Universal or qualified?

Currently, 1.4 million African-American men – 13 per cent of all black men – are disenfranchised because of a felony conviction. This is seven times the rate for all Americans. Even in a state like New York, race and ethnicity have a lot to do with whether a convicted felon gets sent to prison. Blacks found guilty of felonies are twice as likely as their white counterparts to be sentenced to prison as opposed to probation. Blacks constitute less than 16 per cent of New York state’s population but account for almost 51 per cent of the 71,000 people in prison and 50 per cent of those on parole. Latinos, about 15 per cent of the state population, are almost 30 per cent of the prison population and 32 per cent of those are on parole. Such numbers can be seen as the latest expression of discrimination going back to colonial days.

On November 8, 2004, the U.S. Supreme Court refused to hear two cases, one in New York state and the other one in Washington state, challenging laws stripping felons of the right to vote. Every state except Maine and Vermont disenfranchises people who have been convicted of crimes. The plaintiffs based their challenge on a provision of the federal Voting Rights Act, as amended in 1982, prohibiting any “voting qualification or prerequisite to voting” that results in any citizen’s right to vote being denied or abridged “on account of race or color.” The argument presented by the plaintiffs stressed that the impact of felon-disenfranchisement laws fell on minority groups, particularly black and Latino men. The number of people barred from voting under these laws is estimated at four million, of whom more than a third are black men.1

The Washington case, Locke v. Farrakhan, No. 03-1597, was filed by four black men, one Hispanic man and one American Indian. The Washington state constitution prohibits from voting “all persons convicted of an infamous crime.” The Federal District Court in Seattle dismissed the lawsuit, but the 9th Circuit, which sits in San Francisco, reinstated it. The state appealed to the Supreme Court.

In a similar case in October 2004, the 11 judges of the full United States Court of Appeals for the 11th Circuit, which sits in Atlanta, heard arguments in a case challenging Florida’s lifelong felon disenfranchisement law, which bans an estimated 600,000 state residents from voting. The plaintiffs presented evidence that Florida’s law, which dates to 1868, was enacted with the intention of keeping newly enfranchised blacks from voting. A three-judge panel of the 11th Circuit had ruled that the lawsuit could go to trial, but the full court vacated that decision and granted Florida’s request for reargument. In 2007, at the request of Governor Charlie Crist, the law was amended, allowing nonviolent offenders to regain their voting rights after having served their prison terms.

By contrast, in Canada today, the right to vote is defined as a universal right, not a qualified one. The Canada Elections Act sets out the qualifications and disqualifications for voting in federal elections, and these combine to establish a virtually universal adult franchise, even if, for much of Canadian history, federal and provincial rules worked to exclude – among others – women, Aboriginal peoples and racialized minorities.

Today’s universal right is the product of a gradual evolution, inspired by two major changes. First, the franchise, after having initially been defined by provincial legislation because of the absence of federal legislation (except during the period 1885 to 1898), was uniformly defined by federal legislation by 1920 – something that is still absent in the United States.

Except for the removal of the right to vote from British citizens after World War II (a right that had reflected the settler-colonial origins of the country), the trend in Canada has been toward extending the franchise and removing voting restrictions. The passage of the Canadian Charter of Rights and Freedoms in 1982 encouraged this trend. The Charter guarantees the right of every Canadian citizen to vote in federal elections, subject only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Canada Elections Act also sets out categories of persons disqualified from voting. Such persons today are very rare. They include certain officials, such as the Chief Electoral Officer, the Assistant Chief Electoral Officer and returning officers (except in the case of tie votes), and judges. Mentally disabled persons were barred from voting, but after a series of court decisions based on the 1982 Charter of Rights, these provisions were struck down. Prisoners also used to be prohibited from voting. However, in 1993, this prohibition was restricted to those inmates serving sentences of two years and more, and the courts subsequently struck down even this prohibition. Thus in Canada, unlike the United States, incarceration does not affect citizens’ right to vote.

Continue reading “The Right to Vote”

In this election season in the United States, all attention is on the breakdown in what was supposed to be the world’s greatest financial system. Something similar can be said about the democratic system in which this election is taking place. As dramatized in Florida in 2000, this self-proclaimed greatest democracy in the world has little clue about how to organize elections. Eight years later, Americans still face an uphill battle to win full respect for their right to vote.

Although written in the context of the 2008 election campaign, this article is based on observations I made four years ago while spending the academic year at the University of Washington in Seattle. I will try to show that the Florida fiasco of 2000 was not an aberration but a normal occurrence in a system lacking a nonpartisan body to enforce consistent and clear electoral rules. The deepest manifestation of the problem is a system of boundary drawing ensuring, in effect, that all electoral districts are gerrymandered. But it finds its way into all aspects of the process – including the very counting of votes. Despite the hope generated by the candidacy and (at the time of writing) likely election of Mr. Obama, it is very unlikely that the American system will be changed.

In two provocative books,1 journalist Daniel Lazare argues persuasively that America’s antiquated institutions have evolved into obstacles to democracy: the United States has entered the 21st century with an 18th-century set of institutions. People around the world could see this when the result in 2000 was rendered suspect by the debacle in Florida, but subsequent elections also exemplify the American “malaise.” When the U.S. Supreme Court stated in June 2004 that “the constitution does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote,”2 it bore out Lazare’s claim that built into this political system is an 18th-century elitist and regionally fragmented way of running elections. In what follows, I describe the events surrounding the 2004 gubernatorial race in the state of Washington, which manifested the profound contradictions of the American system, a cavalier treatment of what should be the fundamental civil right to vote, and carelessness with the fundamentals of democracy.

