Message to the secretaries of state: 1679 and 2006

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I spoke on Sunday to a meeting of the National Association of Secretaries of State. Here is a copy of the notes from which I spoke:

We are supposed to be looking here at the elections of November 2006, but I would like to supply a little historical perspective. I have been writing a book on the Glorious Revolution of 1688 — 89 and have been studying the elections for the House of Commons in the years before that. In 1679, England developed the equivalent of two-party politics, between Tories who supported the court of King Charles II and Whigs who opposed it, and elections for the House of Commons were fiercely contested. The franchise was limited, but in some constituencies was pretty wide: It varied from the owners of four properties in the borough of Old Sarum to 25,000 freemen in the City of Westminster, where Parliament sat. Voting was in person, supervised by the county sheriffs. Here, from my manuscript, are the accounts of some of the elections from the History of Parliament Trust's The House of Commons 1660 — 1690:

In Norfolk, a county with 6,000 voters, the leading landowner Lord Yarmouth and the sheriff were backers of the Court and prevailed in the February election. But the House of Commons declared that void in April, and in the May byelection the Whig John Hobart came away first in the poll. In August both parties contested both seats. "Yarmouth's son got hold of the writ and held it back in order to weary the Whigs with waiting, and then surprise them with a snap poll. When the election was at last held, the sheriff sought to obstruct the Whigs by attempting to enforce upon their voters the oath that they had attended church and received the sacrament within the last year. He justified this by claiming that they were mostly 'fanatics,' but when Hobart at once protested he was forced to desist."[1] One of the Tory candidates was not there: "On the day before the poll Catelyn's nerve broke, and he withdrew himself from the city because 'the rabble did asperse him with being popishly affected.'"[2] The Whigs won both seats.

In Buckinghamshire the sheriff was loyal to the Court, but the leading local landowner John Hampden, grandson of the great parliamentary opponent of Charles I, was a Whig. Supporting him also was the Duke of Buckingham, a mercurial figure whose oscillations from one political faction to another are too lengthy to recount; he was angry that his candidates had been rejected by the borough of Buckingham. "In the spring the Hampdens had been ready to abandon the contest if the poll was to be held at the town of Buckingham, a Court stronghold. In fact it had been at Aylesbury, and the Whigs had been victorious, but now in order to give the Tories an advantage the sheriff transferred the election to Buckingham at only one day's notice. But the Whigs were not easily disheartened, and the presence of the Duke of Buckingham and Lord Paget greatly encouraged them. In a caravan, with carts carrying those freeholders who had no mounts, they crossed the entire length of the county to a rendezvous at Winslow. They refused to spend the night at Buckingham itself; since the townsmen had sold their votes not a penny was to be spent at such an infamous and venal place. Making an early start, so as to anticipate any further tricks by the sheriff, they poured into the town. The Court supporters saw that the sheriff's stratagem had failed and were unable to challenge a poll. To cries of 'No Timber Temple! No Traitors son! No Pensioner!' Wharton and Hampden were once again returned. This result was for some reason particularly displeasing to the King. When Buckingham came up to Court he declined to see him, 'and said 'twas because he had stood up for two men for Bucks who would cut his throat.' "[3]

Westminster had the largest electorate in England, 25,000. Sir William Waller and Sir Philip Matthews, unsuccessful Whig candidates in February, ran again. "On September 10 it was reported: 'Sir William Waller had much the greater appearance, and next to him [incumbent Sir William] Pulteney, who promised to join with Sir William Waller, but when he came into the field excused himself; and, the poll being desired, two o'clock was appointed. But they could not agree until almost night, Waller demanding that each should have a particular clerk, which after much dispute was agreed on, and the poll began this morning at eight o'clock. Most of Waller's men gave their voices for none but him, and are most of them of St. Martin's le Grand and the new market, and servants of my Lord Clare [Gilbert Holles]. 'Tis thought he will carry it because his men for the most part poll singly.' The poll continued for eight days, and about 12,000 people voted. Pulteney was returned with [Tory Francis] Wythens, who carried it over Waller by 150 votes, after the King's servants were brought over from Windsor to vote for him.

