The heated debate over voting rights in the United States is on full display in multiple venues. Senators clashed last week about the need for the major federal voting protections recently passed by the House. State legislatures across the country, meanwhile, are considering a range of proposals that ignore the positive lessons from the 2020 election.
Georgia, having just emerged from close presidential and Senate elections, is ground zero in the voting rights debate. Last week Gov. Brian Kemp signed an election law overhaul passed by his fellow Republicans in charge of the General Assembly. Proponents see it as essential for ensuring ballot integrity. Voting rights activists see it as harkening to the spirit of the Jim Crow era.
While there has been an element of hyperbole in the vehement reaction of the law's critics, their response is understandable in light of the measure's origins in the highly partisan and baseless allegations of fraud in the November election. Those claims reflect a well-organized disinformation campaign and the conspiratorial delusions of a sore loser, former President Donald Trump, who is now under investigation in Georgia for possibly committing an election-related felony.
Furthermore, the new law falls short of international standards and democratic principles in several important ways.
First, these principles obligate governments to provide access for all eligible voters and to ensure the integrity of the process — making it simple to cast a ballot while making fraud or other malfeasance difficult and easily detectable.
Actions in recent years by Georgia's legislators and election officials had made improvements in attaining these goals. The state now allows voters to review their ballots on paper before they're cast and conducts the best available form of post-election audit to enhance confidence in the result. And it has increased access to the franchise with automatic voter registration.
Georgia has now undermined this positive record. Several provisions of the new law reduce access to the ballot necessary because our Election Day, unlike in many other countries, is not an official holiday. Early in-person voting and voting by mail effectively obviate the need for citizens to choose between work obligations and civic duty. And both alternatives already had ample security safeguards, including required verification of personal data before issuing an absentee ballot.
The new law requires vote-by-mail applications to include approved identification and sensitive personal information. The request must be submitted at least 11 days before Election Day. And drop boxes for the envelopes will only be allowed inside early voting locations. These changes do little to improve the integrity of the process. But they may well discourage Georgians without an approved ID, along with the elderly and others unable to access the more limited drop boxes.
Advocates for these restrictions repeatedly point to the 2005 report of a commission chaired by former President Jimmy Carter and former Secretary of State James Baker that encouraged further study of vote-by-mail practices. But given technological advances in the past 15 years, and the experiences of states conducting elections almost entirely by mail, Carter now says "voting by mail can be conducted in a manner that ensures election integrity."
A second principle that should guide election laws across the world is that people with a partisan or personal interest in the outcome should not be in position to influence an election.
Georgia's law falls far short here as well. It changes the makeup and authority of the State Election Board in ways that could allow undue influence by the political party in control of the state capital. The elected secretary of state is no longer chair of the board; instead, the official will be appointed by majority votes of the state House and Senate. Although commendable provisions encourage selection of a political independent, the likely outcome is four of the board's five members will be from one party and have no independence from the majority in the legislature.
Compounding this problem is a new provision granting the Election Board authority to temporarily replace election administrators in as many as four counties. Improving performance by subpar local election offices is a worthy goal. But the law is silent on the criteria for replacements, so this power could easily be abused for partisan ends. Taken together these provisions allow the majority in the General Assembly to control both the State Election Board and election administration in pivotal counties.
Rather than place these powers in the hands of partisan legislators, Georgia should establish an independent committee to shortlist candidates for the chair (and maybe all the members) of the Election Board and to find replacements for flawed local administrators. This follows the example of structures reducing partisan self-dealing in other areas of our democracy: the nominating commissions that find potential judges for courts in more than half the states, and the independent commissions that have a role in redrawing legislative and congressional boundaries in about one-fifth of the states.
Ultimately, repairing democracy in the United States requires a recognition that candidates and parties reliant on elections need to step back from how elections are run.
This guiding principle is behind much of the good government package known as the For the People Act, passed by the House as HR 1 and now before the Senate as S 1. For example, the bill would require independent redistricting commissions and automatic voter registration in every state — two reforms that do not favor either party and that have gained bipartisan support in state legislatures and state referenda.
