Electoral College: A Beautiful Mess

By: Brandon T. Hamilton

From the Constitutional Convention compromise to our modern day Presidential election, the Electoral College has decided presidential elections in much the same way for the last 200 years. Only four times in the history of the Electoral College has the candidate winning the popular vote not successfully won the Electoral College. George W. Bush is the only president in the last 128 years to lose the popular vote and win the White House. According to a Gallop Poll, 62% of Americans are in favor of switching to a direct popular vote system for electing the President. Only 35% are satisfied with the current Electoral College system. Two options have been proposed to either alter or abolish the Electoral College: (1) The National Popular Vote Initiative, and  (2) the complete abolition of the Electoral College in favor of a direct presidential election system.  Abolishing the Electoral College would take a constitutional amendment. A constitutional amendment requires a 2/3 vote from each house of Congress and ratification by 3/4 of the states. Accomplishing this feat would be a near impossible task.

The National Popular Vote  (NPV) plan is a proposed compact between States to pledge their electors to the presidential candidate who receives a majority of the national popular vote. There’s some question over whether this system is constitutional as a preliminary matter. Article II of the constitution reserves to the states the exclusive power to bind their electors, but Article I would require such a compact to be approved by Congress.

Proponents claim that it would force candidates to campaign in all states, instead of spending their time and money in a handful of swing states. The organizations and states behind the NPV are ready to implement their plan as soon as it is approved by enough states to reach 270 pledged electoral votes. They currently they have legislation enacted in 11 states which together have 165 electoral votes.

One risk involved in relying on the states to solidify the compact is that this option makes the system susceptible to political change. A state could remove itself from the compact without the approval of the other states. If the majority of citizens of these states see their electors pledged to candidates that do no not share their values, then political pressure could follow that would force the legislature to withdraw from the compact, even after Election Day.

Opponents state that there is a risk of too much control by the most populous states. Of the 128 million votes cast in the 2012 Presidential Election, more than 50% were from the 10 states with the largest populations; of these ten states, five are already considered battlegrounds: Florida, Ohio, Pennsylvania, North Carolina, and Michigan. The National Popular Vote website claims that small states are virtually ignored under the Electoral College system. The Electoral College was originally intended to be a protection for small states. It seems that it is accomplishing this goal at least in part. In the 2016 Presidential Election, half of the swing states are relatively small. Many have 10 or fewer electoral votes.

 Finally, forty percent of all campaign donations in the 2008 Presidential election came from 4 out of 5 of the most populous states: California, Texas, New York, and Illinois.  If 4 out 5 of the most populous states contained the most campaign contributions, it would be conceivable that the candidates would cater to the masses of voters and dollars in these states.

Until the National Popular Vote collation reaches the golden number of 270 pledged electoral votes, while avoiding or surviving any Constitutional challenge, it appears the United States will continue to operate under the Electoral College. The Electoral College was constructed broadly by the authors of the Constitution to allow it to evolve with the growth of the nation and the emergence of political parties.  The Founding Fathers created the United States Constitution and the institutions contained within to adapt slow and steadily; avoiding at all cost the rapid evolution at the hands of political pressure. In the meantime, our leaders will continue to be elected by our “Beautiful Mess,” the Electoral College.  

How to Make the National Popular Vote Winner the President

By: Roger Morris

To some people the Electoral College is an overly complex system that inhibits the will of the American people. A compelling argument in favor of this notion is the fact that a candidate can be elected President without receiving the most votes. This scenario has happened four times in American history: 1824, 1876, 1888, and 2000. Because of this, there has been a movement to shift the United States to a national popular vote system where the candidate with the most votes nationally wins the election.

