Category Archives: Fixing Election Administration

Reforms to Electoral Count Law On Table, Maybe

N.Y. Times

Members of the congressional committee investigating the Jan. 6 attack at the Capitol are pressing to address ambiguities in “the complex and little-known law that former President Donald J. Trump and his allies tried to use to overturn the 2020 election.”

Trump and his allies offered a questionable interpretation of the Electoral Count Act of 1887 to encourage Mike Pence to overturn the results from the Electoral College.

“’There are a few of us on the committee who are working to identify proposed reforms that could earn support across the spectrum of liberal to conservative constitutional scholars,’ said Representative Adam B. Schiff, Democrat of California and a member of the Jan. 6 committee. ‘We could very well have a problem in a future election that comes down to an interpretation of a very poorly written, ambiguous and confusing statute.’”

Representative Liz Cheney, Republican of Wyoming and the vice chairwoman of the committee, said on Thursday that ‘the 1887 Electoral Count Act is directly at issue’ and that the panel would recommend changes to it.”

The hope is that amending the Electoral Count Act will fare better than other election reforms in the Senate. I frankly don’t see why.

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House Passes H.R. 1

Final vote: 234-193. 

UPDATE: The text of the whole thing [will be] here. (As of 7:30pm ET on 3/8/19, the only text appears to be from an earlier version: the version actually considered is a combination of this, this, and these.)

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Who Gets to Vote?

Governing:

Expressing concerns about security, a majority of states have taken steps in recent years that restrict voting in one way or another, including photo identification requirements, cutbacks to early voting and policies designed to make it more difficult for students to vote where they attend college.

But something else is happening in response. This year, hundreds of pieces of legislation are up for consideration in more than 30 states that seek to expand voting rights…. All over the country, both ballot measures and legislation are being promoted to make voting and registration easier and closer to universal. It’s not happening everywhere; there’s still a partisan divide on many voting issues. But politicians from both parties, in various states, have come around to the idea that it’s time to make voting easier.

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NPR’s Ari Shapiro Interviews Kris Kobach–Listen for Last Question on Trump’s False Claims of Millions of Illegal Votes

Nice job by Ari. You can listen here.

Kobach falsely claims he is just asking for publicly available information. But it includes SSNs and other information.

He says the Commission will study security of state voter rolls. This is new.

Kobach says he “does not know” if millions of people voted illegally, as Trump falsely claimed.

“It all depends on what you describe as evidence,” Kobach says.

Ari also spoke separately with Allison Grimes, Kentucky SOS.

 

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The Presidential Commission on Election Administration — A New Model for Reform

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.

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65 Ways to Improve Our Democracy

Today the Bipartisan Policy Center’s Commission on Political Reform rolled out its recommendations and report today on strengthening American democracy.   Academics are usually on the outside looking in for such processes, but I was lucky enough to serve as one of the BPC’s 29 commissioners.  I left incredibly impressed with the spirit of cooperation and bipartisanship shown by all the members of the commission — particularly its chairs, Senators Lott, Snowe, and Daschle, Secretary Dan Glickman, and Governor Dick Kempthorne, who took a hands-on role in making the report happen and were engaged in the project from beginning to end.  As cynical as I am about such processes generally, I left this one feeling heartened.

You all should read the report, which contains no fewer than 65 recommendations for improving American democracy.  For the most contentious issues – the ones where we disagreed on the fundamentals – the Commission largely confined itself to proposals that were politically realistic and still likely to accomplish something.  For the issues on which we all agreed – especially those having to do with leadership and service – we tended to dream big.

Election law junkies will find much of interest in the report.  First, note that this is the second time in recent months that a commission that included prominent members of both parties endorsed early voting.  As I’ve said elsewhere, early voting is at the “sweet spot” of election reform.  It’s one of the rare examples where the so-called the “access/integrity tradeoff” isn’t a tradeoff.  Early voting makes it easier for people to vote, particularly working people.  By extending the voting process, it also helps reduce the pressures on election day that can lead to long lines.   But early voting also helps on the fraud side of the policymaking equation.  Voters crave convenience voting.  And early voting is a far superior alternative to the other, common form of convenience voting – absentee balloting.  Absentee voting, not in-person voting, is where there’s a real risk of fraud.  Early voting, then, is both secure and convenient, and it’s something that voters are quickly coming to expect.

