Electoral Reform: Overview

Introduction

Electoral reform encompasses any change in electoral policy that aims to improve the election process by making it more transparent, objective, fair, or accurate. Electoral reform can take many forms, from efforts to improve voter turnout to campaigns to alter the basic structure of elections. Legal reform seeks to change or update the laws that govern the electoral process. Administrative reform implements change by introducing policies, strategies, and technical innovations that make voting easier and more accessible to voters. Political reform seeks to enact policies that alter the nature of the electoral process.

There is a long history of electoral reform in the United States. The issue also remains relevant in the twenty-first century, as many concerns with the electoral system are widespread and persistent. For example, many Americans feel that the Electoral College that ultimately determines presidential elections should either be reformed or abolished, arguing that it no longer serves the interests of the country or represents the will of the voters. Such sentiment was especially prominent in the wake of the hotly contested 2000 and 2016 presidential elections, in which the candidate who won the Electoral College (and therefore the presidency) also lost the popular vote. Some feel that the existing system discriminates against certain groups of voters, whether by giving certain states a disproportionately large share of representation or through forces that actively suppress participation. Others feel that people simply fail to get out and vote in large numbers. Meanwhile, many critics of the election process feel that the two-party system has made it impossible for any independent or third-party candidates to compete in any meaningful way. Polls have suggested that as many as 75 percent of Americans do not feel adequately represented in the government. Another contentious presidential election in 2020 brought such issues to the forefront once again.

Various types of electoral reform have been proposed. Common suggestions include changes to voting systems themselves (such as the use of run-off or ranked-choice systems); restrictions on gerrymandering (the process in which political parties create district boundaries that give them an advantage) and other manipulative practices; campaign finance reform; and updates to the actual equipment used to vote. However, in the United States electoral systems vary across states, making comprehensive reform difficult. Some observers have called for greater federal regulation of elections, while others argue that state and local governments are best suited to carrying out any necessary reform. Meanwhile, the abolition or evolution of the Electoral College has remained a major topic of debate.

Understanding the Discussion

Early voting: The practice of allowing voters to cast ballots at specified polling places prior to Election Day. Early voting is allowed in more than two dozen states.

Electoral College: Each state is assigned electors, as outlined in the United States Constitution, equal to the number of congressional representatives, meaning that each state has at least three electoral votes (two senators, and at least one representative per state). The names of electors, rarely, if ever, appear on the ballots, and most people are unaware that their vote actually elects a person who in turn elects the president.

Electronic voting: The practice of voting using electronic machines or kiosks, rather than punch-cards, hand-written votes or any of the other various methods that have been used in the past. Electronic voting machines have been praised by many for their efficiency and derided by others for their opacity and lack of security, particularly during the 2000 election recount and following the hacking of the Democratic National Convention in 2016 by foreign actors.

Gerrymandering: The practice of drawing electoral district boundaries with the intent of favoring a specific political party. It often serves to protect incumbent politicians and amplify or reduce the political power of specific demographics.

Internet voting: The practice of casting votes over the internet, either at designated computers patrolled by election officials, at polling places, or from personal computers at private residences. The United States does not allow internet voting.

Permissive absentee balloting: The practice of allowing voters to cast their votes by absentee ballot, regardless of whether the voters are reasonably able to make it to polling places on Election Day. Many states allow this type of absentee balloting, while others require absentee voters to provide specific reasons why they wish to vote by absentee ballot.

Ranked-choice voting: A voting process in which voters rank multiple candidates in order of preference and counting proceeds through the rankings until one candidate receives a majority, with the least popular candidate in each round eliminated and votes for them applied to the voter's next choice. Proponents claim this system is fairer than a simple plurality (or first past the post) system, particularly by eliminating the third-party spoiler effect.

Run-off voting: Also known as a two-round or second ballot system; a voting process in which a candidate must win a simple majority or other clear margin in order to win. If no one does so, the top vote-getters (often just the top two) compete in a second round of voting. Proponents claim this system is fairer than a simple plurality (or first-past-the-post) system.

Vote by mail: Also known as mail-in or postal voting; the practice of mailing ballots to all voters prior to Election Day and collecting completed ballots through the postal system or special drop boxes, after which they are verified and counted. Some US states conduct their elections primarily by mail. The process was widely expanded for the 2020 US presidential election due to the COVID-19 pandemic, drawing opposition from some Republicans.

History

The founders of the United States considered Congress to be the most important body of government, as it would be responsible for proposing and enacting legislation. The office of the president was conceived as an executive position, whose responsibilities were to manage the country and to advise Congress. Nevertheless, there was much debate over the method of electing the president and vice president. Some felt that Congress should elect the president, while others felt that the president should be elected by direct popular vote. In the end, a compromise was reached: the people would cast their vote for a candidate, and the winner of the popular vote in a given state would be awarded all the electoral votes from that state, which varied based on the number of senators and representatives from the state. The constitutional requirements for the Electoral College are vague, and it is left to the states to decide how electors are chosen and how they cast their votes.

