Fabulists and election reform

The challenge of fairly considering ill-motivated proposals.

Donald Trump’s stolen-election fables present a challenge to those still grounded in reality when discussing election reform proposals.

The reforms propounded by Republicans, nationally and here in Arizona, are anchored in one of two rationales. Either necessary to prevent such non-existent electoral larcenies. Or, irony of ironies, to restore voter confidence in the integrity of elections, a confidence eroded by the fabulists themselves.

For those still grounded in reality, the instinct is to reject all such reforms given their tainted origins and motivations. But, in a way, that’s going down the rabbit hole with the fabulists.

The fables still need to be debunked. A note of appreciation to Stephen Richer, Garrett Archer, and others who continue the tiresome task of offering point-by-point refutations. That remains important work.

However, with respect to the reform proposals themselves, a healthier approach is to consider them principally on their policy merits and demerits, rather than their tainted origins. In nearly all cases, the conclusion will be the same: opposition. But that approach nudges our political discourse in a slightly more productive direction.

Which gets us to the immodestly titled SAVE America Act, which is in the process of tying the U.S. Senate into knots.

It is worth remembering that just a few years ago, when Democrats controlled the presidency and both chambers of Congress, they attempted to impose national election standards on the states. Among them was a requirement that all states allow new voters to register through Election Day and automatically register those interacting with government in specified ways, such as obtaining a driver’s license.

At the time, Republicans opposed the legislation, in substantial part arguing that the Constitution invests those decisions in the states. Hypocrisy being the native language of today’s political class, Republicans are now trying to foist their own set of national standards on the states. The two most substantive requirements would be to offer proof of citizenship when registering and proof of identity when voting.

Now, I believe that the incidences of non-citizen or fraudulent voting are incidental and inconsequential. However, politics is an endeavor that attracts cheats of every stripe. Additional measures to fortify election integrity are always worth considering. While there are substantial problems with the specifics of these two requirements in the GOP bill, conceptually requiring proof of citizenship and identity to register and vote aren’t per se objectionable. Certainly they don’t warrant the claims of disenfranchisement uncareful critics are hurling. Arizona has had such requirements for decades and the electorate has continued to grow apace.

Irrespective of whether the security gains of these provisions outweigh their inconvenience, the skepticism of Republicans when in the minority about the constitutionality of such requirements was on the mark. The national proof of citizenship requirement to register would seem to be clearly contrary to the intent of the framers, and the proof of identity to vote arguably so.

Article I, Section 4 of the Constitution gives state legislatures the authority to determine the “times, places and manner” of electing senators and House members, but gives Congress authority to supersede what the states decide. However, Article I, Section 2 says that those eligible to vote for members of the House “shall have the qualifications requisite for electors of the most numerous branch of the state legislature”. At the time, the House was the only branch of the federal government directly elected. The 17th Amendment, which provided for the direct election of U.S. senators, included the same language.

Reading those two provisions together, who is eligible to vote isn’t part of the “times, places and manner” subject to being superseded by Congress. It is reserved to the states.

That’s the way it was treated in the Federalist Papers. In Federalist No. 52, James Madison wrote: “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government….To have left it open for the occasional regulation of the Congress would have been improper ….It must be satisfactory to every State, because it is comfortable to the standard already established, or which may be established, by the State itself.”

Alexander Hamilton devoted three entries to explaining and defending the “times, places and manner” clause. In Federalist No. 60, he expressly excluded deciding who is eligible to vote as within its, and Congress’s, ambit: “The qualifications of the persons who may choose or be chosen …are defined and fixed in the Constitution, and are unalterable by the legislature.”

Now, there are several subsequent constitutional amendments dealing with voting rights. But they would have to be twisted and tortured to cover the federal requirements for voting eligibility contemplated by congressional Democrats or Republicans. These are decisions intended to be made by the states, with recognition that the requirements would differ from state to state.

There’s an interesting local side note to this analysis. Arizona requires proof of citizenship to register to vote in state elections. However, a messy court decision requires that the state allow some voters who have not provided that proof to vote in federal elections. So, in Arizona, some voters ineligible to vote for “the most numerous branch of the state legislature” can still vote for members of the national House of Representatives from Arizona, in direct contravention of Article I, Section 2. And for U.S. Senate, in direct contravention of the 17th Amendment.

In Arizona, MAGA Republicans are contemplating referring numerous election reform measures to the 2026 ballot. There are two reforms worth considering.

To speed up election results, some advocate not allowing early ballots to be dropped off after the Friday before Election Day. Ballots dropped off after that delay results, since they have to go through the signature verification process before being counted. In a general election, there are hundreds of thousands of them.

It would be reasonable to put the discrete question before voters: Do you prefer a Friday cut off so virtually all results can be known the day after the election? Or do you prefer to offer the convenience of dropping off a completed early ballot until the close of the polls on Election Day and, in close races, not knowing the outcome for a week or two?

Unfortunately, but not unexpectedly, the measures working their way through the legislature don’t offer this discrete choice. They are junked up with other provisions.

The second reform worth considering deals with the signature verification process. The fabulist claims about this process have been thoroughly debunked, in the courts and elsewhere. However, there is an element of subjectivity involved in relying exclusively on a signature to determine validity. Using a number instead, such as a voter ID number or the last four digits of a Social Security number, would speed up the process and eliminate the subjective element. While there are reforms to the early ballot verification process being deliberated, to my knowledge this isn’t one of them.

Some of the fabulists, including some in the legislature, have a Luddite vision for our elections: Eliminate mail ballots, vote centers, and tabulation machines, and return to hand-counted results from in-person Election Day precinct voting. A part of me would like to see some county, say Cochise or Mohave, be given permission to try this for an election cycle. That would be last we would ever hear of this particular nonsense.

These are dispiriting times. The fabulists have polluted our political discourse. Battling them while elevating the discourse is a challenge. But it is the path to less dispiriting times.

Reach Robb at robtrobb@gmail.com.