By email, I've been asked if I think there is anything valuable a federal body like the EAC can do. My response:
There are useful things it could do. There are useful things we can hire anybody to do. Just finding useful things to do is not the point, the objective is to get real election integrity, which means focusing
on getting the person installed in office that the voters actually voted for (as well as making sure eligible people can vote).
AT LEAST DO NO HARM
We need to be more careful about that old physician's adage, "at least, do no harm." And the first thing we need to be concerned about is harm to the foundation of our democracy, with harm to the election integrity process coming next.
THE REAL DANGER: UNDER THE EXECUTIVE BRANCH, THE EAC HAS THE POWER TO
MAKE POLICY
One thing to do might be to put the EAC under the legislative branch instead of the executive branch. That way, it can make recommendations but can't make policy. That was originally what HAVA was supposed to
do but gee, somehow it ended up under the Executive Branch instead. At the time, hardly anybody realized the significance of that and after all, they were going to sunset the Commission in 2005 anyway.
Except that now they're not going to sunset it after all, they're making it permanent, in the unintended form, with POLICY MAKING /CHANGING authority, and all this is where it is least scrutinized and requires the fewest people, under the Executive Branch.
By extending the EAC in its present form -- simply by allowing the EAC to continue under the executive branch, the Holt Bill grants it the ability to MAKE AND CHANGE POLICY. That is very dangerous, and even if the specific policies in the beginning are okay.
REMEDIES?
I dunno. If there is a federal authority, consider setting it up as a 50-state representational body, in which case the policy making powers have more checks and balances. Or it can be set up as a recommender of
policy, by putting it under the legislative body.
DANGER: HOLT BILL INADVERTENTLY AUTHORIZES A FUNDAMENTAL SHIFT IN POWER
That's what people are referring to when they screech like scalded cats about extending the EAC.
WHAT MIGHT A FEDERAL BODY DO THAT'S HELPFUL?
CIVIL RIGHTS
Well, one thing federal bodies do well is enact civil rights legislation. But that's best done by congress and the courts, not by a policymaking body under the president, who can giveth -- and taketh away -- quicker and with fewer people involved and fewer remedies than congress or the courts.
RECOMMENDATIONS FOR MINIMUM STANDARDS
Another thing federal bodies can do is set recommendations for standards, but if you stick that in as a policymaking power and put it under the president, you open it up for all kinds of game-playing.
And by the way, when you set federal standards, it's important to explicitly preserve states rights to exceed those standards. Saying "this is how it shall be done" as the Holt Bill does opens it up for abuse. Instead it should say "here are the minimum standards for how it shall be done."
If states have been MORE responsive to their citizenry than the federal requirements, this hog-ties the states ability to protect their citizens. Especially coming from a body appointed by the Executive Branch, that's very dangerous.
Imagine, for example, that the state of Ohio under its new secretary of state develops auditing standards that are citizen-participatory and actually designed to catch fraud and make sure the right person is put in office. Now imagine that a political party needs the state of Ohio in a federal election. Now imagine that the president of the United States is the candidate they want to return to office, and they need Ohio to do it, and the president, through his ability to appoint the EAC members, can pick a couple people who will agree to hog-tie Ohio's citizen oversight and auditing process.
Very dangerous.
A TIP ON HOW TO USE "IMPROVEMENTS" TO FURTHER CORRUPT THE PROCESS
And for one more example of how putting all this stuff under a presidentially-appointed body could corrupt elections further, let's look at the seemingly benign bit about being able to send an observer in to watch the testing -- a nice thing to have -- can be used against us.
Suppose the EAC chooses someone like Brit Williams as the observer. Some cockamamy new voting system with hidden backdoors gets put through the testing labs, and just as he has over and over before, Brit Williams misses the problems entirely. Citizens find out what's really going on and they complain. Well, we'll be told, the EAC appointed an observer who reported that the testing was thorough and he found no problems. Legislators get persuaded by that kind of stuff.
BOTTOM LINE
The EAC doesn't belong under the Executive Branch where it has policymaking authority. Civil rights policy needs to be enacted by legislation and the courts, not by the EAC.
