Will 2020’s vote lead to more federal oversight in US elections?

The 2020 presidential election has again drawn attention to the decentralised election system in the US.

The 2020 presidential contest saw an unprecedented change in mail ballot policies across the country [Julio Cortez/The Associated Press]

The dust is settling in a United States presidential election conducted in the face of an unprecedented health crisis and a misinformation campaign like none other in history.

The 2020 contest has again shone a spotlight on one of the most decentralised election systems in the world and prompted renewed calls for increased election uniformity across the country.

In the US, national elections – those for president and Congress – are administered by local and county officials, typically following policies and procedures set by the state.

As noted by the National Conference of State Legislatures (NCSL), these systems developed “organically” within the particular context of each state “and there is quite a bit of variation in election administration even within states”.

In some ways, the 2020 elections made clear the importance of having authority spread out across the country amid President Donald Trump’s widespread campaign to the results.

“One of the reasons that [Trump’s] bluster has not been able to have more of an impact on the way the elections were run, is because it is so decentralized, and because you do have these independent actors at the local level,” Lawrence Norden, the director of election reform at the Brennan Center for Justice, told Al Jazeera.

Still, throughout the election season, a wave of new and varied policies, mostly related to increased mail-in voting in light of the pandemic, worked in lockstep with Trump’s baseless allegations of fraud to create confusion among the electorate, Norden said, underscoring the need to better normalise how elections are run.

“There are a number of things in this election that demonstrated the need for some common set of minimum standards,” he said. “You had states and localities trying to deal with the massive challenge of running an election during a pandemic. You had different rules changing in different states and courts affirming or rejecting those changes.”

“Not having any kind of uniform standards creates confusion for both voters and even the people administering the elections,” he said.

Specifically, inconsistent policies concerning when mail ballots needed to arrive, and when state election officials could begin tallying those votes, created a so-called “red mirage” that showed the president leading in the hours after polls close, only for that lead to dissipate in the following days.

Weeks after the contest, early confusion has remained the root of Trump’s repeated, and baseless, claims that the election was “rigged” or “stolen”. Polls show those claims continue to resonate among his party, even after the Electoral College voted for President-elect Joe Biden on December 14.

Culture and politics

Voting procedures remain charged political topics in the US. That, coupled with an aversion towards federal government involvement in election administration, has historically made more standardised national procedures a hard sell.

In many ways, the current system – which according the Government Accountability Office is composed of about 10,500 unique voting systems – has been baked into the culture of the US since its beginning.

It’s “really a reflection of the history of how the United States came together in the 1700s, when it was a collection of colonies and states that agreed to have a kind of weak central government to coordinate their activities,” said Barry Burden, the Director of the Elections Research Center at the University of Wisconsin Madison.

Still, Norden said, there are some areas that could see bipartisan support for federal reform in the coming months, including mandating or at least setting more robust guidelines for voting machines that leave a paper trail, uniform audits of voting equipment, and setting more uniform standards for mail-in voting.

That last item, Norden noted, had been considered more of a “geographic issue” and not overtly political “up until this year” when Republicans seized on the practice in an apparent bid to discourage Democratic turnout in key states.

‘Wake up call’

Despite some landmark legislation – including the 1845 creation of a unified day of voting; the 1965 Voting Rights Act, which attempts to prohibit flagrantly discriminatory election practices; and the 1975 creation of the habitually deadlocked Federal Elections Commission (FEC) which regulates campaign finance – movements towards federal normalisation of state policies has remained relatively weak.

The 2020 US elections saw record numbers of early voters and mail-in voting resulting in the highest voter turnout in US history [File: Gerry Broome/AP Photo]

The most strident attempts came following the 2000 presidential election, which served as the most significant “wake up call” to the pitfalls of having inconsistent election systems, Lonna Atkeson, the director of the Center for the Study of Voting, Elections, and Democracy at the University of New Mexico, told Al Jazeera.

In that contest, outdated voting machines in Florida lead to a prolonged dispute over what ended up being a 537-vote margin.

“Prior to Florida, we hadn’t really looked into how much election administration varied across the country,” Atkeson said. “Everybody thought, prior to 2000, that the election system was pretty well run.”

In the wake of the dispute, Congress passed the most comprehensive federal election administration legislation in history, the Help America Vote Act (HAVA).

The law established the Election Assistance Commission, which funnels money appropriated by Congress to individual states, conditioned on meeting minimum voting administration standards focused mostly on voting equipment.

Still the EAC “has no enforcement powers. It can’t write rules, it can’t develop regulations,” according to Burden. “It doesn’t get violations or anything like that reported to it. It doesn’t even develop policy proposals for Congress.”

“That makes it a more benign agency,” he said.

‘Elections as a resource that needs protecting’

In a paper published on November 4, Lee Drutman, a senior fellow at the progressive New America think tank, and Charlotte Hill, a board member of FairVote, outlined how Congress could create a “Federal Elections Agency” that would set standards, and most importantly have the powers to enforce those standards.

“We can think of this as akin to the Environmental Protection Agency (EPA), but with democracy and elections as the resource that needs protecting,” the duo wrote.

“The Federal Elections Agency would similarly research, monitor, and enforce election laws, enabled by strong congressional legislation,” they wrote, noting that creating such an agency would almost certainly require Democrats taking control of the Senate, which will be decided by two runoff races in Georgia in January.

Voting rights advocates also support the so-called For the People Act, which passed the Democratic-controlled House of Representatives in the most recent legislative session, but languished in the Republican-controlled Senate.

The legislation seeks to standardise voting registration and early voting, but also contains more politically charged provisions including uniformly restoring voting rights for people with prior felony convictions and restoring key provisions of the Voting Rights Act that had been previously gutted by the supreme court.

Conservatives have also laid out possible federal action with Kay James, the president of the Heritage Foundation, arguing in a November 14 article that Congress and state governments should enact more uniform voting identification laws, which critics say amount to voter suppression. Republican US representative Dan Crenshaw, on Twitter, has also advocated for a uniform voter identification law and limits on mail-in voting across the country.

While there has been a gradual “creeping in the direction of more uniform experiences across the states and more federal coordination” for decades, Burden added that given the deeply polarised politics in the US, sweeping changes in the short term remain unlikely.

“It’s most likely to be a continued gradual march in the direction of more and more federal involvement and oversight,” Burden said. “I think that’s likely to continue, but it’s probably not accelerating.”

Source: Al Jazeera