February 23, 2009

Toobin on NAMUDNO

See this New Yorker piece.

Posted by Rick Hasen at 08:11 AM

November 17, 2008

Foley: A Visible Reason that Precludes a Victory Lap

Ned Foley has written this guest post for my Fixing Election Administration series:


A Visible Reason that Precludes a Victory Lap

I generally agree with much of what Doug Chapin says in matters of election administration and specifically agree with three points he makes in his contribution to Rick's cyber-roundtable on this topic:

first, it is important not to be overly alarmist about the prospects of the voting process in advance of Election Day, as some voter protection groups sometimes seem to be;

second, from initial appearances the process on November 4 generally went better than many expected, especially in states that lacked early voting;

and third, preliminary assessments of the voting process in this year's general election are necessarily incomplete, since provisional ballots have yet to be counted and other aspects of the process remain unfinished (a point I made in my own previous post in this series).

Nonetheless, despite these points of agreement, I differ with Doug on his assertion that the voting process is entitled to take a "victory lap" based the "successes" of this year.

Nor do I believe that it is necessary to invoke Heather Gerken's notion of an "invisible election" in order reject Doug's "victory lap" characterization. Heather may well be correct that an overabundance of problems went unreported. But one glaring defect did not, although it is not mentioned by Doug and somewhat downplayed by Heather.

This flaw is the unconscionably long lines that some voters were forced to endure on November 4. As I argued in my own earlier contribution to this dialogue, this is one patently indefensible practice that need not await a final gathering of evidence in order to be condemned as unacceptable--and thus it prevents a declaration of administrative success about November 4.

Heather refers to waits of "three hours of more," and of course the fact that it takes anyone three hours to cast a ballot on Election Day should be horrific enough. But three hours is mild in comparison to what the media reported.

A cursory LexisNexis search reveals the following news stories:

Lines four to five hours long in Maryland (NPR)

Up to five hours in Indiana (Nobelsville Ledger)

More than 5 hours in Detroit and Philadelphia (Stateline.org) [an article that quoted Doug on a different point]

Four and six hour waits in Missouri (St. Louis Dispatch)

Six and seven hour waits in Virginia (Virginian Pilot, Gannett News)

Seven hour waits in Pennsylvania (Philadelphia Inquirer)

But that is not all. Amazingly, there were multiple reports of voters in Pennsylvania waiting for eleven or eleven-and-one-half hours to cast their ballot on November 4! One report, from CNN about Upper Darby voters, was republished in an Australian newspaper. Two other separate reports, about precincts at "Allen High" and "Lincoln University... in Chester County," were published in Morning Call, an Allentown paper.

To be sure, these fiascos did not occur in every state or everywhere in a single state. But no voter should have to suffer such hardship on Election Day, especially in a state like Pennsylvania that lacks an early voting option.

The fact that voters this year were willing to withstand this injustice, in order exercise their democratic right to participate in this historic election, hardly excuses the administrative malfeasance perpetrated against them.

There could have been massive disenfranchisement, or civil unrest, if voters had lost their patience as they reasonably might have. The administrative system deserves no credit for their having been extraordinary in their willingness to wait.

Thus, if November 4 involved a victory in the operation of the democratic process, it was the voters' own victory in triumphing over the adversity imposed upon them by the system. But that is not the kind of victory that Doug appears to have in mind.

He suggests instead an administrative victory that the election officials are entitled to celebrate. I for one, however, do not think such official celebrations are in order when voters must wait five, six, seven--even eleven hours--to cast a ballot on the only day that the law permits them to do so.

Ned Foley

Posted by Rick Hasen at 08:25 PM

November 16, 2008

Gerken: The Invisible Election

Heather Gerken has written this guest post, as part of my Fixing Election Administration series:

The 2008 presidential election was one of those remarkable moments in politics when the nation was paying attention. After a riveting primary season and general election, the race ended with millions watching the first black man to accept the presidency.

