Several years ago in an interview with the original Commissioners of the US Election Assistance Commission, I made the assertion that there is no such thing as a “federal election.” After a few moments of stunned silence, Buster Soares, the Chair of the Commission, asked me to explain what I meant- which I did. Later in the interview, he again returned to my assertion and asked what the implications were to my argument.
I have been reminded of this exchange by the recent discussion of federal actions to address the perceived election issues from the past 2012 election. The role of the federal government in election reform has always been contentious. The reason for controversy lies in the evolution of the popular view of our federal form of government. Americans today see the United States as a single nation, a unitary actor, which is (or should be) governed by a leader popularly elected by all the citizens of the nation.
When inconsistencies between laws, practices and systems between states and local jurisdictions are revealed during an election, the public perceives sloppiness, mismanagement and even malfeasance. The Electoral College notwithstanding, shouldn’t all Americans have an equal opportunity to elect their President? Obviously, the solution is for Congress, the President or the courts to mandate technical and uniform standards for federal elections so that everyone elects the President the same way.
A person in Florida shouldn’t have to wait in line to vote any longer than a person in Kansas, right? Why should a voter in Oregon be forced to vote by mail when in Nevada a voter can vote early at lunchtime at their workplace or when a voter in Virginia must appear in person at the polls to vote? Why should a provisional ballot cast in Washington State be counted when the provisional ballot of a voter from Ohio in the same circumstance is not counted? Why should a voter in Arizona be compelled to produce valid photo identification to vote and another voter in California be allowed to vote without identification? Why should counties in Utah audit their electronic voting machines using a paper audit trail and counties in Georgia, using the same voting system, not be required to create a paper record of votes? These questions only have relevance when there is an assumption of a “federal election”, a national election conducted on a common date.
My answer to the Commissioners was that, in reality, there are 50+ state elections conducted on the same day but using different laws and regulations for federal, state and local offices. Our system of federalism, rather than a national form of government (or as Madison describes it in Federalist 51- our compound republic), intentionally diffuses power between states and the federal government and establishes an elaborate system of checking and balancing power. The methods of electing persons to federal office (House, Senate and President) in the Constitution were created to be part of the balancing mechanisms. The Federalists, in advocating for ratification, argued that the Constitution did not create a national government but a federation of sovereign states who would elect and send their representatives to the federal Congress.
To balance against the whims of public opinion and to minimize the framers’ fear of a fickle and uniformed popular vote, the Constitution specified that only members of the House of Representatives could be elected by a vote of the people. Senators would be indirectly elected by the state legislatures and the President, even more indirectly, by the Electoral College whose delegates would be appointed or elected by the states. The 17th Amendment changed the method of electing Senators by permitting their direct election by the voters of each state. We can see then, that those that hold federal office, including the President, are elected at the state and not federal level as specified by the Constitution.
The constitution is otherwise silent on the laws, regulations and procedures for conducting elections thereby delegating responsibility for elections to the states (at least not claiming it for itself). The 10th Amendment reinforces the authority of the states to conduct elections as they will.
There is a conflict between the 21st century expectations of American voters and elected leaders and the federalism’s Constitutional paradigm. Rather than acknowledging and addressing the conflict, the public, pundits, and media call for solutions to which those in authority are happy to respond. Tiptoeing carefully around Constitutional concerns, the 2002 Help America Vote Act (HAVA) “mandated” voting system reforms by footing the bill for voluntary compliance and by creating the ever oxymoronic federal “Voluntary Voting System Standards.” Further, HAVA ordered the states to develop provisional voting, voter intent and voter registration reforms but was silent on the substance of the reforms deferring instead to the states to implement them as they saw fit. The unintended, but not unexpected, outcome of imposing solutions without addressing the paradigmatic conflicts is a crazy quilt of conflicting legislation, practices and case law.
One of the reasons states resist federal solutions for electing federal officers, besides the issues of federalism, is the concurrent election of a myriad of state and local officials on the same ballot as the federal offices. Any changes targeted to federal offices have an usually undesirable ripple effect to state and local offices. States compound the problem by loading up the even year ballot with as many offices and ballot measures as possible to get economies of scale and cost savings. As a Registrar of Voters in California, I received scores of petitions from local governments to change their election cycle from odd to even years for the sole purpose of reducing election costs. The result is extremely long, complex and cumbersome ballots that feature federal offices as well as every minor local office.
The point of this diatribe is to propose that further federal reforms not be hastily considered and added to the often contradictory and ambiguous existing canon of election law. Additionally, it is time to acknowledge the elephant in the room which represents the conflict between modern expectations of elections and federalism. It is time to discuss solutions which bridge this paradigmatic divide. It is time to identify and discuss strategies for bifurcating state and federal elections. For example, how could elections for federal office be conducted on a different day than state elections? If elections were on different days, could there be a uniform set of federal rules for federal offices? Could elections for federal office be conducted by federal authority?
The answers to these questions have the potential of addressing and resolving all the issues of voter equity raised earlier. Doing more of the same type of federal election reform as the past will only add new patterns to the crazy quilt of election laws and practices without realizing the intended results of the reforms.