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Election administration is perhaps the most important function performed in the United States. Yet as it has becoming increasingly clear after the 2012 elections, even after all the reforms that have been undertaken in the last 20 years, that the time has come to create a national law to regulate federal election administration in the United States.
The constitutional framers largely left to the states the authority to determine voting eligibility and the administration of elections. Nowhere in the Constitution does it prescribe a right to vote, even for federal offices. Originally senators were chosen by the state legislatures, and the president by the Electoral College and electors were also chosen by state legislatures. Beginning in the 1920s states allowed people to vote for president–or at least choose the electors. The Seventeenth Amendment in 1913 gave the people the right to vote for Senators. In 1941 the Supreme Court in United States v. Classic ruled that Article I, Section 2 of the Constitution gave individuals the right to vote for members of Congress, and in 1964 in Reynolds v Sims it declared that the First Amendment established a right to vote in state and local elections. But to this day, as the Court reminded us in 2000 in Bush v. Gore, there is no right to vote for president and state legislatures could decide to make the direct selection of electors instead of letting voters do that.
But even with these changes, elections are still run as local affairs. States still get to determine eligibility to vote, as well as the time, place, and manner for running elections. Across the country states vary in their voter eligibility and election administration practices, designating often conflicting standards for who gets to vote, the technology used, whether absentee or early voting is permitted, and how ballots are counted and elections run. The result has been far from spectacular.
Over time states have adopting varying practices to franchise or disenfranchise voters. Despite the passage of the Fifteenth Amendment to grant former male slaves the franchise, Jim Crow laws in the south prevented most African-Americans from voting until the 1960s. Women were denied the right to vote until the Nineteenth Amendment, and various other techniques were deployed by states to limit franchise. Stories also abound with election rigging and other administrative irregularities that range from missing ballots to the dead being allowed to vote.
Yet Congress is not without authority to act. While Article I, Section 4 of the Constitution gives states the authority to regulate the time, manner, and place of elections, it also gives Congress the power to make laws to change these regulations, but as the Supreme Court said in Oregon v. Mitchell (1970), that authority extended only to federal elections. The 1965 Voting Rights Act was one of the first modern federal efforts to regulate elections, imposing standards upon specific states that discriminated against minorities. The VRA has largely been a success in extending franchise rights. In fact it is so successful that the Supreme Court this year may well declare portions of it unconstitutional because its need is allegedly past. The 1993 Motor Voter Act was also a major boom to voting, developing processes to encourage state officials to register many individuals such as the poor who might not otherwise do so.
But the 2000 election dispute in Florida changed everything. While the Bush v. Gore case revealed significant problems in application of election official discretion in ascertaining voter intent, the American public came to witness instances of politicized election administration, bad ballot design, and a host of technological failures and other allegations of voter suppression. To remedy some of these problems the 2002 Help America Vote Act made money available to states to upgrade voting technology, and it also established the Election Assistance Commission, yet these changes were not enough. The 2004 elections demonstrated significant allegations of voting irregularity and sloppy administration in Ohio and across the country, and in the last decade a wave of voter identification laws has been imposed in many states, even though the evidence of voter fraud is negligible. Pre-election activity, including in 2012, is marked by litigation and lawsuits, with charges persisting that states continue to set up confusing rules to vote and provide inadequate administrative oversight to running their elections.
The time for federal action is now. The public administration of federal elections and the right to vote should not vary across states. There needs to be uniform rules regarding voter eligibility and qualifications, ballot design, technology, and discretion ascertaining voter intent. A Federal Uniform Voting Rights Act would set national standards for voting and administration of federal elections, thereby effectively defining the standards for state and local ones too. Such a law would perhaps also enhance the professionalization of election administration, moving it away from largely party and partisan control to a field with educational training and requirements. With uniform standards voters could move from state to state and not worry about confusing registration issues, and the concerns about fraud would diminish with the development of national voter databases. Deployment of other national standards for voting machines, or the introduction of new technologies such as Internet voting could bring the administration of elections out of the eighteenth and into the twenty-first centuries.
The ideals of American democracy are too important to be left to the current federalism of election rules and administration. Election laws are the rules that make democracy work and the current rules and practices have demonstrated their inability to serve the important needs they are supposed to address.
David Schultz is a professor in the school of business at Hamline University. He can be reached [email protected]