The electoral circus in Florida shined a klieg light on the need to overhaul our elections across the nation. The debacle yielded a chorus of reform pledges from politicians. As if to prove they meant it, they introduced enough bills to level a small forest: at last count, more than 1,500 in state legislatures and dozens in Congress. Nine months later, all this activity has borne only three state laws that could even purport to be overhauls--and a leaning tower of commission reports. The slow pace of progress is a powerful argument in favor of passing a federal law that imposes basic reforms on the states.
The most prominent report is one issued a couple of weeks ago by ablue-ribbon commission formally known as the National Commission on FederalElection Reform, headed by former Presidents Jimmy Carter and Gerald Ford andco-sponsored by the Century Foundation and the Miller Center of Public Affairs atthe University of Virginia. The report did move the ball forward--somewhat. Thecommission recognized that the Florida fiasco was not just about dimples and chadsand inconsistent ways to count them. It was about the disenfranchisement ofthousands upon thousands of voters: Voters who were mysteriously purged from therolls at the whim of sloppy partisan referees. Voters who were turned away fromthe polls because of inept poll attendants and inaccessible supervisors. Voterswhose ballots were discarded because their voting machines did not register aclear enough mark. Voters who marked the wrong candidate, or spoiled theirballots, because of poor ballot design. And well over half a million citizens inFlorida alone--including one out of four African-American men--who wereprohibited from voting because of a past felony conviction.
Thankfully, the commission did not pursue a purely technological fix.Listed below are some of its recommendations, most of which top the agenda of thegroups that have pressed most vocally for reform.
Every state should adopt a uniform system to register voters ina statewide database rather than entrusting the task to a gaggle of localofficials who are often inept patronage appointees.
Any voter who cannot be found on the registration rolls on election day shouldbe given a "provisional" ballot, which will be counted so long as the voter islater found to be eligible.
States should shift to voting technology and procedures reliable enough toensure that no more than 2 percent of votes are rejected because of voter error,misleading ballots, or equipment failure.
States should not bar citizens with felony convictions from voting once theyhave served their time.
Election day should be a national holiday, perhaps coincident with VeteransDay, so that voters are not forced to choose between voting and going to work.
States should adopt uniform standards for what counts as a vote.
All these are important first steps--our elections would be vastlyimproved if every state adopted them--and their embrace by a bipartisan group ofthe Carter-Ford Commission's stature will energize the emerging democracy-reformmovement.
Even President Bush responded warmly to the commission'srecommendations, going so far as to "recommend the key principles drawn from thereport as guidelines for meaningful reform." White House Press Secretary AriFleischer went even further, promising that the president would "actively call onthe Congress to enact" the report's recommendations.
Still, the white house's promise was not particularly reassuring--for tworeasons. First, especially when it comes to tinkering with the rules ofelections, there's a long and tortuous road between proposed legislation and alaw. Early signs bode poorly. The very first vote on an election-reform measuresince the fall follies was mired in partisan wrangling. The bill, authored bySenator Christopher J. Dodd of Connecticut and sponsored by all 50 SenateDemocrats plus independent Senator James Jeffords of Vermont, would imposeminimum standards on the states, including national standards for vote countingand provisional ballots. Senator Mitch McConnell of Kentucky, the rankingRepublican on the Senate Rules and Administration Committee, which has primaryjurisdiction over election issues, staged a Republican boycott of the committeemeeting at which Dodd's bill was sent to the Senate floor. The immediate impetusfor the boycott was Dodd's refusal to schedule discussion on a competing billproposed by Senator McConnell and two Democrats, Senators Charles Schumer of NewYork and Robert Torricelli of New Jersey.
Procedural wrangling aside, the rift boiled down to a core disagreementabout election standards: whether to make them mandatory or voluntary. The Doddbill would mandate the standards, allocating federal funds to underwrite thecosts. The competing bill would entice states to reform their elections with thelure of federal funds.
The same issue split the Carter-Ford Commission. The prevailing faction tookthe voluntary approach, conditioning grants both on a state's adoption ofstandards and on its willingness to match the federal funds dollar for dollar.One of the commission's two vice chairs and five of its 15 commissioners dissentedfrom the final report, protesting the decision to reject mandatory standards.
Therein lies the second reason not to break out the champagne. The presidentmade it a point to applaud primarily the commission's premise that "our nationmust continue to respect the primary role of the state, county and localgovernments in elections... . Our nation is vast and diverse, and our electionsshould not be run out of Washington, D.C." In short, states' rights.
Especially in the context of voting rights, it is tempting todismiss the states' rights position out of hand as obstructionist. The states'rights shibboleth, after all, has a shady pedigree, having been trotted outagainst the 15th Amendment (which expanded the franchise to African Americans),the 19th Amendment (women's suffrage), and the Voting Rights Act of 1965. But theanalogy may be too facile.
