From the Archives: Ken Cuccinelli clarifies remarks on marijuana legalization as federalism issue

Ken Cuccinelli clarifies remarks on marijuana legalization as federalism issue
February 9, 2013 1:16 PM MST

Replying to a question from a self-described former addict about marijuana legalization, Virginia Attorney General Ken Cuccinelli used the opportunity to explain his views on federalism to an audience of Republican activists in Albemarle County on February 9.

Cuccinelli, a candidate for governor in 2013 and author of a new book scheduled to be published on February 12, The Last Line of Defense: The New Fight for American Liberty (Crown Forum, 272 pages, $25), said that “one of the problems with the ever-layering on of federal regulations and commands about how we all run our governments, our local governments, our businesses, is this sort of maniacal drive that we all be the same.”

Diversity, Cuccinelli explained, “is a strength of this country. We shouldn't try to wring it out, including intellectual diversity and policy diversity, because we get these sorts of experiments and some of them don't work and some of them may work.”

Colorado and Washington
Earlier in the week, the Attorney General had told students at the University of Virginia that, with regard to the legalization of recreational use of marijuana by voters in Colorado and Washington state, “I and a lot of people are watching Colorado and Washington to see how it plays out.”

Cuccinelli used his appearance at the Albemarle GOP breakfast to clarify and expand on his remarks at UVA.

“What I expressed to [the students] was an openness to observe how things work there, both in terms of the drug side and the economics. One issue that is often discussed is how the war on drugs itself has played out. Have we done this the right way? It's been phenomenally expensive.”

If the government, he said, is “going to put people in jail and spend $25,000 [to] $30,000 a year for a prison bed, do we want it to be for someone who's pushing marijuana or pushing meth? I'll tell you what, that $30,000 for the meth pusher is well worth the deal.”

Different kinds of illicit drugs, he said, are “not the same” and policymakers have to set priorities in terms of law and of how the laws are enforced.

“We have limits on our budget and our ability to police this, so we've got to make these kinds of distinctions over time.”

'Simple federalism experiment'

The benefit of the legalization of cannabis in Colorado and Washington, he explained, is that “having data from a couple of states, whole states, that go down this path may not be good news but it will be interesting and it will be something we can learn from.”

The situation in those two Western states “is going to be interesting on several levels,” he said, including “as a simple federalism experiment.”

What, he asked, is “the federal government going to do? What are they going to do? How is this interaction between the states and federal government going to take place?”

Cuccinelli said he has no “problem watching that. It's a peculiar subject but I do think it's important that states try some things they think are appropriate and whether the federal government approves or not, the rest of us watch and learn.”

Undermining federalism
He explained he had told the UVA students, “I'm ready to watch and learn. I'm not ready to do it [legalize marijuana] but I don't want to just never ever say never to the possibility in the future.”

When the federal government forces all states to be uniform, he said, diversity and experimentation are undermined.

“We're not going to have any [experiments] if the federal government is just squashing all of us,” Cuccinelli said, adding: “That's something I have fought against as AG.”

At the same time, he continued, “I don't want you to think that I'm going to land in the governor's office and sign a legalization bill. I don't think you have to worry about it getting to the governor's desk but it's worth knowing what your candidate's saying.”


Publisher's note: This article was originally published on Examiner.com on February 9, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Virginia's Governor and the Constitutional Authority of Congress

Gov. Bob McDonnell (R-Va.)

President Barack Obama is making a campaign swing through Virginia next week, an acknowledgment that, although Virginia has only voted once for a Democratic presidential candidate since 1964, it has the potential to do so again in 2012.  (In 1964, Virginia voted for Democrat Lyndon Johnson over Republican Barry Goldwater; in 2008, the Old Dominion chose Illinois Senator Barack Obama over Arizona Senator John McCain.  GOP candidates won Virginia in all the intervening elections.)  As the 2012 presidential campaign is well underway, even with the GOP nominee still unknown, the President's need to keep Virginia in his Electoral College "win" column is quite keen.

The White House has not released precise details but it looks like the President will make at least four stops, in Charlottesville, Danville, Fredericksburg, and Newport News.

Virginia Governor Bob McDonnell has requested that Obama add a fifth stop to his tour of Virginia:  earthquake-damaged Louisa County, where the town of Mineral was the epicenter of a 5.8 magnitude earthquake that was felt up and down the East Coast and as far west as Chicago and St. Louis on August 23.

