FairVote Feed: U.S. Senate Vacancy Elections

Voting Rights Act turns 45

Fri, 06 Aug 2010 13:48:02 -0700

Today marks the 45th anniversary of the Voting Rights Act, one of the true landmarks in our history. The right to vote and, and our First Amendment rights are the pillar of ensuring government operates with the consent of the government.

However, we must face a bracing reality: the Constitution does not establish an affirmative right to vote. In its 2000 decision in Bush V. Gore, the Supreme Court asserted that “The individual citizen has no federal constitutional right to vote for electors for the President of the United States.”

Not having a clear, affirmative right to vote may be shocking to some, given amendments to the Constitution providing suffrage rights to women, African Americans and young adults and statues like the Voting Rights Act. Those laws provide for equality in voting; they do not guarantee quality. That’s why it took a constitutional amendment in 1964 to ban poll taxes and why the citizens of the District of Columbia can be denied a right to vote in Congress today. That’s why some 13,000 jurisdictions make independent decisions about matters like ballot design, polling places, voting equipment and poll workers that affect elections for our highest offices – with little accountability for those decisions.

Many election officials do heroic work, but their decisions are governed by too few standards, they often lack sufficient funding and their performance can lack transparency and accountability. Those deficiencies can translate into long lines, untested ballot designs, buggy voting software, error-ridden voter rolls and lackluster poll workers. Partisans all too often can influence who votes and how easy it is to vote.

Such problems combine to cause significant damage to suffrage rights. Further protection must be anchored in the Constitution. Voting should be a fundamental citizenship right. To establish such an affirmative right, we need a constitutional amendment, currently proposed by Congressman Jesse Jackson, Jr. in the form of HJR 28. FairVote strongly supports this proposal.

But an amendment takes time. Keeping it as our clear goal, local officials can take immediate steps. For example, Chicago last year debated legislation calling on Congress to approve the Right to Vote amendment and pledging to review its laws and procedures to uphold the right to vote in its own elections.

Even as our country fights to expand democracy around the world and even as we rightly celebrate the Voting Rights Act of 1965, let’s act to protect our own right to vote. I urge jurisdictions to start by promoting the right to vote in their own local jurisdictions. Ask your city council to protect your right to vote and to join a grassroots effort to protect a “right” that should have no asterisk: let’s work to put a right to vote the Constitution and have that ideal govern our elections wherever they take place.

Read the text of the Chicago resolution.
See our other resources on the Right to Vote.

The November Illinois Senate Election and the Value of Voting

Wed, 14 Jul 2010 07:58:07 -0700

On July 22, the US Seventh Circuit Court of Appeals issued an opinion upholding an earlier ruling by Judge Wood that Senator Burris’s appointment was temporary and President Obama’s former seat must be filled at the soonest general election. As this means that Senator Burris’s vacancy appointment ends November 2, 2010, voters in Illinois will need to vote in two US Senate elections this November: one to elect President Barack Obama’s successor in the Senate, serving a six-year term, and one to fill the vacancy left open by Roland Burris’s appointment expiring who will fill the seat for approximately two months.

There are those who have warned that the Seventh Circuit’s ruling may be confusing to voters and expensive. However, Judge Wood’s opinion seems to suggest something novel in political discourse today: that elections and who is in office matter. She says that the court is “not prepared to say that this… [election is for] such a short period of time that it should be dismissed as de minimis.” Indeed, even though it is only for an eight-week period, the voters of Illinois have a Constitutional right to select who represents them in the Senate. Given that Congress will be back in session for a “lame duck session” after the election, this new Senator indeed will have immediate responsibilities in casting votes in the Senate.

This country is built on the idea of representative democracy. While any political system must be flexible to account for exigencies that may arise, at the foundation, a strong representative democracy must always keep in mind the principle that government is of, by, and for the people. While this country, with the possible exceptions of cases such as gerrymandering, does a pretty good job of keeping this in mind overall, there are ways in which we could make our democracy more robust and more representative.

Given its importance in confirming nominees and t is important that no state goes without representation in the Senate. In the era before instant communication and widespread plane transportation, it might have made sense to have a long-term Senate appointment. However, as the Seventh Circuit acknowledged, there is no justification for depriving voters of their right to vote for the individual to represent them in the Senate longer than necessary. Now, the court punted on what “necessary” meant: whether appointments were valid until the next regularly-scheduled election or rather that states had to hold an election as soon as practicable. However, one thing was clear from the opinion; no matter how short the time period, voters cannot be deprived of the opportunity to democratically make their voice heard.

