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.