When at Times the Mob Is Swayed

by Burt Neuborne

  Finally, while getting rid of cynical impediments to voting—such as statutes that require voter ID cards under the phony pretext of preventing fraud, and statutes mandating the purging of voter rolls—must be a priority, I’ve become convinced that the problem of large-scale failure to vote lies much deeper. Unless we insert a chip that responds to a voter’s thoughts, the act of voting will always require some effort. The sad truth is that many people just won’t vote if they believe that the value of their vote is lower than the cost of casting it. Here are a couple of modest proposals for increasing the perceived value of voting (a few of which may be worthy of Jonathan Swift).

  American elections are awash in cash. Candidates can’t wait to peddle themselves to the top 1 percent. The top 1 percent can’t wait to buy influence. Why not cut poor voters in on the game in a way that puts a little cash in their pockets? Maybe we should just let voters, especially low-income voters, sell their votes to the highest bidder. Since we already operate an electoral bazaar that invites wealthy individuals and business corporations to buy influence and outcomes, and encourages, even forces, candidates to put themselves on the auction block, a free market in votes would simply make our corrupt election process just a little less hypocritical, while funneling some of the cash to folks who need it.

  Why not think of an election as an income-redistribution program that funnels money from the rich to the poor, instead of the current political system devoted to transferring money from the poor to the rich? Imagine what a vote would bring in a swing state in a presidential year. How much would you arrange to pay to assemble the 77,800-odd votes that gave Trump the presidency?

  If openly buying and selling votes is a bit too crass for you, at least let folks freely assign their votes to authorized, fully revocable proxies—individuals or organizations—that would compete in promising to cast the votes wisely and in the voter’s best interest. Corporate shareholder elections routinely permit carefully regulated proxy solicitors to assemble the right to cast the votes of most shareholders. Why not allow competing proxy solicitors to assemble the right to cast votes in a political election, especially in primary elections, where low turnouts of between 5 and 10 percent are so destructive and such a disgrace?

  While such a fully revocable proxy solicitation process would, of course, risk increasing the already disproportionate role played by money in our elections, to say nothing of risking fraud, at least poor people, who are currently left out of the democratic process, would either get something tangible for their votes; or, at a minimum, be assured that their votes were being assembled and cast in their best interest.

  Maybe we should resort to a little bribery. Why not reward voters for their civic engagement by allowing them to go to the head of lines in government offices, airports, the DMV, and post offices? How about voter discounts at national parks? Maybe voters should get their tax refunds first? Why not accelerate passport issuance for voters? How about conditioning access to highway HOV lanes on voting? Maybe we should link voting to a modest tax credit, provide for lower bridge and tunnel tolls, or arrange for small public utility discounts?

  Maybe American Express or Chase should create a voting-linked perk on your credit card? How about a premium internet subscription from Facebook or Google, or cheaper cellphone use? How about a year of Amazon Prime? Perhaps the private sector should reward voters by holding post–Election Day sales that provide special discounts for voters? Maybe early boarding or airline upgrades should be a reward for voting?

  Or maybe we should just get over it and compel voting, as in Australia, where voter turnout routinely exceeds 95 percent. We could easily shift our voting system from the current opt-in version, which requires a voter to perform a series of mildly annoying tasks in order to register prior to the election, to an opt-out system, which requires voting unless the voter performs the mildly annoying task of “unregistering” for reasons of conscience.

  We use the opt-out process for jury service, registration for the military draft, vaccinations, and compulsory public education. Why not voting?

  Short of compulsory voting with the ability to opt out, why shouldn’t the government at least have the duty to assemble the rolls of eligible voters without requiring the extra step of voter registration? That’s the way things were done in the nineteenth century, before the advent of voter registration. That’s the way it’s done in virtually every other serious democracy. There wouldn’t be too much of a burden on the government. Just build into every contact between the individual and the government, including high school graduation, getting or renewing a driver’s license, getting a social security card, a Medicare document, or a passport, filing a tax return, reporting for jury duty, registering for the draft, or visiting a national park, the automatic transfer of registration information to appropriate election authorities.

  At a minimum, why not allow voter registration to occur simultaneously with voting (often called same-day voter registration)? There’s no risk of fraud, since the first vote you cast under same-day registration can be deemed a provisional ballot subject to postelection verification. States such as Oregon and Minnesota that have shifted to same-day voter registration routinely enjoy a significant spike in voter turnout, especially by poor voters. The cynic in me believes that’s probably the reason so few states have adopted same-day registration. The last thing that many pols want is a destabilizing influx of large numbers of new, unpredictable voters.

  Finally, it’s an embarrassment that the richest nation in the world won’t spend enough money to assure competent administration of our elections and has failed to develop voting machinery capable of counting our votes safely and accurately. Even something as mundane as allowing early voting, voting by mail, and/or convenient absentee balloting gets caught up in political controversy and administrative incompetence.

