Legal Analysis and Commentary from Justia
Posted In Election Law

Some, Albeit Little, Hope for Voting Reform

The 2012 presidential election was about as bad as it gets for voting, in too many states.  It is unfathomable, not to mention deeply embarrassing, that the world’s most modern democracy would have voters standing in line for hours on end to exercise this fundamental franchise.  Television images of the lines in Ohio, Pennsylvania, and Florida (among other states) were shown around the world.

While the problems causing the long voting lines were not uniform, more often than not the situation was traceable to calculated efforts by Republican officials who deliberately changed (or administered) the law to make it difficult for predominately Democratic voters, hoping to discourage their voting.  The good news is that it did not work.  Because the problem was well-publicized, inconvenienced Democrats defied the efforts to disenfranchise them, and waited for however long was required to cast their ballot.

President Obama commented on the lines and problems on Election Night; he mentioned them again in his Inaugural Address; and most recently, they also played a role in his State of the Union speech, poignantly highlighting the plight of Desiline Victor, the 102-year-old Florida woman seated in the Galley of the House of Representatives’ chamber during the speech, as a guest of First Lady Michelle Obama. The President explained that Ms. Victor had been forced to stand in line for three hours at her local library in North Miami to cast her ballot.  Most everyone in the Chamber literally gasped at the awful situation, but that doesn’t mean Republicans will do anything to solve it.

Frankly, I was somewhat disappointed at the President’s suggested solution to this troubling problem.  It is well understood that the situation is largely the fault of state and local Republicans, employing this tactic to game the system because their policies and candidates are increasingly unpopular.  President Obama’s proposal is iffy at best, although I admit that second-guessing this able politician in the White House is risky.

Obama’s State of the Union Voting Proposal

“When Americans—no matter where they live or what their party—are denied the right [to vote] simply because they can’t wait for five, six, seven hours just to cast their ballot, we are betraying our ideals,” the President declared during his State of the Union address.  To deal with the situation, he reported: “I am announcing a nonpartisan commission to improve the voting experience in America.”  It was not a big applause line in the speech.

The President said his voting commission would be headed by two well-known Washington lawyers, both of whom are conspicuously aware of the problems: Bob Bauer, President Obama’s former White House counsel (representing a Democratic point of view), and Ben Ginsberg, Mitt Romney’s campaign counsel (representing the GOP point of view).  It is difficult to believe that either man was looking for such an assignment, but when a president makes such a request, it is something of a command performance.  Nor is it likely, thankfully, that either man is taking on the assignment to checkmate the other.

So far, the White House has added little about what the President has requested that the commission do, and how quickly he would like to see it done.  Regardless, on the surface, this is a rather thin proposal for addressing a serious national political problem, a situation that screams for leadership from the Democratic president.  (For example, the President might have announced that the Administration is forming federal grand juries in every state that had restricted voter activity to look into the problem.)  But Barack Obama is no fool, and I hope that his underwhelming-appearing non-solution is, in fact, a shrewd play on his part—maybe even a ploy to avoid a minefield of potential political problems by maneuvering Republicans to resolve these undemocratic problems.

The Ways of Presidential Commissions Are Not Encouraging

Presidential commissions have a well-earned reputation for being a place to send problems that truly need attention and fixing when neither Congress nor the president is politically capable of resolving the matter.  There have been countless hundreds of such commissions that have been convened and have grappled with difficult problems and issues, and have made thoughtful and reasonable recommendations, only to see absolutely nothing happen as the result of their work.

To mention only a few, there have been periodic commissions on government reorganization, yet the government remains about a century behind modern business with its management practices and procedures. Commissions have been created to study better compensating government officials, although we still have too many government officials (particularly federal judges) underpaid. Presidents have chartered commissions to analyze problems like embryo research or DNA ethics but they too have been unable to cut through the ideological politics and focus on the science. Almost every decade we have presidential commissions on Social Security reform but they typically produce nothing but suggested quick fixes, if anything. We’ve also had commissions look at higher-education costs, yet those costs continue to soar.  There are literally hundreds of examples of unsuccessful presidential commissions.  Unfortunately, though, the failure rate of commissions overwhelms their successes.

Notwithstanding the gloomy prospects of most presidential commissions, there have been exceptions to the norm.  For example, Lyndon Johnson’s commission on law enforcement and criminal justice actually resulted in some much-needed legislation. Ronald Reagan’s commission on strategic forces actually provided a few much-needed modernization programs.  Bill Clinton’s National Commission on Mathematics and Science Teaching for the 21st Century provided some important standards and goals, while focusing attention on an important problem.  And George W. Bush’s energy commission—chaired by Vice President Cheney—well, it was certainly good for the oil industry.