There was also an invisible election in 2008 -- the nuts-and-bolts of election administration that journalists rarely report and citizens rarely see. Even election experts catch only glimpses of the invisible election. In the immediate wake of the election, experts must rely on reporters, and reporters won't bother to investigate, let alone report on, problems that don't affect the outcome. It's only when the race is close--as in Florida 2000 and Ohio 2004--that we see what really happened at the polling place. To be sure, when political scientists eventually start to crunch numbers, data can give us some sense of what problems arose. But the data we have are often so sparse and haphazard that they can give us only a partial sense of what occurred.

I am one of the few people to have gotten a pretty good view of the invisible election, and the reality does not match the reports of a smooth, problem-free election that have dominated the national media. As part of Obama's election protection team, I spent 18 hours working in the "boiler room," the spare office where 96 people ran national election day operations. Obama's election protection efforts, organized by Bob Bauer, were more generously funded, more precisely planned, and better organized than any in recent memory. Over the course of the day, thousands of lawyers, field staff, and volunteers reported the problems they were seeing in polling places across the country. A sophisticated computer program allowed the lawyers and staffers in the boiler room to review these reports in real time. In many places, everything ran smoothly, just as the media have reported. There were glitches, to be sure, but there were enough poll workers and election administrators to fix them as they came along.

Other jurisdictions simply fell apart as wave after wave of voters crashed down upon them. Thousands of people had to wait three hours or more to vote. In some places, there weren't enough machines to process all the voters. In others, there were plenty of voting machines, but voting booths stood empty because there weren't enough poll workers to check people in. Machines broke down. Parking lots were full. Polling places were hard to find or had been moved at the last minute. Poll workers didn't know basic rules about provisional ballots and election protocols. Far too many people showed up at the polls thinking they had registered, only to be told they weren't on the rolls. A bewildering number of polling places needed pens by mid-day because theirs had run out of ink. Many polling places simply ran out of ballots.

These problems occurred even though more voters than ever before (an estimated third of the electorate) cast their ballots before Election Day. They occurred even though everyone knew that turnout would be extremely high. They occurred even though at least one of the campaigns -- recognizing that victory depended on an election system capable of processing hundreds of thousands of new voters -- had done an extraordinary amount of work in helping election administrators get ready for the turnout tsunami that was approaching.

I draw three lessons from the time I spent watching the invisible election unfold, all of which point to the need to make the invisible election visible to the public, to policymakers, and to election administrators themselves.

First, it is essential that the public see the invisible election. We are never going to get traction on reforming our election system until we have a means of making these problems visible to voters. Virtually every media outlet has reported that the election ran smoothly. The reporting was simply incorrect for a surprising number of jurisdictions. I have recently proposed that we create a Democracy Index, ranking states and localities based on how well they run elections. Without good data on how the election system is performing, voters learn that there's a problem only when an election is so close that the outcome is in doubt and reporters devote the time necessary to investigate what actually happened. That's a bit like measuring annual rainfall by counting how often lightning strikes. The Index would help us assess the problems that occur routinely, before they cause what Rick Hasen has called an "electoral meltdown." Moreover, it would allow voters to reward strong performance. Right now, voters lack the information they need to differentiate between a bullet dodged and a well-run system ... between luck and skill, in the words of Thad Hall.

Second, we need to make the invisible election visible to policymakers. Most of the problems I saw from the vantage point of the campaign's boiler room seem to have been caused not by partisan mischief, but by neglect -- too little funding, too few resources devoted to good planning, even something as simple as not enough poll workers showing up. It confirmed my view that we should never attribute to partisanship that which can be adequately explained by inadequate resources. Here again, a Democracy Index would help. Policymakers, like voters, have no means of judging whether and where there's a problem, no sense of the consequences of starving election administrators of resources. Reliable, comparative performance data would help.

