Our Electoral Democracy > US’, for sure
By Narasimhan Vijayaraghavan
The incumbent President Joseph R Biden, all of eighty years, has sounded the bugle for a re-run in 2024. Donald Trump, warts and all (only warts, some would suggest) is already in the ring. American democracy is throbbing not thriving. It is old. Freedom and independence in 1776. A republic in 1789. Thirteen ‘nations’ came together to seek and achieve a ‘more perfect Union’. And now thanks to June,2015 entry of Donald J Trump who ‘came down the escalator of Trump Tower’ to contest Presidential elections in 2016, the crevices in the democratic polity have been exacerbated and now reveal gaping holes, after Jan 6,2021 ‘insurrection’.
Let us feel proud of our democracy which is just 76 years old. And republic, just 73 years old. We are thriving as a robust one. Just take a look at the dance and festival of Karnataka elections. Political exchanges are sharp and of the below the belt genre. Yet, the voter gets his say. No sidelining of them. Voting rights are real unlike in the land of the free, where at least in 31 out of 50 states, legislations have been introduced ( yes, legislations) to suppress them. And 2024 US Presidential elections would be held in its shadow.
Our 506 plus princely states got together to form a federation of Bharat. It may not be a true or classic federation. It is quasi federal with a tilt towards central imprimatur. Yet, it is not a tarred or tainted one like the supremacy of thirteen states literally rupturing Washington’s role. It is a continued battle and the states’ are always winning. Take the Dobbs’ decision overruling Roe v. Wade of 1973 on abortion rights of women. Each of the 50 States are on to different and distinct legislations and the US citizen knows not where she gets her freedom of choice, and where she is denied it. Shame.
Coming home, The Election Commission of India (ECI) is an autonomous body that is responsible for conducting free and fair elections in India. The ECI is established under Article 324 of the Constitution of India, which vests it with the power to supervise, direct and control all elections to the offices of the President and Vice-President of India, and to the Parliament and State Legislatures.
Over the years, the Supreme Court of India has interpreted the powers and functions of the Election Commission of India under the Constitution in various landmark cases.
In the case of Mohinder Singh Gill v. Chief Election Commissioner (1978), the Supreme Court held that the Election Commission of India is a constitutional authority with vast powers and duties to conduct free and fair elections. The Court observed that the ECI is vested with the plenary power to determine all questions that may arise during the conduct of elections, and that its decisions are final and cannot be questioned in any court of law.
In another case, T.N. Seshan v. Union of India (1995), the Supreme Court held that the powers of the Election Commission of India are not limited to the mere conduct of elections but also extend to the enforcement of the Model Code of Conduct and other election-related laws. The Court observed that the ECI has the power to take necessary measures to ensure that the elections are free, fair and impartial, and that any violation of the Model Code of Conduct or other election laws is dealt with swiftly and effectively.
Furthermore, in the case of Association for Democratic Reforms v. Union of India (2002), the Supreme Court held that the Election Commission of India has a constitutional obligation to ensure that the voters are fully informed about the candidates contesting the elections. The Court observed that the ECI has the power to require candidates to disclose information about their criminal records, assets, liabilities and educational qualifications, and that such information must be made available to the public.
The Supreme Court of India has recognized the crucial role played by the Election Commission of India in conducting free and fair elections in India. The ECI’s powers and functions under the Constitution have been interpreted to include the power to supervise, direct and control all aspects of the electoral process, to enforce the Model Code of Conduct and other election laws, and to ensure that voters are fully informed about the candidates contesting the elections.
Per contra, The Federal Election Commission (FEC) is an independent regulatory agency of the United States government that is responsible for enforcing federal campaign finance laws. The FEC was created in 1975 by an amendment to the Federal Election Campaign Act of 1971, which was enacted in the wake of the Watergate scandal to regulate campaign finance and prevent corruption in federal elections.However, the role of the FEC is limited by several factors, including its composition, its authority, and its enforcement mechanisms.
Firstly, the composition of the FEC is divided equally between Republicans and Democrats, with no more than three members from each party. This structure was designed to prevent any one political party from dominating the commission and to ensure bipartisan decision-making. However, it also means that the commission often deadlocks on important issues, preventing it from taking decisive action.