In a letter released by McDonnell's office, the Governor makes his case to the President, noting that the Federal Emergency Management Agency (FEMA) has denied his request for assistance to property owners to pay for damages to their homes and businesses:

I am inviting you to join me in visiting Louisa County during your tour of the Commonwealth next week. This additional stop in your previously scheduled tour will provide you the opportunity to meet the citizens who were at the epicenter of this significant seismic event, and witness the impact of the earthquake and more than 40 aftershocks on the homes and businesses in this area. It would benefit your administration to understand the devastation brought on by this historic earthquake, and to sec how the community’s recovery will be hindered as a result of FEMA’s denial of important emergency relief funds.

In his letter, at the top of page two, the Governor goes on to make a puzzling and unsubstantiated claim (italics added):

Disaster relief and public safety are core functions of the federal government. Volunteer groups are ill-equipped to repair earthquake damage. And, while state and local officials are doing everything they can, federal assistance is necessary in ensuring that affected Virginians are able to repair their homes to a safe condition and get back on their feet again.

That italicized phrase also appeared in a news release from the Governor's office dated October 7. It stuck in my craw a bit but I let it go as illustrative of the poetic license one associates with public relations efforts.

Never having seen any part of the U.S. Constitution that addresses either "disaster relief" or "public safety," I sent a query to the Governor's press secretary, asking, "Can the Governor's office provide a citation of the section (or sections) of the U.S. Constitution in which either 'disaster relief' or 'public safety' are found?"

As of 10:23 p.m., I have not received a reply.

While waiting, I took another look at the famous story ("Not Yours to Give") about Tennessee Congressman David Crockett, who told his colleagues once about his encounter with a constituent, Horatio Bunce, something of a backwoods sage.

Bunce had objected to Crockett's vote to appropriate funds for the relief of victims of a fire in Georgetown, D.C., and said to the Congressman:

The people have delegated to Congress, by the Constitution, the power to do certain things. To do these, it is authorized to collect and pay moneys, and for nothing else. Everything beyond this is usurpation, and a violation of the Constitution.

Among those things not delegated to Congress is the authority to engage in charity using taxpayers' money, no matter how noble the cause. That authority is missing from Article I, Section 8, of the Constitution, which specifies the few and defined powers of the national legislature.

"Disaster relief" is not among them, and "public safety" (aside from the raising of armies and navies to protect against foreign enemies) is reserved to the states under the Tenth Amendment.

Certainly Governor McDonnell, as an educated man and a lawyer, knows this.

By the way, country singer Alan Jackson is giving a free concert in Mineral to give a moral and material boost those directly harmed by the August earthquake.  His efforts to help the town are, in fact, his to give.

The question is, who would draw a bigger crowd in Louisa County:  Barack Obama or Alan Jackson?

Be sure to visit my CafePress store for gifts and novelty items!
Read my blog on Kindle!
Follow my tweets on Twitter! 

See my articles on Examiner.com!

99 Years of Ronald Reagan

One year from today we will be celebrating the centenary of the birth of President Ronald Reagan.  It will also be Super Bowl Sunday, which should make for a lot of peanuts and beer, nachos and chicken wings -- as well as, one would hope, Jelly Belly multicolored and multi-flavored jelly beans.

Few people are waiting to begin the celebrations.  Around the country there are already stirrings of tribute to mark today, Ronald Reagan's 99th birthday.

In California, state Senator George Runner has introduced a bill that would make "Ronald Reagan Day" an official state holiday. In Nevada, there is a proposal to rename a mountain -- as yet undesignated -- "Mount Reagan."  In Iowa, a museum is showing two of Reagan's World War II-era movies.  In Illinois, Michael Reagan is speaking at his father's alma mater, Eureka College.  And Newsmax.com offers a slideshow of photographs from significant events during Reagan's life and presidency.

In an article in today's Los Angeles Times, Richard Simon writes about some of the ideas planned for the 100th anniversary of Reagan's birth in 2011:

Events are planned across the country: A Reagan-themed float will grace Colorado Boulevard in Pasadena during the Rose Parade on Jan. 1. His boyhood home of Dixon, Ill., has commissioned an original piece of music -- the "Reagan Suite" -- to honor him. A program at Eureka College, from which Reagan graduated, will reflect on his Midwestern roots. Warner Bros. has been contacted about a possible event looking at the former president's Hollywood years. An effort is even underway to name a mountain in Nevada after him.

