Chris Elmendorf has written the following guest post for my Fixing Election Administration series:
The 2008 election season witnessed an escalation in the now-familiar conflict between Democrats and Republicans over “access” versus “integrity” in the voting process. John McCain used the dignified forum of a presidential debate to pronounce that ACORN, a left-leaning group, was “on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.” Several leading academics, including Rick Hasen, Charles Stewart, and Daniel Tokaji, have responded to the ACORN brouhaha by calling for federal legislation that would nationalize voter registration or require the states to adopt Election Day Registration for federal elections. This exemplifies what I shall call the “federal fix” approach to building public confidence in the electoral process: When a controversy arises concerning the states’ administration of elections, the federal government should respond by taking over responsibility for matter at issue (here, registering voters) or by setting a nationwide standard that, it is hoped, will put an end to the practice that engendered the controversy (here, third-party voter registration).
I submit that an alternative approach is worth considering, under which the national government would license and reward state innovations rather than, or in addition to, prescribing federal fixes. This alternative–call it the “recruit the states” model–would use a nonpartisan federal agency to distribute funds and/or waive federal election standards (“federal fix” requirements) in response to state petitions. The goal in each case would be to enable election-administration experiments that show promise for building public confidence in the electoral process. (The agency should also fund state programs to implement the lessons learned through these experiments.)
Though much can be said in defense of national voter registration or Election Day Registration, the “federal fix” model has a number of serious limitations. First, we simply don’t know very much about the relationship between election administration and the public beliefs about electoral legitimacy. Even well-intentioned federal fixes are therefore at considerable risk of missing their mark. (Compare the Carter-Baker Commission’s confident pronouncement that a national photo ID requirement would bolster public confidence in the electoral process, with Stephen Ansolabehere and Nathaniel Persily’s subsequent empirical finding that there is essentially no relationship between state voter ID requirements and voters’ beliefs about the extent of vote fraud.)
The nascent empirical literature does suggest that poll-worker competence and, to some extent, voting technology, affects voters’ confidence that their ballots will be tabulated correctly (and in one study, voter confidence in the electoral process more generally). But “better training for pollworkers” is hardly a compelling draw for the entrepreneurial, credit-seeking Member of Congress. This goal is more likely to be realized through modest interventions by an administrative agency with grantmaking authority and a broad mission to foster public confidence in the electoral process, rather than by statutory mandate.
A second limitation of the federal fix model is the risk that the fix will be seen as a partisan ploy rather than as a sincere effort to improve the fairness and integrity of the electoral process. If the next Congress mandates Election Day Registration, it is likely to happen on a substantially party-line vote and in the teeth of apocalyptic Republican warnings (however baseless) that EDR will result in widespread but hard-to-detect voter fraud. Would this new federal mandate assuage Republican voters’ fears about the integrity of the voting process? I doubt it, especially in light of the role of partisan identification and electoral victory (or loss) in structuring perceptions of democratic legitimacy.
The third problem with the federal fix model is that it conduces to rash and ultimately counterproductive reforms. The states’ experience over the last eight years with new voting technologies is instructive. Aided and abetted by the federal Help America Vote Act, many states replaced punchcard ballots with electronic voting machines, only to ditch the new electronic machines (in response to fears about hacking) in favor of paper ballots. The churn of voting technology is not only expensive, it also requires voters and pollworkers to continually adapt to new methods of voting, which may well sap public confidence in the electoral process (in light of the effects of pollworker competence and voting-technology “usability” on voter confidence). Let us be grateful that the churn was not further accelerated by the passage of Rep. Holt’s bill mandating “paper trails” for electronic voting machines. Paper-trail technology should be allowed to spread gradually (or die off) in response to pilot experiments that shed light on its practicability, security, and impact on voter confidence.
The last difficulty with the federal fix model is that it doesn’t adequately reckon with the dynamic nature of the public confidence problem. Mandating EDR or nationalizing voter registration might get ACORN out of the voter-registration business, but the next election cycle will probably bring new assaults on the fairness and integrity of the voting process. This seems inevitable in an era marked by distrust of government, partisan polarization, and (except when the economy is tanking) partisan equipoise. The “recruit the states” approach to building public confidence recognizes this, and tries to create incentives for some political actors to ameliorate public doubts about the integrity of the electoral process even as others seek to exploit them.
The forgoing hardly establishes that the “recruit the states” model is a practicable alternative to federal regulatory fixes. Funding will not be easy to come by; the Election Assistance Commission may not be up to the task of administering such a program; and working out the scope of the agency’s waiver authority would no doubt be politically contentious. What I hope to have shown is that the model is worth exploring.
UPDATE: Bob Bauer comments.