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The Need for National Election Law Reform

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The 2008 elections saw the largest voter turnout since 1960. More than 60% of those eligible turned out to cast their ballots. It is a testament to the democratic system that has existed for more than 225 years. Nevertheless, before we start patting ourselves on the back, there are several problems that remain. How is it, one may ask, that in Minnesota we still do not have an officially declared winner? In the New York 20th off year election, state election officials have yet to declare a winner. And, not to be forgotten, the 2000 presidential elections that dragged on forever without a true count of all the ballots. The real question here is: "Why have federal officials not addressed these problems in voting methods?" And what is a solution that makes sense.

The main reasons for problems in tabulation are the outdated processes used by the states. Despite the fact that Congress passed a law that would enable the states to update their methods, the very states where the voting irregularities existed in 2000 still remain in 2009. Although, there have been glimmers of improvement, there are still pockets in the various states that remain. As Minnesota in 2008, Ohio in 2004, and Florida in 2000 illustrate, this is not just a problem in the South. Why have things not improved, the answer is simple: No Money. The federal program that supplements the changes in voter tabulation methods is a matching program. This means that in many instances, the states have to match a certain percentage of the cost to update voting technology and the federal government will provide the rest. In a day and age of rising state deficits, state governments have little room for funding these programs. And some states refuse for various ideological reasons to take the federal funds.

Despite the efforts to address the voting technology problems, another problem still remains. The problem consists of more than 51 (including DC) different sets of election laws. This comes as a surprise to my American National Government classes. One would have thought that since that long election nightmare of 2000 the national government would have addressed the problem. Well, since those in power benefitted from the result, one can see where that issue went, in the trash along with 93 proposed bills in 2001 to modify or eliminate the Electoral College. While I am all for its elimination, under current election law, I am weary of such a reform. What is needed at this point is a very boring modification of national election laws. The new laws enacted in 2001 were a step in the right direction. The states now have to provide a provisional ballot when a voter is challenged at the precinct level on his/her eligibility to vote. Instead of in the old days of denying them the vote, they vote on a provisional ballot and their eligibility is determined later. However, the problem that needs to be addressed is the need for National Uniform Election laws for federal officials with a federally mandated, and funded, program to implement one standard voter tabulation method. With such a program, the integrity of the federal ballot could be sustained even with mandatory recounts. I would also advocate the optical scan ballot that has the lowest error rate of all methods, a rate of .03%. There are other methods available, but they do not have this level of accuracy. Even the touch screen method or paper ballots have more than a 1% error rate. Personally, I want a paper trail. The optical scan provides this. In addition, with federal standards, the endless recounts would be considerably decreased. Part of the problem in the Minnesota Senate race was that many areas are still using paper ballots. That and the instructions can be about as clear as rush hour traffic in New York City.

The institution of a Federal Uniform Election law will not eliminate recounts or close races. However, a uniform method of voter tabulation, with a paper trail, will at least show that an attempt to uphold the integrity of the ballot was made. Any reform of the Electoral College cannot succeed if there remain 51 different sets of election laws and voter tabulation methods.  Some states even still have punch cards. It would go a long way to preserving the legitimacy of our democratic system if such laws were enacted. This would also help in addressing problems associated with close races, for example the Minnesota Senate Race of 2008, and the New York 20th Congressional seat of 2009. When candidates are within 1% of each other, the problems inherent in the system are magnified.

One comforting fact is that in Minnesota in 2008 and Ohio in 2004, the courts made a genuine effort to ensure that state election law was followed and voter integrity was sustained. I am sure many will question that. At least Minnesota made the effort to ensure that all ballots were counted. We will never know who actually won the 2000 vote in Florida, despite official returns. That incident should have been the rallying cry for election law change. Instead, it has become an issue whose time appears to have passed. The only solution to Congressional inaction would be a Constitutional Amendment proposed by 2/3 of the states (US Constitution, Article V). This has never occurred, but the various state legislatures could pass a simple bill that would call for a Constitutional Convention  to address the problem. Unlikely as it is, as it has never been done this way, the prospect would at least make the Congress take notice. Until a national set of election laws are enacted for federal elections, the elimination of the Electoral College will not solve the problem of close presidential elections. Until another massive debacle on the scale of Florida in 2000 occurs, the US appears doomed to having 51 state elections held on the same day with continued irregularity in voter tabulation.

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About Georges Clark

  • Baronius

    Georges, very interesting article. I’ve come to believe that the problem isn’t the system; it’s the Democrats. Not liberals, or liberal elites or whatever, but the institutional Democratic Party. I realize that’s inflamatory, but it’s my conclusion based on the facts.

    In 2000, the Dems didn’t accept Bush’s win, and many blamed the butterfly ballots. They said that we all needed electronic voting. A wave of electronic voting systems were developed, and the Democrats disputed their results (when they lost). There was no evidence of tampering, but they complained anyway. In fact, you put the 2004 Ohio results in your list of irregularities despite lack of evidence.

    Democrats seem very content with letting courts resolve elections, though, as with Gregoire in Washington in 2004 and Franken in Minnesota in 2008. In both cases, the courts eventually accepted a Democratic win despite an initial lead for the Republican. In both cases, out-of-state money funded the Democrat’s post-election campaign. On the other hand, Republican John Ashcroft overlooked irregularities in 2000, and accepted the loss.

