Restoring trust in elections

In 2004, the Commission on Federal Election Reform was created by former President Jimmy Carter, a Democrat, and former Secretary of State James Baker III, a Republican, in the aftermath of the 2000 presidential election and the 2004 election in Ohio. The commission was a nongovernmental, private bi-partisan organization. Among its 18 other members were former Senate majority and minority leaders Tom Daschle, a Democrat, and Bob Michel, a Republican.

For those too young to remember, the 2000 Bush v. Gore election was decided only after the U.S. Supreme Court put an end to the Florida election recount. Those old enough will recall the bizarre spectacle of Broward County canvassing board member, Judge Robert Rosenberg, using a magnifying glass to examine a disputed ballot to discover "hanging chads."

The commission was created to recommend measures designed to instill confidence in the integrity of their elections. In presenting its report, Carter and Baker wrote:

"Elections are the heart of democracy. They are the instrument for the people to choose leaders and hold them accountable. At the same time, elections are a core public function upon which all other government responsibilities depend. If elections are defective, the entire democratic system is at risk.

"Americans are losing confidence in the fairness of elections, and while we do not face a crisis today, we need to address the problems of our electoral system."

In 2016 and in 2020, the feared "crisis" materialized. In the aftermath of the 2016 election, hordes of Democrats believed President Trump had won only by virtue of Russian meddling. That belief could not be overcome even when the Mueller Report found no evidence of collusion. Now in 2020, Trump and millions of his supporters believe the election was stolen by fraudulent ballots manufactured by Democratic operatives, and by voting machines programed to switch Trump votes into Biden votes, or by under-counting Trump votes. And their beliefs, even if untrue, will not be overcome by any "official" report. It is, therefore, time to revisit the bipartisan commission recommendations made to insure fair, honest elections. And even more importantly, to insure election results in which all Americans — Republicans and Democrats — can have confidence.


In the executive summary of the 91-page report, the commission made five main recommendations:

"We propose that the U.S. Election Assistance Commission (EAC) develop a mechanism to connect all state lists. ... Connection will eliminate the vast majority of complaints currently leveled ... A distributed database can remove interstate duplicates and help states to maintain an up-to-date, fully accurate registration list.

 

"1. We propose a universal voter registration system in which the states, not local jurisdictions, are responsible for the accuracy and quality of the voter lists.

"We propose that the U.S. Election Assistance Commission (EAC) develop a mechanism to connect all state lists. ... Connection will eliminate the vast majority of complaints currently leveled ... A distributed database can remove interstate duplicates and help states to maintain an up-to-date, fully accurate registration list.

"People would need to register only once in their lifetime, and it would be easy to update their registration information when they move.

"We also propose that all states establish uniform procedures for counting provisional ballots ...."

"States should play an affirmative role in reaching out to nondrivers by providing more offices ... to register voters and provide photo IDs free of charge.

 "2. To make sure that a person arriving at a polling site is the same one who is named on the list, we propose a uniform system of voter identification based on the 'REAL ID card;' or an equivalent for people without a drivers license. ...

"States should play an affirmative role in reaching out to nondrivers by providing more offices ... to register voters and provide photo IDs free of charge.

"There is likely to be less discrimination against minorities if there is a single, uniform ID, than if poll workers can apply multiple standards. ... We also propose that voters who do not have a photo ID during a transitional period receive a provisional ballot that would be counted if their signature is verified.

"3. We propose measures that will increase voting participation by having the states assume greater responsibility to register citizens, make voting more convenient, and offer more information on registration lists and voting.

"States should allow experimentation with voting centers.

"We propose ways to facilitate voting by overseas military and civilians, and ways to make sure that people with disabilities have full access ...

"States and local jurisdictions should use Web sites, toll-free numbers, and other means to inform citizens about their registration status, and the location of their precinct.

"To improve ballot integrity, we propose that ... prosecutors issue public reports on their investigations of election fraud...

"States should not discourage legal voter registration or get-out-the-vote activities, but they need to do more to prevent voter registration and absentee ballot fraud."

"4. We propose ways to give confidence to voters using electronic voting machines that their votes will be counted accurately.

"We call for an auditable backup on paper at this time... We encourage independent testing of voting systems (to include voting machines and software source code) under EAC supervision.