Third, election administrators should have been able to see the same kinds of information that I saw on Election Day. The information that scrolled across my computer gave me a tantalizing glimpse of how useful a tool data can be for management. There were many, many problems that could have been fixed quickly and easily if election administrators had the type of real-time monitoring capacity that the Obama campaign had. In a book coming out in the spring, The Democracy Index: Why Our Election System is Failing and How to Fix It, I spend a lot of time describing the remarkable uses election administrators have made of the data they have collected. Maricopa County has a real-time trouble-shooting system. Forsyth County, Georgia has precise information on turnout patterns and voter dispersion, something that has allowed it to deploy resources wisely and ensure that every community has equal access to the polls. Maryland has used its electronic poll books to figure out precisely how many poll workers, poll books, and machines it needs at every polling place. The Pew Center on the States has been doing extremely important work identifying "data for democracy" -- the basic information we need if we are serious about how our election system performs. As with the Democracy Index, these efforts should help make the invisible portion of our elections visible and eventually help us create the election system that we deserve.

Heather Gerken

Posted by Rick Hasen at 05:10 PM

November 13, 2008

Chapin: Enjoying the Unexpected - Or, the Virtue of a Victory Lap

Doug Chapin has written the following guest post for my Fixing Election Administration series:

Enjoying the Unexpected - Or, the Virtue of a Victory Lap
by Doug Chapin, Pew Center on the States

Almost as astounding as how smoothly Election Day 2008 went overall is how quickly everyone seems to have pivoted away to focus on the future of elections in this country. [I can't even claim credit for noticing this; that honor goes to fellow election geek Michael Alvarez.]

Yet, before we race ahead to the next big thing - which looks like it's going to be state legislative debates about early voting and a Congressional debate on registration reform - I would suggest that we may want to take a long look in the rearview mirror.

Quite simply, we need to look back and ask why Election Day 2008 went so well - and why.

Over the years, I have had friendly (and occasionally not-so-friendly) discussions with election officials about the tendency for the media (and by extension, electionline.org) to focus on the negative in its coverage of elections. My response has always been that reporters are interested in the unexpected; building fires and plane crashes get coverage precisely because planes aren't supposed to crash and buildings aren't supposed to burn.

Sometimes, though, the lack of news is news - and I would argue that Election Day 2008 qualifies.

Conventional wisdom in some quarters held that the election system was facing a "meltdown" because of the combination of a system in flux and potentially record turnout. Even those of us who adamantly refused to predict trouble were holding our breath as polls opened on November 4.

But then nothing much happened. While there were problems - names not on registration lists, ballots that couldn't be read - they never rose to the level of systemic electoral breakdown that some had predicted and even congenital optimists like me had feared.

The plane didn't crash. Democracy didn't burn.

I think that's worth investigating.

Thus, before we simply assume that Election Day is behind us and move on, we need to dig more deeply into Election 2008 and find out what went right. Specifically, we need the answers to the following questions and more (which I will not even attempt to answer here but will be following in weeks and months to come):

  1. Did the margin in the presidential race mask flaws in the system; i.e., was election offcials' apocryphal "landslide prayer" answered?
  2. Did the competitive and historic nature of the election make voters, poll workers and election officials focus more intently on their roles (what I've called the "game face" and social scientists call the Hawthorne Effect)?
  3. Was early voting really successful in getting voters "out of line" on Election Day?
  4. Do paper ballots ease polling place congestion by allowing more people to cast ballots at once?
  5. Do the number and nature of provisional ballots indicate larger hidden issues with the registration system?
  6. Did pre-election controversies about third-party registrations create issues or heighten attention (see #2?)
  7. Does improved voting information help?
  8. What changes were made between the problematic primary season and Election Day and what was their impact?
  9. Did we just get lucky? Or was luck merely the residue of design?

These questions only scratch the surface of what we need to learn about 2008 ... but I cannot emphasize enough how important it is that we take the time to answer them.

Failures happen for a reason - but sometimes successes do, too.

Either way, we are foolish if we don't stop to ask why.

