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Reducing the Burdens to Voting?

[ 24 ] February 13, 2013 |

I didn’t watch the speech last night. Being in Britain, I was busy sleeping. Indeed, I barely made it through all of Celtic v Juventus, regretfully. Buried towards the end of the speech, at about 51 minutes in, is the initiative to address voting barriers:

In another sign of the election’s lingering shadow, Mr. Obama was creating a bipartisan commission to investigate voting irregularities that led to long lines at polling sites in November. Studies indicate that these lines cost Democrats hundreds of thousands of votes. The commission will be led by the chief counsel of the Obama presidential campaign, Robert Bauer, and a legal adviser to Mitt Romney’s campaign, Ben Ginsberg.

To quote the speech:

Defending our freedom, though, is not just the job of our military alone. We must all do our part to make sure our God-given rights are protected here at home. That includes one of the most fundamental rights of a democracy, the right to vote. Now, when — when any American, no matter where they live or what their party, are denied that right because they can’t afford to wait for five or six or seven hours just to cast their ballot, we are betraying our ideals. So — so tonight I’m announcing a nonpartisan commission to improve the voting experience in America. And it definitely needs improvement. I’m asking two longtime experts in the field — who, by the way, recently served as the top attorneys for my campaign and for Governor Romney’s campaign — to lead it. We can fix this, and we will. The American people demand it, and so does our democracy.

I’m not sure that voting is a “God-given right”; if it is, then He has some work to do regarding the fair representation of His flock, given that the geographic distribution of Cardinal electors in the College of Cardinals makes the malapportionment of the Electoral College appear insignificant in comparison. However it is certainly “one of the most”, if not the most, fundamental rights of a democracy by definition. It doesn’t take a political scientist to figure out that no voting means no democracy.

My sense is that setting up a commission to study a problem is a death warrant (but I’m happy to be shown to be wrong). A brief history since 2000 on such voting commissions certainly does not inspire confidence in fundamental progressive reform, and over at the Election Law Blog the best we can hope for appears to be “modest” pragmatic recommendations. See also this story outlining some Republican Senatorial opposition to the commission, but not for that bit of predictable obvious; rather, for the excellent Senator Ted Cruz quotes.

This reminded me of a piece in The Nation that I meant to discuss last week, before my day job inconveniently intruded, which responded to the stories in the NYT last week about the effect long lines and waiting times might have had on the Democratic share of the vote. It correctly points out that the overwhelming majority of election law is conducted at state level, and barring the 15th, 19th, and 26th Amendments and the VRA:

There is no federal right to vote for Congress to guarantee. I’d be glad to be corrected, but as best I can tell, that means that technically, in almost every case, a state can make it as hard as it wants for its citizens to vote, and there’s practically nothing DC can do about it.

The proposed solution is the Right to Vote Amendment, proposed by then-Rep. Jesse Jackson Jr., which “would solve every last one of our voting problems. (I bet, although you’d have to ask a constitutional lawyer, it would even cover our gerrymandering problem . . .”.  The thing is, it wouldn’t, nor would it address gerrymandering:

SECTION 1. All citizens of the United States, who are eighteen years of age or older, shall have the right to vote in any public election held in the jurisdiction in which the citizen resides. The right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections.

“Regulations narrowly tailored to produce efficient and honest elections” is a green light for Voter ID laws and other selective enhancements in the cost of voting operating under “fraud prevention”.

SECTION 2. Each State shall administer public elections in the State in accordance with election performance standards established by the Congress. The Congress shall reconsider such election performance standards at least once every four years to determine if higher standards should be established to reflect improvements in methods and practices regarding the administration of elections.

Vague. Furthermore, let’s face it: Republicans have been known to control both houses of Congress on occasion, and I’m not sure allowing the present Republican Party to set electoral “performance standards” is in the better interests of democracy.

SECTION 3. Each State shall provide any eligible voter the opportunity to register and vote on the day of any public election.

Most of us can get behind this clause, but the word “eligible” can easily be exploited. This would not prevent the lifetime disenfranchisement for convicted felons, which to my knowledge is the status in both Virginia and Kentucky. Florida used to have lifetime disenfranchisement, then removed it, then restored it in 2011. (Perhaps I should update that lecture again before giving it in a couple weeks). Felony disenfranchisement is generally constitutional, and the 14th Amendment can be read as permissive on the practice.

