1. Ensure Ballot Integrity

A Plan to Renew the Promise of American Life, Plank 1


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Plank 1. Ensure ballot integrity.

Specific Recommendations

1.1. To safeguard the sanctity of the ballot in federal elections: 1) permit only citizens of the United States to vote, 2) require states and localities to keep voter lists cleaned up on a continuous basis, 3) require a valid form of identification for in-person voting, 4) encourage states to join an interstate compact for sharing voter-registration information on a real-time basis, 5) make same-day registration at least as fraud-proof as pre-election registration, 6) require that absentee and online ballots be notarized or verified in a truly reliable way, 7) repeal and prohibit vote-by-mail schemes, and 8) prohibit and punish ballot harvesting and the fraudulent production and bundling of mail-in and absentee ballots.

1.2. To maximize voters’ confidence in election results, encourage the use of paper ballots and make electronic and online voting at least as secure as online banking. Count ballots in the presence of independent observers, and permit voters to photograph their completed ballots for future reference.

1.3. To ensure a reasonable simultaneity of voting, restrict early-voting periods to no more than, say, seven calendar days immediately prior to election day. To reduce gaming and coercion, do not allow votes to be changed, once validly cast.

1.4. To encourage higher voter turnout, publish the fact of whether a person has voted in a given election, after the polls have closed, without revealing how he or she voted.

1.5. To restore voter sovereignty and the benefits of healthy political-party competition: 1) greatly increase ballot access for third and minor parties, 2) allow only party members (as defined by the party, not the government) to vote on internal party matters, including nominations, 3) encourage parties to employ Utah-style neighborhood caucuses instead of primaries, and 4) abolish open (‘cross-over’) and non-partisan (‘jungle’) primaries. In doing these things, always strictly enforce the civil rights of all citizens.

1.6. To strengthen voter satisfaction with election results, and to obviate the need for recounts and runoffs, adopt instant-runoff voting, also known as full preferential or ranked-choice voting.

1.7. To ensure that voters choose their representatives and not the reverse, take reasonable steps to minimize the evils of gerrymandering. For example, have independent nonpartisan commissions, whose members are chosen by lot, draw district lines after each census, guided by sensible rules, such as ‘keep districts compact and simple,’ and ‘follow county lines, where possible, regardless of partisan distribution.’ Do not let judges draw district lines.

1.8. To keep Representatives and Senators dependent on their constituents, eschew proportional representation schemes. Stick with single-member geographic districts.

1.9. To encourage wiser deliberation in lawmaking, and a salutary stability in the law, repeal and eschew such Progressive-era ‘direct democracy’ reforms as initiative, referendum, and recall. Instead, leave all ordinary legislative questions to the people’s elected representatives.

1.10. To prevent a few populous states from dominating presidential elections, preserve the Electoral College and eschew the National Popular Vote Compact and similar schemes that would subvert the Founders’ wise and highly successful system.

1.11. To bring the House of Representatives closer to the people, expand the House to maintain a ratio of six Representatives for every one Senator. Specifically, after the next census expand the House to 600 members. Thereafter, whenever a new state joins the Union, expand the House by twelve seats, distributing the new seats by population as is done after each decennial census.

1.12. To make Senators and Representatives more productive, 1) compensate them on a per diem rather than a salaried basis, paying them only for days actually worked, and 2) permit them to vote remotely, at reduced pay, from a district office or their state’s capitol building.

1.13. To diminish political corruption, eschew the impossible goal of ‘getting money out of politics’ and instead dramatically shrink the size and scope of the federal establishment and restore strict constitutional limits on federal power—the only reforms that can even hope to actually reduce corruption and the influence of money-in-politics. Repeal all existing federal campaign-finance laws, except those prohibiting contributions by foreigners, and leave it to states to regulate campaigns according to common sense, as the Founders intended.


