The Case for a Federal Uniform Voting RIghts Act

Note:  This blog originally appeared in my October, 2012 PA Times column.

The Electoral College met on November 17, and formally wrapped up the 2012 elections.  Yet while the results were conclusive, the time is ripe to consider and address the problems with elections administration and voting rights in the USA.
   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 elections 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.  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 the 1964 Reynolds v Sims it declared that the First Amendment established a right to vote in state and local elections.  But to this day, 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 varying 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 specular.
    Over time states have adopting varying practices to franchise or disenfranchise voters.  Despite the passage of the Fifteenth Amendment to grant freed male slaves the right to vote, Jim Crow laws in the south prevented most African-Americans from voting until the passage of the Voting Rights Act in 1966.  Women were denied the right to vote until the Nineteenth Amendment, and various other techniques were deployed by states to limit franchise.
    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 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 a major boom  to voter registration.
    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 witnessed instances of politicized election administration, bad ballot design, and a host of technological 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 witnessed significant allegations of voting irregularity and sloppy administration in Ohio and across the country, and in the last decade a wave of voter Identification election 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, and charges that states continue to set confusing rules up to vote and run elections persist.
    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 field with educational training and requirements.    With uniform standards votes 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.

   

On the Horn(er) of a Dilemma: The Fading Prospects of a Third Party Governor in Minnesota

It looked all so promising only two weeks ago. Momentum and buzz suggested Tom Horner was gaining ground and he had a real chance to be governor. Polls showed strong gains, he was ahead of where Jesse Ventura was in 1998 at this time, and rumor had it he was racking in piles of money. Horner, a former public relations person, also knew how to package his statements for the media. It all looked so good.

However, I think the window of opportunity he had has closed. Why?

First, think about the polls. Two recent polls, one last Friday by Fox 9 and Rasmussen, and then Sunday by the Star Tribune, point in the same direction. In the Fox 9 poll, Horner initially looks good, polling 18%. He gets the same 18% in the Star Tribune Poll. But then Fox 9 throws in “leaners,” asking people who they are leaning toward, and Horner drops to 9%. This is not good news.

If Horner has momentum, he should have more than 18% when the leaners are added. Instead, his 18% is cut in half. When push comes to shove, voters are leaning toward Dayton or Emmer and not Horner. This is a sign of political polarization and not a good sign for a third party candidate.

More bad news. Depending on the poll read, both Dayton and Emmer are holding their bases. About 75-80% of DFLers and GOPers are supporting their candidate. Additionally, the Fox 9 poll shows Dayton grabbing far more of the moderate vote than Horner. The latter is especially troubling for Horner. Both the Fox 9 and Star Tribune polls show 27% and 28% of the state respectively not aligned with either of the two major parties. One cannot assume all of these people are moderates but many are. Horner needs to win his base Independence Party vote (I assume this to be about 8-10%), win the majority of unaligned or unaffiliated voters, and pull disaffected voters from the two major parties. However, the polls do not support that happening.

The simple answer to explain Horner’s fate is that he is no Jesse. Jesse was a politainer, a celebrity politician-entertainer (thus politainer) who could get media attention by just walking down the street. He ran during good times in MN with a $4.5 billion state surplus and 2.2% unemployment. He did not look like Skip Humphrey and Norm Coleman who looked alike and were tired and boring career politicians. Jesse was fresh and plain talking. When he won, as one of my friends once said, it was with 37% of the state giving the major parties the middle finger. Things were going well in the state so what the heck, take a chance.

Now the state is almost $6 billion in the hole and with 7% or so unemployment. Horner looks no different than Dayton and Emmer; all three are political insiders who look and sound boring. Horner gets no instant media attention by who he is. He needs to manufacture it or buy advertising.

Here is the horn(er) of the dilemma. Horner needs media attention to get his message out. He can only do that with money. He can only raise money if he lets people know he is running and what his message is, however he needs money to do that. Horner is trapped in a cycle and he may not be able to get out of it.

But not being Jesse and not having money is only part of the problem. MN’s flirtation with third party politics runs in cycles. Third party candidates do well when the state is economically doing very well or very badly and there is high disenchantment with the major parties. Think Floyd Olson (Farmer-Labor Party elected during prohibition) and Ventura during the flush times of the 90s.

These conditions exist now. But two factors mitigate against a third party now.
First, Florida 2000. The lesson many in MN and nationwide draw from Florida 2000 is that a vote for Nader is a vote for Bush. Both parties learned the message that supporting a third party candidate may help the candidate you least like. That message was again reinforced in the 2006 Franken, Coleman, Barkley senate race in MN.

Second, the 2002 plane crash of Paul Wellstone reinforced the political polarization of that begin with Florida 2000. Prior to the crash third party candidate Tim Penny was leading or tied for lead for governor. After the crash he faded fast and finished a distant third. That crash, chats that Norm Coleman was an accidental senator, the debacle of the Wellstone eulogy, and Ventura’s pouting last year as governor, all came together to end MN’s most recent third party enthusiasm.
All of these factors are suggested in recent Fox 9 Rasmussen polls showing 47% of the electorate less likely to vote for a third party candidate now than in the past.

MN has a polarized electorate. The major candidates are holding their bases. The swings are not swinging to a third party. He has little money to message, and the structural dynamics do not favor a third party candidate in a post Florida 2000 Wellstone plane crash era. Things do not look good for Horner and I think the opportunity to change minds is closing or has already closed.
As it stands, Horner may wind up pulling in no more than the core Independence Party vote, getting numbers similar to what Peter Hutchinson got in 2006.