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Obama’s Bid for Unilateral Power over Elections

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“I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this — who will count the votes, and how.”

— Joseph Stalin (1923), as quoted in The Memoirs of Stalin’s Former Secretary by Boris Bazhanov.

To glimpse the political future of America, turn off the news, ignore public statements from officials, and follow instead the paper trail of executive orders issuing from the White House.

On March 28, President Obama signed an executive order entitled “Establishment of the Presidential Commission of Election Administration.” The president has created yet another administrative agency. This one is overseen by nine members, who will be unilaterally appointed by Obama and entrusted with a specific mission:

The Commission shall identify best practices and otherwise make recommendations to promote the efficient administration of elections in order to ensure that all eligible voters have the opportunity to cast their ballots without undue delay, and to improve the experience of voters facing other obstacles in casting their ballots, such as members of the military, overseas voters, voters with disabilities, and voters with limited English proficiency.

Critics have called this move “the nationalization of elections,” an attack upon a traditional state authority, and even an attempt to rig the upcoming 2014 congressional elections and the 2016 presidential elections. The 2014 elections will be fought tooth and nail, because the balance of congressional power is at stake. Obama has railed against the current balance of power in Congress, saying that it is so obstructive as to paralyze the government. He desperately wants a Democrat-dominated Senate and House of Representatives to facilitate his agenda.

The Senate has a total of 100 seats, with 51 constituting a majority. Currently (as of the 2013 sitting), the Democrats hold 53 seats, and the Republicans 45, with independents filling 2 seats. Thus the Democrats enjoy only a narrow majority, and their control has proven fragile when confronted by controversial legislation. Thirty-five seats are up for grabs in 2014, with 21 of them being held by Democrats. Many of those are considered “vulnerable,” because they are in Republican-leaning states.

The House of Representatives has a total of 435 voting seats, with 218 constituting a majority. Currently (as of April 9), the Democrats hold 201 seats, the Republicans hold 232, and 2 seats are vacant. All seats are up for grabs in 2014. Without a Democratic majority in the House, the composition of the Senate becomes less relevant; each branch of Congress can block the other. Obama needs a Democratic House majority to escape government paralysis.

Federal control of elections

Obama faces a technical problem. The executive order he recently signed opens with the words “By the authority vested in me as President by the Constitution.” But the United States Constitution and its amendments give the states, not the federal government, authority over congressional elections.

Article 1 of the Constitution clearly stipulated that Senate members were to be chosen by state legislatures; House members were to be elected directly by the people of a state. Then, in 1913, the Seventeenth Amendment provided for the direct election of senators

from each State, elected by the people thereof.… When vacancies happen … the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Thus, both in its original and in its amended version, the Constitution vests electoral authority on the state level. This procedural arrangement is as much a part of the Constitution’s attempt to balance power as is the tripartite structure of the government itself. To put it bluntly, as long as the states control election procedures, it is very difficult for federal authorities to rig an election. Certainly, the federal government plays a role in defining elections. For example, the number of House seats allocated to each state depends on the population reported in the federal census. But the nuts-and-bolts regulation of elections is addressed by state constitutions and state laws.

Obama’s executive order addresses these nuts and bolts. Among the explicitly stated areas it lists as “appropriate” for the new agency to consider are

  • the number, location, management, operation, and design of polling places;
  • the training, recruitment, and number of poll workers;…
  • the efficient management of voter rolls and poll books;
  • voting machine capacity and technology;
  • ballot simplicity and voter education;
  • voting accessibility for individuals with disabilities, limited English proficiency, and other special needs;…
  • other issues related to the efficient administration of elections that the Co-Chairs agree are necessary and appropriate to the Commission’s work.

The individual states traditionally address such issues.

To deflect criticism, Obama may point out that, in the words of the executive order, the presidential commission is merely “advisory in nature” and not able to impose changes upon the states. Nevertheless, the order also calls for the commission to “hold public meetings and engage with Federal, State, and local officials, technical advisors, and nongovernmental organizations, as necessary to carry out its mission.” In short, Obama’s commission may well bypass constitutional restraints by taking its electoral “recommendations” to the people in the hope of rousing public support. After all, Obama has repeatedly demonstrated contempt for the Constitution and focused instead on garnering the people’s (read, the voters’) approval.

