Today, January 3, 2012, a Washington Post editorial noted how Virginia’s arcane, stringent and cumbersome laws governing ballot access for candidates worked to limit voter choice. That same day, the Nashville Tennessean reported, “Civil rights attorneys in Nashville and Washington, D.C., appear to be laying the groundwork for legal challenges to Tennessee's new voter identification law. . . .” “There are multiple problems with our state law," the Tennesseean quotes Nashville lawyer Gerard Stranch as saying. "It's not just that it would have a disparate effect on minorities. It's setting up a poll tax." On December 27, 2011, a New York Times editorial charged that “many Republican state lawmakers are doing everything they can . . . to prevent students from voting in the 2012 presidential election.” Meanwhile, a December 31 article from the McClatchy Newspapers reported Newt Gingrich’s charges that the “Obama administration seeks to steal elections with voter ID ruling.”
The list of mainstream media reporting or editorializing about how new election laws – passed mostly by Republican-controlled legislatures -- have the potential (and many argue, the intent) of causing wide-spread voter suppression targeting minority, elderly, poor, and young voters could go on and on. So too for Republican charges that Democrats are allowing (or, in some reports, actively promoting) voter fraud to undermine the sanctity of the vote. Rick Hasen’s Election Law Blog (an invaluable resource , for anyone interested in election law or voting rights matters) has been regularly filled with such reporting for the last couple of years. Suddenly we are awakening to the real dangers posed by what I call administrative gerrymandering: the manipulation for partisan political gain of the administrative rules, procedures, and practices by which we organize and run our elections.
As recent events show, the authority to change the ways that we administer our electoral process gives state and local officials a substantial power to shape an election’s outcome by in effect shaving or adding a few points (that is, voters) at the margins – and to do so without breaking the law. Selective voter purges, unequal distribution of voting machines based on class or party criteria, voter ID laws, and partisan administrative rulings from state election officials are but a few of many perfectly legal methods available to those controlling a state’s electoral machinery to shape the outcome of voting by dictating which of us can vote, when we vote, where we vote, and how we vote. Although such changes are largely irrelevant when victory margins are large, in close elections these votes (or non-votes) can and do define the difference between who wins and who loses.
We should have seen it coming. We had our warnings. In fact, the whole 2000 post-election crisis was one big warning of the dangers posed by partisan administration of electoral rules. The subtitle to my book on Bush v Gore – “exposing the hidden crisis of American democracy” – referenced not the un-democratic choosing of a President by five Supreme Court justices, but rather the dangers posed by administrative gerrymandering as “exposed” by these events. In a very real sense, the 2000 postelection crisis was, to use Thomas Jefferson’s famous description of the 1820 controversy over slavery, “a fire-bell in the night” – a warning of the potential for electoral manipulation by those whom we trust to run our elections – and who, I stress again, can do so without ever breaking the law.
Democracy is not a simple act. Rather, it is a complex process -- one shaped by the actions and inactions of those whom we trust to organize, run, and tally our elections. As George Washington University law professor and elections expert Spencer Overton explains in his book Stealing Democracy: The New Politics of Voter Suppression (2006):
[C]ontrary to conventional perception, American democracy is not an organic, grassroots phenomenon that mirrors society’s preferences. In reality, the will of the people is channeled by a predetermined matrix of thousands of election regulations and practices that most people accept as natural: the location of election-district boundaries, voter-registration deadlines, and the number of voting machines at a busy polling place. This structure of election rules, practices and decisions filter out certain citizens from voting and organizes the electorate. There is no “right” to vote outside of terms, conditions, hurdles and boundaries set out by [this] matrix. (pp. 13-14)
How we establish and administer this matrix of rules and procedures shapes who can vote, how they vote, and even who wins and loses. Control this matrix and you control American democratic processes. And, as Overton makes clear, although there may be no “grand conspiracy” distorting the shape and scope of our electoral matrix, as long as partisan government officials are allowed to shape its form without accountability or oversight, the result will be a circumscribed electorate and manipulated electoral procedures.
Unfortunately, once the Supreme Court issued its ruling in Bush v. Gore and called the 2000 presidential election on account of time, we ignored this “fire-bell in the night” and went back to business as usual. True, congressional committees proposed reforms that eventually became the Help America Vote Act of 2002, but on the whole, when provided the opportunity to fix what was really broken, American political leaders chose not to act. Calls for deeper and more substantive reforms were ignored, modified into irrelevancy, or trapped in a bureaucratic tangle never to see the light of day. The American political system responded with a partisan, politics-as-usual approach to the electoral crisis, generating as many new problems as the old problems they sought to fix.
Sadly, it seems that the only ones who really took the lessons of 2000 to heart were those who saw in them the opportunity for partisan political gain – and our current discovery of the evils of administrative gerrymandering is the result.