    I’m not saying that the Democrats have no right to challenge close elections. It’s just that to hear a Democrat tell it, any technology that produces an electoral loss is flawed, and any close election must be challenged until the Democrat is declared the victor.

  • Mike

    I think that this article was not a one sided attempt to flay Democrats. In fact, the Republicans in Minnesota are the ones that are using the tactics described above. Franken won on November 4, and the recount, and in Court. Franken has not challneged Colman’s right to argue in court for a fair election. In fact, Minnesota stated that it had followed all the rules and indeed the 400 or so ballots that were reviewed gave Franken a larger lead.

    The Ohio 2004 results are interesting. There, again, results were investigated and no irregularities were found. The point Georges was making, I think, was that because of the close race in Ohio that year any irregularities were more closely scrutinized. In fact, if Kerry had won in Ohio, George Bush would have been denied his second term, food for thought.

    But all the problems illustrated above are not just Democrats, or in the case of Minnesota, trying to win. They could easily happen to any candidate, and have in BOTH parties. It is not just one party that is challenging the outcomes, its both.

  • Clavos

    Franken won on November 4…

    Actually, initial results showed Coleman with a 200+ vote win, as Baronius points out in #1.

  • zingzing

    the republicans should just keep quiet about this shit, or else we’re going to catch on.

  • Baronius

    Zing, what do you mean?

  • zingzing

    i mean don’t tip your hat.

  • Baronius

    Still not getting it, Zing.

  • zingzing

    that’s the spirit.

  • zingzing

    you know, you might actually be right… this might be a haggard/jones situation. hide behind loud complaint.

  • I guess Baronius is not quite aware of the fact that he makes a blanket indictment of the Democrats, almost to the total exclusion of everything and everybody else, including the political process.

    But I suppose such finer nuances would be lost on someone of his or her rabid and unmitigated ideological stance.

  • Baronius

    Not all of them, Roger. But I’ve watched politics long enough to notice that one side tends to fight harder than the other. That’s also an indictment of those Republicans who think it’s noble to thwart the voters’ wishes by failing to challenge fraud.

  • No problem, Baronius,

    As long as you’re being fair-mined and are willing to see fault wherever it may lie, I have no difficulty with that.

    I’m just naturally skeptical of humans in general, regardless of their profession or party affiliation. Fraud, graft and abuse should always be challenged, especially when it manifests itself in our public servants.

  • mvymvy

    The major shortcoming of the current system of electing the President is that presidential candidates concentrate their attention on a handful of closely divided “battleground” states. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided “battleground” states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 “battleground” states. Similarly, in 2004, candidates concentrated over two-thirds of their money and campaign visits in five states and over 99% of their money in 16 states.
    Two-thirds of the states and people have been merely spectators to the presidential elections. Candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. The reason for this is the winner-take-all rule enacted by 48 states, under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state.

    Another shortcoming of the current system is that a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in one of every 14 presidential elections.

    In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected (and, of course, in 2000, did elect) a presidential candidate who lost the popular vote nationwide.

  • mvymvy

    The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote would be politically relevant and equal in presidential elections.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The Constitution gives every state the power to allocate its electoral votes for president, as well as to change state law on how those votes are awarded.

    The bill is currently endorsed by 1,512 state legislators in 48 states.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado– 68%, Iowa –75%, Michigan– 73%, Missouri– 70%, New Hampshire– 69%, Nevada– 72%, New Mexico– 76%, North Carolina– 74%, Ohio– 70%, Pennsylvania — 78%, Virginia — 74%, and Wisconsin — 71%; in smaller states (3 to 5 electoral votes): Delaware –75%, Maine — 71%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Rhode Island — 74%, and Vermont — 75%; in Southern and border states: Arkansas –80%, Kentucky — 80%, Mississippi –77%, Missouri — 70%, North Carolina — 74%, and Virginia — 74%; and in other states polled: California — 70%, Connecticut — 73% , Massachusetts — 73%, New York — 79%, and Washington — 77%.

    The National Popular Vote bill has passed 26 state legislative chambers, including one house in Arkansas, Maine, Michigan, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island,, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes — 19% of the 270 necessary to bring the law into effect.

  • mvymvy

    What the Founding Fathers said in the U.S. Constitution is “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    Neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    In 1789, in the nation’s first election, the people had no vote for President in most states, it was necessary to own a substantial amount of property in order to vote.

    In 1789 only three states used the winner-take-all rule.

    There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The winner-take-all rule (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.

    As a result of changes in state laws, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the winner-take-all rule is used by 48 of the 50 states.

    The normal process of effecting change in the method of electing the President is specified the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.

  • mvymvy

    The U.S. Constitution does not require that the election laws of all 50 states are identical in virtually every respect. The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons “within its jurisdiction.” The Equal Protection Clause imposes no obligation on a given state concerning a “person”in another state who is not “within its [the first state’s] jurisdiction.” State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.

  • U.S Constitution looks very complicated to me.. specially the Fourteenth Amendment.. And as the founding Fathers of America allowed states to conduct elections in so many ways that we can imagine what to expect! Find out More: Mayflower Compact | Ulysses S Grant Facts | Abraham Lincoln Facts