“Democrats Support Voting Rights. Republicans Should Too”

Ari Berman:

It’s also unfortunate that many in the media continue to report on voting rights like it’s a left versus right issue, as if supporting a fundamental democratic right suddenly makes one a flaming liberal. Jamie Fuller of the Washington Post called voting rights “the Democrats’ most important project in 2014.” Michael Shear of the New York Times dubbed Obama’s speech an effort “to rally his political base.”

The right to vote used to be regarded as a moral issue, not a partisan one. As LBJ said when he introduced the VRA before Congress: “It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote in this country.”


The Court and Institutional Realism: McCutcheon

The majority in McCutcheon invokes the fact that other institutions — namely, Congress and/or the FEC — have the power to fill any regulatory gaps that might emerge from the Court’s striking down the aggregate contribution limits. Some critics of the decision excoriate the Court for invoking the power of Congress or the FEC to act, based on what I call the “institutionally realist” view that it is unlikely that either a polarized Congress or gridlocked FEC will do anything.  Indeed, Rick Hasen accuses the Chief Justice of a tactical use of “faux” “political naivete” in invoking the powers of Congress or the FEC; according to Rick, here, the “Chief Justice understands exactly what is going on politically,” knows nothing will happen, and is therefore deceptively hiding the truth about McCutcheon’s effects.  Put another way, we can ask:  should McCutcheon – and cases like it — be decided differently based on the Court’s judgments of “political realism” about how the political branches and regulatory agencies are likely to respond?

McCutcheon is thus a perfect example of what I have recently come to realize is one of the most profound and pervasive issues in all of constitutional and public law, a problem that we have not yet fully recognized or appreciated.  It’s the problem of what I call “institutional formalism versus institutional realism” in how the Court does or should review the actions of other institutions of government:  in deciding cases, should the Court take into account its own view of how other institutions are “realistically” likely to act or should the Court’s decisions rely only on the formal legal powers other institutions have, without regard to how they are likely to exercise (or fail to exercise) those powers?  In my view, this problem runs throughout public law and is inescapable.  There is no clear or consistent answer to it, either in doctrine or the way commentators write about the Court.  In reaction to any one case, like McCutcheon, one’s views about how “realist” or “formalist” the Court should be tend to be dominated by how one feels about the particular outcome.  But only when we see how pervasive this issue is across different areas of constitutional law, does the depth and complexity of this “realist/formalist” tension become fully apparent.

I have recently written about this in Institutional Formalism And Realism in Constitutional and Public Law, forthcoming in The Supreme Court view, here.  Here is the abstract:

Constitutional and public law often entail judicial review of the actions of public institutions. In engaging in this review, courts can adopt a stance of either “institutional formalism” or “institutional realism” regarding how the institution in question functions. After defining those terms, this article argues that the tension between institutionally formalist and realist approaches is a pervasive one, even if obscured or latent, throughout the constitutional and public law of institutions. We cannot understand these bodies of law fully without recognizing this fact. Many scholars in discrete areas of law can be understood as grappling with this tension in some form. But we have not appreciated how profound this institutional issue is, nor how it transcends specific areas of law to stand as one of public law’s general, defining problems.

This formalist/realist institutional tension structures public-law doctrine and debates regarding judicial oversight of virtually all the institutions of governance. As this article demonstrates, that is so for judicial review of the actions of Congress, the President, federal administrative agencies, state legislatures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress.

The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between formalist and realist approaches to the substantive content of legal concepts, categories, and doctrines. Now, the tension between institutional formalism and realism re-raises the question of how much pragmatism – this time, at the level of institutions and processes – is compatible with certain conceptions of the rule of law. Focusing more directly on this tension illuminates public law and its controversies but cannot suggest that any final resolution is available. Yet to understand public law fully requires appreciating the powerful role this tension quietly plays.