While some of the consequences from the new Georgia law are not likely to be as dire as many claim, its enactment is a significant negative step for the country — a step away from democratic principles and toward a symbolic transformation of falsehood into law. Democracy has been ill-served by this development.
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The Senate election results in Georgia have Democrats dancing in the streets and democracy advocates cheering another seemingly successful high stress election. Turnout was extraordinary for a runoff, election officials performed efficiently, and fears of conflict and voter intimidation proved unfounded.
But there could be trouble ahead. Jon Ossoff and Raphael Warnock will not officially become senators, and cannot swing control of Congress to their party, until they are seated by the Senate. That normally mechanical procedure could become the next round in our never-ending partisan dogfight.
If either Republican candidate contests the results — as President Trump and his allies will surely insist — it will not be Georgia's stalwart secretary of state, Brad Raffensperger, with the last word on who won. Nor will it be the Georgia Supreme Court, or even the U.S. Supreme Court.
The "Judge of the election of ... members" of the Senate, according to the Constitution, is the Senate itself.
For the vast majority of elections to both the House and Senate, this quirk — let's be more honest, this flaw — in our founding document does not pose a problem. Normally, with losers having conceded, the House and Senate dispense with a vote and permit the state-certified winners to take their seats.
But little else has happened normally this year, and with control of the Senate in the balance and Mitch McConnell still in charge, we should not be surprised if another challenge to our democracy is ahead.
McConnell did try to protect the Electoral College count from objections, but he did so less on principle than to avoid politically difficult votes for his caucus. At least for the election between Ossoff and David Perdue, the closer of the two on Tuesday, there are certain to be GOP claims asserting Perdue's victory. McConnell will be tempted to call for the Senate to investigate before seating a winner — which would mean depriving himself of the gavel.
In a parallel situation from 23 years ago, the GOP-controlled Senate seated the state-certified winner in Louisiana, Democrat Mary Landrieu, even as an investigation dragged on for months before affirming her 5,000-vote victory. By that precedent, McConnell should arrange for a vote to seat Ossoff and Warnock as soon as their victories are certified.
Maybe the terrible events at the Capitol on Wednesday will bring a stop to such brinkmanship, but it should not be surprising if McConnell again ignores a precedent that interferes with his exercise of power.
Adding to the complexity are at least two contested elections where legislative bodies are playing a role. In Pennsylvania, the GOP-controlled General Assembly is refusing to seat the state-certified Democratic winner of a close state Senate election until a legal challenge is completed.
In the House, Speaker Nancy Pelosi has agreed that the House Administration Committee will investigate the claims of Democrat Rita Hart, who is asking the House to use its constitutional prerogative to overturn her loss in Iowa's 2nd District. Pending the outcome, the House has seated her Republican opponent, Mariannette Miller-Meeks, certified by the state as the winner by a scant 6 votes.
The most legendarily bitter incident of the House using this power was 35 years ago. The Democratic majority voted to seat one of their own, Frank McCloskey of Indiana, after the state certified the winner as Republican challenger Richard McIntyre. Selective acceptance of evidence by the majority-run panel that investigated the dispute produced a four-vote McCloskey margin and led to a Republican walkout in protest. Subsequent investigations by journalists made clear McCloskey should not have been declared the winner.
Pelosi should take steps to avoid that kind of outcome in the Iowa contest — and to set a model for any Senate investigation of the Georgia elections. The House Administration Committee has seven Democrats and three Republicans, so Pelosi should see to it that a subcommittee with equal representation of both parties is given charge of the investigation. If the panel deadlocks, the victory for Republican Miller-Meeks as certified by the state should remain in force.
Doing so would put pressure on McConnell to conduct any Senate investigation in a similar bipartisan manner. And the Senate should follow both its own precedent and the House's approach to Miller-Meeks and promptly seat the state-certified winners from Georgia pending any investigation.
More broadly, there are lessons here from the fact that our Founders gave Congress judgment over the election of its own members. Writers of a constitution today would not take that path because of the clear conflict of interest and risk of abuse by the party with legislative control.
