The first 100 days of the Obama Presidency have come and gone in a state of crisis. For supporters of democracy reform, however, that could describe the last eight years since Bush v. Gore. If the 2008 election vindicated their work, it was only a first step toward redressing the fundamental flaws of our democracy.
In the words of Miles Rapoport, democracy reform advocate and president of the think tank Demos, "A lot of the focus for Demos and for other organizations over the last ten years has been work on the state level. That was a result of the fact that Washington was so hopelessly gridlocked on these issues, it was almost better not to have Washington take them up. The situation is different now. The possibilities for federal reform are better now than they've ever been before."
As the data-crunchers digest the numbers, it's clear that 2008 had the highest turnout of any presidential election since the voting age was lowered to 18 in 1972: 62% of eligible voters. More African-Americans, Latinos, and young voters made it to the polls than ever before, and the electorate on November 4th looked more like America than it ever has in the past (proportionally speaking). However remarkable, this milestone was partly the result of a slightly lower turnout (in relative terms) by white and elderly voters, and it was far short of the record-setting spectacle many had hoped for. Voting rates in the US continue to lag far behind many of the world's other oldest democracies. There's still much to do to make it possible for all Americans to make their voices heard, from enacting election day registration and early voting to making election day a holiday.
As advocates for election reform are quick to observe, the fact that the turnout didn't shatter records may have been a blessing in disguise. The seven-year-old, nonpartisan Election Protection coalition declared in its report: "Election officials nationwide were grossly under-resourced." Election Protection's hotline took nearly a hundred thousand calls on election day alone. As Common Cause's Tova Wang put it shortly after the election: "We must... wonder what kind of system breakdown would ensue should we ever achieve the turnout levels that are routine in most countries around the world, where participation rates are in the 75-94% range."
At 62%, Election Protection reported that "hundreds of thousands" of voters still had to wait for hours to cast their ballots. In Detroit some waited for five hours; in St. Louis, six; in the battleground of Chesapeake, VA, seven.
Just over a third of the problems reported to Election Protection's hotline involved registration. Seemingly unrelated problems -- with absentee ballots or polling places, for example -- were often really issues with registration as well. As Election Protection director Jonah Goldman observes: "Registration was really the big cancer in the whole voting process." An MIT study estimates that 2.2 million voters were turned away from the polls due to problems with their registration, and another 2.2 million due to problems with their identification.
The voter suppression tactics the 2004 election made disconcertingly familiar resurfaced as well. In the weeks running up to the election, the Election Protection hotline received nearly daily calls about deceptive practices. "Traditionally its been targeting minority communities," Goldman says. "This year we saw a couple of really unfortunate developments. One: the tactics have been updated for the 21st century. We saw them on Facebook, we saw them on MySpace. There are text messages and e-mails going out. Now they're often targeting first time voters and young voters." The threat of voter caging and challenges was also brandished yet again; if these practices were held in check, it was thanks to the rapid legal response by national democracy reform groups in Ohio, Montana, and elsewhere.
It's long past time to declare voter suppression a crime, and focus on encouraging voters, not discouraging them. On November 10, 2008, Tova Wang could still write, in reference to deceptive practices: "Currently, the Department of Justice does not believe there is a federal statute that explicitly criminalizes this activity."
Rep. John Conyers is one of several elected officials working to change this. He has resurrected Obama's Deceptive Practices and Voter Intimidation Act in the House (it awaits an answer in the Senate), and advocates think the bill would be an important step. Rep. Conyers has also introduced the Caging Prohibition Act – Sen. Sheldon Whitehouse (D-RI) has advanced a companion bill in the Senate – which would ban the practice of using undeliverable mail to challenge a voter's registration. Along with these measures, a law restricting the power to challenge a voter's registration to election officials would check the most egregious ways of keeping voters from voting.
Challenges and caging were pioneered by the defenders of Jim Crow and segregation; deceptive practices and registration problems disproportionately impact African-American and Latino voters. Even as these practices persist, both sides in an upcoming Supreme Court case are drawing on Barack Obama's election to argue over the continuing relevance of a major provision of the Voting Rights Act.