Opponents of the Electoral College have laid out several reasons why the system is inadequate. Presidential elections could be considered competitions to win swing states and not the nation as a whole. Even amongst those swing states there is a strong incentive to focus on the states representing a larger worth in the Electoral College. During the 2012 campaign, about two-thirds of general-election campaign events (176 of 253) were in four swing states: Ohio, Florida, Virginia, and Iowa. This year, 91% of campaign events (319 of 351) since the nominating conventions have been in only 11 states, with nearly 60% of those events occurring in Ohio, Florida, North Carolina, and Pennsylvania. In 25 states, there have been a combined total of zero presidential campaign events during the general-election cycle. Opponents argue that this focus on only a few states comes at the expense of the rest of the country. Candidates have every reason to focus on issues and tailor their promises to please citizens of swing states.

In addition, citizens in states that are not competitive and receive no visits from candidates may see little reason to vote. If a voter wants to vote for a Democrat but lives in a state that always casts its electoral votes for Republicans, they may choose not to vote because they feel their vote has an incredibly small chance of making a difference. A national popular vote system could provide an incentive to these disenfranchised voters and allow their votes to hold more worth.

The Electoral College system is laid out in Article II and the Twelfth Amendment to the U.S. Constitution. Therefore, abolishing the Electoral College would require a Constitutional Amendment. Past efforts to make this change have been unsuccessful due to Amendments being notoriously difficult to pass. They require a two-thirds vote in each chamber of Congress and, if successful in Congress, ratification in three-fourths of state legislatures. However, a plan to sidestep the Amendment process called the “National Popular Vote Interstate Compact” has gained some traction. It currently has the support of the District of Columbia and ten states.

The plan was first proposed following the 2000 presidential election by Northwestern law professor Robert Bennett and expanded upon by law professors Akhil Amar of Yale and Vikram Amar of the University of Illinois. The legislatures in the ten states and DC have decided that they will have their electors cast their state’s electoral votes for whichever candidate wins the national popular vote. If every state were to pass this legislation we would maintain the Electoral College, but avoid situations like the 2000 presidential election where the candidate that won the national popular vote lost the Electoral College vote and did not become President. In 2000, the election came down to one state, Florida, which Al Gore lost by a few hundred votes. With the National Popular Vote Interstate Compact in place Gore would have won the presidential election by virtue of winning the national popular vote regardless of the total in Florida. If every state were to adopt this measure the winner of the national popular vote would win all 538 electoral votes.

There is some question of whether the National Popular Vote Interstate Compact is constitutional. Under Article I of the Constitution, Congress must approve compacts between states. At the same time, Article II reserves to the states the exclusive power to bind their electors. Whether this legislation is an end run around the Constitution has yet to be taken up by the Supreme Court.

The Compact will not go into effect until enough states join the plan to collectively represent a majority of electoral votes, 270. At that point, the winner of the national popular vote would always win a majority of electoral votes. As of 2016, the movement has the support of states with a combined 165 electoral votes. There are two currently active bills in the statehouses of Pennsylvania and Michigan, which could bring the total electoral votes controlled by this measure to 201. If Donald Trump or Hillary Clinton were to win the presidency despite losing the popular vote, we may see a new push to put the compact in place.

The Problem of Faithless Electors and Other Crazy Electoral College Scenarios

By: Roger Morris

When all the votes are counted and we have a President-Elect, our long national nightmare, the 2016 election, is supposed to end. However, there is a small chance that no candidate could receive the requisite number of electoral votes, 270, to win the election outright.

In many states (including Kentucky), electors in the Electoral College are under no legal obligation to vote for the candidate chosen in the statewide vote. Electors who vote for someone other than who won their state’s popular vote are known as Faithless Electors.  This phenomenon occurs more often than the public probably realizes. In 2004, one elector from Minnesota cast an electoral vote for Democratic Vice Presidential nominee John Edwards instead of the candidate who won that state, John Kerry. In 2000, there was one abstention from the Electoral College when a Washington D.C. Faithless Elector chose to refrain from casting a ballot in protest of Washington D.C.’s lack of voting representation in Congress. There have been 157 instances of Faithless Electors as of November 2016, including in nine elections since 1948. But have no fear; a Faithless Elector has never swung the outcome of an election.

