Internet Voting With Initiatives and Referendums: Stumbling Towards Direct Democracy
| Publication year | 2004 |
| Citation | Vol. 29 No. 02 |
"I believe in the Initiative and Referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative."
-President Theodore Roosevelt(fn1)
"The ignorance of one voter in a democracy impairs the security of all."
-President John F. Kennedy(fn2)
I. Introduction
Imagine that it is Tuesday, November 4, 2008, and you realize that you have not yet voted for the candidate that you want to be President of the United States. The polls close at 7 p.m., and it is already 6:45 p.m. Instead of rushing off to the nearest polling place, you simply go to your computer, log in, fill out a ballot, and email your ballot to your designated polling website. The whole process takes fewer than ten minutes, and you have done your civic duty.
Since the controversial presidential election of 2000, scholars have offered a myriad of opinions and have completed numerous studies in order to suggest more transparent and effective voting processes. In 2002 Congress enacted the Help America Vote Act(fn3) (HAVA) to update our federal election process and to provide ways in which to enact that process.(fn4) As most people who paid attention to the 2000 election know, the use of punch cards was one source of Florida's election fiasco.(fn5) Election workers could not determine the voters' intent due to "hanging chads,"(fn6) "pregnant chads,"(fn7) "dimpled chads,"(fn8) and so on.(fn9) As a result of the complications, a number of groups have suggested voting via the Internet as a way to solve these problems.(fn10)
The Internet is not completely foreign to the political arena. Fund-raising by public donations through the Internet was used heavily in the 2004 presidential nominations, as well as in the general presidential election.(fn11) For example, Howard Dean, while vying for the presidential nomination of the Democratic Party, received donations by more than 300,000 people through his website.(fn12)
Leading proponents of Internet voting point to five possible benefits of electronic voting: (1) increasing voter participation; (2) lowering the cost of participation for certain special populations, for example, disabled persons, minority groups, and frequent travelers; (3) attracting the hardest to reach voters into the political process; (4) increasing the quality of votes cast; and (5) allowing voters to revise their votes before the Election Day deadline.(fn13) Further, an Internet polling place could provide voters with interactive access to election officials during working hours. Thus, voters could be connected at the click of a button to an election official who could provide needed advice or direction.
However, opponents of Internet voting voice the following serious concerns: (1) lack of online security;(fn14) (2) favoring some voters at the expense of others-for example, people with wealth or better quality of access to information; and (3) encouraging the further disintegration of civic life in the United States.(fn15) Put more simply, Internet voting is the antithesis of our desirable community-based electoral process(fn16) and goes against our Founding Fathers' vision in creating our voting system.(fn17)
Part II of this Comment will examine a brief history of voting in the United States and survey the issues raised by direct democracy. Part III explores the initiative and referendum process. Part IV provides background on Internet voting and its status today. Part V analyzes the implications of Internet voting. Finally, in Part VI, this Comment provides proactive steps that our lawmakers should follow to avoid likely complications from Internet voting.
II. Direct Democracy: An Unstable Legislative Process
The right to vote is fundamental to citizens of the United States.(fn18) The Constitution was amended to enable all citizens of the United States to vote regardless of race,(fn19) sex,(fn20) or income.(fn21) Congress has also passed legislation to protect each citizen's fundamental right to vote.(fn22)
During each voting cycle, commentators raise countless issues regarding how elections are run in the United States. Among the 117 million votes cast in the 2004 presidential election,(fn23) there were complaints about voter registration fraud,(fn24) voting irregularities,(fn25) inconsistent vote counting procedures,(fn26) and lost votes.(fn27) Lack of voter turnout has also been considered problematic.(fn28) Internet voting has been one proposed solution to minimize these problems(fn29) by proponents who assert that Internet voting will provide an avenue for certain classes of voters who would not ordinarily participate.(fn30) However, if Internet voting is not carefully implemented with all consequences in mind, our representative government could eventually slide down the slippery slope to a direct democracy,(fn31) contradicting the vision of our Founding Fathers.
The U.S. Constitution established America as a republic rather than a democracy.(fn32) In a republican form of government, the citizens delegate the task of governing to elected representatives.(fn33) Direct democracy, on the other hand, is a form of government in which citizens govern themselves, a system of government which the Founders regarded as unstable.(fn34) The Founders believed that representative, republican democracy provided an appropriate balance between popular control and deliberative decision-making.(fn35)
A direct democracy bypasses the elected representatives and allows the general public to determine laws.(fn36) The best examples of direct democracy in action are the initiative and the referendum processes. Direct or "deliberative" democracies may take place in two ways when Internet voting is implemented.(fn37) An iterative deliberate democracy involves infrequent voter participation.(fn38) In contrast, a direct voting democracy occurs when voters participate frequently and directly, particularly on policy issues.(fn39) Direct voting democracy is inherently problematic because of the level of voter involvement, and this problem will likely intensify with the use of Internet voting.(fn40)
Direct democracy, combined with remote Internet voting,(fn41) will be devastating to the United States' form of government. Direct democracy, for the first time in the history of the world, has become feasible with the advent of Internet voting.(fn42) Iterative deliberate democracy is currently taking place in one form or another all over this country.(fn43) The pulse of the people is taken by polls, especially during election years.(fn44) Dick Morris, current columnist and author, as well as President Clinton's chief strategist and advisor in the 1996 campaign,(fn45) was a co-creator of Vote.com, which allows Internet users to sign up on the website, and then "vote" online about certain issues and topics.(fn46) The results of each vote are sent to various decision-makers, including members of Congress, and even the President.(fn47) During election years, polling of potential voters takes place weekly. Similarly, almost every major news outlet has weekly online polls that elected representatives certainly take into consideration. Thus, with the ease and frequency of email, iterative direct democracy is a viable option for the public to inform their representatives of their preferences.
Internet voting may be the opportunity for proponents of direct democracy to fulfill their wish at the expense of our political institutions.
III. The Initiative and Referendum Process: A Tool for Special Interest Groups
Internet voting in itself is not a flawed concept. It could increase voter participation(fn48) and lower the total cost of elections. However, when the Internet voting process is combined with the initiative and referendum, this new voting system could undermine our representative republican democracy. In order to understand how this could take place, it is necessary to understand how the initiative and referendum processes work.
While initiatives and referendums both fall under the "ballot measure" category, they are implemented in different ways depending on the jurisdiction.(fn49) An initiative is a process whereby voters propose legislation, which is then voted on by either the legislature or the full electorate.(fn50) Citizen-proposed legislation has been around, in various forms, -.since the 1600s;(fn51) however, the initiative process officially began in the mid- to late-1880s by the Socialist Labor Party.(fn52) Experts and historians in the field disagree whether the early proponents were "widely seen as the province of political cranks and irresponsible radicals,"(fn53) or whether the process was dominated by citizens independent of special interest groups.(fn54) From 1898 to 1918, twenty-four states, mostly in the Western region, adopted the initiative or popular referendum.(fn55)
There are two distinct types of initiative, both of which commence with the collection of signatures on a petition.(fn56) In a direct initiative amendment, a constitutional amendment is proposed by the people and placed directly on the ballot for voter approval or rejection.(fn57) Currently...
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