Chapter 7: Voting and Elections

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Chapter 7 Vocabulary

ballot fatigue

the situation present when a voter stops voting for offices and/or initiatives at the bottom of a long ballot

caucus

a form of candidate nomination that occurs in a town-hall style format rather than a day-long election; usually reserved for presidential elections

chronic minority

voters who belong to political parties that tend not to be competitive in national elections because they are too small to become a majority or because of the Electoral College system distribution in their state – one example is the Libertarian Party

closed primary

an election in which only voters registered with a specific political party may vote for that party’s candidates

coattail effect

the result when a popular presidential or other higher-level candidate helps candidates from the same party win their own elections by their presence on the ballot

delegates

party members who are chosen to represent a particular candidate at the party’s state- or national-level nominating convention

district system

the means by which electoral votes are divided between candidates based on who wins districts and/or the state

early voting

an accommodation that allows voting up to two weeks or even more before Election Day

Electoral College

the constitutionally created group of individuals, chosen by the states, with the responsibility of formally selecting the next U.S. president

incumbency advantage

the advantage held by officeholders that allows them to more easily win reelection because they already hold office

incumbent

the current holder of a political office

(ballot) initiative

a law or constitutional amendment proposed and passed by the voters and subject to review by the state courts; also called a proposition

midterm elections

the congressional elections that occur in the years between presidential election years, in the middle of the sitting president’s term

open primary

an election in which any registered voter may vote in any party’s primary or caucus

platform

the set of issues and positions important to the political party and the party delegates

political action committees (PACs)

organizations created to raise money for political campaigns and spend money to influence policy and politics

recall

the removal of a politician or government official by the voters

referendum

a yes or no vote by citizens on a law or candidate proposed by the state government

residency requirement

the stipulation that citizen must live in a state for a predetermined period of time before a citizen can register to vote as a resident of that state

shadow campaign

a campaign run by political action committees and other organizations without the coordination of the candidate

straight-ticket voting

the practice of voting only for candidates from the same political party

super PACs

officially known as Independent Expenditure-Only Committees; organizations that can fundraise and spend as they please to support or attack a candidate but not contribute directly to a candidate or strategize with a candidate’s campaign

top-two primary

a primary election in which the two candidates with the most votes, regardless of party, become the nominees for the general election

voter fatigue

the result when voters grow tired of voting and stay home from the polls

voting-age population

the number of citizens over the legal voting age – usually eighteen

voting-eligible population

the number of citizens eligible to vote

winner-take-all system (electoral college)

a system where a state gives all electoral votes for to the candidate who wins the most votes in that state rather than doing so on a percentage per-candidate-vote basis

What brings voters to the polls, and how do they make their voting decisions? Those are just two of the questions about voting and elections this chapter will explore.

7.1 Voter Registration and Voting

LEARNING OBJECTIVES

By the end of this section, you will be able to:

• Identify ways the U.S. government has promoted voter rights and registration
• Summarize similarities and differences in states’ voter registration methods
• Analyze ways states increase voter registration and decrease fraud
• Understand voter decision making

Before most voters are allowed to cast a ballot, they must register to vote in their state. This process may be as simple as checking a box on a driver’s license application or as difficult as filling out a long form with specific questions. Registration allows governments to determine which citizens are allowed to vote and, in some cases, from which list of candidates they may select a party nominee. Ironically, while government wants to increase voter turnout, the registration process in the past may have prevented various groups of citizens and non-citizens from participating in the electoral process.

VOTER REGISTRATION ACROSS THE UNITED STATES

Elections are state-by-state contests. They include general elections for president and statewide offices (e.g., governor and U.S. senator), and they are often organized and paid for by the states. Because political cultures vary from state to state, the process of voter registration also varies. For example, suppose an 85-year-old retiree with an expired driver’s license wants to register to vote. He or she might be able to register quickly in California or Florida, but a current government ID might be required prior to registration in Texas or Indiana.

The varied registration and voting laws across the United States have long caused controversy. In the aftermath of the Civil War, southern states enacted literacy tests, grandfather clauses, and other requirements intended to disenfranchise Black voters in Alabama, Georgia, and Mississippi. Literacy tests were long and detailed exams on local and national politics, history, and more. In the past, poll taxes required voters to pay a fee to vote. Grandfather clauses exempted individuals from taking literacy tests or paying poll taxes if they or their fathers or grandfathers had been permitted to vote prior to a certain point in time. While the Supreme Court determined that grandfather clauses were unconstitutional in 1915, states continued to use poll taxes and literacy tests to deter potential voters from registering in some cases. 

The ratification of the Twenty-Fourth Amendment in 1964 ended poll taxes, but the passage of the Voting Rights Act (VRA) in 1965 had a more profound effect.

The act protected the rights of minority voters by prohibiting state laws that denied voting rights based on race. The VRA gave the attorney general of the United States authority to order federal examiners to areas with a history of discrimination. These examiners had the power to oversee and monitor voter registration and elections. States found to violate provisions of the VRA were required to get any changes in their election laws approved by the U.S. attorney general or by going through the court system.

The effects of the VRA were visible almost immediately. In Mississippi, only 6.7 percent of Black people were registered to vote in 1965; however, by the fall of 1967, nearly 60 percent were registered. Alabama experienced similar effects, with African American registration increasing from 19.3 percent to 51.6 percent. Voter turnout across these two states similarly increased. Mississippi went from 33.9 percent turnout to 53.2 percent, while Alabama increased from 35.9 percent to 52.7 percent between the 1964 and 1968 presidential elections.

However, in Shelby County v. Holder (2013), the Supreme Court, in a 5–4 decision, threw out the standards and process of the VRA. This decision effectively pushed decision-making and discretion for election policy in VRA states to the state and local level.

Many states have sought other methods of increasing voter registration. Several states make registering to vote relatively easy for citizens who have government documentation. Oregon has few requirements for registering and registers many of its voters automatically. North Dakota has no registration at all. In 2002, Arizona was the first state to offer online voter registration, which allowed citizens with a driver’s license to register to vote without any paper application or signature. Citizens without a driver’s license still need to file a paper application. More than eighteen states have moved to online registration or passed laws to begin doing so.

Other states have decided against online registration due to concerns about voter fraud and security. Legislators also argue that online registration makes it difficult to ensure that only citizens are registering and that they are registering in the correct precincts. As technology continues to update other areas of state recordkeeping, online registration may become easier and safer. In some areas, citizens have pressured the states and pushed the process along.

SIDEBAR: While less than 100 percent voter registration is not ideal, there are many reasons for people not registering that have little or nothing to do with the most common beliefs about why people do not register. In 2017 a study was conducted that thoroughly examined this phenomenon. If you are interested in learning why many eligible people do not feel they should bother registering to vote, you may find this study interesting.

What percentage of eligible voters have registered in your state? This link has an interactive map that you may find interesting.

