How to Make It Easy to Vote and Tough to Cheat
Former Secretary of State James A. Baker, III observed that the winner of an election can always be persuaded they won in a fair and honest election. The challenge, Secretary Baker said, is to have an election (especially a very close election) in which the losing candidate (and that candidates’ supporters) believe the election to have been fair and honest even though they did not win.
Secretary Baker co-chaired the Commission on Federal Election Reform with President Jimmy Carter. After considering the testimony of many experts and election officials from throughout the nation and across the political spectrum the Carter-Baker commission issued its highly praised report in 2005. The Carter-Baker Commission addressed the “crisis of confidence” many Americans had in our nations’ election system after the 2000 presidential election and the Bush v. Gore litigation. The Carter-Baker Commission made a series of specific recommendations to increase public confidence in American elections.2
The bi-partisan Commission identified five central principles necessary for fair and honest elections.
- Current and accurate voter rolls.
- Requiring voters to provide photo ID to validate the persons eligibility to cast a ballot.
- Measures to achieve the greatest level of confidence and opportunity for all eligible voters to cast a ballot.
- Voting machines that tabulate ballots accurately and can be verified with a paper record.
- Fair, impartial election administration with transparency and provided observers a meaningful opportunity to view all aspects of the conduct of the election.
Among the specific recommendations to combat mail-in vote fraud and voter registration fraud was a prohibition “ballot harvesting.” The Commission recommended “[a]ll states should prohibit a person from handling absentee ballots other than the voter, an acknowledged family member, the U.S. Postal service … or election officials. The practice in some states of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated.”
Indiana adopted the Carter-Barker Commission’s recommendation and required voters to identify themselves with a photo ID that was provided to all eligible voters for free. Democrat activists and partisan operatives sued to have Indiana’s photo ID law declared unconstitutional. The Supreme Court relied heavily upon the Carter-Baker Report in concluding that Indiana was justified in adopting a photo ID law as a means to prevent vote fraud and safeguard voters’ confidence in the election. Crawford v. Marion County Elec. Bd. 553 U.S. 181 (2008). The Supreme Court wrote, “There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process.” Following Crawford the federal Courts of Appeal have upheld similar photo ID laws and protections against vote fraud. Lee v. Virginia, 843 F.3d 592 (4th Cir, 2016) is an example. Hillary Clinton’s attorney Marc Ellis unsuccessfully tried to overturn Virginia’s voter ID law in the 2016 presidential election. Relying upon the Carter-Baker report and the Supreme Court’s decision in Crawford, the Fourth Circuit unanimously upheld Virginia’s voter ID law.
In the 2020 presidential election, a calculated strategy was mounted to rig the election by changing the rules for the conduct of the election. Democrats bragged about this coordinated assault on our election process in a recent Times magazine article. A centerpiece of this effort was changing the rules governing the conduct of the election with lawsuits filed before friendly judges and state and local election officials changing the rules under the pretext of the COVID‑19 virus. Excluding observers from monitoring the conduct of the election, mailing out a massive number of ballots that could not be verified, and ballot harvesting by political operatives were only some of the tactics that undermined public confidence in the outcome. The federal and state constitution provide that the state legislatures are to establish the laws governing the conduct of elections. These election laws cannot be rewritten by judges or executive branch officials. Furthermore, arbitrarily changing election rules to favor only certain partisan precincts such as the Democrat Wayne County in Michigan violates the Constitution’s guarantee of equal protection as explained by the Supreme Court in Bush v. Gore.
The Democrat House has now passed H.R. 1 which is a highly-partisan election bill that (if passed by the Senate) would institutionalize what the Democrats sought to do with litigation and arbitrary orders by state and local election officials during the 2020 election. H.R. 1 is the antithesis of the bipartisan Carter-Barker Commission’s recommendations. H.R. 1 would, among its other evils, eliminate voter ID, prevent the states from removing dead and fraudulent names from the voter registration rolls, require mail-in voting and allow ballot harvesting. These and the other provisions of H.R. 1 promote election fraud, would allow future elections to be rigged and destroy any basis for Americans’ confidence in the outcome of our elections. The constitutional infirmities of H.R. 1 are legion, and it will hopefully not pass the Senate.
Every American, of whatever political party, should be vigilant to preserve and protect the integrity of our elections. If elections can be rigged, stolen and manipulated, then we will have lost our nation and it will be very difficult, or impossible, to regain.
1 Thor Hearne is the eldest son of Donna Hearne. Thor was President George W. Bush’s national election counsel in 2004, served as legal counsel to Secretary of State Baker on the Carter-Baker Commission, represented the leadership of the House and Senate in the Supreme Court in Crawford, successfully represented the Commonwealth of Virginia defending the state’s voter ID law in Lee v. Virginia and represented President Donald J. Trump and Michigan voters in election litigation during the 2020 presidential election.
2 “Building Confidence in U.S. Elections,” Center for Democracy and Election Manage-ment, September 2005, https://www.foxnews.com/projects/pdf/election_reform_report.pdf, accessed March 14, 2021.