Try explaining this to someone who does not live or vote in the United States. We have just elected a president who will lead the entire country, but most of the rules about voting in that election were decided by officials in the 50 states and the District of Columbia, and not by the Congress that makes the laws that the president will carry out once he is in office. This time, the election was not sufficiently close so that local decisions changed the outcome, in contrast to what happened in Florida in 2000. But because the president is going to govern all the people, it makes sense that the laws governing how his or her election is conducted should be decided by the federal government, and not vary significantly depending on where a voter goes to the polls. A few examples will illustrate the problem and suggest some of the ways to end this incongruous situation.
In recent years, there has been a spate of efforts to require voters to have picture identifications with them when they vote. The asserted basis for these laws is that they prevent fraud, although there is virtually no evidence that this kind of retail fraud takes place. And for good reason: If you wanted to commit election fraud, would you show up at a polling place where you might be recognized by your neighbors or the neighbors of the voter you were impersonating, or be captured on a camera like those in almost every bank? Would any rational person risk going to jail for the sake of a single vote in any election?
The U.S. Supreme Court has upheld the constitutionality of a photo ID law in Indiana. It is bad enough that Indiana makes it difficult for those without its preferred kind of ID to vote in state and local elections, but that same law also dictates who gets to vote for president and members of Congress. And for those races every American has a stake in seeing that the ID rules fairly balance the interests in preventing fraud against the desire to impose only truly necessary barriers to voting in federal elections.
To many, if not most, Americans, having to show an ID to vote (if asked) is not an unreasonable request, unless the required ID is difficult to obtain or imposes costs similar to the now-outlawed poll tax. That should mean that for federal elections Congress, not each of the state legislatures, should decide what kind of IDs should suffice. If there are costs for voters to obtain them, the government should pay for them, just as it pays for registrars, poll workers and voting machines. Congress or a federal agency to which it has delegated the authority should decide whether a photo, a current address and an expiration date are needed, and what kinds of IDs are satisfactory, in light of the burdens and costs imposed on everyone.
Second, only U.S. citizens are eligible to vote. Some states are starting to demand proof of citizenship, even for those who have voted for many years without challenge. Ironically, those who have been recently naturalized are quite likely to have the necessary papers, but others, such as senior citizens, who have never needed a passport to travel outside the United States, may find proving their citizenship rather difficult and certainly burdensome. The problem is magnified for those who were born in rural areas where birth records were not maintained except for those delivered in a hospital.
But suppose a state wanted to get tough and challenged even birth certificates, because the name was not exactly the same as the name the voter currently uses or, even more commonly, because the person changed his or more likely her name when the person married. Or an especially skeptical registrar could say, not without some justification, “How do I know that this is really your birth certificate since none of the information on height, weight and hair remotely resembles that of the person in front of me? Maybe you have been committing identify fraud for years and never got caught.” If you think that this is an unrealistic fantasy, just recall the months of controversy about the validity of President Obama’s birth certificate. Again, if proof of citizenship is to be required to vote in federal elections, federal law should establish what kind of proof is needed, whether it can be demanded every election or just for first-time voters, and how those requirements are enforced so that they operate in a uniform and nondiscriminatory fashion.
Each year, millions of Americans move, often within a state. Many people fail to update their voter registrations, and many states do not have a system to automate those changes, even for in-state movers. If the states were properly organized, many fewer people would be disenfranchised. But even when individuals fail to provide the proper notice, losing the right to vote for president is too heavy a price to pay for a little forgetfulness. Congress should also consider a national registration system to allow everyone, no matter when or where you moved, to vote for president and Congress, even if they could not vote in state and local races. Indeed, why not allow everyone to register online for federal elections (not the same as online voting), especially if they have to show an ID to be able to cast their votes?
Other problems that impede voting in federal elections should also be considered. First, why shouldn’t we do everything possible to let everyone vote for president and Congress by having same-day registration for those offices, even if a state wants to be more restrictive for local races? The same is true for the periods of early in-person and absentee voting: At the very least, each state should have to have the same rules everywhere, and not provide different times for different parts of the state. There should also be minimum federal standards for voting machines, while still allowing states some choices within the federal guidelines.
In the same vein, why should states be permitted to decide how many machines will be available per expected voter, after taking into account early and absentee voting? And shouldn’t the polls have to be open (and remain open) for a set number of hours for presidential elections? And why can’t there be some basic rules about ballot design so that voters in federal elections are not overwhelmed by local races, not to mention the ever-increasing numbers of initiatives?
When Congress passed the Help America Vote Act in 2002, it created the Election Assistance Commission that was, in theory, supposed to address some of these issues. But by all accounts, its structure and its limited powers have rendered it inoperative in fact if not in law. Congress cannot hope to stay on top of every election issue, nor respond when changes in technology or practices threaten to create new problems or impose unreasonable burdens on voters. Only a revived and effective EAC can assure that laws that Congress enacts do not die the death of inaction.
The notion that the federal government should have a role in running federal elections is not a novel one. In 1993, Congress passed the national Voter Registration Act (better known as the Motor Voter Law), which made it possible for citizens to register to vote when they get a driver’s license or register their car. The law also created a uniform federal form that enabled anyone to use it to register in their home state. The basic premise of that law is that, just as war is too important to be left to the generals, voting for president and Congress is too important to be left to the states. It is long past the time when we should be focused solely on removing barriers to voting: We need to start taking affirmative steps to make it easier to vote for federal offices and only Congress can assure that will happen. If we start now, we can make great strides in bringing this about in time for 2016.
Alan B. Morrison is Lerner Family Associate Dean for Public Interest and Public Service Law at George Washington University Law School.