In the 2020 elections, there were significant concerns raised about voter fraud. These issues were spotlighted in social media discussions as never before. While there are continuing debates about whether the issue was widespread or not, voter fraud itself is a very real issue that does sometimes affect the outcome of elections. There is no question that voter fraud takes place – the controversy is how widespread it is and how frequently it tips elections to candidates or initiatives that would not have otherwise prevailed. Legitimate ways to solve the problem can become highly politicized and, unfortunately, objectively effective solutions sometimes get lost in political manipulation and gamesmanship and become the battleground for partisan politics.

Some states are taking action to preserve the integrity of the vote, but the issue is controversial since some say the proposed laws would make it more “difficult” for people to vote. Some issues that are in contention:

• Early voting
• Ballot harvesting
• Voter ID (should it be required?)
• Should widespread absentee ballots be allowed, and if so, how do you ensure the person voting via one is who they say they are?
• Voter registration issues

HOW DOES SOMEONE REGISTER TO VOTE?

In all states except North Dakota, a citizen wishing to vote must complete an application. Whether the form is online or on paper, the prospective voter will list his or her name, residency address, and in many cases party identification (with Independent as an option) and affirm that he or she is competent to vote. States may also have a residency requirement, which establishes how long a citizen must live in a state before becoming eligible to register – often thirty days. Beyond these requirements, there may be an oath administered or more questions asked, such as felony convictions. If the application is completely online and the citizen has government documents (e.g., driver’s license or state identification card), the system will compare the application to other state records and accept an online signature or affidavit if everything matches up correctly. Citizens who do not have these state documents are often required to complete paper applications. States without online registration often allow a citizen to fill out an application on a website, but the citizen will receive a paper copy in the mail to sign and mail back to the state.

Another aspect of registering to vote is the timeline. States may require registration to take place as much as thirty days before voting, or they may allow same-day registration. Maine first implemented same-day registration in 1973. Fourteen states and the District of Columbia now allow voters to register the day of the election if they have proof of residency, such as a driver’s license or utility bill. Many of the more populous states (e.g., Michigan and Texas), require registration forms to be mailed thirty days before an election. Moving means citizens must re-register or update their addresses. College students, for example, may have to re-register or update their addresses each time they move.

Yet another consideration is how far in advance of an election one must apply to change one’s political party affiliation. In states with closed primaries, it is important for voters to be allowed to register into whichever party they prefer. This issue came up during the 2016 presidential primaries in New York, where there is a lengthy timeline for changing a voter’s party affiliation.

Some attempts have been made to streamline voter registration. The National Voter Registration Act (1993), often referred to as ‘Motor Voter’, was enacted to expedite the registration process and make it as simple as possible for voters. The act required states to allow citizens to register to vote when they sign up for driver’s licenses and Social Security benefits. On each government form, the citizen need only mark an additional box to also register to vote.

While increasing registrations by 7 percent between 1992 and 2012, Motor Voter did not dramatically increase voter turnout. In fact, for two years following the passage of the act, voter turnout decreased slightly. It appears that the main users of the expedited system were those already intending to vote. One study, however, found that preregistration may have a different effect on youth than on the overall voter pool; in Florida, it increased turnout of young voters by 13 percent.

In 2015, Oregon made news when it took the concept of Motor Voter further. When citizens turn eighteen, the state now automatically registers most of them using driver’s license and state identification information. When a citizen moves, the voter rolls are also updated when the license is updated. This policy has been controversial, with some arguing that private information may become public or that Oregon is moving toward mandatory voting.

Maintaining accurate voter registration rolls is critical. Invalid voter registrations are an easy avenue to accomplish voter fraud for those who would attempt to do so. During the 2000 election, in which George W. Bush won Florida’s electoral votes by a slim majority, attention turned to the state’s election procedures and voter registration rolls. Journalists found that many states, including Florida, had large numbers of ‘phantom voters’ on their rolls – voters had moved or died but remained on the states’ voter registration rolls. The Help America Vote Act of 2002 (HAVA) was passed in order to reform voting across the states and reduce these problems. As part of the Act, states were required to update voting equipment, make voting more accessible to the disabled, and maintain computerized voter rolls that could be updated regularly.

Over a decade later, there has been some progress. In Louisiana, voters are placed on ineligible lists if a voting registrar is notified that they have moved or become ineligible to vote. If the voter remains on this list for two general elections, his or her registration is cancelled. In Oklahoma the process is even more robust the registrar actually receives a list of deceased residents from the Department of Health and is expected to remove their registrations. 

Despite these efforts, a study commissioned by the Pew Charitable Trust found at least twenty-four million voter registrations nationwide were no longer valid. Pew has worked with eight states to update their voter registration rolls and is encouraging more states to share their rolls in an effort to find duplicates.

LINK TO LEARNING

The National Association of Secretaries of State maintains a website that directs users to their state’s information regarding voter registration, identification policies, and polling locations.

WHO IS ALLOWED TO REGISTER?

In order to be eligible to vote in national elections the United States, a person must be a citizen, resident, and eighteen years old. Having said that, some politicians from states like New York and California want to give even illegal aliens the right to vote. As of 2022, they have not “officially” done so, but there have been issues where illegal immigrants have registered to vote (and voted) in quite a few states. California permits all residents in the state to apply for a driver’s license (whether they are US citizens or not).  Those who apply for a driver’s license are automatically added to voter registration lists unless they specifically “opt out” thus potentially registering both legal and illegal California residents.

In 2016 it was estimated as many as 5.7 million illegal votes were cast in the 2008 and 2010 elections. According to the research published in the Electoral Studies Journal, Non-citizen participation in U.S. elections, wrote the authors, “has been large enough to change meaningful election outcomes including Electoral Colleges votes, and Congressional elections.”

States often place additional requirements on the right to vote. The most common requirement is that voters must be mentally competent and not currently serving time in jail. Some states enforce more stringent or unusual requirements on citizens who have committed crimes. Florida and Kentucky permanently bar felons and ex-felons from voting unless they obtain a pardon from the governor, while Mississippi and Nevada allow former felons to apply to have their voting rights restored. On the other end of the spectrum, Vermont does not limit voting based on incarceration unless the crime was election fraud. Maine citizens serving in Maine prisons also may vote in elections.

Beyond those jailed, some citizens have additional expectations placed on them when they register to vote. Wisconsin requires that voters “not wager on an election,” and Vermont citizens must recite the “Voter’s Oath” before they register, swearing to cast votes with a conscience and “without fear or favor of any person.”

VOTER DECISION MAKING

When citizens do vote, how do they make their decisions? The election environment is complex, and most voters don’t have time to research everything about the candidates and issues. Yet they will need to make a fully rational assessment of the choices for an elected office. To meet this goal, they tend to take shortcuts.

One popular shortcut is simply to vote using party affiliation. Many political scientists consider party-line voting to be rational behavior because citizens register for parties based upon either position preference or socialization. Similarly, candidates align with parties based upon their issue positions. A Democrat who votes for a Democrat is very likely selecting the candidate closest to his or her personal ideology. While party identification is a voting cue, it also makes for a logical decision.

Citizens also use party identification to make decisions via straight-ticket voting—choosing every Republican or Democratic Party member on the ballot. In some states, such as Michigan, selecting one box at the top of the ballot gives a single party all the votes on the ballot.