Prior to the 1800 presidential election, each elector cast two votes for president. The person who received the most votes became president, while the runner-up became vice president. Unfortunately, this system proved insufficient in 1800, when Thomas Jefferson and running mate Aaron Burr both received seventy-three electoral votes. The only provision then in place for solving such a dispute was to have the House of Representatives decide the outcome of the election. After much debate, and thirty-five separate votes, the House eventually elected Jefferson as president. Recognizing the turmoil this situation had presented, Congress passed the Twelfth Amendment to the Constitution, requiring that each elector cast one vote for president and one for vice president.

There has been debate surrounding the Electoral College and the electoral process ever since, but relatively few changes have actually been enacted. The passage of the Fifteenth and Nineteenth Amendments extended suffrage to all persons, regardless of race or sex, respectively, but this did not change the voting process itself. Likewise, the Twenty-Second Amendment, which limited the service of presidents to two terms, did not change the process at all. The only political reform during the next two hundred years to make a change to the electoral process itself occurred with the passage of the Twenty-Third Amendment in 1961, which granted three electoral votes to the District of Columbia, which previously had none. The federal Voting Rights Act of 1965 (VRA) was also enacted to ensure that local regulations, such as poll taxes or literacy tests, would not deprive Black voters and other voters of color of their constitutional right to vote. In June 2013, the Supreme Court ruled in Shelby v. Holder that VRA's Section 4, concerning which states had to receive clearance from the Department of Justice (DOJ) before enacting changes in state voting procedures, was unconstitutional. With Section 4 struck down, nine former Confederate states were allowed to make changes to their voting laws without DOJ preclearance.

Voter participation by eligible persons in the United States was consistently low through most of the twentieth century and into the twenty first; voter turnout for presidential elections did not exceeded 60 percent between 1968 and 2020. To combat dropping voter turnout, the United States has proposed many administrative reforms within the current system that make voting less costly and time-intensive, and thus more attractive, to low-income voters. Among the enacted or proposed reforms are vote by mail, absentee voting, early voting, and internet voting.

According to 2017 data from the Pew Research Center, the United States ranked twenty-eighth out of thirty-five countries in the Organization for Economic Cooperation Development (OECD) in terms of voting-age population turnout. Critics have suggested that reforms designed to increase voter turnout among low-income voters would disproportionately help the Democratic Party, though there is little evidence to support this view. Many critics feel that the most crucial reforms are those that enfranchise voters by educating them about the electoral process. These critics also claim that electoral reforms designed to make the process easier do more to retain voters than they do to attract new voters.

The contested 2000 presidential election between George W. Bush and Al Gore was something of a wake-up call for many voters, who found the methods used in determining the outcome of that contentious contest both outdated and unfair. Vote counting in Florida was plagued with confusion over miscounted and recounted ballots, but the controversy mostly revolved around the disparity between the popular vote and the electoral votes. Gore won the plurality of the popular vote but failed to receive the necessary electoral votes to win the election. Many people saw this as evidence that the Electoral College is flawed, since it resulted in the election of a candidate that the majority of the people had not voted for. In the aftermath of the election, Congress sought to reform the electoral system in order to prevent a similar situation from occurring again. In 2002, both the House and the Senate passed into law the Help America Vote Act (HAVA), which was specifically designed to replace the country's punch-card voting machines with more accurate voting methods, including electronic voting machines. HAVA outlined a program in which the federal government would provide money to states in order to improve their polling technology and staffing, as well as to fund voter education.

The 2006 midterm elections in the United States saw the first major application of electronic voting machines. Several minor and major glitches were reported with the machines, from displays that omitted candidates' last names to machines that simply refused to work. Avi Rubin, a well-known critic of electronic voting, attributed these types of problems to attempts to use technology to solve problems that he argued would be more easily and more readily solved with legislation and legal reform. Similarly, the 2008 national elections saw glitches with electronic voting machines, but the problems appeared generally to be few and scattered. Notably, the election glitches were not as publicized as the 2000 and 2004 problems, likely due in large part to Barack Obama's large margin of victory in the presidential contest.

Electoral Reform Today

A number of differing and overlapping problems continue to face the United States' electoral process. Therefore, there are many different suggestions to rectify its shortcomings. Potential reforms range from highly specific policy tweaks to sweeping changes to the entire electoral system at the federal and state levels.

The Electoral College remains a common target of reformers. Critics have repeatedly argued that the system favors states with low population growth and hinders states with high population growth. Since the most growth tends to occur in cities, which generally vote Democratic, and the least growth occurs in rural areas, which tend to vote Republican, both major political parties have political reasons for supporting or opposing Electoral College reform. The question, critics suggest, should be whether, and to what degree, the Electoral College benefits citizens—not politicians. The results of the 2016 presidential election thrust reconsideration of the system into the headlines once again, as Hillary Clinton won the popular vote, with over 2.8 million more votes than Trump, but lost the Electoral College by a wide margin (232–306). Critics suggested that the outcome showed how the Electoral College elevates voters in key swing states and weakens the influence of voters in non-battleground states. The power of swing states was again seen in the 2020 presidential election, though Joe Biden ultimately defeated Donald Trump by significant margins in both the popular vote and the Electoral College.