Explanation

Before explaining the recommendations, three brief comments. First, my apologies if some of these recommendations strike the reader as boring or trivial. This plank is a bit of a catch-all, gathering into one place a series of recommendations related to voting, campaigns, political parties, and representation.

Second, the plank’s title. I could have dubbed it ‘Restore Popular Sovereignty,’ which is its goal, or ‘Reform Voting and Representation,’ which is how it tries to achieve that goal. But I think ‘Ensure Ballot Integrity’ is better than either, because it goes to the root. Without it, the larger goals can’t be reached.

Finally, be aware that these recommendations are by default addressed to state governments, rather than to Congress, except in situations where, for constitutional reasons, Congress must get involved or take the lead.

And now let us turn to the individual recommendations.

Ballot integrity. If we can’t trust the results of elections, we can’t know what the voters want. Enforcing strict ballot integrity safeguards the Constitution. And it encourages democratic participation by giving citizens the confidence that their vote counts.

Who has the power to ensure ballot integrity? Under the U.S. Constitution, the duty of safeguarding the sanctity of the federal ballot is shared by Congress and the states. States do the actual work of conducting federal elections, and have power to regulate who may vote in them, subject to minimal limitations (principally the Fifteenth, Nineteenth, and Twenty-Sixth Amendments, which guarantee the elective franchise, respectively, to all adults regardless of race, sex, or age). Congress, by contrast, has power to regulate when and how we vote. States run the elections and, within limits, choose the voters. Congress regulates the voting.

To ensure ballot integrity, we should err on the side of ensuring that eligible voters can cast a vote, but we should also be vigilant against fraud. Therefore, we should enact the list of reforms specified in recommendation 1.1. At a minimum, in my view, we should ban ballot harvesting and absentee-ballot fraud and ideally vote-by-mail schemes too.

Voter participation. As for same-day registration and early voting (protracted voting periods), while I find them unnecessary and fraud-friendly, I cannot say they are wrong in principle, so long, again, as we have strict ballot integrity as defined above. But I do prefer that these practices be minimized, especially early voting, which creates a disparity-of-information problem.

Secrecy of voting. The great benefit of ballot secrecy is that a voter can vote his true opinion without fear of reprisal. The downside is he can vote selfishly or maliciously with impunity. Since the benefits clearly outweigh the downsides, I’m in favor of secret balloting. But I think the problem of selfish voting can be mitigated by publishing the fact of whether a person has voted in a given election (after the polls have closed), without revealing how he or she voted. This would put gentle pressure on people to participate, without (as in Australia) fining them for not doing so. It would also facilitate electronic and online voting, which I personally find attractive, provided the online voting is secure and the data is completely de-identified post-election (meaning the government retains a record only of the number of votes cast, not of how each person voted).

Frequency of voting. The age of online voting is upon us. Inevitably many if not all public elections will be conducted via the internet. Unfortunately, the low cost and convenience of online voting will make it tempting to hold elections more frequently than we do today, and even to refer policy questions directly to the voters (plebiscites). This would be taking a good thing too far. Legislation by direct democracy inevitably leads to injustice and instability in the law, as we’ve seen in states with Progressive-era ballot-initiative systems. Online voting may be inevitable, but legislating through online plebiscites would undermine the need for and benefits of representation. Just say no.

