Problematic Delaware election reforms (Whipple)

One of the high priority projects for this year’s session of the General Assembly is to enact several proposals that would make it easier and more convenient to vote. To this end, bills have been introduced for early voting (HB 38), same day registration (HB 39), and April primaries (same day as federal presidential primaries) for state races (HB 41).

Proponents envision that such “common sense” reforms would result in higher voter turnout, thereby involving more Delawareans “in discussions about their own futures.” And this should not be a partisan issue, it is claimed, as both Democrats and Republicans have an interest in getting more Delawareans to the polls. Let’s make it easier for Delawareans to vote, Gov. John Carney, News Journal,
1/8/19.

Democrats have tended to favor proposals along these lines in recent years, while Republicans have worked against them. And that’s understandable from a partisan standpoint, as the additional voters would probably tend (on average) to favor Democratic candidates.

If early voting, same day registration, and April primaries stand a better chance this year, it’s not because Republicans are disposed to reconsider their position on these proposals. The key point is that Democrats picked up House and Senate seats in the 2018 mid-terms, which bolstered their confidence while deflating the hopes of the opposition.

Fairly or not, the Republican arguments being discussed are beginning to sound a bit tired. Officials propose election reforms, Scott Goss, News Journal,
1/17/19.

“In the past,” Republicans have argued that early voting would require a DE constitutional amendment – proponents deny this – and “also have raised concerns that same-day registration could lead to longer lines at the polls.”

Some ideas follow that might help to “beef up” the Republican position by supporting the virtues of the current Delaware election laws.

HB 38 - Seems to me that a constitutional amendment probably would be needed for early voting in that the timing of elections (to be “held biennially on the Tuesday next after the first Monday in the month of November,” and to be “by ballot”) is specified by Article V, Section 1 of the Delaware Constitution. The General Assembly is only authorized to “prescribe the means, methods and instruments of voting.”

Note that HB 38 requires a 2/3 margin in both the House and Senate rather than a simple majority (such as applies for most legislation), possibly reflecting an effort to head off complaints about an unconstitutional power grab.

But insistence on a constitutional amendment isn’t a winning political argument, it’s just a delaying tactic, so Republicans might do well to come up with some affirmative reasons for not opening the door to early voting (beyond the traditional “absentee ballot” provisions, which are authorized by Article V, Section 4A of the Constitution).

One argument Republicans might consider is that high voter turnout isn’t necessarily the unalloyed benefit that it has been made out to be. Some Delawareans pay attention to the candidates and the issues, and it makes sense to hope they will vote – as they will probably be inclined to do. But there isn’t a great deal of benefit in having people vote who haven’t done their homework. If they turn out, they will be guided by tribal loyalties; they can’t be expected to vote based on an informed understanding of the public interest.

Another problem with early voting is that it reduces respect for the electoral process, demoting voting from (1) a civic duty performed by those who are interested, on a specified date - after all the political debates - at a designated polling place, to (2) an errand that can be performed at one’s leisure while the election campaigns are still going on. One is reminded of the ads for Carvana, a website for consumer to buy cars on line with a few clicks and wait for delivery at their homes while binge watching their favorite TV shows.

Worst of all, early voting and its voting by mail cousin delay determinations of election outcomes and increase the risk of electoral fraud. Nationally, less than 60% of all the votes in 2016 (the most recent year for which data are available) were cast at the polls on election day, with the remainder being about equally split between early voting and mail-in ballots. Maybe these options result in higher voter turnout, but it’s doubtful that they contribute to better informed voting.

There were numerous controversies after the 2018 mid-terms in states around the country, e.g., Arizona, California, Florida, Georgia, and North Carolina, featuring late counting of votes (which mysteriously kept showing up after Election Day) and charges of “ballot harvesting.”

It took weeks to determine the outcome of some important elections, and a congressional election in North Carolina (which had apparently ended in a narrow GOP victory) was voided after several months of review. (Both the primaries and general election for the NC district will be done over, and the outcome won’t be determined until September 2019.) Such disputes undermine confidence in our democratic system, and from all indications the problems are getting worse as the prevalence of early voting and voting by mail rises.

True, HB 38 would permit early voting for only 10 days and wouldn’t authorize voting by mail, but the tendency in other jurisdictions has been to progressively liberalize requirements once the paradigm of voting at the polls on election day has been broken. Delaware should think twice before starting down this road, which might marginally increase voter turnout but wouldn’t serve to improve citizen engagement with the political process.

HB 39 – It makes sense that election day registration would lengthen voting lines at the polls, as Republicans have reportedly argued, and there would invariably be problems in verifying the identities of would-be voters who showed up at the polls, e.g., making sure that Mr. X was not only entitled to vote at this location but had not previously voted in some another location.

On the other hand, very little would be gained by catering to the whims of people who can’t bother to get registered to vote until the last possible minute. It’s not that hard to comply with the Delaware registration requirements, and anyone who was seriously interested in voting would find the time to do so. Bottom line, the election day registration idea simply doesn’t make sense.

HB 41 - Consolidating the federal presidential and state primaries would mean one less trip to the polls every four years for those who faithfully vote in primaries. Critics have pointed out, however, that scheduling state primaries in April would represent a distraction from the legislative business of the General Assembly.

Also, early September primaries leave ample time for general election campaigning. Moving up the primary date for state would provide more time for political posturing and annoying political ads, but probably wouldn’t result in more meaningful discussion of the issues.



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