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Bigger Issues
A response to The Search for New Voting Technology

Heather Gerken

In the wake of the 2000 election, efforts to reform our voting system have proliferated. Commissions, think tanks, and universities across the country are considering the problems highlighted by the astonishingly close presidential race: voting machines with high error rates, ballot problems, and tabulation difficulties. Stephen Ansolabehere and the Caltech/MIT Voting Technology Project have been at the forefront of these efforts and should be commended for their important contributions. There is little to quarrel with in Ansolabehere's cogent analysis of the problem and his sensible solutions, although I do think he underestimates the power Congress enjoys to mandate uniformity among localities. Congress unquestionably has the power to do so for elections for the House of Representatives and the Senate under Article I of the Constitution. Similarly, Bush v. Gore suggests that Congress enjoys constitutional authority to mandate uniformity among local elections to the extent necessary to enforce the Equal Protection Clause. It would be better for Congress to exercise that power rather than rely upon the conditional funding program Ansolabehere endorses. Setting aside the possible racial and economic skews that might result from an underfunded program, which I discuss at the end of this essay, even properly funded programs are notoriously ineffective in policing state violators. If, as Bush v. Gore suggests, the reforms Ansolabehere advocates are intended to vindicate individual constitutional rights, we should accord those rights the dignity of a straightforward federal mandate rather than quid pro quo appropriations.

In this essay, however, I'd like to focus on what Ansolabehere—like the rest of the country—is not discussing in the wake of the 2000 election: the deep, systemic problems that plague our democratic process. I do not mean to detract from the important work Ansolabehere and others are doing, for their project signals a national commitment to the sanctity of the vote. My fear, however, is that in the rush to fix the problems we witnessed in Florida, we will lose track of the bigger issues. Instead, the efforts to reform our technology should be a starting point for a broader conversation about the health of our democracy. Here are just a handful of issues we ought to be discussing.

Participation. Voting rates in the United States are lower than those in most other Western democracies, and there has been a precipitous decline in each generation. As a nation we are gradually forgetting the essential habits of self-governance.

One reason for this decline is disaffection with politics. Our two-party system does not produce sufficient political competition and choice to inspire most Americans. We have what amounts to an antitrust problem in our political market. The natural outgrowth of our winner-take-all system is two dominant parties, both racing to the center, that inevitably provide a similar political product. Just as antitrust law requires changes in the structures of anti-competitive markets, democratic reform should require alterations in a political system locked up by two major parties.1 Such reforms might include the creation of alternatives to winner-take-all schemes, campaign finance initiatives, efforts to produce competitive districts, encouragement to third parties, and challenges to incumbents.

Another impediment to participation in our democracy may be civic disconnection. Robert Putnam has demonstrated a powerful relationship between community involvement and democratic participation. The people who vote are generally the same people who belong to church groups, play in soccer clubs, or join environmental organizations. Thus, a long-term discussion about democracy should also look to civil society: how do we build more small-scale civic structures to mediate an individual's relationship with her community? How do we use existing structures to build community and connections? Can we prevent further fragmentation and isolation stemming, for example, from the Internet or urban growth, or can we harness these trends in order to build new democratic structures?

Poverty. A second, related problem embedded in our democracy is poverty. Ansolabehere mentions the digital divide, just one of the many ways in which economic hardship makes it more difficult for the poor to take part in democratic governance. And if we are worried about low participation rates as a general matter, we should be especially concerned about the fact that they are often correlated with poverty. For the poor, low rates of participation signal a lack of connection to the broader community that can lead to frustration, anger, and violence. Moreover, such withdrawal silences the voices of those whom we should be working the hardest to hear.

Unfortunately, ongoing efforts to reform our democratic system tend to ignore these problems. For example, campaign finance reform has been touted as a balm for Americans' growing disillusionment with democracy. Thus far, however, this has largely been a debate between the "haves" and the "have-mores." Far from addressing the concerns of the poor, some proposed reforms may even have the unintended effect of undermining their interests. For example, the ban on soft money could lead to fewer registration and get-out-the-vote drives, which often benefit poor communities.2 Or, as some have argued, it may be better to support the ban because the proportion of soft money that is actually used for get-out-the-vote drives is small when one considers the extent to which the legalization of soft money disproportionately excludes the poor and racial minorities from fully participating in the political process.3

Race. A related structural concern in our democracy is the problem of race. Lani Guinier and Gerald Torres have termed race "the miner's canary" because the problems that plague our democratic system most visibly affect racial minorities.4 Troubles encountered by racial communities can provide an early warning sign about systemic flaws in our democracy. Guinier and Torres's observation certainly applies to participation and civic engagement. Past discrimination—segregation, redlining, and discrimination in education and employment—has ensured that a disproportionate share of these groups' members are poor and concentrated in the inner city. As a result, the problem becomes circular: these conditions prevent or discourage racial minorities from participating in government organizations that might enable them to effect change in their communities.

People of color face many other barriers to full and effective participation. For example, felon disenfranchisement rules (discussed here by Joshua Rosenkranz) have had a disproportionate effect on racial minorities. We need a nationwide discussion about whether felon disenfranchisement laws perpetuate the effects of past discrimination. Do they convey a level of disrespect for the act of voting that is itself inconsistent with the impulses behind the reforms Ansolabehere advocates? Similarly, too often racial minorities encounter other forms of discrimination, such as districting schemes that prevent them from aggregating their votes effectively and legislative processes that shut out representatives of those communities. And the statute designed to prevent and remedy these problems—the Voting Rights Act—has been under a sustained attack in the federal courts. We need to rethink the voting-rights protections afforded to racial minorities and explore new ways to facilitate their full participation in democratic self-governance. We cannot expect our democracy to function properly if it is premised on a message of exclusion.

Similarly, consider Ansolabehere's proposal that the federal government offer matching funds to entice localities to upgrade their balloting machinery. That proposal might look less appealing when viewed in the context of these structural concerns. Any matching program will depend on the ability of localities to come up with adequate funds to match the federal dollars. If the incentives prove to be inadequate, then what will emerge is precisely the same patchwork of tabulation systems we see today, one in which the poor—and thus racial minorities, suffering under the effects of past discrimination—are less likely to have their ballots counted. Consider what type of message such a result would convey in the wake of the Florida debacle. In short, even when we talk about the mechanics of the election process, a sensitivity to the structural problems of race and poverty is essential.

The irony, of course, is that even our discussions of election 2000 appear to reflect a racial skew. Public opinion polls reveal a deep-seated anger in the black community about the exclusion that took place in Florida and elsewhere. But whether or not those concerns are largely shared among whites, they have not yet risen to the surface. It is imperative that the debate that is now taking place among African Americans take place on a national level because the exclusion African Americans experienced in Florida are emblematic of deeper, structural concerns. Fixing the machines, while worthwhile in its own right, is simply not enough.

Heather Gerken is a professor at Harvard Law School.

Return to the forum on machine politics, with Stephen Ansolabehere and respondents.

1 See
Samuel Issacharoff & Richard H. Pildes, "Politics as Markets: Partisan Lockups of the Democratic Process," Stanford Law Review 50 (1998): 643.

2 See Alison Mitchell, "Blacks and Hispanics in House Balk on Campaign Finance Bill," The New York Times (May 9, 2001)

3 See Memo from Fannie Lou Hamer Project to the Congressional Black Caucus (May 15, 2001). I am indebted to Spencer Overton for raising these concerns.

4 See Lani Guinier & Gerald Torres, The Miner's Canary: Rethinking Race and Power (forthcoming 2001).

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