Learning to Count
Why We Need Federal Election Standards
by E. Joshua Rosenkranz
The American Prospect magazine, September 2001
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 a blue-ribbon commission formally known as the National
Commission on Federal Election Reform, headed by former Presidents
Jimmy Carter and Gerald Ford and cosponsored by the Century Foundation
and the Miller Center of Public Affairs at the University of Virginia.
The report did move the ball forward-somewhat. The commission
recognized that the Florida fiasco was not just about dimples
and chads and inconsistent ways to count them. It was about the
disenfranchisement of thousands upon thousands of voters: Voters
who were mysteriously purged from the rolls at the whim of sloppy
partisan referees. Voters who were turned away from the polls
because of inept poll attendants and inaccessible supervisors.
Voters whose ballots were discarded because their voting machines
did not register a clear enough mark. Voters who marked the wrong
candidate, or spoiled their ballots, because of poor ballot design.
And well over half a million citizens in Florida alone-including
one out of four African-American men-who were prohibited 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 the groups that have pressed most vocally for
Every state should adopt a uniform system to register voters
in a statewide database rather than entrusting the task to a gaggle
of local officials who are often inept patronage appointees.
Any voter who cannot be found on the registration rolls on
election day should be given a "provisional" ballot,
which will be counted so long as the voter is later found to be
States should shift to voting technology and procedures reliable
enough to ensure 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 they have served their time.
Election day should be a national holiday, perhaps coincident
with Veterans Day, so that voters are not forced to choose between
voting and going to work.
States should adopt uniform standards for what counts as
All these are important first steps-our elections would be
vastly improved if every state adopted them-and their embrace
by a bipartisan group of the Carter-Ford Commission's stature
will energize the emerging democracy-reform movement. Even President
Bush responded warmly to the commission's recommendations, going
so far as to "recommend the key principles drawn from the
report as guidelines for meaningful reform." White House
Press Secretary Ari Fleischer went even further, promising that
the president would "actively call on the Congress to enact"
the report's recommendations.
Still, the White House's promise was not particularly reassuring-
for two reasons. First, especially when it comes to tinkering
with the rules of elections, there's a long and tortuous road
between proposed legislation and a law. Early signs bode poorly.
The very first vote on an election-reform measure since the fall
follies was mired in partisan wrangling. The bill, authored by
Senator Christopher J. Dodd of Connecticut and sponsored by all
50 Senate Democrats plus independent Senator James Jeffords of
Vermont, would impose minimum standards on the states, including
national standards for vote counting and provisional ballots.
Senator Mitch McConnell of Kentucky, the ranking Republican on
the Senate Rules and Administration Committee, which has primary
jurisdiction over election issues, staged a Republican boycott
of the committee meeting at which Dodd's bill was sent to the
Senate floor. The immediate impetus for the boycott was Dodd's
refusal to schedule discussion on a competing bill proposed by
Senator McConnell and two Democrats, Senators Charles Schumer
o New York and Robert Torricelli of New Jersey.
Procedural wrangling aside, the rift boiled down to a core
disagreement about election standards: whether to make the mandatory
or voluntary. The Dodd bill would mandate the standards, allocation
federal funds to underwrite the costs. The competing bill would
entice states to re form their elections with the lure of federal
The same issue split the Carter-For Commission. The prevailing
faction took the voluntary approach, conditioning grants both
on a state's adoption of standards and on its willingness to match
the federal funds dollar for dollar. One of the commission's two
vice chairs and five o its 15 commissioners dissented from the
final report, protesting the decision to reject mandatory standards.
Therein lies the second reason not t break out the champagne.
The president made it a point to applaud primarily the commission's
premise that "our nation must continue to respect the primary
role of the state, county and local governments in elections....
Our nation is vast and diverse, and our elections should not be
run out of Washington, D.C." In short, states' rights.
Especially in the context of voting rights, it is tempting
to dismiss the states' rights position out of hand as obstructionist.
The states' rights shibboleth, after all, has a shady pedigree,
having been trotted out against the 15th Amendment (which expanded
the franchise to African Americans), the 19th Amendment (women's
suffrage), and the Voting Rights Act of 1965. But the analogy
may be too facile.
States and local governments have historically administered
their own elections, and they jealously guard that prerogative.