Washington state: Partisan at every step
Rematch: Republican Dino Rossi (L), who lost to Democrat Christine Gregoire (R) in the disputed 2004 Washington gubernatorial election, challenged Gregoire again in 2008.

On election day, November 2, 2004, three-term Washington state Attorney General Christine Gregoire, a Democrat, found herself in a tight race with former state senator Dino Rossi, the Republican candidate (both candidates are running again in 2008). On the night of the election, with Gregoire ahead by just a few hundred votes and hundreds of thousands of absentee ballots left to count, the race was far too close to call. Two weeks later, on November 17, with all counties finally reporting, Rossi won the election by 261 votes. With such a small difference, state law triggered a mandatory machine recount. When this recount was completed on November 24, Rossi won again but his lead was reduced to 42 votes. Rossi’s campaign declared victory. Gregoire declined to concede and Democrats hinted at requesting another recount. “Some people have suggested that Senator Rossi and I stage a duel or flip a coin to break this tie,”Gregoire said. “But I prefer to count every vote.”3

On December 2, Democrats declared that they would seek an unprecedented statewide hand recount of the 2.9 million ballots cast in the governor’s race. Two weeks later, with the hand recount still unfolding, Democratic-leaning King County, which includes Seattle, announced that it had discovered more than 500 ballots that were mistakenly rejected during the initial count. By the end of the week the number was 700.4 A few days later, Republicans sued to block King County from reconsidering the ballots. The next day, the state Supreme Court unanimously rejected the Democratic Party’s lawsuit to force counties to reconsider about 3,000 invalidated ballots. Republicans warned that Democrats might try to get the Democratic-controlled state legislature to decide the election.

On December 22, King County finally completed its hand recount. Unofficial results tipped the race to Gregoire, giving her a 10-vote lead. After the state Supreme Court found that King County could reconsider the roughly 700 mistakenly rejected ballots, ruling this time in favour of the Democrats, Gregoire’s lead grew to 129. Finally, Secretary of State Sam Reed declared Christine Gregoire the governor-elect on December 31, 2004. She was certified on January 11, 2005, and took the oath of office on January 12. But it wasn’t over.5

Not surprisingly, the Republicans rejected the decision. They filed a lawsuit in Chelan county, one of 39 counties in which they sought to have the election result overturned because of alleged irregularities that permitted convicted felons to vote (see p. 76). The case was finally dismissed in June 2005, essentially because the Republicans were unable to prove that all felons or ex-felons voted for Gregoire as claimed.

Every step along the way, partisan considerations had entered into the interpretation of the results. For example, while the number of eligible voters was established at 3,335,714 (out of a population of 5,908,684 and potentially almost four million residents of voting age), the number of actual voters on November 2 kept changing with each recount. On election day, the number of votes for governor was 2,805,930; on November 24 it was 2,808,342; finally, on December 30, the manual recount gave a total of 2,810,058 ballots.

The number of votes did not exceed the number of registered voters statewide. However, in King County, the largest county (with almost 900,000 votes) and the last to report its manual recount, the final number of votes exceeded the number of registered voters by 1,200. The discrepancies in King County were mainly due to absentee ballots, which voters sign and mail before the election, and provisional ballots, which voters fill out when they go to polling places other than their own or where their names do not appear in poll books. According to the Seattle Times, ballot checks varied considerably across the state, as did standards for signature verification, which were inconsistent in the 39 counties.6 In other words, not only do methods of collecting votes vary tremendously from one state to another, but even inside each state there are multiple discrepancies.

In the wake of the ballot problems in the 2000 general election in Florida, Congress passed the Help America Vote Act (HAVA) in 2002. HAVA provided $3.9 billion for the 50 states to address the problems created by inconsistent voting procedures, antiquated voting equipment and sloppy vote counting. But despite HAVA, problems occurred everywhere in 2004 – such as the case, reported by the Seattle Times, of a box containing 98 Washington state ballots shipped by mistake to Alaska!7 Without institutional reform that brings uniform procedures across the 50 states, such embarrassments or worse are certain to recur, particularly in a tight election.

Looking north

Although there is no chance that they will do so, our American neighbours could look north for guidance. The Canada Elections Act sets out extensive provisions for compiling and reporting election results. As stipulated in the act, “unmarked, double-marked, improperly marked ballots or ballots that identify the elector must be rejected, as must any ballot not supplied by the deputy returning officer.” The act also specifies instructions for problematic ballots which the deputy returning officer accidentally neglected to sign prior to the vote. The deputy returning officer’s signature is the only one required, in contrast to the United States where individually registered voters must sign a portion of the ballot.

This is possible because, unlike in the United States, Canada’s pre-election registration procedures provide the officials in charge of the election with a clear list of the voters and their addresses, which is mailed to the voters. Moreover, in Canada, if candidates or their representatives raise objections, the deputy returning officer is required to record these for future reference and make a decision so that the count can proceed. According to the Canada Elections Act, the ballot boxes containing the ballots and other materials must be sealed and conveyed to the returning officer. I might add that no boxes containing ballots from the Maritimes ever ended up in the Yukon – at least, no newspaper in Canada reported such a mistake in recent elections.

There is much talk of bipartisanship in the United States these days. However, until both the Republican and Democratic parties get beyond endless infantile accusations and manage to take a bipartisan approach to their voting system, 21st-century Americans will likely continue to vote in fragmented, incoherent 18th-century elections.

Continue reading “An 18th-Century Electoral System in 21st-Century America”