"The aim of every political constitution is...first to obtain for rulers, men who possess most wisdom to discern, and most virtue to pursue the common goal of society."
                                                   -- James Madison
                                                      The Federalist, No. 57

The Declaration of Independence of 1776 captured the core of democratic theory in referring to "Governments ... deriving their just powers from the consent of the governed." Eighty-seven years later, when the American states were at war with each other after 11 of them refused to accept the outcome of the election of 1860, President Abraham Lincoln restated the principle of consent as "government of the people, by the people, and for the people." However phrased, this founding principle requires a system of elections, the "dependence on the people" that James Madison in 1788 acknowledged in The Federalist, No. 51, as "the primary control on the government."

By determining peacefully those who shall govern and by bestowing legitimacy on the decisions they make, elections provide answers to crucial questions faced by any political system. These goals are more easily achieved when the characteristics of an electoral system encourage a widely shared perception that elections are both free and fair. Factors encouraging this perception are a franchise and an access to the ballot that are more inclusive than exclusive; an equality of votes so that no vote counts more than another; and election outcomes determined by rules established in advance, with minimal cheating and fraud in the casting and counting of votes. These standards for free and fair elections have not been static over American political history. Their evolution has reflected each generation's experience in grappling with the nature of political community, the latitude of lawful dissent, representation, and electoral structure and administration.

Who may vote

Under Article I, section 2 of the Constitution, people were eligible to vote for a member of the U.S. House of Representatives if they could also vote for "the most numerous Branch of the State Legislature." Except for setting certain qualifications for national office, the Constitution then left the definition of that community to each state. In practice, because of laws in the several states, this meant at the outset an electorate limited to white and adult men possessing a modest amount of property or paying a certain amount in taxes. By 1830, property qualifications had all but disappeared as universal suffrage for adult white males became the rule.

Prior to the Civil War, blacks were generally barred from voting even in states where slavery was forbidden. Once the guns were silenced in 1865, three amendments to the Constitution portended major changes to the concept of an American political community -- those entitled to vote and run for office. The 13th (1865) abolished slavery. The 14th (1868) proclaimed, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside" -- thus for the first time constitutionalizing a definition of both national and state citizenship. The amendment also declared, "no State shall ... deny to any person within its jurisdiction the equal protection of the laws." The 15th (1870) removed race as a criterion for voting, a pledge left unfulfilled for decades afterwards.

Indeed, some states developed devices to sidestep the Constitution. One of these -- the "grandfather clause" -- was not invalidated by the U.S. Supreme Court until 1915. It typically exempted from a literacy test for voting all persons and their lineal descendants who had voted on or before January 1, 1866, a date that made virtually every black person subject to a locally administered literacy test that could be difficult to pass. Even more persistent than the grandfather clause was the white primary. The primary -- an election within a political party to choose the party's candidates -- took hold in many areas of the United States early in the 20th century as a means of democratizing parties, by transferring the selection of candidates from party leaders to the electorate. In states where one party was dominant, as the Democratic Party was in Southern states, the primary in effect became the election because Republicans could mount only token opposition or no opposition at all in the general election. So even when blacks could vote in the general election, rules in some states barred them from voting in the primary, thus negating their influence on local and state races. Not until 1944 did the Supreme Court hold definitively that the right to vote guaranteed by the 15th Amendment applied to primaries as well as general elections.

Nonetheless, as the 1960s began, only one in four eligible black persons in the South was registered, and actual turnout for elections was considerably less than that. Action on two fronts brought remarkable changes within a decade, allowing voting by blacks to approach rates comparable to those for whites. First came successful assaults on the poll (or head) tax which discouraged the poor, especially blacks, from voting. The 24th Amendment (1964) prohibited use of a poll tax in federal elections, and two years later the Supreme Court invalidated the tax as a requirement in state elections. Second, the Voting Rights Act of 1965 -- the most important voter legislation ever enacted by the U.S.Congress -- largely overcame the more subtle ways in which African Americans had been kept from the polls. As a result of such measures as federal oversight of elections and a ban on literacy tests, black voter registration by 1967 had doubled in Georgia, nearly tripled in Alabama, and jumped almost 800 percent in Mississippi.

In contrast, the women's suffrage movement, dating from the 1840s, took longer to gain formal voting rights but, once secured, needed no further protective legislation. In 1869, the Wyoming Territory became the first political unit in the United States to extend the vote to women, but others were slow to follow, especially after the Supreme Court ruled in 1875 that states could continue to bar women from the polls without violating the 14th Amendment. By the end of the century, three other states allowed women to vote. The 19th Amendment did so nationally in time for the elections of 1920.