Secondly, the authority of the FEC is limited by the Supreme Court’s decisions on campaign finance. In particular, the Court’s ruling in Citizens United v. FEC (2010) allowed corporations and unions to spend unlimited amounts of money on independent expenditures, such as advertisements, to influence federal elections. This decision severely weakened the ability of the FEC to regulate campaign finance, as it effectively created a loophole for unlimited spending by outside groups that cannot be directly coordinated with candidates or political parties.
Finally, the enforcement mechanisms of the FEC are weak. The commission has limited powers to investigate and prosecute violations of campaign finance laws, and its enforcement actions are often delayed or ineffective. Moreover, the penalties for violating campaign finance laws are relatively low and do not act as a strong deterrent.
In recent years, the limitations of the FEC’s role have become increasingly apparent. In the 2016 and 2020 presidential elections, foreign interference and the use of social media to spread disinformation and influence voters highlighted the need for stronger enforcement of campaign finance laws. However, the FEC has been unable to keep up with the rapidly evolving landscape of campaign finance and election interference.
The FEC plays a role only in regulating campaign finance in federal elections, its limited authority, weak enforcement mechanisms, and partisan composition have severely hampered its effectiveness. The commission is in need of significant reform to ensure that it can adequately protect the integrity of the electoral process in the face of new challenges.
Go to the skew provided by role of electoral college in US Presidential elections. The Electoral College is a complex and often controversial system used to elect the President and Vice President of the United States. Established by the Founding Fathers in the US Constitution, the Electoral College was designed as a compromise between those who wanted the President to be elected directly by the people and those who believed that the selection of the President should be left to the representatives of each state.
Under the Electoral College system, each state is allocated a certain number of electors based on the number of representatives it has in Congress (which is based on its population size) and its two senators. The total number of electors is 538, with a candidate needing 270 electoral votes to win the presidency. The candidate who wins the majority of electoral votes in a state is awarded all of that state’s electoral votes, with the exception of Maine and Nebraska, which allocate their electoral votes proportionally.
One of the most significant criticisms of the Electoral College is that it allows for a candidate to win the presidency without winning the popular vote. This has happened five times in US history, with the most recent example being the 2016 election in which Republican candidate Donald Trump won the presidency despite receiving nearly three million fewer votes than his opponent, Democrat Hillary Clinton.
There are a few reasons why Republican Presidents have been able to win the Electoral College without winning the popular vote. One reason is the way that electoral votes are allocated. Because each state is awarded a set number of electors, regardless of its population size, a candidate can win states with smaller populations but more electoral votes and still win the presidency. This is particularly advantageous for Republican candidates, as their base of support tends to be spread out across more rural, less populous states.
Another reason why Republican Presidents have been able to win the Electoral College without winning the popular vote is that the system tends to favor candidates who can win a few key swing states. These swing states are typically states with relatively large populations and a diverse mix of voters, making them critical to winning the Electoral College. In recent elections, Republicans have been able to win these swing states by appealing to certain demographics, such as white working-class voters, who tend to be more conservative.
Despite these advantages, the Electoral College system remains controversial, with many arguing that it is undemocratic and should be replaced by a system that would allow for the direct election of the President by the people. Others argue that the Electoral College is an essential part of the US political system and that it ensures that the President represents the interests of all Americans, not just those in heavily populated urban areas.
Yes, our Supreme Court has promised to look into the ‘Electoral Bonds’ issue. It is a skew and a strain on our democracy, with election finds already a huge trigger for corruption in the polity. But read this, you may feel better even without feeling good. The issue of campaign finance has been a contentious topic in American politics for many years, with many arguing that the current system allows for an unfair amount of influence from wealthy donors and corporations. In recent years, the Supreme Court of the United States (SCOTUS) has weighed in on this issue with several significant judgments that have shaped the way campaigns are financed in the US.
