A Gamer’s View of Elections and Voting – Pt. 1

( – promoted by buhdydharma )

(I was originally going to write this in one post, but then I realized it was going to get way too long. There’s a lot of ground that needs to be covered, so I’m splitting it up into a few essays. This part introduces you to the point of view from which I’ll be writing throughout the series and then focuses on the historical reasons behind our current election and voting systems and why I view them as separate and dependent systems.)

—-

I am a gamer. I enjoy playing games and have done so nearly my entire life. Of course, I don’t like all games. Who does? In my case, games of chance are not my cup of tea, since there’s little, if any, the skill involved. I prefer a game that requires a strong strategy, like league of legends. I will happily spend money to buy league of legends accounts to enhance my skills. But games of chance? No thanks. And I’m not much into sports. (I must be un-American!) That doesn’t mean I’m unfamiliar with those games or that I don’t appreciate them, but being that I’m uninterested in them, I haven’t taken the time to really learn their rules. Primarily, I’m a role player, I like multiplayer games, where I can butt heads or compete with another person – the kind of games that you can only play on servers that allow multiplayer and team-based games, like the ones that provide Minecraft hosting. However, I also enjoy board games, card games, silly games, serious games, and many other types. I’ve been playing games since I can remember, but I wasn’t a student of games (so to speak) until after I left high school. I want to briefly (I hope) explain why this has any bearing on elections and voting.

There are three basic characteristics of any game: Rules, Players, and Judges. Rules are the structure of the game. They define how the game is played and what equipment is needed; who can be a player, the player’s goals, and how the players are to achieve those goals; and set up who are to be the judges and what penalties, if any, they may mete out. Players are, obviously, the players of the game and shouldn’t need any further explanation. Judges are the referees of the game. They ensure the players are playing by the rules, arbitrate any questions regarding the rules, and generally try to keep the game running smoothly.

There is a fourth characteristic that is not so often noticed, but it’s probably the most important one of all. It is the feel of the game. The intent of how the game is to be played. How action-oriented is the game? How realistic should it be? How serious is the tone? And so on. A good game will use rules that follow and enforce the feel of the game. Those same rules may not be a good choice for another game. To use a conventional example, the rules for football are not what you’d use for playing bridge.

The last thing I should note before getting into elections is a particular type of player: the rules lawyer. “Rules lawyer” is role-playing jargon for a player who prefers to exploit the rules, often to the detriment of other player’s enjoyment of the game. They will argue incessantly with judges over the slightest ambiguity, real or imagined, especially — and almost certainly — if it puts them in a better position.

Holding elections is merely another game. It just happens that the stakes are a lot higher than in most games we’re familiar with. The intent of this game is to be fair and accurate. The rules are whatever our national and state governments can come up with. The players are every citizen. The judges are appointed by various means, though politicians decide those means. And the rules lawyers…. Honestly, do you need me to tell you who they are?

So with that out of the way, let’s take a quick look at the function of elections before getting to why our current methods are dysfunctional. There are two things I do the moment I see a game. I get a quick idea of the feel, and I look at the ruleset. No matter how the game is supposed to feel, the rules are inviolable. Only the judge has the authority to override the rules. A good set of rules will not rely on the judge’s interpretation of how the game was intended to be played. The rules will be explicit.^[1] This becomes even more critical when you take into account that rules lawyers will exploit any loophole they can find.

For elections, there are two basic sets of rules which work together. One set is the election system, which is how elections are conducted. The other set is the voting system, which is how votes are marked and counted. They both play vital and distinct roles in the election process. The procedures for conducting elections (secret or public ballots, hand or machine count, polling locations, audits, recounts, etc.) are not just essential for ensuring election integrity, they define election integrity. Crappy rules mean crappy integrity. It’s that simple. The voting system is how winners and losers are tabulated, and its purpose is to represent the will of the voters. In other words, the entire purpose of the election system is to ensure a fair and accurate accounting of the voting system, which is itself the expressed will of the people. With this being said, when it comes to elections, everyone’s going to have their own reason as to why they decide to vote for a particular candidate. During the election period, you’ll notice yard signs like this product at Super Cheap Signs showing their support. Everyone is entitled to their own opinion.

This dovetails well with the intent behind holding elections in the United States. Elections are the means by which the governed give their consent to their government. Our founding fathers believed that should a government turn against the governed, it is inherently obvious and right that the governed should alter or abolish that government. Furthermore, we know that our founding fathers believed strongly in democracy. The will of the people is to rule the land.^[2] Thus, we can deduce that it is imperative that in order to ensure no uprising develops and to further ensure a full, strong, and vibrant democracy thrives, a form of elections must be instituted such that it clearly and fairly expresses the true consent and will of the governed.

Despite such noble intentions, the rules they came up with suck. Even with later amendments, it’s pretty atrocious. I’m not going to quote the relevant excerpts from the Constitution here. I expect every one of you knows where to find a copy. I’m just going to hit the highlights.

Election winners for President and Vice President are determined not by a simple majority vote of the people, but rather by a simple majority vote of the Electors. If the Electors can’t form a majority, then it’s up to the House (or Senate for VP). If the House can’t decide, then we get the Vice President as President pro tempore until a President can be successfully chosen.

Election winners for House and Senate seats are chosen by whatever wacky systems the states can come up with. (Actually, other than the caveats mentioned in the preceding paragraph, this also applies to Presidential elections. Yes, this is insane.)

As for how elections are conducted, except with a few provisions to ensure (supposedly) all citizens can vote, there’s effectively nothing. Zip, zilch, nil, nadda, zero, zippo. Diddly-squat. You couldn’t write less without trying.

