By Mary Beth Beazley
Fellow, Election Law @ Moritz
Associate Professor of Law and Director of Legal Writing
Moritz College of Law

This entry is the second of a two-part series.

Last week in this space, I proposed that local television stations should use some of the money they take in from political ads to produce news segments and Public Service Announcements (PSAs) to educate voters. (read last week’s comment) This week, I offer my thoughts on how local television might accomplish the goal of educating voters.

The voting booth has long had the privacy of the confessional, but that doesn’t mean we can’t peek inside to find out how it works. Television can use its unique ability of show and tell to give voters a complete picture of the mechanics of voting, from the time they arrive at the polling place to the moment they cast their ballot. Because voting practices vary – even from county to county – local television stations are well suited to provide this training.

Television news segments and PSAs can include information geared both to all voters and to voters in particular counties. (For example, all voters must sign in at the polling place, but not all voters will use punch card ballots.) One segment could start in the parking lot, and follow a voter entering a typical polling place, illustrating how to find the correct precinct in a multi-precinct location, for example. More importantly, reporters can describe the rare occasions when voters might be asked for identification. Although a report might advise that all voters bring identification for safety’s sake, explaining the few circumstances when voters must show identification, and the alternative methods of providing it, can help to educate poll workers so that they explain options correctly to voters.

Another segment might show a poll worker trying to turn away a voter who believes he or she is registered, and then give a lesson in provisional balloting. Because – unfortunately – some states are still figuring out how best to comply with the provisional balloting requirements in the Help America Vote Act, these reports could serve the dual function of forcing state officials to make a decision and then educating voters and poll workers. Still another segment could show the procedures for requesting and voting with absentee ballots. Such a segment might be particularly important, both because there has been a push to use absentee ballots this election and because voters often must figure out any confusing directions on their own.

Most importantly, a report could show a person going into the voting booth and looking at a big ballot with numerous races, or a booklet with many holes to punch, or whatever the apparatus happens to be. It is important to show what voting actually looks like: even though the reporter’s demonstration is obviously a simulated rather than a “real” vote, the simulation needs to be exact, so that viewers know precisely what to expect on election day. (To avoid partisanship while still using the very same ballot the voters will see on election day, the reporter could alternate among different party candidates while moving down the ballot and, with respect to the mostly hotly contested races, could demonstrate how to vote for each of the candidates.) Using actual ballots is vital, moreover, because doing so can help to clear up wrong or misleading ballot instructions. In Florida in 2000, for example, some ballot instructions wrongly advised voters to “vote on every page,” and then listed presidential candidates on two pages.

While ballot design experts are currently studying how best to create a ballot that will prevent most mistakes, elections officials are probably well aware of common mistakes on the ballots currently in use. When the punch card controversy erupted in 2000, everyone was surprised except for elections officials: they had known about hanging chad for years. Television stations could interview local elections officials to find out what kinds of mistakes voters might make on each kind of ballot, and what the voter can do to avoid or fix those mistakes.

Furthermore, many voters aren’t aware of the kind of help they can get on election day – for example, that they can get a new punch card or optical scan ballot if they spoil the first one (or the second one). Having a reporter demonstrate how to ask a poll worker for a new ballot could both give concrete lessons in how to ask for help (lean out of your booth, don’t leave it) and make it more socially acceptable to seek assistance.

Stations could best promote voter education by repeated airing of the segments – either as news reports or, excerpted, as Public Service Announcements. A typical election-year PSA reminds voters to vote and speaks glowingly about the Constitution, but doesn’t provide much information. Why not use PSAs to remind voters of important details? Show a reporter filling out an affidavit at the polls while a voiceover says, “Unless you registered in person, you may need to complete an affidavit or provide identification,” Or show a reporter leaning out of a voting booth and motioning for assistance while the announcer says, “Make sure your vote counts: if you think you have made a mistake, ask a poll worker for help.” These types of PSAs could educate both voters and poll workers (who often get 2 hours or less of training).

True, both the close of voter registration and the election are fast approaching. But television news crews are accustomed to doing legwork and chasing down stories on short notice. If the 2000 election crisis was a tornado – unexpected – the problems with the 2004 election could be described as a hurricane. We know it’s coming, we know there will be problems, but with enough preparation, we might be able to ride out the storm.