 Twenty-nine states and the District of Columbia now have laws that bind electors to the candidate that wins their state. For example, in Utah an elector is considered to have resigned and their vote not recorded if they vote for a candidate not nominated by the same political party of which the elector is a member. Some states merely require electors sign a pledge that they will cast their vote for the candidate that wins their state, but some states go further and impose civil or criminal penalties. In New Mexico, a Faithless Elector is subject to a fourth degree felony charge. But there are also strong arguments that binding electors to vote in a certain way is unconstitutional.

Even before any votes have been cast, there is already the potential for at least one Faithless Elector. One Democratic elector from Washington State has publicly said that he will not vote for Hillary Clinton if she wins his state’s popular vote. This former Bernie Sanders supporter would face a $1,000 fine if he were to not vote for Hillary Clinton in this situation. In a very close election, this Elector may feel pressure to vote for Hillary Clinton despite his reservations because not doing so could result in a President Donald Trump or President Evan McMullin.

The mathematically astute may be wondering what happens if there is a 269-269 tie in the Electoral College or if a third candidate, like Evan McMullin, wins a state and no candidate receives a majority in the Electoral College. If this were to happen, the election would be thrown to Congress in what is called a “Contingent Election.”  This has only happened twice in American history: 1800 and 1824. The Twelfth Amendment lays out how the process works.

The new Congress elected on November 8th would select the new President and Vice President, assuming the Vice President does not reach the requisite amount of electoral votes as well. The new Senate would elect the Vice President by deciding between the two Vice Presidential candidates with the most electoral votes and will cast a straight up-or-down vote. In addition to the Contingent Election of 1825, the Senate had to select the Vice President in the Contingent Election of 1837.  That year some Faithless Electors refused to vote for the President-Elect’s running mate, which threw the selection of the Vice President to the Senate. (There was no Contingent Election for Vice President in 1801. This was before the Twelfth Amendment was passed and the Vice Presidency was won by the second place vote recipient for President in the House.)

The newly elected House of Representatives would elect the next President. Each state delegation will cast one vote, so all the members of a state’s House of Representatives delegation vote and the candidate who wins a majority of the delegation will earn the delegation’s single vote. According to the Twelfth Amendment, the House chooses among the three highest vote recipients in the Electoral College, so if Evan McMullin were to win the state of Utah, as polls suggest he might, Mr. McMullin would be one of the three options from which the House may choose. For a candidate to emerge from this process and become the next President, he or she has to earn a majority of state delegations’ votes. If after one round of voting no candidate has a majority, the process continues until there is a winner. In the Contingent Election of 1801, it took 36 rounds of balloting for Thomas Jefferson to become the 3rd US President.

This process also leaves open the possibility that the offices of the Presidency and Vice Presidency could be filled by people of two different political affiliations. This possibility would depend on which parties control each chamber of Congress. If Democrats were to take over the Senate this election and Republicans maintained control of the House, then if a Contingent election occurred there is a chance of a Trump or McMullin administration with a Vice President Tim Kaine. If this were to occur it would be the first time since the John Adams administration (1797-1801) that people of different political parties occupied the top two offices of the executive branch. (Although, this occurred at a time when Presidents and Vice Presidents were not elected as a ticket.)

Here is an even crazier scenario: if no candidate earns a majority of state delegation votes in the House, whoever the Senate selected as Vice President would become the President on Inauguration Day. And, if both the Senate and House cannot decide on a President and Vice President, the Speaker of the House, as the person next in the line of succession, would become the President of the United States. Given that House delegations vote as states and there are 50 states with 100 senators there are several possibilities for ties and gridlock.

How the Electoral College Works

By: Roger Morris

Some of you may be saddened hear that the presidential election will not be decided on Tuesday, November 8th but actually on December 19th. This does not mean that you will have to put up with another month and a half of campaign ads and generally saddening news coverage. December 19th is when the Electoral College meets and casts the 538 electoral votes that really decide who the 45th President of the United States will be.

As you watch election night coverage, I am sure you will hear media commentators discuss the national popular vote, and how it impacts the election. However, the national popular vote means nothing when it comes to electing our next President. As recently as 2000, the winner of the popular vote ended up losing the Electoral College vote. This scenario has happened three other times in our nation’s history: 1824, 1876, and 1888. This doesn’t make any sense, right? Shouldn’t the person with the most votes win the election?