Now, it is important to remember that when all this was written, holding public elections, while perhaps not a novel concept, was not common. Research into voting theory had only just begun, and if they had any inkling of how elections could be corrupted, they made no effort to prevent it. I don’t hold it against them that they didn’t come up with anything better, but we should not pretend that they came up with something great. It was a start; that’s the best I can say of it.^[3]

There was also a strong desire for the federal government to have as little control over the states as possible. Indeed, I think it was no accident that the term used is state and not province/protectorate/territory/etc. There was an intense distrust of the federal government, and that distrust was written into the Constitution. So when we read the Constitution, we can see that states were, for the most part, meant to be autonomous, and only under very limited circumstances were they to have their powers superseded by the federal government.

I mention this because we need to put the Constitution in a historical perspective. The rules are shaped by intent, and judges were put in place to interpret that intent since its inception. Ultimately, this is why our nation is more federalistic now. Two critical events have cemented that concept into reality. (I use the term “event” loosely. I hope you will forgive me.) First was the Marshal Court, which lasted from 1801 to 1835. During that period, the Supreme Court ruled often in the favor of the federal government over state governments. While the rulings were controversial at the time (and to some extent remain controversial even today), they set the foundation for the way our current government functions. The second event was the Civil War. A number of states attempted to secede from the Union (as you well know). The southern states decided to leave. Not rebel. Not fight. Just leave. Nothing in the Constitution explicitly prevents it, just as nothing in the Constitution explicitly prevents you or me from renouncing our citizenship. It was Lincoln who proclaimed the act of secession as rebellion.^[4] The secession attempt failed, obviously, and so the notion that states have the inherent right to leave the union was “falsified” by force of arms. That makes it a psychological win for federalism, but that is just as important as any win through law or logic.

That isn’t to say that states don’t retain much independence still. After all, it is the tenth amendment which says, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” For this reason, it took an amendment (the fourteenth) to close a loophole wherein states could pass (and were passing) laws which violated the Bill of Rights. It is the tenth amendment and the Commerce Clause (Article I, Section 8, Paragraph 3 “[The Congress shall have Power…] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”) which are the crux of any debate over what powers the federal government has over the state.^[5]

So, to bring this back into the issue of elections, the reason we have Electors determining who’s President is that that’s what the Constitution calls for. Removing Electors or changing how they’re selected would necessarily mean we’d have to rewrite how Presidents are elected. This is not necessarily good or bad, but it would require an amendment, and adding amendments has proven to be difficult to accomplish in the past.

The reason each state has control over its election and voting systems is that no one has ever attempted to argue that “Commerce” might also apply to elections, therefore the tenth amendment protects the states from US government interference in conducting elections. (While it’s true that the federal government tends to overlook the tenth amendment when it comes to laws affecting the People, the States have a knack of receiving slightly more consideration.) It’s possible to argue that commerce applies to elections, but in practical terms, to bring about any universal change, we’re looking at an amendment for this, too.

And change is necessary. America has evolved since the Constitution was first ratified. Whether we live in Alaska or Florida, politics at the national level receives more attention, and thus is viewed with more importance, than politics at the state level. Our nation is more federalists (if only slightly) than it was 200 years ago. The election process we have was set up with the best of intentions, but those intentions were not adequately translated into the Constitution and have not evolved with the country. Thus, we find ourselves in our current situation. Each state controls its own election and voting systems, with varying degrees of integrity and accuracy. This causes confusion among citizens, who either presume the system has become broken — they cannot understand why or how, but that’s how it appears to them, so they can come to no other conclusion — or they believe it has been rigged (in one fashion or another) by those who already hold power, yet they cannot find enough evidence to definitively prove it. Either way, the result is the same. By and large, they stop participating in politics, which only serves to weaken the democracy in which we live.

The reality is that our election and voting systems are working exactly as designed: poorly. We are long overdue for revising our election laws.

—-

Endnotes:

[1] I should note that “explicit” also depends on the game. Role-playing games (RPGs) are very reliant upon judge interpretation as a matter of course, so a good RPG depends on having a good judge more so than for most other types of games. Conversely, computer games probably have the most explicit set of rules you’ll ever find. Computer games don’t really have a judge. The rules define play so explicitly that they don’t allow you to ever deviate from them, even if it would make for a better game.

[2] To keep things from degenerating into mob rule, we have the Bill of Rights which is supposed to keep the majority and those with power from suppressing the minority and weak. Obviously, there are problems with that, too, but that’s a whole nother topic.

[3] Many games have their rules revised every so often, the frequency depending on the game. For some, like sports, the revisions are made once a year so that the same rules apply throughout a season. For other games, like those for computers, revisions can come out as often as once a day. If game developers can find a reason to revise the rules of their own games so often, it seems to me that after 200+ years, revising national laws on elections is long overdue. But if you’re reading this endnote before continuing the essay, I’m getting ahead of myself.

[4] Forgive the length of this endnote. I wanted to quote the entire relevant section of Lincoln’s First Inaugural Address.

I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it – break it, so to speak – but does it not require all to lawfully rescind it?

Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.

I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.

[5] I’m no Constitutional scholar nor historian. However, I do realize the intentions behind our Constitution and the history of our nation are far more complex than what I’ve noted here. I’ve actually read a lot more than what I’ve linked to. A person could spend years reading up on all this stuff and still not know enough to state anything with certitude. Bearing that in mind, I’ve done the best I can with the time I gave myself. I think what I’ve written here is enough for the purposes of this essay. If not, please correct me.