During tonight’s State of the Union speech, the President made the following remarks:
But defending our freedom is not the job of our military alone. We must all do our part to make sure our God-given rights are protected here at home. That includes our most fundamental right as citizens: the right to vote. When any Americans – no matter where they live or what their party – are denied that right simply because they can’t wait for five, six, seven hours just to cast their ballot, we are betraying our ideals. That’s why, tonight, I’m announcing a non-partisan commission to improve the voting experience in America. And I’m asking two long-time experts in the field, who’ve recently served as the top attorneys for my campaign and for Governor Romney’s campaign, to lead it. We can fix this, and we will. The American people demand it. And so does our democracy.
Here the President has followed up on his “we can fix that” statement about long lines from his victory speech on election night and his reiteration of the point in his inauguration speech. The issue is now officially on the agenda. The White House’s fact sheet on the new Presidential Commission on Election Administration tells us that two of the leading election lawyers in the country, Democrat Bob Bauer (Obama’s campaign lawyer) and Republican Ben Ginsberg (Romney’s campaign lawyer) will come together to lead a commission on ways to improve voting: especially in terms of long lines, the experience of military and overseas voters, and related issues (such as voting machines, polling places, and problems faced by voters with disabilities and those with limited English language proficiency).
What to make of this effort? Will it lead anywhere? Here are my initial thoughts.
1. Getting buy-in not just from the president and Democrats but from a leading Republican election lawyer such as Ginsberg is quite significant. Ginsberg is an adult who has never bought into the hyperbolic rhetoric by some on the Republican side about an epidemic of voter fraud requiring all kinds of steps to make it harder to vote. Yet Ginsberg is not like Trevor Potter (McCain’s campaign lawyer), who is a campaign reformer and is regarded by some Republicans with suspicion. Ginsberg is a strong conservative, very smart, and not likely to give away the store to Democrats. His buy-in makes it more likely that other Republican leaders in this area will join in the work of the commission, and that what emerges really does get some bipartisan support.
2. At the same time, the goals of this commission appear to be quite modest. Democrats in Congress have been pushing for legislation to fix problems with voter registration and with long lines (such as proposals for mandatory early voting periods nationally). But it does not appear that proposed federal legislation is on the horizon (as I had advocated when I suggested just such a commission a few days after Election Day). Here’s what the fact sheet says: “By Executive Order, the President will charge the Commission to consider such issues, and identify practical, commonsense steps that state and local election officials can take to improve the Election Day experience. The Commission will also identify the practices of voting jurisdictions where voters have the best Election Day experience.” So if all this effort does is lead to a list of best practices, it is not clear that this will do much to really solve the problem. We already have the Pew Election Performance Index to move us towards exchanges of information and best practices. We’ve had Carter-Ford and Carter-Baker. A blue-ribbon commission report might simply gather dust in the corner of the 13,000 election jurisdictions in this country charged with running our elections.
3. Why so modest a goal? Why not consider federal election reform solutions? There are three possibilities. First is that Ginsberg would not go along with even a hint of a stronger federal role in elections—something both Republicans and local election officials have been fighting, and fighting hard since the issue came on the table in November. Second, whether or not Ginsberg would go along, the people setting up the Commission may have made the calculation that such proposals would not get anywhere in the Republican House (or get through a potential Senate filibuster). House Administration Chair Candace Miller (former Republican Secretary of State from Michigan) opposes a federal role or even holding hearings on these issues. Why propose legislation which would be doomed to failure? Better to set the goals lower. The third possibility that federal legislative proposals still might emerge from this commission, even with the modest charge from the President in the executive order. In a statement issued tonight, the Brennan Center urges the Commission to think “boldly.” I’m not sure that it can or will.
So to sum up: this is good news, and a step forward. But the goals of the Commission are modest, and if all that is produced is a list of best practices, it may have little practical effect on fixing our broken election system. It will take a lot more.