Posted by: sternenfeeinflorida | 1 November 2010

Election Day

Tomorrow is election day and I’m actually anxiously awaiting the results. I’m hoping for more peace and quiet, as well as effective governing. I know that this is probably wishful thinking but as Americans head to cast their vote tomorrow (unless they already mailed in their ballot), I decided to post part of a homework assignment I had to complete a few weeks ago.

I know that I’m not telling Americans anything new but some of my foreign readers would like some more insight into the political system of the United States.

The United States of America are deemed a federal country although neither the separation of power nor the states sovereign immunity are expressly written in the constitution but are result of case law (Merrill, 2010).

The separation of power into a legislative, an executive and a judicial branch is supposed to ensure the distribution of power, competition between the branches and guarantee that neither branch oversteps its boundaries and ventures into the territory of one of the other branches (Williams, 2009). However, this desired competition between the branches is often thwarted by competition between the two predominant parties, depending on the majorities in the legislative and executive branches. As a result, whenever the legislative and executive majorities lie within the same party, there is a lack of competition between the branches and the government is able to pass ambitious legislation with a majority among party lines. At the same time, more policymaking authority is delegated to the executive branch (Levinson & Pildes, 2006). The minority party has few tools to create a balance in the policymaking process when the government is unified. One is to filibuster legislation, which is essentially nothing more than a stalling tactic (Carlson, 2010). The other option that promises some balance is the use of the Government Accountability office to request an investigation or report. Nevertheless, unified governments are a serious threat to the separation of power (Levinson & Pildes, 2006).

On the other hand, however, if the majorities are divided the government is more susceptible to deadlocks if the level of partisanship is high. However, divided governments tend to provide more inter-branch accountability and greater independence of the judicial branch. A divided government can therefore restore the competition between the branches as the separation of power demands (Levinson & Pildes, 2006).

While federalism dictates the share of power between a national and state governments, the constitution failed to outline specific areas in which the states have sovereignty. As a result legal differences between the states continue to exist and Enercon GmbH will have to look at each state, it plans to do business in, individually (Gerlat, 2004).

The legal system in the United States is dominated by the common law system. This means that although statutes and codes exist, the courts rely on precedent cases for their decisions. Only the State of Louisiana uses the civil law system (The Judicial System, 1996).

The court system differentiates between federal and state courts. Whether a matter is handled by a federal or a state court depends on the nature of the matter and the jurisdiction. Federal courts only have jurisdiction over matters concerning the constitution, U.S. laws and any treaties made under the authority of the U.S. (United States Courts, n.d.).

One aspect that might require the need for more in-depth ethical evaluation is the fact that capital punishment is still allowed in 37 states, as well as the federal courts (Elliot & Marquis, 2007). There is an active debate whether or not justice can be done with the death penalty and Enercon, GmbH will need to decide whether or not business in a country that allows the death penalty violates its code of ethics (Roko, 2010).

The constitution grants the right for a jury trial in civil and criminal matters. The jury system aims to guarantee a just and fair verdict (Campbell, 2010). The 6th Amendment further requests the jury to be impartial, meaning that they are able to evaluate and interpret the evidence presented, without prejudice (Schreiber, 2010).

The judges in the United States are either appointed or elected, depending on the court. The president appoints federal judges but requires the approval of the Senate (Judge, 2002).

A question arises about the impartiality and independence of state judges. Since most state judges are elected, their impartiality could be tainted, as election campaigns, even for judges, require a large amount of donations. Special interest groups who donate to a judge’s election campaign contribute to growing distrust in the independence and impartiality of an elected judge (Lamm, 2010).

For the impartiality and independence of the court it is important that judges are held to high ethical and moral standards. This is guaranteed in a state’s judicial code or, in the case of federal judges, through the Judicial Conference (Menzel, 2007). Additionally, it must be understood that judicial independence lies within the ability to judge in the best interest of the law, without external pressures or political obligations (White, 2002). It can therefore be derived that the legal system in the United States is largely impartial and independent, although concerns remain.

While the elections in the United States could be considered free and fair in the sense that any eligible citizen can technically run for office, there are some serious concerns that should not be overlooked (Elections, 1999).  In the United States, people who would like to participate in the elections have to register and provide proof of their citizenship (Goldemund, 2010). North Dakota is the only state that doesn’t have this obstacle (Alvarez, R. M., Hall, T. E. & Llewellyn, M., 2007). Although the prospective voter has to be at least 18 years old, the laws regarding voter registration and elections vary from state to state further complicating the process (Weissenberger, 1996). While voter registration aims to prevent election fraud, it also prevents many legitimate voters from voting (Scherer, Covington & Curry, 2008). Some states have open primary elections that allow non-partisan members to vote for any candidate, while other states have closed primary elections that extend this right only to registered party members and limit their vote to the party they are registered under (Levinson & Pildes, 2006).

The use of the electoral college to determine the president poses another threat to free elections. The electoral college consists of the equal number of senators and representatives of each state. Since the selection process of the electors falls within the states’ legislature, the states can impose their own will on the electoral college (England, 2010). The fact that in 24 states the electorates are not legally bound to cast their vote for the candidate that won the popular vote in their state and in 6 other states the electorates are bound to vote according to their party affiliation regardless of popular vote, poses further questions on the freedom of presidential elections (U.S. National Archives and Records Administration, 2000). Additionally, the deeply-rooted two-party system and the electorate college instantly nullify the chances of a third-party candidate to win the presidential election (Colquitt, 2008).

I hope you enjoyed this post and to my American readers, go out and vote, even though your vote doesn’t always count.

 

 

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Responses

  1. Nice report, Sunje!

    One thing that I think has to be understood when discussing the American federal set-up, is that it was not designed with political parties in mind. The Electoral College system was meant to be that people would choose a local representative to send to a conference to debate, discuss, and choose the best man in the country to be president. It is only 200 years of “tradition” that all the Electors are expected to cast their votes for whichever party’s presidential candidate wins the most votes in that state.

    • Yes, I read that, too, but unfortunately Electors aren’t necessarily bound by the most votes for a presidential candidate, in quite a few states, they are bound by their party affiliation, which is quite a scary thought, too!


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