On Friday, the Committee on House Administration Subcommittee on Elections released a report entitled “Voting in America: Ensuring Free and Fair Access to the Ballot.” But these 124 pages fail to report how a federal takeover of elections would ensure free and fair access for all. The Committee only seeks to further politicize election administration.
The Committee report contains a laundry list of all sorts of state and local election administration management matters—how voter rolls lists are maintained, how individuals are verified as eligible voters, how voters cast their ballots, how voting districts are organized, and how many polling places are used. In all these areas, the Committee concludes that there is a “disproportionate and discriminatory burden and impact” on minorities.
The conclusions are all based on “disparate impact” theory, an ivory tower theory blaming all statistical disparities on racial animus. This is, of course, oversimplistic and often fails to identify actual discrimination. Michael Selmi, a scholar at George Washington University Law School explains, disparate impact theory makes critical mistakes and lacks public support:
[D]isparate impact theory was based on two critical mistakes—that the theory would be easier to prove and that it was possible to redefine discrimination purely through legal doctrine. At bottom, that is what the theory sought to do—redefine our concept of discrimination to focus on unequal results. As we know from our lengthy battle over affirmative action, there is no widespread public support for defining equality or discrimination in terms of results or achievements.
Larry Alexander, a scholar at University of San Diego explains, “I can find no justification for disparate impact theory.” He notes that, “[E]veryone belongs to many demographic groups, some of which are disproportionately adversely impacted while others are disproportionately positively impacted.”
In a press release, Subcommittee on Elections Chairman G. K. Butterfield stated that through this report, he seeks to “combat the wave” of “30 discriminatory voter laws in 18 states.” Butterfield claims that the report provides an “evidentiary record” to justify increasing the power of the federal government to use the Voting Rights Act to micromanage state election procedures.
Statistical disparities do not always indicate discrimination. Nor do they necessarily suggest an obvious solution. If members of the population have difficulty obtaining records on residency and citizenship, why shouldn’t the focus be on reforming state agencies to better facilitate these services and provide free IDs (which are used for far more than voting in daily life), instead of stopping new laws to ensure eligible voters are the ones casting ballots, claiming they are discriminated against? The department of motor vehicles is working on sharing information with election boards in Florida, and Kentucky is working on getting free IDs out to voters. A one size fits all solution from D.C. will fail to address state and local needs and burden election officials who are already improving election processes.
Earlier this year, the Pennsylvania House State Government Committee held 10 hearings on voting in which they solicited input from election experts, and voters via surveys and polling, culminating in the publication of a report of its findings. A representative from the non-partisan National Conference of State Legislatures complimented the committee, saying “[I]’ve watched what you all have been doing, and I don’t remember in the last 10 years another state doing this level of public work before introducing election legislation.” The Pennsylvania committee was thorough and precise. And when it provided a series of specific recommendations to amend state election laws, concluded:
As elected officials, we must complete our due diligence to provide citizens with the best possible election process that is transparent, has integrity and is accessible.
The U.S. House’s public work falls short of the level of due diligence, civility, and depth active in the states. Instead of combing through 124 pages of a report written by D.C. activists out of touch with what goes on at elections at the local level, take a page from the Pennsylvania state report. State legislatures are closer to the people and better reflect the needs of the voters in America.