Who may run for office

Rules governing the second dimension of political community -- the right to stand for public office -- balance two competing values. On the one hand, states have traditionally preferred inclusiveness. That is, once someone meets qualifications for age, residence, and citizenship, that person has a right to try to gain access to the ballot so that his or her name might be considered by the voters. The Constitution has always forbidden a religious test for national office, and the Supreme Court held in 1961 that states were forbidden to do so as well.

On the other hand, most states have also tried to discourage an excessive number of candidates and parties. Because political parties aggregate and accommodate interests, the American political tradition prefers a governing majority that is formed by coalitions within a party, not a governing majority that depends upon coalitions among parties. The preference has been for a system that increases the likelihood that the person who wins an election will win with a majority of the votes or at least with a large plurality, objectives less likely to be met with a multiplicity of candidates and parties.

These objectives are commonly achieved by requiring someone entering a party primary to collect a certain number of signatures on a petition (as well as by paying a filing fee), with the number of signatures and size of the fee being higher for statewide offices and considerably lower for local races. Similarly, in order to have its candidates' names placed on the ballot, a party may be required to demonstrate a modicum of preexisting support, whether through signatures on petitions or by the number of votes received in the previous election.

State ballot access rules create special burdens for anyone seeking the presidency as the candidate of a "third party" (any party in addition to the two major ones, Republican and Democratic). Candidates for federal as well as state and local office must meet the ballot qualification rules in each state in order to be on the ballot in that state. This is an easy enough task for both major parties, but can be a daunting challenge for a third party.

Dominance by one or the other of two major parties over most of American history, however, has not confined voter choice as much as it might first seem. This has been true for at least three reasons: The parties themselves have changed over time in what they advocate; third parties have alerted the major parties to changing views among voters; and, any policy put into effect by the Congress or a presidential administration is always subject to constitutional challenge in the Supreme Court.

Latitude of lawful dissent

Voting is a meaningless exercise without choice. Making intelligent choices requires that citizens opposed to those in power must be allowed the freedom to publicize their views, to criticize policies, and to attract and organize supporters. Free and fair elections are impossible to maintain where officials have authority to silence their critics.

Wide latitude has usually been accorded dissent in the United States, but notable exceptions demonstrate that liberties are sometimes in greatest danger when they are needed most. For some, at certain periods in history, the safety of the republic seems to depend upon stamping out contrary opinion and noxious views. Examples range from the Sedition Act of 1798, which for three years criminalized scandalous criticism of the president or Congress, through enforcement of the Smith Act during the Cold War in the 1950s, a law that criminalized advocacy of overthrow of the government.

In contrast, others believe that security is best maintained through freedom, a view that appealed to the Founding Fathers and has prevailed in many U.S. court rulings. "Freedom to differ is not limited to things that do not matter much," wrote Justice Robert H. Jackson for the Supreme Court in 1943. "That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." Debate on public issues, advised Justice William J. Brennan, Jr., in 1964, "should be uninhibited, robust, and wide-open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." In short, while government may curtail inciteful speech where violence is imminent, there is today under the Constitution no such thing as an illegal idea. "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education," declared Justice Louis D. Brandeis in 1927, "the remedy to be applied is more speech, not enforced silence."

Representation

Elections result in the selection of officials who act on behalf of the people. In the United States, this link is most obvious in a state legislature or in the U.S. Congress where officials in their lawmaking role represent an entire state or part of a state called a district. The system of representation employed in a state or nation is important because it affects the allocation of power not only among geographical regions but among contending interests. In Congress, for example, the apportionment of senators set by the Constitution is two per state, while in the House of Representatives the apportionment by state varies according to population. Thus, Wyoming, with not quite 500,000 residents, has exactly the same representation in the Senate as does California, with nearly 34 million residents. In the House, however, Wyoming has but one representative, while California has 53 as a result of the 2000 census. This plan, a compromise at the Constitutional Convention in 1787, allows small states to matter more politically than would be true were representation based entirely on population.

State legislatures have the responsibility for creating the legislative districts for themselves and for the delegates from their states to the U.S. House of Representatives. The ovewhelming preference in the United States has been for single-member districts -- if a state sends ten members to the House, then the legislature carves the state into ten districts, with one representative being elected by each district.

