September 2020 Law Wise

PUBLISHED BY

LAW WISE SEPTEMBER 2020 • ISSUE 1

Coordinators:

ethany J. Roberts, Chair, LRE Committee; B Nicolas Shump, Law Wise Editor; & Patti Van Slyke, Journal Editor

Greetings from the Kansas Bar Association (KBA).

Welcome to this first edition of Law Wise for the 2020-2021 school year.

IN THIS ISSUE

Elections in American History......................... 1 Voting by the Book.......................................... 2 The Electoral College......................................... 3 Elections During Times of Crisis....................... 4 Terrific Technology for Teachers......................... 5 To Vote or Not To Vote (lesson plan)................ 6 The Electoral College (lesson plan).................... 8 iCivics “Win the White House” Game.............. 9

Old City Hall and Independence Hall in Philadelphia, Pennsylvania, USA in the evening. It is the place where the US Constitution and the US Declaration of Independence were adopted.

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aving achieved independence after the Revolutionary War, the founders realized they needed to develop a system to ensure a legitimate and democratic process to pass power from one leader to the next. Though there have been criticisms of this system since its inception, the United States accomplished this goal by including specific guidelines in the Constitution. Subsequent Constitutional amendments modified these original instructions, and over time, the franchise widened to include nearly all segments of American society.

With an important Presidential election only weeks away, this issue of Law Wise will look at the legislative origins of our system of elections, as well as the various criticisms and challenges to this system. The Electoral College system will serve as a major point of consideration; it has contributed to significant and controversial Presidential elections throughout U.S. history. As the nation celebrates Constitution Day this month, this issue will highlight elections which remain one of the enduring legacies of the system of governance practiced in the United States.

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2 LAW WISE | SEPTEMBER 2020

Voting by the Book

T

he first regulation concerning voting under the United States’ Constitution occurs in Article 1, Section 4 which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” As the previous passage notes, the selection of Senators originally had a different procedure.

Each state chose its own Senators.

Members of the House of Representatives served two-year terms and all members were up for reelection at the end of their terms, while Senators served six-year terms and 1/3 of Senators faced reelection at the end of their terms.

The Constitution mandated only white male property owners over the age of 21 could vote. The 14th Amendment provided voting rights for any men born or naturalized in the United States and the 15th Amendments abolished earlier electoral restrictions mostly for newly freed slaves. New requirements such as poll taxes and literacy tests emerged to disenfranchise voters. The 17th Amendment changed the procedure for electing Senators making this decided by popular votes in the states. The 19th Amendment granted the vote to women.

The 1924 Indian Citizenship Act gave Native Americans the right to vote. The 1964 Civil Rights Act established the right to vote for anyone over the age of 21 to vote regardless of race, religion, or education. A year later, the 1965 Voting Rights Act eliminated literacy tests and allowed the federal government to enforce these policies. The 24th Amendment eliminated poll taxes. The 26th Amendment lowered the voting age to 18. The

Voting Accessibility for the Elderly and Handicapped Act requires accessibility at all polling sites.

Despite this extensive federal legislation, the states still supervise their own elections with various requirements specific to each state. In Kansas, a voter must present a valid photo ID. If a voter does not present ID, that vote is submitted as provisional ballot. The voter must verify identity in person or via mail or email before the canvassing of votes.

• Kansans may register to vote in person or online at https://www.kdor.ks.gov/Apps/VoterReg/Default. aspx • If you plan to vote by mail, you must register by October 13, 2020.

• The deadline for requesting a mail ballot is October 27, 2020.

• State law allows in-person advance voting to begin up to 20 days before election day at county election offices or satellite voting locations.

• All counties must offer in-person advance voting no later than one week before election day.

• Early voting in Kansas runs from October 14, 2020 to November 2 at noon, but may vary by county. Check with your county election office.

For Kansas Election FAQs, check out: https://www.sos.ks.gov/elections/elections-faq.html

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SEPTEMBER 2020 | LAW WISE 3

The Electoral College

W

hile the Electoral College remains one of the most distinctive features of the American electoral system, the term “electoral college” does not appear in the U.S. Constitution. Article II of the Constitution describes the process by which States can appoint an “elector.” The 12th Amendment describes how “Electors” shall meet in their respective States to vote for the President and Vice-President.

The Electoral College resulted from a compromise between proposals to have a popular vote or to allow Congress to elect the President. Given concern with the qualifications of voters to make a good decision, the Electoral College system allowed states to control who would actually cast votes for the Presidency. Based on Congressional representation, the Electoral College balances the interests of all states regardless of their population. In 2020, there are 538 electors. To win the electoral vote and, therefore, the Presidency, a candidate must garner at least 270 electoral votes.

