The world is watching the U.S. 2008 general elections. The race between presidential candidates John McCain and Barak Obama has garnered unprecedented interest both inside the U.S. and in the international community. The OSCE has deployed long-term election observers to 40 U.S. States. The candidates and issues at stake in this election have inspired unprecedented participation; indicators including voter registration, campaign spending, and expected voter turnout are breaking previous U.S. records. Despite surging participation, public confidence in the electoral process is alarmingly low.

Observers remember the last two presidential elections were especially close, revealing significant cracks in the way the U.S. actually runs its elections. In 2000, the election outcome came down to several hundred votes, and was eventually decided in court. Four years later, despite national and local efforts at reform, the 2004 presidential contest was characterized by problems with electronic voting equipment and allegations of fraud. In the last eight years, the way citizens register and vote has changed dramatically, largely driven by federal laws and citizen activism.  How will the U.S. electoral management system, already suffering from a dearth of public confidence, hold up to this exceptional pressure?

In the sections below, we outline the key aspects of the U.S. electoral process from a global perspective, giving you, the ACE community, tools to analyze this important race.  

• Electoral Systems
• Legal Framework
• Electoral Management Structure
• Boundary Delimitation
• Voter Registration
• Voting Operations
• Electoral Justice
• Further Reading
  

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National Legislature

The U.S. legislature is bicameral, consisting of a lower house (the House of Representatives) and an upper house (the Senate). Members of both houses are elected using a plurality system with single member districts (First Past the Post or FPTP). 

The House of Representatives (the House, Congress, or HoR) has 435 voting members elected to two-year terms. Following a census every ten years, these seats are apportioned according to population among the 50 states. There are additional delegates with limited rights from the U.S. territories and District of Columbia.

The Senate has two members elected from each U.S. state. Terms are staggered such that one-third of the Senate is elected every two years. No more than one Senator is elected from any state in a given year.

President and Vice President

To understand the system used for U.S. Presidential Elections, it is best to consider elections for President and Vice President as an amalgamation of 51 separate yet simultaneous elections. The president is not directly elected by popular vote, being instead indirectly elected by a special body called the Electoral College. This system is truly unique; indeed the U.S. is the only presidential democracy in the world that uses an electoral college to elect an executive head of state.

Voters in each state as well as the District of Columbia (Washington, DC) elect electors to the college. Ballot design varies, some votes select presidential candidates, in others, they select parties. In 48 of 50 states, electors are sent as a block: the winning candidate’s party chooses all of the electors. In two other states, Maine and Nebraska, the electors are partially chosen on a district basis and partially on a state-wide basis. A state’s number of electors (relative voting power) is equal to its number of federal legislators (House members plus Senators).  Washington DC, which is not a state, has representation in the Electoral College as if it were a state. 

[+] Click here for further details on U.S. state and local election systems

Electors subsequently elect the president by absolute majority; that election will occur on December 15th.In the unlikely event of a tie, the legislature decides the winner.

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The federal constitution mandates much of the key aspects including direct elections for legislature, the Electoral College, and the voting age (18 years.) Likewise, courts have interpreted a constitutional “equal protection” clause as affecting some aspects of electoral management.

Federal laws mandate the number of members in the U.S. House and the formula by which they are apportioned to each state. They also mandate single-member districts, compel jurisdictions to protect the voting strength of racial and ethnic minorities, and to print ballots in multiple languages where necessary. Finally, since 2002, federal law provides states with financial incentives to meet certain equipment and administration standards.

Other provisions flow from federal court decisions. These include equal apportionment, matters related to voter registration and ID, whether state legislatures must respect decisions by voters about Electoral College members, and specific ways in which boundary delimitation must affect the voting strength of racial and ethnic minorities.

There is a great deal of further variation at the state and local levels. Usually this affects registration, early and absentee voting, and ballot access provisions. Some municipalities, however, allow non-citizen residents to vote in local elections. Finally some states forbid convicted felons from voting.

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Primary authority is with local governments, but the legal framework imposes some obligations on these officials. While state governments are a common focal point for electoral management, their effective control is often weak. American University’s Robert Pastor called the system “decentralized to the point of being dysfunctional.”

Responsibility for electoral management and core funding, from registration to results, is shared between 50 state and 13,000 local governments. The EMB model is governmental or mixed, meaning either appointed or elected officials or multi-partisan commissions manage the process. 

At the state level, responsibility for oversight and confirmation of results is with an elected or appointed, partisan Secretary of State, who is a member of the state executive. Less frequently these duties are with boards of elections. Because most states’ chief electoral officers are often elected officials, it is not uncommon for him or her to publically campaign while overseeing an election.

Nationally, the Federal Electoral Commission regulates political finance disclosure and, when candidates accept it, public funding. Following controversies over voting equipment in the 2000 federal election, an Electoral Assistance Commission now establishes equipment standards and best management practices, but it cannot formally enforce them.