Straight-ticket voting does cause problems in states that include non-partisan positions on the ballot. In Michigan, for example, the top of the ballot (presidential, gubernatorial, senatorial and representative seats) will be partisan, and a straight-ticket vote will give a vote to all the candidates in the selected party. But the middle or bottom of the ballot includes seats for local offices or judicial seats, which are non-partisan. These offices would receive no vote, because the straight-ticket votes go only to partisan seats. In 2010, actors from the former political drama The West Wing came together to create an advertisement for Mary McCormack’s sister Bridget, who was running for a non-partisan seat on the Michigan Supreme Court. The ad reminded straight-ticket voters to cast a ballot for the court seats as well; otherwise, they would miss an important election. McCormack won the seat.

Another adverse issue with straight-party-voting is that the voter may be voting against his or her own conscience and not know it. This happens when a candidate is registered in one political party but typically casts votes favoring a stance that the party does not take. For instance, a republican senator may be called a “rino” (Republican in Name Only) by community members if he often votes for liberal causes. Some candidates will actually register as a member of a party they do not agree with if they believe that they can get votes from an overwhelmingly partisan voter base in a particular state. This might happen if a republican registered as a Democrat in a state like California or a Democrat registered as a Republican in a state like Idaho.

Straight-ticket voting does have the dubious ‘advantage’ of reducing ballot fatigue. Ballot fatigue occurs when someone votes only for the top or important ballot positions, such as president or governor, and stops voting rather than continue to the bottom of a long ballot. In 2012, for example, 70 percent of registered voters in Colorado cast a ballot for the presidential seat, yet only 54 percent voted yes or no on retaining Nathan B. Coats for the state supreme court.

Sidebar: Voters who are not too cerebral in their approach to choosing a candidate can be swayed by the tiniest things. Probably the most famous example comes from the Nixon vs. Kennedy debates. People who listened to the debate on the radio thought Nixon had done very well. However, those who had watched the debate on TV thought Kennedy had been superior. Over the years pundits have posited that Nixon’s lack of makeup showed off his razor stubble and made him look a little disheveled or even ill – thereby leading to a perception of the man which was lackluster.

Issue Voting: Aside from party identification and demographics, voters will also look at issues or the economy when making a decision. For some single-issue voters, a candidate’s stance on abortion rights – as an example – will be a major factor, while other voters may look at the candidates’ beliefs on the Second Amendment and gun control, while others might be very concerned about a candidate’s support of the elderly via funding of social security. Single-issue voting may not require much more effort by the voter than simply using party identification; however, many voters are likely to seek out a candidate’s position on a multitude of issues before making a decision. They will use the information they find in several ways.

Informed Voting: Well-informed voters who consider the entirety of the community or nation’s situation and the stances that all candidates have on these issues, will cast their votes without regard to party lines. Those who cast their votes after deep consideration without regard to party-affiliation, it can be argued, are the most responsible voters. Famously, Ronald Regan was able to get voters to do just that in the 1980 election where millions of Democrats crossed party lines after they took Regan’s gentle but firm admonition to do just that into consideration. Regan asked the voters to take into consideration his stance AND his opponents record and to choose the candidate that they thought was the best for the country as a whole. Ronald Regan won the 1980 election in an electoral landslide victory.

Retrospective voting occurs when the voter looks at the candidate’s past actions and the past economic climate and makes a decision only using these factors. This behavior may occur during economic downturns or after political scandals, when voters hold politicians accountable and do not wish to give the representative a second chance. 

Pocketbook voting occurs when the voter looks at his or her personal finances and circumstances to decide how to vote. Someone having a harder time finding employment or seeing investments suffer during a particular candidate or party’s control of government will vote for a different candidate or party than the incumbent. 

Prospective voting occurs when the voter applies information about a candidate’s past behavior to decide how the candidate will act in the future. For example, will the candidate’s voting record or actions help the economy and better prepare him or her to be president during an economic downturn? The challenge of this voting method is that the voters must use a lot of information, which might be conflicting or unrelated, to make an educated guess about how the candidate will perform in the future. Voters do appear to rely on prospective and retrospective voting more often than on pocketbook voting.

In some cases, a voter may cast a ballot strategically. In these cases, a person may vote for a second- or third-choice candidate, either because his or her preferred candidate cannot win or in the hope of preventing another candidate from winning. This type of voting is likely to happen when there are multiple candidates for one position or multiple parties running for one seat. In Florida and Oregon, for example, Green Party voters (who tend to be liberal) may choose to vote for a Democrat if the Democrat might otherwise lose to a Republican. Similarly, in Georgia, while a Libertarian may be the preferred candidate, the voter would rather have the Republican candidate win over the Democrat and will vote accordingly.

One other way voters make decisions is through incumbency. In essence, this is retrospective voting, but it requires little of the voter. In congressional and local elections, incumbents win reelection up to 90 percent of the time, a result called the incumbency advantage.

What contributes to this advantage and often persuades competent challengers not to run? First, incumbents have name recognition and voting records. The media is more likely to interview them because they have advertised their name over several elections and have voted on legislation affecting the state or district. Incumbents also have won elections before, which increases the odds that political action committees and interest groups will give them money; most interest groups will not give money to a candidate destined to lose.

Incumbents also have franking privileges, which allows them a limited amount of free mail to communicate with the voters in their district. While these mailings may not be sent in the days leading up to an election—sixty days for a senator and ninety days for a House member—congressional representatives are able to build a free relationship with voters through them. Moreover, incumbents have exiting campaign organizations, while challengers must build new organizations from the ground up. Lastly, incumbents have more money in their war chests than most challengers.

Another incumbent advantage is gerrymandering, the drawing of district lines to guarantee a desired electoral outcome. Every ten years, following the U.S. Census, the number of House of Representatives members allotted to each state is determined based on a state’s population. If a state gains or loses seats in the House, the state must redraw districts to ensure each district has an equal number of citizens. States may also choose to redraw these districts at other times and for other reasons. If the district is drawn to ensure that it includes a majority of Democratic or Republican Party members within its boundaries, for instance, then candidates from those parties will have an advantage.

Gerrymandering helps local legislative candidates and members of the House of Representatives, who win reelection over 90 percent of the time. Senators and presidents do not benefit from gerrymandering because they are not running in a district. Presidents and senators win states, so they benefit only from war chests and name recognition. This is one reason why senators running in 2014, for example, won reelection only 82 percent of the time.

7.2 Elections

LEARNING OBJECTIVES

By the end of this section, you will be able to:

• Describe the stages in the election process
• Compare the primary and caucus systems
• Summarize how primary election returns lead to the nomination of the party candidates

Elections offer American voters the opportunity to participate in their government with little investment of time or personal effort. Yet voters should make decisions carefully. The electoral system allows them the chance to pick party nominees as well as officeholders, although not every citizen will participate in every step. The presidential election is often criticized as a choice between two evils, yet citizens can play a prominent part in every stage of the race and influence who the final candidates actually are.

