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

The Free and Fair Elections Amendment is currently worded as shown below. What does it mean? And why is it worded that way? This piece focuses on the first phrase.

Transparent and well-regulated elections, being necessary to the security of a free state, the right of the people to anonymous voter-marked ballots, visual observation of the vote count, public inspection of registration records, legal US Citizenship of all voters, and an audited, certifiable electoral process, shall not be infringed.

The primary task of the Free and Fair Elections Amendment is to create a standard in which the people can put their confidence regarding our elections. The opening phrase of the amendment sets the tone for just what we are attempting to accomplish: transparent and well-regulated elections.

As the first substantive word in the amendment, “transparent” signifies the crucial role of transparency in election processes. Elections must be transparent to the citizens, or the citizens lose confidence in the outcomes. When widespread loss of such confidence prevails, we become a democracy in name without any real meaning.

All fair elections depend upon the secret ballot and the anonymity of one’s vote. Because that part is and must always be secret and private to the voter, every other aspect of an election must be transparent. Transparency protects voter anonymity and enables us to answer the kinds of questions that get asked about elections—was there fraud in the count? Was the election overwhelmed by inappropriate or illegal voters? Did the counting machines malfunction? and other such questions. Transparency enables citizens to satisfy themselves that elections are fair—either by personal investigation or by proxy organizations, such as journalists, academics, and activist organizations. Thus, transparency enables the public consensus to develop around the issue of fairness in the election.

The cloak of secrecy, the very antithesis of transparency, is necessary for fraudulent and unfair practices to operate. Citizens understand this. So when they see secrecy, they tend to suspect fraud and unfair practices. Problems with elections through American history are nearly always associated with the cloak of secrecy. Secrecy, whether fraudulent or not, undermines the trust of the people in the government. Transparency is lacking when access to information is restricted, either through procedures of secrecy, through the deployment of technology that can be understood only by a very specialized professionals, or other means.  Under these circumstances, a public consensus regarding elections outcomes is unlikely to develop. Lack of consensus is inconsistent with the ideals of democratic government.

In a democracy, a well-regulated election means that the election is regulated by the people. Indeed, a process as large and complex as a general election can only be well-regulated when citizen election judges, citizen voters, and citizen journalists, actively observe and participate in the process, thereby providing a check on the process itself. There can be no all powerful, all knowing office to depend upon. Good regulations promulgated by government are important, as is good training of citizens in the nature of the rules and procedures. But assurance of compliance with those rules and procedures can only happen at the local level where the process is open and observable to all. The antithesis to a well-regulated election is a closed process, where compliance is determined by a small number of experts, bureaucrats, or specialists, and everyone else is relegated to either accepting or not accepting their judgment.

When citizens monitor their own process, the essential measures of election success present themselves clearly. In each election, but also over time, these measures can and should be used to measure the efficacy of a system. Here are three examples of such measures.

Voter participation, or turnout, is a traditional measure of democratic governance; higher turnout increases the legitimacy of the outcome. When evaluated in context, alongside the other metrics of election analysis, turnout can be an important indicator and can reinforce the legitimacy of the elected government.

The problem with turnout is that it is often used as the only measure of legitimacy. Officials trumpet 70% turnout as an indicator of a strong democracy. Yet if half of those who voted are uninformed, is it really good for democracy? If a significant number of those who turned out and voted are suspected of casting illegal votes, is this a victory for democracy? These are appropriate challenges to the use of turnout as an exclusive measure of legitimacy or election success. On the other hand, it is hard to argue that “the people” have really been heard if only 25% of them vote in an election. In fact, unpopular decisions are often defended as being representative of a supposed “silent majority”—an argument that gains strength when turnout is low, apparently increasing the size of such a “majority.”

Voter turnout is an appropriate and important measure of election integrity, but it must not be used as the only measure. Other important measures of election integrity should not be sacrificed on the altar of voter turnout.

It is axiomatic that a “well-regulated election” eliminates or minimizes fraudulent votes. Voter fraud occurs when voters intentionally corrupt the electoral process, usually by voting illegally. When a voter gives false information to establish eligibility to vote, usually during the registration process, or participates in a conspiracy to encourage others to vote illegally, voter fraud is occurring. [1] The direct participation of voters separates “voter fraud” from “election fraud,” which is the more comprehensive term for frauds perpetrated on our elections, including tampering with vote counts, the certification process, vote caging, and so on.

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