"Transparent and Well-regulated Elections": Part 1 on Language in a Free and Fair Elections Amendment

When fraud is minimized, electoral legitimacy increases. Fraud can always be a factor in very close elections, but the more transparent the process of registration, certification, and counting of votes, the harder it is for fraud to occur. We have a right to a low-fraud election, and we can build processes to ensure we get one.

A debate rages on the issue of voter fraud not because anyone supports voter fraud, but because of the implications of the issue. American history is replete with examples of how both political parties have, at one time or another, used claims of voter fraud to make it harder for some citizens to vote. It is a tactic usually used against identifiable minorities or groups aligned against the claimant’s interests, to vote. The argument attempts to minimize votes cast by that group by creating real or perceived red tape for the would-be voter, the result of which is to suppress turnout in that targeted group. At least since the Civil War, Democrats and Republicans have both participated in this strategy.

A well-regulated election will not only minimize voter fraud, but will also minimize fraudulent claims of voter fraud. Fuel for the debate arises from our lack of ability to prove or disprove voter fraud. Most credible studies on this issue demonstrate that voter fraud is rare and that most allegations of voter fraud turn out to be something other than fraud, such as mistakes with complex registration rules. [2] However, these studies are always retrospective and usually come years after the headlines of voter fraud have already had their effect on public opinion. So, even if such studies are correct, they are ineffective in settling the debate.

As with the more general issue of perceived election fraud, the final arbiter on voter fraud is the public consensus. Our electoral systems must provide the public with the information they need to reach an informed consensus, for it is the lack of appropriate information that enables claims of voter fraud to shape public opinion even when they do not happen. The cacophony of such claims also drowns out the serious issues arising from situations in which voter fraud actually occurs.

 When we know our votes are counted accurately, and we can go back and recount them accurately if necessary, the people feel confident that the election results are sound. Electronic voting machines deny us this confidence because there is no way to recount: the process is locked up in a tight little box no one can see, and accuracy cannot be verified. The observability of the process—another provision of this amendment—is essential to ensuring accuracy, as well as providing confidence in the people.

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High participation, minimization of fraud, and accuracy of the vote count are three essential ingredients to a well-regulated election. These measures are indicators of how “Transparent and well regulated” our elections are. Meeting these criteria will help to create the public consensus necessary to provide legitimacy to elections. Fail to meet them, and we can expect a lack of faith by the people in their electoral process.

Note: This article is one in a series exploring the language of the Free and Fair Elections Amendment. Further info at: www.freeandfairelections.org.

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