How America can restore confidence in its elections
America’s political dysfunction requires rational reform. Fortunately, many necessary changes do not require a constitutional amendment.
There is no doubt that ahead of the 2016 and 2020 elections, President Trump did everything possible to undermine confidence in their results. In 2016, he was favored by his adversary, whose belated and graceful concession was followed by state recounts allegedly requested by Jill Stein’s hopeless campaign, but also that of Mrs. Clinton.
Trump’s current challenge to the results, while supported by little evidence, is a harbinger of things to come as the massive additional use of early and postal ballot papers understandably adopted due to the virus crisis creates opportunities for future fraud, bribery or tampering offers when perpetuated as a routine. The willingness of many elected Republican officials to support the challenges is itself a product of political dysfunction resulting from the nationalization of campaign finance due to reform legislation and the heavily encircled counties due to the reallocation decisions and the Second Suffrage Bill. Rational reforms require consideration of causes and symptoms.
What are the necessary reforms – almost all within the power of states and the Supreme Court – that do not require a constitutional amendment?
First, go back to election day and vote on almost all of the ballot papers, backed by state legislation making it a paid holiday. The United States lags behind most countries in the world in terms of the number of paid holidays and has one of the longest average work weeks so it doesn’t put undue burden on employers.
Second, restricting “early voting” to the Saturday before election day, thereby removing the risk of “copying” the voters who earlier killed Edgar Allen Poe. In our time, games are played with the location of polling stations in the districts preferred by local political majorities. If there was only one early election day over a weekend, all districts could be opened for that purpose, and all voters would vote on the same issue without the biases of intermediate events.
Third, the insistence on the sanctity of the secret or Australian ballot, which does not exist for remote-controlled ballots that can be cast by anyone other than the voter, or for a financial reward. The latter threat requires that cell phones, tablets, and “selfies” be banned from voting booths because they are in at least a dozen states. In August 2020, the ever-helpful Hillary Clinton advocated the harmful practice of taking selfies of flagged ballot papers. The limited number of postal ballot papers that travelers and the sick leave should be subject to strict safeguards, including delivery by election day and limiting the number of ballot papers that an individual can watch.
Fourth, obvious safeguards against impersonation, including cleaning electoral rolls every two years by comparing district lists and ballot papers with the Social Security Death Index.
Fifth, identification requirements. Individuals who do not provide a voter ID – whose issuance has been made easier for drivers and welfare beneficiaries under the Motor Voter Act – should be photographed and fingerprinted at the polling station, and their votes should be separated and counted, subject to later dispute. The resulting recordings should only be used for elective purposes. Even third world countries feel it is appropriate to mark the hands of people who have already voted.
Sixth, insistence on the principle set out in the consent of Chief Justice Rehnquist in the Bush versus Gore In the Pennsylvania case, which is debated in the Supreme Court File in the Supreme Court File, electoral rules can only be changed by lawmakers, not the courts, so that state courts are not dragged further into the “political thicket” which is pointed out in the rejection of Justice Frankfurter Baker v. Carr. Also, insist on the suggestion that electoral laws and the arrangement of ballots be challenged before and not after the elections.
Seventh, lifting the restrictions on individual campaign contributions in federal elections in conjunction with strict disclosure requirements that denationalize campaign funding by relieving most candidates from the need to solicit PACS and interest groups.
Eighth: Relaxation of the requirement of exact numerical equality in redistribution and redistribution by the courts – or, if applicable, under federal law – in favor of a rule that allows unlimited differences in district size based on the use of political subdivisions or preliminary rulings specific combinations of political subdivisions to define districts . The change should be adopted as long as the seats are allocated among the districts using the method used in the division of the House of Representatives equally among states and as long as a certain minimum of voters (43% or 45%) is required to vote They have a majority of the seats that are split up. An article by Professor Michael McConnell advocates this reform (24 Harvard J. of Law and Public Policy 103) ); something very similar was adopted by the Supreme Court in the neglected case of Almost Brown v. Thomson462, US 835, 1983.
Ninth and last, opposition should be increased to the creation of so-called “voting districts” allegedly mandated by the 1982 amendments to the Voting Rights Act of 1965 that mandate a “disparate impact” test for district configurations that discriminate against minorities. With the 1975 amendments to the Suffrage Act protecting groups other than blacks, there is a risk of all-against-all, with each group “owning” districts that elect their most fanatical members. The result is legislative bodies similar to those elected under a system of proportional representation in which extreme sects control almost all districts and are represented by increasingly covert and geriatric representatives. Challenges to such districts can be reasonably posed on the basis of the clear prohibition of racial discrimination in the suffrage contained in the fifteenth amendment, as enforced in the famous Gomillion v. Lightfoot case and already enforced in 1927 Nixon v. Herndon273, US 536, in which Judge Holmes said for a unanimous court that “color cannot be the basis of any legal classification that affects the law established in this case”.
These changes should not and will not penalize Democrats and racial minorities. In the short term, they could reduce the number of black congressmen a little, especially those that Professor Lani Guinier considers “authentic”. In the long term, they will strengthen the bonds that representatives bind with all citizens of their districts and with local governments.
George Liebmann is the author of numerous works on law and history, most recently America’s Political Inventors: The Lost Art of Legislation (Bloomsbury 2019).
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