This year’s U.S. presidential election reminds us that such elections operate under 50 sets of confusing rules established by state legislatures. We, therefore, should be reminded of the need for a Federal Elections Agency to simplify this morass.
Latest Proposal for Such an Agency[1]
The latest proposal for such an agency has been put forward by Charlotte Hill (a board member of FairVote and RepresentUs and a PhD candidate at the Goldman School of Public Policy at the University of California, Berkeley) and Lee Drutman (a senior fellow at New America and the author of Breaking the Two-Party Doom Loop: the Case for Multiparty Democracy in America).
They say, “Though the pandemic and this erratic president are stress-testing our election system like never before in recent memory, the challenges of holding a free and fair vote in America have been mounting for decades. Since the early 2000s, court battles over election rules have become constant, while global experts like those with The Economist’s “Democracy Index” have downgraded the quality of American democracy across multiple measures for years.”
“We often talk about elections as if voters across the country are participating in a single event. But the reality is that individual states and counties — and the partisan politicians who run them — largely make their own rules about ease of voting, ballots and district lines. The overall result is that in the 21st century, in the richest democracy in the world, some people must work much harder to exercise their basic right to vote — and even then, their ballot may be less potent than others.”
“Take rules around registration and voting. Some states and cities automatically register voters and proactively mail them their ballots. Other states require people to register weeks in advance of the election and, unless they have a valid excuse for voting absentee, to show up in person at the polls, where they may face long lines, poorly trained poll workers, and unreliable equipment — not to mention the chance of becoming infected with a lethal virus that thrives in crowded indoor environments.”
“If someone lives in a gerrymandered or lopsided district, that person’s vote might matter less. In the vast majority of states, partisan lawmakers decide how to draw district lines — carefully engineered to maintain power statewide, even if a majority of voters prefers the other party.”
“In the all too common worst-case scenarios, partisan officials take advantage of the lack of federal election standards to disproportionately purge minority voters from the registration rolls entirely, or invalidate their ballots because of minor technicalities at higher rates.”
The U.S. now has two federal election agencies: the U.S. Election Assistance Commission (EAC) and the Federal Election Commission (FEC). The FEC oversees campaign finance laws, and EAC was created to provide guidance to states for meeting the requirements of the Help America Vote Act of 2002 by creating voluntary voting system guidelines and a national clearinghouse of information on election administration. But neither one is very effective.
The EAC “is designed to be bipartisan, with an even number of commissioners from both parties (two Democrats and two Republicans). But amid our hyperpartisan, polarized politics, bipartisan balance has meant deadlock. The commissioners can’t even agree on core issues like how to handle foreign interference: One Republican commissioner even stated that reports of Russian election meddling are ‘deceptive propaganda perpetrated on the American public.’ Partisanship isn’t the only issue. The commission has been plagued in recent years with unfilled appointments, reduced staff and budget cuts. Perhaps most important, it does not have the authority to make sure its recommendations are followed.”
Therefore, “It is clear that Congress needs to establish a federal elections agency to ensure that the voting process is fair, consistent, secure and legitimate — from redistricting to registration to voting technology. Would this be constitutional? In short, absolutely: Article I, Section 4 of the Constitution explicitly gives Congress broad powers to ‘make or alter’ regulations affecting elections.”
Such an agency “could help oversee and administer the standards for voting access, legislative decisions on redistricting and election security. It could use formal orders, fines, lawsuits and even criminal enforcement actions to make sure that political campaigns are conducted with integrity, elections are not marred by fraud or interference and lawmakers are penalized for attempting to rig the system in their favor.”
Such an agency “could use new, safe technologies to modernize and streamline our elections, while consolidating and securing important data. It could also help pilot secure election technology, such as the ‘uncheckable’ open-source voting system currently being developed by the Department of Defense. Unlike current election software that is bought from private companies and shielded from public inspection, this system will run publicly available computer code that election security experts can scrutinize for issues.”