Forty-eight of the 50 states apportion votes in a “winner takes all” approach. This means whichever candidate wins the majority of votes in that state earns all of that state’s electoral votes. Only Maine and Nebraska have proportional representation to determine allocation of electoral votes.

If no candidate earns 270 electoral votes, the Constitution mandates the House of Representatives will determine the presidency. With 435 members of Congress, a candidate would need to secure 218 votes to win the election.

Third-party candidates are most impacted by the current system. Whether regional candidates such as Strom Thurmond or George Wallace, or national candidates like Teddy Roosevelt or Ross Perot, those candidates have achieved negligible results

with the Electoral College. Thurmond and Wallace did receive some Southern electoral votes, but not enough to make an impact on a national basis. Though Roosevelt finished second in the 1912 election, he had only 88 of the 266 needed to win the presidency. Ross Perot, in 1992, earned 19 percent of the popular vote but none of the electoral votes since he did not have significant support in any one state. In the 2016 election, Gary Johnson of the Libertarian Party who appeared on all 50 state ballots failed to receive any electoral votes.

Given its Constitutional status, any changes to the electoral system and the electoral college would require the passage of a Constitutional amendment. This process would require passage in Congress by a 2/3 vote in both houses. Then ¾ of the states would have to ratify the amendment as well. According to the National Archives over 700 proposals to amend or eliminate the Electoral College have been introduced in Congress.

This is the most for any potential Constitutional amendment.

The organization National Popular Vote is an attempt to allow states to agree to a popular vote if the organization can secure the approval of enough states to have over 270 votes. Currently, 14 states (California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have enacted legislation to gain 196 electoral votes.

In February 2019, State Senator David Haley, a Democrat from Kansas City, Kansas, introduced Senate Bill 115: Interstate Compact on the Agreement Among the States to Elect the President by National Popular Vote to the Kansas Senate.

The Senate referred the bill to the Committee on Ethics, Elections, and Local Government. In May of 2020 the bill died in committee.

In January of 2017, Harvard economists and Nobel Laureates Eric Maskin and Amartya Sen advocated for a Majority Rule System adapted from an electoral idea developed by the 18th century political philosopher Marie Jean Antoine Nicolas de Caritat, Marquis de Condorcet. Condorcet proposed ranking candidates from best to worst. Such a system would provide more electoral influence from third-party candidates and mostly eliminate the phenomenon of “vote-splitting” where a third-party candidate takes votes from one of the major party candidates resulting in the victory of the other. For example, Ralph Nader’s candidacy in 2000 split votes among Nader and Sen. Al Gore, resulting in the razor-thin victory for George W. Bush.

Despite these various proposals, the upcoming Presidential election will take place under the current Electoral College system, leaving alternative systems or Electoral College reforms for future elections.

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4 LAW WISE | SEPTEMBER 2020

Elections During Times of Crisis

T

he fact the United States has never cancelled or postponed a presidential election serves as proof of the enduring nature of its electoral system. The 1864 election during the Civil War marked the second war time election following the election of 1812.

With the Civil War raging, the Union forces in the spring of 1864 did not possess an advantage and many observers doubted that President Lincoln would win a second term. His eight immediate predecessors had served a maximum of one term each. Though an incumbent rarely did not gain a second term in wartime, this pattern had not yet developed at the time of Lincoln’s reelection bid.

Several of his advisors suggested Lincoln postpone the election given his chances to win the election. However as Civil War historian Eric Foner explains, Lincoln found this idea contradictory to our democratic form of government. “Lincoln always felt that the Civil War was, number one, about democracy. [Lincoln thought] if you suspend democracy in the middle of the war, you are basically undercutting the whole purpose of the war. So even when he thought he was going to lose, he never really contemplated suspending the presidential election.”

The Democratic Party nominated General George McClellan who agreed with the Republican Party that the Confederacy must rejoin the Union for the war to end. However, under Lincoln, the Republican Party made ending slavery another condition for the Confederacy. The Democrats did not have the same emphasis. Lincoln’s campaign slogan “Don’t Change Horses in the Middle of a Stream” proved popular with voters, especially those serving in the War.

To allow soldiers to vote, many Northern states passed laws allowing for absentee voting in military camps. Some Democratic-controlled states prohibited this practice, so the War Department approved voting furloughs to allow troops to return home to cast their ballot. In that presidential election, Kansas participated for the first time since becoming a state three years earlier.

During World War II, the federal government issued Federal War ballots for service members who had not received ballots from their home states. Congress passed additional legislation to ensure those in the military could vote during the conflicts in Korea, Vietnam and subsequent military actions.