States and local governments have historically administered their ownelections, and they jealously guard that prerogative. Moreover, any tinkeringwith the machinery and practices for federal elections inevitably affects scoresof state and local elections held on the same day and using the same ballot. Andthe breakdown of the Carter-Ford Committee and the identities of McConnell'sco-sponsors confirm that the dispute isn't purely partisan. On balance, though,the arguments for mandatory-minimum standards outweigh the states' rightsposition.
As a threshold matter, we should get one thing straight: The states' rightsissue is not one of constitutional constraints. To be sure, the U.S. Constitutioncontemplated a role for the states in administering federal elections. Article I,Section 4, states: "The Times, Places and Manner of holding Elections forSenators and Representatives, shall be prescribed in each State by theLegislature thereof." The very next clause, however, hands Congress the definitivetrump card: "but the Congress may at any time by Law make or alter suchRegulations." So this debate is about policy prescription, not constitutionalcommand.
The policy argument for mandatory standards begins with the observation thatFlorida was hardly unique. Georgia's chief election officer put it best, reflectinga sentiment echoed by election officials across the nation: "As the presidentialelection drama unfolded in Florida last November, one thought was foremost in mymind: there but for the grace of God go I. Because the truth is, if thepresidential margin had been razor thin in Georgia and if our election systemshad undergone the same microscopic scrutiny that Florida endured, we would havefared no better."
Nationally, a recent study by the California Institute of Technology and theMassachusetts Institute of Technology found that between four million and sixmillion of the 100 million votes cast for president last year were not counted. Acongressional study found that voters in low-income, high-minority districts weremore than three times more likely to have their presidential votes discarded thanwere voters in high-income, mainly white ones. In some districts, voters were 20times more likely to have their votes thrown out than in others. Almost fivemillion voters nationwide, about 2.3 percent of the voting-age population, werebarred from voting because of felony convictions.
In short, this is an epidemic of national proportions. Moreover, at stake is aright we each claim as a citizen of the United States. And as Florida showed us,the electoral rules and practices of one state can have profound ramifications forthe nation.
Just as we insist on national standards for environmental protection, consumerprotection, shareholder protection, food-and-drug protection, worker-safetyprotection, employee protection, and so much more, we should insist on nationalstandards for election protection. It simply will not do to rely on 50 statelegislatures and countless local governments to make independent decisions onwhether to accept baseline standards.
That is not to say that we should run our elections out of Washington, D.C. Tothe contrary, the Carter-Ford Commission proposal and the Dodd bill both set verybroad standards, leaving almost all the details to the states. To declare, forexample, that an error rate higher than 2 percent is intolerable, or thatregistration rolls must be centrally located, is not to dictate to the states amode of registration, a choice of technology, or a method of counting.
Consider the alternative. What if Congress were to pass a law offering statesonly financial incentives--say, a one-to-one match as the Carter-Ford Commissionproposes? The kinds of squabbles that have already marred the congressionalproceedings are sure to erupt in 50 state legislatures, each with its own set ofplayers jockeying for personal and partisan advantage. Most of the players willbe incumbents, who are not particularly altruistic when it comes to changing therules of the game they've already mastered. And that's especially true when itcomes to rules that expand the electorate. Entrenched political operatives alwaysprefer a small and predictable electorate to an expanded, unpredictable one.
Even assuming the purest of motives, though, in the face of a crisis in ourdemocracy, it is wrong to invite every state to reduce its solution to economicterms: Are our state dollars better spent on matching the federal election fundsor on building roads, hiring teachers, or training cops? As Harvard law professorand Carter-Ford Commission member Christopher Edley eloquently put it, "'Oneperson, one vote is not a principle for local officials to trade off againstpotholes or jails." Besides, we've already seen where the states and localgovernments will place their priorities in the absence of a federal imperative.States and local governments spend an estimated $14 billion a year on garbagedisposal, but according to the Caltech-mit study they devote no more than $1billion a year to elections.
Moreover, to pose the solution as a bargain--democracy for dollars--is toinvite states to drop the standards the moment the federal dollars dry up. Andthey will dry up; most of the plans on the table entail an infusion of federalfunds over two to five years, with no guaranteed booster shots thereafter. Allthis assumes that Congress appropriates the requisite funds after passing thereform legislation--a contingency that is far from assured. Congressional historyis littered with the carcasses of far-reaching voluntary legislation scuttled bya few recalcitrant opponents who work their will by controlling the pursestrings.
This is a rare moment of truth for our democracy. We can throw money at thestates and hope they all reach the right result and stay the course when publicattention dissipates and belts tighten. Or we can seize the moment and enactsweeping reforms that are prompt, pervasive, and permanent.