SECTION 4. Each State and the District constituting the seat of Government of the United States shall establish and abide by rules for appointing its respective number of Electors. Such rules shall provide for the appointment of Electors on the day designated by the Congress for holding an election for President and Vice President and shall ensure that each Elector votes for the candidate for President and Vice President who received a majority of the popular vote in the State or District.

This merely eliminates faithless electors, which while theoretically an issue in the 26(?) states that do not have statutes locking electors into the candidate for whom they are pledged has only occurred eight times since 1948. It does have one pedantic problem: majority. What happens to those electors representing states or districts won only by plurality? Do they just disappear? Presumably before the above text made its way through to 2/3 vote in each house, that wording would be addressed.

What this proposed amendment doesn’t do is “solve every last one of our voting problems”. In terms of progressive reform aimed at reducing the burdens to the act of voting, the only thing this amendment guarantees is same day registration. Period. It doesn’t touch gerrymandering, though it does allow Congress to address this through the provisions regarding electoral performance standards. Given the vagueness of that clause, however, Congress can do quite a bit with that power, both progressive and regressive.

Comments (24)

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  1. MikeJ says:

    You should have gone to sleep after the first three minutes of Celtic-Juventus.

  2. scott says:

    I thought the game was pretty tense until about the last 10 minutes, when it was all over. Those Glasgow fans are louder than I think I’ve ever heard!

  3. RodeoBob says:

    Has anyone seriously looked at making Election Day a national holiday, and checked if that would help turnout?

    It doesn’t even need to be a new holiday; just move President’s Day. Yes, it makes November a bit heavy on the holidays, and the retailers will be annoyed at the calender change, but what’s wrong with this as a serious idea?

    • Richard says:

      Making Election Day a national holiday doesn’t mandate that anybody, other than federal workers, gets the day off. Best solution would be to have voting take place on more than one day, including a Saturday or Sunday or both.

      • NBarnes says:

        This. Also, it should be a federal holiday. But mostly it needs to run over a weekend.

      • RodeoBob says:

        “Making Election Day a national holiday doesn’t mandate that anybody, other than federal workers, gets the day off.”

        There’s no mandate that people should get President’s Day off, or Christmas or Thanksgiving, but a lot of people do get President’s Day as a holiday.

        Making a “new” holiday would mean more resistance from employers to include it on their holiday calendars, which is why I suggested moving Presidents Day. It’s rhetoric, but it’s halfway decent rhetoric at least.

        • chris says:

          There’s no mandate that people should get President’s Day off, or Christmas or Thanksgiving, but a lot of people do get President’s Day as a holiday.

          Except for all the people who don’t — shouldn’t they get to vote too?

          It needs to be multiple days and/or 24 hours to ensure that someone’s work schedule isn’t going to block them from voting.

        • Hogan says:

          a lot of people do get President’s Day as a holiday.

          People who work for non-union government agencies, people who work for banks, and . . . ?

      • Alternately, the US could create an actual statutory holiday, and mandate that people either get the day off, or get paid overtime for working it. I believe that’s how stats work in Soviet Canuckistan, anyway.

        I know, crazy talk, but as long as we’re talking about positive voting reform…

  4. Jameson Quinn says:

    This analysis is way too pessimistic: specifics to follow.

    • Jameson Quinn says:

      “Regulations narrowly tailored to produce efficient and honest elections” is a green light for Voter ID laws and other selective enhancements in the cost of voting operating under “fraud prevention”.

      No. “Narrowly tailored” has a legal meaning. Current voter-id shenanigans disenfranchise hundreds of thousands while preventing dozens of “frauds”, most of which were unintentional. There’s no way that would pass muster.

    • Jameson Quinn says:

      Section 2:

      Vague. Furthermore, let’s face it: Republicans have been known to control both houses of Congress on occasion, and I’m not sure allowing the present Republican Party to set electoral “performance standards” is in the better interests of democracy.

      You have a point, but it could be easily fixed by language that specified that the standards were also to be “narrowly tailored”. The resulting standards wouldn’t always be perfect, but it would be very hard to make them worse than nothing. In fact, they could eventually include the use of improved voting systems, as things like approval voting reduce both spoiled and wasted votes.