The push to adopt federal electronic voting systems in place of other, outdated systems has also been debated. Many critics, including prominent computer scientists, have warned that moving to purely electronic voting could remove all accountability from the voting process and potentially expose the system to tampering or hacking. Nevertheless, with HAVA funding, several states adopted electronic voting systems after 2000 in order to combat the problems inherent in archaic voting systems. Glitches remained problematic, however. Furthermore, after federal intelligence agencies asserted Russia had attempted to interfere in the 2016 election, fears over the hacking of electronic voting systems increased considerably. Some observers advocated for a return to analog systems in all districts, but some electronic voting remained in place for the 2020 election, which was found to be highly secure. According to a declassified National Intelligence Council assessment of foreign threats to the 2020 US federal election that was released in March 2021, the US intelligence community found no indications that another country or foreign organization had tried to interfere with voter registration, ballot casting, vote counting, or election results reporting. The intelligence community did report that while they did not find evidence of Russian cyber efforts to access election infrastructure, they did find that anti-Biden, pro-Trump influence operations were authorized by Russian president Vladimir Putin and carried out by Russian government organizations.

Other security-minded reforms, such as mandatory photo identification to vote and limitations on voting by mail, have also been proposed and even implemented as ways to avoid voter fraud. However, critics point to studies showing significant voter fraud is rare and argue that such measures are really intended to disenfranchise certain demographics, particularly Black, Indigenous, and other voters of color. They suggest that reform efforts should instead focus on making voting easier for all eligible citizens. This debate came to the forefront in the 2020 election cycle, as President Trump strongly opposed the expansion of vote by mail programs and made baseless claims of widespread voter fraud. Democrats countered that Trump and fellow Republicans were working to suppress the vote and turn public opinion against legitimate election results and brought up the possibility of statehood for Washington, DC, and Puerto Rico.

Even before the 2020 election, voter dissatisfaction with the electoral system was growing. According to the 2016 American Values Survey (conducted in September 2016, prior to the 2016 presidential election), more than 60 percent of Americans said that neither major political party reflected their opinions. During the 2016 presidential election, both Clinton and Trump suffered from historically low favorability ratings, with less than half of the American public viewing each candidate in a positive manner (41 percent for Clinton, 33 percent for Trump). Neither candidate ultimately received more than 50 percent of the vote, underscoring the appearance that national leaders were not truly chosen by the people. Reform advocates suggested that poll and election results such as these bolster the argument for the United States to adopt a run-off or ranked-choice election system, rather than the traditional plurality system that favors the two major parties and makes voting for a third-party candidate seem nonviable.

Other electoral reform issues also continue to be debated. Prominent among these is campaign finance reform, particularly following the Supreme Court's decision in Citizens United v. Federal Election Commission (2010), which led to a flood of money, including a disproportionate share of campaign donations from very wealthy individuals, seeking to influence election outcomes in the United States. Simpler proposals include making Election Day a national holiday, thereby enabling more working-class Americans to make it to the polls to vote.

By May 2022, according to the Brennan Center for Justice, lawmakers in thirty-nine states had considered at least 393 voting restriction bills for the 2022 legislative session, and eighteen states had enacted more than thirty such measures. The measures included restrictions on voting by mail, voter registration, election oversight by local officials, and voter identification requirements, among others. At the same time, almost six hundred bills in forty-four states sought to expand voting access, facilitate registration, or restore voting rights to former prisoners for the 2022 legislative session. The latter state measures generally aligned with the For the People Act, a broad-ranging set of federal proposals for voting rights protections, which passed the Democratic-controlled US House in March 2021 but stalled in the divided Senate. That August, House Democrats pushed through the Voting Rights Advancement Act to update and reinstate overturned VRA oversight provisions, and in September, Senate Democrats put forth their revised For the People Act as the Freedom to Vote Act; both bills faced significant Senate Republican opposition. Though the two bills were combined and sent to the Senate in early 2022 as the Freedom to Vote: John R. Lewis Act, this revised legislation did not advance, as an attempt to end a Republican filibuster failed.

On the basis of preventing efforts following the 2020 presidential election to overturn election results and the attack on the Capitol building during Congress's certification of the electoral votes that occurred in January 2021, by the summer of 2022 several legislators had come together in both the House and the Senate to introduce bills aimed at reforming the Electoral Count Act. In September, the House passed its version, the Presidential Election Reform Act, which called for the submission by each state of an electoral certificate and clarified that the vice president had only a ministerial part in electoral vote approval.

Ultimately, as an extremely complex and wide-ranging subject, electoral reform constantly gains new facets as new political and social issues arise.

Co-Author

Andrew Walter, Esq., is an attorney licensed to practice in the state of Connecticut. He received a bachelor of arts degree in international management, with a minor in English, from Gustavus Adolphus College in St. Peter, Minnesota, and a juris doctorate from Roger Williams University School of Law in Bristol, Rhode Island. He served as a law clerk for the judges of the Connecticut Superior Court before becoming an attorney at the Connecticut Supreme Court, dealing with a variety of civil and criminal issues before that court.

These essays and any opinions, information or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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