The 2000 presidential election, with more than 105 million votes cast, involved: five weeks of political and legal maneuvering; what many view as an arbitrarily imposed Supreme Court constitutional crisis; and a final five-to-four ruling by ideologically driven conservative Justices on the Supreme Court who essentially selected their favored candidate President of the United States. The final media consortium report confirms this. The two parties' political and legal tactics aside, if genuine democracy had prevailed and all the votes had been counted, Al Gore would have been narrowly elected President.
Upon closer examination, we also discovered that our voting infrastructure is broken. Thus, the nation learned about chads–whether pregnant, dimpled, hanging or swinging. The pattern across the country revealed confusing ballot designs. The best machines with the lowest error rates were generally located in the wealthier and whiter areas, while the worst machines with the most mistakes were disproportionately located in areas with the poorest people and the highest number of people of color, especially African-Americans. In Florida precincts that were at least four-fifths African-American there were more than three times as many rejected votes as in predominantly white precincts, even after accounting for differences in income, education and voting technology.
Additionally, Florida's county election administrators used inconsistent methods of counting votes. Electronic scanners rejected ballots clearly marked with pencils instead of pens. Scanners also discarded ballots marked for two different candidates, or properly punched ballots that also had a candidate's name written on it. The scanner saw both ballots as erroneous double votes and rejected them, even though in many instances the voter's true preference was clearly indicated. In Florida, while many voters' choices were easily discernible on ballots rejected by optical scanners, some election officials never bothered to look at the actual ballot if the machine rejected it.
While the lion's share of attention was focused on Florida–because of the pivotal role it played in the election's outcome–virtually every state's election system would have revealed similar fault lines if given thorough scrutiny. My home state of Illinois was the worst.
A year ago Democrats were outraged by this mess, and the American people generally seemed concerned that the instruments of their democracy were sorely in need of repair and reform. But after a dozen national task force reports and recommendations, several Congressional hearings and legislative proposals, a US Civil Rights Commission study and hundreds of state legislative proposals, we find ourselves essentially in the same position as on November 7, 2000. Only a nationally embarrassed Florida completely overhauled its voting system. New York City still votes on forty-year-old lever machines.
The United States advocates for democracy around the world. We sometimes even link economic or military assistance to the establishment of democracy in a foreign land. Can you imagine the American people and our government's response to a country that said it had established democracy and conducted a democratic election, but in a controversy over ballots could not provide us with official election results? Yet that is exactly the state of American democracy. There are no "official" results in our presidential campaigns, and the various sources of "unofficial" results vary by as much as 200,000 votes. Given the margin of victory claimed by Bush in Florida (537 votes), and Gore nationally (539,000 votes), a 200,000 variation in national vote totals should be of major concern.
All true electoral reformers are saddened, frustrated and discouraged that virtually no progress in changing the system has occurred. Prior to September 11, blame was placed on voter apathy–no one was interested in engaging in the dull process of fixing "election mechanics." Now election reformers believe such potential change has been buried beneath the World Trade Center–that both the twin towers and voting reform have been brought down by terrorists. But this is not the true source of the inaction.
The fundamental problem with proposals for electoral reform is totally unrelated to November 7, 2000, or September 11, 2001. Every independent study, Congressional hearing and good legislative election reform proposal I have seen–including those from liberals and progressives, which I support and am a co-sponsor–is premised on the Tenth Amendment. The reason they will fail to solve our fundamental voting problem, even if they succeed legislatively, is because of their underlying ideological assumption–that voting is a state function, not a universal human or federal right.
Therefore, even if Congress passes legislation establishing national standards for voting technologies and procedures, and adequately funds them, no state is under a constitutional obligation to adopt the changes or accept the funds. Based on the Tenth Amendment, states can still reject reforms and continue down the current state-centered election path.
Many state political parties, both Democratic and Republican, see the current system as working in their self-interest. But which system makes the most sense for the public's interest? One modern electoral system with consistent national standards? Or a bureaucracy of fifty state, 3,067 county and thousands of municipal election systems and standards–all separate and unequal?
Every sound idea for improving or rationalizing our voting processes and infrastructure–using sophisticated and nationally consistent ATM-style machines in every precinct in America; making sure all votes are tabulated and included, establishing an official vote total before a presidential winner can be declared; eliminating or reforming the Electoral College so that the people's popular vote elects electors, not a potentially arbitrary vote in a state legislature, which, under current constitutional law, can ignore the people's vote (as the Florida legislature was prepared to do in 2000); the federal government picking up the tab for a unified rational national election system–will be stymied because of the ideologically driven concerns and states' rights limitations of the Tenth Amendment.
Thus, federal legislation around electoral reform (or healthcare, education, housing or equal rights) will always be subject to the limitations of states' rights, local control and privatization. Some states will voluntarily reform and some will not. Contrary to the American people's desire, Congressman Tom DeLay used this same ideological orientation of states' rights, local control and privatization to fight the federal takeover of airline security.
This constitutional view finds its origins in the Democratic Party's ideological founder, Thomas Jefferson. Jeffersonian democracy is based on limited government, states' rights, local control, volunteerism and privatization. Democrats celebrate this philosophy every year at Jefferson-Jackson Day Dinners around the nation, but especially in the South. Slavery (without using the term) was enshrined in the Constitution in five different places at the Philadelphia Convention in 1787 and was protected by the philosophy of states' rights, local control, volunteerism and privatization. The nation had to pass a Thirteenth Amendment in order to overcome both the Tenth Amendment and slavery. African-Americans also needed a Fifteenth Amendment to legally overcome the Tenth Amendment and discrimination in voting. And women overcame the Tenth Amendment and voter discrimination on the basis of sex with the Nineteenth Amendment. Only an affirmative Voting Rights Amendment for all Americans can overcome the limitations of the Tenth Amendment with respect to our democracy's electoral processes. The only thing that can overcome the limitations of the Tenth Amendment with respect to voting is to add a Voting Rights Amendment to the Constitution.