      • Jameson Quinn says:

        Though honestly I could do without this section. For amendments, KISS; this will only cement opposition of enough states to sink this.

        • PQuincy says:

          The KISS point is important: a wordy detailed amendment is no more likely to restrain shenanigans than a sweeping one. As administrative history since Mesopotamia shows, more rules simply generate more conflict and more rules. Much of the success (far from complete, to be sure) of the broad protections in the Bill of Rights comes exactly from the fact that they are broad, sweeping (and, to be sure, vague and subject to interpretation). But what lawyers sometimes don’t get is that ALL language is vague and subject to interpretation. Lawyers — American constitutional lawyers in particular –are so in love with their particular theological facility with a special vocabulary that has grown over two centuries that they don’t even see how hermetic, arbitrary, and easy to reinterpret it really is.

          So, if we want a voting rights amendment, it should be broad and clear and strong:

          Section 1: No state, nor the Federal government, shall abridge the right of every adult citizen to vote in all elections in the district where that citizen resides, except for explicit cause as provided by law.

          Section 2: In all states and in the Federal District, voting districts, if used, shall be equal in the number of citizens included, compact, and shall conform in a reasonable manner to the distribution of citizens among regions, counties, and localities.

          Section 3: All states and the Federal government shall provide polling places and times that enable every citizen to vote without hindrance or delay.

          Section 4: The Congress shall have the power to implement these provisions and to provide funds for their implementation.

          Some may say: but the courts will have to decide what “for cause” and “compact” and “reasonable” and “hindrance and delay mean”! We should spell it all out, they might argue, because Scalito and Thomas will distort it otherwise.

          But the courts will have to interpret a more detailed amendment just as much — and the more words there are, the more room for interpretation. “Reasonable” is arguable, but not infinitely extensible. If the Copyright clause had said “reasonable limited times” rather than just “limited times,” I suspect the Mickey Mouse act would have fallen. 1,000,001 years is a “limited” time, after all…but not a reasonable one, I suspect, even for our current right wing justices.

    • Jameson Quinn says:

      Section 3:

      Most of us can get behind this clause, but the word “eligible” can easily be exploited. This would not prevent the lifetime disenfranchisement for convicted felons, which to my knowledge is the status in both Virginia and Kentucky. Florida used to have lifetime disenfranchisement, then removed it, then restored it in 2011. (Perhaps I should update that lecture again before giving it in a couple weeks). Felony disenfranchisement is generally constitutional, and the 14th Amendment can be read as permissive on the practice.

      Have you forgotten section 1 so soon? It’s right above; reread it.

    • Jameson Quinn says:

      As for section 4, you’re entirely right. This would shut down the NPV compact idea, for no useful purpose.

  5. NBarnes says:

    Sen. Sessions: “It wouldn’t bother me that some group of people looked at the problem. But to have the federal government dictate how to handle elections is contrary to our history.”

    Yes, it would be contrary to our history. It’s just that Jeff Sessions is a revanchist confederate who would have been first in line to storm Fort Sumter, whereas I’m a, you know, non-slave holding small-d democrat. So he and I see that history differently.

  6. Dave says:

    Rather than haggle about what general language in an amendment might or not mean, why not pass one to empower Congress to make uniform voting regulations for the whole country, and to extend the powers of the Federal Election Commission to enforce them?

    Maybe it’s pie in the sky, but at least it’s clean, simple, wholesome pie.

    • Hanspeter says:

      What one Congress passes, a future one can take away.

      • Dave says:

        Indeed, but then at the moment, what one Congress passes, the Supreme Court can take away, and those assholes are there for LIFE…

        • Hanspeter says:

          And an amendment can nullify a previous amendment, but both a second amendment and a Supreme Court decision take time to happen.

          If one’s goal is to have better uniform voting rights as the law of the land, telling Congress “to just make it uniform” has 1) very little guarantee that uniform=better, and 2) that even if the original law is better, that doesn’t prevent future Congresses from making it uniformly worse.

          Could an amendment be written such that it would explicitly empower laws written under its authority to have a minimum (or maximum) life span, such that a future Congress within this time frame could not pass a new law overriding it?

  7. Tom Hilton says:

    What, no love for the 24th Amendment?

    Just saying.

  8. Matt says:

    Let the old Confederacy do what they want – then slap them with Section 2 of the 14th and watch their electoral votes disappear…

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