This proposed “agency could also better take on certain administrative functions that are currently carried out by the states: for example, the creation of a national voter roll, with all eligible citizens automatically registered to vote. This would bring our registration system up to the standards of most other advanced democracies. (And simultaneously make it easier for intelligence officials to detect security breaches.)”
In addition, it “could . . . regulate the distribution of false or misleading information about federal elections — an increasingly important challenge.”
This “agency would not stop at setting federal standards; it would also enforce them. That means ensuring that congressional redistricting is truly fair for all voters by reviewing district maps and — if they do not meet standards — require that new maps be drawn. And that means monitoring elections to ensure they’re free and fair, including by building out an ‘election forensics’ team that can determine whether fraud, interference, or suppression tipped the balance in a given race.”
This proposed “agency must have a strong mandate, based on widely supported principles of democratic fairness, as well as an empowered inspector general to monitor any potential abuses of that power. We propose an extensive vetting process for agency appointees: a bipartisan, blue-ribbon commission could put forth a short list of names and nominees would be confirmed by the House of Representatives — a more broadly representative body than the Senate.”
“Appointees [to this agency] would have to abide by a robust conflict-of-interest policy, as well as a legally binding pledge of allegiance to the integrity of the voting process and the public interest. Taken together, these structural safeguards make us optimistic that the agency would serve its intended purpose.”
Concurring Opinion for a Federal Elections Agency[2]
Stephen I. Vladeck, a Professor and the holder of the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, concurs in the conclusion that there should be a new federal elections agency. He says, “centralizing the [federal election] process under uniform rules is one key reform.” He points out that in Canada “a nonpartisan federal agency administers elections using a uniform set of rules and procedures across the country. Brazil has a similar system.”
In addition, Vladeck stresses that “the ‘torturous’ process for states’ reporting election results . . . [creates] the opportunity for at least one of the political parties ‘to conjure conspiracy theories to explain’ an election defeat.”
In this year’s U.S, election, for example, “the random way in which returns were counted and released by states — Election Day returns versus mail-in ballots, for instance — led to wild fluctuations as results were updated. The consequence, as experts predicted, was a series of shifts in early tabulations, as candidates seemed to outperform or underperform expectations. President Trump seized on these gyrations, warning that something ‘strange’ was going on and that a conspiracy was afoot to ‘steal’ the election.”
In addition, “the random dissemination of results gave the appearance of something that just wasn’t true — that the returns were dynamic, not static — and that the counting of votes reflected ‘trends’ when the result was already in. We simply needed to tally the votes to figure out what that result was.”
A related problem was the various ways of reporting the results “distorted our understanding of when votes were cast. In some states, like Michigan, Pennsylvania and Wisconsin, rules prohibiting “pre-canvassing” — preparing early and mail-in ballots for counting — before Election Day meant that votes cast first could end up being counted last.”
This lack of uniform rules for counting and reporting election results “opens the door for charges that something is amiss, as it might have struck some with the returns from Pennsylvania, where the count first had one candidate up by thousands of votes, only to swing entirely in the other direction. This can leave the impression that sinister forces were at work, when it was just a function of the partisan makeup of the counties whose votes were being counted, or the type of vote — mail-ins, for example, which are disproportionately Democratic — being reported.”
Another problem is the rules for counting and reporting votes could be structured so that the initial reported results “look much better for . . . [one party’s] candidates than the overall tally, thus influencing the election narrative. There’s value in shaping the headlines even if the bottom line remains unchanged.”
Conclusion
There should be a Federal Election Agency establishing an uniform set of rules for federal elections.
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[1] Hill & Drutman, America Votes by 50 Sets of Rules. We Need a Federal Elections Agency, N.Y. Times (Nov. 5, 2020).
[2] Vladeck, Elections Don’t Have To Be So Chaotic and Excruciating, N.Y. Times (Nov. 8, 2020).