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Florida’s Voter Purge … and The Federalist Papers

This comment originally appeared on Rick Hasen's Election Law Blog at this link.

“If men were angels, no government would be necessary.”  So said Madison famously, in Federalist 51.  He continued with a more significant observation: “If angels were to govern men, neither external nor internal controls on government would be necessary.”  Underlying this observation was his recognition that political science could not count on politicians always acting virtuously.

Yet Madison also knew that if politicians lacked virtue altogether, democracy (or what he would have called “republicanism”) would be impossible.  Here’s how he put this important counterpoint in Federalist 55:

 “Were the pictures which have been drawn by the political jealousy of some among us, faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government; and nothing less than the chains of despotism can restrain them from destroying and devouring one another.”  (I’m indebted to Bruce Cain for pointing me to this passage.)

Thus, Madison saw the challenge of successful constitutional design for a democracy as economizing upon an existent but finite supply of virtue among otherwise self-interested politicians.  To this end, he gave us the architectural principles of federalism and separation of powers.  “Ambition must be made to counteract ambition”—so that no single institution of government, even in a democracy, can exercise too much power over the lives of the citizenry.

Yet, as I read recent news reports of efforts in Florida to purge the state’s voter rolls of noncitizens, I wonder if Madison’s principles of constitutional design are adequate to the task of election administration in the twenty-first century.  Or perhaps the better question is whether the current institutional arrangements we use in the United States for election administration are adequately in accord with Madison’s fundamental principles of constitutional design.

According to the New York Times,  a rift occurred between two top Republicans in Florida over what means to use in an effort to remove noncitizens from the state’s voting rolls:

“Gov. Rick Scott began to push for the voter roll review last year. He asked former Secretary of State Kurt Browning [a gubernatorial appointee] to try to identify noncitizen voters on the rolls, Mr. Browning told The Associated Press. But Mr. Browning found that using the state’s driver’s license database did not provide accurate results. Lacking confidence in the search, Mr. Browning resigned early this year.”

As the article explains, Governor Scott replaced Browning with Ken Detzner, who has been willing to employ the disputed method for scrubbing the voter rolls.  Many observers believe that this willingness is motivated, at least in part, by a partisan desire to tilt the electoral playing field to the advantage of Republicans.

(As an aside, I want to make clear that I am not disputing the proposition that noncitizens should not vote.  Of course, they shouldn’t; and, more critically, if some do, their ballots should not count and have the potential of affecting the outcome of a close election.  For this reason, there ought to be reasonable and appropriate means of updating voter registration lists in an effort to make sure that noncitizens have not registered to vote.  Without going into the details of what would be a reasonable and appropriate method to accomplish this legitimate objective, I am interested here in the fact that there has emerged an internal split among Republicans over this issue, with Florida’s former Secretary of State apparently objecting on the ground that the Governor’s chosen method has too great a risk of disenfranchising valid citizen voters in the effort to cleanse noncitizens from the rolls.)

What to make of Browning’s resignation and replacement from a Madisonian perspective, assuming the Times story is accurate?  Browning’s refusal to go along with a dubious method of voter purging in order to achieve a partisan advantage would seem like the kind of honorable political act of virtue that Madison recognizes to be in short supply—and thus should be taken advantage of in the workings of self-government whenever it surfaces.  Yet Browning’s resignation could been seen as entirely ineffectual, and hence its virtue utterly wasted, since Governor Scott was able to easily find another loyal partisan to implement the questionable purge.

But a Madisonian analysis of this Florida situation does not end there.  Instead, the main point of the Times story is that Obama’s Justice Department has intervened in an effort to stop Florida Republicans from implementing this voting purge.  Maybe Obama’s DOJ is acting in part out of its own partisan motives (to help the President’s reelection efforts), rather than solely based on the purest of virtue.  Some conservatives, like Thomas Sowell, have leveled such charges at Obama’s Attorney General, Eric Holder, with respect to his enforcement of the nation’s voting laws.  But Madison, the realist, might find that acceptable: the political ambitions of the Obama Administration are counteracting the political ambitions of Republicans in Florida, and given existing institutional arrangements on both the state and federal level—including the courts which will have the last word on what voting practices are legal under existing law—we can reasonably expect that the partisan tug-of-war over the content of the voting rolls will work itself out, more or less, in a way that preserves over time the essential liberties of the citizenry.

I’m not so sure, however, that the prevailing attitude about voting rights in the United States since the 1960s is consistent with this Madisonian perspective, which arguably tolerates inaccurate and unfair elections in the short run as long as the balance sheet evens out in the long run and basic personal freedoms remain secure in the meanwhile.  From a Madisonian point of view, given the limited availability of virtue in the system, the partisan tug-of-war over voter rolls might cause some citizens to lose their voting rights in a particular election, and as a consequence the result of that election would be unfair from a perspective of pure virtue.  (Conversely, the same Madisonian competition might cause invalid voters to remain on the rolls, who then taint the result of a close election—as occurred in Washington’s 2004 gubernatorial election, when 1401 felons cast invalid ballots in a race with a victory margin of only 133 votes.)  But as long as each election doesn’t determine the inhabitants of all political offices—and at two-thirds of the Senate is not on the ballot in any given federal election—then the partisan tug-of-war can cause the system to maintain equilibrium over time.  Democrats win big in 2006 and 2008, Republicans win big in 2010, one party or the other prevails in 2012, and the Republic endures.  Sloppy election administration affected by partisan fighting over the voting process might cause mistaken outcomes in particular elections from year to year, but in most elections the margins of victory are big enough to withstand this sloppiness, and there is overall rough competitiveness between the parties from decade to decade.