Last week, the Supreme Court heard oral arguments in the innocuously named Northwest Austin Municipal Utility District Number One v. Gonzales. The VRA requires jurisdictions with a history of discrimination--eight states including Texas, and any number of municipalities and counties--to clear any changes to their electoral procedures with the Justice Department or a federal court. Attorneys for the Texas district are arguing that Obama's election demonstrates the VRA's safeguards are no longer necessary. And the Roberts' court seems to be receptive to the argument, with the Chief Justice declaring rhetorically: "You know I have this whistle to keep away elephant. Well. there are no elephants, so it must work." With Justice Kennedy reportedly leaning in Roberts' direction, there's some chance the court will decide against pre-clearance. If the Court essentially overturns a major provision by which the VRA is enforced, democracy reform advocates and Congress will have to act quickly to ensure the gains of the civil rights movement.
While a conservative Court considers whether the VRA is still relevant, the 18th century compromise that is the electoral college remains in place, even after effectively overturning the will of the people in 2000. The electoral college succeeded in infiltrating the three-fifths compromise into the election of the President, and long after that shameful deal was overturned, the college has persisted. Slowly, the push for a national popular vote for president is gaining ground across the country. One state legislature after another are passing bills that declare that once states representing a majority of electoral college votes sign on, they will award their electoral votes to the winner of the popular vote. The principle of ‘One person, one vote' will finally be represented at all levels of government.
"These are a series of issues all related by the empowerment of ordinary voters in a democracy," says Nick Nyhart, dedicated campaign finance reformer, Public Campaign CEO, and occasional Nation contributor. With Obama in office and a Democratic congress, "a number of these issues go from existing on the drawing boards to actually existing in practice," Nyhart says. "They go from hopes to actual possibilities."
Campaign finance reform is one of those possibilities. If the Supreme Court's decision in Buckley v. Valeo essentially rules out public financing of campaigns, the Fair Elections Now Act sponsored by Dick Durbin (D-IL) may be the next best thing. The act uses public funds to give leverage to small donors, matching contributions of $100 or less at a 4:1 rate. "We want a public financing system strong enough that Barack Obama would not have opted out," Nyhart says.
In the 2008 election cycle alone, the Center for Responsive Politics reports that the Finance, Insurance, and Real Estate industries gave more than $463 million to the duopoly, splitting it almost equally between Democrats (51%) and Republicans (49%). As backroom bailout deals and black site torture tactics slowly continue to come to light, calls for transparency provide another possible rallying point for a democracy reform movement.
The Sunlight Foundation is a two-year-old organization dedicated to "changing the focus in terms of who's a gatekeeper for this information," says Gabriela Schneider, a spokesperson for the nonprofit. The Foundation works to achieve this goal both by supporting the work of other organizations, like the Center for Responsive Politics (a recent grant for more than $1 million required the Center make its data available under a Creative Commons license), and through the work of Sunlight Labs, their open source development team. Their first annual ‘open source application' contest generated dozens of new tools for keeping track of the sort of things elected officials would often rather no one kept track of, like Filibusted, which lets anyone track of just which Senators are refusing to vote for cloture.
"This is the next generation of civic engagement," Schneider says. "There's increased apathy and mistrust of government. We think that the solution to that is greater transparency. It's a way to empower people--the more they know, the more they feel part of the process. We see it as a way to revitalize democracy. The transparency work is a catalyst for the greater democracy reform movement."
Another potential catalyst is the creation of an Office of Civic Engagement within the executive branch. "There needs to be a place in the White House whose job it is day in and day out, to figure out how, in all the welter of issues, what role citizens have in this," says Miles Rapoport. "How can we do this in a way that encourages people to think of government not as this kind of other, but that gives people a larger stake in the decisions that are made. And we'll get better decisions that way. It's easy in the crisis mentality that can often pervade for civic engagement to be lost. So having someone or some group in the White House that's really thinking about this is a good thing." On the second day of his administration, President Obama issued an executive order calling for "a system of transparency, public participation, and collaboration." The Obama administration has since opened an Office of Social Innovation within the White House, placing the emphasis on new forms of technological innovation. An Office of Civic Engagement would still be invaluable for achieving those goals.
Over the coming weeks, I'll be writing a series of blog posts delving into these issues in greater detail and examining the possibilities for democracy reform. Our democracy still needs defending. But the best defense is a good offense.
With reporting by freelance Reporter/Researcher Nicholas Jahr.