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 reform.

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 eligible.

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 a vote.

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 funds.

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 command.

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 counting.

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.

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