A COMMON SENSE PLAN TO RESTORE AMERICA’S DEMOCRACY

Participation and voting in free & fair elections and the peaceful transition of power have been the cornerstones of our country since its founding. On January 6, 2021, these cornerstones were attacked by people who tried to substitute their will for that of a majority of the American people. 

This violent and horrifying act did not represent most Americans on either side of the aisle but it did serve as a reminder that democracy is fragile and is under attack. One party has continued the attack on America’s democracy by challenging the legitimacy of elections, gerrymandering legislative maps, and passing laws that make it harder for Americans to vote and easier for candidates to receive anonymous donations. 

As a student of history, a lawyer, and a passionate believer in American democracy, the current state of democracy has me gravely concerned. Our most fundamental right as Americans is the right to vote for our leaders and make our voices heard through that vote, and we as Americans should demand that this fundamental right, to be a government of the people, be protected above all others. To do this, we need federal legislation that creates a clear baseline of voting protections for citizens of every state in the Union. States that wish to provide more protections and take additional steps to increase the integrity and ease of voting should be free to do so, as long as they meet these basic standards.

This baseline needs to consist of the following:

Ban voter suppression laws. We need to make sure that everybody that wants to vote is able to do so, and further ensure that laws passed in the name of “election integrity” don’t have the effect of preventing people from voting.

Promote voting. We need to encourage participation in our democracy by ensuring there is plenty of time and a variety of methods for voters to securely participate in the electoral process and vote.

End gerrymandering. Gerrymandering is an underhanded way to usurp the will of the people and is wrong, no matter which party is doing it. Constituents need to select their elected officials, not the other way around. We need to end gerrymandering by taking map-drawing out of the hands of politicians, and instead have independent commissions draw district maps. We must also provide courts a standard in law by which to evaluate whether an apportionment plan is gerrymandered for political or partisan purposes, thus, giving the courts a clear path to ensure every vote counts.

Reduce big-money influence.  The Citizens United case opened the floodgates to corporations and other big-money donors to secretly influence campaigns. We need to ensure that organizations that spend big money in elections, including SuperPACS, social welfare groups, 527s, and anyone else, are forced to disclose the names of their donors and the amounts given by those donors. 

Ensure election integrity. We need to embrace voter ID as a method of providing faith in our election system while still ensuring full access to the polls for every voter. We can do this by ensuring that more forms of ID are acceptable for voting, and by making it easy and free to obtain IDs for voting purposes.

BAN VOTER SUPPRESSION LAWS

Voter suppression laws rarely take the form of an outright ban on certain voters or groups of voters. Rather, they usually pretend to protect the “integrity” of elections – the same excuse used to impose poll taxes or literacy tests on Black voters in the Jim Crow south.  

Reinstitute Pre-clearance - As is proposed in the John Lewis Act, any state that has 15 or more voting rights violations in the previous 25 calendar years or has 10 or more voting rights violations, at least one of which is committed by the state itself, would need to get federal approval before instituting any new election rule. A voting rights violation would include any court decision that prevented a new election policy or procedure in a state or any political subdivision thereof.

Prevent Criminalization of Assistance - A number of states have passed laws that would criminalize various forms of assistance to voters. These laws include handing out food and water to voters waiting in line to vote; returning completed absentee ballots for people with disabilities or voters otherwise restricted in their ability to get to the polls; and encouraging voters to request mail-in or absentee ballots in the first place. These laws should be subject to pre-clearance and struck down as the harm outweighs the potential benefit of these laws. States enacting these laws would be committing voting rights violations and would become subject to pre-clearance.

Allow Greater Flexibility in Voting Locations - Voters who arrive at the wrong polling location should be able to cast a vote at that location if the voter’s polling place had changed within two months of the election. This will ensure that states cannot utilize underhanded techniques to limit participation in the voting process.