The Obama Senate vacancy story of course has become a notorious example of government gone wrong, with former governor Rod Blagovich seemingly offering the seat to the highest bidder. Now that it seems that the multi-year saga of the Illinois Senate seat scandal is about to conclude once and for all, Americans should take this opportunity to reflect on the lessons of this experience. Clearly, the system of vacancy appointments made by politicians and given to politicians is prone to corruption and anti-democratic actions. Furthermore, this decision emphasizes that a vote is not just a formality, it is a right. Hopefully, the Seventh Circuit’s language will be taken to heart and more Americans will exercise and defend their right to vote, both in this and other elections. For, before this right can be codified, it has to be recognized as important by those who can exercise this right.

The Nation's Katrina Vanden Heuvel Congratulates FairVote's 'Sweet Victories'

Fri, 08 Jan 2010 12:47:23 -0800

FairVote got a very flattering shout-out from Nation editor Katrina Vanden Heuvel in her blog today. Touting the recent reform victories in Rhode Island this week, as the state legislature overrode two vetoes of FairVote-initiated measures, Vanden Heuvel writes:

One group that deserves far more attention for the work it has done day in, day out, for nearly twenty years, is FairVote, a nonprofit, nonpartisan organization that makes real the mantra "respect, include, and empower every voice and every vote." . . . Kudos to FairVote on its continued success--I'm confident many more victories lie ahead.

We think she's right, and we're really glad that there are those who recognize that for real change to occur in our political system, we have to rethink the mechanisms that make it function.

Ocean State Un-Vetoes Electoral Reform

Thu, 07 Jan 2010 10:18:02 -0800

This past Tuesday, FairVote and its friends in America's most wee state were very happy, as the state legislature reversed the vetoes of two bills close to our hearts: pre-registration and U.S. Senate vacancies. Here's a piece from our official press release on the big event:

The Rhode Island State Senate and House of Representatives yesterday voted to override two gubernatorial vetoes of landmark electoral reform legislation, thereby enacting FairVote-initiated measures allowing voter pre-registration for 16 and 17-year-olds and mandating popular elections to fill all U.S. Senate vacancies.

FairVote, a nonpartisan think tank devoted to improving American elections, has been a leader in the drive to bring these reforms to Rhode Island through the efforts of its state affiliate, FairVote Rhode Island. In 2006, FairVote was the key catalyst for the advance registration legislation, working closely with prime sponsors Rep. Edwin Pacheco and Sen. Rhoda Perry. The bill (S 0085/H 5005) will allow 16 and 17-year-old Rhode Island citizens to "pre-register" to vote, automatically adding them to the rolls for the first election for which they are eligible. Starting in 2006, this measure easily passed both houses of the Rhode Island legislature four times with bipartisan support, only to inexplicably face Gov. Donald Carcieri's veto pen each time.

FairVote this year helped usher in legislation introduced by Rep. Christopher Fierro and Sen. Paul Jabour mandating special elections for the filling of vacated U.S. Senate seats (S 0201/H 5094), the need for which became alarmingly apparent in the wake of controversies and scandals surrounding governor-appointed senators after the 2008 election. Rhode Island's own David Segal, a FairVote analyst, testified in 2009 before the U.S. Senate on behalf of a constitutional amendment mandating Senate vacancy elections backed by leading Republicans and Democrats, including Sens. John McCain (R-AZ) and Russ Feingold (D-WI), while Connecticut's Republican governor Jodi Rell signed legislation passed out of the Democratically-controlled legislature last year, though Gov. Carcieri rejected a similar bill that had once again passed overwhelmingly with bipartisan support.

Both vetoes were easily overturned by both houses of the Rhode Island legislature Tuesday.

"We are proud to have helped lay the groundwork for today's important victories," said Rob Richie, elections expert and FairVote executive director. "With the good will and strong advocacy provided over the years by FairVote and like-minded reformers-such as the leadership of both houses, Reps. Edwin Pacheco and Christopher Fierro, Sens. Paul Jabour and Rhoda Perry, and Secretary of State A. Ralph Mollis-Rhode Island voters will now have expanded access for its newest voters and the final word about who represents them in the U.S. Senate. This is a good day for democracy in Rhode Island - and the nation."

Read more here. Big congrats to all who helped make this happen.

Rhode Island Enacts FairVote-Backed Electoral Reforms

Wed, 06 Jan 2010 10:58:44 -0800

Rhode Island's state legislature on January 5 voted by overwhelming margins to override gubernatorial vetoes of measures establishing voter pre-registration for 16 and 17-year-olds and popular elections to fill all U.S. Senate vacancies. FairVote Rhode Island was the catalyst for these important reform victories.