Posted by Rick Hasen at 12:44 PM

November 11, 2008

Elmendorf: A Reply to Bob Bauer

Chris Elmendorf has written this guest post:

Yesterday, Bob Bauer took issue with my very tentative suggestion of a "recruit the states" model for building public confidence in the electoral process, which I presented as an alternative to new federal statutory mandates for election administration (e.g., Election Day Registration). Bauer's critique runs on two levels: he suggests, first, that "public confidence" is a dubious goal for electoral reform; second, accepting the confidence goal arguendo, he sees no reason to think that state-level experimentation under the aegis of a nonpartisan federal agency (my "recruit the states" model) would be more successful in bolstering public confidence than new national standards for federal elections.

As to the first point, I agree with Bauer that public confidence, somehow understood, is not the only goal worth pursuing in the design of electoral institutions. But I do think the desideratum of broad public consent to the legitimacy of election results--especially among supporters of losing candidates--should be kept in mind when designing election laws and institutions. Indeed, there are both intrinsic (consent-based theories of democracy) and instrumental reasons (consequences of procedural fairness for pro-social behavior) to believe that this is a matter of first importance, though the instrumental argument is more of a working hypothesis than a social-scientific "truth" at the present time.

Bauer's other objection to my suggestion is that it is "not clear why" "the state experimental program stands the superior chance of running [the] gauntlet" of "partisan mischief," as compared to federal statutory fixes. "In this last election cycle," he rightly observes, "the partisan mischief was just as pronounced at the state and local as at the federal level."

The essential advantages of the recruit-the-states approach (relative to federal standardization) are threefold. First, it fosters diversity in election administration, which is a necessary predicate for learning about the still-poorly-understood relationship between election administration and public confidence in the electoral process. Second, it provides incentives for the lawmakers and election administrators who will determine the ground rules of political competition to figure out what the public actually cares about (regards as legitimating) in this domain, and then to act on this understanding. This certainly won't end partisanship in electoral reform, but it should help to yoke partisan ambitions to the public interest, at least at the margin. (State lawmakers who can successfully demonstrate--rather than merely assert--that their preferred reforms will bolster public confidence will be rewarded with federal funding or exemptions to help implement those reforms.) Third, the very act of instituting the "recruit the states" model could serve an important expressive function, instantiating a national commitment to the principle that election procedures should be designed to secure the widest possible consent among the governed. One may hope that a meaningful statement of commitment to this principle would reinforce whatever internal inklings our lawmakers may have that bare partisanship is not an appropriate basis upon which to found electoral reform.

Chris Elmendorf
U.C. Davis School of Law

Posted by Rick Hasen at 10:20 AM

November 09, 2008

Foley: Voting Next Time--and in 2020

Ned Foley offers the following guest post in my Fixing Election Administration series:

Election reform should embrace a long-term perspective and include non-partisan administration of the voting process. Meanwhile, eliminating unconscionably long lines at the polls is a short-term imperative, as is the need for more data on which to base long-term reform.

It is too soon after the casting of ballots this year for any definitive pronouncements on exactly what reforms the new Congress should adopt in order to improve the voting process. Many of these ballots still remain to be counted. Although there already are calls for legislation that would revamp voter registration, for example, we are likely to learn much more over the next month about the way voter registration actually worked in 2008.

Several significant elections remain unsettled as of this writing, including the presidential election in Missouri, the U.S. Senate elections in Alaska and Minnesota, Ohio's 15th congressional district (which arguably is "ground zero" for the law of provisional voting), and several other U.S. House races. How these races are resolved is likely to tell us much about the practical significance of various voter registration rules: Election Day Registration (EDR) in Minnesota, compared with Ohio's five-day limited version of early voting EDR, versus Missouri's more traditional model.

Moreover, even in elections that are no longer in dispute, the process of reviewing provisional ballots in different states--as well as the analogous process of evaluating the eligibility of absentee ballots that are disputed for various reasons relating to voter registration--will reveal valuable insights about the accuracy of voter registration lists, the challenge of adopting sound practices to maintain those lists, and the obstacles to voter participation as a consequence of suboptimal administrative practices.

