November 2008

Address to the Cleveland Area LWV Town Hall Meeting on Election Law Reform

Wednesday, November 12th, 2008



Citizens, neighbors, members of the faculty and staff and student body, voters good evening and welcome to Baldwin-Wallace College.

I’m Charlie Burke, Professor of Political Science and Chair of that Department here, and I’m happy to be able to introduce you to the program we are jointly sponsoring with the League of Women Voters of Ohio–which the League has entitled “Ensuring Honest, Fair, Transparent, and Efficient Elections. Do we have a problem? I invite your attention particularly to those adjectives: honest, fair, transparent, and efficient. My task here is simply to introduce the subject matter of our Town Meeting discussions, and get off stage–eight bars and off. Professors are notorious for speaking in public in fifty-minute chunks, but I’ll ask those of you students here to signal me if I’m running off at the mouth.

Baldwin Wallace Student makes statement

We have just experienced an extraordinary election, marred by perhaps not so many upsets as we thought might be the case, and the total turnout, and percent of turnout is not yet completely known, since we’re still counting, particularly in Alaska, and I think in Columbus as well, and many unfortunate occurrences have come to light. Just the same, we think that at least l30 million Americans have voted–that would be the second largest number of voters in the second largest democracy in the world–India being first. Personally, I think that India runs elections that are more honest, fairer, more transparent, and more efficient than is the case in the United States. You may have noticed that Canada has just completed its election: speedily,

efficiently, effectively and, although as many as four candidates were running for House of Commons office in many of the Canadian ridings, and although the vote in

many was very very close, there was not a whimper of protest, nor accusation of any sort–such is the reputation of Elections Canada. There are times in the immediate past in the United States when I would really wish that we might outsource our election administration to Canada–or to the similarly effective Elections Board of Mexico, for that matter.

Both of those are national supervisory Boards, as is election administration in India–even though all of those countries are similar to us in government structure–they

are federal republics, I mean. Voting and elections however are thought to be national matters, not to be left to states or provinces. But that is the gift, not so nice a gift, left to us by our founding fathers: the fifty-five white men of property who wrote the United States Constitution in l787. Perhaps it will shock you to quote no less an authority than the late Chief Justice of the US Supreme Court, William Rehnquist, who, writing the decision in Bush v. Gore in late 2000 which brought the

incumbent President into office; Chief Justice Rehnquist wrote:

“The individual has no federal constitutional right to vote for electors for the President of the United States”

I sometimes like to shock my classes in American government, since 2000, with the statement made by the Republican state legislative leaders of Florida, that if the recount had been allowed to proceed, they were prepared to cancel the public

vote for electors entirely, and name themselves electors for Bush-Cheney–which they had every constitutional right to do. And they still can.

The Chief Justice is perfectly correct: voting is a right that is granted to you (and you might call that more of a privilege than a right) by state legislatures, which is the result of a compromise by the Constitution’s founding fathers all those years ago. Their opinion, in l787, of the people, or the possibility of the people voting, was quite negative. Here’s an earlier statement from second president John Adams, written in l776 to a friend on the subject of the vote: (Adams was NOT at the Philadelphia Convention which wrote the Constitution, but his ideas were very much present)

“The same reasoning which will induce you to admit all men who have no property, to vote, with those who have. .will prove that you ought to admit women and children; for, generally speaking, women and children have as good judgments, and as independent minds, as those men who are wholly destitute of property. . . Depend upon it, Sir, it is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it.

New claims will arise; women will demand the vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a penny, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level.”

I think you might see a little of Abigail Adams, by the way, in that statement. Of the founding fathers, the northern states were probably more conducive to permitting male suffrage, though based on property for the most part. I’ll note in passing that the first new state, Vermont (which Republicans now call the People’s Republic of Vermont) was the first place in the entire world permanently to permit universal male suffrage, in its state Constitution, of l79l, without regard to wealth or skin color. But Southern states were much concerned about the rights of states, most specifically to hold secure their property, in slaves, from those Yankee populists.

