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Among all the people in Florida who have spent the last two weeks counting — and recounting — votes to decide who will be the next president, none of them are on the U.S. payroll. You can thank — or blame — the Framers of the Constitution for that. Distrustful of the national government even before it was created, they placed the running of elections — even for federal officeholders — firmly in the hands of state and local officials, who have enjoyed the power ever since. That fundamental fact of federalism has been on stark display in the messy aftermath of this year’s presidential election. And it may prove to be the undoing of the newest electoral reform movement that is gathering force in the election’s wake: federalizing or nationalizing the electoral process. “Federal standards for elections would founder on politics and on the Constitution,” says University of Virginia Law Professor A.E. Dick Howard. “If we were designing the system from scratch, we might do it differently, but the Framers decided not to pass electoral power from the states to the federal government.” Recent talk of scrapping the Electoral College has already faded, because of the political reality that small states, among others, would oppose it. But a new battle cry, in favor of standardizing ballot procedures and machinery nationwide, has emerged in its place. Because of the spotlight on the butterfly ballots in Palm Beach County, Fla., and other vagaries of local polling, public awareness of flawed, aging ballot machinery has been heightened. Sen. Charles Schumer, D-N.Y., said on Nov. 12 that he would introduce a bill in the 107th Congress to fund a Federal Election Commission study of alternative voting methods — including different voting hours and days, as well as technology. “The current system is antediluvian,” said Schumer at a press conference. Sen. Arlen Specter, R-Pa., took to the floor of the Senate on Nov. 14 to decry the hodge-podge system of balloting nationwide. “With computers available and with electronic devices available, why do we have some sections of the country voting by paper ballot, and why do we have a great variety of election procedures in voting so that there is not uniformity, and there is not a prompt count?” Specter asked. In an interview late last week, Specter added: “We’ve had a fiasco of the ultimate magnitude. In the election of a president, Congress can pre-empt the field. Let the states run the gubernatorial elections.” On Nov. 14, Specter promptly introduced a bill, S. 3269, that would establish a commission to study voting procedures nationwide. “Congress should address this issue at least as to federal elections, leaving the matters of state and local elections to state officials under our federalist concepts,” he says. But those “federalist concepts” did not merely leave state elections to state officials. They also left federal elections in state hands as well. In Article 1 of the Constitution, state legislatures were given the power to set election procedures for members of Congress, although Congress was allowed to alter the regulations. But Article 2, as Stanford Law School Dean Kathleen Sullivan pointed out in a recent column in The New York Times, “conspicuously failed to do the same for presidential elections.” That is, state legislatures are given unfettered discretion to decide how to name their presidential electors; Congress, in that framework, has almost no way to gain leverage in nationalizing presidential elections. What were the Framers thinking? “The state governments were naturally jealous of the federal government being proposed by the Constitutional Convention,” says Drake University Law Professor Thomas Baker, author of “The Most Wonderful Work,” a book on the Constitution. “At the founding, the states were viewed as the great protectors of rights, including the right to vote.” In one of the Federalist Papers written in 1788, Alexander Hamilton expressed that sentiment: “Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments?” Yale Law School Professor Akhil Reed Amar advances a more controversial theory. “People don’t want to face the truth,” he says. But state control of presidential elections through the Electoral College was, he explains, “born in slavery.” Substantial evidence indicates, according to Amar, that slaveholders among the Framers wanted states to be able to decide whether or not slaves could vote in federal elections. Giving control over elections to the federal government could have jeopardized that power. For the first several elections, Amar notes, state legislatures rather than voters picked presidential electors in many states. There were also practical considerations, says Jan Baran, election law expert at Wiley, Rein & Fielding and a veteran of numerous battles over balloting. “Elections were run by important but seasonal workers. You usually had a limited number of paid government officials. The voting apparatus was based on volunteers working for one day.” Fast-forward to today, and the same basic system prevails. Influenced by regional tastes and long-ago reformers, voting procedures vary widely state by state. In some states, the order of parties listed on the ballot rotates every election. Voters in Oregon mail in their ballots. In Texas, voting begins well before Election Day. In Washington state, absentee ballots are in vogue. And in Florida, as the nation has learned, some counties use paper ballots, some have gone electronic, and some use old-fashioned lever-pull machines. “You have 50 states and 13,000 election officers,” says a Federal Election Commission official who has worked with state election officials. “They would resent any heavy-handed effort to standardize, in addition to the constitutional issues that would be raised.” Besides, says this official, who requested anonymity, “What if you pick the wrong standard? What if the entire nation had the Palm Beach butterfly ballot?” A plethora of different methods, at least, minimizes the possibility of a single glitch spoiling ballots nationwide. Then, of course, money comes into play. Little research and development goes into election technology because the sales potential is limited. “You have 3,200 jurisdictions buying election equipment, maybe once a decade,” says this election official. “Nobody gets rich selling voting equipment.” Local governments, by the same token, don’t want to put much money into voting machines that gather dust most of the time. “If you pick one system, you have to tell everyone to throw out their old system,” says Baran. Stanford’s Sullivan, in her recent opinion column, argued for a constitutional amendment to nationalize presidential election methods. Georgetown University Law Center Professor Roy Schotland calls the constitutional amendment idea “stupid,” arguing that the same goal can be reached through federal funding. Schumer’s proposal would call on Congress to give states at least $250 million in financial assistance to upgrade voting systems. Schotland and others point to the 1987 Supreme Court decision in South Dakota v. Dole, which allows the federal government to set standards through its spending power that it could not impose otherwise. It can condition federal spending on states agreeing to certain requirements. “There isn’t a single right answer, but it could be a Chinese menu of options, or minimum standards,” says Schotland. Adds Amar: “Nothing would prevent Congress from saying, ‘Here are these shiny new voting machines.’ And then saying, ‘By the way, if you take them, here’s what we would like you to do.’” Local officials might still resist, slowing progress toward a consistent method for electing a president. But it might be the only way, short of a constitutional amendment, to prevent future snafus. And public sentiment might prompt local officials to loosen their grip on ingrained methods and prerogatives. “The old saying is that if it ain’t broke, don’t fix it,” says Baker. “Election systems have been broke for a long time, but we’ve been getting along without fixing them — until now.”

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