Political parties. Political parties are voluntary associations of private citizens who have banded together to influence public policy. They are a good thing. Our Constitution cannot function effectively without them. But to work, they must be independent, privately run, and self-governing. For example, they must be free to nominate their own candidates, and adopt their own platforms, without any meddling from non-party members. To prevent the tyranny of one-party rule, a multiplicity of parties should be encouraged, with voters sorting out the serious from the frivolous by a process of natural selection. States should allow lots of parties on the ballot, not just the two big ones, and use instant-runoff (ranked-choice) voting to keep things manageable. Governments should not rig the game to keep third or minor parties off the ballot. At the same time, governments should eschew proportional representation schemes, which can lead to an excessive multiplicity of small, rigid parties, à la Weimar Germany. If we are going to restore citizens’ ability to reap the benefits of political parties, we will have to get rid of certain anti-party ‘reforms,’ specifically primary elections and especially open and jungle primaries. That may sound radical, but remember, primaries are a relatively recent invention, dating from the Progressive era. Primaries enable local governments to influence public policy by meddling in parties’ nominating processes. Parties are forced to allow anyone who claims to be a party member to vote on nominations, not just those who are truly committed to the party’s principles and platform. In other words, lazy, occasional, half-hearted, and even malicious voters are encouraged to swamp the votes of real party supporters, in order to drive the parties in the direction of favoring the status quo. ‘Open’ primaries are designed to narrow the range of ideas that can have be heard in public affairs (again, to advantage the status quo), by enabling partisans of one political party to participate in the internal affairs of another. In ‘jungle’ or ‘non-partisan’ primaries, all candidates are forced to compete on the same ballot, regardless of party. Jungle primaries are an invitation to one-party control of a jurisdiction, and I think Congress may have power to outlaw them under the Constitution’s Guarantee Clause. Certainly states should eschew them. What should states do instead of primaries? They should let parties make their choices at state conventions, where delegates chosen in precinct-level caucus meetings gather to make the decisions in person. This used to be the default system in most places, and is still used in Utah. Neighbors living in each precinct choose a delegate to represent their precinct at the state convention. This system ensures that people who are familiar with each other have a chance to debate and discuss the races at hand, face to face. Unlike primaries, which are easily influenced by deep-pocket corporate interests mounting paid advertising campaigns, influencing neighborhood caucuses requires lots of old-fashioned person-to-person organizing, which requires having a lot of identified and motivated local supporters. Remote big-money interests are usually pretty bad at that kind of organizing. An in-person process improves the quality of nominations and platforms by attracting voters who know and care about the issues and candidates.

Gerrymandering. Gerrymandering—the practice whereby the representatives choose the electors rather than the other way around—is a disgusting American custom. But constitutionally speaking, it’s a matter for the states to address, not Congress. Some states seem to have had success in reducing gerrymandering by handing the job of drawing district lines over to an independent commission. That works where the commission is well-designed to minimize partisan distortion, such as when members are chosen by lot, and where the commission must follow certain sensible rules, such as: Keep districts compact and simple and Follow county lines where possible, regardless of partisan distribution. Leaving the line-drawing task to judges, as some states do, is dangerous. Judges can be just as partisan as elected officials. Better to select commissioners likely to be impartial because they have no vested interest in existing partisan structures. Even more dangerous to liberty is the system known as proportional representation. It severely attenuates the link between voter and representative and tends to centralize power in the hands of party bosses and entrenched incumbents. Many countries use proportional representation. We should not. We are much better off with the ancient Anglo-Saxon system of single-member, geographic districts, which help protect liberty by keeping the representative dependent upon his constituents.

One man, one vote. Neither justice nor ballot integrity dictate that we apportion congressional districts on a strict basis of ‘one man, one vote.’ That principle is admirable, but isn’t always practical and shouldn’t be taken to extremes. The Founders provided a sufficient approximation of ‘one man, one vote’ through decennial redistricting, and we should stick with that.

