The U.S. Needs to Protect Free and Fair Elections

Recent local elections demonstrate that the United States is not prepared for a presidential contest in November.

When eight states and Washington, D.C., all held elections facing the dual challenges of Covid-19 and demonstrations protesting anti-Black violence prompted — this time — by the killing of George Floyd, we learned that cumbersome voting systems have become more fragile than ever. Washington, D.C., Pennsylvania, and Maryland were unable to send out all of the mail-in ballots requested, and voters waited up to five hours to cast ballots. Long lines in D.C. and Philadelphia meant some voters were out far past the city’s curfew.

The following week, Georgia’s elections drew national attention when the challenges of Covid-19 and the state’s existing voter suppression efforts created an electoral disaster. Voters across the state were forced to wait in long lines due to: confusion caused by new voting machines that local officials did not understand, the state’s failure to send out tens of thousands of absentee ballots, and the closure of over 200 voting precincts since 2013 — most in predominantly Black neighborhoods.

The chaos at the polls only serves to underscore the fact that stronger federal oversight of elections is needed, both to enforce voting rights and update voting infrastructure. Ideally, the Unites States should pass a constitutional amendment creating an independent electoral commission powerful enough to safeguard free and fair democratic elections.

Even before the pandemic, we knew that robust mail-in voting systems were necessary across the nation. Yet the Republican Party has remained hostile to this reform. On May 24, the Republican National Committee sued the state of California, in an attempt to block the state from sending all voters absentee ballots in November. In addition, while the House has passed a bill that includes $3.6 billion in funding for states to update their elections, the Republican-controlled Senate has refused to take up the issue.

Despite evidence that mail-in ballots do not create voter fraud, Republican leaders insist they do. President Donald Trump has also repeatedly pushed the false narrative that absentee voting will lead to a rigged election. Last month, he tweeted, “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed.” Importantly, Twitter added a fact-check label — marking the first time the platform has contradicted the president.

These unsubstantiated charges of voter fraud represent a dangerous threat to American democracy, and are part of a larger Republican effort over the last decade to suppress voter turnout.

By challenging the legitimacy of mail-in voting, Trump both inhibits official efforts to allow Americans to vote safely in a pandemic and, should he lose, also lays the groundwork for challenging the results of November’s presidential election and stigmatizing the next administration as illegitimate.

A second problem is that the federal government has less oversight of elections than it ever did. The Supreme Court’s decision in Shelby County v. Holder (2013) effectively ended the requirement that states with a history of voter suppression pre-clear changes to their voting laws with federal officials, opening the way for states to restrict voting rights indirectly, as they had in the past.

It didn’t take long for Shelby to have an impact. Immediately following the court’s decision, Texas announced it would enact a stringent voter ID law, as well as a new redistricting map that had previously been struck down by a federal judge. By 2018, a Brennan Center for Justice Report concluded that citizens in 23 states faced tougher voting rules than they did in 2010.

That a political majority can try to keep power by manipulating the vote and then accuse others of voter fraud is dizzying. Yet it isn’t entirely a product of the Trump administration. One of the fatal flaws of American democracy is that voting has always been controlled by partisan actors. The founding fathers did not seriously consider how to protect electoral integrity, partly because they thought they had done that by restricting the vote to propertied white men. But they also significantly underestimated the role that partisanship would play in American politics. Importantly, they were suspicious of national political parties as they had emerged in England, and put elections in the hands of the states.

As a result, Americans have inherited a political system where partisan actors in the state legislature control redistricting and voting rights, and elected secretaries of state manage elections.

That management, in turn, allows political parties to consolidate power at the state and local level, a phenomenon that trickles up in a presidential election year. Advances in computing and data science have made it even easier for partisan state legislators to effectively gerrymander electoral districts. In 2010, Republican strategists launched a national plan called “The REDMAP,” with the goal of winning state houses in swing states in order to control redistricting for federal congressional seats. As a result, in 2012, Democrats won more than 1.4 million more votes nationwide for the House of Representatives, but Republicans ultimately controlled the chamber with a 234 to 201 majority.