In contrast to proportional representation and some kinds of multi-member districts, single-member districts discourage the growth of third parties. They may also greatly diminish the influence of a large political minority. This is because the drawing of district lines can be done to exaggerate or to diminish the strength of a group of voters or a party, a process called gerrymandering. (The term is a combination of Elbridge Gerry, the governor of Massachusetts in 1812, who presided over a redistricting of his state's senatorial districts, and the word salamander, the animal whose shape the new districts were said to resemble.) If gerrymandering in a state is carried to an extreme and persists for a period of years, the Supreme Court might find such arrangements a violation of the Constitution, but short of that, it is a time-honored practice in American politics. However, efforts by a party to secure partisan advantage through the drawing of district lines must still conform to certain principles. Districts must not appear to have been drawn arbitrarily, and they should be compact and contiguous. Nonetheless, the election in the year of a decennial census is especially important: The party that controls the state legislature at the dawn of the new decade draws the district lines for state legislative and congressional seats that remain until after the next decennial census.

The Supreme Court, however, long ago put an end to another districting arrangement that yielded substantial inequalities in representation. By the 1950s, noticeable numerical disparities among state legislative and congressional districts were commonplace in nearly every state. As people moved from farms to the cities and from the cities to the suburbs, districting did not keep pace. Some sparsely populated rural areas were more heavily represented than heavily populated urban areas. Incumbent legislators understandably were not eager to vote themselves and the interests they represented out of power.

A series of decisions by the Supreme Court in the 1960s invalidated such districting plans, requiring instead that all districting be done on a one person/one vote basis. That is, the number of people within a district would have to be equal to the population of a state divided by the number of districts. Before the end of the decade, the Court worked a revolutionary change in representation in the United States, transferring political power from rural to urban and especially to suburban regions. As a result, a majority of the people would be able to elect a majority of the legislature.

Electoral structures and procedures

Electoral rules and practices may also contribute to, or detract from, a sense that elections are free and fair. Consider voting impediments, vote counting, and campaign finance regulations.

One conspicuous fact about elections in the United States is the widespread phenomenon of nonvoting. (Voting in the United States is voluntary, not legally required as it is in some countries.) Even in high-visibility presidential elections, voter turnout in recent years has hovered around 50 percent. That is, fully half the eligible voting population (almost all citizens over 17 years of age) does not vote. This rate contrasts with a turnout of about 65 percent -- a modern-day high -- in the presidential election of 1960. Thus, when President Bill Clinton won re-election in 1996 with 49 percent of the popular vote in an election in which the turnout was only 49 percent, he was the choice of slightly less than one quarter of the eligible electorate.

What is responsible for this trend? Factors such as a decline in a sense of civic and community obligation, voter apathy stemming from a perception that elections do not make a difference in one's life, and an increase in the percentage of two-wage-earner households may depress turnout -- as well as the sense in recent national elections that no great issues are at stake in a prosperous time of peace.

It is also important to keep in mind that voting in the United States entails three different decisions. Aside from deciding to vote and deciding for whom to vote, the prospective voter must also have registered to vote. This requirement seems to impede voting because registration rolls usually close weeks before the election itself. Moreover, because registration is done by state and within states by counties, and within counties is organized by precincts, persons who have recently relocated will almost always have to re-register or make sure that their existing registration has been transferred. So the mobility of the American population suggests that there is always a certain number of would-be voters who are kept from the polls because of registration requirements. Whether systems for easier voter registration, as when one applies for or renews a drivers license (the so-called "motor voter" plan), will improve turnout rates remains unclear.

In the counting of all ballots, legal safeguards have been developed over the years to minimize error and to assure fairness. This is why the laws of all states provide for recounts in certain instances and permit the initial apparent loser to contest the election. Otherwise, doubts about the accuracy of the vote count may undermine public confidence in the integrity of elections and subtract from the legitimacy of the declared winner. No better example exists than the extended presidential election of 2000 that highlighted all too clearly problems that can arise in the usually mundane process of counting votes.

Voting in presidential elections

Under the Constitution, each state is assigned an electoral vote equal to its representation in Congress, and the District of Columbia is allocated three electoral votes by virtue of the 23rd Amendment (1961). A candidate wins the presidency by capturing a majority (at least 270) of the 538 electoral votes. These votes are cast by electors when they gather in their respective state capitals on December 18 (hence: Electoral College). The Constitution stipulates that electors from each state be "appoint[ed], in such Manner as the Legislature thereof may direct." Since the mid-1800s, each state's presidential electors have been selected by vote of the people of that state. Among the 50 states, except for Maine and Nebraska, a winner-take-all rule prevails: the presidential candidate with the most votes in a state receives all of that state's electoral votes, effectively negating votes cast for all other candidates.