DECIDING TO RUN

Running for office can be as easy as collecting one hundred signatures on a city election form or paying a registration fee of several thousand dollars to run for governor of a state. However, a potential candidate still needs to meet specific requirements covering length of residency, voting status, and age. Potential candidates must also consider competitors, family obligations, and the likelihood of drawing financial backing. His or her spouse, children, work history, health, financial history, and business dealings also become part of the media’s focus, along with many other personal details about the past. Candidates for office are slightly more diverse than the representatives serving in legislative and executive bodies, but the realities of elections and living in the limelight of public office drive many eligible and desirable candidates away from running.

Despite these problems, most elections will have at least one candidate per political party on the ballot. In states or districts where one party holds a supermajority, such as California, candidates from the other party may be discouraged from running because they don’t think they have any chance to win. Candidates are likely to be moving up from prior elected office or are professionals, like lawyers, who can take time away from work to campaign and serve in office.

When candidates run for office, they are most likely to choose local or state office first. For women, studies have shown that family considerations rather than desire or ambition account for this choice. Further, women are more likely than men to wait until their children are older before entering politics, and women say that they struggle to balance campaigning and their workload with parenthood. Because higher office is often attained only after service in lower office, there are repercussions to women waiting so long. If they do decide to run for the U.S. House of Representatives or Senate, they are often older, and fewer in number, than their male colleagues. As of 2022, 30.7 percent of state legislators and 27 percent of U.S. Congress members are women. The number of women in executive office is often lower as well.

Another factor for potential candidates is whether the seat they are considering is competitive or open. A competitive seat describes a race where a challenger runs against the incumbent—the current office holder.

The word incumbent comes from the Latin incumbere, meaning lying or resting on something.

An open seat is one whose incumbent is not running for reelection. Incumbents who run for reelection are usually much more likely to win for a number of reasons, which are discussed later in this chapter. In fact, in the U.S. Congress, 95 percent of representatives and 82 percent of senators were reelected in 2014. But when an incumbent retires, the seat is open, and more candidates will run for that seat.

Many potential candidates will also decline to run if their opponent has a lot of money in a campaign war chest. War chests are campaign accounts registered with the Federal Election Commission, and candidates are allowed to keep earlier donations if they intend to run for office again. Incumbents and candidates trying to move from one office to another very often have money in their war chests. Those with early money are hard to beat because they have an easier time showing they are a viable candidate (a person possessing a reasonable chance to win). They can woo potential donors, which brings in more donations and strengthens the campaign. A challenger who does not have money, name recognition, or another way to appear viable will have fewer campaign donations and will be less competitive against the incumbent.

CAMPAIGN FINANCE LAWS

In the 2012 presidential election cycle, candidates for all parties raised a total of over $1.3 billion dollars for campaigns. Congressional candidates running in the 2014 Senate elections raised $634 million, while candidates running for the House of Representatives raised $1.03 billion. This, however, pales in comparison to the amounts raised by political action committees (PACs), which are organizations created to raise and spend money to influence politics and contribute to candidates’ campaigns.

In the 2014 congressional elections, PACs raised over $1.7 billion to help candidates and political parties. How does the government monitor the vast amounts of money that are now a part of the election process?

The history of campaign finance monitoring has its roots in a federal law written in 1867, which prohibited government employees from asking Naval Yard employees for donations. In 1896, the Republican Party spent about $16 million overall, which includes William McKinley’s $6–7 million campaign expenses. This raised enough eyebrows that several key politicians, including Theodore Roosevelt, took note. After becoming president in 1901, Roosevelt pushed Congress to look for political corruption and influence in government and elections. Shortly after, the Tillman Act (1907) was passed by Congress, which prohibited corporations from contributing money to candidates running in federal elections.

Example of the Tillman Act:
McDonalds is not allowed to give money to a presidential candidate.

Other congressional acts followed, limiting how much money individuals could contribute to candidates, how candidates could spend contributions, and what information would be disclosed to the public.

While these laws intended to create transparency in campaign funding, government did not have the power to stop the high levels of money entering elections, and little was done to enforce the laws. In 1971, Congress again tried to fix the situation by passing the Federal Election Campaign Act (FECA), which outlined how candidates would report all contributions and expenditures related to their campaigns. The FECA also created rules governing the way organizations and companies could contribute to federal campaigns, which allowed for the creation of political action committees. Finally, a 1974 amendment to the act created the Federal Election Commission (FEC), which operates independently of government and enforces the elections laws.

While some portions of the FECA were ruled unconstitutional by the courts in Buckley v. Valeo (1976), such as limits on personal spending on campaigns by candidates not using federal money, the FEC began enforcing campaign finance laws in 1976.  Even with the new laws and the FEC, money continued to flow into elections. By using loopholes in the laws, political parties and political action committees donated large sums of money to candidates, and new reforms were soon needed. Senators John McCain (R-AZ) and Russ Feingold (former D-WI) cosponsored the Bipartisan Campaign Reform Act of 2002 (BCRA), also referred to as the McCain–Feingold Act. McCain–Feingold restricts the amount of money given to political parties, which had become a way for companies and PACs to exert influence. It placed limits on total contributions to political parties, prohibited coordination between candidates and PAC campaigns, and required candidates to include personal endorsements on their political ads. It also limited advertisements run by unions and corporations thirty days before a primary election and sixty days before a general election.

Soon after the passage of the McCain–Feingold Act, the FEC’s enforcement of the law spurred court cases challenging it. The first, McConnell v. Federal Election Commission (2003), resulted in the Supreme Court’s upholding the act’s restrictions on how candidates and parties could spend campaign contributions.

But later court challenges led to the removal of limits on personal spending and ended the ban on ads run by interest groups in the days leading up to an election. In 2010, the Supreme Court’s ruling on Citizens United v. Federal Election Commission led to the removal of spending limits on corporations. Justices in the majority argued that the BCRA violated a corporation’s free speech rights.

The court ruling also allowed corporations to place unlimited money into super PACs, or Independent Expenditure-Only Committees. These organizations cannot contribute directly to a candidate, nor can they strategize with a candidate’s campaign.

They can, however, raise and spend as much money as they please to support or attack a candidate, including running advertisements and hosting events. In 2012, the super PAC “Restore Our Future” raised $153 million and spent $142 million supporting conservative candidates, including Mitt Romney. “Priorities USA Action” raised $79 million and spent $65 million supporting liberal candidates, including Barack Obama. The total expenditure by super PACs alone was $609 million in the 2012 election and $345 million in the 2014 congressional elections.

Several limits on campaign contributions have been upheld by the courts and remain in place and are adjusted every two years, based on inflation. These limits are intended to create a more equal playing field for the candidates, so that candidates must raise their campaign funds from a broad pool of contributors.

NOMINATION STAGE

Although the Constitution explains how candidates for national office are elected, it is silent on how those candidates are nominated. Political parties have taken on the role of promoting nominees for offices, such as the presidency and seats in the Senate and the House of Representatives. Because there are no national guidelines, there is much variation in the nomination process. States pass election laws and regulations, choose the selection method for party nominees, and schedule the election, but the process also greatly depends on the candidates and the political parties.