  If we are not prepared to offer financial sweeteners to induce folks to vote, turn voting from a right into a duty, or tinker with the voter registration and electoral systems, we can increase the perceived value of voting by making voting intrinsically more important. Not only would that induce folks to vote, but it would rejuvenate democracy for everyone else.

  Given the diminished practical importance of a single individual’s vote in too many current elections, especially in elections where the outcomes have been rigged in advance by political bosses, the real question is not why so many Americans don’t vote; it’s why so many of us do. Don’t be fooled by the large number of very close elections in genuinely contestable districts. Genuinely contestable districts are a rarity. In more than 90 percent of the elections for Congress, most of the elections to the fifty state legislatures, and most local elections, the almost certain winner of the general election is known well in advance. Sometimes the outcome is rigged by the adroit manipulation of district lines. Sometimes the winner is predetermined by the tendency of like-minded voters to live close together. But rarely is the winner dictated by the voters themselves in a genuinely contestable election. The best that most voters can do is to ratify a choice made for them by the pols.

  Voting in such a rigged election is not meaningless. Exercising the right to vote, even when it’s been reduced to a formality, is an assertion of individual dignity and an expression of confidence in democracy. It also keeps the pols honest by forcing them to subject their decisions to public scrutiny. Most important, though, the act of voting even though you already know who will win is a tribute to how deeply many Americans revere democracy. It is, frankly, heartening that so many Americans care enough about democracy to continue to participate in its rituals in rigged legislative elections and uncontestable Electoral College contests long after voting in those elections has been drained of practical importance.

  I believe, though, that the perceived diminished value of a vote is why it is so difficult to marshal real enthusiasm for voting among those who historically have not voted. In my experience, serial non-voters will not vote in large numbers, no matter ho
w low the costs, if they view voting as simply a ritual, not an exercise of real power. Thus, while keeping the perceived costs of voting as low as possible is very important, the real key to the problem of widespread nonvoting is increasing the actual and apparent worth of the vote by making votes count again in genuinely contestable elections.

  Non-contestable legislative elections come in two flavors—natural and artificial. A substantial number of non-contestable elections are “naturally” baked into the geography of places where large numbers of politically like-minded people live close together. In the inner-city electoral districts of many urban areas, for example, it is often impossible to find enough likely Republican voters to generate genuinely contestable two-party elections. Similarly, in many rural or extremely wealthy enclaves, there are often not enough Democrats to hold a genuinely contestable two-party legislative election.

  While it’s true, of course, that what looks like “natural” sorting of politically like-minded people into dense population pockets is often the result of generations of housing discrimination, manipulation of zoning laws, mortgage redlining, poor public transportation, and economic inequality, once single-party inner-city or gated suburban communities have become established, for whatever reasons, it’s often impossible to draw electoral lines that will deliver genuinely competitive general elections.

  But that does not mean that the residents of inner cities, rural farming towns, or gated communities are doomed to a steady diet of meaningless, noncompetitive elections. Voting systems exist capable of transcending geographical sorting. The two that are best known are proportional representation (allocating elected positions in accordance with the percentage of the vote that each party obtains) and multi-member districting (where a large geographical unit elects multiple representatives).

  Every vote counts in a system of proportional representation. Almost every vote can be made to count in a multi-member district. Let’s assume that New York City elects ten members of Congress and that New York State elects twenty-seven. If we adopted proportional representation in New York City and the popular vote there was 90 percent Democratic to 10 percent Republican, the city’s congressional delegation would be nine Democrats and one Republican, but every vote would count. If the Republicans mounted a particularly strong showing, they could pick up one or two additional seats. If the Democrats surged, they could shut out the Republicans altogether.

  Statewide, the impact would be even more dramatic. Let’s assume a 60 percent to 40 percent Democratic-Republican split, with a twenty-seven-member congressional statewide delegation that included fifteen Democrats and twelve Republicans. It wouldn’t take too many statewide votes to shift the allocation in one direction or another, putting an obvious premium on going to the polls, and an obvious penalty for staying home.

  If proportional representation is too radical for your taste (though before you condemn it as too radical, you should know that Germany, France, Italy, and Israel use it), geographical sorting could also be made democratically contestable by expanding the boundaries of existing single-member districts, creating multi-member districts, and allowing each voter to cast as many votes as there are vacancies. Voters can choose to spread their votes among the candidates or to give additional votes (or even all their votes) to a single candidate. This system, called “bullet voting,” is already in use in many state and local settings.

  A third alternative, preferential voting, is made possible by the computerization of vote counting. Under a system of preferential voting, numerous candidates run in a large, often multi-member constituency. Voters are encouraged to rank the candidates in order of preference. Candidates receiving a majority of first-place votes are immediately elected. If no candidate receives more than 50 percent of the first-place votes, the candidate with the fewest first-place votes is eliminated, and her second-place votes are allocated among the remaining candidates. The process is repeated until one candidate receives more than 50 percent of the votes. It’s the process that Maine uses to elect members of Congress.