Furthermore, there is no federal law against partisan state officials overseeing elections in which they are candidates. In July of 2017, Georgia’s Republican secretary of state, Brian Kemp, controversially purged 500,000 voters from Georgia’s voter rolls. Kemp then went on to beat his Democrat opponent Stacey Abrams by a margin of under 55,000 votes in the state’s gubernatorial race. 

Similarly, in Florida, Republican governor Rick Scott ran for the Senate against sitting Democratic senator Bill Nelson, in a race that was so close it triggered an automatic recount. During the recount, Scott made unsubstantiated complaints about voter fraud against election officials in five counties. In his capacity as governor, he then ordered state police to investigate these officials. Voting rights groups in Florida subsequently filed their own lawsuit alleging that Scott has abused his gubernatorial powers. In the end, Nelson conceded after it was clear that Scott was ahead by 10,000 votes.

While Republicans see an empowered national election commission as a federal power grab, federal oversight has been good for democracy elsewhere. Costa Rica, one of the Western hemisphere’s most stable democracies, created the Supreme Tribunal of Elections (TNE) in 1949 to oversee all aspects of election law in the wake of a disputed presidential election that plunged the country into civil war. Designed to be bipartisan, the TNE serves as a fourth branch of government and oversees campaign finance, campaign advertising, polling, voter ID, and election administration. In addition, disputes about the legality of a particular election law are handled by the TNE rather than by the Supreme Court.

By comparison, the United States Federal Election Commission (FEC) mostly oversees campaign finance laws. The Supreme Court’s decision in Citizens United v. FEC (2010), which defined corporate campaign donations as free speech, significantly hampered the organization’s ability to even do that. The FEC has no say over voting regulations delegated to the states. And Donald Trump has further undermined the agency: three of the six seats on the commission vacant for almost nine months, and without a quorum, the agency cannot investigate violations of campaign finance law.

If Biden wins the presidency, he can strengthen the FEC through new appointments. If the Democrats also regain the Senate in November, the party should take immediate steps to improve the integrity of U.S. elections. The Supreme Court’s decision in Shelby County v. Holder (2013) does not, for example, preclude Congress from passing an updated Voting Rights Act (VRA). Such a bill could also mandate that states that are currently the worst offenders in regards to voter suppression must pre-clear their laws through the federal government.

However, the last seven years of voting rights restrictions have proven that a stronger VRA will not be enough to guarantee free and fair elections in the United States.

Any VRA would automatically be subject to judicial review and the precedents of Shelby v. Holder (2013) and Citizens United v. FEC (2010). But these are not the only problematic election rulings by the Roberts court. For example, in Brakebill v. Jaeger (2018) the SCOTUS upheld a restrictive voter ID law in North Dakota that made it harder for Native Americans living on reservations to vote. The following year, in Rucho v. Common Cause (2019), the court’s conservative justices declined to limit partisan gerrymandering.

In addition, under previous iterations of the VRA, voting rights complaints often went through the attorney general, an office that Bill Barr has transformed into a partisan weapon and that must also be depoliticized.

In the long-term, the best way to guarantee free and fair elections would be to amend the Constitution to create an independent and nonpartisan federal body that would have the power to oversee all aspects of state election laws. This independent election commission would have the power to robustly regulate campaign finance, spearhead new election security efforts, place restrictions on partisan gerrymandering, oversee efforts to update the country’s voting infrastructure, and adjudicate disputes between voting rights activists and state legislators.

Democratic governance relies on cultivating public trust in electoral institutions. Republican law makers have frayed that trust; more importantly, they have betrayed it by actively working, at the federal level, to restrict voting rights. An independent federal election commission would take substantial power of electoral rules away from partisan state lawmakers and place it in a nonpartisan oversight body powerful enough to make meaningful and lasting efforts towards electoral reform.

Katie Scofield teaches government at Blinn College in Texas, has a PhD in political science from Indiana University, and was awarded a Fulbright grant to study the Ecuadorian constitution and its treatment of human rights.