Author: Robert A. Pastor
The United States is the oldest constitutional republic in the world, and elections have been held since the English first settled in the early 17th century more than 150 years before independence. Currently, the United States elects executive, legislative and judicial officials for more than 500,000 positions at the federal, state and local levels. Elections not only sit at the core of the American political system, but for more than a century, democracy and free elections have been an important objective of US foreign policy, as well.
It is therefore ironic that the US government has provided almost no funds and given little attention to establishing national institutions or formulating procedures to conduct elections. The United States lacks a national election commission; instead, 13,000 independent local entities manage elections without uniform procedures. The 50 states are theoretically responsible for supervising elections, but few exercise much responsibility or even oversight. Though deeply engaged in shaping public policy on a wide range of issues, the American people have accepted this state of affairs and have not insisted on election reforms. With the exception of a few cases, the public has taken for granted that elections are free and fair. This attitude, combined with the general desire for less government, may explain the absence of electoral initiatives and the failure to modernize the electoral system.
American history can be seen as a struggle to expand the franchise from the narrow base of white, male property owners. The process of managing elections was always left to the local governments. The first serious effort in the modern era to reform the electoral system occurred as a result of the perceived failure by the state of Florida in 2000 to conduct a fair or competent election. The presidential election was decided in Florida by 537 votes, and a national spotlight focused on the many flaws in the elections.
Confidence in the electoral system was shaken, and Congress was finally moved in 2002 to pass the first federal law in election administration—the Help America Vote Act of 2002 (HAVA). This law proved inadequate to the magnitude of the task, but the federal government has done little since then. Many states have acted, but the new state laws have reflected partisan concerns. In some states where the Republicans have a majority in the legislatures, they have passed laws to prevent voter fraud by requiring photo identification cards and restricting the time and manner in which registration can occur. The Democratic Party has opposed these initiatives, arguing that their true purpose was to suppress voter turnout by poor and minority voters. Thus far, the laws have not had a discernible effect on voting, but that could change in subsequent elections as the new laws grow stricter.
The US constitution of 1787 does not guarantee citizens the right to vote. Indeed, it says very little about the administration of elections except to suggest that states have the responsibility to determine the procedures for choosing electors to the Electoral College, which serves as an intermediary between the voters and the final choice for president and vice president. That was a progressive innovation for the 18th century, but it is an anachronism in the 21st.
Over time, individual states devolved responsibility for administering elections to the local level because most elections were for local offices, and national elections occurred at the same time. Counties and municipalities registered voters, designed the ballot papers, purchased the voting machines and trained polling officials. Few states had a budget to help the local election authorities, and thus they had little power over the conduct of elections.
Although Americans vote for four national offices (president, vice president, senator and member of Congress), the only national election is for the Electoral College, in which electors designated by the candidates then choose the president. All other elections are technically the responsibility of the states, though they are conducted by 13,000 counties and municipalities. The election authorities at that level are selected and replaced in many different ways. Most officials are appointed by mayors, who are themselves elected at the local level; some are appointed by political party officials; and some are civil servants. Most officials are partisan; some states require bipartisan administration; few are nonpartisan. As a result, there are numerous and diverse administrative and technical procedures.
Until the end of the 19th century, the principal means of voting was a ballot paper given by the political parties to individual voters. This procedure lent itself to vote buying, and in the 1880s states gradually adopted the ‘Australian’ secret ballot, which identified all the candidates on a single page, giving voters the privacy of selecting the one they supported.
Although some campaign finance reforms were implemented during the Progressive Era at the beginning of the 20th century, especially the ban on corporate financial contributions, candidates long relied — and continue to do so — on private financing for their campaigns. State laws regulate campaign finance in state and local elections, but the first major reform at the federal level was the Campaign Finance Act of 1974 after the Watergate scandal.
In the presidential election of 2000, the losing candidate, Senator Albert Gore, won the popular vote but lost the electoral vote because Governor George W. Bush was reported to have won the state of Florida by 537 votes. Gore and the Democratic Party claimed that the many flaws in the system had biased the process against him. They asked for a recount, but the Supreme Court in a 5–4 vote decided to stop the count. Largely because of this decision, many Democratic Party members believed the election was unfair. Most Republicans disagreed with that assessment.
A bipartisan commission chaired by former US Presidents Jimmy Carter and Gerald Ford issued a report with numerous recommendations on ways to improve the electoral system. Congress reviewed and incorporated some of these suggestions in the first federal law on election administration, HAVA.
The statutory requirements for most elections are defined by laws passed by each of the 50 states. HAVA is the only national law addressing the issue of election administration. It sets a few national standards and requirements for voting, but makes most of these conditional on whether the states decide to accept funding from the Election Assistance Commission (EAC), which is established by the same law. Through the distribution of funds and the requirement that states develop and publish plans for meeting the national standards and establishing statewide computer-based registration lists, the new law aimed to help states retrieve authority over the conduct of elections, and to exercise it in a way that permits some uniformity at the national level. The states were mandated to be in full compliance with the law by 1 January 2006, but there were many laggards. By 2009, however, the states had integrated their registration lists, although 41 states did so in a top-down way. Eight states, including California, New York and Illinois, allowed the counties to organize the list in a bottom-up manner; one state (Texas) combined both techniques. A comprehensive study of the list by the Pew Center estimated that approximately 24 million (1 in 8) names on the registration list were not valid or accurate, so there was still much room for improvement.
