Monday, November 26, 2012

Why We Need A National Election Law

The current election season has been defiled by the most massive, coordinated, and deceitful assault on the right to vote in our history--and it will continue unless the defenders of real democracy unite to defeat it, once and for all! If this vicious purge succeeds, it will deprive millions of Americans of their most precious right as citizens, especially racial and ethnic minorities, the elderly, the unemployed, the handicapped, the homeless, college students, and those on the lowest rung of the socioeconomic ladder in general. Not coincidentally, these are all voters who lean heavily toward the Democratic side of the ledger. Estimates are that the requirement of photo IDs alone could impact as many as 21 million people. This conspiracy is all the more pernicious because its various components are touted as measures designed to prevent "voter fraud," when, in fact, they constitute the most blatant and breath-taking "voter fraud" ever perpetrated, one that dwarfs even the century-long emasculation of the Fifteenth Amendment by the states of the Old Confederacy--because it is nationwide in scope. Although requiring  photo IDs has received the most publicity, I have already discussed a variety of other subterfuges toward that same end in my posts on voter repression of September 17 ans 27. I would also remind readers of the comprehensive report "The Truth About Voter Fraud" compiled by the Brennan Center for Justice of the New York University School of Law, the one that concludes that the chances of average voter encountering voter fraud are roughly the same as being struck by lightning.

The major reason that this assault did not have a paralyzing effect on the 2012 election is that the Department of Justice  issued temporary stays in South Carolina and Wisconsin, Those reprieves are only temporary, however, and efforts to implement those and similar laws in several other states with solid Republican legislatures and governors will continue. In addition, suppression efforts were countered by the tireless work of the League of Women Voters, the A.C.L.U., the N.A.A.C.P., and numerous other progressive organizations to register voters and to get them to the polls on election day. Even so, there were still widespread instances of voter suppression in several key states on November 6. Thousands of Florida voters were forced to stand in line six hours after the polls officially closed.  Congressional races in Florida, Arizona, Ohio and elsewhere were not officially decided until several days later. Voter ID laws in Pennsylvania caused tremendous confusion resulting in long waits, and causing numerous voters with handicaps, jobs, and child care responsibilities to give up and forfeit their votes. Hundreds of voters in Ohio were told that they were not on the registration lists. New Jersey experienced serious difficulties with their email voting system. Incredibly, voters in Colorado and Pennsylvania were outraged to see their computerized votes changed from one candidate to the other right in front of their eyes. Many inner city precincts in my home town of Racine, Wisconsin, where the voter turnout was an amazing 91 percent, ran short of ballots, causing long waits, lots of frustration, and preventing many people from voting.

Of course, not all of these problems were the result of organized voter suppression campaigns. Even those that were so manipulated were exacerbated by the crazy quilt nature of election regulations and procedures in the various states. Many polling places are inconveniently located and ill-suited to the task. Most jurisdictions rely primarily upon volunteers to staff the polling stations;they have often received only minimal training, and are frequently unaware of the intricacies of election laws. Most of them (including my late mother) are honest, sincere, and civic-minded. They are usually of retirement age and hard-pressed to handle challenges or complaints from overly zealous voters or "poll watchers." They work long hours (sometimes as many as 16), with little or no break time. They are the true unsung heroes of the election process.So far as the average American is concerned, it is astounding how little attention or concern is lavished on the process by which we attempt to govern ourselves..

At least as ominous is the fact that the Supreme Court recently announced it intention to hear a challenge from Shelby County, Alabama to Section 5 of the landmark Voting Rights Act of 1965. That provision requires that nine states with particularly nefarious histories of violating the intent of the Fifteenth Amendment by various subterfuges (i.e. Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia) clear any proposed changes in their voting requirements or procedures with Department of Justice. If any such laws are found to "deny or abridge the right to vote on account of race, color, or membership in a language group," they can be blocked by the DOJ or a federal court in Washington. This provision has been reaffirmed on four separate occasions, with tremendously bipartisan support. Earlier this year, a federal court struck down Voter ID and Congressional redistricting laws on that basis. But the ultra right-wing majority of the Court has steadily narrowed the standard for enforcing the civil rights provisions in the Religious Freedom Restoration, Americans With Disabilities, and Age Discrimination in Employment Act. Significantly, 7 of the 9 states covered by Section 5 have already enacted Voter ID laws or other statutes to make voting more difficult. these will automatically will   go into effect if the Court invalidates Section 5. The Voting Rights Act also provides for a federal Election Assistance Commission to oversee its implementation, but, as incredible as it may seem, none of its four seats are currently occupied.