“Scrutinizing Federal Electoral Qualifications”

Derek Muller has posted this draft on SSRN (forthcoming Indiana Law Journal). Here is the abstract:

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and scraps of judicial precedents in litigated cases. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people, and to Congress. It then concludes that while states do have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power to election officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.

Looking forward to reading this!



“Candidate Shriver wants overhaul of L.A. County campaign finance laws”

LA Times:

Bobby Shriver, the first Los Angeles County supervisorial contender in 18 years to opt out of voluntary campaign spending limits, is calling for a major overhaul of county election laws, including lifting fundraising restrictions on candidates who use personal wealth to help pay for their campaigns.

Last month, the Santa Monica lawyer and nonprofit director contributed $300,000 of his own money to his effort to succeed longtime west county Supervisor Zev Yaroslavsky. Shriver, a member of the Kennedy political family, criticized a $1.4-million voluntary spending limit in the June 3 primary as inadequate to get his message out to 2 million constituents.


Brit Hume, George Will, and Rest of All-White Panel Discuss Racism, Voting Rights and the Obama Administration on FOX News Sunday

Transcript. A few snippets from the uncorrected transcript:

WILL: Sure. Look, liberalism has a kind of Tourette’s syndrome these days. It’s just constantly saying the word “racism” and “racist.” It’s an old saying in the law. If you have a law on your side, argue the law, if you have the facts on your side, argue the facts. If you have neither, pound the table. This is pounding the table. There is a kind of intellectual poverty now. Liberalism hasn’t had a new idea since the 1960s except ObamaCare and the country doesn’t like it. Foreign policy is a shambles from Russia to Iran to Syria to the Israeli-Palestinian conflict. And recovery is unprecedentedly bad. So what do you do? You say anyone who criticizes us is a racist. It’s become a joke among young people. You go to a campus where this kind of political correctness reins, and some young person will say looks like it’s going to rain. The person listening says, you’re a racist. I mean it’s so inappropriate. The constant implication of this that it is, I think, becoming a national mirth….


HUME: Chris, Chris, what the president said there about what they call voter suppression and others call voter I.D. laws should not go unremarked on. These are (ph) a better example of the distrust between the two sides — liberals versus conservatives in this country than that issue. The idea that people should be able to (INAUDIBLE) identify themselves as legitimate voters when they go to the polls has overwhelming support in the public. We see voter I.D. cards in places like Afghanistan. And yet in this country from the president’s podium we hear it argued that these are efforts — not efforts to keep illegitimate voters out of the polls or an effort to keep people from voting. It is — it is …



With Leland Yee Out, Is CA Secretary of State Race Wide Open?

Front page of the CA section of today’s LA Times.  What’s interesting is that there are two potentially viable reform candidates in the race, Derek Cressman (running as a Democrat, and formerly of Common Cause) and Dan Schnur (of USC’s Jesse Unruh Institute, formerly a Republican but running as a “no party preference” candidate).  Further, the Green Party candidate David Curtis is making modification of the two-two primary, because it makes it harder for third party or independent candidates to run, one of his main issues.

This is the first statewide race under top-two where things seem open to a third party or non-party candidate. Nonetheless, party id still matters a lot under top two, as may name recognition. The new Field Poll has Republican Pete Peterson leading with 30% followed by Democrat Alex Padilla with 17%. Part of the issue is that this is a low salience race and the party preference on the general election ballot could make a difference.


“Google, once disdainful of lobbying, now a master of Washington influence”

Your Sunday morning reading from WaPo, which begins:

In May 2012, the law school at George Mason University hosted a forum billed as a “vibrant discussion” about Internet search competition. Many of the major players in the field were there — regulators from the Federal Trade Commission, federal and state prosecutors, top congressional staffers.

What the guests had not been told was that the day-long academic conference was in large part the work of Google, which maneuvered behind the scenes with GMU’s Law & Economics Center to put on the event. At the time, the company was under FTC investigation over concerns about the dominance of its famed search engine, a case that threatened Google’s core business.