And the southern delegates had their Northern supporters: Alexander Hamilton was reported as saying to one of the Northerners who was pushing for a larger role of the people in the new government of the United States: “your people, Sir, is a great beast”. So in order to get on with the task of trying to structure a new government, the founding fathers compromised by permitting the state governments themselves to determine not only WHO would be permitted to vote, but when and how and for what offices. The people were to choose members of the House of Representatives as their only national government task, but only so many people as state governments allowed. That is why the amendments which perfect our Constitution, relating to voting, are phrased in the negative: states may not discriminate in voting against those who were slaves or indentured servants, nor discriminate by reason of sex, nor most recently in l97l by reason of age, having attained the age of l8. Incidentally, I was here in Berea at the College in l97l when Ohio therefore first permitted young people to register and vote. I remember that many of the townsfolk here–oh, and in other places like Oberlin and Athens Ohio, and Amherst and Wellesley Massachusetts and Berkley California people were most upset that students at the colleges and universities in those places would outweigh the taxpaying good citizens and that they would know enough about local politics, nor care enough about property values, to be permitted to vote from their residence hall units at the College. We see echoes of that fear today. It was reported just last week that students at Grinnell College in Iowa were kept from voting, since their identification did not match their college address. We here at Baldwin-Wallace copied Oberlin College in equipping our students with special identifying letters– thankfully, they were not asked.

So you can blame the founding fathers for some of the dilemma that we face with upwards of l30 million voters– there are, by the way, something like 210 million people who could vote by reason of age, anyway in all of the states and DC. Turnout this year is still being counted, and it may not be as enormously high as it was thought it was going to be. And many of the founding fathers would be saying, now, we told you so, because they were not at all confident in the masses of people voting for their own destinies.

I chuckle sometimes when I think of the first time, I think, that women were permitted to vote–it was in Frankfort in Kentucky in l836, a widow with children in school was permitted to vote but only in school board elections, and only while she had children in school, or remained a widow.

But I’ll say this for the writers of the Constitution, who gave us the problem of 50-5l separate units of voting authority–they were not at all conscious of the possibility that political parties would take this states right and run with it: that the parties, as they developed in the early days of the l9th century, as they controlled state legislatures, would turn the authority the states were given to their own advantage–or at least to disadvantage their party opposition.

That’s a generalization that’s not completely true–for example: have you ever thought, why do we vote, and we have since l845, on a Tuesday? Historians record that states wanted an agrarian male society to be able to cast their votes then, at the county seats (there are now more the 3000 counties in the US), and in a horse and buggy era, it would take a day’s journey to get to the county seat (that’s how county seats were chosen), and day’s journey to get home. So they didn’t want to invade the Sabbath day weekends, and that left only Monday, Tuesday or Wednesday as possible voting days–and Wednesday was market day. So Monday was designated as voter traveling day, Tuesday voting and Joe the Farmer (I suppose there were Joe the Plumbers then, too, but only in the cities, and I think many of our present laws are throwbacks to a farming past) Joe the Farmer could get back to the farm on Wednesday. According to the records, by the way, turnout in an all-male electorate was considerably higher than it is now. There’s a movement to change the date, or to have it more flexible. In fact, in 2008, I think the numbers will show that more than l/3 of all Americans had voted before November 4th, by early voting or absentee voting laws, here in Ohio for the first time. That creates phenomenal counting problems, by the way, as witness that the Senate race in Oregon was just called for the Democrat and Oregon is a state that permits almost everybody to vote early, and most did. Alaska is still counting, mostly early and absentee votes, so that the media which say Alaska has re-elected a criminal Senator are not quite accurate.

The hours of voting are farmers hours, so established, I believe, by Republican dominated state legislatures to hold down the vote of city residents, workers and plumbers, who in our own century would vote Democratic, like as not.