Perhaps the most relevant election to the upcoming 2020 presidential election was the 1918 midterm election. Not only did the United States and the world find itself in the midst of a global pandemic, but the United States had also committed forces to World War I. Candidates prohibited from holding rallies or speaking engagements turned to media coverage in newspapers or mailed out campaign literature. New policies required both voters and poll workers to wear masks. On the East Coast, politicians and public health officials had lifted most restrictions on churches, schools and theaters by early November. Historians assert the election might have been postponed had the United States not taken part in World War I. However, with soldiers fighting across the ocean, many Americans felt it a patriotic duty to vote. Whether Americans will emulate their predecessors remains to be seen, but many state and municipal officials are doing their best to ensure fair and safe voting in November.

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SEPTEMBER 2020 | LAW WISE 5

TERRIFIC TECHNOLOGY FOR TEACHERS

10 of the Most Bizarre Elections in American History

https://www.cnn.com/2015/10/30/politics/interesting-u-s-elections/index.html From CNNpolitics Race for the White House website. This site briefly covers 10 of the more unusual presidential elections in U.S history.

Election and Voting Information

https://www.fec.gov/introduction-campaign-finance/election-and-voting-information/ An informative website sponsored by the Federal Election Commission which has official election results from presidential and midterm elections from 1982 to the present.

Electoral College

https://www.archives.gov/electoral-college/history A brief overview of the Electoral College from the National Archives.

The Electoral College and Popular Vote Explained

https://act.represent.us/sign/electoral-college/ A website sponsored by representUS, a non-partisan organization dedicated to electoral reform.

Electoral Process in the United States

https://www.scholastic.com/teachers/articles/teaching-content/electoral-process-united-states/ A Scholastic website designed for teachers with a wealth of information.

Electoral Systems in the United States

https://www.fairvote.org/research_electoralsystemsus A website from FairVote describing the various electoral systems historically and presently in the United States, including explanations of the strengths and weaknesses of the various systems.

Historical Presidential Elections

https://www.270towin.com/historical-presidential-elections/ Sponsored by 270towin, this website has information on presidential elections through 2016. This site includes maps, results, and brief overviews of the elections.

Memorable Elections

https://www.history.com/topics/us-presidents/memorable-elections From the editors of History.com, a website that explores six memorable presidential elections from 1876 to 2016.

Presidential Election Process

https://www.usa.gov/election A USA Gov website devoted to the election process.

Why Was the Electoral College Created?

https://www.history.com/news/electoral-college-founding-fathers-constitutional-convention From History.com this website has an excellent presentation of the electoral college and why the United States chose this system.

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6 LAW WISE | SEPTEMBER 2020

To Vote or Not to Vote From PBS News Hour Grade Level: 8-12

Estimated Time: Three or four fifty-minute class sessions.

Essential Question

Why is voting an important responsibility for citizens?

Learning Objectives • Analyze the efficacy of messages encouraging people to vote • Examine the history of voting regulation since the Civil Rights Act of 1965 • Analyze voting regulation between the states and the federal government • Analyze the potential power of the Latino vote • Evaluate the importance of voting Overview For many Americans, voting is not a “prime time” event. Less than 60 percent of eligible voters voted in the 2012 general election. Yet, for other Americans, voting is a very meaningful, almost sacred duty. In this lesson, students will view three short films that explore the importance of voting. Each film/activity examines the topic from a different, thought-provoking perspective. Show each film in sequence and follow with the discussion questions or activity provided. Culminate with an activity that revisits students’ initial ideas about the importance of voting.

Materials • We The Voters film “First Time Voters” • We The Voters film “So You Think You Can Vote?

• We The Voters film “Citizen Next” • Copies of Student Handouts: o Handout #1: Importance of Voting Survey o Handout #2: “So You Think You Can Vote?” 3-2-1 Strategy Chart o Handout #3: “Citizen Next” Graphic Organizer Procedure: Day 1: The Importance of Voting Opening Activity: Organize the class into small groups. Distribute Handout #1: Importance of Voting Survey to each group.

Ask them to review several websites that provide reasons for voting (examples are listed on the handout) and complete the chart.

Have students meet as a class and discuss the reasons the websites were effective in encouraging voters to vote.

Film Viewing: Keep students in their small groups and have students watch the We The Voters film “First Time Voters,” more than once if necessary, and then discuss the post-viewing discussion questions below.

Post-Viewing Discussion Questions: Discuss the following questions with students either in small groups or as a whole class.

• What is the main message to José sent by the “Agent of Negativity”?

• What are some of the arguments that José gives in response to the Agent’s claims?

• Explain how any of the following issues mentioned in the film might directly affect you: education; healthcare; immigration; minimum wage, environment, policing, foreign policy?

• The film cites the statistic that millennials are one-third of all eligible voters—83 million people. How might this voting group have a big impact on the next election?

