President’s Corner

Vote as If Your Vote Depended on It

Voting was once so uncontroversial. Everyone was supposed to vote. “Voting is not just a right. It’s a patriotic duty,” Harry Truman encouraged the public in a year when he was not on the ballot.

That was when the process was harder. Much of the nation didn’t have voting machines. Once installed, voting machines still led to long lines. When Frank Rizzo and Wilson Goode dueled, their stalwarts waited up to three hours to vote after queuing up at their polling places. Like most assemblies of moving parts, voting machines could break down.

But voting was good. When the Catholic countries of South America and Europe, holding elections on the Sabbath that American Protestants shunned, would have 80 percent turnout or greater, American commentators were appropriately shamed.

In Delaware, where the League of Women Voters was persistent and persuasive, the legislature was finally cajoled into offering full primaries beginning in 1978. After several cycles of heterodoxical candidates pestered and sometimes defeated party favorites, a Democratic legislature voted in 1984 to neuter primaries. Pete du Pont vetoed the bill, quoting Thomas Jefferson: “I know no safe depository of the ultimate powers of society but the people themselves. If we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.”

Jefferson’s advice is taking a beating these days. Part of the electorate treats informed discretion as if it were a social disease. Their tribunes lie awake nights, conjuring ways to prevent other portions of the electorate from voting. Many of their candidates say any election they lose will be illegitimate. Invidious allies threaten poll workers, hack registration records, interfere with the counting. Bow-tied instigators bury election boards in a barrage of bogus FOIA requests or litigation. Our international foes have mobilized a long-term strategic assault on American elections. Their domestic allies enact legislation to criminalize registration drives.

Delaware has avoided the worst — so far. Here, elections are conducted under bipartisan auspices, from state and county administrators to polling-place checkers. Votes are tallied on secure, auditable devices. The lifetime ban on voting was lifted for most felons 20 years ago. Prison gerrymandering ended this year. When Joe Farnan and Charlie Oberly prosecuted election crimes, the guilty pleas came from well-connected party leaders, not perplexed plebeians. Return Day, where victor and defeated together traverse Georgetown in carriages, bookends the process.

The Delaware Way doesn’t come naturally. In one 1960s polling place, city Democratic chairman Leo Marshall challenged a poll-watcher named Norm Veasey to step outside for a fight. The future chief justice glared at Leo the Point, who backed off. (When Democratic mayors learned a decade later to ignore Marshall, city government prospered.)

Smugness is never in order. Where there is no rebuilding, there is erosion. Election administration in Delaware and the nation needs improvements. Here, without polemics or punditry, is a punch list.

Ranked-Choice Voting: A voter who disagrees with the majority party, but sees the minority party behaving badly, has nowhere to go. If voters could choose in order of preference, the threat of fluke victories by a marginal candidate with minority support would be eliminated. Third-party votes would be neither wasted nor counterproductive, no longer spoilers. (Voting for all-state basketball has used ranked-choice for 35 years. It works.)

Mail-In Voting. Cramming a half-million voters into booths within 13 dusky November hours is a needlessly frenetic exercise. Most people would love a chance to vote on a weekend or by mail. The first leg of a constitutional amendment to align Delaware with other leading states with early and mail voting passed the House of

Smugness is never in order. Where there is no rebuilding, there is erosion. Election administration in Delaware and the nation needs improvements.

Representatives in 2020 by 38-3. A dozen of those ayes went into hiding this year. For the first time since the repeal of Blue Laws, lawmakers opted not to make life more convenient. For years, millions have voted by mail for corporate directors or in proxy contests. Can’t we do the same for the Clerk of the Peace?

Reapportionment. Over five cycles, beginning in 1980, public opinion has favored a neutral process. In 2017, Bryan Townsend and Anthony Delcollo proffered the best bill yet, but it only passed in one chamber. A legislature that promises to be brimming with idealists of both parties could save its successors from future stress by enacting such a bill soon.

Recount Procedure. Richard Forsten illustrated in the Fall 2016 edition of Delaware Lawyer how, depending on the situation, post-election remedies are potentially contradictory. Nationally. The Supreme Court needs to respect the will of the people. The Roberts Court shed its umpire’s mask to eviscerate the Voting Rights Act by inventing an “equal sovereignty doctrine” with scant historical antecedent. Future generations will regard Citizens United as Lochner 2.0. Electoral College. Bill Roth and Cale Boggs tried to eliminate it. Roth joined a 339-70 House majority in 1969, Boggs a 53-34 Senate plurality in 1970 to amend the Constitution to elect the President by popular vote. After George Wallace’s 1968 campaign nearly made the segregationist caucus into the kingmaker, President Nixon and both parties’ leadership pushed unsuccessfully to modernize Presidential elections. National popular vote would enfranchise Republicans in Delaware and California, Democrats in Kansas and South Carolina. Campaigns would be national, and not, as in 2020, concentrated in 41 Congressional districts.

However busy our lives, lawyers cannot be, in the President’s words, “passive witnesses.” Voting is the initial step of lawmaking. Reasoned voting, informed discretion, is all about us. The enemy of my enemy is not my friend. Don’t be like the lefties who made excuses for Castro or conservatives who did likewise for Franco.

We grew up with the serene assurance that every election would be free and fair. Yet, if a dedicated cabal can end democracy in Greece, where it was born, it can happen anywhere.

You cast a vote for many reasons, but above all, vote in favor of being able to vote again.

Chuck Durante, the President of the Delaware State Bar Association, is a partner at Connolly Gallagher LLP, fellow of the American College of Trust and Estate Counsel, chair of the Board of Editors of Delaware Lawyer magazine, president of the Delaware Sports Museum and Hall of Fame, trustee of the Delaware Historical Society and president of the Delaware Sportswriters and Broadcasters Association. He can be reached at cdurante@ connollygallagher.com.

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