In the weeks leading up to the GMU event, Google executives suggested potential speakers and guests, sending the center’s staff a detailed spreadsheet listing members of Congress, FTC commissioners, and senior officials with the Justice Department and state attorney general’s offices.

“If you haven’t sent out the invites yet, please use the attached spreadsheet, which contains updated info,” Google legal assistant Yang Zhang wrote to Henry Butler, executive director of the law center, according to internal e-mails obtained by The Washington Post through a public records request. “If you’ve sent out the invites, would it be possible to add a few more?”

Butler replied, “We’re on it!”


“Ranked Choice Voting and Civility: New Evidence from American Cities”

New FairVote report, which begins:

Ranked choice voting (RCV) has been associated with a range of civic benefits, but in the context of the polarized politics of the United States its potential to promote civil and inclusive campaigns is especially promising. As the use of ranked choice voting has increased in the U.S. – including adoptions in Minnesota’s Twin Cities and the Bay Area in California – there is now more data available to test this idea in American elections. Highlights from two recent studies provide strong evidence that RCV has been embraced by voters and candidates alike, who see RCV as a means of reducing divisive politics and fostering more positive, inclusive, and informative campaigns.


“COMMENTARY: Free speech just got more expensive”

Jusus Baird of Religion News Service has written a commentary which begins:

Dear Supreme Court justices: When I heard about the McCutcheon v. Federal Election Commission ruling, it made me plotz.

I’m a rabbi, so I know much more about the Talmud than about torts. But if there’s any group that can compete with scholars of constitutional law, it’s rabbis.

Your recent decision was all about the First Amendment and free speech.

As I understand it, legal scholars have interpreted that word “speech” to include “political expression.” So far, I’m with you. I think the freedom of being able to talk politics without fear of reprisal, whether you are a mighty politician or a lowly voter, is A-OK.

But when you said that political expression is the same as a campaign contribution, you lost me.


“Florida no longer part of controversial national voter data project”

Miami Herald:

For those following the issue of voter fraud nationwide, this fact-check by PunditFact of a claim by Fox News commentator Dick Morris is a must-read.

Morris said that “probably over a million people” voted twice in the 2012 general election nationwide. PunditFact rated that False — and you can read the full report here.

Morris was referring to data from a project dubbed Interstate Crosscheck run by Republican Kansas Secretary of State Kris Kobach.

As of 2013, 28 states sent voter information to Kansas where the record of each of their voters is run against the records in all the other participating states. They are matched on first name, last name, date of birth and Social Security number.

Interstate Crosscheck’s own guide for states includes an important caveat that tends to get overlooked: “a significant number of apparent double votes are false positives and not double votes. Many are the result of errors — voters sign the wrong line in the poll book, election clerks scan the wrong line with a barcode scanner.”

Interstate Crosscheck’s reports in 2013 include Florida data based on the 2012 election. However, Florida is absent from the 2014 report. We asked a spokeswoman for Republican Secretary of State Ken Detzner why Florida dropped out.

Dan Smith: Kansas SOS Kobach’s interstate voter registration matching program so unreliable, even Florida has opted out

“The war against American citizens”

Katrina vanden Heuvel WaPo column:

In 1971, before becoming a Supreme Court justice, Lewis F. Powell Jr. penned a memo to his friend Eugene Sydnor of the U.S. Chamber of Commerce advocating a comprehensive strategy in favor of corporate interests. Powell wrote, “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

In last week’s ruling in McCutcheon v. Federal Election Commission , the Supreme Court was not a mere instrument so much as a blowtorch, searing a hole in the fabric of our fragile democracy.


Lithwick on the Disappearing Political Outrage over SCOTUS’s Campaign Finance Decisions, and Disappearing Colbert


It’s clear that at least some proportion of Americans are even more likely than they were before to give up the fight; to become further disaffected and disenfranchised in the wake of a decision by the court to privilege the free-speech rights of a fistful of millionaires over their own. And it’s important to recognize that as the public gives up, the things that once appeared corrupt will soon seem like just another day on Capitol Hill.


