American Elections And Litigation
E.J. Dionne Jr., The Washington Post, 31 Oct. 2004
On the eve of an election in a great nation trying to sell the idea of democracy to the rest of the world, it is a scandal that so many Americans are wondering whether judges and lawyers -- not voters -- will decide the outcome. It is a scandal that one side suspects the other of trying to depress turnout in the name of fighting fraud. It is a scandal that all this talk of a disputed election may discourage some voters from going to the polls. It is a scandal that we have taken a basic act of citizenship and turned it into a complicated, litigated, chad-infested, technologically convoluted and anxiety-ridden act.
Voting should be simple. Voting should not be turned into some version of the SAT. Counting votes should not be rocket science. Our goal at home should be the same as it is in developing democracies: to increase participation. A concern over potential fraud should not be an excuse for raising barriers against legitimate voters. Americans of all stripes, regardless of party or ideology, should be able to have confidence in the results.
Blaming the lawyers for our fix is fun and easy, but it's not their fault. The massing of legal warriors in close proximity to polling places is a symptom of the problem, not the cause. Our political system is undergoing a revolution. We are passing from an era of moderate party feeling and relatively low turnouts to a moment of intense partisanship likely to breed higher voter turnouts. Our electoral structure is built for low-intensity conflict, not for high-tech all-out war. We need a system that doesn't make voters feel as if they must dodge subpoenas. We've always had election problems, but we lost our naiveté in 2000.
To understand where we are, we need to understand how we got here. The American electoral system has undergone two great changes in the last century, one democratizing and one not.
The democratizing change was to open voting to previously excluded groups, notably women and blacks. We often forget that while many Western states extended the vote to women beginning in the 1890s, all women didn't get the right to vote until the 19th Amendment in 1920 and African Americans didn't achieve full inclusion until the Voting Rights Act of 1965.
But we also forget the other major change: Restrictive registration rules. Roughly a century ago, many states began developing voting laws designed to limit the participation of the least powerful and least literate members of society, notably including blacks in the South. Michael McGerr, a historian at Indiana University, notes that in the post-Civil War years, before these restrictions came into force, the American system was remarkably open -- as long as you were a man."There wasn't a cumbersome registration system," said McGerr, a proponent of the theory that we're now going through another political revolution.
Often, you didn't have to register at all. You just showed up on Election Day. Some jurisdictions, McGerr notes, even allowed immigrants then coming to America in droves to vote, as long as they declared their intention to become citizens."The system was willing to risk a certain amount of corruption in order to make sure that anyone who had the right to vote did vote," McGerr said."We've made a different tradeoff in the last 100 years. In order to protect against potential corruption, we've made it too hard for the less educated and less well-off to vote."
That's the whole debate in a nutshell. You will hear variations on it this election night if the contest is close. In our time, Democrats are primarily concerned with expanding the vote -- particularly in the inner cities. Republicans worry more about voter fraud, particularly in those traditionally Democratic strongholds.
So we have the spectacle of a Republican secretary of state in Ohio telling local officials to enforce a state law requiring registration applications to be made on 80-pound paper stock (he later relented). We have had allegations and lawsuits over the validity of tens of thousands of new registrations in Florida, Michigan, Ohio and other battleground states. We have GOP challenges to the eligibility of students registered where they attend college, battles over the fate of provisional ballots, arguments over the purging of voter rolls.
And that's before Election Day.
Democrats see a specific strategy in the Republican focus on fraud in urban areas. Dan Trevas, the communications director for the Ohio Democratic Party, said the idea is"to slow up the system so people are back in line, looking at their watches and saying, 'Do I have time?'"
One would like to hope that a president whose central foreign policy claim is that he wants to spread democracy around the world would think twice before winning reelection through complicity with such tactics. Republicans insist that fraud suppression, not voter suppression, is their intention. Shrewd conservatives are already preparing the intellectual groundwork for such arguments. If the election's outcome is in doubt, count on seeing a lot of Republicans brandishing the book"Stealing Elections: How Voter Fraud Threatens Our Democracy," by John Fund, the Wall Street Journal opinion writer.
With party feelings running so high, we just can't afford the sort of mistrust that's created when one party or another is seen as being in effective control of the electoral machinery in a given state or locality. It was a scandal in 2000 that Florida's top election official was a partisan Republican -- chosen by a GOP governor whose brother was one of the candidates -- and that she made all the critical decisions in her party's favor. This did nothing to inspire confidence among non-Republicans. The same critique would apply to a Democratic official in a comparable situation.
Running elections is not one of those sexy subjects in public management schools. I mean no disrespect to hard-working election officials around the country. On the contrary, I have strong affection for them -- my late uncle was a longtime city clerk who cared passionately about accurate results. A number of local election administrators have tried for years to improve the process. But let's face it: Except in places where local political machines wanted to be sure the vote got counted"right," election management has never been a high priority for city, county or state governments -- or their taxpayers.
Turning everything over to professionals and creating uniform national standards is not always the best route for a democracy. But given the enmity that now exists across party lines, I think the alternatives are worse, and we've seen why.