Not necessarily. Instead, the Electoral College elects our President and Vice President. When you go to cast your vote for President, you aren’t really voting for your candidate. You are voting for electors who will cast your state’s electoral votes in December. The Electoral College is the name for the 538 electors who vote to decide who the winners are. You may be wondering who these electors are and how they are chosen. The process varies from state to state, but generally each political party in your state will nominate slates of potential electors at state party conventions or choose them by a vote of the party’s central committee. These people are usually state party officials, elected officials, or others who have a political or personal affiliation with that political party. If Hillary Clinton were to win your state, then the electors chosen by your state’s Democratic Party would cast your state’s electoral votes. If Donald Trump were to win your state, then the electors chosen by the Republican Party in your state would cast your state’s electoral votes.

The number of electors in a state is calculated by adding the two senators your state has to the number of your state’s members of the House of Representatives, which is determined by population. In Kentucky, we have two Senators (like every other state) and six Representatives (apportioned based on our state’s population), bringing our total to eight. If Donald Trump wins Kentucky like the polls suggest, then the eight electors our state’s Republican Party selected would cast our state’s 8 electoral votes. The electors vote on the first Monday after the second Wednesday in December. This is the date the Electoral College meets according to federal law. In 2016, this date falls on December 19th. Each state’s electors will meet in each of their respective states on that date to cast their votes. The electors will go through two rounds of voting: one to select the President and the other the Vice President.

The mode of appointing electors is exclusively reserved to the states by the Constitution. As a result, states can decide how they want to bind their electors. Most states commit all of their electors to the winner of the state popular vote. Maine and Nebraska do things a little bit differently. These states will cast two electoral votes to whichever candidate wins their state’s popular vote. The rest of Nebraska’s electoral votes are allotted based on whoever wins each of Nebraska’s 3 congressional districts. Polls suggest that Republican candidate Donald Trump will win the popular vote in Nebraska, so he will earn two electoral votes that way. To earn the other three electoral votes, Mr. Trump would have to win a majority of the vote in each of the three congressional districts. Polls suggest that Nebraska’s 2nd congressional district, which includes the state’s largest city Omaha, is closely contested, and this could provide Hillary Clinton with one electoral vote even though she will likely lose the state’s popular vote.  This scenario actually occurred in 2008 in Nebraska, with Barack Obama winning one of the state’s Electoral College votes by winning the 2nd congressional district.

Maine allocates its electoral votes the same way, with two for the statewide winner and two others based on congressional districts.  Trump is polling well in Maine’s 2nd congressional district. With the race tightening in the last few weeks, these individual electors could prove pivotal if the race is close.

Adding up the number of Senators (100) and Representatives (435) in the 50 states gives us a total of 535. DC also receives 3 Electoral College votes under the 23rd amendment, even though it has no voting representative in Congress. To win the election a candidate must win at least 270 electoral votes, or a majority of the Electoral College. Of course 538 is an even number, which means there is a possibility of a tie of 269-269. This has never happened and is an unlikely scenario, but it is not impossible.

If a candidate wins at least 270 votes on December 19th, 2016 when the Electoral votes are cast, then the election will be verified by Congress on January 6 and the winning candidate will take the oath of office on January 20th, 2017 to become the 45th President of the United States. What happens if a candidate does not reach 270?  We will consider that possibility in another post.

Foiling Gary Johnson: Electoral Fusion in New York State

By: Jeremy Faulk

In New York, some Gary Johnson voters may be wondering what effect their vote will have.

By the time the last polling place closes on November 8th, 2016, we will have had an election cycle that has lasted more than 19 months, dating from Ted Cruz’s announcement of his candidacy way back on March 23, 2016. But of course, this overlong process is necessary so that we can arrive at and choose between our final two choices: Donald Trump and Hillary Clinton. The politically attentive will note that Libertarian candidate Gary Johnson and Green Party candidate Jill Stein are also contesting the election this year, and the truly politically astute won’t be surprised when they arrive to vote and find even more candidates on the ballot.