Commentary on Senate vacancies: David Segal in New York Times & Baltimore Sun, Rob Richie in Miami Herald
Segal's 2009 congressional testimony on behalf of FairVote
FairVote Rhode Island homepage
Innovative Analysis - Get 'Em (Ready to Vote) While They're Young
FairVote News Release

R.I. Gov. Thinks 0.0001% Turnout for U.S. Senate Elections is Just Fine

Tue, 10 Nov 2009 15:29:17 -0800

Shocking no one but disappointing many, Rhode Island's Gov. Carcieri vetoed legislation that would have mandated a special election in the case of a vacancy in one of the state's U.S. Senate seats.

Carcieri's official explanation essentially rests on the idea that gubernatorial appointments to fill Senate vacancies remain the norm in most other states. (One wonders whether if it were the norm for other states to jump off the Empire State Building, well, never mind). But with the exception of Massachusetts, recent appointment-based scandals, most notably that of Illinois' former governor Rod Blagojevich, have spurred a movement within many states to change to special elections over appointments, as well as a proposed constitutional amendment. Appointment may be the norm, but that's not because it's a good idea.

As with his unfortunate veto of pre-registration legislation (over which a veto override campaign is being waged), Caricieri has also backed up his decision by vague worries over administration. With pre-registration, his first veto was explained by his reticence to take any action regarding voter registration while the voter rolls were being "cleaned" (and once cleaned, he vetoed the legislation again - his consistency of thought is no better on the National Popular Vote plan, either). With the Senate vacancy bill, Carcieri raised concerns that the voters would be 'confused' and that turnout would be low with a shorter campaign season.

This is an odd bit of logic. Perhaps we have grown accustomed to endless campaigns that span years, but there is nothing preventing voters from getting a good understanding of potential special election candidates - decisions are made by those who show up, and it's not the governor's place to decide what constitutes a "enough" evaluation on the part of interested voters. And as for his concerns about turnout, no matter how many people show up to vote in a special election, the turnout would be vastly higher than it is without a special election - a U.S. Senator elected by a constituency of exactly one person (technically, it would be turnout of 0.0001% of the voting eligible population). I'd say that's pretty low.

Carcieri also cited Massachusetts' recent move to rescind its own special election law in the wake of the death of Sen. Ted Kennedy, but Massachusetts had it right the first time. Its move back to gubernatorial appointments was a purely partisan calculation to keep the Senate flush with voting Democrats for the still-raging health care battle. Carcieri had the chance to advance democracy, and the Massachusetts state government has to chance to hold on to progress already made. Both chose to step backward. For Carcieri, it's become something of a habit.

At bottom, Carcieri is a Republican in a heavily-Democratic state. Were a vacancy to open up in Rhode Island, the GOP governor would have a chance to appoint a GOP Senator, rather than take the chance of a legitimate election. The governor of Rhode Island, it seems, would rather not trust the very people who elected him to office to also choose a U.S. Senator should Rhode Island suddenly find it needs one.

They Didn't Stop to Think if They Should

Thu, 10 Dec 2009 21:47:19 -0800

With great power comes great responsibility, as the movie Spider-Man teaches us. Democrats in Massachusetts should heed this lesson. The Boston Globe is reporting today that there apparently exists narrow margins in both houses of the state legislature to give Gov. Deval Patrick the power to appoint an interim U.S. Senator to replace the late Sen. Ted Kennedy until a special election is held. This would in effect be a reversal of the law passed in 2004 that mandated a special election for Senate vacancies, removing appointment power from the governor. It was a change that was fairer, more democratic, and respected the will of the people of Massachusetts.

It was also a blatantly partisan move, as Democrats were trying to ensure that if Sen. John Kerry was elected president, Republican governor Mitt Romney would not get to choose his successor. But despite its less-than-noble intentions, the substance was spot-on: no U.S. Senator should serve without being elected by the people of their state. (See our press release on this topic.)

But now that there is a Democrat in the governor's office, the legislature is doubling back. Less afraid of a Republican win in a special election, some in Massachusetts simply worry that the state will lose national influence as it waits to elect the second half of its Senate delegation. But there would be nothing wrong with changing the law so that the election happens earlier (which is now mandated to be held off for an astounding 145 days), or implementing instant runoff voting to wrap the primary and general election into one, saving even more time (and money), and ensuring majority consensus.

Unfortunately, it's looking more and more like Massachusetts lawmakers are going to remake the law, just 'cause they can. And who knows--if the Bay State happens to have another GOP governor when Sen. Kerry decides to retire, maybe they'll change the rules again. Having the power to do something does not equal having a good reason to do so. Or, to quote another blockbuster movie, we look to Jeff Goldblum's character in Jurassic Park, who warns us:

. . . Your scientists were so preoccupied with whether or not they could, they didn't stop to think if they should!

I'm sure there's an undemocratic-law-as-Tyrannosaurus-Rex metaphor here, but it escapes me.

