CLAY JENKINSON: Future In Context — Voting In America: The Urgency Of Legitimacy

“The voters, the courts and the states have all spoken. They’ve all spoken.” That from then Senate Majority Leader Mitch McConnell on Jan. 6, 2021, in remarks intended to push back against those who were attempting to stop the certification of the 2020 election results. “If we overrule them, it would damage our republic forever.”

Here we are, six months later. The 2020 national election has been certified in all 50 states. Recounts, audits and more than 60 court challenges have been adjudicated and resolved, and nothing in any of those post-election checks and balances has revealed any significant voter fraud. Joe Biden won the election. He is the 46th president of the United States.

Republican political leaders now routinely speak of Joe Biden as the legitimate president and work with his administration every day, every week, to address national concerns. And yet. … Some of those same Republican leaders pander to the most ardent Trump supporters by seeming to agree with them that the election was stolen, or that there were enough irregularities to justify skepticism that the election was legitimate.

A Tale of Two American Electorates

Reuters/Ipsos poll released May 24 indicated that more than 60 percent of Republican respondents continue to assert that the election was stolen. Perhaps more alarming, according to the same poll, 23 percent of Republican respondents agreed that “the government, media and financial worlds in the U.S. are controlled by a group of Satan-worshipping pedophiles who run a global child sex trafficking operation,” that “there is a storm coming soon that will sweep away the elites in power and restore the rightful leaders” and that “because things have gotten so far off track, true American patriots may have to resort to violence in order to save our country.” You know the Chinese curse: May you live in interesting times!

Even if you reject the conspiracy theories and the more extreme arguments of both the right and the left, it is clear that the severe national and international disruptions brought on by the COVID-19 pandemic, coupled with the serious problems at the U.S. Postal Service in the summer and fall of 2020, caused a number of states to make adjustments to their voting protocols that would not have been contemplated in a less chaotic time. In a few cases, the executive decisions of secretaries of state and other state election officials appear to have violated voting procedures established by state law. Such adjustments in voting procedures, often last-minute adjustments intended to ensure that all votes would be counted, not only offended some political observers and millions of Americans but also raised enough concerns about the integrity of the 2020 election to fuel a range of allegations of illegality, fraud, manipulation and an “electronic coup d’etat.”

You Can Be Mad at President Biden, But Do So for the Right Reasons

Over time, presumably, most of those who now assert that the election was stolen will calm down, come to terms with the legally certified reality of both the popular vote and the results in the Electoral College and redirect their energy to condemning the Biden administration’s policies rather than its core legitimacy. Still, it is not good for the American republic to move forward without a wide consensus about a president’s political legitimacy.

One cause of the national political paralysis of the last several decades is the unending litany of legitimacy challenges. George W. Bush was declared the victor of the 2000 election by the U.S. Supreme Court, but millions of Americans believed and still believe that it was Al Gore who actually won the election. Barack Obama’s eligibility to serve as the American president was challenged for many years by the Birther crowd, which argued, without evidence, that he was not an American-born citizen. Some Democrats insisted, following the 2016 election, that Donald Trump only won the presidency because of concerted foreign election meddling that he openly encouraged and that in a fair election he would have lost to his opponent Hillary Clinton. And now Joe Biden is widely regarded by Trump supporters as an imposter.

Reforming the System: The Prospects and Possibilities

The United States urgently needs to address this ongoing legitimacy crisis. The nation needs to institute reforms that will give the vast majority of Americans assurance that elections are fair, honest and determinative; that election results can be trusted; and that the system has as much transparency as is possible without compromising the privacy of voting citizens.

Former President Jimmy Carter (left) and former Secretary of State James A. Baker III announced findings of the Commission on Federal Election Reform in the Hall of Columns at the U.S. Capitol on Sept. 19, 2005. (George Washington University)

It would be tempting to defer to a “blue ribbon” commission on voting, but America played that card more than 15 years ago. A 21-member Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and former Secretary of State James Baker III, began taking testimony April 18, 2005 to address problems similar to those we face today. The report, “Building Confidence in U.S. Elections,” released later that year, “recommends a modern electoral system built on five pillars:

  • 1. A universal and up-to-date registration list, accessible to the public.
  • 2. A uniform voter identification system that is implemented in a way that increases, not impedes, participation
  • 3. Measures to enhance ballot integrity and voter access;.
  • 4. A voter-verifiable paper trail and improved security of voting systems.
  • 5). Electoral institutions that are impartial, professional and independent.” The report, which detailed 87 recommendations on reforming voting, has remained on the shelf in the years since.