Only recently Ohio changed from closing the polls at 6 pm to closing at 7:30. And still, there was a flood of late voting in the cities. New York City won’t close until about l0 pm. And of course you know that the vote is in November because farmer chores are easier once the harvest is in; you probably know as well that Maine used to vote in September, because November is rather snow-bound and ice-bound in November–giving rise to the comment last century: as Maine goes, so goes the nation. I have no doubt that the current movement to encourage and continue early voting, there will be considerable pressure from the media if not from the people to announce the result of all those early votes.

Earlier, a Democratic majority in the US Congress adopted the so-called “motor voter bill”–which encouraged the states to order their licensing authorities–marriage, driving, fishing, hunting, whatever–to see to it that people looking for those licenses were registered to vote at the same time–bringing the state to the people, as it were. Sure enough, states which were dominated by Democratic legislatures complied, like Minnesota and Massachusetts, and, sure enough, as Republican legislatures had worried about, the majority of those new registered voters were Democrats, or Democrat-leaning independents. Most recently, the Congress adopted HAVA, the Help America Vote Act, after the disastrous events of 2000 election in many states, particularly Florida, which would assist states in purchasing voting machines which worked, among other things.

Alaska, still counting votes by the way, is still using the Diebold touch-screen voting machines that Ohio gave up on. But, until the national Constitution is amended, it is

the states that make the rules: who votes, and who not, and how you must vote and when, and how votes are counted or not counted.

In my youth, my first vote was on a long paper ballot with a stub pencil in the Holliston Massachusetts town hall. In those days, each town allowed citizens to decide whether the town would permit taverns, bars, package stores or not.

One early voting scandal was discovered when the Republican town clerk was discovered to have “lost” many paper ballots, found after his death, locked in a closet. Oddly, every one of those several hundred ballots were those where the voters had voted for Democrats, Republicans, even Socialists, but every ballot had checked YES as to whether the town should go wet. The town clerk was a Republican dry. Honest, relating to whom was to be counted as elected, but, he kept Booze out of Holliston. I mention that only to note that EVERY system used to vote, to count, even the most high-tech electronic one, can be worked to the advantage of someone or some party or some issue. Computer codes can be stolen and computers hacked. The article in Rolling Stone by Robert Kennedy, about the Ohio election of 2004 would make you weep, about activities of partisan election officials. Even the great Chief Justice of the Supreme Court who I quoted, William Rehnquist, was accused twice, in l97l when first appointed by Nixon, and in l986 when raised to be Chief by Reagan, of acting, as a partisan Republican official in Arizona, of keeping down the Hispanic and Indian voting in that state. He always denied it.

I want to close and let you discuss and debate election laws and possible changes, particularly changes in Ohio laws, about absentee voting, and registration, and provisional ballots and identification documentation, about vote fraud if it exists or whether its existence is partisan and imaginary, and about other controls on the right to vote.

But I wanted to mention to you an article in the Nation written by Jesse Jackson Jr., presently Democratic Congressman from Chicago, whom we may shortly see in Senator Obama’s seat in the Senate, in January 2 years ago, favoring, as I do, a constitutional amendment to redress the absence of the right to vote in our constitution. Jackson says that our voting system’s foundation is built on the sand of states’ rights and local control. We have 50 states, and 3l4l counties, and 7800 different local election jurisdiction. All of them separate, unequal, and most of them partisan for one side or the other. Jackson wrote that he has submitted a proposed Voting Rights Amendment to the Constitution in each Congress since he’s been a member, and one way or another will submit it again, as Amendment 28 this January. The Amendment will give Congress the authority to craft a unitary voting system for federal, state and local elections–one that guarantees that all votes will be counted in a complete, fair, transparent, honest, free, and efficient manner. Of course, Congress is nonetheless partisan, and I’m not at all certain what kind of measure would come out of Congress if it were ever to be authorized to that–let alone what the public itself might think of a central, Canadian or Mexican or Indian style central, neutral and effective bureaucracy. Some of our national government agencies, like the Federal Emergency Management Agency in the Department of Homeland Security, are not exactly confidence builders. But let’s talk about what we might do in Ohio, first. Thanks for coming, and let’s enjoy each other’s discussions.