I was lucky enough to be at the excellent APSA panel Rick Hasen organized on the President’s Commission on Election Administration (and unlucky enough to be staying at the fire-plagued Marriot). I though I’d say a few words about the former. For anyone interested, as am I, in election reform as a field of study, the Commission is especially interesting. Its structure and recommendations prompt at least two questions: Is this the future of election reform, and should we welcome it?
Reform is always hard. Election reform is even harder, on average. There are two unusual obstacles that are always at play for election reform. To begin, you don’t just have to get by the legislators beholden to interest groups; you have to get by the legislators’ own interests. The foxes are guarding this particular henhouse. That means that those who know the most about reform and care the most about it are often the legislators who oppose it. Second, election reform is always second-order reform because it focuses on process rather than substance. I firmly believe that process shapes substance, but election reform is still one step removed from bread-and-butter issues like healthcare and jobs. That makes organizing harder.
In the face of these political tides running against reform, note how differently the President’s Commission looks than most reform commissions of the past.
First, while it’s bipartisan, it’s not you father’s bipartisan commission. Usually bipartisan commissions are headlined by high-profile former elected officials – the big names at the top of the political parties. This one is led by two lawyers with deep experience in the field and deep respect for one another. They aren’t above the fray, but – like all lawyers — they are trained to be in the fray without becoming enemies. As a result, they don’t mistake a political fight for a real one. Otherwise, the Commission is made up of election administrators and corporate CEO’s. They aren’t so much bipartisan or even nonpartisan as a-partisan.
Second, the commission is premised on a model that assumes that the levers of change are bureaucrats. Most election reform is aimed at getting attention of legislators (and usually federal ones at that). This report focuses almost entirely on election administrators. To be sure, some of its recommendations will require the participation of state legislators, but even those reforms are the type that election administrators would be requesting in the first place. The focus on election administrators is particularly intriguing. We often act as if election administrators are the objects of reform rather than the catalysts – as if change can only come if there is pressure from without, with outside groups or legislators making election administrators do the right thing. This report is largely premised on the idea that change can come from within, from those who work every day inside the system.
Third, note how the commission hopes to influence those bureaucrats. The focus here isn’t on grand bargains, but technocratic solutions. Moreover, it relies on soft law not hard law – on the effects best practices and base-lining have on professionals rather than on top-down legal mandates. And as I’ve often written, best practices and base lining turn out to be an excellent strategies for influencing professional peer groups.
Fourth, the Commission doesn’t rely on professional peer pressure alone to drive reform. It relies on dollars and cents. Sometimes I despair that reform wouldn’t happen even if Almighty God came down from on high and ordered it. But these days I have some faith in the Almighty Dollar. And the Commissions’ recommendations are built around the Almighty Dollar. The online registration proposal is a big cost saver, for instance. Pushing the feds to take the lead on certifying new machines will save local jurisdictions time and money as well. And the “tool kit” the Commission provides for election administrators are something most election administrators couldn’t afford to create for themselves and designed to help them spread their limited resources as far as possible. Election administrators are strapped for cash, especially as their HAVA money has basically run out. They are desperate for tools like these. This is thus a classic solution to problem of decentralization, where no individual jurisdiction can afford to create these tools but every jurisdiction needs them. The tool kit, in particular, follows the Field of Dreams model for reform: If you build it, they will come. You can get better administered elections just by giving states and localities better tools to administer them.
Finally, the commission isn’t announcing the need for ambitious, earth-shaking reform, but fixing what’s obviously broken. It’s improving the status quo without disturbing it. Deeply pragmatic and clear-eyed about what’s possible, the report is not the stuff of which many reformers’’ dreams are made.
Given that the Commission is not the stuff of which many reformers’ dreams are made, how should we think about it? While I don’t think that this model is going to displace the more traditional model – bipartisan commissions pursuing ambitious aims and offering grand bargains negotiated by party leaders – I do think the Commission is going to be part of a growing trend in election reform. I also think we should welcome it as a supplement to more traditional reform commissions. The Commission was pragmatic, problem-centered, and focused on modest ideas rather than grand bargains. The success of its recommendations will depend on bureaucratic pride rather than political coalitions, best practices rather than top-down legislation, soft law not hard law. And I think that’s a good thing. I recognize that some think that the Commission wasn’t ambitious enough, but I think the Commission was quite ambitious because it set about to achieve reform rather than just talk about it. That kind of approach may not make headlines, but it is likely to make headway.