The prospects for another such commission are no better, and likely much worse, in the current political environment, as divided as it is. That said, Congress might wish to consider a historic piece of legislation.

At issue: We need to stabilize, regularize and probably standardize voting procedures throughout the United States. The existing variations in voter procedures in the various states may have solid rational foundations, but those who seek to delegitimize elections are more likely to seize upon such variations as “proof” that something somewhere is fishy. Often enough, they do so without understanding the ways in which such state election procedures evolved over time, and what circumstances they evolved to address, but the magnitude of the current legitimacy crisis suggests that national standardization may be the only answer to our problems.

It is true that a national standard election procedures and security law, such as, for example, HR 1, the “For the People Act,” would effectively overhaul election rules all over the country to require every state to adopt automatic voter registration, same-day registration, no-excuse absentee balloting and early in-person voting, among other mandates. These and other provisions raise constitutional questions.

The Founding Fathers wanted elections to be organized and conducted by individual states. Given the prickly antagonism of the 10th Amendment advocates, nationalizing standard election procedures might be a tough sell politically. It would be perhaps more appropriate to pursue this reform by way of a constitutional amendment, but such an initiative would almost certainly fail given the high bar the Constitution requires for amendment. The last amendment, the 27th, dates to 1992, 29 years ago, and it was not about a matter of constitutional substance.

If we can agree that we all want every eligible voter in America to be able to cast their vote in an orderly way, without unnecessary or arbitrary impediments, without intimidation, without serious inconvenience, we should be able to devise a system that will produce that result. Voting is not rocket science. It is not altogether clear, however, that everyone actually agrees that we want every eligible American to be able to vote, irrespective of race, ethnicity, religious affiliation, gender, class, sexual orientation, work status or distance from the polls. The Democrats, progressives and many people of color are convinced that the Republican parties in a number of states, and perhaps the national Republican Party itself, have adopted voter suppression as a political strategy.

The use of that term, voter suppression, is increasingly common but ultimately may prove unhelpful. Kevin Powell, an author, civil and human rights activist and what his Wikipedia profile calls a “hip-hop thought leader,” warns that the term is misleading. It has become coded, racialized language for “we want an America where not everyone has access to the ballot or the American dream. Just as was the case in the years before the civil rights movement.”

“This is why it is such a huge mistake for any leader to refer to what is happening as ‘voter suppression.’ We need to continually call it what it is: anti-democracy,” argues Powell, “Because only anti-democracy forces would go to such lengths to make voting that difficult for that many, especially when the Department of Justice has stated, very clearly, that voter fraud is not rampant in our society. And we need to challenge it from every angle, including voter registration and education drives.”

Republicans in more than 40 states have introduced voter ID legislation in 2021. In some Republican circles, the usual rationale for voter ID laws — that they are essential to prevent voter fraud — has been replaced by a publicly avowed desire to discourage or prevent as many Black and other minority votes as possible, on the assumption that most of those votes would be for Democrats.

A map and linked detail on each of 40 states that introduced Voter ID legislation during the 2021 session.

America’s political history proves that it is not helpful to write laws requiring everyone to show a government-issued ID card — a passport, a driver’s license, etc. — and then to sit back and see who turns up. It is clear that the Americans most likely not to have such ID cards are African Americans, other minorities, the urban poor, young people reaching voting age for the first time and Native Americans. It is often difficult for these populations to get ID cards. To obtain them often means time away from work or pressing family needs, access to transportation to sometimes inconveniently located government offices and expense that is a serious issue to people on severely limited incomes.

