Trouble Counting Votes? Comparing Voting Mechanisms in the United States and Selected Other Countries

• Publication year: 2022

41 Creighton L. Rev. 3. TROUBLE COUNTING VOTES? COMPARING VOTING MECHANISMS IN THE UNITED STATES AND SELECTED OTHER COUNTRIES

Creighton Law Review

Vol. 41

FRANK EMMERT(fn*) CHRISTOPHER PAGE(fn**) ANTONY PAGE(fn***)

"The health of democracies, of whatever type and range, depends on a wretched technical detail: electoral procedure. All the rest is secondary."(fn1)

(Jose Ortega y Gasset, Spanish Philosopher)

INTRODUCTION

The primary functions of elections are to produce winners, decide who forms governments, and make the determination of winners and governments legitimate.(fn2) Legitimacy requires that governments conduct elections in a way that is objectively fair and widely perceived as fair. Therefore, a central motivation for non-partisan and uniform system of election administration is "that every citizen, every voter, be treated equally and have an equal opportunity to participate."(fn3)

The United States frequently appears to fall short of these goals.(fn4) The highest profile example of this failure is the Florida vote in the 2000 presidential election.(fn5) Michigan Representative John Conyers stated, "[o]ur broken electoral system was an accomplice to a magic trick that would make David Copperfield proud: millions of Americans went to vote on November 7, 2000, only to have their voice in our democracy disappear."(fn6)

Problems in Florida spurred the passage of the Help America Vote Act ("HAVA") in 2002.(fn7) HAVA's purpose was "to establish a program to provide funds to States to replace punch card voting systems, to establish the Election Assistance Commission to assist in the administration of Federal elections and to otherwise provide assistance with the administration of certain Federal election laws and programs, [as well as] to establish minimum election administration standards for States and units of local government with responsibility for the administration of Federal elections . . . ."(fn8)

Notwithstanding the improvements HAVA promised, there were many voting controversies in the 2004 election.(fn9) From disenfranchisement in Florida, to eight-hour poll lineups in Ohio, problems marred the elections.(fn10) As Richard L. Hasen observed, "[i]n the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize."(fn11) The 2006 midterm elections also had "plenty of problems" including lost votes, malfunctioning machines and absent poll workers.(fn12)

Obviously, however, the United States is not the only developed Western democracy. Most of these other countries do not seem to experience the kind of problems seen in recent years with U.S. elections. This raises the question whether these countries have not only different, but perhaps better approaches to critical election issues.(fn13) Unfortunately, the "comparative study of the conduct of elections . . . has been largely neglected."(fn14)

This Article provides a brief overview of some of the major election problems experienced in the United States and analyzes varying approaches taken by other countries facing similar challenges (notably Canada, Germany, and several other European Union ("EU") Member States). Additionally this article will discuss international best practice standards.(fn15) Overall, the United States could benefit from the consideration and adoption of some of these approaches.

Clearly, countries can improve their electoral systems. Canada's electoral system provides a good case study. In the nineteenth century, Canada's electoral system violated basic principles of fairness. An authoritative study observed that "an election during the first decades after 1867 was a rough game whose rules allowed ample scope for cheating."(fn16) Yet since that time, Canada has slowly improved its electoral system to the point where it can make very strong claims to satisfy the primary election functions.(fn17) Important developments included the introduction of the secret ballot in 1874, which reduced the corruption associated with oral voting, and the establishment of the Chief Electoral Officer position in 1920.(fn18)

Of course, we recognize that there are important differences between the United States and Canada. The legal framework governing elections in Canada consists of the written constitution, unwritten conventions (non-legal rules unenforceable in courts), statutes, and common law.(fn19) The right to vote in Canada is more firmly established than in the United States. Indeed, the United States Supreme Court's majority opinion in Bush v. Gore affirmed that Article II of the U.S. Constitution does not ensure a right to vote.(fn20) In contrast, Canada's Charter of Rights and Freedoms ("Charter") guarantees that "[e]very citizen has the right to vote in an election of members of the House of Commons or of a [provincial] legislative assembly . . . ."(fn21) This right, like all the rights guaranteed in the Charter, is subject only to "rea-sonable limits prescribed by law as can be demonstrably justified in a free and democratic society," as indicated in section 1 of the Charter.(fn22) Consequently, the right to vote among adult citizens is now virtually universal.(fn23)

ADMINISTRATION OF ELECTIONS

The United States, in effect, places authority in the hands of roughly "13,000 sovereign counties and municipalities," each responsible for election administration.(fn24) The separate counties and municipalities make separate decisions about ballot design, the choice of voting technology, and the methods for counting votes, interpreting disputed ballots, and then reporting the results to state offices.(fn25) Thus demonstrating why "[t]here is probably no other phase of public administration in the United States which is so badly managed as the conduct of elections."(fn26) In Canada, uniformity is assured because Elections Canada, an agency the Chief Electoral Officer oversees, centrally manages these functions.

Moreover, unlike the secretaries of state who oversee U.S. elections, the Chief Electoral Officer and Elections Canada staff are public servants independent from partisan politicians and are given the task of ensuring that elections are administered fairly.(fn27) Elections Canada's functions include implementing and enforcing the relevant laws, monitoring election spending, maintaining voters lists, training returning officers who oversee elections in specific constituencies, and assisting commissioners responsible for drawing electoral boundaries. In order to maintain a non-partisan agency, the Chief Electoral Officer and the chief's assistant are not permitted to vote in federal elections.(fn28) The appointments have, in practice, been approved by all parties in Parliament. The procedures for dismissing the Chief Electoral Officer are as difficult as those for a judge; thus assuring their independence.(fn29)

However, the fact that Canada has a uniform nationwide system for the mechanics of elections goes only part way to explaining the problems in the United States: it facilitates fairer elections but is not sufficient. In Germany, another federal state, we find the co-existence of a multitude of regulatory and administrative regimes. Each of the sixteen states that comprise the Federal Republic of Germany maintains its own election laws for state-wide, regional, and municipal elections. Differences in the state election laws can be substantial, including whether or not elections are entirely paper-based, entirely by voting machines, or a mix of both methods. However, the national elections - federal elections and the elections to the European Parliament which are also held nationwide - are governed by uniform laws and procedures.(fn30) Moreover, similar to Canada, the nationwide elec-tions to the Federal Parliament (Bundestag) and to the European Parliament are overseen and organized by one independent officer (Bundeswahlleiter) and the independent officer's staff of non-partisan public servants. Similar administrative structures exist within the several states with the offices of the Landeswahlleiter.(fn31)

THE RIGHT TO VOTE

Democracy was a concern to few in pre-confederation Canada.(fn32) For many decades after confederation, Canada saw many limits on the right to vote in various ways that would be unacceptable, and indeed unimaginable, from a contemporary perspective. When Canada became independent in 1867, the franchise was restricted to men at least twenty-one years of age who owned property. In addition to qualifications based on gender and property ownership, there have been various restrictions on the voting rights of aboriginals and Canadians of Asian origin. Voting rights were also somewhat uneven, as eligibility rules varied from province to province and property qualifications varied within provinces from 1867 to 1885 and again after 1898. Canada's 1885 reforms emphasized property qualifications and allowed some owners to vote more than once in different constituencies.(fn33) Inconsistencies between provinces remained along with dubious restrictions.

Full federal control of voting rights in federal elections was not established until the Dominion Elections Act of 1920.(fn34) Likewise, in Germany, the constitution did not guarantee the right to vote in federal elections until 1949, and currently the Federal Electoral Law specifies under...