In New York, voters will have eight choices: Clinton, Trump, Johnson, Stein, Clinton, Trump, Johnson, and Clinton. No, that’s not a misprint. In Kentucky, we have a law that prohibits a candidate from appearing on a ballot more than once, but there is no such prohibition in New York. Clinton will appear three times, Trump and Johnson twice, and Stein just once.

What’s going on here? Several different political parties have nominated these candidates individually. Clinton has been nominated by the Democratic Party, the Working Families Party, and the Women’s Equality Party; Trump is the nominee for the Republicans and the Conservatives; Johnson is the Libertarian and is also listed as the nominee of the Independence Party; Stein is only the nominee of the Greens.

In addition to nominating the presidential and vice-presidential candidates, the parties in New York also nominate their Electors--the individuals who we vote for and who technically choose the President and Vice President on our behalf. New York law states that a vote cast for the candidates of a party are actually cast for the Electors of that party, and therein lies the issue that many in New York may be upset about after this election is over. 

For the 2016 election, the parties that have nominated Trump (Republicans and Conservatives) have also nominated identical slates of the 29 Electors for New York. The three parties that nominated Clinton have done the same. When this situation occurs, the New York Board of Elections aggregates the vote totals from these different parties in what is typically termed “electoral fusion.” However, unlike Clinton and Trump, who have been nominated by several parties but with identical slates of Electors, Libertarian Gary Johnson’s two nominations have two completely different sets of Electors. Remember how in New York a vote for the candidate is a vote for his underlying Electors? Johnson voters will have the option to vote for the Libertarian slate or the Independence slate. There can be no electoral fusion for the Johnson votes because the slates of Electors are different.  That is, Johnson voters will split their votes between two different sets of Electors depending on which Johnson voters select.

 It is fully expected that Hillary Clinton will win in New York. FiveThirtyEight has her odds of winning the state at greater than 99%. The fact that Johnson voters might lose some of their clout in New York will likely not change the outcome of the election because, electoral fusion or not, Johnson is unlikely to have enough votes for either party that listed him as their nominee. But this process could, theoretically, make a difference in the future.

More importantly, the Libertarian Party will be eligible for federal matching contributions if the party receives 5% of the vote nationally. The CNN Poll of Polls has Gary Johnson polling at 5% nationally.  If Johnson actually receives that level of support on Election Day, the Libertarians will receive upwards of $20 million to help fund their campaign in 2020. It is likely that only the votes for the New York Libertarian slate and not the votes for the Independence slate will count toward the Libertarian Party’s federal-matching-fund vote goal. The votes cast for Johnson on the Independence slate will probably spawn litigation if they are the final votes necessary to break that 5% threshold.

The Challenge to HB 589: North Carolina's Voter ID Law

By: Roger Morris

If you are going to vote this cycle it is more likely than not you will need to present your ID to cast a ballot. 32 states have laws in place that require you to do so and up until this past summer that total was to include one more, the important swing state of North Carolina. The 4th Circuit Court of Appeals’ ruling in North Carolina NAACP v. McCrory overturned North Carolina’s controversial voter ID law, HB 589, and as a result, citizens of the Tar Heel state do not need to present an ID to vote in person on election day.

The North Carolina General Assembly passed HB 589 shortly after the Supreme Court’s ruling in Shelby County v. Holder, which made it significantly easier for a state like North Carolina to pass a voter ID law. At the heart of Shelby County was Section 5 of the Voting Rights Act of 1965. Section 5 required that states or localities with a history of voter discrimination, like some counties in North Carolina, receive approval from the federal government before making changing to their election laws. This approval is called “preclearance.” In a 5-4 decision written by Chief Justice Roberts, the Court overturned the VRA’s coverage formula to determine which states and localities were required to seek preclearance, meaning that states like North Carolina could change their election laws without preclearance, which they very quickly did. The day after the Shelby County decision was handed down, the Republican legislative leader announced an intention to pass a new “omnibus” election law bill, which resulted in HB 589. Proponents of the bill claimed the new law was needed to address voter fraud concerns, while the bill’s opponents pointed out a 2013 report by the North Carolina Board of Elections which revealed that out of 40 million votes cast between 2000 and 2012 there were only 2 cases of in-person voter fraud that were referred to the District Attorney.