The Electoral College seems an anachronism, even to many Americans. Florida became the battleground state in the 2000 election after Election Day (November 7) largely as a result of the Electoral College. The Florida presidential vote was disputed in November and into December 2000 because of the unusual closeness of the popular vote in that state separating Republican presidential candidate George W. Bush and Democratic presidential candidate Albert Gore. Because the results in the other 49 states positioned Bush and Gore so closely in the electoral vote tally, neither could reach 270 electoral votes without Florida's 25. The candidate who won that state's popular vote would be the winner of Florida's electoral votes and would become the 43rd president. Even though everyone agreed that, nationally, Gore had a lead in the popular vote total of several hundred thousand, that national margin made no difference. What mattered was the popular vote in Florida.

Most ballots cast in Florida were read by machines. However, some ballots could not be read because some voters who used punch cards did not completely puncture the card, or, if they did, left a piece of paper (a chad) dangling or left only an impression. The machines would not count these as legal votes. Other voters apparently did not vote for president at all. The same thing had happened in other elections in the state, but no one had dealt with the problem because the margins were not as close and the stakes were not as high. Trailing by only a few hundred votes (out of six million cast in the state), Gore and his supporters wanted ballots rejected by voting machines to be recounted by election officials in each district. Bush and his supporters feared that any hand count to determine the intention of the voter would inject a level of subjectivity into the process and unfairly cost him the election. For Bush, vote-counting machines would not discriminate against one candidate in favor of another, while any hand count would proceed under the pressure of what was at risk. The controversy obscured the common ground between both men: Each insisted on a fair counting of votes. The disagreement lay in how that should be achieved.

Ultimately, the U.S. Supreme Court ruled in mid-December that hand-counting could not proceed without uniform standards to determine the intent of the voter. With voting by the Electoral College just days away, the Supreme Court concluded that no constitutionally acceptable hand-counting was possible. Otherwise, one person's ballot might be treated differently from another's, violating the equal protection clause of the 14th Amendment. This decision by the nation's highest court will have an impact far beyond the presidential election of 2000. The Court established a rule that is likely to guide every recount in future political races anywhere in the United States. Recounting may now proceed only where ballots are examined under standards designed to assure equal treatment and to minimize subjectivity.

Restrictions on spending

The election of 2000 was also notable in the way it highlighted the role of money in the competition for votes. "There are two things that are important in politics," Republican strategist Mark Hanna is supposed to have said more than a century ago. "The first is money, and I can't remember what the second one is." The Federal Election Campaign Act [FECA] in its 1974 amendments imposed major restrictions on the source, amount, and use of campaign funds in order to avoid corruption and the appearance of corruption. These limits, however, touch on First Amendment rights of free speech and association because money in politics is a proxy for speech: Candidates, parties, and other political groups require money to build their organizations and to convey their messages to voters through the mass media.

In upholding part of the complex statute in 1976, the Supreme Court drew an important constitutional distinction between contributions and expenditures. Because limitations on the former were deemed less harmful to speech than limitations on the latter, and because contributions posed a greater danger of corruption or the appearance of corruption, the Court disallowed provisions that restricted expenditures, but upheld limits on contributions. Also upheld was a conditional scheme of public financing for presidential races (on a matching basis in primaries and caucuses and with full funding in the general election), in return for which candidates agreed to abide by spending limits. The goal was partly to level the financial playing field among major party candidates. Lying outside the FECA's "hard-money" limits are unregulated contributions ("soft money") for party-building, get-out-the-vote drives, and issue-oriented media blitzes.

A stable democratic process

Free and fair elections are essential in assuring the "consent of the governed," the bedrock of democratic politics. They are at once both power- and legitimacy-conferring instruments, just as unfair and dishonest elections may cast doubt on one's claim to office and diminish one's ability to govern.

Few argue that electoral politics in the United States is perfect. Some of its features from time to time have hindered, deflected, muted, or distorted the people's consent. Yet, for several reasons, most Americans believe that overall their electoral system is fair and honest. First, with the noticeable and instructive example of the conflicts leading to the Civil War nearly a century and a half ago, elections in the United States operate effectively: By determining winners and losers, they accomplish what elections are designed to do. Defeated candidates and their supporters willingly, if not cheerfully, defer to the victors and acknowledge their right to rule. This is no small achievement. Such acceptance presupposes a stable political system where ultimate values and interests are rarely, if ever, at risk.

