Democracy in Danger: What States Can Do to Safeguard America's Election System

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by Hans A. von Spakovsky with The Heritage Foundation

A long-time federal prosecutor once told me that as long as elections put people into positions where they can make decisions about how much the government will spend, who will receive the money, and how the government will exercise its power, elections will be important enough to tempt some individuals to steal them. As the Supreme Court recognized when it upheld the constitutionality of Indiana's voter identification law in 2008, flagrant examples of voter fraud "have been documented throughout this Nation's history by respected historians and journalists." Those examples "demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election."[1]

The United States has one of the most decentralized systems of election administration for its national elections of any democracy. Unlike many other countries, we do not have a central government agency administering our federal elections. This is in accord with the Constitution, which reserves to the states the exclusive authority for most election decisions, including voter qualifications, except that Congress may alter "[t]he Times, Places and Manner of holding Elections" for Congress.[2] Even the relatively new U.S. Election Assistance Commission, created in 2002, does not have the authority to "issue any rule, promulgate any regulation, or take any other action which imposes any requirement on any State or unit of local government."[3] It can only recommend "best practices" in election administration to the states, an interesting charge given that most of the employees of this federal agency (and some of the commissioners) have absolutely no experience in actually administering elections. The states are still the chief administrators of our elections, although Congress has passed various federal laws in recent decades regulating election procedures, including the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA).

In order to have an election process in which we can be confident that everyone who is eligible gets to vote, the vote is counted, and the vote is not diluted by fraudulent votes, we have to have security and integrity throughout the entire process, from voter registration to the casting of the actual votes and the counting of ballots. Unfortunately, because of various problems with election laws and procedures in many states, we cannot currently ensure that such security is in place. This is particularly true because of the general lack of verification by some states of the authenticity of both basic voter eligibility at registration, including citizenship, and the identity of voters who show up at the polls to vote.

State legislators can take several steps to safeguard America's election system and to improve the integrity of the election process. Based on my experience as a local county election official administering voting registration and elections in the largest county in Georgia; as a career lawyer in the Civil Rights Division of the U.S. Department of Justice enforcing federal voting rights laws like the NVRA and HAVA; and as a member of the Board of Advisors of the U.S. Election Assistance Commission, I would recommend the following legislation or regulations. While there are some steps that only Congress and the federal government can take, these are improvements to voter registration and voting procedures that states can implement. ....

.... These are all relatively simple steps that can be taken by state legislatures, but they are very important to protecting our democracy from errors and intentional fraud that can affect the integrity and security of our election process.

Hans A. von Spakovsky is a Legal Scholar in the Center for Legal and Judicial Studies at The Heritage Foundation. He is a former Commissioner on the Federal Election Commission and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice.[24]

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