Transparent and well-regulated elections, being necessary to the security of a free state, the right of the people to anonymous voter-marked ballots, visual observation of the vote count, public inspection of registration records, legal US Citizenship of all voters, and an audited, certifiable electoral process, shall not be infringed.
The primary task of the Free and Fair Elections Amendment is to create a standard in which the people can put their confidence regarding our elections. The opening phrase of the amendment sets the tone for just what we are attempting to accomplish: transparent and well-regulated elections.
As the first substantive word in the amendment, “transparent” signifies the crucial role of transparency in election processes. Elections must be transparent to the citizens, or the citizens lose confidence in the outcomes. When widespread loss of such confidence prevails, we become a democracy in name without any real meaning.
All fair elections depend upon the secret ballot and the anonymity of one’s vote. Because that part is and must always be secret and private to the voter, every other aspect of an election must be transparent. Transparency protects voter anonymity and enables us to answer the kinds of questions that get asked about elections—was there fraud in the count? Was the election overwhelmed by inappropriate or illegal voters? Did the counting machines malfunction? and other such questions. Transparency enables citizens to satisfy themselves that elections are fair—either by personal investigation or by proxy organizations, such as journalists, academics, and activist organizations. Thus, transparency enables the public consensus to develop around the issue of fairness in the election.
The cloak of secrecy, the very antithesis of transparency, is necessary for fraudulent and unfair practices to operate. Citizens understand this. So when they see secrecy, they tend to suspect fraud and unfair practices. Problems with elections through American history are nearly always associated with the cloak of secrecy. Secrecy, whether fraudulent or not, undermines the trust of the people in the government. Transparency is lacking when access to information is restricted, either through procedures of secrecy, through the deployment of technology that can be understood only by a very specialized professionals, or other means. Under these circumstances, a public consensus regarding elections outcomes is unlikely to develop. Lack of consensus is inconsistent with the ideals of democratic government.
In a democracy, a well-regulated election means that the election is regulated by the people. Indeed, a process as large and complex as a general election can only be well-regulated when citizen election judges, citizen voters, and citizen journalists, actively observe and participate in the process, thereby providing a check on the process itself. There can be no all powerful, all knowing office to depend upon. Good regulations promulgated by government are important, as is good training of citizens in the nature of the rules and procedures. But assurance of compliance with those rules and procedures can only happen at the local level where the process is open and observable to all. The antithesis to a well-regulated election is a closed process, where compliance is determined by a small number of experts, bureaucrats, or specialists, and everyone else is relegated to either accepting or not accepting their judgment.
Measurements to Think About
When citizens monitor their own process, the essential measures of election success present themselves clearly. In each election, but also over time, these measures can and should be used to measure the efficacy of a system. Here are three examples of such measures.
High Participation of the Citizenry
Voter participation, or turnout, is a traditional measure of democratic governance; higher turnout increases the legitimacy of the outcome. When evaluated in context, alongside the other metrics of election analysis, turnout can be an important indicator and can reinforce the legitimacy of the elected government.
The problem with turnout is that it is often used as the only measure of legitimacy. Officials trumpet 70% turnout as an indicator of a strong democracy. Yet if half of those who voted are uninformed, is it really good for democracy? If a significant number of those who turned out and voted are suspected of casting illegal votes, is this a victory for democracy? These are appropriate challenges to the use of turnout as an exclusive measure of legitimacy or election success. On the other hand, it is hard to argue that “the people” have really been heard if only 25% of them vote in an election. In fact, unpopular decisions are often defended as being representative of a supposed “silent majority”—an argument that gains strength when turnout is low, apparently increasing the size of such a “majority.”
Voter turnout is an appropriate and important measure of election integrity, but it must not be used as the only measure. Other important measures of election integrity should not be sacrificed on the altar of voter turnout.
Minimization of Voter Fraud
It is axiomatic that a “well-regulated election” eliminates or minimizes fraudulent votes. Voter fraud occurs when voters intentionally corrupt the electoral process, usually by voting illegally. When a voter gives false information to establish eligibility to vote, usually during the registration process, or participates in a conspiracy to encourage others to vote illegally, voter fraud is occurring. The direct participation of voters separates “voter fraud” from “election fraud,” which is the more comprehensive term for frauds perpetrated on our elections, including tampering with vote counts, the certification process, vote caging, and so on.
When fraud is minimized, electoral legitimacy increases. Fraud can always be a factor in very close elections, but the more transparent the process of registration, certification, and counting of votes, the harder it is for fraud to occur. We have a right to a low-fraud election, and we can build processes to ensure we get one.
A debate rages on the issue of voter fraud not because anyone supports voter fraud, but because of the implications of the issue. American history is replete with examples of how both political parties have, at one time or another, used claims of voter fraud to make it harder for some citizens to vote. It is a tactic usually used against identifiable minorities or groups aligned against the claimant’s interests, to vote. The argument attempts to minimize votes cast by that group by creating real or perceived red tape for the would-be voter, the result of which is to suppress turnout in that targeted group. At least since the Civil War, Democrats and Republicans have both participated in this strategy.
A well-regulated election will not only minimize voter fraud, but will also minimize fraudulent claims of voter fraud. Fuel for the debate arises from our lack of ability to prove or disprove voter fraud. Most credible studies on this issue demonstrate that voter fraud is rare and that most allegations of voter fraud turn out to be something other than fraud, such as mistakes with complex registration rules.However, these studies are always retrospective and usually come years after the headlines of voter fraud have already had their effect on public opinion. So, even if such studies are correct, they are ineffective in settling the debate.
As with the more general issue of perceived election fraud, the final arbiter on voter fraud is the public consensus. Our electoral systems must provide the public with the information they need to reach an informed consensus, for it is the lack of appropriate information that enables claims of voter fraud to shape public opinion even when they do not happen. The cacophony of such claims also drowns out the serious issues arising from situations in which voter fraud actually occurs.
Accuracy of the Vote Count
When we know our votes are counted accurately, and we can go back and recount them accurately if necessary, the people feel confident that the election results are sound. Electronic voting machines deny us this confidence because there is no way to recount: the process is locked up in a tight little box no one can see, and accuracy cannot be verified. The observability of the process—another provision of this amendment—is essential to ensuring accuracy, as well as providing confidence in the people.
High participation, minimization of fraud, and accuracy of the vote count are three essential ingredients to a well-regulated election. These measures are indicators of how “Transparent and well regulated” our elections are. Meeting these criteria will help to create the public consensus necessary to provide legitimacy to elections. Fail to meet them, and we can expect a lack of faith by the people in their electoral process.
Note: This article is one in a series exploring the language of the Free and Fair Elections Amendment. Further info at: www.freeandfairelections.org.