X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
America faces a twin voting problem: Some people who are not eligible to vote apparently do. At the same time, millions of citizens do not cast the ballots to which they are fully entitled. What should Congress be doing about this problem for American democracy? To deal with perceived voter fraud, the House of Representatives in late September passed and sent to the Senate the Federal Election and Integrity Act of 2006 (H.R. 4844). This bill would require voters to present photo identification to participate in national elections. House Republicans charge that every fraudulent vote takes away the rights of a legal American citizen. According to Rep. Shelley Moore Capito (R-W.Va.), “We want everyone to participate, to vote, and to know that their vote counts.” Democrats oppose the legislation. They argue that fears of voter fraud are overblown and in any case merely a cynical ploy to deprive poor and elderly voters of their rights. According to House Minority Leader Rep. Nancy Pelosi (D-Calif.), “It’s a bill designed to prevent citizens from voting.” Yet both sides are wrong. Although no reliable national statistics exist on the incidents of voter fraud, there can be no denying it is possible and therefore should be a concern. When Congress enacted the “ Help America Vote Act” in 2002, a primary objective was to reduce fraud by requiring, for the first time in federal law, proof of identity for a limited category of voters. Voters who registered by mail were required to show identification the first time they voted. According to published reports, about half the states have implemented the statute, with some going beyond the federal requirements to insist that all voters show photo identification. In Georgia, courts have rejected the argument that these requirements are necessary to safeguard the integrity of the election process, and on Oct. 16, the Missouri Supreme Court struck down that state’s voter-identification law. More court challenges lie ahead. Clearly, some quarters have widespread concerns about voter fraud. At the same time, voter turnout in national elections is abysmal, especially in light of frequent claims by elected officials as to its near-sacred importance. According to available data, voter registration is at a nearly record high, but voter participation is nearing an all-time low. In the 1964 presidential election, 69.3 percent of the voting-age population cast a ballot. In 2000, that number was only 59.5 percent, and in 2004 it was up to 63.8 percent but still well short of the mark reached 40 years before. Midterm (nonpresidential) election turnout is even worse, with the 1998 midterm election drawing only 36.4 percent of the voting-age population. Internationally, we rank below Russia and next to Thailand and Zambia when it comes to turnout. In England, Germany, and Australia, voter turnout as a percentage of total population is typically more than 70 percent. Recent polls have placed the United States 139th out of 172 countries in voter participation. Granted, some observers argue that voter turnout should be measured as a percentage of eligible voters rather than voting-age population. This measurement would produce much higher turnout numbers. Others argue that participation rates shouldn’t matter because only people who “care” enough to vote should, so by definition those who don’t vote shouldn’t vote. But this begs the question of what we mean when we say voting matters. If it matters enough to make sure that it is done right, it matters enough to make it possible for everyone to do it. Regardless of the actual participation rate, low participation is a problem because political participation in a democracy is valuable (something that no one in Congress would dispute). FRAUDULENT VOTES So what is to be done? First, recognize legitimate claims that voter fraud can be a problem and realize that solutions are available. Under the right conditions, standard identification cards make sense. In a report to Congress in September 2005, the Commission on Federal Election Reform, chaired by former President Jimmy Carter and former Secretary of State James Baker III, called for a uniform photo-identification standard. The commission defended the recommendation by noting that photo identification is already required to board airplanes, cash checks, and enter federal buildings. There is nothing inherently wrong with ensuring that voters are who they say they are. Of course, we should take care to ensure that the requirement does not become an additional impediment to already-low participation rates. And voter identification cards should be easily available and widely accessible, eventually in every federal building and post office. To implement such a system would take time so that it does not impose an unreasonable burden on voters. But that isn’t a reason not to consider it. A DAY TO VOTE Standardized identification alone is not enough to protect democracy, however. If Congress imposes even a reasonable burden to protect the integrity of the ballot, it should also provide a means for ensuring the process of voting itself is easier for all Americans. Don’t make voting harder. Make voting matter by recognizing its importance and bringing more people to the polls. There are a number of possibilities for practical ways to do this. For example, Election Day could be made a national holiday, or it might be moved to an existing national holiday. What better tribute to our veterans than making Veterans Day our official voting day, for example? Holding national elections on Tuesdays, when many if not most people are at work, is not required by the Constitution. Instead, federal law established Election Day back in the 19th century for the convenience of rural voters. Today, the workday schedule and demands on families are different. Maintaining Tuesday as Election Day makes as much sense as requiring retailers to keep daylight hours, as shopkeepers did before the arrival of electricity. Elections could be held on a weekend or on a holiday Monday or Friday instead. The idea would be to not require people to take time off from work to get to the polls. There should be a hardship exception for emergency workers and others who cannot vote and did not have the opportunity to do so in advance. Some might claim that changing the day on which elections are held would have little effect on voter apathy, but it would certainly reduce the hassle of having to vote before work or having to race home after work before the polls close. VOTE PRO QUO? Some also have suggested allowing voting over the course of a week rather than on a single day, or making it easy to register to vote on Election Day. In fact, Texas has already experimented with early voting by keeping polls in selected areas open between 17 and 4 days before Election Day. Another possibility is to expand voting by mail and permit voting over the Internet. In particular, the Internet provides a way to allow accessible voting and increase voter participation. Some critics have concerns about security and privacy, and these obstacles will make it difficult to implement Internet voting soon on a widespread basis. But the problems can be studied and overcome. We need to think creatively about how technology can strengthen our democracy, rather than succumb to fear of technology or cling to antiquated notions of how voting must occur. Finally, Congress might consider requiring proof of voting as a condition for receiving government benefits such as welfare, Social Security, and driver’s licenses. This notion is not without controversy, but it merits attention. Other democracies around the globe do the same thing by requiring voting. In 1892, Belgium became the first country to enact mandatory-voting laws. Australia, which has an average voter turnout of more than 80 percent, has had laws regarding compulsory voting since 1924. Some would object that mandatory voting is a form of compelled speech and a violation of civil liberties. Some totalitarian regimes require voting. To the extent that voting is meant to embody the people’s choice about how to rule themselves, it seems contradictory to force them to do it. But voters could be allowed to vote for “none of the above” or to cast blank ballots as a means of expressing dissent. Measures like these can satisfy the objections of civil libertarians. When the United States is falling well short of other countries in voter participation, it would not hurt to look at different electoral systems, even mandatory ones, as we seek reform. If we require the use of seatbelts to protect ourselves on the highways, maybe we should at least think about a “voting requirement” to protect the safety of our democratic system. We are spending billions of dollars and losing thousands of lives to fight for democracy overseas. The argument about whether America cares about democracy seems to have been resolved: We do. So Democrats need to recognize legitimate concerns about fraudulent voting and protect the integrity of the process. Republicans need to fully recognize the importance of the right to vote and give effect to the promise of full participation by all Americans by making it easier for more people to vote. And both sides need to stop wasting time posturing.
Fernando R. Laguarda is a partner in the D.C. office of Mintz Levin Cohn Ferris Glovsky and Popeo. He thanks project analyst Brian Corrigan for his research assistance.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.