As our Moritz-authored book From Registration to Recounts discussed, voter registration is one part of a larger system of interrelated voting administration rules, which also include voter identification, provisional ballots, polling place challenges to voter eligibility, the recruitment and training of poll workers, and many other components. As we documented, it is necessary to understand each component in the context of the state’s overall "electoral ecosystem." I suspect--although don't yet know because the data are not yet available--that the problems that voters encountered in 2008 concerning the disqualification of both absentee and provisional ballots will tell us something important about administrative practices concerning voter registration (and vice versa).

Having made this cautionary observation about avoiding a rush to judgment on the specific voting reform legislation to put before the 111th Congress, I do think the following observations are not premature:

First, short-term versus long-term. It is worth distinguishing between problems that are imperative to fix before we vote again as a nation, in contrast to currently identifiable problems that nonetheless would benefit from a more long-term solution. One of the lessons of our experience with the Help America Vote Act (HAVA) may be that Congress moved too quickly to replace the wretched punch-card machines with expensive-yet-inadequate touchscreen technology, which subsequently needed to be jettisoned or imperfectly retrofitted. At least on the issue of vote-counting equipment, the next Congress might do well to set up a decade-long process that, starting in 2010, will lead to the use in 2020 of a new voting infrastructure of which our nation truly can be proud.

"2020 Democracy: Developing and Implementing a Vision for our Nation’s Voting Process" we might call this decade-long agenda. Consider it a gift to the children born in 2000, that year of the hanging chad. For the first presidential election in which these first-born citizens of the 21st century can vote, we will bequeath to them a truly state-of-the-art electoral process. If the nation could actually achieve that objective, it would be worth waiting for; and if the 111th Congress sets in motion the process that yields this result, it will deserve the historical credit. (Putting into place the data collection necessary for Heather Gerken's "Democracy Index" would be an important first step in this decade-long agenda.)

Second, the immediate imperative of reducing waiting times to vote. Even if one agrees that Congress should take a long-term approach to many aspects of electoral reform, there is one aspect of the process that cannot wait--and that is the truly unconscionable amount of time that many voters, particularly African-Americans, needed to wait in line this past Tuesday in order to cast their ballots. There are profound non-partisan reasons for all Americans to celebrate the vindication of democracy in our nation that occurred last week, as the world rightly took notice. But in the midst of this well-justified celebration, we should not lose sight of the fact that the historically unprecedented nature of this year's election masks the degree of disenfranchisement that these excessively long lines would have caused in any other election.

Since Tuesday, there have been reports of voters in several states--including Missouri, Pennsylvania, and Virginia--waiting five, six, or seven hours to vote! There was even one CNN report of a Pennsylvania voter waiting 11 hours! Missouri's Secretary of State has expressed the fear that some voters were unable to withstand the excessively long lines in that state, and since the presidential election in Missouri remains undecided, it is conceivable that disenfranchisement caused by the inordinate waiting times may end up being decisive on which candidate won that state. (If so, one shudders to think what would have happened if Missouri's Electoral College voters had been necessary for either candidate to reach 270.)

The consequence of the problem would have been much worse if voters, particularly African-Americans, had been unwilling to endure the unconscionable waiting times in order to vote this year, no matter how long it took. But voting should not be such an ordeal. Congress should set a national standard that no voter should have to wait more than one hour to cast a ballot and then work with states on ways to implement this standard. A change from Election Day to Election Week, at least for presidential elections, would seem a sensible place to start.

This move would differ from "early voting," as currently practiced in many states, where only one location is available for voting in each county prior to Election Day. This year we saw five-hour and longer lines at these single "early voting" locations. The different concept of Election Week, by contrast, would consist of multiple "voting centers" dispersed throughout a county, which would be open twelve hours per day, for seven days. Surely, voters could find a time within their busy schedules to visit one of these vote centers and cast a ballot without having to wait more than one hour. It would be more expensive than our current practice, but this year demonstrates that there is a constitutionally minimum level of expenditure necessary in order to prevent voters from having to suffer unreasonably long lines at polling places.