States, through their legislatures, often influence the nomination method by paying for an election to help parties identify the nominee the voters prefer. Many states fund elections because they can hold several nomination races at once. In 2012, many voters had to choose a presidential nominee, U.S. Senate nominee, House of Representatives nominee, and state-level legislature nominee for their parties.

The most common method of picking a party nominee for state, local, and presidential contests is called a primary election or simply a ‘primary’. Party members use a ballot to indicate which candidate they desire for the party nominee. Despite the ease of voting using a ballot, primary elections have a number of rules and variations that can still cause confusion for citizens. In a closed primary, only members of the political party selecting nominees may vote. A registered Green Party member, for example, is not allowed to vote in the Republican or Democratic primary. Parties prefer this method, because it ensures the nominee is picked by voters who legitimately support the party. An open primary allows all voters to vote regardless of their party affiliation. In this system, a Green Party member is allowed to pick either a Democratic or Republican ballot when voting.

For state-level office nominations, or the nomination of a U.S. Senator or House member, some states use the top-two primary method. A top-two primary, sometimes called a jungle primary, pits all candidates against each other, regardless of party affiliation. The two candidates with the most votes become the final candidates for the general election. Thus, two candidates from the same party could run against each other in the general election. In one California congressional district, for example, four Democrats and two Republicans all ran against one another in the June 2012 primary. The two Republicans received the most votes, so they ran against one another in the general election in November. 

In general, parties do not like nominating methods that allow non-party members to participate in the selection of party nominees. In 2000, the Supreme Court heard a case brought by the California Democratic Party, the California Republican Party, and the California Libertarian Party. The parties argued that they had a right to determine who associated with the party and who participated in choosing the party nominee. The Supreme Court agreed, limiting the states’ choices for nomination methods to closed and open primaries.

Despite the common use of the primary system, at least four states (Alaska, Hawaii, Colorado, and Iowa) regularly use caucuses for presidential, state, and local-level nominations. A caucus is a meeting of party members in which nominees are selected informally. Caucuses are less expensive than primaries because they rely on voting methods such as dropping marbles in a jar, placing names in a hat, standing under a sign bearing the candidate’s name, or taking a voice vote. Volunteers record the votes and no poll workers need to be trained or compensated. The party members at the caucus also help select delegates, who represent their choice at the party’s state- or national-level nominating convention.

The Iowa Democratic Caucus is well-known for its spirited nature. The party’s voters are asked to align themselves into preference groups, which often means standing in a room or part of a room that has been designated for the candidate of choice. The voters then get to argue and discuss the candidates, sometimes in a very animated and forceful manner. After a set time, party members are allowed to realign before the final count is taken. The caucus leader then determines how many members support each candidate, which determines how many delegates each candidate will receive.

The caucus has its proponents and opponents. Many argue that it is more interesting than the primary and brings out more sophisticated voters, who then benefit from the chance to debate the strengths and weaknesses of the candidates. The caucus system is also more transparent than ballots. The local party members get to see the election outcome and pick the delegates who will represent them at the national convention. There is less of a possibility for deception or dishonesty. Opponents point out that caucuses take two to three hours and are intimidating to less experienced voters. These factors, they argue, lead to lower voter turnout. And they may have a point—voter turnout for a caucus is generally 20 percent lower than for a primary.

Regardless of which nominating system the states and parties choose, states must also determine which day they wish to hold their nomination. When the nominations are for state-level office, such as governor, the state legislatures receive little to no input from the national political parties. In presidential election years, however, the national political parties pressure most states to hold their primaries or caucuses in March or later. Only Iowa, New Hampshire, and South Carolina are given express permission by the national parties to hold presidential primaries or caucuses in January or February. Both political parties protect the three states’ status as the first states to host caucuses and primaries, due to tradition and the relative ease of campaigning in these smaller states.*

(*At the time this section was edited in January 2023, the Democratic Party is considering not doing this any longer for Iowa.)

Other states, especially large states like California, Florida, Michigan, and Wisconsin, often are frustrated that they must wait to hold their presidential primary elections later in the season. Their frustration seems logical: candidates who do poorly in the first few primaries often drop out entirely, narrowing the choices and leaving fewer candidates to run in caucuses and primaries held in February and later. In 2008, California, New York, and several other states disregarded the national party’s guidelines and scheduled their primaries the first week of February. In response, Florida and Michigan moved their primaries to January and many other states moved forward to March. This was not the first time states participated in frontloading and scheduled the majority of the primaries and caucuses at the beginning of the primary season. It was, however, one of the worst occurrences. States have been frontloading since the 1976 presidential election, with the problem becoming more severe in the 1992 election and later.

Political parties allot delegates to their national nominating conventions based on the number of registered party voters in each state. California, the state with the most Democrats, sent 548 delegates to the 2016 Democratic National Convention, while Wyoming, with far fewer Democrats, sent only 18 delegates. When the national political parties want to prevent states from frontloading, or doing anything else they deem detrimental, they can change the state’s delegate count, which in essence increases or reduces the state’s say in who becomes the presidential nominee. In 1996, the Republicans offered bonus delegates to states that held their primaries and caucuses later in the nominating season. In 2008, the national parties ruled that only Iowa, South Carolina, and New Hampshire could hold primaries or caucuses in January. Both parties also reduced the number of delegates from Michigan and Florida as punishment for those states’ holding early primaries. Despite these efforts, candidates in 2008 had a very difficult time campaigning during the tight window caused by frontloading.

One of the criticisms of the modern nominating system is that parties today have less influence over who becomes their nominee. In the era of party “bosses,” candidates who hoped to run for president needed the blessing and support of party leadership and a strong connection with the party’s values. Now, anyone can run for a party’s nomination. The candidates with enough money to campaign the longest, gaining media attention, momentum, and voter support are more likely to become the nominee than candidates without these attributes, regardless of what the party leadership wants.

This new reality has dramatically increased the number of politically inexperienced candidates running for national office. In 2012, for example, eleven candidates ran multistate campaigns for the Republican nomination. Dozens more had their names on one or two state ballots. With a long list of challengers, candidates must find more ways to stand out, leading them to espouse extreme positions or display high levels of charisma. Add to this that primary and caucus voters are often more extreme in their political beliefs, and it is easy to see why fewer moderates become party nominees.

On the other hand, supporters of the current system point out that with the participation of candidates who would not normally be approved of by party bosses because of cronyism, the old boy network, and the stranglehold of the “Washington elite”. Entrenched politicians thus hold less sway allowing a more open field of candidates and assuring that new ideas come in with new blood.

They also point out that this ‘upsetting of the status quo’ can be a catalyst for change in Washington. This polarization provides a chance for the two main political parties to prove that they are indeed different from one another, and this gives citizens a more valid and varied choice rather than voting for “different colored stripes on the same elite political zebra”.

Some political observers suggest that the nomination and election of President Donald Trump in 2020 was an example of this as he was not cut from the same cloth as most politicians at the time. Instead, they suggest that Trump was elected by a much more populist majority of voters tired of what they believe has by default become a “single party system with two names”.