And events abroad are likely. A statue of Reagan will be unveiled in London, for example.

Over the last five years, I have posted a number of reflections on the life and legacy of Ronald Reagan, the earliest being a recollection of a speech he gave in Arlington, Virginia, in support of the three Republicans who were seeking the offices of Governor, Lieutenant Governor, and Attorney General in 1985. One short quotation remains salient:

...we must never forget that our very freedom is based on this fact: that this nation is a federation of sovereign States, and they must never be reduced to administrative districts of the Federal Government, as some in Washington would have us do.

Apparently the Senate of Virginia agrees, at least insofar as the freedom of individuals to choose not to buy health insurance policies goes.

My next post on Ronald Reagan came one year after his death, which took place on June 5, 2004, coincidentally the eve of the sixtieth anniversary of D-Day. On that occasion, I quoted at length from "The Speech," also known as "A Time for Choosing," which, in one form or another, Reagan delivered countless times in the 1950s and '60s, but most famously just before the 1964 election in a television broadcast in support of presidential candidate Barry Goldwater. One nugget from that speech:

I think the government has legitimate functions. But I also think our greatest threat today comes from government’s involvement in things that are not government’s proper province. And in those things government has a magnificent record of failure.

Later that year, in December 2005, I had an opportunity (my first of two) to visit the Ronald Reagan Presidential Library in Simi Valley, California, and I photoblogged my experience there.

Two years ago today, I posted video that I took on my second visit to the Reagan Library (in July 2007) to mark President Reagan's 97th birthday.

Last year I wished my readers a "Happy Reagan Day" with excerpts of the then-future President's widely quoted 1975 interview with Reason magazine, in which he said:

If you analyze it I believe the very heart and soul of conservatism is libertarianism. I think conservatism is really a misnomer just as liberalism is a misnomer for the liberals–if we were back in the days of the Revolution, so-called conservatives today would be the Liberals and the liberals would be the Tories. The basis of conservatism is a desire for less government interference or less centralized authority or more individual freedom and this is a pretty general description also of what libertarianism is.

Last June, commemorating the 65th anniversary of D-Day, I quoted Reagan's address that he delivered in France in 1984, with the famous tag line:

These are the boys of Pointe du Hoc. These are the men who took the cliffs. These are the champions who helped free a continent. These are the heroes who helped end a war.

A few days later, people in the United States and Central and Eastern Europe were taking note of another Reagan-centered anniversary: His speech at the Brandenburg Gate, in which he challenged Soviet dictator Mikhail Gorbachev to "Tear down this wall!" That blog post includes the text of the key passage and also has video of the speech.

Ninety-nine years of Ronald Reagan: what a remarkable near-century, what a remarkable man.

Happy Birthday, Mr. President, and thank you.



Be sure to visit my CafePress store for gifts and novelty items!
Read my blog on Kindle!
Follow my tweets on Twitter!

My Hate-Crimes Op-Ed in the RTD

Tuesday morning's readers of the Richmond Times-Dispatch will turn to the op-ed page, as they normally do before checking out sports or comics, and see a piece I wrote on the new federal hate-crimes law, which has been passed as part of the massive (1,158 pages) Defense Authorization bill and will soon be signed into law by President Barack Obama.

The law is named for Matthew Shepard, the gay Wyoming college student who died eleven years ago at the hands of violent criminals. His killers were sentenced to life in prison. They could have received the death penalty, but Shepard's family requested the more lenient punishment.

The crux of my argument in the Times-Dispatch is here:

What is particularly disturbing about the Matthew Shepard Act, however, is that this bill federalizes crimes that properly belong under state or local jurisdiction. It signifies creeping encroachment of federal law on state prerogatives and the dulling of the distinction between the central government in Washington and the various state governments.

Previous federal hate-crime statutes were written when state and local authorities often looked the other way if crimes of violence were committed against members of minority groups. These laws were narrowly focused and meant specifically to prosecute crimes against victims engaged in a federally protected civil-rights activity (such as helping to register African-Americans to vote).