HB 589 made numerous changes to North Carolina election law. Citizens were required to present any of 8 acceptable forms of ID: North Carolina driver’s license; special ID for non-operators; US passport; US military ID card; federal tribal enrollment card; NC tribal enrollment card; or a driver’s license from another state if the voter’s registration was within 90 days of the election. Early voting was reduced from 17 to 10 days. Out-of-precinct voting, which allowed voters who show up at the wrong precinct to cast a provisional vote as long as they are in the correct county, was eliminated. Preregistration was also done away with, which allowed 16 and 17 year olds to register to vote even if they would not be eligible to vote in the next election.

While Republican lawmakers were drafting the bill, they requested data on the use of early voting practices and IDs by race. It showed African Americans disproportionally lack IDs, especially the most common form of identification: a driver’s license. The forms of allowable ID that made it into the bill were ones African Americans tended to hold in lower percentages. In addition, data shows that African Americans disproportionally used early voting, especially the first 7 of the 17 days of early voting that existed pre-HB 589. The General Assembly proceeded to cut early voting to 10 days.

On the day the bill was signed into law the North Carolina NAACP sued the state over the ID requirement. Federal District Court Judge Thomas Schroeder of the Middle District of North Carolina upheld the law. Judge Schroeder found the justifications for the law, such as the desire to protect against voter fraud, to be “not unreasonable” and “plausible.” However, the 4th Circuit Court of Appeals overturned this ruling. Judge Diana Motz, writing for the court, stated that the law was “the most restrictive voting law North Carolina has seen since the era of Jim Crow.” The Court found that the North Carolina General Assembly acted with discriminatory intent and that HB 589 violated the 14th and 15th Amendments, which prohibit racial discrimination in the regulation of elections.

Before overturning the law, the court assessed the non-racial factors that could have contributed to the legislation’s passage. Judge Motz wrote, “In enacting the photo ID requirement, the General Assembly stated that it sought to combat voter fraud and promote public confidence in the electoral system.” The court found that, contrary to the stated goal, the legislature would not have enacted the law if it did not disproportionally affect African American voters. The law only addressed in-person voting and North Carolina failed to identify a single person accused of in-person voter fraud.

Judge Motz wrote that the “problem” the majority party in the state legislature was trying to deal with was “emerging support for the minority party.” As a result of the General Assembly’s racial motivation in passing the law, HB 589 was ruled to be in violation of constitutional and statutory prohibitions on intentional discrimination. The 4th Circuit Court of Appeals found that the appropriate remedy was to strike down each of those provisions.

However, the legal challenge did not end with the 4th Circuit’s ruling. In August, North Carolina filed an emergency appeal asking the Supreme Court to allow it to implement several provisions of HB 589 for the November 2016 election: the voter ID requirement, reduction in early voting days, and preregistration. Later that month, North Carolina’s appeal fell one vote short of the required five Justices to halt the lower court’s ruling. As a result, North Carolina citizens will not have to present an ID to exercise their right to vote.

What to Expect at the Polls Today in Kentucky

By: Carly Kleiman

What type of identification do I need?
Kentucky does not have a strict voter identification law.  According to KRS Statute 117.227, election officers shall confirm the identity of each voter by personal acquaintance or by a document.  These identification documents may include:

  • Driver’s license
  • Social Security card
  • Credit card
  • Any identification card with picture and signature
  • Any United States government-issued identification card
  • Any Kentucky state government issued identification card with a picture
  • Or, any identification card that has been issued by the county and which has been approved in writing by the State Board of Elections

What if my right to vote is challenged?
Even when a person is registered to vote, the officers of any election may challenge the right to vote for cause.  Under KRS 117.245 the challenged voter will be asked to sign a written oath as to his or hers qualification before being allowed to vote by a provisional ballot.  The oath is then delivered to the County Attorney to be investigated under a grand jury.  A voter can check whether his or hers provisional ballot was counted on the Kentucky the Secretary of State’s website.