By Mary Beth Beazley
Fellow, Election Law @ Moritz
Associate Professor of Law and Director of Legal Writing
Moritz College of Law

This entry is the first of a two-part series. The second entry will run next week.

There has been much talk this year about how widely polarized the electorate is, but there are two facts on which almost everyone agrees. First, that a lot of voters will be voting on unreliable voting systems, and second, that local television stations will be making a lot of money from political ads. These facts are not unrelated: I submit that local TV stations should use some of their political profits to produce news segments and Public Service Announcements that educate their viewers about how to vote.

Four years ago, Ohio was put on notice that it was time to get rid of punchcards. Unfortunately, that warning was not heeded in time; about 70% of Ohio voters will be using the discredited system this November. It’s too late now to lament the state’s failure to install a more reliable voting system for the 2004 election. Instead of just wringing our hands in dismay, however, we need to see whether we can avoid at least some of the problems of punchcards and other voting systems. What can we do to stop Ohio from becoming “another Florida”?

Perhaps the best method would be a massive educational effort put on by the county boards of elections. Some boards are trying outreach efforts. For example, in Cuyahoga County, the Board of Elections sets up a booth at various public events; they let voters see a punchcard machine, pick it up and look at it, and try it out. In addition, on the web site for the Hamilton County Board of Elections, voters can click on a “Voting Procedure Guide” that lays out eight basic steps for voting, including these three items that many Florida voters would have been glad to know in 2000:

• Carefully punch your choices in the holes next to the arrows. If you vote for more than allowed, none of the votes you cast for that office will be counted.
• When you have finished voting, remove your ballot card and inspect the back to remove any chad (rectangle punches) that may still be attached.
• If you make a mistake on your Ballot Card, you are permitted to return it for a new one.

This is exactly the kind of information that can cut down on voter errors. But government outreach alone cannot do the job for this election. Government doesn’t have the time, it doesn’t have the money, and it can’t reach all Ohio voters in the next two months. Television, however, has the money, and it has the ability to enter the home of every voter in the state multiple times between now and November 2.

Ohio has nine media markets, and the TV stations in them have been raking in millions of dollars for broadcasting political ads. Experts project that campaigns will spend 1.5 billion dollars on television advertising this year. Thanks to their location in a battleground state, Ohio television stations will take in a hefty percentage of that total. (In the month after the Democratic convention, Ohio had four of the top six markets for political commercials, according to the Nielsen Monitor-Plus and the University of Wisconsin Advertising Project.) The money is rolling in so fast that, as one Ohio ad executive joked to a friend, “We don’t know where to put it all.”

Well, here’s something they could do with it: they could take a tiny percentage of that money and produce news segments and Public Service Announcements to educate voters about the mechanics of casting a ballot. Some television stations may already be taking steps to educate voters, but the problems revealed in the 2000 election indicate that education needs to be offered with much more specificity and on a much larger scale. Local television is peculiarly well-suited to this task, given the state and local variations in both registration and voting. TV news and PSA’s can teach voters how to verify their registration and find out where to vote, how to avoid common mistakes on each of the voting systems in their viewing area, and how to talk to poll workers if problems arise.

Providing this type of voter education can promote three goals. First, it can prevent voter error by showing registered voters how to avoid the mistakes that are common with each voting system. Second, it can educate poll workers, who may not absorb all of the details in the too-short one evening of training usually provided. (And in a typical year, many poll workers receive no direct training at all.) Finally, showing how voting works can encourage those who are unregistered to become part of the process.

Until the tornado of problems that arose in the 2000 election, TV stations could be excused for not recognizing this important need. That election showed, however, that any one of several different problems, from ballot design to voter registration lists, can make the difference in a close election. In fact, there are so many “candidates” for issues to be covered that I can’t list them all in this one Comment. Tune in next week for my thoughts on how local stations can use the power of television to help their viewers use the power of the ballot.

By Steven F. Huefner

Many contemporary observers believe that the United States today is as deeply divided politically as it has been in generations. At the same time, the country also appears to be about as evenly divided as it could be, if party loyalty is the test. Of course, the closeness of the political divide likely contributes to the stridency of opinions on either side of the split. However, another factor may bear heavier responsibility for the vitriol and extremism so prevalent in American politics today: partisan gerrymandering.