RNLA Issues Response to Bauer-Ginsberg; Praises Some Parts But Not Push for Early Voting

The report and the press release.  From the executive summary:

While RNLA agrees with a majority of PCEA’s recommendations, we caution against the Commission’s recommendation that states embrace expanded early voting as a solution to the systemic election administration problems identified in its report. The experience from recent elections demonstrates that early voting does not solve the problem of long lines. It is also expensive, distracts from Election Day preparations, and diminishes the importance of Election Day. Most Americans continue to prefer to vote alongside their neighbors and fellow citizens at the polls on Election Day so reform needs to start there. Accordingly, states should instead invest their limited time and resources fixing the problems at the polling place and ensuring a smoother absentee voting process for those who use it out of necessity, not convenience.

Here’s my view on the conservative resistance to early voting.


“Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011″

Matthew Christiansen and Bill Eskridge have posted this draft on SSRN (forthcoming Texas Law Review).  Here is the abstract:

In 1991, one of us published a groundbreaking study demonstrating that Congress frequently overrides Supreme Court statutory interpretation decisions. The intervening two decades have shed light on the phenomenon of congressional overrides as numerous scholars have turned their attention to the override process. The 1991 study and subsequent scholarship have shown that overrides are a critical component of the Congress-Court dialogue in statutory interpretation cases. A recent article in the New York Times, however, announced that congressional overrides declined significantly after 1991, and all but dried up in the new millennium. That assertion cast serious doubt on Congress’s future role in the statutory interpretation dialogue with the Supreme Court. In this study, the authors show that, contrary to the reports in the New York Times and elsewhere, congressional overrides did not decline during the 1990s. Quite the opposite. That decade was a “golden age” of overrides in which Congress displaced many more Supreme Court statutory interpretation decisions than the decades prior. The authors further show that, although overrides have fallen off since 1999, they remain an important part of the legal landscape.

Altogether, the authors identify 276 Supreme Court statutory decisions overridden by Congress between 1967 and 2011 — some of which have been overridden multiple times. These overrides are focused overwhelmingly on federal procedure and jurisdiction, criminal law, civil and political rights, bankruptcy, tax, and intellectual property. The majority of overrides are motivated not by a desire to rebuke an errant Supreme Court decision, but instead by the perceived need to update public policy. Empirically, the authors demonstrate that a few key characteristics of a Supreme Court statutory decision — a closely divided Court, a loss for an administrative agency, a finding of plain meaning based upon the whole act or whole code canons, and an invitation or plea for Congress to Act — make the decision much more likely to be overridden than the average statutory decision.

As a normative matter, the authors argue that congressional overrides serve valuable public purposes, for they represent democratically legitimate policy updates and contribute to both good public policy and even the predictable operation of the rule of law. The authors suggest a variety of doctrinal implications courts and agencies ought to heed to capture these normative values. The last section of the Article proposes a series of institutional reforms that Congress, the President, and the Supreme Court ought to consider in the face of the last decade’s decline in overrides. In particular, they focus on how, under the Supreme Court’s deference regimes, the decline overrides is likely to shift policymaking authority to the executive branch.

I’m really looking forward to reading this because the NYT report referred to in the abstract is this piece by Adam Liptak discussing my research, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013).


A Tale of Two Campaign Finance Appeals at SCOTUS: Why No Push to Allow Corporate Contributions to Candidates?

Pardon the inside-baseball post, but I think it reveals a little bit more about how the Court is going about dismantling what’s left of campaign finance limits.