LINK TO LEARNING

Take a look at Campaigns & Elections to see what hopeful candidates are reading.

CONVENTION SEASON

Once it is clear who the parties’ nominees will be, presidential and gubernatorial (governor) campaigns enter a quiet period. Candidates run fewer ads and concentrate on raising funds for the fall election season. This is a crucial time because lack of money can harm their chances. The media spends much of the summer keeping track of the fundraising totals while the political parties plan their conventions. State parties host state-level conventions during gubernatorial elections, while national parties host national conventions during presidential election years.

Party conventions are typically held between June and September, with state-level conventions earlier in the summer and national conventions later. Conventions normally last four to five days, with days devoted to platform discussion and planning and nights reserved for speeches. Local media covers the speeches given at state-level conventions, showing speeches given by the party nominees for governor and lieutenant governor, and perhaps important guests or the state’s U.S. senators. The national media covers the Democratic and Republican conventions during presidential election years, mainly showing the speeches. Some cable networks broadcast delegate voting and voting on party platforms. Members of the candidate’s family and important party members generally speak during the first few days of a national convention, with the vice presidential nominee speaking on the next-to-last night and the presidential candidate on the final night. The two chosen candidates then hit the campaign trail for the general election. The party with the incumbent president holds the later convention, so in 2024, the Democrats will hold their convention after the Republicans.

There are rarely surprises at the modern convention. Thanks to party rules, the nominee for each party is generally already clear. In 2008, John McCain had locked up the Republican nomination in March by having enough delegates, while in 2012, President Obama was an unchallenged incumbent and hence people knew he would be the nominee. In 2016, both apparent nominees (Democrat Hillary Clinton and Republican Donald Trump) faced primary opponents who stayed in the race even when the nominations were effectively sewn up—Democrat Bernie Sanders and Republican Ted Cruz—though no “convention surprise” took place. The naming of the vice president is generally not a surprise either. Even if a presidential nominee tries to keep it a secret, the news often leaks out before the party convention or official announcement.

Despite the lack of surprises, there are several reasons to host traditional conventions. First, the parties require that the delegates officially cast their ballots. Delegates from each state come to the national party convention to publicly state who their state’s voters selected as the nominee.

Second, delegates will bring state-level concerns and issues to the national convention for discussion, while local-level delegates bring concerns and issues to state-level conventions. This list of issues that concern local party members, like limiting abortions in a state or protecting the nation’s borders, are called planks, and they will be discussed and voted upon by the delegates and party leadership at the convention. Just as wood planks make a platform, issues important to the party and party delegates make up the party platform. The parties take the cohesive list of issues and concerns and frame the election around the platform. Most candidates will try to keep to the party’s platform when campaigning, and outside groups that support them, such as super PACs, may also try to keep to these issues.

Third, conventions are covered by most news networks and cable programs. This helps the party nominee get positive attention while surrounded by loyal delegates, family members, friends, and colleagues. For presidential candidates, this positivity often leads to a bump in popularity, so the candidate gets a small increase in favorability. If a candidate does not get the bump, however, the campaign manager has to evaluate whether the candidate is connecting well with the voters or is out of step with the party faithful.

GENERAL ELECTIONS AND ELECTION DAY

The general election campaign period occurs between mid-August and early November. These elections are simpler than primaries and conventions, because there are only two major party candidates and a few minor party candidates. About 50 percent of voters will make their decisions based on party membership, so the candidates will focus on winning over independent voters and visiting states where the election is close. In 2016, both candidates sensed shifts in the electorate that led them to visit states that were not traditional ‘battleground states’. Clinton visited Republican stronghold Arizona as Latino voter interest surged. Defying conventional campaign movements, Donald Trump spent many hours over the last days of the campaign in the Democratic Rust Belt states, namely Michigan and Wisconsin. Donald Trump ended up winning both states and industrial Pennsylvania by narrow margins, allowing him to achieve a comfortable majority in the Electoral College and he was elected president.

Debates are an important element of the general election season, allowing voters to see candidates answer questions on policy and prior decisions. While most voters think only of presidential debates, the general election season sees many debates. In a number of states, candidates for governor are expected to participate in televised debates, as are candidates running for the U.S. Senate. Debates not only give voters a chance to hear answers, but also to see how candidates hold up under stress. Because television and the Internet make it possible to stream footage to a wide audience, modern campaign managers understand the importance of a debate.

Unfortunately, in recent decades there has been a trend to keep the political candidates for many offices, from actually debating one another. Instead the so-called debates take on the appearance of a question and answer session with a ‘moderator’ asking the candidates questions and allowing very little in the way of actual productive interaction between the candidates. This leaves room for abuse if candidates are not asked the same exact questions or if they are not allowed to respond or disagree with answers from one another. This practice allows moderators to frame the debate as they wish and, if the moderators wish to, they could subtly give one candidate an advantage over another.

There is also the question of appearances. In 1960, the first televised presidential debate showed that answering questions well is not the only way to impress some voters. Senator John F. Kennedy, the Democratic nominee, and Vice President Richard Nixon, the Republican nominee, prepared in slightly different ways for their first of four debates. Although both studied answers to possible questions, Kennedy also worked on the delivery of his answers, including accent, tone, facial displays, and body movements, as well as overall appearance. Nixon also had been ill in the days before the debate and he appeared sweaty and gaunt. He also chose not to wear makeup, a decision that left his pale, unshaven face vulnerable. Interestingly, as noted above, people who watched the debate on TV thought Kennedy had won while those listening on radio seemed to favor Nixon’s performance.

While debates are not just about a candidate’s looks, most debate rules contain language that prevents candidates from artificially enhancing their physical qualities. For example, prior rules have prohibited shoes that increase a candidate’s height, banned prosthetic devices that change a candidate’s physical appearance, and limited camera angles to prevent unflattering side and back shots. Candidates and their campaign managers are aware that visuals matter.

Debates are generally over by the end of October, just in time for Election Day. Beginning with the election of 1792, presidential elections were to be held in the thirty-four days prior to the “first Wednesday in December.” In 1845, Congress passed legislation that moved the presidential Election Day to the first Tuesday after the first Monday in November, and in 1872, elections for the House of Representatives were also moved to that same Tuesday. The United States was then an agricultural country and farmers made up nearly 74 percent of voters. The tradition of Election Day to fall in November allowed time for the lucrative fall harvest to be brought in and the farming season to end. And, while not all members of government were of the same religion, many wanted to ensure that voters were not kept from the polls by a weekend religious observance. Finally, business and mercantile concerns often closed their books on the first of the month. Rather than let accounting get in the way of voting, the bill’s language forces Election Day to fall between the second and eighth of the month.

THE ELECTORAL COLLEGE

Once the voters have cast ballots in November and all the election season madness comes to a close, races for governors and local representatives may be over, but the constitutional process of electing a president has only begun. The electors of the Electoral College travel to their respective state capitols and cast their votes in mid-December, often by signing a certificate recording their vote.

In most cases, electors cast their ballots for the candidate who won the majority of votes in their state. The states then forward the certificates to the U.S. Senate..