While EMBs are not structurally independent, they generally work impartially with relatively infrequent exceptions in the modern era. Nonetheless, mistakes and malfeasance, whether actual or perceived, have called elections’ legitimacy into question. Indeed, 27 percent of Americans polled in the 2004 post-election period believed the presidential voting process was unfair.

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State legislatures are responsible for delimitation, though some legislatures delegate the authority to a multi-party or judicial commission. In all cases, new boundaries take the form of a bill, which governors must sign into law. Federal boundary delimitation conventionally follows the census every 10 years, but some states in recent years have redrawn boundaries at other times, for partisan advantage, known as gerrymandering, or to correct for changes in population.

Federal law dictates some of the criteria authorities use when delimiting legislative boundaries. These include population equity, boundary contiguousness, and racial and ethnic minority representation. The latter is the most controversial, requiring that districts be drawn specifically to ensure descriptive minority representation.  

Jurisdictions may apply other criteria. Usually they specify a hierarchy of criteria since some may be in conflict. These criteria include compactness (minimizing the distance between the farthest apart points in a district), respect for political subdivisions like municipalities and counties, and respect for communities of interest.

States using independent, multi-party or judicial commissions have had mixed results. On one hand, “independent redistricting” has enhanced public confidence. On the other, it has not relieved tensions among conflicting boundary delimitation criteria, and has not made elections more competitive overall.

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The federal constitution forbids age or gender restrictions on voting rights for any citizen of at least 18 years, though some states restrict specific groups including those convicted of serious crimes. Registration is self-initiated and not compulsory. Most states require citizens to register by some deadline well in advance of an election, though a few permit same-day or Election Day registration, and one does not conduct registration at all

There are various governmental efforts to encourage registration. The federal National Voter Registration Act offers citizens opportunities to register at public service centres, like driver’s license centres.

Recent controversies have concerned the fairness and partisan effects of registration regulations. For example, states require different forms of identification. Proponents argue this controls fraud, and detractors argue it depresses turnout among poor and elderly voters who are less likely to obtain these forms. Another recent controversy stems from the requirement in some states that a voter’s name on his or her identification match, character for character, his or her name in the voter file. Partisan differences have cropped up as well; Democrats generally promote increased access to the polls (believed to favour Democratic candidates) while Republicans are generally concerned about potential for fraud (stricter standards are believed to favour Republican candidates).

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The greatest controversies surround the rise and fall of electronic touch-screen voting machines. Following mechanical failures in punch-card machines during the 2000 election, many EMBs used federal support to purchase “direct recording equipment,” or touch-screen computer systems. When concerns surrounding the use of these machines arose in 2004, some counties transitioned again, this time to optically scanned paper ballots. As a result of this expensive process, many poll workers in 2008 will be managing new and potentially unfamiliar equipment.

In addition, the expected high turnout will tax the capacities of polling centres and poll workers. In the run-up to the 2008 polls, many EMBs are experiencing difficulty recruiting enough staff to manage projected turnout. 

Some experts say we should see November 4^th not as the days the polls open, but the days that the polls close, because nearly 1 out of 3 voters are expected to vote early through early walk-in, mail voting, or absentee voting. Indeed two states (Oregon and Washington) will vote almost entirely by mail. 

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The Electoral College impacts the resolution of disputes on the presidential level. By dividing a national election into 51 localized contests, the national outcome can hinge on the result in a few small places. The 2000 presidential election is a good example where the national election depended on the outcome in the state of Florida; likewise the 2004 race depended on the winner in the state of Ohio. In close races, the margin of victory may approach or exceed the margin of administrative error. These conditions contribute to an environment ripe for litigation.

Since 2000, electoral dispute resolution has taken on a high public profile. Legal challenges to registration drives, ballot access and polling practices have become accepted campaign strategies. In fact, the number of court cases regarding elections nearly tripled from 1996 to 2004. In the run-up to November 2008, both major parties have nationally deployed robust legal teams ready to dispute processes, especially in contested “swing states.”

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• Election Preview 2008.  This preview of the 2008 election provides a comprehensive look at the rules, technology, registration figures and issues to watch in all 50 states and the District of Columbia. Pew / Electionline.org
  
• The US Administration of Elections: Decentralized to the Point of Being Dysfunctional.  Robert A. Pastor / International IDEA.
• Focus on US Elections.  ElectionGuide.org
• OSCE/ODIHR: Limited observation of general elections in the United States of America

On the lighter side:

• RECOUNT: The Story of the 2000 Presidential Election.  Two-time Oscar®-winner Kevin Spacey leads an outstanding cast in this illuminating, highly entertaining film that pulls back the veil on the headlines to explore the human drama surrounding the most controversial presidential election in U.S. history.

US 2008 ELECTIONS: a Pre-Election Briefing for the Global Observer

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US 2008 ELECTIONS: a Pre-Election Briefing for the Global Observer

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