After the Supreme Court decided McCutcheon v. FEC, striking down the aggregate limits on federal contributions, it disposed of two other cases it had been holding since McCutcheon. In one case, James v. FEC, also involving federal aggregate limits, the Court sent the appeal back to the district court to reconsider in light of McCutcheon. That’s sort of standard operating procedure when the Court holds a case and then decides another case on the same topic. (Indeed, Justin wrote a column for Justia a while back suggesting that James might have been a better case for the Court than McCutcheon when it came to striking aggregate limits.)

In contrast, the Court denied cert. in Iowa Right to Life v. Tooker, a case challenging a ban on direct corporate contributions to candidates and allowing them for unions.  The union twist is somewhat different, but I litigated the corporate ban against Jim Bopp in the Ninth Circuit and won. And all circuits to have considered the issue (including the 4th Circuit, reversing a contrary decision in the Danielczyk case) have rejected challenges to the corporate ban under the authority of an earlier Supreme Court case, FEC v. Beaumont.

Beaumont was on somewhat shaky ground after Citizens United, and on very shaky ground now (for reasons I explained at Slate) under McCutcheon.  I still think lower courts are bound to follow Beaumont. But one can easily imagine a lower court on remand in Tooker saying something like “While we are bound by Beaumont, we don’t see how Beaumont can coexist with McCutcheon and we urge the Supreme Court to clarify and take the case.”  But the Court denied cert., meaning the case is essentially over.

So why the different treatment of James and Tooker? There is both a procedural answer and a strategic answer.

The procedural answer is that James came up on an appeal and Tooker on a cert. petition. A cert. denial means nothing on the merits but a decision on appeal, even if it is a summary affirmance or dismissal, means the lower court got it right (although not necessarily for the right reasons).  I’ve written a lot about how mandatory appellate jurisdiction in some election cases has skewed those cases (it explains the demise of the poll tax, for example, as I explain in The Supreme Court and Election Law). Michael Solimine and Josh Douglas have written on these courts too, and Will Baude had a recent blog post on it. So procedurally the cert. denial in Tooker is no big deal and expresses nothing on the merits.

But strategically I think it is a big deal. A remand of Tooker to reconsider in light of McCutcheon almost certainly would have set up the case for eventual Supreme Court review—because the lower court likely would have seen itself bound by Beaumont but seriously questioning Beaumont‘s reasoning.

And CJ Roberts is playing the long game, not wanting to move quickly.  It is pretty clear he resents the mandatory appellate jurisdiction that brings so many McCain-Feingold and FECA campaign finance cases directly to the Supreme Court.  Note what the Chief writes in McCutcheon: “McCutcheon and the RNC appealed directly to thisCourt, as authorized by law. 28 U. S. C. §1253. In such a case, ‘we ha[ve] no discretion to refuse adjudication of the case on its merits,’ Hicks v. Miranda, 422 U. S. 332, 344 (1975), and accordingly we noted probable jurisdiction.568 U. S. ___ (2013).”  And consider this exchange between the Chief and Ted Olson in the first Citizens United oral argument:

MR. OLSON: I — I think I would agree with that, but I would also say that the — the idea, the functional equivalent of express advocacy is the very magic word problem that this Court has struggled with in McConnell and in — in each of the cases.
I would — I said at the beginning that this is an incomprehensible prohibition, and I — and my — I think that’s demonstrated by the fact that since 2003 this Court has issued something close to 500 pages of opinions interpreting and trying to apply the First Amendment to Federal election law. And I counted 22 separate opinions from the Justices of this Court attempting to — in just the last 6 years, attempting to figure out what this statute means, how it can be interpreted. In fact –
CHIEF JUSTICE ROBERTS: Well, that’s because it’s mandatory appellate jurisdiction. I mean, you don’t have a choice.

Roberts wants to go slow.  As I explained here, the contrast is with Justice Thomas, who hates Roberts’ faux judicial restraint and is ready to kill off all of campaign finance.

A decision striking the corporate ban next would further enmesh the Court in controversy.  I expect instead Roberts’ preferred order is (1) strike down federal soft money ban (for reasons explained in the Slate piece); (2) strike individual contribution limits: (3) strike corporate ban.