The number of Electoral College votes granted to each state equals the total number of representatives and senators that state has in the U.S. Congress or, in the case of Washington, DC, as many electors as it would have if it were a state. The number of representatives may fluctuate based on state population, which is determined every ten years by the U.S. Census, mandated by Article I, Section 2, of the Constitution. For the 2016 and 2020 presidential elections, there were a total of 538 electors in the Electoral College, and a majority of 270 electoral votes is required to win the presidency.

Once the electoral votes have been read by the president of the Senate (i.e., the vice president of the United States) during a special joint session of Congress in January, the presidential candidate who received the majority of electoral votes is officially named president. Should a tie occur, the sitting House of Representatives elects the president, with each state receiving one vote. While this rarely occurs, both the 1800 and the 1824 tied elections were decided by the House of Representatives. As election night 2016 played out after the polls closed, one such scenario was in play for a tie. However, the states that Hillary Clinton needed to make that tie were lost narrowly to Donald Trump. Had the tie occurred, the Republican House would have likely selected Donald Trump as president anyway.

As political parties became stronger and the Progressive Era’s influence shaped politics from the 1890s to the 1920s, states began to allow state parties rather than legislators to nominate a slate of Electoral College electors. Electoral College electors cannot be elected officials, nor can they work for the federal government. Since the Republican and Democratic parties choose faithful party members who have worked hard for their candidates, the modern system decreases the chance they will vote differently from the state’s voters.

There is no guarantee of this, however. Occasionally there are examples of faithless electors. In 2000, the majority of the District of Columbia’s voters cast ballots for Al Gore, and all three electoral votes should have been cast for him. Yet one of the electors cast a blank ballot, denying Gore a precious electoral vote, reportedly to contest the perception of unequal representation of the District in the Electoral College. In the 2016 election, after a campaign to encourage faithless electors in the wake of what some viewed as controversial results, there were seven faithless electors: four in the state of Washington, two in Texas, and one in Hawaii.

SIDEBAR: The Electoral College provides a critical role in the checks-and-balances system of American government. Electors are expected, but not required, to vote for the candidate the people have chosen in each state. Though they are almost always loyal to the choices made, they can go a different direction in extreme circumstances.

For instance, if a candidate was elected in November by a majority of the voters as president and he was decidedly unfit, it is theoretically possible that electors, voting on their conscience, could refuse to cast their votes for such a person. Similarly, if an extreme revelation came out about the candidate that was offensive to a great majority of the people – say hypothetically, news broke that the president-elect had somehow secretly sold a nuclear weapon to terrorists while he was in the service, Electoral College members could, and hopefully would, refuse to place him into the nation’s highest office.

More mundane, but just as important, the electoral college, because of how electors are apportioned to the states (again similar to the house and senate differences), provides a fair representation to every state including the very small states while still allowing for democracy to flourish. Having an electoral college means that ALL of the country’s voters still have some say in who becomes president of the country rather than just those voters living in highly populated states alone.

The Electoral College is a critical part of the American Republic for this reason – just as two houses of Congress provide for fair representation though many representatives and only two senators, the electoral college provides representation based on those numbers as well.

The electors’ names and votes are publicly available on the electoral certificates, which are scanned and documented by the National Archives and easily available for viewing online.

In forty-eight states and the District of Columbia, the candidate who wins the most votes in November receives all the state’s electoral votes, and only the electors from that party will vote. This is often called the winner-take-all system. In two states, Nebraska and Maine, the electoral votes are divided. The candidate who wins the state gets two electoral votes, but the winner of each congressional district also receives an electoral vote. In 2008, for example, Republican John McCain won two congressional districts and the majority of the voters across the state of Nebraska, earning him four electoral votes from Nebraska. Obama won in one congressional district and earned one electoral vote from Nebraska. In 2016, Republican Donald Trump won one congressional district in Maine, even though Hillary Clinton won the state overall. This Electoral College voting method is referred to as the district system.

MIDTERM ELECTIONS

Presidential elections garner the most attention from the media and political elites. Yet they are not the only important elections. The even-numbered years between presidential years, like 2018 and 2022, are reserved for congressional elections—sometimes referred to as midterm elections because they are in the middle of the president’s term of office. Midterm elections are held because all members of the House of Representatives and one-third of the senators come up for reelection every two years.

During a presidential election year, members of Congress often experience the coattail effect, which gives members of a popular presidential candidate’s party an increase in popularity and raises their odds of retaining office. During a midterm election year, however, the president’s party often is blamed for the president’s actions or inaction. Representatives and senators from the sitting president’s party are more likely to lose their seats during a midterm election year. Many recent congressional realignments, in which the House or Senate control changed from one party to another, occurred because of this reverse-coattail effect during midterm elections.

7.3 Direct Democracy

LEARNING OBJECTIVES

By the end of this section, you will be able to:

• Identify the different forms of and reasons for direct democracy
• Summarize the steps needed to place initiatives on a ballot
• Explain why some policies are made by elected representatives and others by voters

The majority of elections in the United States are held to facilitate indirect democracy. The United States is, afterall a ‘Democratic Republic‘. Elections allow the people to pick representatives to serve in government and make decisions on the citizens’ behalf. Representatives pass laws, implement taxes, and carry out decisions. Although direct democracy had been used in some of the colonies, the framers of the Constitution granted voters no direct legislative or executive powers, because they knew the masses would make poor decisions and be susceptible to mob-like whims. During the Progressive Era, however, governments began granting citizens more direct political power. States that formed and joined the United States after the Civil War often assigned their citizens some methods of directly implementing laws or removing corrupt politicians. Citizens now use these powers at the ballot to implement or change laws and to direct public policy in their states. It is important to note, that any such action is subject to the absolute authority of the US Constitution.

DIRECT DEMOCRACY DEFINED

Direct democracy occurs when policy questions go directly to the voters for a decision. These decisions include funding, budgets, candidate removal, candidate approval, policy changes, and constitutional amendments. Not all states allow direct democracy, nor does the United States government.

Direct democracy takes many forms. It may occur locally or statewide. Local direct democracy allows citizens to propose and pass laws that affect local towns, counties, or even entire states. Towns in Massachusetts, for example, may choose to use town meetings, which is a meeting comprised of the town’s eligible voters, to make decisions on budgets, salaries, and local laws.

LINK TO LEARNING

To learn more about what type of direct democracy is practiced in your state, visit the University of Southern California’s Initiative & Referendum Institute. This site also allows you to look up initiatives and measures that have appeared on state ballots.

Statewide direct democracy allows citizens to propose and pass laws that affect state constitutions, state budgets, and more. Most states in the western half of the country allow citizens all forms of direct democracy, while most states on the eastern and southern regions allow few or none of these forms. States that joined the United States after the Civil War are more likely to have direct democracy, possibly due to the influence of Progressives during the late 1800s and early 1900s. Progressives believed citizens should be more active in government and democracy, a hallmark of direct democracy.

