Lacunae in AMERICAN constitution and the election LAWS

Bandula S de Silva

A major glitch in the 2000 American Presidential Election left the 'Greatest Democracy in the World' disconcerted and in total embarrassment. A cardinal precept of a democracy is the 'One Person One Vote' or the principle of universal suffrage. A corollary to this principle is that the candidate who polls the highest number of votes is elected. If this rule was incorporated as an Article in the American constitution instead of the Electoral College system the 2000 hiccup would not have occurred. Al Gore polled 49, 260,111 and Bush 49,043 820. A clear majority of 216, 291, What better system?

The principle of one man (the Founding Fathers were not into Political Correctness at the time and women rated slightly above idiots, felons and slaves) one vote was, and still is, enshrined in the American constitution as the basis of democracy. However, at the time of the drafting of the constitution it was felt that 'the ordinary man' with discretion and due concern and so the Founding Fathers added the Electoral College appendage to suffrage so that The Great and The God could cast a benevolent eye over the manner in which the gift of suffrage was used.

Electoral College system

The problem lies in the ignorance of the general populace as to the small print of the constitution which, taken literally, hands the casting votes to the College and not to Joe Public. They now, rather belatedly, realize that in actual practice, when it comes to a touch down it is not they who call the shots but the College and they are naturally outraged. The establishment of the Electoral College by the FFs was never intended to keep out the blacks because at that time the blacks existed in the shadows of civic privilege, being in a large number of states, mere slaves. As I said above the College was established to regulate the voting patterns of the less-than-educated.

The Electoral College system written into the American constitution, allegedly to safeguard and sustain white supremacy is a complete negation of democracy. The Electoral College comprises 538 state electors plus one for the District of Columbia. Each constituent state has a stipulated number of electors. The Presidential candidate who obtains 270 votes of the Electoral College is elected President. This is completely irrespective of the fact that a candidate can have an absolute majority under the universal suffrage system which is the choice of the people. The choice of the Electoral College supersedes the choice of the people.

It has happened thrice before. In 1876 in the contest between Hayes and Tilden and in 1888 between Harrison and Cleaveland where the minority candidate was elected President. Between Al Gore and George Bush in 2000.

The number of Electoral College votes which are credited to a Presidential candidate again negates Democracy. A candidate who obtains a majority of votes in a State wins.

All electoral votes. This is undemocratic and unfair. There is no proportional division of the votes polled among the candidates. For example in Florida Candidate.

A polls 3,500,000 votes and Candidate B polls 2,500.000 votes. Candidates A gets all the 25 electoral votes Florida is entitled to.... This means that 2,500,000 votes that Candidate B polled is not taken into reckoning at all. Why are 2,500,000 votes disenfranchised in one State alone?

The proper distribution should have been made proportionately. On the basis of 240,000 (as in the example) per electoral vote this would give Candidate A 14.58 i.e 15 votes and Candidate B 10.41 which is 10 votes.

In a national election why is there a variegated system? Why is only Maine and Nebraska having the proportional distribution system? Why not all the other states?

American political history

These constitutional provisions (1778) are contained in Article II which were varied by Amendment 12 adopted in 1802. Obviously this system is archaic and misbegotten in the modern digital millennium. In actual fact there are two electoral systems telescoped into one for the election of a President.

The Electoral College nulifying the more democratic Universal Suffrage. It is reported that during the last 200 years several attempts were made to abolish the Electoral College without success. This alone shows that the Americans themselves are alive to the fact that the system is primitive and undemocratic.

The reason for what appears to be discrepancies in the voting system of the various states is deliberate since the Founding Fathers believed so implicitly in the sovereignty of the individual states in a federal structure that they attempted to prevent any federal overriding of individual state wishes by allowing the individual states to operate their own systems of franchise in accordance with the wishes of their people.

Hence the different ballot formats. The reason why they still cling to the idea of the Electoral College even though in principle and at time like these, it is blatantly unfair is because they have so little history that they cling tenaciously to what little they've got. To most Americans whatever the FFs said or did is written in stone and attempting to ‘tamper’ with it is tantamount to heresy.

In a Presidential Election where the entire nation is the electorate why is a minor official in the county which is only a part of a state given the power to redesign the national ballot paper? This has happened in Florida's Palm Beach County where the Supervisor of Elections has rearranged the ballot paper ostensibly to help the aged voters but put the system in chaos. Over 19,000 votes have been rejected as a result. There should have been one standard ballot paper for the whole nation. This might change the course of American political history.

Ballot papers

Then again, the postal ballots of overseas residents are coming in one week after the closure of polls. This system of closing the overseas balloting on the same day as the Presidential election has gone on for quite some time which means that Presidents and Vice Presidents have been elected time and again without the totality of the result not known.

Why was voting by postal ballot not closed two or three weeks earlier (depending on the distance from America)? In Sri Lanka local postal voting is closed 14 days before the day of poll and all postal votes are available for counting with the other ballot papers. America should follow Sri Lanka.

The system of mechanized voting has also come under fire as severe irregularities and inaccuracies have been observed. Why are different systems employed in different states for a national election?

Mechanical in some and electronic eye in others. When both fail they resort to the time honoured and patently reliable manual count.

The Florida election law provides for a time closure for a manual count. This is a contradiction in terms. A count of ballot papers should be carried out to its logical and arithmetical conclusion. The Secretary of State for Florida, a co-chairperson for the Bush campaign was obviously and unequivocally partisan by applying the time closure. Should a person with a manifest conflict of interests be retained in that post?

Obviously American constitutional law makers are in for a hard think to extirpate the lacunae a final denouement - as it were. They need to, urgently, make the fallacy of American democracy, now naked and exposed, regain a modicum of credibility in the eyes of the world.

The writer is a retired officer of the Sri Lanka Administrative Service and a former State Secretary for Rural Industrial Development