Of course, gerrymandering has been with us for centuries. But its political impact has grown dramatically in recent decades, primarily as a result of powerful computer modeling coupled with increasingly sophisticated analyses of voter allegiances and demographic trends. In the hands of party loyalists, these tools have permitted the drawing of congressional districts and state legislative districts that are increasingly “safe” for the party in power, at least in the short term. The result is an impoverishment of our politics.

Every 10 years, the United States Constitution requires that seats in the U.S. House of Representatives be reapportioned among the states based on population, as determined by the decennial nationwide census. In turn, each state then draws its own internal boundaries to create the number of congressional districts to which it is entitled, subject to the “one-person, one-vote” requirement that each district has an equal number of residents. States also have typically used the decennial census as the basis for drawing district boundaries for state legislatures.

Unfortunately, the redistricting process in most states today is an intensely partisan enterprise, whether conducted directly by state legislatures or by special redistricting commissions appointed by political party. As a result, the drawing of legislative district boundaries is generally influenced primarily by calculations intended to reduce the competitiveness of most districts, to preserve the party in power, and to protect incumbents. In effect, partisan redistricting enables legislators (or their party surrogates) to choose their voters, rather than vice-versa. Furthermore, the efforts of the party that controls the redistricting process to protect its majority status typically have the effect of enhancing the security of at least some of the minority party’s districts as well.

Both following the 1990 census, and then even more profoundly following the 2000 census, this political redistricting has created safe districts that tend to reward the “base” of each party at the expense of the political middle. The only meaningful contests over who will occupy these safe seats increasingly occur in the primary elections, when voter turnout is low and overwhelmingly dominated by party faithful. This political climate generally favors the more extreme candidates of both major parties, who find success in the primary elections, waltz to easy victories in uncompetitive general elections, and then give rise to increasingly polarized legislatures. Moreover, once in office these representatives continue to have the political incentives to reward their party base, rather than to represent a broader cross section. This development contributes to public cynicism about politics and to the sense among many citizens that their participation is unimportant.

Can anything be done to reverse this disturbing trend? A prior Weekly Comment has lamented the U.S. Supreme Court’s recent refusal to halt the political gerrymandering at issue in Vieth v. Jubelirer. But judicial intervention is not the only option. For instance, as the result of a 2000 ballot initiative, Arizona now redistricts using an independent redistricting commission, comprised of two Republican commissioners, two Democrat commissioners, and a fifth non-partisan commissioner, chosen by the first four commissioners from a slate of nominees selected by the state’s judicial nomination panel. The commission is charged with drawing district lines subject to specified criteria on a nonpartisan basis. In Iowa, while the state legislature retains the final authority to adopt legislative district boundaries, since 1980 the legislature has delegated the redistricting process to its nonpartisan Legislative Services Bureau, and prohibited the bureau from considering political affiliation or previous election results in the drawing of district boundaries. In addition, a number of citizen groups, such as the Center for Voting and Democracy, are actively encouraging reforms in our redistricting processes.

Unfortunately, these groups are fighting an uphill battle, especially in states without a popular initiative, where elected representatives must be persuaded to adopt reforms that would deprive them of redistricting as a means of self-protection. But this battle needs to be fought. The fact is that many moderate Americans justifiably feel disenfranchised by the polarization of our politics that has occurred in recent years, and neutral redistricting would do wonders to ameliorate this development and rejuvenate our country’s representative democracy.

Director’s Note: For this Weekly Comment, we are using a new format: a “Point-Counterpoint” exchange of views by two Moritz professors. The topic is the requirement that churches and other charities that are tax-exempt under section 501(c)(3) of the Internal Revenue Code refrain from participating in election campaigns on behalf of, or in opposition to, any candidate. (Background information on this topic is available in Section 3.5 of the e-Book on Election Law.) Our experts are Allan Samansky and Donald Tobin, and their difference of opinion illustrates the difficulty of developing settled rules in this area of law.

Point: Allan Samansky

Fellow, Election Law @ Moritz
Robert J. Watkins/Procter & Gamble Designated Professor of Law
Moritz College of Law

In the current presidential campaign, as in prior ones, the role of churches and other religious organizations in supporting or opposing particular candidates has aroused strong and conflicting opinions. My view is that a strict and absolute prohibition of campaign activity by religious institutions that supports or opposes candidates is neither desirable nor possible. Because the Internal Revenue Service and others frequently give lip service to an impossible interpretation of the “no intervention” in political campaigns rule, we do not have clear and sensible guidelines, but instead confusing rules that are often honored in the breach.

