Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Reforming Federal Election Laws

Timothy Sherratt


November 11, 2011
by Timothy Sherratt

Florida’s voter registration law, passed earlier this year, threatens voter registration drives with a host of civil penalties for missing deadlines to turn in names, on the pretext of ensuring the integrity of the vote in close races. Whether or not it survives a legal challenge, the statute ought to mark the beginning of a campaign for a new federal law to make registration automatic for all citizens. Congress has ample constitutional authority for enacting such a law under the Fourteenth Amendment’s Equal Protection clause and the enforcement power that accompanies it.

Separate registration denies equal protection for the most fundamental of political rights. Automatic registration would enlarge the federal commitment to ensuring that each citizen’s voice is heard in the political process. And it would raise electoral turnout substantially.

My proposed expansion of federal power over voter registration could be balanced by reducing federal power over redistricting—in one key respect. The 1967 law prohibiting states from replacing single-member House districts with at-large elections should be lifted.  Southern incumbents enacted the provision, fearful that federal courts might throw out their redistricting plans and make them run in statewide at-large elections where their re-election would have been less certain.

The ban on statewide at-large elections also fosters, among other things, the farce of so-called “majority-minority” districts, whereby voters are clustered by race or some other suspect classification to increase the probability that members of the said classification will be elected.

A better way to ensure adequate minority representation is to enable any group of voters with common interests to withdraw their support from major parties in favor of viable alternative parties. 

Those viable alternatives require some form of at-large districts and proportional representation so that they could win seats in proportion to their share of the vote. The results would be unquestionably fairer, and they would give many a minority voice a megaphone. In a state like Massachusetts, for example, now in the throes of redistricting to make up for the loss of a Congressional district, a statewide at-large election would prevent incumbents from picking their electors and restore the democratic process whereby voters do the picking.

The immediate result here in Massachusetts would be some Republican representation for the not inconsiderable percentage of voters who cast ballots regularly for the G.O.P. The longer-term result, three or four elections from now, would be movement beyond the two-party system to elect, conceivably, representatives from Green or Libertarian parties as well. At a further remove, other parties as yet unrealized may gain a seat at the table.

Let’s hold onto that metaphor for representative fairness. Under the present system, “third” parties are often stigmatized as spoilers who rob the major parties of “their” votes. But under proportional representation organized minorities win seats. Thus they have something of value to trade and are no longer obliged to scramble around underneath the metaphorical table for the crumbs their lords and masters let fall.

Coalition governments require cross-partisan co-operation, to the chagrin of some. A stronger objection to proportional representation in the U.S. is that no single party would easily capture an Electoral College majority in a presidential election. Here, too, the concern may be exaggerated. If presidential elections are not resolved in the Electoral College they go to the House of Representatives—as the framers seem to have expected most would. If Congress were to choose among the final candidates under a system of proportional representation, the result is likely to be a President who reflects the legislative coalitions that will help him to govern. Now there’s a radical idea…

Automatic registration commends itself for the most basic of reasons—the right to political equality. At-large redistricting and proportional representation could give multiple perspectives a share in governing. Both measures would make representative government more representative.

Enthusiasts for democracy occasionally imagine that cooperation can replace the struggle for power. This is an illusion. However, as Governor Scott and the Florida legislature have demonstrated ominously, sometimes American democracy has its hands full merely aiming for justice. 

—Timothy Sherratt is a professor of Political Science at Gordon College in Wenham, MA.



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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”