(2003 ed.)
Justin here. I’m delighted to join the roster of reflections on the 20th anniversary of the Election Law Blog. Travis and Ellen have already noted how indispensable the blog is — how indispensable it’s been from the day of its debut — and I’ll add a hearty amen. There’s no better place to get a regular sense of developments affecting the way we do democracy, and to browse the archives is to browse an immensely rich chronicle of an immensely rich field. The blog’s range is enormous, from abstract musings on political philosophy to incisive analysis of pending legal disputes to the weediest of weedy details, like the weather report that kicked things off. And we’re all better informed as a result.
I’ve had the privilege and responsibility of stepping in as one of the guest masters of ceremonies for the blog from time to time. But just like early-00s series Cheap Seats never lived up to its potential when host Ron Parker was on leave, I know I’ve been a pale substitute for the real thing. Each and every time I’ve had the keys, I’m surprised by how much time it takes to curate, how much work is involved in culling the meaningful updates from the fire hose of news, and how much thought has to be behind presenting the important bits in a digestible way. I’ve only ever been at the helm for a week or two at a shot. The fact that Rick has been able to maintain the blog on the regular for twenty years is a marvel.
But though I couldn’t let the moment pass without acknowledging the central importance of the forum, what Rick actually requested in this series is reflections on developments in the field over the last twenty years. The first three posts in the series, in different ways, discussed the mammoth impact of changes in the Supreme Court’s approach to election law. There’s abundant there there. I’ve compared this Court to the T. rex from Jurassic Park: even its smaller steps reverberate, and the Court’s decisions in this arena have been anything but small. (Maybe, for a 2003 throwback, the more appropriate reference to an even more aggressive Court is another outsized personality. Don’t make the Court angry. You wouldn’t like it when it’s angry.) There’s plenty more SCOTUS fodder for commentary beyond the legal holdings, including the election-law impact of the shadow docket that scholars like Will Baude and Stephen Vladeck have chronicled.
However, I’d like to use my entry in the retrospective to call attention to one of the ways in which the blog has embraced the importance of the election law in spaces beyond judicial review and beneath elite commentary, just as firmly as the importance of that within.
Just two days after Rick’s first blog post, President Bush signed into law an appropriations omnibus delivered by a Republican Congress — and in so doing, invested more than $1.5 billion in the country’s elections infrastructure. That would be about $2.5 billion in 2023 dollars. The same President signed the same Congress’s appropriation of another $1.5 billion the following year, in further implementation of the Help America Vote Act.
And then the national will to pay for the elections we desire and deserve vanished right along with my hairline.
That extraordinary effort of 2003 and 2004 marks the last federal foray into reliable, sustained funding of the election process. There has been some money in the meantime, in episodic and crisis-driven fits and starts — most notably in 2018 and 2020, both before and after the onset of COVID. And it’s great news that DHS has required 3% of upcoming security grants to focus on elections. But while welcome, and important, this funding hasn’t remotely measured up to the real need.
Local budgets are tightening even as election procedures have become more complex and the threat environment has expanded. At least as of last year, the principal voting systems in 23 states are so old that the systems have been discontinued by the manufacturer. New cyberthreats require upgraded defenses. Mailings — not just ballots, but notices and address verifications — need to be translated and printed and shipped. Officials need communications support to help the public understand the rules and to fight misinformation — intentional and un- — and the need increases whenever there’s a change. It’s possible to have well-run election offices where access and security, for both physical places and systemic processes, fit hand-in-hand — but not at scale for free.
And please don’t discount the human resources: in this environment, it’s a struggle to recruit and retain both full-time talent and part-time help. That’s true both for larger offices and offices where you only need the fingers on one hand to count the elections staff … who may also be responsible for functions like registering businesses, recording deeds and marriages, assessing taxes, and handling adoption and probate.
We’ve been relying on election officials to make stone soup for so long — and we’ve been luckier than we deserve in what they’ve managed to conjure, relying on charity and ingenuity — that we’ve forgotten that we’ve been running on fumes. It’s only a matter of time until we get what we pay for, in the least pleasant sense of the phrase.
And we haven’t even discussed counting the results. Fast, accurate, cheap: pick any two. Nobody’s calling for the process to be slower or sloppier.
In addressing the challenges above, partial and unpredictable one-time crisis outlays aren’t the answer, in elections any more than they are in public health. Most of the costs are recurring. Even capital improvements carry related continuing obligations for maintenance and supplies. Congress has grudgingly offered only an occasional portion of a downpayment to would-be homeowners with no means to meet the mortgage, and no prospect of more support on the horizon.
Charity — which was never a desirable Plan A — is no longer an option in many jurisdictions. And I’d welcome that development, IF it meant that public dollars stepped into the breach to cover the gap for this quintessentially public function. (I believe that only one of the 23 states recently banning or cutting back on philanthropic funding of elections did so while making an appropriation of its own.)
Infrastructure needs investment: sustained and reliable funding to facilitate meaningful planning for more than just the cycle ahead. Elections infrastructure is no different in that respect from the infrastructure we’ve heard so much about. The need in the elections space is just as dire, and just as bipartisan. Every member of Congress got to work by traveling over the election bridge that so desperately needs basic upkeep to stay upright.
This past Thursday, President Biden — something of an infrastructure aficionado — put forward a budget which, for the second year in a row, proposed (and proposed a way to pay for) a real investment in elections infrastructure. The total allocation this time is $5 billion: the equivalent of HAVA’s outlay in today’s dollars, disbursed predictably over ten years. I hope that Congress rediscovers the wisdom of that approach. It’d make a great opportunity to celebrate another twenty-year anniversary that benefits everyone in the field.