Even for those who advocate voter ID with the sincere intention to ensure election integrity, “voter reform” laws that do not include proactive measures to make sure those ID cards actually get into the hands of all voters wind up suppressing voters. That’s the fatal weakness of voter ID initiatives and the reason why Democrats and progressives oppose them so passionately.

A National Identification Card: A Necessary Compromise?

While likely the minority view, this may be the time for the United States to adopt a standard national citizen ID card, issued to every American, with limited but essential information printed on the card face, but much more data electronically encoded in the magnetic stripe and in whatever electronic chips are embedded in the card. This would have to be a very sophisticated ID to make it secure against identity theft and cyber hacking. It would be required to board an airplane, obtain a tax refund, receive welfare benefits or vote. It might be necessary to link it to retina scans or other foolproof security technologies to protect the integrity of the most important citizen transactions. Many civil libertarians, including some of the same people who are now demanding voter ID as a minimum security standard for American elections, oppose this sort of national ID card because of the possibility of illegal government surveillance, loss of privacy and vulnerability to cyber attacks. This is just one of the paradoxes at the heart of this national debate.

The efficacy of any system adopted would depend on its universal availability to all qualified voters. To require government-issued ID cards but not to provide funds to get them into the hands of everyone who needs one is essentially to create a new poll tax — outlawed by the 24th Amendment, ratified on Jan. 23, 1964. People of limited means may not have the money to secure such an ID or may not be able to justify the expenditure of their scarce dollars for such a purpose. Recent studies have shown that millions of Americans have a hard time obtaining the requisite ID cards even if they try to get them. Distances to government offices are often prohibitive. Affordable transportation is not always available. The offices are not open at times when wage workers can visit them. People without long-established domiciles don’t always have the documents (utility bills, telephone bills, etc.) that are required to establish residency. Attempts to comply with voter ID laws in western states have proved to be extremely difficult on American Indian reservations, where individuals who live outside of reservation towns do not always have identifiable street addresses (because they get their mail at local post offices).

Voter ID without Voter Recruitment May Be Suppression or Worse

To make the mandatory voter ID system work, individual states or the U.S. government would have to do three things. First, subsidize the creation and dissemination of the IDs, so that every qualified voter would receive the card, and no voter would be disqualified because they lacked the funds to obtain it. Second, send government or contract workers into the field throughout America, like census agents, with fully equipped ID-fabrication vans, to get into the vicinity of every potential voter and to sign individuals up wherever they might live, particularly in poor communities or isolated rural communities, such as Indian reservations. Third, engage in a serious, well-funded public information campaign to encourage every American voter to get an ID in plenty of time, and to remind everyone six weeks or a month before elections that voter ID is now required.

In my opinion, only if these things were included in voter ID laws could they pass muster in a 14th Amendment (equal protection) challenge. If those who are advocating voter ID laws as a necessary security measure are unwilling to work proactively to make them universal, so that no qualified voter is indirectly or inadvertently disenfranchised, it may be that they are more interested in voter suppression than in secure elections. I do believe the national security of the United States is at stake here — as is its democracy. The onus in voter ID legislation should not be on the individual, but on the whole electoral community.

The perception among millions of Republicans of Joe Biden’s illegitimacy, even if that is a groundless political maneuver, has the effect of actually creating the reality of illegitimacy. Like money printed on paper, an election is only as definitive as the legitimacy that is accorded to it by the body politic. Joe Biden’s life is no easier merely because the allegations of a stolen election are groundless. It is absolutely essential that we address this problem as a nation now, before post-election chaos produces more serious violence. It ought to be possible to do so in a nonpartisan, or at least bipartisan, manner. Unfortunately, there are individuals and entities that do not really wish to achieve genuine full election integrity, with the goal of gathering and protecting the votes of every eligible American voter. If everyone sought this seemingly simple constitutional goal, it would be relatively easy to figure it out.

You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour,” and the new Governing podcast, The Future In Context.”

Clay’s next book, “The Language of Cottonwoods: Essays on the Future of North Dakota,” is scheduled for release on June 22, 2021 and is available for pre-sale through AmazonBarnes and Noble and your local independent book seller.

Governing Senior Writer Carl Smith contributed to this story.

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