The current bill says the federal government can step in to prosecute a case if "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." In other words, if a U.S. attorney dislikes an acquittal or the punishment of someone convicted under state law, he can re-open the case as a federal matter.

By Orwellian logic, this kind of re-prosecution does not violate the Constitution's prohibition on double jeopardy, because the same act becomes two separate crimes -- one state and one federal.

The days when crimes against victims from socially-disliked minority groups were routinely ignored by state and local law-enforcement authorities are in the past. Yes, there may still be exceptions to this welcome trend, and prosecutors who fail to do their jobs properly should be sent packing by the voters. In the majority of cases, however -- including the headline-grabbing murders of James Byrd and Matthew Shepard in the 1990s -- police and prosecutors pursue the perpetrators to the full extent the law allows.

The Matthew Shepard Act is a done deal as far as Congress and the President are concerned. That does not mean we should tolerate it or the further perforation of the lines between federal and state government that is, sadly, sure to follow it.

Update, October 21: The Richmond Times-Dispatch op-ed now also appears on the Independent Gay Forum.

Be sure to visit my CafePress store for gifts and novelty items!
Read my blog on Kindle!
Follow my tweets on Twitter!

Odd Definition of 'Democratic'

In an article that purports to analyze the political situation in New Hampshire in the wake of the state legislature's approval of a bill that creates marriage equality for all the citizens of that state (and the governor's signature on that bill), National Review Online's Mark Hemingway makes this curious statement:

Of the recent states that have legalized same-sex marriage — Iowa, Maine, and New Hampshire — none has done so through democratic means...

Granted, Iowans now have marriage equality due to a decision by the least democratic branch, the state supreme court. Even so, Iowa supreme court justices are held accountable through retention elections held one year after their appointments, and they serve limited terms of eight years, rather than lifetime terms. So that judicial decision-making body is not entirely undemocratic.

In the cases of Maine and New Hampshire, however, the decision to open up marriage to consenting adults regardless of sexual orientation was made by what one might call the most democratic branches: the legislature and the governor.

Hemingway fails to mention the other states that have marriage equality. A same-sex marriage law was passed by the legislature in Vermont years after that state first created "civil unions" through the legislative process. In Massachusetts the state legislature deliberated over and ultimately rejected an effort to overturn the state supreme court's ruling that a prohibition on same-sex marriage violated the commonwealth's constitution. In Connecticut, the state legislature approved civil unions but the state supreme court ruled that this was discriminatory and that marriage must be available to all citizens regardless of gender.

I might add that both chambers of the California legislature approved a bill to provide marriage equality, but Governor Arnold Schwarzenegger vetoed it. California's domestic partnership law gives all the responsibilities and privileges of marriage to same-sex couples, except for the name "marriage."

Hemingway has an odd definition about what is "democratic." If lawmaking by elected legislative bodies is not democratic, then what is?

It may be that Hemingway thinks that this sort of legislative action is made through "republican" means and that "democratic" lawmaking is limited to voter-approved (if not voter-initiated) referenda.

If so, Hemingway's view of legislative legitimacy is sorely at odds with the views of the Founders. It may be time for him to read The Federalist Papers. His understanding of "democratic" lawmaking is also at odds with common parlance.

Be sure to visit my CafePress store for gifts and novelty items!
Read my blog on Kindle!

Your Dream Is Somebody's Nightmare

Thanks to my one-time boss, Ernest Lefever, for alerting me to the publication of my letter to the editor in today's Washington Times.

I was responding to an opinion article that appeared last week, which called for the creation of a federal "Department of the American Family." No, really, that's what it said. Here are a couple of paragraphs from the article, "In support of marriage," by David Wilkinson and Chris Stevenson:

We suggest that the administration transform the well-meaning but impotent Healthy Marriage Initiative, currently buried in the Department of Health and Human Services, into a new cabinet level department, which could be named the Department of the American Family. Such a move will necessitate a federal definition of marriage. This will bring the issue into the limelight of public debate, where it deserves to be.

