Part 7.1 : The United States - Constitutional Structure of Government and the Electoral System

Dates of the American constitution

-Drafted in 1787
-Ratified in 1788
-Came into force in 1789

Article of the constitution regarding the legislature + general details

Article 1 :
-Congress = bi-cameral
-Upper house : Senate
-Lower house : HOR

Requirements for the House

-25 years old; citizen for 7 years
-Term is two years
-Representation is proportional to population

Requirements Senate

30 years old; citizen for 9 years
-Term is six years
-Two per state, flat. No proportionality.

Article of the constitution regarding the executive + details and requirements

Article 2 :
-Four-year term
-One renewal possible (total of 8 years) thanks to a constitutional amendment
-Must be 35 years old
-Must be a natural born citizen

Article of the constitution regarding the judiciary

Article 3 :
-Specifically creates the SCOTUS
-9 judges who serve for life (9 isn’t in the constitution)
-Named by the PR with the “advice and consent” of the Senate
-Same goes for all federal judges

What about the creation of lower courts ?

Constitution allows but does not requre Congress to create them, which it did :
-Federal trial courts (district courts)
-Federal appellate courts (circuit courts of appeal)

What does the “advice and consent” of the Senate mean ?

Not a clear meaning, but general agreement of a simple majority vote in the Senate (51 of 100)

What about the presence of a constitutional court ?

-There exists no such thing
-Those questions go through the normal process of trial in a regular court
-No equivalent of the CE or the CC

Date of the elections in the US + fixed by what

-Every year for the first Tuesday after the first Monday in November
-Fixed by a federal statute, so could be changed without amending the constitution

When does the PR take office in the US ?

On January 20th of the year after the elections

What is a “lame duck” session ?

-Designates the period after the election for the outgoing legislature and president (if s/he loses)
-”a lame duck President”, “a lame duck Congress”

Characteristics of the election

Always a general election (whatever offices are open)
-Therefore every two years : 100% of the HOR, 1/3 the Senate
-Any other Federal, State or local elections
-Each county’s ballot will be different

Number of seats in Congress + detailed composition

Congress : 538 seats
-HOR : 435 seats
-Senate : 2 × 50 seats
-Washington, DC, District of Columbia : 3 seats

Number of electoral votes per state + minimum/maximum of seats + examples of States

-Number of representatives + 2 senators
-Minimum of 3 electoral votes per state (VT, WY, MT)
-Maximum of 55 votes (CA), 2nd max 38 (TX)

Consequence of the number of electoral seats

-Distortion in favor rural/conservative areas
-Because 2 points by default with the senators, which favors low-population states, which are often rural, agricultural states (which was used originally to give them enough power to retain slavery against the wishes of the north)

→ Fully 100 of the 538 electoral college are attributed without regard to population

What about the Puerto Ricans

2,8 million Puerto Ricans are disenfranchised

How much electoral votes do you need to win an election

270

What happens if there’s a tie in the elections’ results?

That means that there is 269-269 votes
-Called a contigent election
-The House elects the president (26 votes to win because each state’s delegation gets one vote)
-The Senate the vice-president (51 votes to win)

System of attribution of points

-Winner-takes-all
-Except for Maine and Nebraska which do it proportionately

Consequence of the winner-takes-all attribution system

Distortion : losing votes simply disappear

Who determines the voting mechanisms and rules + example of them

-Each state determines it
-Such as : early voting, voting by mail, hours for voting, where to vote

Concept of swing states

-Those that, by demographics, can change from year to year
-Such as : Florida, PA, WI, MI, OH

→ most campaigning happens in them

What about the counting of votes + announcement of the winner ?

-No official announcement
-TV networks call each other when they feel they are able to
-Count changes until a network “calls” the election for one or the otheer

-The loser then concedes, nothing obligates him to

Election process in a normal year

-Each state would certify its results according to state law

-December 14:  the electors in each state meet and vote

-January 3:  new House and Senate sworn in

-January 6:  H and S meet to certify vote of the electoral college

-January 20:  new President is sworn in

What happens if there’s no clear president-elect on January 20th?

Speaker of the House becomes PR

Phenomenons that aren’t taken into account when counting votes

-Faithless electors
-Red mirage and the blue wave

What are faithless electors?

-The electors that change their vote non-accordingly to why they were designated in the first place
-Can be punished by SCOTUS
-Question of the leeway/margin/discretion the electors have or not : are simply points ?

What are the red mirage and the blue wave ?

A minor distortion :
-Republicans tend to vote on election day in person (first votes to be counted)
-Democrats tend to vote by mail, or via early voting (last votes to be counted)

→ allow a moment for a claim of victory for the GOP before the final count, which leads to confusion and dispute in court

Major distortion in the electoral system of the US

-Gerrymandering
-Disenfranchisement

What did Trump’s Secretary of Commerce try to do ?

-He tried to add a question about the presence of illegal aliens
-Attempt to intimidate Hispanics and other immigrants

→ attempt to purposely undercount these groups

What happens every 10 years and why ?

-A census
-To adjust proportional representation
-In the light of the census, the 435 seats of HOR are reallocated, and voting districts have to be redrawn

What is gerrymandering ?

To draw the districts to favor a particular outcome

Types of gerrymandering

• Concentrate a minority vote into one district

• Or to dilute it over several :
  -Called “packing” and “cracking
  -Creates completely tortured, even absurd results

SCOTUS says it lacks jurisdiction to control this

What about gerrymandering for the Senate seats ?

-Not possible
-Equal number of seats in each state : 2

Unexpected consequence of gerrymandering

Further polarization of politics :
-Elimination of the natural enemy
-Challenge within a party in a safe district, during the primary season
-Ex : between a Republican and another one running further to the right

What does disenfranchisement mean ?

To purposefully remove people from the voting rolls

How are the inscription on voting rolls controlled ?

Locally

Examples of disenfranchisement

• Felons :
  -Cannot vote
  -FL referendum to restore their voting rights
  -State legislature requires that any fines, fees or financial costs resulting from a criminal conviction must be paid first

• Voter ID :
  -No national ID in the US (nor in the UK)
  -WI : student ID (issued by the government with a photo) not ok, but NRA card is (issued by a private group)
  → disenfranchisement of the 45 000 student of University of WI

  • Ex of North Dakota :
    -Requiremetn to have a street number and a street address
    → disenfranchisement of the indigenous Americans

How to fix the major distortions of the american electoral system

-Abolish the electoral college (=amending the constitution, so hard)
-Allocate electoral votes proportionately as per the popular vote of each state (no need to amend, but requires that each state did so at the same time)

Requirements to amend the constitution

-2/3 of the HOR
-2/3 of the Senate
-3/4 of the States (38/50)

Presidential immunity + source

-While sitting : still civilly liable, but immunity from criminal prosecutions
-When leaving office : loses presidential immunity

-Only a consensus amongst the various stakeholders (no law)

Question of pardon

Def : to reduce the severity of a sentence

• American PR has the power to grant pardon/clemency
  -Only for federal crimes
  -Pardon himself ? never been answered
  -Resign and hope the VP pardons him ? Only political/logistical barriers, but no constitutional/legal barriers to doing this

• State governors have it also
  -Only for state crimes