Second, one of the freshest ideas in the report goes to the problem of primaries.  We all know what a problem low-turnout primaries are.  But there have been precious few new ideas about how to address it.  The Commission proposes creating the equivalent of a “Super Tuesday” for primaries – one day in June when all primaries would take place.  The aim of the proposal is clear – to focus the media and the parties’ turnout efforts and the attention of citizens on a single event in the hope of building better voting habits among our citizenry.  Although the proposal was addressed to the problem of turnout, it also helps solve a crucial problem for election administrators.  Elections are expensive.  The proliferation of primaries and election days drains election administrators of time and financial resources.  There’s no question that it will take some work to consolidate all primaries on a single day.  But the savings involved could be substantial.

Finally, the Commission put some time into thinking about what happens after all the ballots are cast.  The commissioners were acutely aware of the problems associated with recounts.  The report includes a variety of pragmatic, good-governance reforms that would lower the temperature for the recounts that will inevitably happen (at least they would reduce the number of things the parties can go to war over).  Perhaps the most important of these proposals were the ones aimed at reducing the number of provisional ballots and absentee ballots that that are uncounted on election day.  As an elections lawyer will tell you, these ballots are the ticking time bombs of the elections process.  I remember being in the Boiler Room for the Obama campaign in 2012.  For a moment, it looked as if the race might come down to Ohio, which had thousands and thousands of provisional ballots waiting to be counted.  As a member of the recount team, I briefly wondered whether I should tell my family I wouldn’t be seeing them for the next month as the campaigns were sure to litigate the status of each and every one.

I’ll just close by noting that while I don’t agree with every single proposal made by the commission, I am honored to have my name on the report.  It’s a serious report drafted by serious people.  More importantly, it’s aimed at deep and serious problems.  When I thought about whether to sign, I asked myself the question that political scientists routinely ask:  as opposed to what?  The proposals might not be my vision of the perfect.  But they are so far superior to the status quo that it would be great if even a fraction of them were implemented.  Here’s hoping.

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Moritz-ELJ Conference: HAVA at 10

I’m pleased to announce that The Ohio State University’s Moritz College of Law will host a conference on Friday, May 18, 2012 to commemorate the 10th Anniversary of the Help America Vote Act of 2002, with papers to be published in Election Law Journal.  It will feature a terrific lineup of speakers, including lawyers and law profs (Doug Chapin, Terri L. EnnsHeather Gerken, Ned FoleyRick Hasen, Steven F. Huefner, and Dan Tokaji) political scientists (Paul Gronke, Thad Hall, David Kimball, Martha KropfCharles Stewart III), former EAC Commissioners (Donetta Davidson and Ray Martinez III), and election officials (Jon Husted, Matthew Damschroder).  From the conference website:

The Help America Vote Act of 2002 (HAVA) became law 10 years ago. To commemorate this occasion and discuss how American election administration has changed over the past decade, The Ohio State University Moritz College of Law’s Election Law @ Moritz program, its Legislation Clinic, and Election Law Journal, are co-sponsoring a conference, “HAVA @ 10.”

The Moritz College of Law will host the conference in downtown Columbus, Ohio, on May 18, 2012, with papers from the conference to be published in Election Law Journal. The conference will bring together a group of national experts, including election officials, elected officials, political scientists, legal scholars, and lawyers. Topics will include laws regarding voter registration, voting technologies, the future of the U.S. Election Assistance Commission, the division of authority among federal, state, and local entities, and election administration issues that HAVA has not addressed. Ohio Secretary of State Jon Husted, former Speaker of the Ohio House of Representatives, will be the keynote lunch speaker.

The conference schedule is here, and you can register here.  Hope that some of you will join us in Columbus on May 18!

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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

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