President Trump’s arrangement for an inquiry into election voting fraud is fatally compromised by political self-interest. Before the November election, he insisted that voter fraud might cost him the victory. After he had won, he decided that it robbed him of success in the popular vote. He put the number of illegal voters at 3 to 5 million, all of it allegedly committed at his expense.
And having taken this position, he is not only looking back. He is already a candidate for reelection, and this project would serve his purpose of reducing the risk of another popular vote disappointment. So he will establish a presidential commission to look into voting fraud, and he intends to appoint as its chair his Vice President, who was his presidential running mate in the last election and will very probably be on the ticket again 2020.
This process has lacked credibility from the start, and if it were only a matter of appreciating the nature and limitations of this political project, then not much more attention would need to be paid to it. But in what happens next, once this Pence Commission is formed and launched, the long-term cost to bipartisanship in voting reform could prove high.There has been to this point room for bipartisan cooperation on election reform, and it has been productive. This is not to say that the political parties don’t fight over these issues, and sue each other, or that self-interest and outright chicanery is not evident in legislation, regulation, administrative interpretation and positions taken in litigation. But there has been over the same time that the “voting wars” have broken out, Democrats, Republicans, and others have done what they could to figure out where, in the interests of voters, the partisan brawling could give way to measured, professionally disciplined discussion of real problems and feasible reforms to improve the voting experience for all citizens.
This cooperation has occurred in support of special studies like the one undertaken by the Presidential Commission on Election Reform. It continues through other programs, such as those sponsored by the Bipartisan Policy Center. BPC in fact recruited to this work a former Commission member, a Democrat, and a former Republican Secretary of State, a Republican, who were paired in the leadership of this work. The Commission, the BPC and other similar initiatives have counted on, received and benefitted enormously from engagement on a bipartisan basis with the National Association of Secretaries of State, the National Association of Election Directors and other election administration professionals. These relationships provide access to reliable information and to the best judgment of experienced officials and experts. The keys are bipartisanship and professionalism.
With two elections within sixteen years won by the candidate who lost the popular vote, it is a natural turn that the Electoral College moves higher on the reform agenda. There remain other items for consideration: the state of the political parties, campaign finance, and voting rights. The question is: in what ways will the substance of reform, and its timing or tactics, be affected by the outcome of this election?
1. Attention to the Electoral College is now heightened at a time of mounting impatience with the other ways in which the electoral process deviates from the expectation that the most votes should decide. James Ceaser has correctly said that we've arrived at the point in our political culture that it is, if not unthinkable, difficult in the extreme to stand against the principle that the person with the most votes wins. So Republican leadership balked at any program to stop Trump at least in part because they struggled to explain how the nomination could somehow be denied to the candidate in a field of 17 who won by far the most contests and the most votes. The Democrats have run into similar problems with the role of super-delegates.
The case against the Electoral College is strengthened considerably by this strong trend in popular expectation. Whether we will see sustained momentum for reform is a different question.
2. Meanwhile, what about the parties? Ezra Klein has come to the view that parties may be weak but partisanship runs high, and that this complicated combination explains a good bit of what some see to have gone wrong with the nominating processes. Parties do not mediate voter choice: it is not accepted that they should step in against the candidates the voters favor and compel an alternative choice presented as superior in experience, governing credentials, or electability. So the voters decide, and once they have decided, the parties and their partisan fall into line. As Klein explains it, this is the worst of all worlds: weak parties, high partisanship.
The absence of strong parties on the traditional model has been keenly felt in this way, and perhaps in other less visible ones. For example, candidates now rely upon polling data to shape strategy and to adjust as necessary to changed political conditions. All of this is done at headquarters, shaped by sophisticated analytics. And the analytics are highly advanced. A modern campaign cannot operate without them. But genuinely strong parties are built on something more. They would have good intelligence "on the ground" delivered by seasoned party officials and operatives. The state and local party would speak authoritatively on local conditions. It pick up quickly on changes in those conditions not easily accessible through polling.
The voting rights and campaign finance wars have been fought on terrain largely shaped by two major and controversial decisions: the Crawford case on voter ID requirements, and Citizens United on independent spending. Critics have lamented Crawford’s naiveté about the stated value and inevitable partisan misuses of ID requirements, but it seemed that supporters had going for them the “common sense” judgment that voters required to have an ID to board a plane can be reasonably asked to produce one to vote. So one might have thought that Crawford was here to stay, even as the Justice who wrote for the Court, John Paul Stevens, has expressed regret.
Citizens United got more bad press in many quarters for opening up direct corporate political spending and for giving a boost to Super PACs. Its author, Anthony Kennedy, continues to defend it. He points to the silver lining: the court’s brief, arguably cursory, salute to disclosure, even as Kennedy concedes it is not yet working in practice as he had hoped it would. The critics who think the court flipped open the Pandora’s Box of campaign finance have put whatever hopes on the antidote of disclosure, and more speculatively on a constitutional amendment to overturn the case’s core permissiveness.
In light of developments of recent weeks, it is interesting to consider where the law set in motion by these cases is heading.
As the courts work their way through claims against ID and other voting restrictions, they continue on a course of “softening" voting impediments but not eliminating them altogether. They remain reluctant to deny states the authority to enact rules, on virtually non-existent evidence, to protect against in-person voter fraud. Remedies are then fashioned that provide relief to voters facing a “reasonable impediment” to voting but the question has been legitimately raised: how much of an impact can these sorts of measures be expected to have?
Like the right to a provisional ballot provided for under HAVA, these other remedies-- like accommodating indigent voters with access to cost-free identification--help voters, but only a limited number. The reach and effectiveness of these measures depend upon the states’ performance of their obligations: the information they provide to voters, and the good faith and competence with which they administer the remedies. The same may be true of more robust remedies, like the option recently ordered for Wisconsin, affording access to an affidavit alternative to documentary identification.
Still “softening” is useful. Political actors—notably, parties and presidential campaigns--and nonprofit voting organizations have dramatically improved upon their capabilities in effectively advising voters about remedial options and assisting them in exercising them. Voters are not, then, entirely dependent upon state officials for help. In successive election cycles, the effectiveness of these partisan and nonprofit voter protection programs has improved, each rebuilt successfully on the experience of the last.
To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.
Buckley v. Valeo, 424 U.S 1, 27.
This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down. The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.
In the years following, enough has not proven to be as good as a feast. And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it. Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption. Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.
The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system. This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy. Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions. In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy. So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.