  Unlike our present winner-take-all system, which tilts toward the most extreme candidates, the various versions of preferential voting tend to benefit moderate candidates.

  Unfortunately, Congress has needlessly limited the states’ power to experiment with at-large or multi-member congressional districting. In 1967, in a commendable effort to protect newly enfranchised black and Latino voters, Congress required that all its members be elected from single-member districts. Congress was probably trying to stop racists from taking pockets of minority voters and submerging them in at-large or multi-member districts where whites voters would outnumber them. But a technique—known as cumulative or “bullet” voting—can protect minority voters in a multimember or at-large district by allowing each voter to cast as many votes as there are vacancies to fill, and then allowing them to cast all their votes for a single candidate. Do the math. It would allow minority voters to self-organize and elect a candidate of their choice. It’s time to repeal the 1967 statute and give the power to experiment back to the states, with a proviso that all multi-member or at-large congressional districts must adopt bullet voting. Fortunately, the 1967 ban does not stop the states from experimenting with preferential voting. Maine uses it today and makes every vote matter.

  The irony is that the Founders used multi-member districts as a common way of electing the members of Congress. It was routine in the early 1800s for the representatives from a state to be elected in a single, at-large election. It wasn’t until after the Civil War that at-large or multi-member congressional districts became rare, largely because we had not yet invented bullet voting. Maybe it’s time to bring multi-member congressional districts back. Congress could do it tomorrow.

  Although I would consider it a long shot, it’s even possible that a state could insist on experimenting with at-large or multi-member congressional districting allowing bullet voting, even in the teeth of the 1967 congressional statute banning it. But that’s a question for the federalism issues discussed in chapter 9.

  Even under a single-member, winner-take-all system, it’s possible to inject genuine choice into an election district that is overwhelmingly controlled by one or another political party by making sure that the nominating process is genuinely contestable. The majorparty nominating process was once run by political bosses. That wasn’t all bad. Professional politicians tended to choose moderate candidates with the best chance of winning the general election. As fewer and fewer general elections became genuinely contestable, however, the pols’ incentive to choose moderate, balanced tickets decreased. Once they didn’t have to worry about fielding the strongest candidate in order to win a contestable general election, the smoke-filled-room candidate selection process became deeply corrupt and wholly unmoored from voter choice. That’s the point where wealthy special interests were able to exercise almost uncontrollable leverage: buying candidates who promised to advance their interests, with those candidates then guaranteed to win the noncompetitive election.

  Faced with such a corrupt process, most states have done away with the old boss-controlled nominating process, opting for primary elections that place the power to choose candidates with the voters, not the party bosses. The results have been mixed. As we’ve seen, voter turnout in primary elections is notoriously low, often falling below 10 percent of the eligible electorate, allowing small blocs of ideologically driven voters to drive both parties further apart by selecting candidates at the extreme left or right, and punishing moderates in the center. In today’s political world, the threat of a bruising, expensive primary dominated by a small ideological bloc can drive sitting legislators in both major parties to the extremes, even if they long to move to the center. It’s why no Republican officeholder dares to cross or even criticize President Trump. It’s why so many moderate Republican legislators have chosen to retire. When, as now, members of Congress fail to perform their checking role because they fear retaliation from the president in th
e form of a primary contest dominated by a small ideological minority, a dangerous concentration of power is created in the hands of a president.

  Since moving nominations back to the corrupt bosses is, for me, a democratic nonstarter, we should concentrate on breaking the existing ideological stranglehold on the primary process. The best way to do it is by increasing voter participation in primary elections so that 5 to 10 percent of the eligible electorate can’t dominate the process. My not-so-facetious suggestion is that we use proxy solicitors, perhaps armed with a little cash, to drive up the value of primary voting.

  If you don’t want to experiment with proxies in the general election, how about using proxy solicitors in primaries, to make sure the political center is heard? A political party choosing a candidate isn’t all that different from shareholders electing a board of directors. Proxies and proxy solicitors have been used successfully in corporate elections for many years. Why not give them a try in primary elections?

  If that’s too radical for your taste, there is a more traditional way to rescue primaries from the ideological extremes: by opening them to as many voters as possible. The more primary voters there are, the harder it is for the extreme wing to dominate the outcome. When primaries were imposed on them, many powerful political leaders sought to retain control of the nomination process by adopting “closed” primaries, open only to enrolled members of the party. New York and Illinois, states with powerful political machines, took the closed primary process even further by requiring an extensive waiting period before a newly enrolled party member could vote in a primary. New York snuck an eleven-month waiting period past a divided Supreme Court. I know. I lost the case 5–4. Illinois set the waiting period at twenty-three months, effectively freezing out new voters and making it almost impossible to mount a successful primary challenge. That was too much even for the Supreme Court.