US Election 2020: Three ways our electoral system can be improved

A Trump supporter protests outside the Pennsylvania Convention Centre in Philadelphia, one of the most watched mail-in ballot counting locations. Picture: AFP

Donald Trump has rightly been criticised for his tirade against the running of the US election. He has failed to provide any evidence of fraud or corruption. This, though, masks deeper problems with the US electoral system. It has been apparent for many years that the method of choosing the president is flawed. US electoral processes are unfit for the nation’s status as the world’s leading democracy. Its elections are marred by mass disenfranchisement and the partisan division that defines so much of American society.

US presidential elections are conducted according to the diverse and sometimes idiosyncratic rules in each of the 50 states and District of Columbia. There are many weak points that in a close election can prove decisive. This occurred in the 2000 presidential election between George W Bush and Al Gore.

That race came down to the result in Florida, which in turn depended on a small number of disputed votes from punch-card machines. Unfortunately, these machines were poorly designed. They resulted in unclear votes by detaching only part of the ballot paper to produce “hanging chads”. The counting of these votes reached the US Supreme Court, which held that there should be no recount. This handed Florida to Bush by 537 votes, and so the presidency.

These problems can too easily occur. The integrity of the system is further undermined by political appointments to electoral bodies and laws that manipulate electoral rules for political gain. The US is littered with examples of districts being redrawn to maximise a party’s vote and produce a gerrymander. Voter suppression is also widespread through strict identification requirements at polling booths, restrictions on voter registration and the purging of millions of voters from electoral rolls. It is all too common for Americans to arrive at the ballot box only to find that they have been removed from the roll without their knowledge.

The impediments to voting are so numerous that it is no surprise that the courts are often involved in scrutinising US election results. This has created a further problem as litigation has become increasingly common in close contests. As occurred in 2000, it means that judges will be too often seen as deciding the outcome.

It is easy to watch the US election from afar and feel profound gratitude for the strengths of Australia’s electoral system. Our federal parliament is chosen by a single, national voting system administered by an independent electoral commission. The electoral process and commission have earnt the respect and support of all major parties, and litigation on electoral matters is rare.

We can be especially proud of having a system designed to maximise participation. This is reflected in the requirement for compulsory voting whereby every enrolled person must attend the ballot box. The effectiveness of our system was evident at last year’s federal election. At that poll 97 per cent of eligible Australians were enrolled to vote, with 92 per cent turning out to do so.

The rise in enrolment and voting is most prominent in young people aged between 18 and 24. In this age group, 88.8 per cent were enrolled to vote, compared to less than 75 per cent in 2011. All up, 2019 marked the largest and most complete federal election in our history. It was also notable that, despite suffering an unexpected loss, the Shorten Labor opposition took the result on the chin by accepting the verdict of the people and the integrity of the process.

It is a mistake to be complacent about the qualities of our electoral system, especially when compared to the US. The health of our democracy depends on vigilance and a willingness to make ongoing improvements to the system. The US experience demonstrates three areas in which our electoral system demands reform.

Australia’s rules for regulating donations and political expenditure are broken. Money plays too large a role in affecting results and distorting policies. Billionaires can shift outcomes through saturation advertising, and political parties are so dependent on large donors that they offer special access and the potential for favourable policy outcomes.

Second, like the US, Australia has moved to a system where large numbers of people cast their ballot in the weeks before election day. Pre-poll voting makes sense, but the system is poorly designed and means that many people cast a vote early in the campaign before policies have been released. They can even vote for candidates who have been disendorsed by their party by election day. Pre-poll voting is here to stay, but the system needs a major rethink.

Finally, it has become increasingly apparent that elections around the world are vulnerable to the spread of misinformation, including by hostile foreign actors. The law needs to catch up by preventing the dissemination of material that is demonstrably false. Truth in advertising laws are already in operation in South Australia and the ACT and should be adopted federally. The law should not concern opinion or contestable material but should stop those who seek to manipulate the community by knowingly spreading lies.

George Williams is a deputy vice-chancellor and professor of law at the University of New South Wales.