PROMOTE VOTING

Very closely related to preventing voter suppression is taking steps to promote participation in the electoral process and voting in particular. We need to encourage maximum participation by the population as a whole to ensure that all voices that want to participate can participate. We can do this with the following measures:

Longer Timeline for Early Voting - I propose federal regulations that would require at least two weeks of early voting immediately before election day with at least two weekends in that two week period. This will reduce lines and allow citizens ample opportunity to exercise their right to vote when it fits their schedule. It also provides more flexibility in the event emergencies arise that would otherwise prevent somebody from voting on election day. Finally, for people working hourly jobs, many of which start hours before the polls open, participating in an election can act as a poll tax because they are forced to miss work (and forgo hourly compensation during that time) to vote. While most states have laws protecting workers from being terminated for missing work to vote, it still often results in lost wages which is unfair to those workers.

Make Election Day a National Holiday - The United States is the world’s oldest continuous democracy and that democratic process should be celebrated. A national holiday on federal election days would be a good way to both honor that which makes our country great while also expanding the ability to participate in that democratic process. This would further support people working for organizations that recognize federal holidays as work holidays because they would not be missing work to participate in the electoral process. 

Automatic Voter Registration - States should utilize state department of motor vehicle records as well as federal tax return data to automatically register those citizens eligible to vote.

Increase Access to Mail-in and Absentee Ballots - The US Postal Service has consistently and securely delivered mail for the country for hundreds of years. This mail has included billions of dollars in commerce annually and the ballots of our service men and women serving overseas without any allegations of fraud or impropriety in such ballots. In light of this, there is no reason to believe the mail cannot be trusted to facilitate voting by our citizens. I propose requiring states to expand access to mail-in and absentee ballots for any reason while also instituting security features to ensure ballots are accurate and secure. This will not only increase participation but will also make it harder for states to suppress the vote through tactics such as closing or relocating polling places.

END GERRYMANDERING

Partisan gerrymandering has existed in our country since its founding. However, with recent technology and data processing, the effectiveness of gerrymandering has never been greater. Gerrymandering, and partisan gerrymandering in particular, has the effect of nullifying the voice of a large portion of the electorate by packing groups together so their opinions are over-represented in fewer districts or cracking groups apart so their influence is diluted over many districts.

In either scenario, gerrymandering allows for elected leaders to pick their constituents rather than constituents picking their leaders, limiting the ability to hold leaders accountable at the voting booth. Lack of accountability ultimately results in lower participation and faith in elections in general, and in turn creates a ruling class that is free to enact whatever policies it desires without fear of rebuke from their constituents.

I propose we address gerrymandering in two main ways:

Require States to form Independent Commissions for the Drawing of Legislative Maps - Currently 4 states have independent commissions that draw legislative maps. I propose this be the standard for the rest of the country. Independent commissions made up of members from both parties as well as independents but, most importantly, the commissions would not include current or recently retired public officials and lobbyists. This ensures that a variety of voices are heard and that districts are designed in a way that promotes competitive elections rather than building in a structural advantage for one party or the other. Competitive elections can then be decided based on the merits of ideas rather than what team has the built-in advantage in any particular district or precinct.

Provide a Standard by which Courts can Determine Gerrymandering has gone too far - The US Supreme Court recently held that courts could not determine whether a state’s legislative maps were unfairly gerrymandered based on partisanship. The Court supported this holding on the basis that such a determination constitutes a political question that courts are not equipped to be involved in. The courts did not feel comfortable determining whether an electoral map is overly partisan-gerrymandered. While this seems absurd based on the fact the courts have made determinations regarding gerrymandering in the past, the easiest solution is to provide the courts with an objective standard to use in determining whether electoral maps are gerrymandered. 

To do this, I propose looking at the statewide election results for the previous decade (statewide elections not being subject to gerrymandering) and if the results of legislative races do not fall within 5% to 7% of the statewide race results, then the maps may be subject to judicial review. In Wisconsin’s 2020 state assembly and state senate races, Democratic candidates won about 46% of the total votes cast for the assembly but won only 38% of the seats and in the senate Democratic candidates received 47% of the total state senate votes cast but only won about 36% of the state senate seats. These maps would be subject to judicial review and the courts could throw them out as being illegally partisan gerrymandered.  

REDUCE BIG-MONEY INFLUENCE

Money in politics is  one of the most persistent problems plaguing the American democratic process. It consistently polls as one of the largest reasons why Americans don’t trust elected leaders and stop participating in the process. It is also one of the most difficult issues to tackle since the Citizens United case held that placing limits on certain entities’ ability to advocate for candidates violated the First Amendment rights of those entities.  This has led to a flood of money pouring into races from various groups, most of which do not disclose their funding sources. 