Intimidation, manipulation, violence, selective qualification of voters: It was far from a pure electoral democracy.

Flash forward to our times. Here are accounts of what has happened in Milwaukee County, Wis., in recent elections.

Early on election morning, 2004, the sons of state Sen. Gwen Moore (who would be elected to Congress that day) and Acting Mayor Marvin Pratt slashed the tires of some 25 buses leased by the Milwaukee County Republican Party to take voters to the polls on Election Day. A joint task force in Wisconsin later found "clear evidence of fraud in the November election in Milwaukee," with more than 200 felon voters, more than 100 double voters, and thousands more ballots recorded than voters recorded as having voted in the city. Milwaukee has some history here: In 2000 a Democratic campaign volunteer distributed free cigarettes to encourage people to vote under Wisconsin's Election Day registration law.

The American Center for Voting Rights (run, it should be noted, by people with Republican backgrounds) found other abuses, some by Republicans, more by Democrats, around the country in 2004:

— violence targeting Republican campaign offices in Florida, with one victim getting a broken arm.

— misleading telephone calls by Democratic operatives in Ohio.

— a volunteer for the National Association for the Advancement of Colored People paying crack cocaine for fraudulent votes in Ohio.

Now it's true that we have come a long way since 1679. Voter intimidation, selective enforcement, and outright violence were the rule, not the exception, in England in 1679. They were the exception, not the rule, in Milwaukee County and the United States in 2004.

Nevertheless, the picture is disturbing. Even as the states have revised their laws to make registration and voting easier, there seems to be an increase in vote fraud in this country — at least to this observer of American elections since 1962. Until recently, I had not been of this view; I have been moved to change my mind by the kind of incidents mentioned above and by the report of the American Center for Voting Rights as well as John Fund's book Stealing Elections: How Voter Fraud Threatens Our Democracy. We have certainly not gone back entirely to the old days of urban political machines of the 1940s and before, and I should emphasize that there were Republican as well as Democratic political machines that engaged in shady tactics and worse: It was Republican Big Bill Thompson who as mayor of Chicago was an ally of Al Capone. But I do think the picture is disturbing. The ethic of fair elections, for at least some significant number of players, seems to be weaker than it was only a few years ago. Perhaps that is a reflection of the polarization of our politics. But I think it is a trend, and a disturbing one.

There are two other developments I find disturbing. One is the fact that large numbers of political players are charging that the basic requirement of showing voter identification at the polls is a form of undue intimidation. I think this is an astounding and indefensible argument. We have to show identification to cash a check or board an airliner. Identification is easily available to any American — and almost all of us carry official identifying cards on us at all times. To equate the requirement that identification be shown with the violence and intimidation visited on black Americans in the South up to and including the 1960s is, in my mind, to belittle and disparage the courage and bravery of those Americans, most of them black but some of them white, who literally risked their lives in order to see that all Americans would have the right to vote. Their efforts were successful, and the Voting Rights Act of 1965 quickly proved to be the most effective civil rights legislation the federal government ever passed.

The other disturbing development is the proposal that election rules should be federalized, perhaps under the current advisory Election Assistance Commission. This raises severe practical problems. The federal government has found it difficult to establish uniform computer systems for individual federal agencies; I understand that a long-term program to do that in the Internal Revenue Service had to be abandoned. Establishing computer-compatible systems for the 50 states and District of Columbia would presumably be much harder. Second, and more important, federalizing election rules would allow nationwide manipulation that could affect election results. After the elections of 1679 and 1681, King Charles II and his successor, James II, sought to obtain more favorable results in House of Commons elections by appointing new sheriffs and lord lieutenants in counties, by adjusting the terms of the franchise in counties and boroughs, and by forcing new charters on the boroughs, which altered the electorate in their favor. These efforts were in large part successful. An agency federalizing election law, governed perhaps by appointees given recess appointments, could change the terms and conditions of elections in favor of one party. Better, I think, to have 50 sources of authority, regulated and limited to some extent by federal law but operating independently and accountable directly or indirectly to 50 different electorates.