What will the department do? First, the fact that there is a Department of the American Family will be highly symbolic of America's belief in the traditional family and will draw a line in the sand. The secretary would advise the president on the status of American families, suggesting ways the president could secure its convalescence and long term health. Additionally, the department could assess the family's response to critical issues or events and the impact of them on the country's families; fund efforts to document the history and influence of the American family; sponsor public advertising campaigns endorsing marriage; and fund university research on the benefits of marriage.

The absurdity of the proposal didn't strike me as much as the irony of a conservative publication, The Washington Times, giving such drivel valuable space on the opinion page. So I wrote a response, which looked like this in this morning's paper:

Regulation, bureaucracy and the family

In their Friday Op-Ed column, "In support of marriage," David Wilkinson and Chris Stevenson offer a the kind of suggestion that usually comes from liberals for addressing a perceived social need: Throw money at it with a new government program.

Their idea of creating a new Department of the American Family smacks of the sort of social liberalism so effectively critiqued by President Reagan when he said, "The government's view of the economy can be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it."

Education did not improve with the creation of the federal Department of Education; it got worse. Massive federal welfare programs did not eliminate poverty but instead created generations of families dependent on the state. Amtrak is not superior to privately owned railways; it is more expensive, less reliable and a drain on taxpayers' pocketbooks.

Do Mr. Wilkinson and Mr. Stevenson want to see the American family destroyed through government paternalism?

Turning again to Mr. Reagan, we have to ask ourselves whether we believe "in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can plan them ourselves."

Creating a new federal bureaucracy to deal with social problems, no matter how real those problems might be, demonstrates a lack of faith in our capacity for self-government. It abandons the values that Mr. Reagan articulated best but that also were held by conservatives such as Barry Goldwater, Gerald Ford and others before and since.

The Department of the American Family: liberal dream, conservative nightmare.

The authors of the original article, Wilkinson and Stevenson, probably think of themselves as conservatives. But conservatives, I thought, are people who believe the size and scope of government should be reduced, not expanded.

Unfortunately, it seems that too many self-described "conservatives" have confounded the true conservative legacy of Ronald Reagan in favor of the statist, pro-government faux conservatism of Rick Santorum. That may explain why federal spending has increased more under George W. Bush and a "Republican" Congress than it has at any time since Lyndon Johnson introduced the Great Society.

Wyatt Durrette on Federalism

A name from the Virginia GOP past surfaced today in the letters-to-the-editor column of the Sunday Richmond Times-Dispatch. Wyatt B. Durrette, Jr., who ran for state attorney general in 1981 and governor in 1985, chose the Times-Dispatch as the forum to express his concerns about the Republican party's abandonment of federalism as a defining principle.

Some background may be in order, for those who are unfamiliar with Virginia politics or who are new to the Old Dominion's political scene. (After all, Durrette made his mark two decades ago.)

According to The Almanac of Virginia Politics (Fourth Edition, 1983), after Gerald Baliles won a narrow victory for the Democratic nomination for attorney general,

An even closer contest evolved between Baliles and his Republican opponent, Wyatt Durrette, a former Fairfax County delegate to the House. Durrette, extremely popular and active within his party, had the strong backing of many influential conservatives, including former Governor Mills Godwin. Although many observers predicted Baliles would be the only member of the Democratic statewide ticket to lose in the 1981 elections, he squeaked by Durrette with 50.9 percent of the vote.

Four years later, Baliles and Durrette faced off against each other, this time at the top of the ticket. As described in The Almanac of Virginia Politics (Sixth Edition, 1987):

Gerald L. Baliles won with 55 percent of the vote, a more than 140,000-vote plurality [sic: this should read "majority"] over his opponent. Baliles carried all congressional districts in a victory larger than the success [Charles] Robb had forged in 1981.

In an article reprinted in Virginia Government and Politics (Fourth Revised Edition, 1998), the University of Virginia's Larry J. Sabato had this to say about the 1985 elections, the year of the Baliles-Durrette rematch and when the Democrats swept the statewide ticket:

The 1985 Virginia statewide election will certainly be one of the long-remembered few. Not only did voters elect the first black (L. Douglas Wilder) and the first woman (Mary Sue Terry) to statewide office, but they also signaled the political moderation of their state and the emergence of Virginia as a leader in the New South.