Even with the addition of these subsequent amendments, the Tenth Amendment has hampered their full implementation and progress for African-Americans and women. It was also Jefferson's Tenth Amendment views that entangled states' rights and slavery with the Democratic Party; it's what caused eleven Confederate states, led by the Democratic Party, to leave the Union; it underlay the Democratic Party's sabotage of Reconstruction; it left the freedmen unprotected from Democrats after the 1877 Tilden-Hayes Compromise; it supported the Democrat-led legal idea of "separate but equal" in Plessy v. Ferguson; it established and sustained the Democrat-supported Jim Crow segregationist South; it led the Southern Democratic Party to be the chief resister of Brown v. Board of Education after 1954; and this philosophy undergirds today's predominantly conservative Republican Party and conservative Democrats.
The old conservative slavery and segregationist states' rights, local control, volunteerism and privatization Democrats are today's new conservative states' rights, local control, volunteerism and privatization Republicans. And because of the continuing influence of conservative, mainly Southern, Democrats, today's Democratic Party still tries to fit the nation's reality into Jefferson's limited-government rhetoric.
Most Americans will be shocked, appalled and outraged to learn that their Constitution does not grant them the right to vote. Yet that was the major lesson to be learned from Bush v. Gore. Even though the right to vote is the supreme right in a democracy, the Supreme Court in Bush v. Gore told Americans–in their questioning of lawyers David Boies and Theodore Olson, and in their final ruling–that there is no explicit fundamental right to suffrage in the Constitution.
William Rehnquist and the "court of five" who decided the 2000 election by one vote said, "The individual citizen has no federal constitutional right to vote for electors for the President of the United States…" [Bush v. Gore, 531 U.S. 98 (Dec. 12 2000) (per curiam)]. It's the reason the Florida legislature could contemplate sending its own set of electors to Congress if it had lost in the Supreme Court. It could have ignored 6.1 million Florida voters, and still have been acting within the parameters of the US Constitution. As District of Columbia Councilmember Kevin Chavous and American University constitutional law professor Jamin Raskin said in an August 26, 2001, Washington Post article: "'One person, one vote' is the gold standard for democracy all over the world. The constitutions of at least 135 nations–from Angola and Argentina to Zambia and Zimbabwe–explicitly guarantee the right of the people to vote and to be represented at all levels of their governments. But our constitutional silence leaves us in the company of Azerbaijan, Indonesia, Iran, Iraq, Jordan, Libya, Pakistan, Singapore . . . all of which leave voting rights out of their constitutions."
The Rehnquist Supreme Court granted chads "equal protection" under the Fourteenth Amendment (quite a shocker for this court to rely on the Fourteenth Amendment for anything), but made it clear that the American voter has no inalienable right to vote. (Compare this to Attorney General John Ashcroft's repeated public statements that the Constitution grants individual Americans the right to a gun. Thus, many Americans believe they have a constitutional right to a gun, but are unaware they have no constitutional right to vote.)
We need to amend our Constitution because it was originally designed to allow only white male property owners to vote. We need a right to vote amendment because, in Bush v. Gore, the Supreme Court looked at the Constitution's Fourteenth, Fifteenth, Nineteenth and Twenty-sixth amendments–then looked at the Tenth Amendment through the eyes of a strict constructionist–and concluded: Since there is no right to vote in the US Constitution, what does the state statute say? The state statute said Katherine Harris is in charge of the election, and there was a time deadline of December 12 to count the votes. So, unless all the votes can be counted in the next two hours, Bush is President.
Under the assumptions of Jeffersonian democracy and the constraints of the Tenth Amendment, Congress has not been given the power by the people to make voting a reality for every American. The Democratic Party–caught between the vice of this Jeffersonian tradition of limited government and states' rights, and a frustrated base of African-Americans and Jewish voters who were politically disenfranchised in Florida–offers only legislative reform programs and block grants to states that respect the Tenth Amendment. Thus, its base constituencies will remain agitated and American democracy will remain profoundly flawed.
Democrats proclaim they want a broad-based, grassroots movement in order to improve America. Well, constitutional amendments require two-thirds of the US House and Senate, and three-quarters of the state legislatures. Only an extremely broad-based grassroots movement can add an amendment to our Constitution. Yet no aspiring national Democratic leader, nor the Democratic Party itself–despite having the White House stolen away–looks prepared to lead the nation beyond Jefferson's rhetoric on this most fundamental issue in a democracy–the right to vote.
But there may be some hope and a light at the end of the tunnel. Nothing seems to bring about voting amendments quite like a war. The Civil War brought us the Fifteenth Amendment. World War I resulted in the Nineteenth Amendment. And the Vietnam War gave us the Twenty-sixth Amendment. Terrorism on the World Trade Center and anthrax in our mail have been described by President Bush and others as an attack on our freedom and democracy. Thus, the war on terrorism may give us the opportunity to both appreciate and critique our democracy, including adding its biggest missing piece–a Twenty-eighth Amendment to our Constitution granting us the explicit fundamental right to vote.