Case Study: Toward National Standards

1. Case Study: Toward National Standards 1.2.4

2. Constitutional Basis Protecting Voting Rights • 12th Amendment- Electoral College- representatives from each state. • 14th Amendment- Representatives apportioned to states-critical issue is how districts are drawn to allocate electors, must be male resident of 21 years & US citizen; No state shall deny any citizen due process and equal protection. • 15th Amendment- Can deny right to vote based upon race, color, or previous condition of servitude. • 19th Amendment - Rights of citizens to vote shall not be abridged based on sex. • 24th Amendment - Can’t be denied for failure to pay poll tax. • 26 Amendment -US or state cannot abridge right to vote for 18yrs based upon age.

3. Federal Election Commission An independent regulatory agency, authorized to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections. • FEC establishes voting standards, usually by agreement with manufacturers over the technical specifications to ensure accuracy, reliability, and security. • Each state has specific statutes that govern voting elections. • 37 states have voluntarily adopted these standards with periodic review every five years. • Testing by independent testers. • Commission is made up of six Article II members, who serve a six-year term, with staggered terms. • At least four votes are required for any official Commission action. • The Chairmanship of the Commission rotates among the members each year, with no member serving as Chairman more than once during his or her term.

4. Congress: Constitutional Amendments governing voting rights; Delegate authority to FEC. Draw boundaries of districts to select electors. Executive: Electoral college; Appointment of federal judges (lifetime). Judiciary: S.Ct. settles disputes within states re certification and process for election. Final arbiter. State Legislature: Grant citizens right to vote; eligibility requirements; Representatives are elected officials, e.g, Sec. of State. Bipartisan overseers of elections. Governor: Appoint election officials; state judges. Judiciary: Elected judges are final arbiter at state of election disputes. Often resolve on procedure grounds. (More political). Separation of Powers in Voting

5. Rules of Succession-President Dies or is Incapacitated • Vice President • Speaker of House, • Pres. Pro Tempore of the Senate, • Secy of State, • Secy of Treasurer, • Secy of Defense, and • Attorney General (Presidential Succession Act of 1947) Observation: If there is a two-party Congress then Presidency could switch parties.

6. Congress delegated to FEC power to implement rules re congressional elections, campaign contributions. Vote for electors on same day. FEC oversees Exec and Congressional elections. State law prescribes process and standards for voting. Sec. of State oversees elections (elected or appointed) Local election officials appointed via ties to party. State court judges elected. Those appointed subject to retention Politics of Voting

7. Secretaries of State Sup. Court Justice Politics of Balloting

8. 2000 Presidential Election • 2% of ballots cast in Gore-Bush election were not counted. • Punch balloting machines not punched clean or completely. • Dem. Controlled canvassing board voted to do manual recounts in Dem counties + Gore • Rep. Sec. of State moved to block or ignore votes +Bush • St. S.Ct. (6 Dem judges + 1 chosen by Dem & Rep.) ordered Circuit court (Rep.) to tabulate by hand 9,000 ballots in Miami-Dade and certify intent in others. • Gov. was Rep. (Bush’s brother) • Sec. of State had to certify election by Dec. 12 per statute.

9. 2000 Presidential Election SCt. decided election on procedural grounds because there had to be a winner. Could not be addressed politically. Ct. did not question order of St. S.C. to determine voter intent. Agreed there was a lack of specific standards to ensure equal protection. Unanimous agreement of problem but disagreed on remedy. Recount could not be conducted to comply with equal protection in the time frame given to certify election so reversed St. S. Ct. order for a manual recount. Gore may have gotten more popular votes, but Bush got more electors and certified as winner. SCt. Vote split along political lines. 5-4 vote.

10. Observations • While there were issues in counties of ballots in paper bags left in storage hutch in remote areas, no allegation of fraud by either party. • Lawyer’s framed the issue to allow the court to act while still being objective and bipartisan. • Focused on Process Rather than Substance. Q: COULD THIS HAVE HAPPENED IN A STATE WHERE GOVERNOR WAS NOT THE BROTHER OF ONE OF THE CANDIDATES?

11. Issues • Is it the methods of balloting or the standards for counting votes at issue? • What standard does the court impose upon itself in its obligations to enforce the laws? • Should election officials be lifetime appointees or bureaucrats to make process less political?

12. Lessons • The political process is like a chess game. Prior moves narrow available options later. • The key is having an effective strategy and being able to project and direct the process. • There is no need to use illegal methods to participate and be successful. • The system should retain a certain degree of check and balance to allow anyone to use it.

13. Case Study Analysis Approach in evaluating a case study or problem: • What is the problem or need and why is it important? • Can the problem or need be addressed under existing statutory authority? • Are the interests of the parties mutually exclusive? • If not, what are the common interests that can lead to a process for resolving other issues.

14. What is the Problem? • What is the underlying problem behind what happened in 2000? • What need or right is being addressed? • Why is it important? • Who are the actors?

15. What is the Problem? • States employ different methods to cast and count votes; recount and certify elections. • System is run by persons affiliated with a political party with incentive to act in a way that benefits party? • Voter intent may not be achieved resulting in violation of equal protection.

16. Why is it Important? • In close elections, more likelihood of recounts. E.g. Fla. 13th District • Buchanan led Jennings by 364 votes out of 238,000 votes cast. • Short timeframe between election and certification of results. • Constitution guarantees the right to have citizen’s vote counted.

