A Stitch in Haste

Is there anything that the New York Times editorial board doesn’t think should be run by Congress?

After the controversy over Palm Beach County’s infamous “butterfly ballot” in 2000, there was a lot of earnest talk about improving ballot design so that voters do not miscast their votes. Two election cycles later, a study has found that ballots around the country are still far too confusing and that poor design and instructions have disenfranchised hundreds of thousands of voters in the last several federal elections.
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In the long term, Congress and the states need to start requiring uniform, well-designed ballots so Americans can be sure that the candidates they choose actually get their vote.
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Ballot design has traditionally been left up to states and localities, which have had a spotty record.
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Congress should require that ballots used in federal elections meet minimum design standards. It should also mandate pre-election usability testing and make funds available for it.

Of course, the reason that “ballot design has traditionally been left up to states and localities” is because that’s what the Constitution calls for. The words “ballot design” appear nowhere in the enumerated powers of Article I. Indeed, Article I, Section 4 makes clear that, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” Finally, the Tenth Amendment makes clear that any power not expressly granted to the federal government is left to the states, to be checked only by Fourteenth and other Amendments — and the courts.

And while it is true that Article I, Section 4, also grants Congress the power to “at any time by Law make or alter such Regulations,” that has always been interpreted to mean the power to guarantee the individual right to vote (e.g., access to polling places and freedom from voter intimidation), not the power to arbitrarily constrain, based solely on Congressional whim, the states’ authority to craft ballots as they see fit.

(Note also that the plain text of Section 4 unambiguously limits Congress to overseeing Congressional elections — not presidential, state or local races. Any aspect of the ballot that concerns any non-congressional contest is simply beyond Congress’ purview to regulate.)

And let’s not forget that, besides the fact that what happened in Palm Beach County could just as easily (more so actually) be deemed “the exception that proves the rule,” (seen this guy recently?) it would, under the Times’ paradigm, be the same enlightened and expertise-drenched Congress that has so perfected the art of gerrymandering. Do we really want them micromanaging our ballots?

There is no role whatsoever for Congress in designing ballots, at least for non-congressional races. Not as a matter of constitutional law; not as a matter of simple trustworthiness. To the extent that voters are legitimately wronged in specific instances, they should rely on the courts for redress.

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While we’re on the subject, any chance the Times might take up the far more serious “Florida problem” of illegal snowbird voting?

Filed under: Activist Legislators & Nanny Statists, Constitutional Issues, Law