Gerald Baliles won the governorship over his opponent Wyatt Durrette with 55.2 percent of the vote. That was an even larger proportion than Charles Robb's 53.5 percent in 1981 (though slightly less than Republican John Dalton's 1977 victory margin of 55.9 percent). Douglas Wilder beat Republican John Chichester to win the lieutenant governorship. He secured 51.8 percent of the vote. Mary Sue Terry attracted the broadest electoral coalition of all in her successful bid for the attorney general's seat over Republican candidate William "Buster" O'Brien. Her 61.4 percent statewide vote enabled her to add all but six counties and four cities to her column.

In the most general terms, the Democrats won in 1985 for the most fundamental reason: they ran more experienced and better-tested candidates who conducted better campaigns.

I did not live in Virginia in 1981 or 1985. (Although I lived just across the Potomac in Washington, D.C., I did not pay much attention to Virginia politics until 1988, when I moved to Arlington County and registered to vote in my new state.) So I cannot speak from personal knowledge about the kind of campaigns that Wyatt Durrette ran, or about his stances on the issues. I do know that I had not heard his name in a long time, and then only in reference books (such as those cited above). To see him write a letter to the Times-Dispatch on an issue such as federalism, therefore, came as something of a surprise.

Here is the gist of what Durrette wrote to the Times-Dispatch, in a letter apparently sparked by the passage of the tort reform bill by Congress, which was signed by President Bush just a couple of days ago:

In bygone days most Republicans championed the principles of federalism, which valued the integrity of state governments and limitations on national prerogatives. They felt strongly that the separation of power and responsibility between state and national governments fostered diversity and best served to protect the rights of our citizens.

No more. Today most Republicans (and Democrats for that matter) adhere to a doctrine of expediency, championing national legislation when it suits their political interest and policy goals. Federalism receives lip service and no more.

* * *

But it is sad to watch the principle of federalism, which used to be a bedrock of the Republican Party, now crumble before the onslaught of political expediency yet again. There are lots of reasons to oppose this legislation, which at its core offers yet another obstacle for the average American without collective political clout and concentrated wealth to protect his interests.

There is no justification for the national government yet again to legislate in areas where the states have always had the responsibility to govern.

The federal nature of our republic is indeed under assault from Washington. Too many crimes are being federalized, including murder and assault, crimes that are already forbidden and punished by state law. The authority of state and local governments to run their own schools is threatened by the No Child Left Behind Act. And, as seen in my (surprisingly) popular posting about Barbara Boxer and Hillary Clinton's ideas for "reforming" the federal electoral system, even the capacity of states to run their own elections is being brought into question on Capitol Hill. (The Cato Institute's Gene Healy has written about some of these phenomena in his book, Go Directly to Jail : the Criminalization of Almost Everything.)

I hope that elder statesmen like Wyatt Durrette continue to question this trend, and to use their influence to stop it.

Preserving Election Integrity Through Federalism

In March of this year, I became chairman of the Electoral Board for the City of Charlottesville. The appointment to the Board came by way of nomination by the chairman of the Charlottesville Republican Committee, Bob Hodous, with confirmation and formal appointment by the Circuit Court.

Electoral Boards serve in each jurisdiction of Virginia. The Boards consist of three members, two who belong to the current Governor's party (now Democrat Mark Warner), and one from the party whose candidate for Governor placed second in the last election. The Chairman and the Secretary of the Board must come from different political parties. So at the first meeting of the new Board in March, I was elected Chairman by my colleagues.

The Electoral Board oversees the office of the General Registrar and supervises elections. Virginia has frequent elections, with federal elections in even-numbered years and state elections in odd-numbered years. In 2004, Charlottesville had a Democratic presidential primary in February, a City Council election in May, and the general election in November.

In the weeks leading up to the November 2 election, a small number of Charlottesville voters (along with others around the country) began raising questions about the security and integrity of electronic voting systems. In an effort to address those questions, I prepared the article below. It appeared in The Hook, a Charlottesville weekly, on October 28 and in The Metro Herald in Alexandria on October 29. An abbreviated version of the article appeared in the online edition of The Free Liberal, a libertarian publication based in Fairfax, Virginia, on October 22.


(Charlottesville, Virginia) --- There is no such thing as a national election in the United States.

This may come as a surprise to many people, who believe that Americans will vote for president on November 2 in a national election.

Instead, there will be over 3,100 simultaneous elections taking place that day. When we aggregate the votes, the nation as a whole will elect a president and vice president.

