Despite high turnout, the 2020 election is already proving to be a mess — buried in litigation, and plagued by disinformation that spreads through toxic partisanship.
Though the pandemic and this erratic president are stress-testing our election system like never before in recent memory, the challenges of holding a free and fair vote in America have been mounting for decades. Since the early 2000s, court battles over election rules have become constant, while global experts like those with The Economist’s “Democracy Index” have downgraded the quality of American democracy across multiple measures for years.
No matter who ends up prevailing, it is clear that Congress needs to establish a federal elections agency to ensure that the voting process is fair, consistent, secure and legitimate — from redistricting to registration to voting technology. Would this be constitutional? In short, absolutely: Article 1, Section 4 of the U.S. Constitution explicitly gives Congress broad powers to “make or alter” regulations affecting elections.
Current federal regulators — the Election Assistance Commission, which disperses funding to states and makes administration and security recommendations, and the Federal Election Commission, which oversees campaign finance laws — are woefully insufficient.
We often talk about elections as if voters across the country are participating in a single event. But the reality is that individual states and counties — and the partisan politicians who run them — largely make their own rules about ease of voting, ballots and district lines. The overall result is that in the 21st century, in the richest democracy in the world, some people must work much harder to exercise their basic right to vote — and even then, their ballot may be less potent than others.
Take rules around registration and voting. Some states and cities automatically register voters and proactively mail them their ballots. Other states require people to register weeks in advance of the election and, unless they have a valid excuse for voting absentee, to show up in person at the polls, where they may face long lines, poorly trained poll workers, and unreliable equipment — not to mention the chance of becoming infected with a lethal virus that thrives in crowded indoor environments.
If someone lives in a gerrymandered or lopsided district, that person’s vote might matter less. In the vast majority of states, partisan lawmakers decide how to draw district lines — carefully engineered to maintain power statewide, even if a majority of voters prefers the other party.
In the all too common worst-case scenarios, partisan officials take advantage of the lack of federal election standards to disproportionately purge minority voters from the registration rolls entirely, or invalidate their ballots because of minor technicalities at higher rates.
Despite these problems, the United States lacks a functioning national regulatory body empowered to administer and enforce election laws. The Election Assistance Commission is designed to be bipartisan, with an even number of commissioners from both parties (two Democrats and two Republicans). But amid our hyperpartisan, polarized politics, bipartisan balance has meant deadlock. The commissioners can’t even agree on core issues like how to handle foreign interference: One Republican commissioner even stated that reports of Russian election meddling are “deceptive propaganda perpetrated on the American public.”
Partisanship isn’t the only issue. The commission has been plagued in recent years with unfilled appointments, reduced staff and budget cuts. Perhaps most important, it does not have the authority to make sure its recommendations are followed.
Democrats have proposed democracy reform legislation, known as H.R. 1, which would establish new standards for voting access, integrity and security. This bill could be transformative, but doesn’t go far enough when it comes to making those standards a reality.
A federal elections agency could help oversee and administer the standards for voting access, legislative decisions on redistricting and election security. It could use formal orders, fines, lawsuits and even criminal enforcement actions to make sure that political campaigns are conducted with integrity, elections are not marred by fraud or interference and lawmakers are penalized for attempting to rig the system in their favor.
It could use new, safe technologies to modernize and streamline our elections, while consolidating and securing important data. It could also help pilot secure election technology, such as the “unhackable” open-source voting system currently being developed by the Department of Defense. Unlike current election software that is bought from private companies and shielded from public inspection, this system will run publicly available computer code that election security experts can scrutinize for issues.
A federal elections agency could also better take on certain administrative functions that are currently carried out by the states: for example, the creation of a national voter roll, with all eligible citizens automatically registered to vote. This would bring our registration system up to the standards of most other advanced democracies. (And simultaneously make it easier for intelligence officials to detect security breaches.)
The agency could also regulate the distribution of false or misleading information about federal elections — an increasingly important challenge.
The agency would not stop at setting federal standards; it would also enforce them. That means ensuring that congressional redistricting is truly fair for all voters by reviewing district maps and — if they do not meet standards — require that new maps be drawn. And that means monitoring elections to ensure they’re free and fair, including by building out an “election forensics” team that can determine whether fraud, interference, or suppression tipped the balance in a given race.
Some critics of this proposal may say this agency is nothing more than a federal power grab — state and local administrators are perfectly capable of doing their jobs without interference from Washington. And yes, many talented and highly capable election administrators have done heroic work this year under nearly impossible circumstances. But a new agency should support them, ensuring they have the resources they need to succeed. And frankly, partisan state legislatures, governors and secretaries of state are often the ones who make their jobs harder.
Critics could also point out that this elections agency could be used for partisan advantage. That’s why the agency must have a strong mandate, based on widely supported principles of democratic fairness, as well as an empowered inspector general to monitor any potential abuses of that power. We propose an extensive vetting process for agency appointees: a bipartisan, blue-ribbon commission could put forth a short list of names and nominees would be confirmed by the House of Representatives — a more broadly representative body than the Senate.
Appointees would have to abide by a robust conflict-of-interest policy, as well as a legally binding pledge of allegiance to the integrity of the voting process and the public interest. Taken together, these structural safeguards make us optimistic that the agency would serve its intended purpose.
No agency is perfect. But as with any change, the test should not be to compare it to some idealized standard of perfection but, rather, against the status quo. Our patchwork system empowers partisans to shape the rules, increases the chances of foreign hackers finding a weak link in the chain and leads to inconsistencies that fuel litigation, conspiracy theories and confusion.
Naturally, this proposed Federal Elections Agency has no chance of happening unless Democrats manage to narrowly retake the Senate. But if a fair, secure and straightforward election system is the foundation of a functioning democracy, we need to invest in it — as soon as feasibly possible.
Charlotte Hill, a board member of FairVote and RepresentUs, is a Ph.D. candidate at the Goldman School of Public Policy at the University of California, Berkeley. Lee Drutman, a senior fellow at New America, is the author of “Breaking the Two-Party Doom Loop: The Case for Multiparty Democracy in America.”
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