time of the Framers, or more of a living document, the interpretation of which should change as times and values change.
As our partisan divisions make it very unlikely any Amendment will gain sufficient support for passage in the near future, where does that leave us in terms of updating the laws we have?
Congress can still pass laws that require only the President’s approval, or the necessary two-thirds vote to overcome a presidential veto. Given the 60-vote hurdle the Filibuster poses in the Senate, the odds of passing new laws, even those with broad popular support, are not promising.
As far as State issues, where you live is becoming increasingly important in terms of the laws you live by and the prospects for changing them. Those who live in States with direct democracy, that permit initiatives to be placed on the ballot simply by gathering enough signatures of citizens, have the option of bypassing State legislatures dominated by special interests.
While the Framers did not believe in offering direct democracy on a national level, giving States and Localities the ability to do so created something of a workaround from tyrannical or ineffective government.
So even with a gridlocked Congress, we can still get plenty done. The independence of State and Local governments, plus the options for direct democracy in many states, are likely the most realistic paths for political change, at least for the time being.
We've reached a governing fork in the road. Do we keep moving blindly forward until we hit the wall of cans lawmakers kicked there, or do we choose to become more discerning about who we choose to represent us, and more involved in public decision-making in other ways?
You might find the Is Government Us or Them? post useful in thinking about this question.
You can also click these links to read the full text of the Constitution, the Declaration of Independence, and the Bill of Rights.
Answer to the Did You Know…? Question
The answer is D) During the 34 days before the first Wednesday in December.
In 1792, the 2nd Congress established that, in Presidential election years, Electors would vote on the first Wednesday in December. Further, those Electors must be chosen at some point during the 34 days preceding that date., meaning that elections had to be held and certified in each State sometime between November 3rd and December 6th. By the early Nineteenth Century, more than half the States held their Presidential elections in early November.