The commission’s recommendations will undoubtedly be phrased in terms of “fairness.”

The rationale behind the president’s election commission

Former Justice Department official J. Christian Adams has called the executive order “a federal solution in search of a problem.”

Obama floated the alleged problem in his acceptance speech on election night (Nov. 7, 2012). He declared, “I want to thank every American who participated in this election.  Whether you voted for the very first time or waited in line for a very long time — by the way, we have to fix that.” He revisited the voting-problem theme in his 2013 State of the Union address (Feb. 12), where he prominently featured the dilemma of a 102-year-old Florida resident named Desline Victor. Obama explained, “When she arrived at her polling place, she was told the wait to vote might be six hours. And as time ticked by, her concern was not with her tired body or aching feet, but whether folks like her would get to have their say.” Obama has vowed to “improve the voting experience” in America.

Americans might assume that Obama was referring to a gross voting irregularity that occurred in both of his presidential elections: namely, the loss or late delivery of military ballots. This assumption seems validated by the executive order, which lists, among those voters facing “obstacles in casting their ballots,” “members of the military.”

This issue of military ballots is particularly important to Republicans, because that segment of the vote tends to be conservative and favor them. Indeed, Obama has been accused of blocking the military vote. After many such ballots were lost or delayed in 2008, the Military and Overseas Voter Empowerment Act (2009) mandated that every American military installation that was not in a war zone must operate a voter-assistance office for the purpose of registering troops and making absentee ballots accessible.

Two months before the 2012 election, however, a September 7 CBS headline announced, “Half of U.S. Military Bases Lack Required Voter Assistance Offices.” The Federal Voting Assistance Program (FVAP) blamed a lack of funding. But Eric Eversole, founder and executive director of the Military Voter Protection Project, called the claim “laughable.”

Eversole explained, “In fiscal years 2011 and 2012, FVAP received a combined $75 million in federal appropriations. To put this into perspective, they received $17.4 million for fiscal year 2010.” He pointed out that the “FVAP has funneled at least $25 million over the past two fiscal years into developing technology pilot programs that were suggested as optional enterprises within the law.”

For this and other reasons, Obama has been accused of suppressing the military vote. But this is one of the same voting irregularities that he now cites as a reason for the federal government to exert its influence over the minutia of electoral procedure. Critics have called his concern over counting military ballots mere “lip service.”

Certainly, the voting problem most thrust into the spotlight has been the long waiting lines at polling stations, using Ms. Victor as the poster woman. Adams dismisses the much-hyped “Victor problem” as being deceptive. He writes,

What the president didn’t tell you is that Ms. Victor chose to vote early on the opening day of early voting — a notoriously unpleasant experience. Had Ms. Victor voted at her precinct on Election Day, she would not have waited six hours.

The president never mentioned that the average wait to vote on Election Day last November was 13 minutes, according to a Massachusetts Institute of Technology study. Those who chose to vote early waited an average of 20 minutes.

Conclusion

Obama and the Democrats have been slipping in public-approval ratings. This is never welcome news so close to a key and difficult congressional election (2014). It is equally daunting for the upcoming presidential one (2016); Obama must be painfully aware that the massive reforms he has achieved through executive orders and without congressional approval could easily be reversed by a Republican president.

Obama is likely to grasp at every electoral advantage, including the creation of ones not currently available. Adams explains,

Federal laws pertaining to election administration are seen by Democrats as ways to extract every last drop of available political power. The GOP often doesn’t even realize it is happening because the mandates are marketed as good government or civil rights legislation.

Pay attention to the federal mandates that the presidential commission might consider. No doubt they will be intrusions into state legislative choices, such as guaranteed vote by mail, or federal mandates for early voting.

The Republicans are not likely to be as naive as Adams believes, and they have a proven willingness to play with voting procedures themselves. But if Obama’s new agency is an attempt to federalize all elections, as it appears to be, it will constitute the biggest change to American election procedures in more than a century.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).