Presidential Commission on Election Administration (Bauer-Ginsberg) Releases Its Report: Some Initial Thoughts

The Presidential Commission on Election Administration, headed by Democratic lawyer Bob Bauer and Republican lawyer Ben Ginsberg, and staffed by senior research director Stanford’s Nate Persily, is meeting with President Obama today and releasing its report to the public. The release comes with a unanimous set of recommendations and best practices. Along with the release come 26 Appendices comprising documents with data and best practices totalling over 1,000 pages, an extensive survey of local election officials, and an Election Toolkit (hosted by the Caltech-MIT Voting Technology Project) with tools for state and local election officials to calculate poll worker placement and minimize long lines, as well as to set up or integrate existing tools for online voter registration systems. The report will likely please many election administrators, academics, and professionals, displease voting activists who will see it as not going far enough in particular areas, and get attacked by partisans on the right and left as containing too many compromises. The big question is what happens next with the Commission’s recommendations—will it lead to Congressional, state, or local changes to the way we run our elections?  Here are my initial thoughts on the Commission’s work (with more to come from ELB contributors and others in coming days in a PCEA mini-symposium):

1. Putting the Administration Back in Election Administration, Rather than Politics. The quality of the research and writing of this report is outstanding, the recommendations are sensible and doable, and (rarely in this politically sensitive area), the report generates much more light than heat.  This should really be no surprise. Bauer, Ginsberg, and Persily are at the very top of the field of election law. They and the other commissioners have collaborated with some of the top political scientists and academic experts on election administration, consulted heavily with local election officials, and drawn on the experience of those in the private sector who deal with customer service, technology, and queuing issues. I agree with the vast majority of these recommendations, on issues ranging from online voter registration, to polling place management, to professionalization of election administration.

2. The limited nature and scope of the report. Achieving bipartisan consensus is a big deal, and ending with unanimous, rational recommendations in this contentious area rife with partisan skirmishes (some involving Bauer and Ginsberg) is no small feat. The commission ended with a set of recommendations and best practices which should be studied and seriously considered by all those in election administration. But the Commission went even farther with its Election Toolkit and appendices which will provide ongoing tools for administrators and others. Its data collection will help social scientists study election systems and administration. That said, the scope here is modest. The initial charge to the Commission contemplated no federal legislation and the Commission recommends none. This is really the fault of the Order’s charge and not the Commission (and I would guess the limited charge was necessary to get buy in from some of the Commissioners.) The Commission takes the law and politics as given: there is nothing about reviving the moribund Election Assistance Commission (more about that later), about fixing the Voting Rights Act, or about strengthening voting protections in the face of partisan manipulations of voting rules in states and localities. There are pleas for collecting data and adopting best practices, but no calls for money to fix problems or federal legislation to mandate fixing the problems. The report and Commission’s lasting impact will be limited by the absence of enforcement mechanisms, unless Commission members can use the attention from the Report to push for change.

3. The partisan valence of the report. As I noted in the last point, part of the way that the bipartisan commission achieved uniformity and consensus was by sidestepping some of the most contentious issues, such as those involving voter identification provisions. But there are some notable recommendations which could be seen as having a partisan valence. For example, the report endorses some form of early voting, whether in person or absentee.  While many Republican administrators have long supported early voting to take the pressure off election day lines and stresses, in recent years some Republican legislators in places like Ohio and North Carolina have cut back on early voting in a belief that it helps Democrats. Another aspect of the report which could be seen as being more on the Democratic side is a call for increased enforcement of the NVRA’s motor voter provisions, especially registering people at DMV offices. There is less emphasis on here of voter purges under another provision of NVRA.  On the other hand, the report strongly endorses programs (such as IVCC and ERIC) to compare voter registration databases across state lines in part to stop voter fraud through double voting in states and to improve the accuracy of voter registration rolls. This is an issue which has been favored by Republicans and less enthusiastically endorsed by Democrat–though Democrats will like the aspect of ERIC identifying potentially non-registered eligible voters.  While I think partisans on both sides may complain about these aspects of the report, for the most part the report sidesteps hard issues, rather than taking one side.

4. The bit about fraud. Consistent with the last point, there’s not much in the report which is overly controversial on the voter fraud-voter suppression debate between Republicans and Democrats, but I did find this line in the report particularly notable: “Fraud is rare, but when it does occur, absentee ballots are often the method of choice.” (Page 56.) That’s my conclusion too, but it is not the typical line of hard line Republicans like KS SOS Kris Kobach.

5. Whither the EAC? One of my main criticisms of the PCEA concept from the beginning is that we already have a standing federal agency which is supposed to be doing, on an ongoing basis, what the PCEA is doing as a six-month temporary commitee: the U.S. Election Assistance Commission. Republicans and state election officials want it shut down, and it has no confirmed commissioners now.  It is therefore notable in the context of talking about problems of voting technology and machine certification that the Commission cannot envision a time when the EAC is functioning again (p. 65):

At a minimum, the authority for standards adoption and the certification of testing laboratories cannot depend on a quorum of EAC Commissioners. The EAC has been the subject of considerable partisan and other disagreement about its broader mission. There is little prospect that these conflicts will be fully or significantly resolved, even if a fresh complement of EAC Commissioners were to take office. Either some other body within or apart from the EAC must be in charge of approving standards or the states should adapt their regulations such that federal approval is unnecessary.207 A move away from federal certification will still require states, with the appropriate independent technical advice, to join together (as they did before HAVA with the National Association of State Election Directors) to endorse standards that give vendors and innovators sufficient guidance.

The statements about the EAC are pretty sad given how much the Report praises the work that the EAC has done in the past in its data collection, best practices, and clearinghouse functions.

6. The two biggest election administration time bombs in the report: technology and polling places. The report sounds a huge alarm bell about the problems of voting technology, and the end of HAVA-funded machinery’s lifespan with no good replacements on the horizon. There has been a terrible market failure in voting technology which needs to be addressed (and which needs federal funding—something the Commissioners don’t call for).  There also needs to be a substitute for EAC technology certification if the agency is indeed dead. The other alarm bell is for the loss of schools as polling places, thanks in part to schools which don’t want people coming onto campus after Newtown. The Commission says schools should have pupil-free in-service days for teachers to accommodate voting needs. It is a sensible idea.

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Kudos to the Commissioners and staff for accomplishing much more than I thought could be accomplished given the limited charge. Given the charge, this is a tremendous accomplishment. If these changes could be implemented it would positively affect the voting experience of millions of voters. Unfortunately, the problems identified by the Commission, and those sidestepped by the Commission, will require much more than this Commission’s good work to be solved. It remains to be seen if we can get beyond partisan recriminations and actually fix what remains a broken U.S. election system. Much depends upon the persuasive powers of Commission members, the President, and others.

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