Most importantly, if you are at your correct polling place, do not be turned away without at least voting via a provisional ballot.

How close can political canvassers be to the polling place?
Under KRS 117.235 no person shall electioneer within one hundred (100) feet of any entrance to a building in which a voting machine is located.  Electioneering can include: 

  • Displaying of signs,
  • The distribution of campaign literature, cards, or handbills,
  • The soliciting of signatures to any petition,
  •  Or, the solicitation of votes for or against any bona fide candidate

There is an exception, however, for displaying campaign signs on private property within the 100 foot zone.

What if I spot a possible election law violation?
Kentucky’s Election Fraud Hotline at 800-328-VOTE (800-328-8683) is open to any person who witnesses election law violations.  Kentucky Attorney General Andy Beshear recently assured the public of his commitment to a fair election. “Each voter has the right to cast his or her ballot free of interference and intimidation, and my office is here to protect that right.  I encourage anyone with possible information about violations of federal voting rights laws to call the Election Fraud Hotline. Each and every report made will be promptly investigated to ensure a fair and honest election in Kentucky.” 

Kentucky law on "Poll Watching"

By: Clifton Rogers 

The Republican Party and Donald Trump have made repeated calls to the general public to “watch the polls” to prevent election mischief. Kentucky law allows for each political party to have representatives at the polls to act as “challengers.” They are there to ensure voting integrity; however, they must be certified by the Board of Elections and their activities are limited.

KRS 117.316 lays out what a challenger may do. A challenger can verify that voters are correctly registered, in the correct precinct, properly identified, and not a convicted felon lacking voting rights. The Trump Campaign and Republican Party can take some solace in those provisions given their oft-stated concerns over individuals voting multiple times. The power of challengers are not unlimited and KRS 117.317 lays out what challengers may NOT do. It states that a challenger shall not:

            (1) Electioneer or campaign on behalf of any candidate, issue, or political party;

            (2) Handle official election materials except as provided in KRS 117.187;

            (3) Attempt to intimidate or harass, verbally or otherwise, any voter who is being challenged or any precinct election officer;

            (4) Behave in any manner to disrupt activities at the polling place; or

            (5) Attempt to interfere with the proper conduct of the election.

These prohibitions are consistent with the general ban on electioneering or campaigning at polling places. In Kentucky electioneering is prohibited by anyone, including the general public, within 100 feet of a polling place. These prohibitions exist to prevent voter intimidation, last-minute campaigning, and hassling of voters.

 In addition to being prohibited from campaigning near a polling site, the general public is prohibited from being in the voting room except to vote. KRS Section 117.235 states that no person other than a voter, a person assisting a voter, a minor child, a challenger, or a person certified to enforce the law may be in the voting room while voting is taking place. 

A reasonable election official could likely interpret an uncertified, random individual who attempts to “check the polls” to be attempting to campaign or to intimidate voters.  They can also cause general disruption and confusion. If a member of the general public attempted to be in a voting room to watch the process or to stand near a polling site for that purpose they would be asked to leave. If they persisted then they would be subject to prosecution.  KRS Section 117.995 provides the penalties for the violation of these sections. It states that any person who violates these laws after being notified of them is subject to a Class A Misdemeanor for the first offense and a Class D Felony for subsequent offenses.

In sum, Kentucky law has provisions in place to ward off voter intimidation. Under the law, election officials inside the polls, and not the general public, are the best defense for warding off anything that may occur.

Foreign Contributions to U.S. Elections

By: Justin Cloyd

Many questions raised during this election season linger unanswered as voting comes to a close.  One of the most troubling of these—the idea of foreign countries directly influencing our democratic process—slid in and out of the spotlight without receiving the scrutiny it deserved.  Hillary Clinton claimed Russia worked behind the scenes to elect Donald Trump, while the Trump camp insinuated Clinton used money that Saudi Arabia gave to the Clinton foundation to help fund her campaign. So what do our laws say about foreign influence in our elections – at least with respect to foreign nationals contributing money for campaigning?