The law seems clear. To be eligible to receive deductible contributions and qualify for tax exemption, an organization must not participate in any political campaign “on behalf of (or in opposition) to any candidate.” The ban is absolute, in contrast to the prohibition against lobbying by exempt organizations that applies only when a “substantial part” of the organization’s activities are so engaged. But a statute can always be interpreted to take into account relevant circumstances. The prohibition against campaigning was added in 1954 as a result of an amendment offered on the floor of the Senate by then Senator Lyndon Johnson. As a result, there is little legislative history for this provision and, in particular, no indication that Senator Johnson or Congress was particularly concerned about churches, as opposed to other exempt organizations.

Religion instructs us not only about our relationship to God, but also our relationship to fellow human beings. Every action a person takes is potentially affected by her system of beliefs and moral structure. Religion has played an important and generally constructive role in many of our nation’s great controversies, such as ending slavery and civil rights for all citizens, and it is both desirable and inevitable that it continue to do so. Most of our important political controversies have a significant moral component, and religious leaders and their followers must determine the appropriate role of their religion in influencing individual political views.

Of course, when religious leaders instruct their members about the moral component of public issues, there may be implications about the suitability of various candidates for public office. I believe the leaders should be free to point out these implications. For example, I do not find that the recent and controversial pastoral letter of Bishop Michael Sheridan of the Colorado Springs diocese poses difficult tax issues. (Needless to say, I am not taking any position on the validity of his views or its implications for the Catholic Church.) He forcefully stated that Catholics who vote for candidates that take certain positions “place themselves outside the full communion of the Church.” He has a right, and perhaps religious obligation, to state his views. Of course, others may vehemently disagree with his pronouncement, but it would not be appropriate for the Catholic Church or its contributors to lose tax benefits because a Bishop has stated his views on what he sees as a moral issue, even though he is appraising the religious consequences of voting in a particular way.

Requiring Bishop Sheridan to publicize his views only in an unofficial capacity, as some have suggested, would accomplish nothing. A religious leader does not lose his religious authority or stature when the clock strikes a certain hour or he steps out of a building. Similarly, it is difficult to see what would be accomplished by requiring the Catholic Church to form an affiliated organization that would not qualify under section 501(c)(3) of the Internal Revenue Code and thus would not be subject to the “no intervention” rule. The cost of writing and distributing the pastoral letter, which was apparently printed in a newsletter and posted on the Web, was minor. The religious authority of the author and of the Catholic Church made it significant.

To retain their preferred tax status, religious institutions should not have carte blanche to campaign or collect funds for political candidates. I do not have the space here to work out and rationalize the implications of my position. I will only mention that I think that the appellate court was correct in revoking the tax exemption of the church in Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000), for paying for advertisements in two daily newspapers in opposition to the candidacy of President Clinton. The crucial fact in that case was that the message was not directed primarily to church members but to the public. On the other hand, churches and religious institutions are fulfilling their basic mission when they instruct their members on issues of public policy.

Counterpoint: Donald Tobin

A Bishop in the Catholic Church recently implied that Catholics will “jeopardize their salvation” if they vote for Kerry. The Reverend Jerry Falwell recently endorsed President Bush on what appears to be a Church run website. The head of the NAACP called for “regime change.” A survey done about the 2000 election indicated that approximately 15 percent of the African American pastors surveyed endorsed candidates (historically Democratic ones) from the pulpit. And this is just the conduct that has come to light. All this political activity is conducted by religious institutions and charities despite the fact that they are prohibited by law from intervening in an election. If these actions are not intervention in a political campaign, then almost nothing is.

The intervention in political campaigns by religious institutions and other 501(c)(3) organizations, not only violates the law, but poses great risks to both the charity and the election system. Under our tax system, religious institutions and other charities receive significant tax benefits. Most importantly, contributions to churches are deductible by the person making the donation. This deduction acts as a subsidy to the organization. Thus, as taxpayers, we are all subsidizing these various organizations. One of the reasons that we provide this subsidy is religious organizations and charities are seen as contributing to the good of society as a whole. Even if we are not a member of the particular religion receiving the subsidy, we believe that society as a whole is better off with vibrant religious and charitable organizations.