Second, the frequency of elections means that no party or faction within a party is guaranteed permanency in office. Today's majority might be replaced by a much different majority tomorrow. This is a key point of democratic theory: Majorities are in flux. Third, majorities may be transitory because the electoral system protects the right to compete. An election without opportunity for serious opposition is a hoax.

Finally, U.S. elections link voters with officeholders. The latter depend upon a majority of voters to govern. The people therefore perceive elected officials as their agents, authorized to act on their behalf. Elections in America have made public officials the servants of the people, rather than people the servants of the government.

However one measures the progress in democratic politics that the United States has made, other nations may well choose not to follow the American model in all its particulars. Some features of electoral politics in the United States persist only as remnants of history. An American nation getting under way in the 21st century would not select its chief executives through the Electoral College. It might not choose to retain an equal vote for each state in the Senate. Other features, such as a guarantee of a free press or popular election of members of Congress, would doubtless remain. Nonetheless, lessons emerge from America's democratic experience that point to characteristics that are probably essential to the maintenance of a stable democratic process elsewhere.

First, access to the vote and the ballot should be widely available, with no vote worth more than any other vote. To restrict the political community on the basis of gender, political beliefs, ethnicity, or religion, for instance, undercuts a regime's legitimacy. An inclusive franchise, by contrast, encourages all elements of a society to perceive a stake in the existing order because each has a chance eventually to prevail.

Second, encouraging high turnouts of voters in elections should be a priority. Low voting turnouts should be cause for concern, if not alarm. Not only may they result in election of officials without the support of a majority of the eligible electorate, but they exaggerate the influence of well-organized and intensely motivated interests.

Third, a high level of freedom for political speech is crucial to the democratic process. Restricting lawful dissent not only inhibits electoral politics by stifling opponents, but repression of opinion may drive dissidents from legitimate channels of political participation into violent means of protest.

Fourth, elections and the system of representation must enable a majority of the people to control the government, yet safeguards must be in place to prevent a majority from overwhelming and destroying a minority. Nonetheless, arrangements that assign undue electoral weight to minority interests may frustrate a central element of consent of the governed: legislation that efficiently reflects the will of the majority. Otherwise, minority views displace those of the majority or so cripple the decision-making process that the government becomes incapable of acting at all.

Fifth, because elections function effectively only if most people perceive them to be free and fair, procedures must be in place to respond quickly to allegations of voting dishonesty. Without such remedial devices, electoral politics may quickly be perceived as a fraud.

Finally, free and fair elections may prove difficult to maintain in a society marked by deep cleavages among a large part of the population over the most vital questions. Sometimes the health of a political system can be gauged by the issues that do not dominate a campaign and by the propositions that never appear on any ballot.

"Democratic institutions are never done," observed Woodrow Wilson over a century ago. "They are like living tissue -- always a-making. It is a strenuous thing, this living of the life of a free people." Close scrutiny and probable change remain the order of the day. Awareness of the flaws in an electoral system is as important as appreciation of its virtues.

For Additional Reading

Mark E. Bush, Does Redistricting Make a Difference? Partisan Representation and Electoral Behavior (Johns Hopkins University Press, 1993)

Marchette Gaylord Chute, The First Liberty: A History of the Right to Vote in America, 1619-1850 (Button, 1969)

William Gillette, The Right to Vote: Politics and Passage of the Fifteenth Amendment (Johns Hopkins University Press, 1965)

Samuel Huntington, The Third Wave: Democratization In The Late Twentieth Century (University of Oklahoma Press, 1993)

Bernard Grofman and Arend Lijphant, eds. Electoral Laws and Their Political Consequences (Agathon Press, 1986)

Alexander Keysser, The Right to Vote: The Contested History of Democracy in the United States (Basic Books, 2000)

Harold Porter Kirk, A History of Suffrage in the United States (AMS Press, 1971)

Donald W. Rogers, ed. Voting and the Spirit of American Democracy: Essays on the History of Voting and Voting Rights in America (University of Illinois Press, 1992)

About the Author:
D. Grier Stephenson, Jr. is Charles A. Dana Professor of Government at Franklin & Marshall College where he teaches courses on American politics, the Supreme Court, and constitutional law. Among other works, he is author of Campaigns and the Court: The U.S. Supreme Court in Presidential Elections, and co-author (with Alpheus Thomas Mason) of American Constitutional Law: Introductory Essays and Selected Cases.