"5. ... We propose that state election management bodies be reconstituted on a nonpartisan basis to become more independent and effective.

"We cannot build confidence in elections if Secretaries of State responsible for certifying votes are simultaneously chairing political campaigns. ...."

The 2005 commission's recommendations are not infallible. But any Democrat or Republican who wants fair and honest elections should embrace them, at least as a starting point to restore trust in our elections. They deal with honesty, as well as the appearance of honesty.

First Published in the Moline Dispatch and Rock Island Argus on December 11, 2020

Copyright 2020

John Donald O'Shea

Government is not free to disregard the First Amendment in times of crisis.

The argument of the Lincoln administration during the Civil War for trying American citizens before military commissions was "necessity" created by the existence of the Civil War. The argument of the Governors today for closing churches, or severely limiting the number of worshipers allowed to attend, is also "necessity" created by the existence of the Covid pan-demic. 

So does "necessity" or "emergency" allow or justify Governors to suspend the Constitutional Rights of the American people?

In 1866, The U.S. Supreme Court decided the great case of ex parte Milligan. Milligan was tried by a military commission in Indiana and sentenced to death. On appeal, Milligan con-tended that the military commission had no jurisdiction to him. He argued that "it was the birthright of every American citizen, when charged with a crime, to be punished only accord-ing to law, and therefore, that he was entitled under the Constitution (1787) to a trial by jury, all the rights attendant thereto specified by the Fourth, Fifth and Sixth Amendments to the Constitution. 

The Court agreed with Milligan. 

"The Constitution ... is a law for rulers and people, equally in war and in peace. and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provision can be suspended during  any of the great exigencies of government. Such a result leads directly to anarchy of despotism ...."

The court the proceeded to consider which of any of our Constitutional rights could be sus-pended during an emergency. It concluded, that only the right of Habeas Corpus could be suspended. 

"Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus." Indeed, the Founding Fathers "limited the suspension to one great right, and left the rest to remain forever inviolable." The court concluded by holding, "Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."

Today, the courts are clearly open, the exercise of their jurisdiction is wholly unobstructed. Yet in May of 2020, Chief Justice John Roberts wrote a concurring opinion in South Bay Penticostal Church v. Newson that flies in the face of everything stated in ex parte Milligan.

Gov. Newson's Covid guidelines limited church attendance to 25% of building capacity or a maximum of 100 attendees. 

The Chief Justice brushed aside the Constitutional Right of Free Exercise of Religion, in his concurring opinion.  

"Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with "Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.

The Chief Justice justified his ruling stating

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” ... When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” ... Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary ...."

Roberts' opinion utterly ignores the fact that while the "free exercise of religion" is expressly guaranteed by the First Amendment, "secular gatherings" enjoy no such express guarantees. 

On November 25, 2020, the issue was again considered by the high court in Roman Catholic Diocese of Brooklyn and Agudath Israel v. Cuomo.

In New York, Gov. Cuomo issued an executive order, creating "color zones." In "red zones" house of worship were limited to 10 people; in "orange zones" to 25. In "red zones," business the Governor deemed "essential" - such as liquor stores  and acupuncture centers - may ad-mit as many people as they wish. 

The Church and the synagogue contend that these restrictions violate the Free Exercise of Religion Clause of the First Amendment, by treating houses of worship much more harshly than comparable secular facilities. Both argue, without contradiction, they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak. 

In striking down Gov. Cuomo executive order, the court echoed ex parte Milligan. 

"Members of this Court are not public health experts, and we should respect the judg-ment of those with special expertise and responsibility in this area. But even in a pan-demic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure."

In his concurring opinion, Mr. Justice Gorsuch writes, 

"Government is not free to disregard the First Amendment in times of crisis. At a mini-mum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available ..." 

Like Roberts, the majority recognizes that governors have a "compelling interest" in protect-ing public health. But when First Amendment rights are also being curtailed, the majority sees a duty to conduct a serious examination of the need for such a drastic measure." Justice Gor-such would require that the remedy be the "least restrictive alternative."

Compare the concurrences of the so-called "Conservatives. "Roberts comes heavily down on the side of executive power. Gorsuch sees the "compelling interest," but refuses to ignore the First Amendment. 

First Published in the Moline Dispatch and Rock Island Argus on December 5, 2020

Copyright 2020

John Donald O'Shea