Whose are the votes that count?

In the United States, there are elections because of our Constitution. There is political bantering over everything, including whether the U.S. is much of a democracy or not.

But make no mistake, starting from the Declaration of Independence, when Thomas Jefferson wrote, “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed,” the vote has always been important, and who, what, when, where, why and how people vote has always been controversial.

There is no shortage of questions about electoral politics. Speaking with a friend recently, I heard about a supposed plot to steal the election by allowing immigrants to vote. It struck me for both how unremarkable the claim was (complaints about immigrants and illegal immigrants voting are common — Former President Donald Trump and others have complained regularly since 2016), and how ignorant of history such claims are.

Alien suffrage — the voting of non-citizens — was the norm for most of the country for a long time. The practice predates the establishment of the U.S., was common practice until 1926, when it was banned state by state, and was not explicitly prohibited by federal law until the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. State laws for non-federal elections still vary, and there are states where illegal immigrants can vote for local and state offices and referenda.

Then there are the cases about whether states can remove Trump from the ballot. Politics changed after the Civil War. In a nutshell, the arguments being made to keep Trump off the ballot use rules put in place to prevent officials of the Confederacy from attempting to return to elected office, because they could not be trusted to honor sworn oaths.

It is not some liberal conspiracy: In Colorado, six voters — four Republicans and two unaffiliated — brought a lawsuit. The lead plaintiff is a 91-year-old Republican, Norma Anderson, who said, “Our democracy is too precious to let a Donald Trump be president and destroy it.”

It’s easy to forget that Trump v. Anderson is a test of legal principles. Does the 14th Amendment of the Constitution mean what it appears to say, or can legal experts manipulate the language and obfuscate it out of practical application?

The challenge is real. On one hand, we have legal requirements that must balance competing values and principles. On the other, we have clear interests and desires, and people regularly disagree about what they want.

Ideally, we would be able to trust in due process, but the Supreme Court is now stacked. A quick review of several landmark cases in our history showcases the Court’s appalling willingness to allow the prejudicial restriction of rights and freedoms at times, depending on its makeup.

Why should anyone expect fair judicial review from justices who’ve lied about things like reproductive rights?

Our presidential election is a practice unlike any other. Candidates compete for electors, and the candidate who wins the popular national vote may not win the election. Hillary Clinton beat Trump by 2.8 million votes in 2016, but lost the Electoral College vote, and four others have lost the popular vote but won election: John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison and George W. Bush.

More and more, I wonder whose votes count. If you measure voter importance by attention from candidates, you discover a hyper-focus on swing states. It makes sense that candidates spend their time trying to earn the votes of voters who will make the most difference. The closer the polling, the more attention the geography will receive. But safe states receive virtually no campaign attention, and in 2020 there were 33 safe states.

It’s winner-take-all, and it’s good to be a winner. I just fear that this all further drives the polarization that is tearing our social fabric apart.

There are many voices expressing legitimate grievances and fears about a candidate who has declared an interest in being a dictator. It’s worth remembering that when We the People disagree, we can petition the government and force change. If we decide that we want all our votes counted equally, we can demand an end to the Electoral College. If we want to keep insurrectionists off the ballot, we can demand that Congress enforce the 14th Amendment.

People power will always win. But it has to be exercised, not simply left on the table for others to grab.

Wim Laven, Ph.D., syndicated by Peace-Voice, teaches courses in political science and conflict resolution.