There are three forms of direct democracy used in the United States. A referendum asks citizens to confirm or repeal a decision made by the government. A legislative referendum occurs when a legislature passes a law or a series of constitutional amendments and presents them to the voters to ratify with a yes or no vote. A judicial appointment to a state supreme court may require voters to confirm whether the judge should remain on the bench. Popular referendums occur when citizens petition to place a referendum on a ballot to repeal legislation enacted by their state government. This form of direct democracy gives citizens a limited amount of power, but it does not allow them to overhaul policy or circumvent the government.

The most common form of direct democracy is the initiative, or proposition. An initiative is normally a law or constitutional amendment proposed and passed by the citizens of a state. Initiatives completely bypass the legislatures and governor, but, like any law, they are subject to review by the state courts to determine if they are consistent with the state and national constitutions. The process to pass an initiative is not easy and varies from state to state. Most states require that a petitioner or the organizers supporting an initiative file paperwork with the state and include the proposed text of the initiative. This allows the state or local office to determine whether the measure is legal, as well as estimate the cost of implementing it. This approval may come at the beginning of the process or after organizers have collected signatures. The initiative may be reviewed by the state attorney general, as in Oregon’s procedures, or by another state official or office. In Utah, the lieutenant governor reviews measures to ensure they are constitutional.

Next, organizers gather registered voters’ signatures on a petition. The number of signatures required is often a percentage of the number of votes from a past election. In California, for example, the required numbers are 5 percent (law) and 8 percent (amendment) of the votes in the last gubernatorial (governor) election. This means in 2018, it took 365,880 signatures to place a law on the ballot and 585,407 to place a constitutional amendment on the ballot.

Once the petition has enough signatures from registered voters, it is approved by a state agency or the secretary of state for placement on the ballot. Signatures are verified by the state or a county elections office to ensure the signatures are valid. If the petition is approved, the initiative is then placed on the next ballot, and the organization campaigns to voters.

While the process is relatively clear, each step can take a lot of time and effort. First, most states place a time limit on the signature collection period. Organizations may have only 160 days to collect signatures, as in California, or as long as two years, as in Arizona. For larger states, the time limit may pose a dilemma if the organization is trying to collect more than 500,000 signatures from registered voters. Second, the state may limit who may circulate the petition and collect signatures. Some states, like Colorado, restrict what a signature collector may earn, while Oregon bans payments to signature-collecting groups. And the minimum number of signatures required affects the number of ballot measures. Arizona had more than sixty ballot measures on the 2000 general election ballot, because the state requires so few signatures to get an initiative on the ballot. Oklahomans see far fewer ballot measures because the number of required signatures is higher.

Another consideration is that, as we’ve seen, voters in primaries are more ideological and more likely to research the issues. Measures that are complex or require a lot of research, such as a lend-lease bond or changes in the state’s eminent-domain language, may do better on a primary ballot. Measures that deal with social policy, such as laws preventing animal cruelty, may do better on a general election ballot, when more of the general population comes out to vote. Proponents for the amendments or laws will take this into consideration as they plan.

Finally, the recall is one of the more unusual forms of direct democracy; it allows voters to decide whether to remove a government official from office. All states have ways to remove officials, but removal by voters is less common. The recall of California Governor Gray Davis in 2003 is perhaps one of the more famous such recalls. The removal of Davis from power opened up the field to a whopping 135 candidates who qualified to be on the ballot. When it was all said and done actor Arnold Schwarzenegger (from the movie Terminator) found himself in the governor’s chair.

The attempt by voters in Wisconsin to recall Governor Scott Walker shows how contentious and expensive a recall can be. Walker spent over $60 million in the election to retain his seat.

POLICYMAKING THROUGH DIRECT DEMOCRACY

Politicians are often unwilling to wade into highly politicized waters if they fear it will harm their chances for reelection. When a legislature refuses to act or change current policy, initiatives allow citizens to take part in the policy process and end the impasse. In Colorado, Amendment 64 allowed the recreational use of marijuana by adults, despite concerns that state law would then conflict with national law. Colorado and Washington’s legalization of recreational marijuana use started a trend, leading to more states adopting similar laws. (NOTE: Despite state laws that ‘legalized’ it, marijuana is still considered a federal schedule one drug and possession or selling any amount of this still-illegal substance can still be charged as a crime under federal law.)

Too Much Democracy?

How much direct democracy is too much? When citizens want one policy direction and government prefers another, who should prevail?

So where is the problem? First, while citizens of these states believe smoking or consuming marijuana should be legal, the U.S. government does not. The Controlled Substances Act (CSA), passed by Congress in 1970, declares marijuana a dangerous drug and makes its sale a prosecutable act. And despite Holder’s statement, a 2013 memo by James Cole, the deputy attorney general, reminded states that marijuana use is still illegal.  And while Congress has decided not to prosecute patients using marijuana for medical reasons, it has not waived the Justice Department’s right to prosecute recreational use.

Direct democracy has placed the states and its citizens in an interesting position. States have a legal obligation to enforce state laws and the state constitution, yet they also must follow the laws of the United States. Citizens who use marijuana legally in their state are not using it legally in their country.

Direct democracy has drawbacks. One is that it requires more of voters. Instead of voting based on party, the voter is expected to read and become well-informed to make wise decisions. Initiatives can fundamentally change a constitution or raise taxes. Recalls remove politicians from office. These are not small decisions. Most citizens, however, do not have the time to perform a lot of research before voting. Given the high number of measures on some ballots, this may explain why many citizens simply skip ballot measures they do not understand. Direct democracy ballot items regularly earn fewer votes than the choice of a governor or president.

When citizens rely on television ads, initiative titles, or advice from others in determining how to vote, they can become confused or be misled and make the wrong decisions. In 2008, Californians voted on Proposition 8, titled “Eliminates Rights of Same-Sex Couples to Marry.” A yes vote meant a voter wanted to define marriage as only between a woman and man. Even though the information was clear and the law was one of the shortest in memory, many voters were confused. Some thought of the amendment as the same-sex marriage amendment. In short, some people voted for the initiative because they thought they were voting for same-sex marriage. Others voted against it because they were against same-sex marriage.

Direct democracy also opens the door to special interests funding personal projects. Any group can create an organization to spearhead an initiative or referendum. And because the cost of collecting signatures can be high in many states, signature collection may be backed by interest groups or wealthy individuals wishing to use the initiative to pass pet projects. The 2003 recall of California governor Gray Davis faced difficulties during the signature collection phase, but $2 million in donations by Representative Darrell Issa (R-CA) helped the organization attain nearly one million signatures. Many commentators argued that this example showed direct democracy is not always a process by the people, but rather a process used by the wealthy and business.

Finally, it is critical to make note of the fact that any referendum, initiative or other exercise of direct democracy may NOT go against the provisions of the United States Constitution. For instance, though an initiative might theoretically get placed on the ballot in one of the states to remove resident’s right to freedom of speech, practice a chosen religion, the right to bear arms, or to be free of warrantless searches, such an initiative, even if passed by 100 percent of the voters would be a completely unconstitutional law and therefore would not be able to be enforced. The U.S. Constitution again provides absolute protection to individual rights regardless of who tries to pass the law whether it is a body of elected officials or a group of citizens.

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