In exchange for this subsidy, the law requires that charitable organizations, including religious ones, refrain from intervening in an election. Unlike religious or charitable work, promoting a particular candidate for office does not promote general welfare. If as a society we want public funding of political campaigns, we should do so, but we should not allow religion to be a funnel by which tax-deductible donations to charity can be made into tax-deductible political contributions.

The prohibition on intervention in elections not only protects society at large, but also protects religious institutions. If religious organizations are allowed to endorse candidates, tremendous pressure will be put on them to do just that. In a country that so values religious freedom, political pressure on religious institutions to endorse candidates is very worrisome. Religious intuitions may also fear that they will suffer reprisals for failing to endorse the winning candidate.

Allowing religious organizations to engage in electioneering activities may also put the very subsidy they receive at risk. As a society, we may be less willing to support a charitable deduction if we know that the subsidy is being used to attack political candidates we like, or to promote ones we abhor. It is one thing to provide a subsidy to religious institutions generally, and another to provide a subsidy to a religious organization that is working hard for a candidate you oppose.

But what if a religious institution believes that political beliefs and religious ones are inextricably intertwined. For example, if the Catholic Bishop believes that parishioners that vote for Kerry risk salvation, doesn’t he have a moral and religious obligation to tell them so? He may. And if his religious calling so requires, then he, and his church, can decide to forgo the subsidy provided to it by the government. If a religious institution or a charity wants to engage in political advocacy, it may do so; it just may not do so on the public dole.

Any alternative approach will lead to a “gaming” of the campaign finance system at taxpayer expense. If religious intuitions are allowed to use tax-deductible contributions to influence elections, I can see two new religions on the horizon – The Church of Bush and The Church of Kerry.

By Dale A. Oesterle

The most recent two elections of judges to the Ohio Supreme Court have been hotly contested. Parties interested in tort reform — trial lawyers, doctors, insurance companies, labor, and industry — have poured money into the races. A local newspaper estimates that more money was spent in the last Ohio judicial elections than on all the other contemporaneous state judicial elections combined.

The intensity of judicial elections has made for some embarrassing moments. One successful candidate, for example, thanked supporting doctors with a statement that it would “payoff.” Robed candidates populate television spots, asking for votes and sailing as close to the wind as possible to the prohibition of making promises of results. It has also put the judiciary under a public microscope. One political gadfly, for example, now carefully scrutinizes all judges’ expense accounts vouchers and sues whenever a charge appears to be unwarranted.

Ohio politicians have become increasingly uncomfortable with the exposure of judicial appointments to the rough-and-tumble vagaries of electoral politics. Ohio lawyers have become increasingly uncomfortable with an awakening public wondering whether judges are for hire. All of this is leading to a renewed examination of whether judicial elections are optimal.

Ohio’s experience with judicial selections has been a rich and varied one. The original Ohio State Constitution of 1802 provided for the appointment of judges by a “joint ballot of both houses of the General Assembly.” In the early nineteenth century, the legislature routinely made appointments based on patronage and, occasionally, appointed or even impeached judges based on specific doctrinal views. In 1806, for example, the General Assembly impeached two judges for holding a state statute unconstitutional. The State Senate acquitted them by a one-vote majority. In 1810, the General Assembly swept all state judges from office by resolution and appointed new ones of more agreeable dispositions.

By 1850 the people of Ohio had had enough and the 1850 Constitutional Convention produced a new state constitution that provided for the election of all Ohio judges. The principle has survived in all subsequent constitutional conventions and amendments.

Ironically, the last time a resolution made the ballot in Ohio to amend the constitution to stop the popular election of judges, a referendum that failed in the 1980s, the motivating arguments were the reverse of today’s complaints. Proponents of the amendment claimed, in essence, that judicial elections were too low profile, not too high profile.

The public, the argument went, was largely uninformed. Incumbents usually won against nominal opponents. Many voters just skipped the judicial section of the ballot altogether. In those few contested races over open seats the results could be pre-ordained; a well-known incumbent would resign mid-term and run for the open seat. The governor then filled the open mid-term seat with a party loyalist. The low public interest and participation in the elections encouraged the questionable practice.