Well, it’s illegal.

            The Federal Election Campaign Act states in unambiguous terms that any contribution by a foreign national to the campaign of an American candidate for any election, state or national, is illegal. Likewise, anyone who receives, solicits, or accepts these contributions also violates the statute. Foreign national, in this case, means anybody not a US citizen that doesn’t have a green card.

What happens if someone violates the act?

            They get fined, mostly.  In 1975, Congress created the Federal Election Commission (FEC) to enforce the Federal Election Campaign Act, bestowing on it exclusive jurisdiction over civil enforcement of the act. In other words, they charge people money for breaking the law. 

             In theory, the “knowing and willing” acceptance of foreign contributions can result in jail time. To do this, the FEC needs to refer its case to the Department of Justice.  This rarely happens. As of last year, in the FEC’s forty-year history, it has recommended only 22 cases to the Department of Justice. The DOJ, however, can seek out and prosecute these cases on its own.

Are there any major examples of foreign contributions to US elections?

            One of the largest and more interesting scandals involving foreign contributions to a presidential election involves the Democratic Party, Bill Clinton, the China’s People Liberation Party, Al Gore, and a Californian Buddhist monastery. The FEC documents describe fundraising attempts by members of the DNC that set prices so foreign nationals could meet with President Clinton and Vice President Gore. In response to these findings, the FEC imposed a civil penalty on the DNC, the International Buddhist Progress Society, and various other actors for a cumulative total of $719,500

Is there a way for foreign governments to get around the Federal Election Campaign Act?

            Yeah, and it’s not a hard detour to find, either.  Thanks to decades of laws, court rulings, IRS interpretations, and one hugely controversial Supreme Court decision (Citizens United), a type of organization exists in the United States that can accept unlimited donations from corporations (foreign or otherwise), campaign for a candidate, and not tell a soul about where the money came from.  These fate-decreed special organizations exempt from disclosure under federal tax laws are called Social Welfare Organizations.  In the 2012 election, the third largest advertiser, just behind Obama and Romney’s campaigns, was a conservative-backed Social Welfare Organization called Crossroads GPS

            Social Welfare Organizations are supposed to exist to promote social welfare. However, they cannot exist primarily for elections.  To stay kosher with the law, the best guidance suggests that a Social Welfare Organization must spend at least 50% of its money on promoting things other than a political candidate.  So long as at least half of their activities are non-political, they may keep their tax-exempt status.

            An independent political entity like a Super PAC must disclose its own donors, but it does not have to disclose its donors' donors, keeping the original contributors safe from disclosure.  A Social Welfare Organization could therefore donate money to a Super PAC.  The Super PAC would disclose that the Social Welfare Organization donated to it, but the Social Welfare Organizations’ donors could remain secret.


            The big takeaway from all this is that it is illegal for any foreign entity, person, corporation, or otherwise, to contribute or try and directly influence our elections.  However, one large loophole exists whereby any one of those foreign nationals can donate, without restriction or scrutiny, to other organizations that directly impact the campaign.

Should I be worried?

            It’s hard to prove who donates what when donors don’t have to be disclosed. However, with the amount of unaccountable money in politics being as high as it is, it is possible that some part of political spending derives from non-US entities donating to US entities that themselves spend money on the campaigns.  In any case, with the election season we’ve had, it seems we all have cause to be worried about one thing or another.

Register to Vote Online

By: Clifton Rogers

The deadline to register to vote or to update your current registration is Tuesday, October 11. Visit to update your registration or to register to vote for the first time. Be sure to check that your information is accurate to ensure that you are registered in the district in which you live.

If you qualify under Kentucky law, you can vote in person via absentee ballot at your County Clerk’s office beginning on October 21. Check the Secretary of State’s website and the Kentucky Legislative Research Commission's site to see what offices are up for election and who the candidates are.