17. Applicable Facts • Some states mandate hand recounts if margin of win is below 2/10th of 1%, E.g., Oregon, uses punch cards and marked paper ballots with a system of checks and balances for counting. • Process: Assemble ballot containers to ensure no tampering; break seals in front of board (bipartisan); Ballots for challenged elections sorted into stacks; divided into bipartisan teams, and count and record on scratch paper. Recount until agree. Certify winner. • Person requesting pays for recount (up to $200K unless prevail) • Pros: Easy to do, tradition of generations • Cons: Time-consuming (five days) • Other states restrict number of recounts and use computers for recount. E.g. Florida

18. Applicable Facts • Technology in voting arises: 1) registration of voters; 2) voting in person via machines; and 3) voting from remote locations.

19. 1. Registration Nat’l Voter Registration Act of 1994 • Requires all states to allow persons to register at DMV or office with driver’s license. Goal is to provide easy access to register. --some states ask for social security no.; confirmation of address; or verification via signature on driver license. --problem: what if you do not have a residence where pay utilities, or drive or other form of identification. --most electronic verification is secure enough to prevent large-scale fraud.

20. Proposals • Allow persons to verify residency different ways, e.g., state identification number. (Flexible, but subject to fraud.) • Require proof that resident, AND, U.S. citizen. (Target Immigration issues) • Require everyone to have national id card or passport to register. (Centralize database of persons)

21. Electoral College: 12th Amendment • Electors vote in their respective states for President and Vice President. • Voting lists are certified & submitted to President of Senate, who in presence of both open and count votes. • Greatest votes wins; if no majority, then House selects President subject to quorum requirements.

22. 2. Voting & Counting As of 1996 methods of voting were as follows: • Paper ballots, used by 1.7 percent of the population; • Mechanical lever machines, used by 20.7 percent; • Punch cards, i.e.,card on a clipboard, used by 37.7 percent; • Marksense optical scans, i.e., ballot card preprinted with an empty rectangle, used by 24.6 percent; and • Direct recording electronics, which replace the mechanical lever, used by 7.7 percent. • Marksense optical scans and direct recording devices are relatively new technologies and have not been widely used.

23. Voting Equipment Reforms E-Voting: Help America Vote Act of 2002 FEC spent millions for states to convert to paperless, electronic voting machines. • Touch-screen windows with prompts: • Pros: Easy to use; Accessible by disabled. • Cons: Confusion of multiple candidates on same page • Scanned paper ballots • Pros: Old tried and true • Cons: Printing and storing paper ballots is a headache. Requires special ink, expensive paper, held in secure warehouses. cost Counting: Manual or computer • Often undervotes, i.e, people don’t complete ballot. • Recounts usu. add votes but don’t change outcome. • Hand inspection with bipartisan team, with verification produces greater accuracy but is time consuming

24. Proposals • Add printed record to E-voting machines via receipt printer (Holt bill ’07) • Pros: Accessible to disabled, Easy to use • Cons: Printer jams, out of ink, cost • Add optical scanner • Pros: Verify intent • Cons: Misses light marks, not work for remote voting, cost • Eliminate and return to paper ballots;

25. Applicable Rules • States confer right to vote per state constitutions by adopting state-wide election system. • States differ on process, methods, and recounts & certification. • Electors and election officials have political affiliation. • Once states grant right, individuals have constitutional right to equal protection (15th Amendment)

26. Assignment The federal government has convened a group of experts to study the issue and make recommendations to the committee about adopting mandatory voting standards, subsidizing the costs to states of new voting equipment, and permitting Internet voting. You are decide three questions: 1) Should Congress pass a law creating mandatory voting standards, and why or why not; 2) If national voting standards are established, how should the government provide incentives for states to adopt them, or penalize states who fail to adopt them; 3) Where challenges are raised that votes have not been counted or the voter's intent realized, what protections, if any, should be put in place to prevent intentional abuse or misuse of the voting system. Players: Federal Government & State Governments

27. If Yes, then What needs are addressed? What governmental interests are achieved? What risks or limits need to be addressed? How will Feds address? If No, then What’s does that mean? How, if anything, needs to be done? What is the problem? What will be the consequence? 1. Require mandatory voting standards?

28. If Yes, then Achieve uniformity among states; Reduce arbitrary actions by states; Achieve voter intent; But, Feds have limited authority to mandate compliance; And, likely have to subsidize cost. If No, then FEC can respond to any problem, via existing authority; There are no major problems with current process; But there are complaints re voter intent not reflected; And, disrupt process in close elections. 1. Require mandatory voting standards?

29. 1a: If Legislation is Required, What Areas should be Addressed? • Proof for Registration • Voting Equipment • Collection and Retention of Ballots • Methods for Counting and Recounting • Certification of Voter Intent.

30. Federal Government Direction to states re options; Easy process to apply; Requirements: Timeframes, Equipment standards, Contracting, Testing, Security, Training Congress must be appropriate funds. Reporting and Oversight (audits) State Government Cost Flexibility to incorporate current methods. Acceptance of new standards Ease of transition. Timeframe to comply. Ease of use Training Funds for compliance Application Terms Amount Minimal Oversight 2) Incentives for Compliance?

31. Negotiation Strategy • Find common areas of interest. • Those areas become framework for then prioritizing other interests. • Identify basic issues of each party. • Rank in importance. • Can address the issue with a different solution?

32. Small Group Discussion • Individually Complete CPS worksheet w/ footnotes (readings not PPT) • Answer 3 questions in group. • Brainstorm on Solutions if Law is Proposed. • Select from Possible areas. • Presenters answer questions, propose and defend reform.