By Mary Frances Berry

Photo credit: Kelley Minars

Our electoral process is broken. Polls, interviews with voters or prospective voters all confirm discontent with our system and a sense of unfairness, corruption or unresponsiveness. At the state and local levels, such issues as expanding Medicaid, insuring clean drinking water, addressing homelessness, figuring out how to “fix” education, repairing streets and other infrastructure, police community relations, all depend on an effectively functioning political system. The public routinely expresses a sense of uncertainty about when and how to vote, who can vote, and whose votes count, whether in state and local or national primaries or general elections. The uncertainty is exacerbated by increased population mobility. Some jurisdictions make changes in the law and are then challenged and endure expensive litigation costs because of provisions attacked as voter suppression. The cost to the justice system as well as the litigants is enormous. Also, the contestation further undermines confidence in the political system.

Trying to pass a new Voting Rights Act to remedy the Supreme Court decision in Shelby v. Holder is important, but does not address these general concerns. Because the Constitution gives the states the power to directly control elections, the most Congress could do, even in a less polarized environment, is to enact a best practices law and then provide for withholding funding in the absence of compliance. We need a different non-partisan approach in which the states would mandate the rules. The optimal approach under current circumstances is a uniform elections and voting process code adopted by the states which includes best practices and reflects the goal of democracy while reducing uncertainty, avoiding abuses and litigation costs, and unnecessary tension over voting. This Code, like others initiated by the National Conference of Commissioners on Uniform State Laws and the American Law Institute, would be adopted by each legislature or by ballot referendum. Such a Code might also increase turnout of citizens who respect the system and believe the process makes accountability possible.

At a minimum, such a Code should provide for better monitoring of campaign’s using contributions for vote-buying and misuse of absentee ballots. This includes collecting signatures from vulnerable elderly or the poor for a few dollars or snow or trash removal only in certain pliant neighborhoods, or allocating public housing based on how a family voted—practices which still exist in almost every jurisdictions. Because local prosecutors and judges are elected by the same campaigns, action would require independent prosecutors and judges in state and local elections in voter manipulation cases.

The Code could also ease obtaining voter ID cards by providing for secure transmission online of a photo to the voter registration office along with the application and payment. It might also provide for voter registration offices distributed fairly based on population in geographic areas of the state to avoid deliberate efforts to make qualifying difficult.

In order to increase turnout, the Code could require mandatory voting, but only with “none of the above” as a possibility. This is to avoid making people vote for someone they don’t want. It might also consider incentives or rewards such as a lottery ticket along with the “I Voted” sticker, as the voter leaves the polling place.

Once the Code is adopted, any state legislative action that changes a provision in a way that violates the state or federal Constitution would invite litigation to prevent its implementation.

Grassroots activists will need to organize to gain approval either by the legislature or ballot referendum. Some legislators and voters will be interested in litigation costs; others in rights, fairness and morality, still others, in accuracy and inclusiveness in the name of democracy and citizen action. States that do not act could be penalized by the economic pressure of boycotts and business location decisions.

Actual as opposed to pretend democracies are based on citizen participation and the delivery of promised government benefits to constituents by elected officials. Voters may invest their hopes in a candidate who promises to change their situation, believing that this time around, elections actually do matter. But when promises are blatantly ignored with no demonstration of even intent to deliver, pessimism and anger among the population is a result. Adopting a best practices approach to the electoral process will alleviate unfairness and help to restore faith in our democracy.

About the Author 

Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought and professor of history at the University of Pennsylvania, and the author of nine books. The recipient of thirty-three honorary degrees, she has been chair of the US Commission on Civil Rights, is a regular contributor to Politico, and has appeared on Real Time with Bill Maher, Anderson Cooper 360, The Daily Show, Tavis Smiley, and PBS’s NewsHour. She is the author of Five Dollars and a Pork Chop Sandwich: Vote Buying and the Corruption of Democracy. Follow her on Twitter at @DrMFBerry.