And make no mistake about it: Voting is a civil right.
There are useful things it could do. There are useful things we can hire anybody to do. Just finding useful things to do is not the point, the objective is to get real election integrity, which means focusing
on getting the person installed in office that the voters actually voted for (as well as making sure eligible people can vote).
AT LEAST DO NO HARM
We need to be more careful about that old physician's adage, "at least, do no harm." And the first thing we need to be concerned about is harm to the foundation of our democracy, with harm to the election integrity process coming next.
THE REAL DANGER: UNDER THE EXECUTIVE BRANCH, THE EAC HAS THE POWER TO
MAKE POLICY
One thing to do might be to put the EAC under the legislative branch instead of the executive branch. That way, it can make recommendations but can't make policy. That was originally what HAVA was supposed to
do but gee, somehow it ended up under the Executive Branch instead. At the time, hardly anybody realized the significance of that and after all, they were going to sunset the Commission in 2005 anyway.
Except that now they're not going to sunset it after all, they're making it permanent, in the unintended form, with POLICY MAKING /CHANGING authority, and all this is where it is least scrutinized and requires the fewest people, under the Executive Branch.
By extending the EAC in its present form -- simply by allowing the EAC to continue under the executive branch, the Holt Bill grants it the ability to MAKE AND CHANGE POLICY. That is very dangerous, and even if the specific policies in the beginning are okay.
REMEDIES?
I dunno. If there is a federal authority, consider setting it up as a 50-state representational body, in which case the policy making powers have more checks and balances. Or it can be set up as a recommender of
policy, by putting it under the legislative body.
DANGER: HOLT BILL INADVERTENTLY AUTHORIZES A FUNDAMENTAL SHIFT IN POWER
That's what people are referring to when they screech like scalded cats about extending the EAC.
WHAT MIGHT A FEDERAL BODY DO THAT'S HELPFUL?
CIVIL RIGHTS
Well, one thing federal bodies do well is enact civil rights legislation. But that's best done by congress and the courts, not by a policymaking body under the president, who can giveth -- and taketh away -- quicker and with fewer people involved and fewer remedies than congress or the courts.
RECOMMENDATIONS FOR MINIMUM STANDARDS
Another thing federal bodies can do is set recommendations for standards, but if you stick that in as a policymaking power and put it under the president, you open it up for all kinds of game-playing.
And by the way, when you set federal standards, it's important to explicitly preserve states rights to exceed those standards. Saying "this is how it shall be done" as the Holt Bill does opens it up for abuse. Instead it should say "here are the minimum standards for how it shall be done."
If states have been MORE responsive to their citizenry than the federal requirements, this hog-ties the states ability to protect their citizens. Especially coming from a body appointed by the Executive Branch, that's very dangerous.
Imagine, for example, that the state of Ohio under its new secretary of state develops auditing standards that are citizen-participatory and actually designed to catch fraud and make sure the right person is put in office. Now imagine that a political party needs the state of Ohio in a federal election. Now imagine that the president of the United States is the candidate they want to return to office, and they need Ohio to do it, and the president, through his ability to appoint the EAC members, can pick a couple people who will agree to hog-tie Ohio's citizen oversight and auditing process.
Very dangerous.
A TIP ON HOW TO USE "IMPROVEMENTS" TO FURTHER CORRUPT THE PROCESS
And for one more example of how putting all this stuff under a presidentially-appointed body could corrupt elections further, let's look at the seemingly benign bit about being able to send an observer in to watch the testing -- a nice thing to have -- can be used against us.
Suppose the EAC chooses someone like Brit Williams as the observer. Some cockamamy new voting system with hidden backdoors gets put through the testing labs, and just as he has over and over before, Brit Williams misses the problems entirely. Citizens find out what's really going on and they complain. Well, we'll be told, the EAC appointed an observer who reported that the testing was thorough and he found no problems. Legislators get persuaded by that kind of stuff.
BOTTOM LINE
The EAC doesn't belong under the Executive Branch where it has policymaking authority. Civil rights policy needs to be enacted by legislation and the courts, not by the EAC.
And make no mistake about it: Voting is a civil right.