Florida Senate vacancy process a reminder of messiness of appointments

Thu, 10 Dec 2009 21:35:24 -0800

As the nation tumbles into a debate about whether the Massachusetts legislature should reverse its overwhelming votes of 2004 and 2006 that approved and then upheldf having special elections to fill U.S. vacanices, Florida should remind us of just how messy appointments can be.

Over at Daily Kos, Steve Singise writes that Gov. Charlie Crist is having trouble finding the right person to serve the remaining 17 months of Mel Martinez' term. With Crist running for the office himself next year, finding just the right person who will be competent, but not decide to run as well, isn't easy - particuarly when part of your calculation is seeing if your appointment will help you politically.

Appointments aren't the answer - elections are, as our founders well knew when requiring elections for U.S. House vacancies. Looking at Massachusetts and Sen. Ted Kennedy's long illness -- and also to West Virginia, where Sen. Robert Byrd has largely missed 2009 -- it was no surprise that his seat would become vacant. The special election law should be constructed such that a sitting Senator can announce when he or she is going to step, have the election season start, and then have a relatively seamless transition with the new person being seated very soon after the seat becomes vacant. But let's not cheat democracy.

Sen. Ted Kennedy: A loss for the nation should not mean a loss for democracy

Thu, 10 Dec 2009 21:30:20 -0800

The remarkable outpouring of condolences for Sen. Ted Kennedy in the wake of his death last night is remarkable to see. While an unabashed liberal Democrat, Sen. Kennedy came from an older era when Members of Congress actually could get along with one another -- and reach across the aisle to get the nation's business done.

Today's Senate is one of hyperpartisanship, however, with every bill and every public pronouncement providing angles for political advantage or loss, as the tiger of the 24-hour news cycle hungrily waits to be fed with the latest partisan red meat.

In this climate, I was distressed to see Thursday's letter from Sen. Kennedy's office urging the Massachusetts state legislature to amend its 2004 law requiring special elections for U.S. Senate vacancies and instead return to an appointment for "only" five or six months until the special election could take place.

This change may sound benign, but it's inconceivable that Sen. Kennedy's office would have made this request if the state's governor were a Republican, as had been the case when the special election law was passed in 2004 and when a Republican-sponsored measure to allow temporary appointments was handily defeated in 2006. It's a blatantly partisan request - one I'm sure Kennedy's camp feels justified in making due to battles in the U.S. Senate and the out-of-control use of the 60-vote filibuster, but still one that further drags democracy down into the stench of partisan gaming of the system. FairVote issued a news release criticizing the proposal, with hard data showing just how problematic appointments are, and we were gratified to see our arguments picked up by the likes of the New York Times editorial page.

In 2005, Sen. Kennedy in fact gave a strong speech in support of preserving the integrity of the process. His speech ironically was given in opposition to weakening of the filibuster rule - a rule that FairVote criticized as undemocratic in a 2005 report and continues to criticize today. In that speech, however, Sen. Kennedy was absolutely right to say, "The vast majority of Americans’ share our commitment to basic fairness. They agree that there must be fair rules, that we should not unilaterally abandon or break those rules in the middle of the game."

It's time to stand up for democracy. Too many major party leaders treat rules governing the electoral process as mere pawns in their drive to gain advantage over their opposition. They act with disdain toward voters, seemingly forgetting that "basic fairness" must be grounded in a democratic process that always puts the voters first.

As the nation honors Sen. Kennedy, I trust his former advisers will drop this effort to revise Massachusetts law in pursuit of short-term partisan advantage. Some of those close to Kennedy seem to know they have to "cover their tracks." For example, from May 2005 to this month, Sen. Kennedy's speech in defense of the filibuster was featured on www.tedkennedy.com, as can be determined through a visit to the Internet archive and Google's Internet cache. Now it is gone, as the Senator's arguments are inconvenient in light of this latest partisan maneuver.

Enough. Long-term, standing up for democracy is better politics than seeking short-term advantage through gerrymandering the rules. First, Members of Congress should rally around Russ Feingold and John MccCain's latest collaborative effort to improve democracy through requiring all states to fill Senate vacancies by election, just as been required of U.S. House vacancies since our nation's founding.

Second, to take on the real problem behind the controversy over how to fill Sen. Kennedy's vacancy, Senators should change current filibuster rules. Senators should pledge to revise them immediately after the 2010 elections so that Senators in the minority can only delay votes in order to encourage deliberation, not block them permanently -- and then threaten to change the filibuster rules sooner if the minority is only using filibusters to require all meaningful legislation to have the votes of a super-majority of 60 Senators rather than a simple majority of 51 Senators.

As for Massachusetts, let this brazenly partisan effort go and instead let the voters decide who is fit to step into Sen. Kennedy's very big shoes.