Results have surfaced in many minority precincts around the country where, for example, 8% of the ballots fail to record a vote for President, compared to 2% of ballots in majority white precincts. Attempts have been made to attribute this discrepancy to “indecision” or “lack of interest” of the minority voters, despite those voters’ claims to the contrary. Research confirms the voter’s claims, pointing instead to possibly flawed machines or outright election fraud.
What S. 1487 Would Do. The bill would give the EAC sole authority to establish a national maximum undervote percentage, called a “benchmark.” The purpose of undervote studies has always been to detect the loss of valid votes and attempt to identify and eliminate the causes. Such a benchmark could be valuable as a red flag to States to investigate potential tabulation problems in areas that exceeded the benchmark.
However, under S. 1487, the benchmark would not be used to spur investigation into potential tabulation problems. Instead, the bill would require the impossible. The benchmark would establish an undervote rate “that States may not exceed.” How does Congress expect States to control the undervote rate?
This and other questions the mandate raises suggest potential confusion and even danger as the details of enforcement would be worked out in the courts. What is the consequence if a State exceeded the benchmark? Would a State be required to adjust the vote count (after the canvass) to meet the benchmark? Would the election be void, would the State have to hold a new election, or would the State be penalized in some other way? The bill answers none of these questions.
But this bill is shameful as well as dangerous.
The bill states: “Congress finds that there are certain distinct communities in certain geographic areas that have historically high rates of intentional undervoting in elections for Federal office, relative to the rest of the Nation.”
This “finding” is a deceit. Remember, there is no way to determine the rate of intentional undervoting in a secret ballot system.
But the bill goes on to declare that the EAC may determine which “distinct communities” have a historically high intentional undervote rate and may either set a different benchmark for “local jurisdictions in which that distinct community has a substantial presence” or exempt those jurisdictions from compliance with the national benchmark. So, the exemption wouldn’t just apply to the jurisdictions that had the high undervote rate; it could apply to all jurisdictions across the country that have a “substantial presence” of that “distinct community.”
So, for example, the EAC might use the 2002 election fiasco in Florida’s Miami-Dade County to conclude that African American communities intentionally undervote at rates as high as 28% in federal contests. Then they could declare that all precincts across thecountry with a “substantial presence” of African Americans will be allowed a higher Presidential undervote rate than other precincts.
Or, the EAC could use the scandalous 2004 election in New Mexico to conclude that precincts with predominantly Native American voters have three to four times as many lost votes for President as the national average. Then they could provide legal cover for the expanded disenfranchisement of Native American voters at that same rate, in whatever jurisdictions across the country have a “substantial presence” of Native Americans.
After the Civil War, one of the provisions aimed at excluding African Americans from voting allowed a person to vote only if his grandfather had the right to vote. S. 1487 follows that tradition by “grandfathering in” disenfranchisement in a new way.
Proposing to legitimize such a scheme in federal law is a disgrace.
Potential Consequences for Other “Distinct Communities.” Definitions are missing for two important terms in this provision — “distinct communities” and “substantial presence.” Instead, their interpretations are left to the discretion of the EAC, giving that agency the authority to “find” high intentional undervoting patterns nearly anywhere and extend that level of disenfranchisement to nearly anywhere.
Let's see how the recent Sarasota example could play out if this legislation became law.
In 2006, over 18,000 Sarasota County, Florida ballots showed undervotes in the 13th Congressional district contest -- a 13% undervote rate. Neighboring counties voting for the same contest had undervote rates ranging from 2% to 5%.
If the EAC looked at the demographics of Sarasota County, they'd find a "substantial presence" of elderly. The 65-and-over population of Sarasota County is 31.5%, which is the sixth highest among counties across the U.S. Would the EAC then conclude that a high undervote rate is acceptable in any U.S. county with 30% or more elderly voters? Or, since Florida has the highest 65+ population of any state in the country (17.6%), would the EAC declare that high undervotes across the entire state of Florida are permissible?
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