In the 2008 election, there were 206 million eligible voters, of whom 71 per cent registered to vote. About 131 million people voted (nearly 90 per cent of those registered and 63 per cent of those eligible to vote).
HAVA did not provide for uniformity of standards, and the EAC was quite weak. A Commission on Federal Election Reform, chaired by Former President Jimmy Carter and Former Secretary of State James A. Baker and organized by American University’s Center for Democracy and Election Management, offered 87 recommendations to address the remaining problems in the system. Its report was published in 2005.
The EAC was established in Title II of HAVA (Public Law No. 107–252). It is composed of four members: two nominated by Republicans in Congress and two by Democrats. (The FEC is similarly constituted, but its sole responsibilities relate to the supervision of campaign finance laws.)
The EAC is not an EMB. Its main responsibility was to transfer federal funds for the state governments to invest in new voting equipment and statewide registration lists; almost all of that funding was spent within a few years.
The institutional structures responsible for administering elections remain at the state and local levels. In most states, the secretary of state is technically responsible for the conduct of elections, but the county and city election boards are the EMBs; they conduct the elections. Secretaries of state are elected and tend to be individuals who aspire to higher political office. State and local officials are usually appointed by partisan officials, although some are civil servants or are appointed by local elected officials.
The EAC oversees the testing, certification, de-certification and re-certification of voting system hardware and software, provides election assistance, and encourages states to adopt voluntary guidance. Any EAC action requires the approval of three members, but its regulatory powers are sharply limited. It cannot, for example, ‘issue any rule, promulgate any regulation, or take another action’ that imposes a requirement on any state or locality.
The 13,000 individual counties and municipalities continue to manage virtually every stage of the electoral process. Republican leaders in Congress have questioned the utility of the EAC, and have withheld appropriations, and commissioners have not been suggested or approved by Congress.
Until HAVA, the federal government spent no money on elections, and the states spent very little. Most funding was raised and spent at the local level. With the passage of HAVA, the federal government transferred nearly USD 3 billion between 2003–05 to the states to purchase new machines and implement statewide plans, including for computer-based, statewide registration lists. When that money was exhausted within a few years, the EAC’s budget declined to less than USD 20 million per year.
The EAC (like the FEC) is accountable to Congress, the executive branch and the courts. The local authorities are accountable to their communities and, secondarily, to the state officials and the courts.
In the 2000 presidential election, more than half of all voters used punch card or lever voting machines. Their flaws became obvious during the review of the election. Many of the chads in the punch cards failed to dislodge, and those votes were not counted. Many of the lever machines, which were first built a century earlier, simply broke down. As a result, substantial funds were invested in new electronic machines, and by 2008, 89 per cent of all voters used electronic machines (DRE and optical scans); fewer than 7 per cent used punch cards and lever machines.
This change toward computer-based machines, however, created new problems. Polling officials had to be better trained to demonstrate how the new machines worked and to fix them if they broke. More importantly, some of the computer-based machines lost votes. Therefore, several members of Congress and several state legislatures advocated adding a voter-verified paper audit trail (VVPAT). The machines would affix the voter’s preference on a ballot paper that would be counted in the event that a machine lost votes. Polling stations would also need to audit their count and their machines after each election. These initiatives moved forward slowly, but by 2009, 35 states had adopted some variation of them.
For much of US history, election officials’ posts were viewed as patronage jobs to be awarded by the party in power. To a great extent, this has not changed. At the local level, there are great difficulties in hiring temporary workers, and as a result most are quite old (average age of 72) and may have difficulty working a long and stressful day. For the presidential election in 2008, approximately 131 million people voted in 200,000 polling districts. This required nearly 2 million poll workers, but only about 1.5 million were recruited, and they received little training. They were supervised by 20,000 election administrators. Wide variations in electoral professionalism were — and remain — inevitable.
Both the strengths and weaknesses of the US electoral administration system stem from its decentralized nature. It allows for great autonomy and diversity, but no uniformity. Most Americans are content with the decentralization of the electoral process, and many members of Congress are reluctant to override states’ authority over elections. As a result, it is difficult for Congress to consider, let alone approve, even modest reforms such as requiring a back-up paper ballot in the event that voting machines break down. In the absence of a voting crisis, the prospects for a wholesale reform of the system — e.g. establishing a national, nonpartisan, independent election commission to conduct the elections — are remote.
At the beginning of the 21st century, the polarization of American politics affected and infected the rules for a fair election. Republican-dominated state legislatures in several states passed legislation that imposed voting identification requirements and tighter restrictions on efforts to register voters. Republicans insisted that they were most concerned about electoral fraud and assuring the integrity of the ballot, while Democrats accused them of trying to disenfranchise poor and minority voters, which traditionally represent an important part of the Democratic Party’s constituency. Several of these state laws were challenged in court. The US Supreme Court found that the use of voter identification is legitimate, but concerns have been raised about how the laws are being implemented.
Moreover, most Americans tend to focus on the results of elections rather than the process. It is true that close elections often lead people to examine the process more closely, and the electoral crisis of 2000 catalyzed Congress to approve some reforms, but they were inadequate to the task of modernizing a national electoral system. For the foreseeable future, the US election system will be managed at the state level.