The successes of presidential commissions depend on whether the undertaking is proactive or reactive; and whether it is addressing the crisis, or merely acknowledges a social ill.  Long lines for voting, which exist principally in urban and Democratic voting areas, are a serious problem, especially for Democrats, but this is not (yet) a national crisis.  While this is a severe inconvenience for many Democrats, it does not even register on the Republican’s political Richter scale; rather, it’s something of a failed tactic, which Republicans are still actively pursuing.  The slow follow-up from the White House has cast further doubt on the undertaking, and would tend to suggest that this commission could be about as meaningful as presidential commissions addressing pornography, marijuana, and crop insurance.

Yet I am not without some hope.

My Small Hope for President Obama’s Voting Commission

Voting processes and procedures are largely determined by state and local laws.  In the first instance, the Constitution (Article I, Section 4) tells us that states are to set the “times, places, and manner” for electing members of Congress.  The Constitution adds, however, that “the Congress may at any time by law make or alter such regulations.”  Congress has exclusive power over the time of presidential elections (Article II, Section 1).  To date, Congress has done little more than set dates for national elections, although after the 2000 Florida vote counting debacle, they did provide money and guidelines for new, modern voting machinery in order for the states to improve their existing systems.

Needless to say, Republicans do not want the federal government involved in setting state and local voting standards.  Nor do they want to spend money for anything.  But this GOP position is not popular with the American people.  After last November’s election, a poll undertaken by the MacArthur Foundation revealed that 88 percent of the Americans who voted in the 2012 presidential election believed that there should be national standards for voting.  In short, the efforts of GOP leaders to make voting more difficult did not escape wide public attention, if not condemnation.

If the Obama voting commission does nothing else than focus public attention on the efforts in many states by Republicans to make voting more difficult in order to skew elections in favor of Republicans, then it will have accomplished what may be necessary to push public opinion into demanding an end to this undemocratic activity.  Most importantly, the co-chairs selected by the president for this commission appreciate this fact.

Ben Ginsberg, as a top Republican lawyer, is not ready to end his career.  The fact that he decided to join Bob Bauer in heading the commission is the only reason that I’m encouraged that they may accomplish something.  Hopefully Ginsberg will one day soon be loaded with information that he can take to the local, state and national leaders of the Republican Party to tell them that the continuance of their restrictive voting practices will likely be a death knell for all Republicans.

If Ben Ginsberg can convince the nitwit right-wing nut cases in states like Florida, Georgia, Illinois, Iowa, Kansas, Mississippi, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, Wisconsin, and West Virginia—who have been leading the effort to restrict voting—then the Obama commission will have succeeded.  If Ginsberg fails at this effort, it could be a career-killer, so Republicans would then have lost a savvy lawyer.

Maybe President Obama has created a “no lose” situation: Either Ben Ginsberg gets the data to make the case that Republicans have got to stop this restrictive voting activity, or else Ginsberg, who has caused Democratic lawyers problems for years, retires.

Meanwhile, I hope the Civil Rights Division of the Obama Department of Justice remains vigilant, starting with aggressive arguments in the forthcoming Supreme Court review of the applicability of the Voting Rights Act to Southern states.

John DeanJohn W. Dean, a Justia columnist, is a former counsel to the president.
Print this page
  • Terry Smith

    yes we need voter reform but voter reform that proves only American citizens are voting. this is a huge problem for me trusting our election process and no one seems to be concerned about the FACT that illegal immigrants to this country are voting in our elections. this problem appears to be a non issue for some reason???

    I find it horrifying that we have our elections are so badly run..

    i know for a fact and have written proof that a non American citizen – an illegal immigrate was given a voter registration card. I have copies of all his documents. He was given a voter registration card along with all the people in his community of illegal immigrants. I realize this part is hearsay at this time as he is not posting here but he specifically told me he voted in the last election for Pres. Obama and that it was condition of him being given a voter registration card. As did all of his community.

    No one has ever looked into this issue at all.

    To my mind we have a sitting president who I have proof was not elected only by the people legally entitled to vote for him. I personally think this is horrifying and all American citizens no matter who they believe should be in the white house and other elected officials should all be very upset and angry that nothing has changed. This undermines our entire way of life in this country.

    The reason out society works at all is that we believe in By the People and that doesn’t mean the rest of the world’s population. As a loyal and honorable (oh yeah thats a politically incorrect word these days! but a whole other conversation!)AMERICAN CITIZEN I think no matter which party one subscribes to one should only want what the majority of AMERICAN citizens want. Not what is purchased because one party is paying a group of people to vote one way or the other.

    I have no more trust in our political or legal systems in the USA. That trust has been irrevocably broken. Nothing is done to control this either it is just pushed under the rug.

    PS anyone who wishes to see the documents in question please email me with a request. I am happy to share.

    • Kathleen O’Neill

      Can you post documents for all to see

  • Pingback: John Dean Has Glimmer of Hope for Bauer-Ginsberg Commission | Election Law Blog

 

Access this column at http://j.st/ZQGW