Is "Ghost" Voting Acceptable?
A Pennsylvania Legislator Allegedly Casts a Remote Vote, And Raises the Question Whether the Problem Is Remote Voting or Archaic Voting Technology

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Apr. 08, 2004

At the end of March, it was alleged that one of Pennsylvania's senior state representatives, William Rieger (D -- Phila.) had engaged in what is called "ghost" voting. In Pennsylvania, representatives are required to be present for a vote. But Rep. Rieger allegedly rigged his voting button so that it would automatically cast his vote on six bills to be considered that day -- even though he had gone home to Philadelphia.

An ethics investigation has begun. But reports suggest Rep. Rieger is far from the only "ghost voter" in Harrisburg. To the contrary, "ghost voting" seems to be a commonplace bipartisan practice -- with the rule against it often honored only in the breach. Apparently, the voting technology is so primitive, it can be rigged with bubblegum or paperclips.

Under current Pennsylvania rules, "Ghost voting" is a problem. But what if the rule were changed, so that all Pennsylvania state legislators could "ghost vote"? Does the rule that a legislator be present to vote make sense, or is it merely an anachronism?

One of the fundamental concerns of the Framers of the Constitution was how to make legislators--our elected representatives--accountable for their actions. Does the rule against "ghost voting" further this goal, by mandating representatives to be present for the votes that make the law, or, perhaps, is ghost voting only unacceptable when the technology is as archaic as Pennsylvania's? If a Pennsylvania representative is absent from a series of votes, he can only rig his or her machine to vote yea or nay on all bills. Ghost voting might not look so unacceptable if a member could vote intentionally yea or nay on each bill.

With Good Enough Technology, "Ghost Voting" May Be Acceptable

With technology as poor as Harrisburg's, a personal presence requirement may be justified. How does Representative Rieger, or any of his cohorts, know for sure that the votes their machine casts, are the votes they intended to cast, if they don't show up to watch their vote registered? And how many times have they abandoned their position on one bill in a series of bills, because they wanted to vote one way on the rest?

If legislative accountability is the goal, the Pennsylvania technology should be abandoned. For one thing, the voting system right now sounds as though it is easy to tamper with. If all it takes is bubblegum or a paperclip, anyone could "set" a member's vote.

So let's look to a better technological future. If technology is high-quality -- accurate, reliable, and tamper-proof -- is there still a case to be made against remote voting? Why should legislators have to be present to vote for a bill?

If Attendance Is Required, It Ought to Be For Hearings, Not For Voting

The answer, I believe, is that legislators ought not to have to be present to vote. If their constituents' interests require them to be elsewhere, they should not have to choose between serving them by voting, and serving them by travelling -- when doing both, in this modern age, is easily possible.

If any attendance is required, it ought to be attendance at hearings, because that is when the virtues and vices of the bill can be examined and debated. It is far more likely that a member's deliberation will be deliberate in the midst of the bill's consideration, as opposed to the day the vote is cast. Yet the typical rule is that legislative must be present for the vote, but do not have to attend hearings.

That is backward. The vote is a mechanical event. It is unusual, if not inconceivable, for a representative to attend the vote for a bill without having made up his or her mind. In contrast, it is during the hearing process that representatives learn about the bill, and have an opportunity to think critically about it. And that is their job, after all--to think critically about proposed laws in light of the public interest.

Thus, if there are to be any mandatory appearances, they ought to be during consideration of the bill at (perhaps specified) hearings, not when the decision as to how to vote has already been made, on the day the vote is to be cast.

(The hearing process, too -- in both state and federal legislatures could be improved in many ways. New procedures could discourage stacked hearings--hearings that are geared to show only one side of the bill--and encourage hearings that are aimed at the public good, rather than any particular agenda. Pie in the sky, perhaps, but certainly within the purview of the Framers' aspirations for a republican form of government.)

Another Virtue of Remote Voting: Increasing Accountability

Technology that would permit long-distance voting could be a very good thing -- and not just because it would make legislators' "travel or vote" choice a non-issue. It would also increase legislators' accountability to their constituents.