At the beginning of the world's long democracy learning curve, the Founders naively believed parties could be kept out of governing institutions, and they failed to anticipate how a political party could use this and other ways of controlling elections to keep itself in power.
France provides an instructive comparison. Its earlier constitutions followed the American example and gave its legislature the right to judge elections, which led to abuses. France's current Constitution, ratified in 1958, ended that practice and established a Constitutional Court as the definitive source of judgment on all national elections.
Our courts have moved over time to something of a similar role, but inconsistently and incompletely. Here as elsewhere our antiquated system is very vulnerable to the partisan will to hold power. That leaves us to hope that Senate Republicans improve on their track record and do the right thing.
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On Dec. 14, the Electoral College will cast its votes. Barring any unforeseen outrage, a majority will vote for Joe Biden, the popular vote winner in the general election, to sighs of relief. Many may conclude the creaky Electoral College works most of the time, and that any fixes are just too hard to worry about.
That would be a mistake.
With a shift only .07 percent of the vote, we would have a second-place winner again, just as in 2000 and 2016.
And even when the Electoral College doesn't produce a second-place winner its structure deeply distorts U.S. democracy. It is the reason swing states dominate campaigns. It marginalizes voters in all other states, and it deters strong independent candidates from running. Moreover, minority rule enabled by the Electoral College is now embedded in Republican strategy. It's in their campaigns for president and governing in the White House — judging by President Trump's treatment of California, New York and other blue states.
The biggest problem with the Electoral College is not the issue most people talk about, that small-state voters have more weight. Many countries convey greater voting impact to less populated regions. In the United Kingdom, for example, the smallest parliamentary district has one-fifth the voting population — and thus five times the impact on who becomes prime minister — as the largest. Moreover, Republicans do not dominate small states: the 16 smallest divided evenly between the parties in 2016 and 2020.
The more serious problem with the Electoral College is that it compels states to allocate electoral votes on a winner-take-all basis, giving swing states their dominant role and enabling the culture of minority rule now metastasized in the Republican Party.
Winner-take-all is not in the Constitution and was not part of the founders' intent. But it is very difficult to change without collective action among states. One idea, the National Popular Vote Interstate Compact, would bypass a constitutional amendment through an agreement for states to give all electoral votes to the national popular vote winner. National Popular Vote survived a referendum in Colorado with 52 percent of the vote. That close result doesn't bode well for the compact's chances in the Republican-controlled legislatures that still need to approve it. The Colorado referendum also highlighted a vulnerability: The plan can require states to give all their electoral votes to a candidate who did not win that state.
What's the alternative to National Popular Vote? Nebraska- or Maine-style allocation of electors by district won't work. That approach injects gerrymandering into presidential elections and would not have stopped a second-place Trump win in 2016.
The best alternative is a constitutional amendment offering something for both sides. Republicans want to keep the small-state advantage and the state-based, rather than national, calculation of results. Democrats want results that reflect the popular vote. Both priorities can be achieved by the Top-Two Proportional Amendment, which makes states allocate their electoral votes proportionally to the top two vote-getters in the state and replaces human electors with electoral votes expressed in decimal form.
Here are four reasons this is a good idea:
- The president would nearly always be the popular vote winner.
- With shares of electoral votes available in every state, candidates will have incentive to campaign nationwide.
- The "spoiler" problem would largely be fixed. (The 1 percent in Michigan four years ago for Jill Stein probably swung 16 electoral votes; with top-two, her impact would have been .05 of an electoral vote.)
- State results would finally reflect our true preferences, replacing the image of warring red and blue with different shades of purple.
It may sound borderline crazy to talk about something requiring broad-based national agreement when one side won't even accept the Nov. 3 election results. But the idea could appeal to Republican officials outside of swing states because it would bring the presidential campaign back to their states to help with down-ballot races.
More importantly, the democracy-distorting impact of the Electoral College is increasing, and it is not just an every-four-year problem. Allowing this institution to continue in its current form is not an option.
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