This fact is important because this diffusion of elections is the best protection we have against voter fraud through corruption, intimidation, or -- the most recent worry -- computer hacking.

According to the Congressional Research Service (CRS), federal elections are conducted locally by 3,140 counties and independent cities. (Only Delaware runs its elections at the state level.) In all of these thousands of jurisdictions, election rules are made and administered locally, in accord with comprehensive state laws and a few federal laws designed to guarantee that elections are free, fair, honest, and transparent.

The levels of protection are so numerous that even the most vociferous attempt to change the results of an election against the will of those who cast votes has an infinitesimal chance of success.

The most basic level of protection is that each jurisdiction -- each county or city or town with responsibility for conducting elections -- chooses and maintains its own voting equipment. In 1998, for instance, according to CRS, 410 counties used paper ballots; 480 used lever machines; 635 used punchcards; 1,217 used optical scan ballots; 257 used electronic machines; and 141 had mixed systems.

A new federal law requires that by January 1, 2006, each state and locality must meet certain standards that effectively prohibit punchcard technologies. Consequently, many jurisdictions have already purchased new equipment to replace those machines that made the terms "butterfly ballot" and "hanging chad" so infamous four years ago.

Most jurisdictions are moving toward electronic voting systems, using direct recording electronic devices, or DREs. These machines operate in a number of fashions, but the easiest comparison is to automatic teller machines (ATMs). Some of them use touchscreen technology, some use buttons, some use mouse-like wheels to move a cursor on a screen.

For all these technologies, there are numerous companies that build and sell them. Among these companies are Advanced Voting Solutions, Diebold Election Systems, Election Systems & Software, Hart InterCivic, Sequoia Voting Systems, and Unilect Corporation.

The use of machines made by these various companies is distributed randomly across the United States. Neighboring jurisdictions are unlikely to buy machines and software services from the same vendor. In Virginia alone, 22 different types of equipment will be used in the 2004 general election.

Are these machines trustworthy? The Wall Street Journal's John Fund, who is highly critical of election security procedures, notes in his new book, Stealing Elections: How Voter Fraud Threatens Our Democracy (Encounter Books), that “in the twenty-plus years that these machines have been used, in many counties all across the country, there has never been a verified case of tampering.”

Even the most determined election-stealer would have to know what kind of equipment is in use by dozens, if not hundreds, of jurisdictions, in order to alter their hardware or software in an attempt to change the results of an election.

Supposing that a determined fraudster were able to get that information and figure out a way to hack into the systems; he also would have to obtain the assistance of those charged with maintaining the integrity of elections.

The number of election officials varies from place to place, of course, but to give one example:

In Charlottesville, Virginia, this flim-flammer would need the cooperation of the Electoral Board (currently made up of two Democrats and one Republican), the General Registrar (who is non-partisan), the technicians who service the voting equipment, the Chief Election Official and Assistant Chief in all eight precincts (each from a different political party), and the other Election Officials (who also represent the Republican and Democratic parties).

He also would have to involve the technician from Hart InterCivic who helps the Registrar set up the machines before the election, and the company's consultant who helps in the vote count after the election -- different individuals whose assignments vary from election to election and from client to client.

Moreover, he would have to gain access to sealed voting machines kept in a locked room inside the locked Registrar's office inside a locked City Hall Annex building, with 24-hour surveillance cameras monitoring him.

This means that to steal an election even in a small city like Charlottesville (with about 22,000 registered voters), effective election fraud would depend on a conspiracy involving no fewer than 25 people -- or more than 100 (when all the precinct-level election officials are included).

Multiply this by 3,139 other counties and cities across the United States, and you can see what a sisyphean task massive voter fraud would be.

Is every American election fraud-free? Of course not. Scattered reports of fraud occur after every election. While this fact requires vigilance, it does not undermine the substantial integrity of the electoral system across the nation. Reports of fraud are notable because they are so rare.

The integrity of elections in the United States is protected primarily by the most fundamental aspect of our republic: its federal character, defined by a dispersal of authority and choices made in a diffuse system of state and local governments.

We should remember this on Election Day when we vote, not in a national election, but in one of 3,140 elections for President of the United States.

Check out my CafePress shop for greeting cards, t-shirts, and other political items!