An electoral road paved with quirks


  • Reflecting On The Law
  • Thursday, 10 Nov 2016

Despite a nationwide poll, the popular vote does not determine the winner of the presidency. That power belongs to the Electoral College.

WHETHER Americans rejoice or bemoan the results of the acrimonious 58th presidential contest, the impact on the globe of Donald Trump’s victory will take time to manifest.

One must remember that no matter how powerful the President may be, his programme is moderated by the checks and balances that the presidency is subject to from the Congress, congressional committees and the judiciary.

Additionally there are extra-constitutional centres of power like the military-industrial complex, the arms merchants, the media, banks, bureaus and lobbies whose entrenched agendas compete with the President’s.

Contrast with Malaysia: the American presidential election contrasts significantly with our system of choosing the prime minister. The United States president is elected by the entire nation.

Our prime minister is a Member of Parliament from one constituency who is appointed by the Yang di-Pertuan Agong because he (the prime minister) commands the confidence of the majority in the lower House.

The date of the presidential election is fixed by law. The president has no power to hold an early poll or to postpone it. In Malaysia, the prime minister can advise the King to call an early election.

Unlike our parliamentary system, no president can seek more than two terms in office of four years each.

The US system permits one party to control the legislature and the other to capture the presidency. This often results in executive-legislature gridlocks. In Malaysia, legislative-executive cooperation is assured because the prime minister controls the elected House.

In Malaysia, the maximum period from dissolution to election is 60 days. In the US a presidential election takes about one-and-a-half years to grind to completion.

Primaries and caucuses: In the Spring of the year before the election, candidates announce their intention to run. They then take part in debates at state and community level with rivals in their own party.

Between January and June of election year, states and political parties hold “primaries” and “caucuses”. Primaries are elections run by state and local governments in which party members pick a candidate for the election. Currently 39 out of 50 states hold primaries.

Caucuses are community meetings run by political parties at which registered party members vote for their nominee.

Primaries and caucuses embody grassroots democracy. The winner of each primary collects delegates who vote at the party Conventions held in July.

Party Conventions: From July to September, political parties hold nominating Conventions to choose their candidates. The nominee announces his running mate.

Debates: During September and October, candidates participate in gruelling, one-on-one debates. These oratorical contests have been an admirable part of the US system since 1858, when Abraham Lincoln battled with Stephen Douglas for a Senate seat. In 1960, John Kennedy crossed swords with Richard Nixon on TV and dazzled the electorate with his personality.

Election: First Tuesday after the First Monday of November is Election Day. However, the irony is that when a voter votes, he casts his vote, not for the President, but for the state’s Electoral College.

Electoral College: The existence of an Electoral College is a compromise between those who wanted a direct, popular vote and those who wished the Congress to elect the Chief Executive.

The College consists of members from each state equal to the number of congressmen the state has in both Houses of the Congress. Political parties within each state choose their potential electors. Members of the Congress are not eligible.

To win the presidency, a candidate must receive at least 270 of the 538 Electoral College votes. Except for the states of Maine and Nebraska with a proportional representation system, voting is on a winner-takes-all basis for whichever presidential candidate wins the state’s poll.

The creation of the College empowers the states to have a say in the President’s election.

At the same time, the Electoral College is condemned as undemocratic and susceptible to the unprincipled machinations of party bosses.

Abolition of the Electoral College is, however, not easy as the College is part of the US Constitution and cannot be dismantled without a constitutional amendment.

Congress: Early in January after the elections, the Congress in a joint session counts the electoral votes. In the event no candidate receives the majority, the House of Representatives chooses the President and the Senate chooses the Vice-President. This is what happened in 1824, when no candidate secured a majority. The House chose John Quincy Adam over Andrew Jackson, even though the latter had more votes.

Inauguration: Jan 20 is Inauguration Day, the President-elect’s tryst with destiny.

A survey of the US electoral scene must also note the peculiarities of the system.

No centralised electoral body: Though there is a Federal Election Commission in the USA, its primary role is to monitor election expenses. Each state handles registration of its own voters, the process of voting, counting and tabulation.

Electoral College: The most unusual feature of the American system is that despite a nationwide poll, the total popular vote does not determine the winner of the presidency. That power belongs to the electors of each state’s Electoral College.

Winner can lose: It is possible that the candidate who wins more popular votes may still lose the Electoral College and therefore the election. This happened four times in American history: in 2000 to Al Gore, who won the popular vote but lost to George Bush in Electoral College votes; in 1888 to Grover Cleveland; in 1876 to Samuel Tilden and in 1824 to Andrew Jackson.

Why Tuesday? Americans always vote on Tuesday and do not get a day off work to vote!

Low turn-out: Turn-out can be as low as 54% to 61%. In this respect, the US ranks 138 out of 172 voting countries.

Surfeit of primaries: There are proposals that instead of staggered primaries over several months there should be a single primary day in all States.

The quirks of US elections are indeed many. But the system has gone on like clockwork for over 200 years and Americans don’t seem to be interested in changing it.

Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed here are entirely the writer’s own.

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Opinion , Shad Faruqi , columnist

   

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