Bottom line on this point: certainly by 2012, when the United States next votes for President, Congress should have put in place a solution to the long-line problem we saw this year.

Third, rules versus institutions. One truth that this year already confirms is that it is not enough for Congress, or the states, to write new legislation that purports to set the rules for operating the voting process. To be sure, those rules are important, and it is highly desirable that those rules be clear and straightforward, whatever policy judgments they reach concerning the balance between facilitating voter participation and protecting the integrity of the voting process. But even with well-written rules, unexpected issues will emerge, and in this intensely competitive environment candidates will be looking for ways to exploit unforeseen gaps in the legislative scheme. In this situation, the identity of the administrator who implements the legislation is crucial.

We have seen the inevitable problem whenever a state's chief elections officer, charged with implementing the voting rules, is an elected partisan official. This problem is structural, and it exists whether the officer is an elected Democrat or an elected Republican. The problem merely may be one of appearances, rather than reality, but that is enough in the elections business. The dynamic now exists in which the other political party attempts to undermine the credibility and legitimacy of the state's chief elections officer, so that it can win back the position.

This dynamic has been most acute in Ohio, where Republicans have looked for ways to attack Jennifer Brunner's every move (and she has regrettably given them some openings), in an apparent payback for the Democratic attacks on her Republican predecessor, Ken Blackwell. But the same dynamic has occurred to a lesser extent in Minnesota, where Republicans have looked for opportunities to trip up Mark Ritchie in a tit-for-tat response to Democratic criticisms of his predecessor, Mary Kiffmeyer. This childish behavior would be inconsequential except that it erodes public confidence in the fairness and integrity of electoral process. Even worse, the maneuvering makes it even more difficult for local administrators to do their jobs properly, as they endeavor to keep their heads down while the partisan bombshells are hurled back and forth. We'll see, too, whether this dynamic interferes with Ritchie's ability to conduct the impending Minnesota recount in a way that both sides perceive as impartial and fair, even assuming the best of intentions on his part.

It may be difficult for Congress to mandate that for federal elections, including presidential elections, states employ a non-partisan chief elections officer. That issue is one that needs further examination, including an analysis of relevant constitutional considerations. Nonetheless, there will be no truly successful reform of the voting process--whether for 2020 or any other year--unless and until our nation figures out a way to rid itself of this structural defect in our system.

The new Congress thus should not have the attitude, "We're fine with states having elected Secretaries of State running their elections, as long as they are Democrats." Instead, Congress should look for ways creatively to eliminate this institutional problem. Since it won't be easy, even though it is essential, tackling this topic is another reason to set our sights long-term.

Fourth, the ticking time bomb of the Twelfth Amendment. We now have had two presidential elections in which we've escaped another disaster like the one in 2000, and the odds are in our favor that we will have many more escapes until the next disaster hits. But these escapes do not mean that we are safe.

At some point in our nation's future, there will be another incredibly close presidential election, where the winner of the Electoral College depends on the outcome in a single state and the result in that single state depends upon the resolution over a dispute over the counting of ballots for presidential electors there. When that occurs, all the reform of the voting process will not matter--including the institutional reform of non-partisan chief election officers in each state--unless Congress has also reformed the institutional mechanism for resolving this kind of dispute over presidential ballots.

In the aftermath of Bush v. Gore, it is unclear whether as a practical matter the institution that will resolve a future dispute over presidential ballots will be the U.S. Supreme Court again or, instead, Congress according to the arcane and imperfect procedures of the Electoral Count Act, which was adopted in the wake of the crisis of 1876. This institutional uncertainty is unsettling--and undesirable. It is the result of the Twelfth Amendment failing to specify what should happen when this kind of dispute arises, a defect noted presciently by Joseph Story in the 1830s but we have yet to rectify.

