The Nanyan Observer

The Peking University School of Transnational Law (STL) held two special lectures in November to allow experts share insights regarding the U.S. presidential election with members of their school and the public.

The first lecture was held on Thursday, November 19. To begin the event, STL Dean Philip McConnaughay announced the beginning of the sessions on the 2020 U.S. Presidential Election and warmly welcomed guest speaker Professor James A. Gardner, an expert and author of several books on U.S. election law and electoral politics.

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Professor Gardner has served as the Fulbright Visiting Research Chair in Constitutionalism and Federalism at McGill University, and as the Federalism Scholar in Residence at the European Academy Institute for Comparative Federalism.

Topics discussed in the session mainly included the procedure of the presidential election, laws and authorities regulating elections and the controversy this year surrounding mail-in voting.

Features of US system for electing presidents

According to Professor Gardner, the system is very complex and confusing, even Americans cannot accurately tell how it functions. It is also internally contradictory under modern conditions. Citizens of modern democracies prefer and expect a truly majoritarian system. The US system is not majoritarian, meaning a candidate may win without the majority of votes.

Historical reasons for complexity

First, the framers feared centralized power but also distrusted democracy, so the president is selected by an Electoral College, which they envisioned as a group of intelligent people. Third, public attitudes about democracy have evolved in different directions. As a result, according to Professor Gardner, the Constitutional structure of authority to regulate federal elections is decentralized with shared authority between state and federal.

Laws involved in the election

STL students learned that the states determine qualifications to vote in each state and federal election, like regulating time, place, and manner (TPM) of federal elections.

In the presidential elections, states exert even more power. State legislatures decide how to choose presidential electors under Article II. In the early history of America, many states legislatures appointed electors directly without popular election while by 1832, all but one used popular election.

Due to this state-based system, there are 51 separate elections in all, including the District of Columbia. There is no national-wide vote for any purpose.

After the state election, the process moves on to the Electoral College. In this phase, the selection of the president can be set in most cases. Electors are chosen in each state. They meet and vote for presidential candidate. In principle, they are free to vote whoever they want and report results to Congress.

Pre-election: What rules will apply to the casting of votes?

Voters’ eligibility requires proof of citizenship and voter registration. Conditions of voting for eligible voters require voter ID. In terms of convenience of voting, place and time, Covid measures were taken into consideration.

Selected Q&As with Professor Gardner:

Q: How do you see media’s role in US election? Should media intervene that much?

A: It’s a common misconception even among Americans. In fact, media has no role in who won the election! State reports unofficial results early and media hire experts good at projection to analyze who won. Media do it because viewers like to hear this kind of information. More broadly, media functions as the fourth branch of the government, without whose dissemination democracy can’t be established.

Q: What is the implication of the nomination of the conservative judge Justice Barret if Biden takes the presidency? Also why Biden chose Harris as his candidate for Vice President and partner?

A: I’ll first answer the second question. Biden chose Harris because there’s a tradition in the US: president and vice president have to work as a team. The widest combination attracts the widest votes. In the past, region is an important element, like one from south and one from north. Today it’s not that important. A white man plus a Black woman may be a tactical explanation to your question.

As to the first question, it’s very, very difficult to tell the Supreme Court’s mind. Once judges reach the Supreme Court, they become an independent vote and may not vote what others wish them to vote. Hence, even though she’s in the conservative bloc, it’s very speculative as to her intent to vote.

The Friday Lecture

The second event was held on Friday, November 20.

The four speakers were Ellen Campbell, Assistant Director of Voter Protection in Wisconsin, STL Associate Dean Duncan Alford, STL Professor Mark Feldman, and STL Professor of Practice Man Yunlong.

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Topics included the foreign policy implications of the election, the mail-in ballot controversy and Chinese American voters. 

The first speaker was Ellen Campbell. According to her, voter protection is different among states. For many voters moving from state to state, it’s very complicated. There’s a hot line for citizens to ask questions to volunteers for guidance.

Ms. Campbell argued that this year people really cared about voting, as there was an unprecedented number of people who voted.

STL Associate Dean Professor Duncan Alford followed Ms. Campbell. He focused on three states: North Carolina (NC), South Carolina (SC) and Georgia. In all these three states, you have to register at least 30 days in advance. There are three ways to vote: show up in person, early voting (NC and Georgia allow) and absentee voting (all allow and require a witness). There are different deadlines for absentee voting and also different timelines for the counting of votes. Professor Duncan described the procedural differences in all the three states.

The third speaker, Professor Thomas Man, changed to a different topic: Chinese Americans in the 2020 election. There are 5.2 million Chinese Americans, comprising the largest ethnic group of Asian Americans. This 5.2 million covers not only citizens but also green card holders and people simply living in the US, like students. Only those who are U.S. citizens would be eligible to vote.

Professor Man said, this year, both citizens and non-citizens showed great interest in the election. He provided three reasons for this phenomenon:

First, reaction to Trump’s policy towards China. Trump’s policy is a drastic departure from the past 40-years of US-China diplomatic policy. There is a huge debate in the US both for and against it. Second, Covid-19 strained the US-China relationship, especially the inflammatory rhetoric that Trump used regarding the virus. Third, older generations of Chinese Americans have tended to vote for Republicans, while the younger generation has tended to vote more for the Democrats.

Last but not least, Professor Feldman addressed three international issues after the election. First, short-term engagement. Trade and investment are hard to predict. He believed that the Biden administration shares the same concerns with the Trump administration but their tactics are different. The Biden administration may want to rejoin CPTPP. Second, long-term commitment. For some time, the US will be seen as withdrawing from international agreements. This perception poses a major challenge to Biden. He may take some steps to rebuild relationships. Third, the US-China relationship. Professor Feldman hopes Biden can extend and expand, at least maintain a constructive dialogue because it’s necessary for the two countries to work through challenging issues in a discreet manner, avoiding the media spotlight.

Selected Q&As with the Experts:

Q: Why, so long before the election, did Trump cast doubt on mail-in voting?

Ms. Campbell: Mail-in voting has been used by Republicans before. No problem showed up so Trump’s behavior was just confusing. Absentee voting can be done several ways, by writing, e-mailing or mailing, but you must provide a copy of ID and you need a witness. Both you and your witness must sign. I can’t see how can people fraud.

Prof. Duncan: When voting, you need to provide very personal information, like your birthday, current detailed address, social security number, etc. It’s a complicated process and takes such coordination to change the result.

Q: What’s the rationale for Chinese Americans who support Trump?

Prof. Man: First generation Chinese Americans spoke loud voice to Trump for three reasons. First, their culturally conservative nature made them want to embrace the concept of equality. Second, Chinese parents always look for the best education for their children. They feel diversity programs discriminate against them. Third, some of them disfavor social policies in China. As Trump put forward something to the contrary, they chose him.

Written by Lyu Haipei