Day 2: Challenges to Voting Film Viewing: Distribute Handout #2: “So You Think You Can Vote?” 3-2-1 Strategy Chart. Then, show “So You Think You Can Vote?” film more than once if necessary. Then organize a “four squares activity” with a quarter of the class in each of four corners of the room. Have students share things they learned from the film and one of their questions about the film’s content with at least two people in the other groups.

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SEPTEMBER 2020 | LAW WISE 7

Bring the class together and have students ask the questions they generated in the second section of the chart and share their most memorable moments of the film.

Day 3: Expanding the Right to Vote Film Viewing: Distribute Handout #3: “Citizen Next” Graphic Organizer and have students watch the film “Citizen Next,” more than once if necessary. Working in small groups, have students complete the handout. To promote good question writing, have students use the summarizing points and their film notes on the organizer to formulate questions they are most curious about. Bring the students/groups back to a whole class discussion after viewing, having students pose their questions to the class.

Article Investigation: To provide students with some background on the potential of Latino and particularly millennial voters, have students read the PBS NewsHour article, “Latino millennials could be major voting bloc—if turnout is high enough.”

Post-Reading/Viewing Discussion Questions After reading the article and viewing the film, have students discuss the following questions either in small groups or as a whole class: • What potential voting power do Latinos have in the United States?

• According to the article, why does the Latino millennial population have the lowest voter turnout—behind African Americans and whites?

• Why might lower voter turnout in key “toss-up states” change the outcome of this election?

• The article was written in January 2016, before each major party had nominated its candidate. How might Latino voters respond to the two current presidential candidates? Have students discuss their preference for the two candidates running for president and their reasons why.

Culminating Activity: Have students return to the opening activity in this lesson where they took the “The Importance of Voting Survey.” Ask students to reflect on what they’ve learned since taking the survey and explain if any of their survey answers would change. Has their initial answer to the question, “What value do you see in voting?” changed? If so, how? If not, why not?

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8 LAW WISE | SEPTEMBER 2020

The Electoral College Lesson Plan From Commensense Education Age Level: Grades 9-12 Suggested Time Needed: 1 Week

Description: By the end of this activity, students will have a better understanding of the Electoral College.

Educational Objectives: After completing this activity, students will: • Students will understand the Electoral College process • Students will be able to describe how the President is elected • Students will be able to explain strengths and weaknesses of the Electoral College Guiding Questions: • Would you believe me if I told you that a person could win the Presidency without winning the popular vote?

• Did you realize it has happened four times? In 1824, 1876, 1888, and 2000.

• How can this happen?

Resources: • Khan Academy Video on Electoral College: http://goo.gl/maARuD • 270towin Website: https://www.270towin.com/ • Google Doc or Microsoft Word document • Win the White House Game: https://www.icivics.org/games/win-white-house Khan Academy Video Guiding Questions: • Is it fair?

• Why do we have this system?

• Do we need this system now?

Activity: Swing States • Using the https://www.270towin.com website, students will explore the margin of victories for these elections looking for states with less than a five percent margin of victory • Students should additionally look for states which have gone back and forth between parties in recent elections • These types of states are known as “swing” states • Students will identify five “swing” states for this assignment to record on their Google or Word document • Have students identify the results of the 2012 election in their “swing” states o Did the election results change? o Why do candidates and parties spend so much money on these states?

Lesson Wrap-Up: • On their Google or Word document, students will reflect upon the most challenging part of the election

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SEPTEMBER 2020 | LAW WISE 9

iCivics Resources for Getting Involved & Taking Action

www.icivics.org

This site provides teachers with free resources that improve students’ civic knowledge, civic attitudes, and core literacy skills.

Fun Learning Opportunities

Engage Your Students with iCivics Games Activity: Win the White House Game • https://www.icivics.org/games/win-white-house • During class students will play this game.

To see all games offered visit www.iCivics.org/games

The KBA also has resources for teachers. Visit: https://www.ksbar.org/page/educator_resources About the Law Wise Editor: Nicolas Shump Nic teaches courses in American Electoral Politics, Design Thinking and Creativity, Film Studies, AP Comparative Government and Politics, AP European History, AP Psychology, AP US Government and Politics, AP US History, and AP World History for Constellation Learning. He also teaches English 110: Introduction to Academic Writing at the University of Missouri-Kansas City (UMKC) where he is a MFA student in Creative Nonfiction.

He is a columnist for the Topeka Capital-Journal and other Gannett Kansas publications. He has served since 2012 as a Discussion Leader for the Talk About Literature in Kansas (TALK) program for Humanities Kansas.

Is Law Wise Helpful to You? We are always open to receiving comments, ideas and suggestions.

Please reply to awoods@ksbar.org .

Please let us know:

• Topics you would like to explore; • Projects and lessons you have developed that you would like us to feature; or • Questions you would like to ask an attorney or judge.

We look forward to hearing from you.

He can be reached at nicshump@gmail.com

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The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

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