While it might not seem the most pressing reform given the odds each year against another meltdown scenario, as a nation we have suffered considerably the two times that this deficiency has mattered: 1876 and 2000. It would be preferable that, whenever this kind of situation happens again, we have already taken the steps to be better equipped with a clear and fair method of resolving this kind of dispute.

Thus, as long as we are itemizing the elements of a state-of-the-art electoral system for 2020, this particular item should be added to the list.

Posted by Rick Hasen at 07:57 PM

Elmendorf: Two Models for Building Public Confidence in the Electoral Process

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.

Posted by Rick Hasen at 04:58 PM

November 07, 2008

Tokaji: Reforming Registration

Dan Tokaji offers this guest post:

On Monday, I identified four problem areas to watch out for on Election Day: 1) lines at the polls, 2) voting equipment, 3) voter registration lists, and 4) provisional and absentee ballots. While machine breakdowns and polling place lines got the lion's share public attention on Election Day, a closer look reveals that voter registration was the election administration issue of 2008. Looking forward, it is imperative that policymakers consider changes to voter registration that would eliminate unnecessary barriers to participation and reduce the need for provisional ballots. Expanding Election Day Registration would be a great place to start.

There are a couple of reasons for the special importance of voter registration this year. One is the massive influx of new voters. The other is a change in the law. The Help America Vote Act of 2002 (HAVA) required every state to implement a statewide voter registration list by 2006. Before that, most states maintained their voter registration lists at the local level. This was the first presidential election in which this major change to our voter registration system was in effect. And like any other change -- such as the implementation of new voting machines and provisional voting in 2004 -- it caused its share of problems.

Especially challenging was the implementation of HAVA's requirement that statewide registration databases be "matched" against information in motor vehicle and social security records. This particular requirement proved problematic, because HAVA provides little clear direction on how this matching is to be done or on what consequences should follow from a failed match. In addition, the process of matching registration records against other government lists turned out to be much more difficult than Congress imagined when it passed HAVA.

Registration matching became a focal point of controversy, partly because of the revelation that some ACORN canvassers had submitted phony voter registration forms rather than doing the work for which they were being paid. There is little evidence that this led to actual voter fraud -- Mickey Mouse's name may have appeared on registration forms, but he didn't show up to vote. Nevertheless, Republicans in Ohio and Wisconsin raised the specter of voter fraud in litigation brought to compel matching by state officials. [Disclosure: I joined voting and civil rights groups on amicus briefs opposing both lawsuits.]

A more pressing concern is that overly restrictive matching and purging practices will exclude eligible voters. As the Brennan Center has documented, data entry errors and other administrative problems can result in erroneous mismatches. Florida's "no match, no vote" policy is probably the worst example. Fortunately, most other states declined to penalize voters for administrative mistakes. In Ohio, more than 200,000 voters who registered this year -- more than one quarter -- did not match. In Wisconsin, four members of the six-person board that runs the state's elections had a mismatch. To remove these mismatched voters from the list or require them to cast provisional ballots would have created serious administrative problems, compounding lines at polling places and creating the risk of eligible citizens' votes being rejected.

Fortunately, Ohio and Wisconsin didn't remove "mismatched" voters from the rolls or make them cast provisional ballots, and the courts wisely declined to order any such relief. Unfortunately, there were still lots of registration problems that required many voters in some states to cast provisional ballots. A large number of provisional ballots is problematic not only because they can result in eligible voter's ballots not being counted, but because they can exacerbate the uncertainty surrounding a close election.

Although the presidential election wasn't close enough to bring provisional ballots into play, there are other still-unresolved contests that illuminate this problems. Most notable are close congressional races in Minnesota and Ohio. In Minnesota, the Democratic candidate for the U.S. Senate Al Franken currently trails Republican incumbent Norm Coleman by a razor-thin margin of just 237 votes out of over 2.8 million cast. In Ohio, Mary Jo Kilroy, the Democratic candidate for the 15th Congressional District, trails Republican Steve Stivers by 146 votes out of more than 260,000 cast (though the margin may be going up due to a just-detected tabulation error).