Moreover, any tinkering with the machinery and practices for federal
elections inevitably affects scores of state and local elections
held on the same day and using the same ballot. And the breakdown
of the Carter-Ford Committee and the identities of McConnell's
co-sponsors confirm that the dispute isn't purely partisan. On
balance, though, the arguments for mandatory-minimum standards
outweigh the states' rights position.
As a threshold matter, we should get one thing straight: The
states' rights issue is not one of constitutional constraints.
To be sure, the U.S. Constitution contemplated a role for the
states in administering federal elections. Article I, Section
4, states: "The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof." The very next clause,
however, hands Congress the definitive trump card: "but the
Congress may at any time by Law make or alter such Regulations."
So this debate is about policy prescription, not constitutional
The policy argument for mandatory standards begins with the
observation that Florida was hardly unique. Georgia's chief election
officer put it best, reflecting a sentiment echoed by election
officials across the nation: "As the presidential election
drama unfolded in Florida last November, one thought was foremost
in my mind: there but for the grace of God go I. Because the truth
is, if the presidential margin had been razor thin in Georgia
and if our election systems had undergone the same microscopic
scrutiny that Florida endured, we would have fared no better."
Nationally, a recent study by the California Institute of
Technology and the Massachusetts Institute of Technology found
that between four million and six million of the 100 million votes
cast for president last year were not counted. A congressional
study found that voters in low-income, high-minority districts
were more than three times more likely to have their presidential
votes discarded than were voters in high-income, mainly white
ones. In some districts, voters were 20 times more likely to have
their votes thrown out than in others. Almost five million voters
nationwide, about :.3 percent of the voting-age population, were
barred from voting because of felony convictions.
In short, this is an epidemic of national proportions. Moreover,
at stake is a right 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 for the nation.
Just as we insist on national standards for environmental
protection, consumer protection, shareholder protection, food
and drug protection, worker-safety protection, employee protection,
and so much more, we should insist on national standards for election
protection. It simply will not do to rely on 50 state legislatures
and countless local governments to make independent decisions
on whether to accept baseline standards.
That is not to say that we should run our elections out of
Washington, D.C. To the contrary, the Carter-Ford Commission proposal
and the Dodd bill both set very broad standards, leaving almost
all the details to the states. To declare, for example, that an
error rate higher than ~ percent is intolerable, or that registration
rolls must be centrally located, is not to dictate to the states
a mode of registration, a choice of technology, or a method of
Consider the alternative. What if Congress were to pass a
law offering states only financial incentives-say, a one-to-one
match as the Carter-Ford Commission proposes? The kinds of squabbles
that have already marred the congressional proceedings are sure
to erupt in 50 state legislatures, each with its own set of players
jockeying for personal
and partisan advantage. Most of the players will be incumbents,
who are not particularly altruistic when it comes to changing
the rules of the game they've already mastered. And that's especially
true when it comes to rules that expand the electorate. Entrenched
political operatives always prefer a small and predictable electorate
to an expanded, unpredictable one.
Even assuming the purest of motives, though, in the face of
a crisis in our democracy, it is wrong to invite every state to
reduce its solution to economic terms: Are our state dollars better
spent on matching the federal election funds or on building roads,
hiring teachers, or training cops? As Harvard law professor and
Carter-Ford Commission member Christopher Edley eloquently put
it, "'One person, one vote is not a principle for local officials
to trade off against potholes or j ails." Besides, we've
already seen where the states and local governments will place
their priorities in the absence of a federal imperative. States
and local governments spend an estimated $14 billion a year on
garbage disposal, but according to the Caltech-MIT study they
devote no more than $1 billion a year to elections.
Moreover, to pose the solution as a bargain-democracy for
dollars-is to invite states to drop the standards the moment the
federal dollars dry up. And they will dry up; most of the plans
on the table entail an infusion of federal funds over two to five
years, with no guaranteed booster shots thereafter. All this assumes
that Congress appropriates the requisite funds after passing the
reform legislation-a contingency that is far from assured. Congressional
history is littered with the carcasses of far-reaching voluntary
legislation scuttled by a few recalcitrant opponents who work
their will by controlling the purse strings.
This is a rare moment of truth for our democracy. We can throw
money at the states and hope they all reach the right result and
stay the course when public attention dissipates and belts tighten.
Or we can seize the moment and enact sweeping reforms that are
prompt, pervasive, and permanent.
E. Joshua Rosenkranz is president of the Brennan Center for
Justice at New York University School of Law.