When a legislator has the technological capacity to vote from a distance, there can be no excuse for failing to vote. The true "ghost" is not the legislator who's rigged his machine to vote in his absence -- it's the legislator who simply does not bother to either show up or cast his vote.

Legislators are elected to make the hard choices. Making no choice at all is a fundamental betrayal of their public trust. Arranging to be out of town to avoid being on record for a crucial -- and controversial -- vote, is a deep betrayal of constituents.

The Future: Remote Voting For All -- With Internet Coverage Up-to-the-Minute

Here's what the future ought to look like:

Individual members can vote remote with a tamper-proof system. Legislators' votes appear on the Internet in real time -- and, of course, not anonymously. Citizens can check their representatives' voting records with great ease, and search online for votes on the topics of greatest concern to them. This is the cardinal contribution the Internet can make to deliberative democracy.

Distortion of voting records will be a thing of the past -- with information on the Internet, the truth is accessible to all. Hypocrisy will be easily revealed -- when politicians say one thing and do another, it will be crystal clear. And pork-barrel spending can be curtailed by a "Pork Watch" website that focuses on the kind of legislators' votes that are really vote-buying -- subsidizing industry in exchange for campaign contributions.

Such voter education may even put a dent in the rate at which incumbents win -- often due to voters' unfamiliarity with incumbents' and challengers' records and positions. Voters could have a base of facts against which to judge the bold claims made during a campaign.

Remote Voting Could Allow Congress to Get Rid of "Unanimous Consent"

Allowing "remote voting" in the U.S. Congress could also put an end to a pernicious practice: "unanimous consent."

Appallingly, Congress has the power to vote on legislation without letting anyone know how any particular member voted. Under the odious "unanimous consent" procedure, no record is ever made on how any particular representative voted; no actual vote is necessary. To be sure, this is permissible under the Constitution, which requires the recording of members' names "on any question" only "at the Desire of one fifth of those Present." In other words, unless one-fifth of those present at the vote request an accounting of names and votes, such a recording need not be made. It is the least perfect part of Article I--the rule should be that all votes cast by the people's representatives must be recorded in an easily accessible, publicly available archive. That archive should reflect how--and whether--each member voted.

Unanimous consent is the perfect situation for the representative: He or she need not face the music if they don't show up to vote, and he or she can tell both sides they voted, or would have voted, their way. (Unanimous consent was used to pass the destructive and unfair Religious Land Use and Institutionalized Persons Act -- which I have written about in an earlier column -- among many others. So no citizen has any idea where their representative stood on RLUIPA and never will. It's the perfect cover for special interest legislation. You could think of it as pork-barrel with an invisible pig.)

Long-distance voting would make "unanimous consent" utterly unnecessary. With remote voting, out-of-town representatives (or the leadership intent on passing a bill without objection from the floor) could no longer hide behind "unanimous consent." Instead, they will be beeped and prodded to record their vote on the record. If they don't vote, they can be held accountable. And if they do, they can be held accountable for the side they choose.

Unanimous consent is merely a way for the legislature collectively to pass legislation that no legislator must take responsibility for, individually. Like any mechanism for the diffusion of responsibility, it encourages corruption: The buck stops nowhere.

The Conflict of Interest: Legislators Rarely Impose Accountability on Themselves

All these moves, though, must be initiated by legislators themselves. And unfortunately, representatives tend to avoid direct accountability - whether through "remote voting" and Internet vote reports or any other reform - the way vampires avoid garlic.

Legislatures adore the appearance of increasing accountability. But they rarely want to increase it in practice. That leaves it up to the public and press to push for the future I have described.

It is a future of accountability -- where legislators must vote, or answer for their failure to do so. In addition, in this future, the way legislators vote would be well-known to every voter who is willing to spend a moment on the Internet, at home or in a public library (or a voting center, or a post office, or any number of other public buildings that ought to have free, public Internet terminals for this very reason.)

The Pennsylvania legislature should spend less time investigating the phenomenon of "ghost voting," and more time addressing its root cause: The lack of a reliable way to "remote vote."

If it did so, Pennsylvania's experiment could be a shining example for others to follow.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on constitutional subjects appears on this website. Her email address is hamilton02@aol.com.