Taken together, all of these add up to just one logical conclusion: We desperately need a comprehensive national election law, just like a real grown-up country. We should begin by making election day a national holiday--as least as important as Columbus Day or Presidents Day. Doing so would even allow businesses to have another holiday sale. There is absolutely nothing sacred about the first Tuesday in November,any more than there was about March 4th being inauguration day. The problem with that Tuesday--and every other weekday--is that everyone has something else to do: work, school, travel, watch kids, whatever. Setting aside an entire day on which every eligible voter has only one obligation would certainly eliminate just about every possible excuse for not voting. I have thought about making voting mandatory, as it already is in Australia, but that does seem a little too "Un-American."  It has been argued, also, that non-voting is really a form of voting--a kind of "none of the above."
Many countries already vote on Sunday and--given our gigantic geographical and population size--making it an entire weekend might not be too far-fetched.

Borrowing from the voter suppression movement, we could require that every eligible voter have a photo ID card. Only the purpose would be to "franchise" everybody rather than "disenfranchise"  millions. These would, of course be issued by the federal government to every single person who meets the age and citizenship requirements, which are the only legitimate criteria left. Over the years, I have accumulated a drivers license, a Social Security card and a Medicare card. At one point, long, long ago, I even had a draft card. It would have a certain advantage over a drivers license. You wouldn't need to renew it ever so many years; it only expires when you do.It would even satisfy those who are clamoring for a national ID card in order to prove citizenship or legal alien status, although the purpose would again be inclusive rather than exclusive. The initial start-up process might be cumbersome and time-consuming, but, after that, it would just be a matter of adding each newly minted crop of eighteen year-olds. If you change addresses or polling places, the card will take care of providing the only information relevant to registration. I can only think of one potential problem: if the photo is as bad as the one on my drivers license or my passport, I might have to provide additional documentation.  

The most important reason for inaugurating a national election system is to impose some semblance of order on all of the mind-numbing chaos. Simply put, the "election season" is virtually without beginning or end, while the process itself looks like something out of Rube Goldberg. Here it is just two weeks since the 2012 election, and the pundits and talking heads are already speculating about the candidates for the 2016 contest. (For a tongue-in-cheek account that comes painfully close to reality, please read Lionel Trilling's Dogfight:The 2012 Election in 
Verse.)  This latest battle for the Republican presidential nomination that droned on for almost two entire years was somewhere between a "comedy of errors" and the "theater of the absurd."  Although President Obama had no opposition for the Democratic nomination, he spent most of that time fund raising and stockpiling money for the general election. Of course, that saga would not have occurred if we had "real" political parties with "program and discipline." If the parties picked the candidates, rather than the other way around, we could have actually have compressed the "election season" into a relatively few months, just like grown-up nations do. Of course, we would have missed most of the entertainment provided by the Republican nomination process. Imagine how empty our lives would have been without the hilarious antics provided by Perry,Cain, Bachman, Gingrich, Santorum, and "the Donald." What if Mitt had been forced to decide who he wanted to be, without reference to any of his contenders, and before the general election? It might have forced him to resolve his interminable  "identity crisis"

What would be a reasonable time limit for the "election season" and how could we achieve it? I realize that a great many people (especially five Supreme Court Justices and lots of billionaires and corporations) would object to any effort at setting a time frame as a violation of the First Amendment. (If corporations really were "persons" and money really was a form of speech, they might have a point.) Suppose Congress passed a law allowing no primaries, caucuses, conventions, and no political advertising radio in non-election years? I would like to propose a more stringent time limit---say six months prior to the presidential election. Most other advanced nations are a lot more restrictive than that. Having a series of four or five regional primaries spread over the late spring and summer  months, would provide a framework of focus,continuity and progression. Prospective candidates could no longer "cherry pick" the contests in which to participate, and pundits could no longer pontificate about why the results in one state are more significant than those in another.Candidates could all focus their campaigns in the same region of the country at the same time.

Short of that, Congress could establish a nonpartisan federal elections board to maintain a national registration database, mandate standard voting machines, and establish criteria for counting provisional ballots. As the New York Times recently advocated, a law proposed by Representatives George Miller of California and John Lewis of Georgia "would require a clear early-voting period, removing the issue as a political football in states like Florida and Ohio, and standards for absentee voting." Congress could also provide financial incentives, such as grants to states that make registration easy, allowing same-day registration, early voting, absentee voting "on demand," properly training poll workers, and mandating a sufficient number of easily accessible polling places. Seventeen states already already send electronic registration data from motor vehicle departments to election agencies, while ten allow online registration. What's not to like? Isn't everyone's real goal to provide the best means possible for every eligible voter to exercise his or her most basic right of citizenship, regardless of race, ethnicity, age, physical condition, employment status, and living arrangements?