The only way to truly stop this is through a constitutional amendment which has little likelihood of passing in the immediate future. In the meantime, we need to implement measures to lessen the impact of this money and allow people to make informed decisions on the truthfulness of political ads based on who has paid for and produced the ads. This disclosure requirement will not substitute for the constitutional amendment, which we should continue to pursue, but will help bring market forces to bear on these organizations and allow voters to more fully evaluate the intentions behind political advertising.

Pass the DISCLOSE Act - The DISCLOSE Act is intended to enhance the amount of disclosures and the speed with which disclosures of donors to groups spending money in political advocacy. These covered groups would include “social welfare organizations” and superPACs.  All political expenditures and donations of $10,000 or more would need to be publicly disclosed within 24 hours of expenditure or receipt. Any government contractors would need to publicly disclose their campaign spending activities of $10,000 or more in the same manner as other covered groups. Perhaps most importantly, pre-recorded telephone calls would require a disclaimer as to who is paying for the calls. These changes would provide voters with the tools to critically evaluate the content of political ads.  Violations of the DISCLOSE Act should come with hefty fines to ensure that paying fines does not just become a budget item, but actually discourages the unwanted actions.

Require Public Companies to Disclose Political Expenditures - Similar to the DISCLOSE Act, the Securities and Exchange Commission should require all publicly traded companies to disclose all political expenditures by the companies and their highest officers of $5,000. Again, these rules should also come with fines as punishment that are substantial enough to make companies comply with the rules rather than budget for violations of the rules.

ENSURE ELECTION INTEGRITY

While there are no credible allegations of widespread voter fraud from the 2020 election, it is important to ensure everybody has faith that the election results are accurate. 

Voter ID - Voter ID is something that many Americans believe in and want to see implemented to ensure the integrity of elections. I support requiring voter ID for in-person voting so long as the acceptable forms of ID include not just drivers’ licenses, but also utility bills, insurance documents, bank statements and similar documentation. Voter ID should not be a barrier, but truly something that protects the integrity of elections. Also, I propose making such IDs free of charge and requiring states that wish to utilize a voter ID law to make issuing offices open for at least one Saturday a month in the three months leading up to an election so that the IDs can be obtained by voters if they wish to obtain them.

Paper Ballots - Just about everybody uses computers every day, and we trust the information stored in or produced by those computers. However, we also all understand how easy it is to manipulate computer data. In light of this, I propose that every state be required to maintain paper ballots for all votes cast in person and to store those ballots for at least 6 months after the election. Voters who vote on screens should be able to review their choices on a paper print-out immediately, so there’s no question their vote was recorded as they expected. These ballots would be subject to audit by state officials and chain of custody protocols to ensure no tampering or destruction of the ballots. There would be criminal penalties for anybody caught tampering with or destroying paper ballots. 

Cybersecurity Improvements - As voting machines become even more widespread, we need to take the time to ensure that our systems are secure from hacking. Generally speaking, voting machines are not usually connected to the internet, and I propose enshrining that rule in federal law – voting machines should never be connected to the internet, which will protect them from being hacked. Data from voting machines should always have a paper back-up, and can only be transmitted from other machines, not the voting machines themselves. 

Reform the Electoral College and the Electoral Count Act - I believe our President should be the person who gets the most votes, but that there is a role for the Electoral College. First and foremost, we must reform the Electoral Count Act so that it’s even more clear that the Vice President and Congress can’t easily overturn the will of the people through the shenanigans we saw last year and in the infamous PowerPoint. I also support changing the Constitution so that if no candidate wins the Electoral College, that instead of a majority of House delegations, the winner of the national popular vote becomes President. I also support the idea of eliminating any risk of “faithless electors” – the Electoral College vote should reflect the vote of the state, without any shenanigans or unanticipated risk. 

conclusion

This is a living, breathing plan. As the campaign continues, we may make additions and adjustments to it. The truth is, our democracy needs constant maintenance, like a car, a furnace, or a human relationship. It’s not “set it and forget it.” We must take care to ensure it survives for the long term. But if we work together, if we agree on the basics - that our nation relies on the consent of the governed, we will be in much, much better shape.