This is about strategy, not the end result.


“GOP creates new fundraising group after McCutcheon ruling”

Byron Tau reports:

In the wake of a major campaign finance ruling from the Supreme Court last week, the three major Republican Party committees have formed a new joint fundraising effort that will allow them to collect big checks from major donors.

According to documents filed with the Federal Election Commission, the newly formed Republican Victory Fund is a joint fundraising committee composed of the Republican National Committee, the National Republican Congressional Committee and the National Republican Senatorial Committee.

Guess we are starting to see if some of the “wild hypotheticals” mentioned at the McCutcheon oral argument will come true.

“In Chevron Case, FEC Brings Clarity to the Federal Contractor Ban and Super PACs”

Covington‘s Inside Political Law:

The rules on corporate contributions to Super PACs were made clearer today when the Federal Election Commission (FEC) released its finding that Chevron Corporation’s $2.5 million contribution in 2012 to the Congressional Leadership Fund (a Super PAC) had not violated the bar on government contractors making contributions in federal elections.

Public Citizen and several environmental groups had alleged that Chevron Corporation and Chevron U.S.A. Inc. had numerous federal contracts, and consequently could not contribute to a Super PAC.  On a bipartisan 5-1 vote, the FEC dismissed the charges, finding that Chevron Corporation—which made the contribution—was not a federal contractor at the time, and that federal contractor status could not be imputed to the company merely because it had a wholly-owned subsidiary that owned a subsidiary that in turn owned a subsidiary that owned a federal contractor.  In so doing, the FEC followed the agency’s longstanding practice of permitting a parent company with a federal contractor subsidiary to make a contribution as long as it has sufficient funds from sources other than the contractor subsidiary.  Nor is the federal contractor ban particularly stringent, permitting officers, shareholders, a corporate PAC, and subcontractors to contribute, even when the contractor cannot.

Having resolved the case by applying the facts to existing law, the FEC did not address an even more fundamental issue raised by Chevron:  Applying the federal contractor ban to contributions to a Super PAC is inconsistent with the Supreme Court’s limiting of campaign finance restrictions to the prevention of quid pro quo corruption or its appearance.  Last Wednesday’s decision in McCutcheon v. FEC highlights the doctrinal fragility of the federal contractor ban in cases like this.

Full disclosure:  Covington represented Chevron before the FEC in this matter.


Ex-Felon Voting Rights Bill

Press release:

U.S. Senator Ben Cardin (D-MD) has introduced a bill, S. 2235, the Democracy Restoration Act that would reduce recidivism rates by restoring voting rights to individuals after they have served their time and have been released from incarceration. Studies indicate that former prisoners who have voting rights restored are less likely to reoffend, and that disenfranchisement hinders their rehabilitation and reintegration into their community. Original cosponsors of S. 2235 include Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), and Senators Richard Durbin (D-Ill.), Sheldon Whitehouse (D-RI), Cory Booker (D-NJ), Tom Harkin (D-Iowa), and Bernie Sanders (I-Vt.). Companion legislation also was introduced today in the House of Representatives by Congressman John Conyers (D-Mich.), Ranking Member of the House Judiciary Committee.

Meanwhile, William & Mary Law School launches ‘Revive My Vote’ project.


The EPI and Election Reform: The Early Returns Are Promising

I want to offer a brief response to Rick Hasen’s post about the release of Pew’s 2012 Election Performance Index.  Now that we can assess state performance across two comparable elections, he asks an excellent question:  Will we see states trying to improve their performance?  I suggested as much in my book, The Democracy Index:  Why Our System is Failing and How to Fix It, where I proposed creating a ranking like the EPI.

It’s only been a few days, of course, but the early returns are heartening.  States are obviously paying attention; there are lots of stories about states touting their rise in the rankings or grumbling about their scores, with more discussions happening behind the scenes.

