Election Administration Reform

I have been reading and thinking about Prof. Spencer Overton's book, Stealing Democracy (see link at left) and what it may take to overcome some of the problems this nation has with voting and elections. To be sure, many of the problems we seem to be "experiencing" are not new, but merely have been highlighted since 2000's Bush v. Gore debacle and subsequent efforts at reform.

But even with laws like Help America Vote Act, we still have many problems, problems that can be solved with a little common sense and some good non-partisan legislation. To that end, there needs to be a two prong approach to changing the way we think about and operate our elections, both federal and state. These legisaltive efforts will require work at both the federal and the state level.

Federal Action
Contrary to popular belief there is no federal right to vote in this country. Election law and constitutional law scholars know this, but not very many average citizens. Sure, most may know about a couple of constitutional amendments about voting, but there is no constitutional grant of a right to vote--only negatives. Such as the 15th Amendment which states the right to vote shall not be abridged on account of race. The 19th Amendment says the right can't be abridged on the basis of sex and the 26th Amendment says that the right to vote for citizens age 18 or older shall not be abridged. Many people think these amendments gave the named groups the right to vote and perhaps they did. But those of us who are 18 year old white men, have no affirmative grant of a right to vote in teh U.S. Constitution.

Furthermore, the much balleyhooed Voting Rights Act does not grant anyone the right to vote. Rather, the law prevents states from denying people the right to vote through changes in the state's election laws. There remains no affirmative grant of a voting right in federal law. The reasons could be many, but that is a matter for another time.

Time has come to address this matter. At the very minimum, Congress could enact legislation giving every U.S. Citizen, over age of 18 the right to vote with a few caveats. The Federal Right to Vote Act, would positively grant, consistent with previously mentioned amendments, the right for all U.S. citizens to vote in federal elections and the elections of the state in which they live.

Now before all the cheering begins, I would like to have a few things included in this law that are just as important. First, in order to register to vote, a person would need to prove their citizenship. the right to vote has always been reliant on citizenship. After all, it is citizenship that defines the difference between those who can and who can't vote. Citizenship can be based on birthright, that is if you are born in the United States or to two American citizens overseas, you are a citizen. naturalization is rather easy to prove since documentation is given at the time of the swearing in ceremony. Once a person is registered in one place to vote, they merely would need to show that registration to another state to have that registration transferred.

Second, in conjunction with the proof of citizenship, proof of identity would be needed. Voter ID is a contentious issue and I can understand the arguments for and against the concept. However, when coupled with a federal right to vote, guaranteed by law, I don't believe that requiring voter ID at the time of voting is too high a price to pay. The presentation of one's voting registration card (which obviously would have to be provided by the state, at no cost, since a fee for the voter registration card could be considered a poll tax and therefore violative of the 24th Amendment) would be required before entering the voting booth.

Presentation of ID and proof of citizenship to register to vote seem to be small prices to pay for a federally guaranteed right to vote. When backed up with the Voting Rights Act and the HAVA, a Right to Vote Act would ensure that there are no barriers to voting for American citizens who take some small measure of time to exercise the most important right--that of the sovereign franchise.

State Actions
Actually, what I envision is a combination of state action and the work of the National Conference of Commissioners on Uniform State Laws (NCCUSL), the people who brought the Uniform Commerical Code and dozens of other uniform state laws, ranging from uniform adoption laws to wage withholding laws, can help bring about a Uniform State Election Administration Law (USEAL) that will eliminate the patchwork of election laws within and between states. Designed to work in conjunction with a federal Right to Vote Act, the USEAL would provide a number of standardized sets of legislative language that would keep election administration in the hands of the states, thus preserving the Constitutional order of elections, but also giving a great deal of commonality across state lines, to ensure the same election laws apply to the entire population.

The rationale for USEAL is that many of the election administration issues facing our country are common to all states. Issues such as ballot design, voting machine technology, recount procedures, early voting, absentee ballots, felon re-enmfranchisement, and other matters are questions that impact all states. A uniform law that governs these matters, with options for states to incorporate differences such as voting technology (optical scan versus touch screen voting, for example) can provide a great deal of consistency.

Some of the features that I envision in USEAL:

• Standards for ballot design, to avoid the fiasco of Florida's infamous butterfly ballot, and to firmly place ballot design into the state administrative law arena so that changes to ballot design could be subject to notice and comment regulations and testing prior to implementation.
• Rules for choosing, purchasing, using and security of voting technology, as well as standardized training procedures for poll workers. USEAL should include optional language for different voting machine technologies that states can choose, with some differences to deal with the different technology.
• Procedures for the administration of absentee ballots for overseas voters, and for those who will not be able to vote on election day, such as rules for early voting, voting by mail, or other method of casting ballots.
• Clearly delineated procedures and practices for initial counts and recounts, including what standards to use for different technologies, time frames for machine recounts, hand recounts, and certification. Given the debate around such issues, having the NCCUSL research and write on this matter alone will give a certain credibility to how votes are counted in this country.
• Rules for felon re-enfranchisement. While the law would require the re-enfranchisement of all felons at teh completion of their sentence, some options would be available for enfranchisement of felons at their release from prison, their completion of probation, or while on probation or parole, or upon completion of their entire sentence including prison time and parole. Upon petition to the court a reinstatemtn of their right to vote would be granted and furhter registration procedures can take place.
• Methods for creation of a non-partisan, professional election administration organization on a statewide level, with responsibilities to include training of poll workers, standards for intrastate administration of elections and other matters that should be administered in a non-partisan fashion to make elecitons as fair as possible.
• Clearly delineated and easily followed rules for getting initiatives and referenda on the ballot
• Rules and procedures for challenging voters, candidates and initiatives/referenda and methods for deciding such cases, such that courts can follow a clearly defined standard, providing consistency in judgments.

This is clearly not a complete list, and I have faith that the NCCUSL, a non-partisan group, can fill out the list with necessary topics. But I believe this list covers most of the major contentions currently littering our election administration landscape.

One matter that should not be included is governmental structures. For example, the USEAL should not say how a county council is elected, whether through at-large districts, or by geographic districts or a combination of the two, whether cumulative voting will be used or not, etc. These are matters than can, and should, be decided by the electorate through the normal legislative process. The purpose of USEAL is to provide for how elections should be administered, not the structure of the government.

Conclusion
Elections, as we all know, are the foundations of our democratic republic. Without properly functioning elections, the legitimacy of government can and should be called into question. Yet for a nation that proclaims itself to be an exporter of democracy, we do a very poor job administering our own elections and our legitimacy as a world democracy can rightly be questioned. By incorporating a federal right to vote and uniform state election administration practices, we can adhere to our Constitutional principals, avoid questions of legitimacy and provide for free, fair elections with laws geared to making sure that no voter is denied the right to vote or have their vote counted.