The vote totals in both these races can be expected to change before there become final -- but substantial swings are especially likely in Ohio. A major difference between these two states is in the use of provisional ballots. Ohio relies very heavily on them. There were over 27,000 cast in Franklin County alone, about half of which are probably in the 15th CD. As I explained in this comment, a large number of provisional ballots tends to increase the margin of litigation, casting uncertainty over the result and making disputes over the outcome more likely. There's a good chance that Kilroy and Stivers will wind up fighting over whether to cast provisional ballots, perhaps using litigation pending in federal court as the vehicle.

On the other hand, Minnesota has Election Day Registration. EDR not only increases turnout -- around 5-10%, according to most studies -- but also eliminates the need for provisional ballots. If a previously registered voter moves or has her name removed from the rolls, she can simply register (or re-register) at the polling place. Minnesota thus reported zero provisional ballots in 2006. Because there are no provisional ballots to fight over, EDR in Minnesota eliminates a major source of contention and potential litigation.

That's one of the reasons why my Moritz colleagues and I ranked Minnesota ranked first and Ohio last, in a study of five midwestern states completed last year. Expanding EDR to other states would help reduce the problems arising from failed matches, since voters could still re-register even if they have been removed from the rolls. While opponents complain that EDR increases the risk of fraud, a report by Lori Minnite found scant evidence of voter fraud in the states that have EDR. Past sessions of Congress have failed to enact legislation that would require EDR in all federal elections. Now is the time for the incoming Congress to reconsider such legislation.

Other possible registration reforms also warrant consideration. One possibility is to move toward a Canadian-style universal voter registration system. This system resulted in 93.1% of eligible citizens in Canada being registered. By contrast, just 67.6% of eligible citizens in the U.S. were registered as of 2006. Having government officials take affirmative responsibility for registration could reduce some of the problems that inevitably occur when private groups like ACORN are left to shoulder the burden of registering people not reached through other means.

Another option worth considering is moving responsibility for registration to the federal government. This might be combined with universal voter registration, as Rick Hasen suggests. A major problem with this reform is developing a federal institution that is competent to execute this responsibility. Given the problems that the U.S. Election Assistance Commission (EAC) has experienced, institutional reform is a necessary prerequisite to federalization of the registration rolls.

Reasonable minds can certainly disagree on what registration reforms are most worthy of adoption. What cannot reasonably be disputed is that this component of our democratic infrastructure is in need of further repairs. The fact that the 2008 presidential election didn't go into overtime shouldn't blind us to that reality.

Posted by Rick Hasen at 08:17 AM

November 05, 2008

Gronke: Early Voting is Here. Now How Do We Manage It?"

Paul Gronke offers this guest post (and note I've added a new blog category, "Fixing Election Administration," which will allow readers eventually to see all the posts in this series):

The dramatic rise in early voting this election opens up a window of opportunity to have a national dialogue about the meaning of Election Day. It is almost certain that this dialogue will take place in the halls of Congress. In the last session of Congress, several bills were proposed that would mandate no-excuse absentee balloting for all Federal elections, and one of these bills was co-sponsored by Senator Hillary Clinton.

Under future legislation, I hope they will consider options to standardize availability and standardize reporting for early voting, because early voting results have now become part and parcel of the pre-election reporting.

Options should be considered such as standardized periods for early voting, equitable access to early voting for all citizens, and mandatory reporting of early voting returns. While flexibility is often necessary so that states and counties can adapt voting procedures to local conditions, there is no reason that a voters in one county can cast an early ballot at many locations while citizens in neighboring counties have access to just a single location. And it is misleading to the public to have early voting returns available on a scattershot basis.

Finally, while it should not be part of Federal legislation, the major news outlets need to revisit the 1980 accord, considering whether it early voting exit poll results should be withheld, as we now withhold Election Day projections, until the polls close on the West Coast.

Posted by Rick Hasen at 11:11 AM