Author Archives: Heather Gerken

Gerken: Pew’s Election Performance Index

A few years ago, I proposed creating a “Democracy Index” that would rank states and localities based on how well they run elections.  Since then, the Pew Charitable Trusts, a nonpartisan organization well known for promoting data-driven governance, has tried to put these ideas into action.  It created the nation’s first Elections Performance Index, which was released this week.  The EPI measures state performance based on seventeen indicators, which include the length of lines, the accuracy of voting technology, and the percentage of voters who experienced problems registering or casting an absentee ballot.

The process for creating the Index was remarkable – as serious and professional an undertaking as I’ve witnessed.  Pew itself devoted significant funding and top-notch staffers to the project.  It also assembled an extraordinary group of advisors, which included some  of the top state and local election administrators in the country.  The legendary Charles Stewart, the former chair of MIT’s political science department, served as the data expert (though that seems a bit like calling a Ferrari a “car”).  The Pew staff and advisors — along with numerous outside experts Pew called in to poke and prod and test and challenge the validity of the indicators – narrowed down a list of almost fifty potential performance indicators to the seventeen you see on the website.  A huge amount of effort was put in to be sure the indicators were measuring something meaningful, and that the data gave us genuine signals rather than noise.  I am frankly amazed that Pew came up with so many good measures – it’s a testament to the creativity of the team, especially the political scientists who were involved.

I devoted a book to explaining why an election performance index like Pew’s has the potential to make a difference in election administration.  Indices are incredibly useful tools in the policymaking world.  They allow us to spot, surface, and solve problems by making election problems visible to everyone.  They help policymakers identify the drivers of performance and sort useful policy needles from a haystack of disparate practices.  They allow us to judge state performance against a realistic baseline – how a jurisdiction compared to its neighbors – rather than relying on a crisis to tell us there’s a problem.

Rather than rehash all of those arguments here, I’ll just note two things that really came through during the process.  The first was how important it is to have an EPI.  The EPI isn’t perfect, to be sure.  It measures what can be measured using the best means available.  But there are obviously areas where we can and ought to have better measures in the long run (something that Pew itself has shown itself expert at generating in other areas).  The EPI is thus best understood as a baseline for measuring election performance going forward.

Nonetheless, it makes a huge difference to have that marker laid down.  Going forward, we’ll be able to trace the effects of policy interventions (like the reform to the military and overseas voting process).  We’ll be able to identify problems we might not have seen before (even within this short period, we’ve already seen tantalizing glimpses of this possibility).  For the first time, we’ve had a chance to acknowledge the unsung heroes of our democracy – the election administrators whose only reward for doing a good job before today has been a quiet election and no media firestorm.  And the EPI should help low-performing jurisdictions lobby for the resources they need to improve.

The second thing that process underscored was how seriously election administrators take these numbers.  I spent a chunk of the book talking about the ways in which professional norms may be the best guarantor of a well-run election system.  I wrote that we often think that reform and high-quality performance are due to pressure from the outside, but it’s actually the people inside the system who are best situated to improve it.  I’ve now begun to wonder whether I should have devoted the entire book to the idea.  Election administrators do a very hard job with very few resources.  They care deeply about whether they are doing a good job, and they all want to do their jobs better.   What I found most impressive about the meetings of the Pew advisors was how much they cared about their own performance on each and every indicator.   These folks, after all, were chosen because they are so well regarded in the field.  And yet every time a number was put up on the screen, the room fell silent as the administrators absorbed the results.  What happened next was even more striking.  They started to talk to each other.  They talked about where they fell short and why, whether a low ranking was a glitch or trend, whether a high ranking was due to luck or skill.  And they began to swap information about how similar problems were addressed or similar practices were used elsewhere.  The data generated exactly the kind of conversations that will lay the groundwork for a better-run system.  The EPI, in short, is the type of reform that makes bigger, better reform possible.

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Gerken: Deal or No Deal?

Deal or No Deal? – Gerken
I thought I’d offer a quick follow-up on Dan Tokaji’s typically thoughtful post. As Dan correctly notes, there’s some disagreement between the civil rights community and academics about whether the deal on the table is a good one. To be sure, neither group is monolithic, but virtually all the mainstream civil rights groups seem to have endorsed the deal, whereas there aren’t many academics offering full-throated support for the bill in its current form. Indeed, if you privately asked academics the question made popular by NBC’s addictively awful show, “Deal or No Deal?”, I wonder how many academics would wholeheartedly urge the civil rights community to accept the deal.
There are, however, at least two things inhibiting the type of vigorous debate that Dan rightly points out ought to occur. The first is, believe it or not, modesty. It’s not like law professors have a comparative advantage in counting votes and brokering legislative compromises. The danger, of course, is that we become like those annoying “Deal or No Deal” audience members who urge hapless contestants to turn down massive amounts of money for a risky pursuit of the whole jackpot. After all, it is no mean accomplishment in this political climate to persuade Congress to renew the Voting Rights Act some 38 years after its original passage. Not only will Section 5 be renewed in toto, but Congress will prune back two Supreme Court decisions that have caused a great deal of consternation in the civil rights community. Efforts to tinker with the deal might sink it, and the civil rights community could find itself negotiating next year with a much weaker hand than it now holds.
The second reason academics may be reluctant to intervene is that so many of us genuinely believe in the Act, its aspirations, and its accomplishments. If the deal is going to go through regardless of what a few academics think about its merits, why allow the perfect to be the enemy of the good? (I’ll spare you the hand wringing on what these choices mean for us in our role as academics). As Dan mentions, I think there is a better way to administer Section 5, a strategy that is constitutionally more defensible and does a better job of protecting minority voters and deploying civil-rights enforcement resources. But I would certainly prefer the current bill to allowing Section 5 to expire.
The last time Section 5 was up for renewal in 1982, the civil rights community faced a similarly difficult choice. During the early part of the process, the deal on the table was far from ideal. At the time, many thought it was as good a deal as they could get with Republicans wielding control in the Senate and Ronald Reagan holding the presidency. There is a story- perhaps apocryphal – of the major players in the civil rights community meeting in a single room to debate whether to accept the deal. Though the majority thought they ought to accept the deal, in the end the civil rights community continued to press the case for tougher standards and persuaded Congress to enact a far stronger Voting Rights Act than existed prior to 1982. The 1982 amendments, coupled with a very helpful decision by Justice Brennan interpreting them, dramatically changed the rules of redistricting and resulted in the election of an unprecedented number of black and Latino candidates during the 1990s.
This may not be 1982 and it may not be possible to do any more for minority voters than the current bill does. At the very least, however, we all should be frank about the deal that is being cut so that the extension of the Voting Rights Act represents the beginning of this conversation, not the end. There is a lot to praise in the current bill. But it’s far from perfect, a point that tends to get lost in the press releases and triumphalist rhetoric we’ve seen in this debate. It does nothing to rein in the increasingly politicized Department of Justice, which has granted several preclearance requests under circumstances that have led many to think that the interests of the GOP, not minority voters, guided the decisions. It leaves in place a creaky, top-down regulatory system that cannot adapt quickly to changing political realities, let alone deal with many of the problems encountered by minority voters in the 2000 and 2004 presidential elections. Most seriously, it requires supporters of the Act to gamble that the coverage formula- the lynchpin of Section 5- will survive Supreme Court review. Political deals always require hard choices, but it would be a shame of all of the energy behind renewal evaporated the moment the bill is passed. The one thing that the academics and practitioners who support the Act ought to agree on is that we shouldn’t stop here.
–Heather Gerken, Professor of Law, Yale Law School

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