With their legislative agenda stymied for now, Democrats reportedly are hoping to take another crack at election reform. The Senate majority leader, Chuck Schumer, and President Biden have both identified voting rights legislation as a top priority.
But the approach that Democrats are contemplating is largely misdirected and risks further undermining public confidence in elections without achieving much of practical significance.
There is a narrower set of reforms that could actually solve some of the very real problems with elections in this country — and attract support from both parties.
It would begin from the fact that the most intense concerns about election administration on both the left and the right increasingly involve not voting itself but what happens after the voting is done.
Some Republicans insist that the process of counting and certifying the vote in some states was corrupt in 2020. There is no evidence — none — to support any specific claims on this front. But greater care and transparency about postelection administration would serve us well regardless and could render such claims easier to test and refute in ways that would build public confidence.
Some Democrats insist that Republicans are preparing to manipulate the certification process in elections in some states. So far, this mostly looks like Trump supporters running for offices with authority over election administration, which is no crime in a democracy. But requiring accountability and transparency and setting some boundaries on what can happen after an election would help ease these concerns and avert the dangers that Democrats have warned about.
And all of us saw just a year ago that Congress’s role in certifying presidential elections could be clarified and rid of opportunities for confusion and mischief.
Reforms focused on these themes would be a more productive path than what we’ve seen so far, which are efforts focused mostly on voting itself — on who can cast a ballot, when and by what means.
Democrats want fewer constraints and more time for more people to vote in more ways. They say that broader participation is essential to a stronger democracy and that restrictions on some modes of voting amount to suppression. They also assume that higher turnout will help the left win more elections, and some of the practices they want to enshrine (like ballot harvesting, in which other people collect ballots for delivery to polling places), frankly, reek of the corrupt practices that political machines have long employed.
Republicans want more safeguards and boundaries around voting. They say that greater security is essential to making sure only eligible people vote and that long voting periods and different methods to cast ballots risk enabling fraud and distorting the meaning of elections. They also assume that lower turnout will help the right win more elections, and some of the restrictions they want to impose (like limiting Sunday voting), frankly, reek of the racist practices long used to deny the vote to Black Americans and other minorities.
If we take both parties’ most high-minded arguments at face value, they are worried about problems that barely exist. It is easier than ever to vote: Registration has gotten simpler in recent decades, and most Americans have more time to vote and more ways to do so. Voter turnout is at historic highs, and Black and white voting rates now rise and fall together. These trends long predate the pandemic, and efforts to roll back some state Covid-era accommodations seem unlikely to meaningfully affect turnout.
Meanwhile, voter fraud is vanishingly rare. The most thorough database of cases, maintained by one of the staunchest conservative defenders of election integrity, suggests a rate of fraud so low, it could not meaningfully affect outcomes.
Even judged by the parties’ more cynical motives, their reform priorities don’t make sense. It is just not true that higher turnout helps Democrats and hurts Republicans. In their 2020 book “The Turnout Myth,” the political scientists Daron R. Shaw and John R. Petrocik review half a century of evidence decisively refuting that common misperception. That’s not to say that turnout doesn’t shape particular election outcomes, but it doesn’t systematically benefit one party or the other.
The parties’ emphasis on voting itself also isn’t conducive to bipartisan action, which is essential to public trust. Democrats in Washington should see that using one of the narrowest congressional majorities in American history to nationalize election rules in ways opposed by every Republican official — even if it’s well intentioned — would undermine public confidence in elections. Republicans should recognize that state laws restricting the times and methods of voting over the objections of every elected Democrat will be perceived as an attack on the voting rights of Democrats, even if they aren’t.
Each party is telling its supporters not to trust our elections unless its favored bills are passed while implicitly persuading its opponents that those bills are illegitimate and dangerous. The result amounts to an assault on public trust that’s worse than any actual problem with American elections.
That is why Democrats and Republicans should turn to narrowly tailored legislation focused on postelection administration. Such a bill could, for instance, limit the ability of state officials to remove local election administrators without cause, and prohibit the harassment of election workers (as happened, for example, in Georgia after the 2020 election). It could mandate a mechanism for postelection audits while requiring a clear standard for rendering election results final.
It could provide for uniform transparency procedures and codify the role of election monitors. It could prescribe an oath for all election administrators committing to transparently and impartially obey the law. And it could modernize and simplify the Electoral Count Act of 1887, which still governs Congress’s and the vice president’s roles in certifying presidential elections.
Some of these ideas are already included in the Freedom to Vote Act, sponsored by Democratic senators, including Joe Manchin. But that bill also includes extraneous measures (like changes in voter registration and eligibility, campaign finance and redistricting) that render it unacceptable to Republicans. A less sweeping bill focused on addressing some shared concerns about what happens after the people vote would stand a better chance of attracting bipartisan champions.
Our debates about election reform this past year have been misdirected in ways that have rendered them more divisive than they have to be. By beginning from shared concerns and real dangers and from a proper understanding of the strengths of our system and not just its weaknesses, Congress can do better in the year to come.
Yuval Levin is a contributing Opinion writer and is the editor of National Affairs and the director of social, cultural and constitutional studies at the American Enterprise Institute. He is the author of “A Time to Build: From Family and Community to Congress and the Campus, How Recommitting to Our Institutions Can Revive the American Dream.”
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