More importantly, election officials are already using the EPI to push for reform.  Secretary of State Jon Husted, for instance, noted that one of the reasons that Ohio didn’t rank higher on the EPI was its failure to keep up with other states in creating an online registration system and urged his legislature to take up the bill.   Iowa is paying special attention to military and overseas balloting, which pushed its rankings down.  Florida was working with Pew in advance of the EPI’s release and promises that it has already enacted transparency and access reforms that will improve its rankings next time.  Indiana’s Secretary of State tells us that, as we speak, the state is working on a post-election auditing process in order to up its ranking.  The state also issued “a call to action” suggesting further improvements.  Georgia insists that it’s going to do a better job on data collection in the future in order to increase its score.

We see the same thing happening at the top of the rankings, also as I predicted.  For example, the Secretary of State of Montana – which now ranks near the top – is not resting on her laurels.  She called for additional reform so that Montana could maintain its position.  So, too, the Secretary of State of top-ranked Michigan, which fell just shy of the top five, has called for online voter registration and changes to absentee voting in order to move the state higher up the list.  Twelfth-ranked Washington is on the hunt for ways to improve its already strong ranking.  And in North Dakota, which ranked first in the nation, policymakers who oppose voting rules recently enacted in North Dakota are using the EPI as a cudgel to beat the other side, arguing that those changes put the state at risk of losing its treasured number one spot.

I don’t want to overclaim.  It’s going to be hard to prove exactly how much of a push the EPI gives reform going forward, as Rick noted in his generous review of my book a few years ago.  Nonetheless, if anything the pressure on states to improve seems likely to increase over time.  The EPI has only been on the scene for two years, and this is the first time we’ve been able to make an “apples to apples” comparison (comparing a presidential election to a presidential election).  If the EPI continues to develop into the touchstone for measuring election performance, it should matter more in these debates.  Moreover, the pressure will mount for low-performing states.  States improved an average of 4.4 percentage points between 2008 and 2012.  As the always observant Doug Chapin noted, “even states showing modest improvement run the risk of being left behind.”  A spokesperson for Washington State has plainly gotten the message:  “[M]uch of what we’ve done is outstanding” but “others are catching up . . . We’re still a high performing state [but] other states are making rapid improvements.  Essentially, all boats are rising . . .”

Even if the EPI doesn’t prod a single state to do a single thing, it will still matter a great deal to election reform.  That’s because it provides an essential tool for data-driven policymaking:  a baseline.  Just as we cannot get a good read on economic policy without measures like the GDP, so, too, we cannot get a good read on elections policy without a reliable measure of how well our election system is working across time.  Already, for instance, we’ve begun to learn things we didn’t know before.  States with high obesity rates, for instance, seem to have trouble getting their voters to the polls.  So, too, we’re shaking loose some of our assumptions about which systems are working and which aren’t.  For instance, a number of states with long lines in 2012 ranked pretty high on the EPI, suggesting that the long lines were not a sign of a failing system.  Ohio and Florida, the perennial objects of late-night comedy during elections season, were somewhere in the middle of the pack.  Moreover, we see rich states and poor states performing well and badly on the list, something that at least raises questions about the real drivers of election performance.

All of the credit for this goes to Pew, which developed a rigorous and assiduously nonpartisan process for building the EPI.  Pew’s careful procedure and remarkable end product put the lie to the naysayer’s claim that any index would be dismissed out of hand as partisan.  As to the rest, we’ll see.


Republican FEC Commissioners Write NYT Letter to Editor Responding to Commr. Ravel’s NYT Oped

It pulls no punches, beginning: “Our Federal Election Commission colleague Ann M. Ravel would rather grandstand than follow the law and judicial precedent.”

Flashback to Dec 4: “Ravel said she found the level of partisan division at the FEC ‘very surprising’ after arriving in late October from her previous post as head of California’s campaign finance and ethics agency, the Fair Political Practices Commission (FPPC).”