How times have changed. From claims that judicial elections get too little attention we have migrated to claims that they get too much attention.

By David Stebenne

In 2000, Bush won the White House without winning the popular vote because, once the controversy over Florida recount was resolved in his favor, he had a majority of Electoral College votes. Even assuming that this year’s election engenders no recount disputes, the same scenario could occur in which Bush prevails in the Electoral College but not in the popular vote. In fact, recent opinion polls suggest that this scenario is quite likely.

Over the past few months, Kerry has usually led narrowly in the national polls, but not when one considers the state-by-state results. In that contest, Bush has remained ahead, though not by much. If those trends continue – and that is admittedly a big if – then the country could be in for a replay of the 2000 result, in which the Electoral College winner is runner-up in the popular vote. Never before in the nation’s history has that occurred twice in a row. Indeed, 2000 was only the fourth time, the previous occasions being 1824, 1876 and 1888.

If that happens, public dissatisfaction with the existing system of electing presidents will likely grow. Another Bush victory of that sort might cause disturbances, perhaps even some rioting, in the major urban centers where support for the Republicans is weakest. Even if no actual violence broke out, the sense in the country that the Bush administration is essentially illegitimate would likely intensify. Such a situation would be troubling at any time, but especially so for a nation engaged in a global war against terrorism and the nations that sponsor it. The appearance – and the reality – of increasing division here at home would likely embolden America’s adversaries, which is a result no responsible citizen would want.

If the 2004 election does turn out the way the last one did, calls for reform of some kind will likely be much louder and angrier than they were in 2000. Changing the Constitution in this area has proved to be a very difficult thing to do, because the Republican Party controls Congress and has little incentive to give up the advantage it has under the current Electoral College system. Consequently, it seems pointless to argue for abolishing the Electoral College entirely, or for radically restructuring it, even if such grand schemes were considered desirable ways to solve the problem of anti-majoritarian outcomes.

What might be possible is a more modest change in the way Electoral College votes are apportioned to the states. As things stand now, each state is allocated the number of electoral votes equal to its two U.S. senators plus the number of the state’s members in the House of Representatives. The problem with that approach is that it departs significantly from the principle of awarding votes purely on the basis of population, because every state, no matter how thinly populated, has two U.S. senators. Giving each state two additional electoral votes regardless of its overall population has enhanced the voting power of the least populated states at the expense of the others. And that bias has had far-reaching consequences, because it has tended to increase significantly the likelihood that a candidate could win the overall popular vote and still finish second in the Electoral College.

A simple and realistic reform would be to retain the Electoral College, but drop the practice of awarding each state two “senatorial” electoral votes. If those votes were eliminated, the allocation of Electoral College votes to the states would follow the population-based pattern used in allocating seats in the U.S. House of Representatives. Such a change would also be consistent with the spirit of the constitutional provision that gives the House rather than the Senate the final say when no presidential candidate receives an Electoral College majority. Dropping the senatorial electoral votes would not, of course, entirely eliminate the possibility of one presidential candidate winning the popular vote while another won in the Electoral College, but such a change would make such a result much less likely. This year’s presidential election could very well underscore just how great is the need for that reform.

By Peter M. Shane
Fellow, Election Law @ Moritz
Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law; Director, Center for Interdisciplinary Law and Policy Studies
Moritz College of Law

I recently published an op-ed (available here) expressing dismay with the implications of a constitutional dictum uttered by the Supreme Court in Bush v. Gore: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.” I conceded that state legislatures may be unlikely to exercise the power identified in this sentence—a power to oust the individual voter from the choice of a state’s presidential electors. But, because the possibility looms, I traced its practical implications in a nation where one-party control exists in the governments of four of the most competitive states in the 2004 presidential election.

The op-ed elicited a gratifying flow of e-mail and online commentary. The virulence of one negative reaction, however, surprised me. Namely, a number of e-mails and blog entries more or less called me an “idiot” for failing to recognize the Bush v. Gore dictum as an unassailable reiteration of the Constitution’s plain meaning.

I was not surprised that critics failed to anticipate the precise lawyerly line of constitutional reasoning that might most effectively rebut Bush v. Gore. An op-ed is not a law review article, and the 750 words allotted to me did not permit me to lay out the theory of the Fourteenth Amendment that would prevent state legislatures from choosing slates of electors without recourse to a popular vote. (That theory appears in an essay on the Electoral College that I contributed to this web site, and which may be found here.)

