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How Can We Fix the Constitution?

End the Voting Wars

Take our elections out of the hands of the partisan and the incompetent.

Rick Scott
Florida Gov. Rick Scott

Photograph by Joe Raedle/Getty Images.

This month, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. We have three proposals about campaigns and elections: From Laurence H. Tribe, Heather Gerken, and Richard L. Hasen.

Elections (Article I)

My field is election law, and in this area it’s really easy to come up with a sexy but risky fix that might improve the U.S. Constitution: Abolish the Electoral College. Overturn Citizens United and the flood of corporate money in elections. Establish a national initiative allowing voters to vote directly on legislation instead of going through Congress, making the United States more like California.  I have a change that will sound less sexy but is more needed than all of them: Create an independent, nonpartisan agency to run our federal elections.

The United States is one of the few mature democracies that leaves the rules for counting elections in local hands, and, in a majority of states, that means partisan officials are in charge.  Think about it: We have people running our elections whose ultimate allegiance is not to the integrity of the vote count but to the Republican Party or the Democratic Party. 

So when Florida’s Republican Gov. Rick Scott defends his latest purge of voters as necessary to keep illegal voters from voting, why should we believe he is doing this in the best interest of the integrity of the elections rather than to give Romney and edge over Obama in the perennial swing state? And when Obama’s Justice Department objects to the purge, why should we believe it is acting to preserve voter access to the polls rather than trying to give that edge to Obama?

As I document in my upcoming book, The Voting Wars: From Florida 2000 to the Next Election Meltdown, the fights over election rules, especially over controversial new voter identification rules, have gotten much worse since Bush v. Gore in 2000. In our hyper-polarized society, with its potential for razor-thin election outcomes, many elections are truly up for grabs.  Crowing about voter fraud or voter suppression is a great way to get your people out to the polls and to open their wallets. It’s much easier to make such claims when the foxes get to guard the henhouse—Democrats want to believe that Republican efforts will lead to the suppression of millions of votes, even if the evidence of such large effects is not there. And Republicans are itching  to believe—again without convincing evidence—that felons and noncitizens will sway the election for Obama.

Alongside the problem of partisanship are legion stories of snafus, like that of Kathy Nickolaus, the Waukesha County election official who forgot to include the vote totals from an entire city because she kept the results stored on her personal laptop.  Once she realized her error and included the totals, it flipped the outcome of a state Supreme Court election from Democrat to Republican, giving Republicans a one-vote edge on the bench. To return to the partisanship problem, it didn’t help that Nickolaus is a Republican who used to work for the Republican state legislature, and the Democrat who was supposed to look over her shoulder admitted later that she’s 80 years old and knows nothing about computers. 

Another local mess could have big implications for 2012. In a 2010 election for a juvenile court judge in Hamilton County, Ohio, the local election board decided to count some, but not all, provisional ballots cast by voters in the wrong precinct because of errors by poll workers, including one who sent a voter who lived in a house numbered “798” to the precinct for odd-numbered houses. As Dahila Lithwick explained, in light of this case Ohio Republican legislators want to pass legislation to bar poll workers from helping voters figure out where to cast their votes.  Heaven help us all if the Ohio presidential election comes down to whether wrong ballots like these should be counted.

Enough already.  It is time to move to a system for nonpartisan national election administration.  One form of ballot.  One voting machinery.  An election czar or board nominated by the president and confirmed by a three-quarters vote of the U.S. Senate.  Believe me, anyone who can get through this gauntlet will be sufficiently vetted with a reputation for nonpartisanship. 

Congress probably has the power to establish such a system for running our Congressional elections now, under Article I, Section 4, which allows it to “make or alter” any state regulations establishing the “time, place and manner” for Senate and House elections. But that’s not good enough. A congressional statute establishing such an agency could be reversed, or the agency could be starved of funding. After the 2000 Florida debacle, Congress established the United States Election Assistance Commission to provide advice on best practices for running elections. The agency has never had enough money to function, and now, in the midst of the 2012 elections, all four seats on the commission are vacant.  We need an independent agency with its own budget and powers, much like the Federal Reserve. Article 1, Section 4 should be amended to read:

The time, place, and manner of holding elections for senator and representative, and the place and manner of holding elections for president, shall be established by the U.S. Elections Commission. The commission shall receive adequate funding from Congress. It shall establish rules and regulations for uniform national elections consistent with the goal of ensuring that all eligible voters, and only eligible voters, shall be entitled to cast a vote which shall be accurately counted. The (three) commissioners shall be nominated by the president for 10-year terms, subject to confirmation by a three-quarters vote of the United States Senate. Commissioners shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

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