A national voting system might also have two other unintended, but salubrious, results. It would almost certainly  
increase our voter turnout, which is far and away the worst among all of the advanced democracies.There are a lot of different reasons why the 40% don't vote, ranging from the barriers erected against certain categories of potential voters (who almost always would probably vote Democrat) to a "plague on both your houses"  attitude espoused by the most intelligent and sophisticated among us. Even so, it is certain that the profile of millions of those who don't vote fairly closely resembles that of those who are the are the targets of today's voter suppression campaign.. (To hear the pundits and organizers tell it, though, the vast majority of non-voters are some kind of deep thinkers who weigh every twist and turn in the campaign, and only decide whether or not to vote at all, or for whom to vote. Regular voting is a habit of the reasonably well-established; it is almost always  "learned behavior. Some countries actually fine people who fail to vote. A well-conceived and administered national voting system might go a long way to engaging millions of today's non-voters and giving them the incentive to participate on a regular basis. At the very least, it almost certainly wouldn't have the opposite effect.)

The other beneficial effect would be to eliminate a growing practice that harkens back to the Gilded Age, when workers were threatened with the loss of their jobs if they voted "the wrong way." Prior to Citizens United, according to Populist Progressive columnist Jim Hightower, top executives were barred by federal law from using corporate funds "to instruct, induce, intimidate, or otherwise push workers to support particular candidates." Since that ruling, many bosses "openly conscripting employees to be political troopers for corporate-backed candidates." One CEO, David Siegel of Westgate Resorts, sent a letter to each of his 7,000 employees warning them that voting for Obama would "threaten your job," since he would have "no choice but to reduce the size of this company." Another, Dave Robertson, president of the Koch brothers industrial empire, notified 30,000 workers that they would suffer assorted "ills" if Obama were reelected and enclosed a slate-card of Koch-approved candidates. Thanks to the Roberts Court, what has always been more subtly implied can now be blatantly asserted because corporations are people and the savage wielding of their life-and-control over their employees lives is an exercise of free speech. Remember that the Citizens United decision was based largely on the judgment that it would not lead to any serious form of corruption.   

To establish a viable national election system would almost certainly require reaching a consensus about the relative merits of the popular vote versus the electoral vote. Of course, that would open up a contentious "can of beans., but not only is the electoral vote system clearly undemocratic and skewed in favor of the lesser populated states, it is also a time bomb ticking in the Constitution. It is almost certain to go off someday. By my admittedly unscientific calculation, one vote in Montana (3 electoral votes and a population of about 1 million) is equal to around 963 votes in California 55 electoral votes with a population of about 38 million). If that isn't scary enough, most states operate on a "winner-take-all" basis, meaning that a narrow margin of victory gives that candidate the whole enchilada while the loser gets zip, zero,nada. Many authorities believe that replacing winner-take-all with some kind of proportional distribution, either by percentage of the popular vote or by Congressional district, would significantly lessen the gap between popular and electoral votes. but--absent a federal law or constitutional amendment to that effect--each state would have the right to keep the current system or adopt one of the above mentioned alternatives.  

What we have now is both coasts and the Upper Great Lakes (Democratic) versus the other (mostly Republican) states  In the last few weeks before the 2012 election, various commentators expressed concern that both candidates would receive the identical 269 votes, thus throwing the final decision into the House of Representatives. Of course, it is theoretically possible that the popular vote could someday end in a tie, but the odds of that happening with more than 120 million votes--as opposed to 538--are infinitesimally long. Although the elections of 1800, 1824, and 1876 had to be settled in the House, it hasn't happened since, and we had better hope and pray that it never will again.  For the benefit of those who have not yet memorized the Constitution, each state, regardless of population, is allowed just ONE vote. That would exponentially exacerbate the impact of a system that is already in favor of the less populous states. In Baker v.Carr (1964)  a far different Supreme Court mandated the standard of "one man, one vote," and observed that trees can't vote, only people can. With the current Court, you would be wise to put your money on trees. Citizens United absolutely contradicts Baker, but this Court is  substantially the same group of people who handed the 2000 election to George W. Bush.

In the 46 elections held over the past 184 years, the winning candidate in 11 of them failed to win a clear majority of the popular vote. In 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison), and 2000 (George W. Bush), the electoral vote winner did not even receive the most popular votes.  In the first case, the winner was determined by a commission established by the House of Representatives. In the second, Harrison won the electoral vote even though he lost the popular vote to Grover Cleveland. You all know what happened in 2000. Gore won the popular vote and probably the electoral vote as well, but the Supreme Court decided to stop the recount because their candidate was ahead at the time.

Clearly, Citizens United the opening wedge in the most massive and blatant assault ever on democracy itself  According to Charles M Blow in the NYTimes, 24 states will have "unified Republican control," meaning both houses of the legislature and the governor. There can be no doubt that they will try to use that unified control to enact every right-wing nut, tea party obscenity possible. Only a universal nationwide election system can possibly prevent them from turning the future for the next generation and beyond into serfs and indentured servants of the super rich. We progressives need to do all that we can to prevent that--and to counter it with our alternative vision of a future based upon fairness, equal opportunity, and true social security for all    

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