Representational ratio. Some thinkers would greatly expand the number of federal Representatives, on the theory that there are too many voters per Representative today. I have sympathy for this view, but the question is how many should there be? The number of Representatives, which grew after every decennial census from 1790 to 1910, has been legislatively frozen at 435 for a century now. The Founding generation spent a lot of time discussing how many constituents per Representative there should be. Their consensus was to keep House districts relatively small and numerous. The original ratio in 1789-1790 was 30,000 people per Representative. Today it is more like 750,000. If we went back to the 1790 ratio, the House of Representatives would have 10,000 seats. Surely that’s too many: the House would be tumultuous, its leaders too powerful. Many smart people have looked at this question. There appears to be no perfect solution. Some favor the so-called Wyoming Rule, which basically requires that no House seat can have more people in it than does the least populous state. This is a pretty good rule, and if implemented today would give us a House somewhere between 550 and 600 seats. But the rule isn’t perfect (no rule is). My own preferred solution is simply to fix the ratio between the number of House seats and the number of Senate seats at 6 to 1, meaning six Representatives for every one Senator. (The 1790 ratio of Representatives to Senators was 2.5 to 1. If we went back to that today, the House would have just 250 members.) After the next census, we would expand the House to 600 members, and then, whenever a new state joins the Union, we would expand the House by an additional twelve seats. The new seats would be distributed by population as is done after each census. As I say, there’s no perfect solution, but this, I think, would get us pretty close to the sweet spot.

Postscript (July 1, 2018): A citizen-lawyer named Eugene M. LaVergne claims that a constitutional amendment penned by Madison and proposed by the First Congress in 1789 was actually ratified in 1792 and not rejected as historians claim. The amendment, the first on the list of twelve proposed by the First Congress, and the only one of the twelve that has not been ratified, requires a ratio of one Representative per 50,000 constituents. The state of Kentucky, Mr. LaVergne argues, was the twelfth of the fifteen states to ratify, putting it over the three-fourths hurdle and thus making it a valid part of the Constitution. Why don’t we know about it? Because, he says, Kentucky and two other states did not bother to notify Congress of their vote in favor of ratification. LaVergne argues that notification is not required by the Constitution, only ratification. If this argument persuades Congress (which I think has to be the ultimate arbiter of these kinds of questions), the House today should have 6,150 members, not 435. Holy cow! LaVergne has filed a lawsuit in federal court seeking enforcement of the allegedly ratified amendment. I have not tried to verify his claims, but other smart people have, and they say his historical facts check out. What happens next? I suspect the courts will dismiss the case, probably on the assumption that formal notification of Congress is in fact required for a constitutional amendment to take effect, even if the Constitution makes no mention of such a requirement. Which is quite reasonable, if you think about it.

Campaign finance. What about ‘money in politics’? Shouldn’t Congress cap political donations and ban anonymous ones? No. Federal campaign-finance laws are unconstitutional. The Constitution grants Congress no power to regulate campaigns, not even in the Times, Places, and Manner Clause (Article I, Section 4). That power is instead left to the states. Could Congress at least require timely disclosure of campaign contributions and contributors’ names? No. While I favor such disclosure, as a policy matter, I oppose it on constitutional grounds. It violates the freedom of the press guaranteed by the First Amendment. In America, citizens have a constitutional right to give money to campaigns anonymously. I may not like that, but it’s the law. Those who find the situation intolerable can certainly try to amend the Constitution, but I don’t wish them luck. I think efforts to ‘get money out of politics,’ by overturning Citizens United and so on, are misguided. They target the symptoms instead of the disease. Our institutions are not corrupt because special interests fund politicians. They’re corrupt because special interests seek to capture government’s unlimited power. Therefore, to reduce political corruption, limit government’s power. And if you limit government’s power sufficiently, special-interest funding will well-nigh vanish.


Constitutional Amendments

This plank does not require any constitutional amendments.


Benefits

Will help restore confidence in our public institutions.

Will ensure that the voters choose their representatives and not the reverse.

Will ensure that political parties shape the government and not the reverse.

Will ensure the government serves the people and not the reverse.


Revised: February 19, 2019.

First published: June 21, 2013.

Author: Dean Clancy.

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One Reply to “1. Ensure Ballot Integrity”

  1. I would also like to see a mandatory jail sentence of five years for anyone convicted of voting illegally. The presiding judge should have no power to reduce or eliminate the sentence. If the fraudulent voter is here illegally he or she should be immediately deported upon completion of the full sentence. Again, the judge should not be allowed any discretion in reducing the sentence.

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