Where's the Model Election Code?

Entry for September 05, 2007

Customs serve as implicit multilateral contracts
which form a framework to facilitate other more
specific human actions. Elections are social
customs. There is no universal, best or ideal
model for conducting elections. There are superior,
better practices and inferior corrupt practices
in the context of social custom.

Elections are intended by the participants to
minimize social friction. Elections are
supposed to lubricate the inevitable conflict
between coercive authority and voluntary
cooperation. Two very dissimilar realms of
social custom.

The official act of voting in the United States,
for many citizens, constitutes their only
participation in government, and it is
fundamental that elections are conducted with
all possible evidence of integrity. However,
State control of elections constitutes one of
the most difficult problems to solve in the
application of democratic theory and custom.
It is clear that current election laws are
seriously defective. This study will focus
on the analysis of electoral friction and
propose alternatives to current legal rigidities.

I began this research project by querying
for model election code. Curiously, the only
one I found is from 1934! Has no one attempted
to construct a template for a state election
code in nearly 75 years? Apparently not.

The 1934 model code is interesting as a
snapshot of political science thinking
of that era. Excerpts from the report
presenting that Code appear in italics.
In this discussion we shall use the term
“bipartisan” to indicate the two largest
political organizations – traditionally
Democrats or Republicans, but that could
vary under local circumstances. For example,
some other parties could be the
bipartisan elements in a precinct like the
Libertarians and the Greens together
outnumbering either the Republicans or
Democrats.

Excerpts from the 1934 model code appear
in italics.

Every investigation or election contest
brings to light glaring irregularities,
errors, misconduct on the part of precinct
officers, disregard of election laws
and instructions, slipshod practices, and
downright frauds. The entire country
has been shocked from time to time by the
revelation of wholesale election
frauds.... Competent political observers
report that election frauds are ...
are widely prevalent.... Even these election
scandals and the slipshod administration
revealed by election recounts do not indicate
the real state of affairs which prevails
generally in election administration. The
truth of the matter is that the whole
administration- organizations, laws, methods and
procedures, and records-are, for most states,
quite obsolete. The whole system, including the
election laws, requires a thorough revision and
improvement. 1 (Emphasis added.)

Some things just go on and on it seems until,
and if, someone notices.

 
There should never be the slightest question
about the integrity of the ballot box or doubt
cast upon the honesty of the elections. It is
hardly necessary to point out that the presence
of election frauds and sharp practices will
undermine public morale and interest in civic
affairs more quickly than any other condition.
The existence of election frauds is an unfailing
sign of bad government, for frauds cannot be
perpetrated upon a large scale except by a powerful
and corrupt political organization, willing to go
to any length to maintain its control over the
government, and able to afford protection
to those who corruptly carry out its orders.
Fraudulent elections cannot be tolerated by
any self respecting community. Fair elections are
absolutely essential to good government, but do not,
of course, guarantee good government.2
(Emphasis added.)

After three-quarters of a century that does seem
rather evident, but when did we get to the point
of "fair" elections to test that assumption?

The right of the suffrage is an empty formality
where election frauds prevail. Public opinion,
civic interest, and efforts to elect capable
officers and to secure good government are of
no avail in the face of a powerful political machine,
able and willing to corrupt the elections.3

Here we discuss only the administration of
balloting at the point when the ballot is cast by
the voter and exclude consideration of pre-election
bipartisan rigging of the ballot.

There should never be any question about the
accuracy of election results. The returns should
be as accurate as the accounts of a bank or of any other
commercial institution. Would banks or other commercial
or business institutions be willing to operate on the
theory that one error will be offset by another? The
truth of the matter is that our elections at present are
conducted in such manner that errors and inaccuracies
are inevitable,.... 4

Hence much of the focus on regulating the pre-election
campaign showmanship and financing while ignoring the
business end – the ballot and ballot counting.

At the present time inaccuracies are the rule rather
than the exception in election returns. Recounts produce
different results from the original count in practically
every precinct, and the variations are sometimes startling.5

Of course, one proposed solution is to make recounts
moot by just re-tabulating the tabulation in question.
An ephemeral (electronic) ballot is no ballot at all.

A cardinal principle of election administration at present
is that of bipartisanship. It may be observed in the
election statutes in every state in the Union.6

This bipartisanship is the quintessential characteristic
vice of U.S. election administration.

The bipartisan principle results in our elections being
controlled by the very elements of society most bent upon
winning the election - the bitter partisans whose livelihood
may depend upon party victory. Common sense would dictate
that such persons should be debarred from having
any control over elections, but under the bipartisan
theory it is necessary to "set a thief to watch a thief."
Unfortunately, thieves may make bargains. The supposed
opposition of the two leading political parties is little
more than a farce in many large cities. The minority
party is often the tool of the majority party.7

It is obvious that the worst possible procedure is to place
the selection of election administrators in the hands of
the dominant political organizations. It is foolish to expect
honest elections when the very persons who would profit by
fraud control the machinery of elections.

The superior alternative is empanel a jury by lottery from
the large pool of voters who are not government employees
or officials at the precinct level to oversee the conduct
of an election. The term of service for such juries should
be for one election only over a span of days or weeks
- not months. 

This would place original jurisdiction over elections
closest to the voters. Selection by lottery at the
precinct level assures a rotation in office beyond
the control of professional politicians. In a precinct
election jury a significant number of independents and
other party voters would secure oversight along side
the “bipartisans”.

How large should a precinct jury be? Any odd number seven
or larger depending on the precinct size.

How large/small should a precinct be? A minimum is easer
to establish than a maximum. A precinct of only 300 voters
may have a turnout of only ten or fifteen percent in some
elections. This makes the secrecy of the ballot problematic.
But the use of a seven member election jury seems
unjustifiable for such a small precinct. I suggest a
one percent rule, that is, a seven member precinct jury
requires a precinct of at least 700 voters minimum. On the
other hand a precinct jury should not be larger than 11 members.
Therefore, the maximum size for a precinct would be about
1100 to 1200 voters. This would apply to precincts in urban
or suburban communities generally. The only exceptions should
be for very small and relatively isolated rural communities
with fewer than 700 voters. It is entirely possible or even
likely that bipartisans would still dominate a jury in such
small precincts. But an “affirmative action” provision might
require that no more than a majority of such a jury is bipartisan.

1 Model Election Code by Joseph P. Harris, Prof. of Political Science,
University of Washington, 1934; Institute for Government Research
Studies in Administration No. 27, The Brookings Institution,
Washington, D.C. 1934
2ibid
3ibid
4ibid
5ibid
6ibid
7ibid