On the eve of an election in a great nation trying to sell the idea of democracy to the rest of the world, it is a scandal that so many Americans are wondering whether judges and lawyers -- not voters -- will decide the outcome. It is a scandal that one side suspects the other of trying to depress turnout in the name of fighting fraud. It is a scandal that all this talk of a disputed election may discourage some voters from going to the polls. It is a scandal that we have taken a basic act of citizenship and turned it into a complicated, litigated, chad-infested, technologically convoluted and anxiety-ridden act.
Voting should be simple. Voting should not be turned into some version of the SAT. Counting votes should not be rocket science. Our goal at home should be the same as it is in developing democracies: to increase participation. A concern over potential fraud should not be an excuse for raising barriers against legitimate voters. Americans of all stripes, regardless of party or ideology, should be able to have confidence in the results.
Blaming the lawyers for our fix is fun and easy, but it's not their fault. The massing of legal warriors in close proximity to polling places is a symptom of the problem, not the cause. Our political system is undergoing a revolution. We are passing from an era of moderate party feeling and relatively low turnouts to a moment of intense partisanship likely to breed higher voter turnouts. Our electoral structure is built for low-intensity conflict, not for high-tech all-out war. We need a system that doesn't make voters feel as if they must dodge subpoenas. We've always had election problems, but we lost our naiveté in 2000.
To understand where we are, we need to understand how we got here. The American electoral system has undergone two great changes in the last century, one democratizing and one not.
The democratizing change was to open voting to previously excluded groups, notably women and blacks. We often forget that while many Western states extended the vote to women beginning in the 1890s, all women didn't get the right to vote until the 19th Amendment in 1920 and African Americans didn't achieve full inclusion until the Voting Rights Act of 1965.
But we also forget the other major change: Restrictive registration rules. Roughly a century ago, many states began developing voting laws designed to limit the participation of the least powerful and least literate members of society, notably including blacks in the South. Michael McGerr, a historian at Indiana University, notes that in the post-Civil War years, before these restrictions came into force, the American system was remarkably open -- as long as you were a man."There wasn't a cumbersome registration system," said McGerr, a proponent of the theory that we're now going through another political revolution.
Often, you didn't have to register at all. You just showed up on Election Day. Some jurisdictions, McGerr notes, even allowed immigrants then coming to America in droves to vote, as long as they declared their intention to become citizens."The system was willing to risk a certain amount of corruption in order to make sure that anyone who had the right to vote did vote," McGerr said."We've made a different tradeoff in the last 100 years. In order to protect against potential corruption, we've made it too hard for the less educated and less well-off to vote."
That's the whole debate in a nutshell. You will hear variations on it this election night if the contest is close. In our time, Democrats are primarily concerned with expanding the vote -- particularly in the inner cities. Republicans worry more about voter fraud, particularly in those traditionally Democratic strongholds.
So we have the spectacle of a Republican secretary of state in Ohio telling local officials to enforce a state law requiring registration applications to be made on 80-pound paper stock (he later relented). We have had allegations and lawsuits over the validity of tens of thousands of new registrations in Florida, Michigan, Ohio and other battleground states. We have GOP challenges to the eligibility of students registered where they attend college, battles over the fate of provisional ballots, arguments over the purging of voter rolls.
And that's before Election Day.
Democrats see a specific strategy in the Republican focus on fraud in urban areas. Dan Trevas, the communications director for the Ohio Democratic Party, said the idea is"to slow up the system so people are back in line, looking at their watches and saying, 'Do I have time?'"
One would like to hope that a president whose central foreign policy claim is that he wants to spread democracy around the world would think twice before winning reelection through complicity with such tactics. Republicans insist that fraud suppression, not voter suppression, is their intention. Shrewd conservatives are already preparing the intellectual groundwork for such arguments. If the election's outcome is in doubt, count on seeing a lot of Republicans brandishing the book"Stealing Elections: How Voter Fraud Threatens Our Democracy," by John Fund, the Wall Street Journal opinion writer.
With party feelings running so high, we just can't afford the sort of mistrust that's created when one party or another is seen as being in effective control of the electoral machinery in a given state or locality. It was a scandal in 2000 that Florida's top election official was a partisan Republican -- chosen by a GOP governor whose brother was one of the candidates -- and that she made all the critical decisions in her party's favor. This did nothing to inspire confidence among non-Republicans. The same critique would apply to a Democratic official in a comparable situation.
Running elections is not one of those sexy subjects in public management schools. I mean no disrespect to hard-working election officials around the country. On the contrary, I have strong affection for them -- my late uncle was a longtime city clerk who cared passionately about accurate results. A number of local election administrators have tried for years to improve the process. But let's face it: Except in places where local political machines wanted to be sure the vote got counted"right," election management has never been a high priority for city, county or state governments -- or their taxpayers.
Turning everything over to professionals and creating uniform national standards is not always the best route for a democracy. But given the enmity that now exists across party lines, I think the alternatives are worse, and we've seen why.