But are we, and should we be, satisfied if a partisan tug-of-war distorts which citizens are entitled to vote in each election, and thus potentially distorts the outcome of a particular election?  Instead, as contemporary Americans, do we think of voting rights as too precious and fundamental to be treated as the spoils of competitive political ambition?  More fundamentally, given the changed nature of the presidency since The Federalist Papers, is “win some, lose some” an adequate attitude about the outcome of presidential elections in terms of their fairness and accuracy?  In other words, can we accept that the voting process is so sloppy and impure as a result of partisan manipulation that the result in any given year—2000? or perhaps 2012?—may not be an accurate reflection of the will of the electorate entitled and attempting to participate, just so long as the system can bounce back and give us an accurate (or tit-for-tat) outcome in other years (2004, 2008, 2016, etc.)?  That notion, I surmise, would be unsettling to many, who instead believe that the nation’s electoral system ought to be able to get it right, or at least that any inadvertent inaccuracies are not caused by crass partisan manipulation of the process.

Thus, I believe there may be something of a disconnect between the Madisonian premises of our political system and our contemporary expectations about the accuracy and fairness of elections (at least presidential elections).  I’m not prepared, however, to give up on Madisonianism with respect to the goals and proper design of an electoral system in a democracy.  For one thing, it may be unrealistic to expect that we could create some nonpartisan process, entirely virtuous and pure, to handle such matters as the routine updating of voter rolls.  Instead, we made need a more sophisticated twenty-first century Madisonianism that designs new institutions for election administration that handles the threat of partisanship and economizes on the limited supply of political virtue in new and creative ways—as well as builds in expectations about the primacy of electoral accuracy and fairness that might have been alien to eighteenth-century sensibilities.

It should not be surprising if much work needs to be done to recalibrate Madisonian premises to our contemporary political world, especially in the context of presidential elections.  After all, in Madison’s own time, there needed to be an almost immediate recalibration of the system after the election of 1800, in which partisanship produced an unanticipated tie and the necessity to separate the Electoral College’s voting for the Vice-President from its voting for the President.  If Madison and his fellow Founders couldn’t figure out how to create a proper electoral process for the presidency in their own time, then surely we can accept the fact that Madisonianism hasn’t given us adequate institutions for the demands of operating the voting process for presidential elections today.

Moreover, it is worth remembering that the authors of the Federalist Papers were not themselves monolithic with respect to the attributes of virtue and partisanship in the context of presidential elections.  Before the Electoral College tie in the 1800 election, Madison’s co-authors Alexander Hamilton and John Jay were in a position where they could have manipulated the voting rules in New York in a way that would have secured an outright victory for their fellow partisan John Adams over their adversary Thomas Jefferson.  Jay was New York’s governor at the time, and Hamilton was (among other things) Jay’s political adviser.  In a way, their positions were roughly analogous to Scott and Browning in Florida.

In 1800, however, it was the governor and not the aide who, rejecting partisanship, acted out of political virtue.  Hamilton was the one who proposed to Jay that they alter New York’s voting rules to the advantage of Adams.  But Jay rejected Hamilton’s plan, writing this note: “Proposing a measure for party purposes, which I think would not become me to adopt.”

It appears that Browning may have had much the same thought as Jay when he refused to go along with Governor Scott’s plan for the voting purge in Florida.  But because Browning, unlike Jay, was not the one in charge, he could not put an end to the ostensibly partisan measure.  He could only resign—and speak out, as perhaps he is now beginning to do, if the Times account is an accurate indication.

We know how the story of the 1800 election ended.  We do not yet know how the 2012 election will end, or whether Florida’s voting rules will make a difference, or even as of yet what those voting rules will be when it comes time for Floridians to cast their ballots in the presidential election.  Thus, we are in no position now to assess the relative roles that virtue and partisanship will play in the conduct of the voting process in the 2012 presidential election—and the potential effect that they might have on the election’s outcome.

We have seen enough, however, to realize that our nation’s collective philosophical attitude (such as it exists) on the relative role of virtue and partisanship in the conduct of the voting process is incomplete and remains a work-in-progress.  We cannot simply assume that our Founding philosophy, as reflected in the Federalist Papers, is all we need to guide us in this respect.  Rather, we need to go back to the philosophical well, so to speak, and rethink what our guiding principles should be concerning the conduct of election administration.  Until we do that, we are in no position to make a sound judgment on the partisan battles over the conduct of the voting process that are occurring this year before our eyes, in Florida and elsewhere.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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