What surprised me is the apparent alacrity with which my antagonists unflinchingly embraced so undemocratic a reading of our Constitution. I would have thought it the American instinct to believe that something like “privileges and immunities,” or “due process,” or “equal protection” would come into play somehow to avoid an anachronistic absurdity. I had not thought that the idea of a living constitution was so moribund that my fellow citizens would accept, without interrogation, the suggestion that their state legislatures could nullify their capacity to help choose the President.

You do not have to be much of a judicial activist to go this far. In the famous Youngstown case, Justice Frankfurter—one of our most heroic embodiments of judicial restraint—wrote the following, which I had always thought to be more or less incontestably true: “The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature…. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”

What gloss has life written upon the constitutional text pertaining to elections? Since the adoption of the Fourteenth Amendment, state legislatures have eschewed popular election only twice—once, in Florida in 1868, a process Florida presumably did not have time to change for that year’s election once the Fourteenth Amendment was ratified, and once, in Colorado in 1876, the year Colorado became a state and thus, I assume, before it had fully worked out a permanent system for choosing presidential electors.

Moreover, since the ratification of the Fourteenth Amendment, we have added thirteen other amendments to the Constitution, six of which were specifically intended to further our constitutional commitment to the democratic process. We extended the vote to persons of all races, provided for the direct election of Senators, extended the franchise to women, permitted District of Columbia voters to choose electors, eliminated federal poll taxes, and lowered the voting age to eighteen. The obvious trajectory of our constitutional development is towards more democracy.

Please do not misunderstand: I do not think my constitutional theory, even exhaustively briefed, would be a “slam dunk,” especially in the current Supreme Court. But I would have thought our political history sufficient by itself at least to predispose Americans to the idea that the Constitution entitles them to help choose their President. At the risk of reading too much into a handful of comments, I am chagrined to discover that my intuition may simply be wrong.

By Daniel P. Tokaji

The 2000 election exposed the shortcomings of the United States’ voting system, including our continuing reliance on antiquated equipment like the infamous “hanging chad” punch card. Since then, a vigorous debate has emerged over new voting technology. The focal point of this debate has been the security of electronic “touchscreen” voting machines.

From a voting rights perspective, touchscreen voting offers considerable advantages over paper-based systems. Touchscreens allow citizens to verify their choices before casting votes and automatically prevent mistaken “overvotes.” They virtually eliminate the racial gap in uncounted votes and facilitate independent voting by citizens whose primary language is not English. Finally, touchscreens can be adapted to allow citizens with disabilities to cast secret ballots — often for the first time in their lives.

Notwithstanding these advantages, some have argued that touchscreen voting is a threat to democracy, and that a return to paper is the only solution. More specifically, they have urged that electronic voting machines be required to produce a contemporaneous paper replica (“CPR”) of the electronic ballot, commonly referred to as the “voter verified paper audit trail.” A handful of states, including Ohio and California, will mandate the CPR in 2006.

Although these efforts are well-intentioned, the CPR is an experimental device that has yet to be proven workable or effective — and has caused serious problems in the few places that have tried it. In a Connecticut trial of the CPR, its user-interface problems were found “appalling.” And as we all know, printers sometimes jam. When this happens on election day, it can tie up the polling place and threaten voter privacy. In short, the CPR is not ready for prime time.

Ironically, the consequence of the “paper trail” controversy has been to perpetuate the use of unreliable voting equipment. In Ohio, for example, over 70 percent of voters will continue to vote by punch card in this year’s election. Given that both parties project Ohio as being critical to victory, it’s quite possible that this state could become the next Florida.

That’s not to say that electronic voting is perfect. No voting technology is. But if the 2000 election should have taught us anything, it’s that paper is no guarantee of electoral integrity.

Instead of requiring a redundant paper replica of the electronic ballot, we should be focusing on procedures that will promote accurate elections. That includes rigorous testing of all voting equipment, paper-based and electronic. It also includes thorough poll worker training, so that voters are properly instructed when problems arise. The best way to avoid lost votes in November is to improve testing and training, not to mandate unproven hardware.