One of the most notable SCOTUS judgments on campaign finance was Citizens United v. Federal Election Commission, which was decided in 2010. In this case, the Court ruled that corporations and unions have the same right to free speech as individuals and that limiting their ability to spend money on political campaigns was a violation of their First Amendment rights. This decision paved the way for the creation of super PACs, which can raise and spend unlimited amounts of money on political campaigns as long as they do not coordinate with the candidate’s campaign.
Critics of the Citizens United decision argue that it has led to a flood of money in politics, with wealthy donors and corporations now able to spend millions of dollars to influence elections. They argue that this has resulted in a system that is skewed in favor of the wealthy and powerful, with ordinary citizens unable to compete.
Another significant SCOTUS decision on campaign finance was McCutcheon v. Federal Election Commission, which was decided in 2014. In this case, the Court struck down limits on how much an individual could donate to political campaigns, ruling that these limits violated the First Amendment’s protection of free speech. This decision allowed wealthy donors to give even more money to political campaigns, further increasing their influence.
While supporters of these decisions argue that they protect the First Amendment rights of individuals and corporations to spend money on political speech, critics argue that they have created a system that is tilted in favor of the wealthy and powerful. They argue that the ability of wealthy donors and corporations to spend unlimited amounts of money on political campaigns creates an unequal playing field, where the voices of ordinary citizens are drowned out by the influence of the wealthy.
The SCOTUS judgments on campaign finance have had a significant impact on the way campaigns are financed in the US. While supporters argue that these decisions protect free speech, critics argue that they have created a system that is unfair and undemocratic. The issue of campaign finance is likely to remain a contentious one in American politics, with ongoing debate over the role of money in politics and the best way to ensure that all voices are heard.
But the most distinctive feature of our elections is the proactive role of our ECI to encourage voting.It goes out of the way to a man, to enable exercise of franchise by voters in nooks and corners. Voting Rights in India are real. And our Supreme Court would never tolerate any impediment or hurdle over it. While so, the blatant political institution US Supreme Court is, they have proactively eaten into Voting Rights. It is fair game, as you see.
The Voting Rights Act of 1965 was one of the most important pieces of civil rights legislation in American history, aimed at ensuring that every American citizen has the right to vote without discrimination. However, in recent years, the Supreme Court of the United States (SCOTUS) has taken a series of decisions that have weakened some of the key provisions of this landmark legislation.
One of the most significant SCOTUS decisions that have affected the Voting Rights Act was Shelby County v. Holder, which was decided in 2013. In this case, the Court struck down the formula used to determine which states and jurisdictions were required to get approval from the federal government before changing their voting laws. The Court argued that the formula was outdated and that it unfairly singled out certain states for scrutiny, violating the principle of equal sovereignty among the states.
Critics of the decision argue that it has had a devastating impact on voting rights, particularly for communities of color. They argue that without federal oversight, states and jurisdictions are now free to implement discriminatory voting laws that make it harder for certain groups to vote. They point to the wave of voter suppression laws that have been passed in states across the country in recent years, which disproportionately affect minority voters.
Supporters of the decision argue that the Voting Rights Act is no longer necessary in today’s society, and that the country has made significant progress in the fight for voting rights. They argue that the Act has been used to unfairly target certain states, and that it is time for the federal government to give more power to the states to determine their own voting laws.
However, the reality is that voting rights remain a contentious issue in American politics, with ongoing debates over the best way to ensure that every American citizen has the right to vote without discrimination.
While the SCOTUS decision in Shelby County v. Holder has weakened some of the key provisions of the Voting Rights Act, there is still much work to be done to ensure that every American can exercise their right to vote freely and fairly.
The SCOTUS decision in Shelby County v. Holder has had a significant impact on voting rights in the United States, and the debate over the future of the Voting Rights Act is likely to continue for years to come. While supporters of the decision argue that it gives more power to the states, critics argue that it has opened the door to discriminatory voting laws that make it harder for certain groups to vote. The fight for voting rights remains a critical issue in American politics, and it is essential that every American has an equal and fair opportunity to exercise their right to vote.
Our Electoral Democracy is any day > US’ for sure. You agree?
(Author of Constitution, its Making and Working, OakBridge & practicing advocate in the Madras High Court)