Bob Pastor of American University’s Center for Democracy and Election Management, who served as Executive Director of the Carter-Baker Commission, offers the following comments. (I’ve added links to sources he references).

After the Supreme Court decision on Crawford, there were a number of thoughtful comments by Heather Gerken, Bob Bauer, and Bradley Smith about the influence of the Carter-Baker Commission on that decision. I did not respond then, mostly because other commitments prevented me from doing so, but I also thought it might be helpful to take some distance before responding.
Gerken and Bauer expressed concern with the Carter-Baker Commission as a “shadow institution,” asking by what authority their views should be taken more seriously than academics, Congressman, or partisans. In their view, the Commission’s decision on IDs reflected a political compromise and ignored “the empirical evidence amassed by Spencer Overton” while unfairly limiting dissents to 250 words. Smith bemoaned that he had not been selected and that he knew more about election law than most, if not all, of the members. Others have argued that the Commission did not do adequate research to permit it to reach the conclusions that it did.
As a Senior Advisor to the Carter-Ford Commission and then Executive Director and member of the Carter-Baker Commission, I welcome the comments and would like to respond. First, because Carter-Ford had undertaken substantial research, and we made that all available to the members of the Carter-Baker Commission, we did not feel the need to replicate their work or undertake as extensive an analysis as before. At the beginning, we set up a Research Committee of twenty-four Academic Advisors, including professor Hasen, and also consulted on specific issues with a separate group of twenty-four experts. (The list of both is at the back of the report, along with the research. See http://www.american.edu/ia/cfer/.) Where we saw gaps in the substantial research that had been done since 2001, we commissioned some additional papers — particularly on the identification card issue — but we deliberately wanted to build on the work of the Carter-Ford Commission and other work being done, and spend more time assessing the Help America Vote Act, examining what was omitted by Carter-Ford and HAVA, and consciously looking at other national experiences. We conducted two sets of hearings with twenty-one expert witnesses, had three separate meetings with Congressional representatives, NGOS, and state election directors, and had a third entire day for discussion of the issues by all the members. In addition, we put up a website even before the Commission was announced on March 24, 2005 and invited comments, research, and testimony. We received a considerable amount from many. Regrettably, I don’t recall any sent by Professor Smith.
The main debate in Carter-Ford was whether there should be a federal law and national standards on election administration. The conclusion was that there should be, and HAVA was the result, but many of us — including Jimmy Carter — felt that the Commission and HAVA did not go nearly as far as was needed, and the problems that followed from the 2004 election were the impetus to try again and take it further. Carter-Baker did that, and I believe the most important work was in election administration, electronic voting, and inter-operable registration. The Congress and state legislatures were not ready for these reforms, however, and each cherry-picked those that they wanted. The ID recommendations were the most controversial, and probably remain so.
For anyone who has worked on private or public Commissions, and I have been involved in many over the past thirty years, one of the most difficult tasks is the choice of members. The two Chairs made the ultimate selection and solicited names from many places, but we sought roughly for one-third to be Democrats, one-third to be Republicans, and one-third to be not obviously partisan. We also sought diversity in gender and ethnicity. We did so because we understood that election reform cannot be effective if it is partisan and, indeed, that was the main problem that had not only infected HAVA but any work by Congress since then. Carter and Baker are too smart and have been involved in too many political contests to believe that you could simply check “partisanship” at the door, but they both consciously tried to transcend it in the deliberations of the Commission, most of the time.
And this takes us to Gerken’s assertion that the decision on ID’s was a political compromise. The division between Democrats and Republicans had increasingly been defined by Democratic concerns about voting access and Republican concerns about ballot integrity. Eighteen of the 21 members of the Commission, led by Carter and Baker, agreed that both concerns were valid, and it was not impossible for an electoral system to incorporate both. Indeed, most democracies have done that, but it is the unusual combination of parochialism and a sense of exceptionalism that has led the United States to ignore other experiences and create the most decentralized and dysfunctional system in the world. The result of our discussions was to recommend an ID system but to use the IDs to try to expand the franchise.
We proposed using the Real ID as the instrument of identification, since Congress had already legislated it, but it should be implemented gradually over five years, and the State should play an affirmative role in sending mobile vans to communities (minorities, elderly) that have been under-registered to provide free photo IDs and to register voters. In my view, the traditional Republican conservatism was stretched further than the conventional Democratic liberalism in transforming the registration system from a passive one in which people need to go to register to an active one in which the state election authority would need to go to provide free photo IDs and registration. But the point is that almost all the Commission members agreed that both concerns — for voter access and ballot integrity — were valid and should be incorporated into the recommendation. I do not view that as a compromise in the sense that each side won half a point; the recommendation addresses both concerns and seeks to achieve both goals.
For me, though obviously not for my colleagues on their blogs, it was rewarding to read the various opinions of the Supreme Court. Unlike the debate in Indiana or Missouri, which extracted parts of our analysis and recommendation to make a point different than the one that the Commission made, the majority opinion used our main arguments accurately. In my opinion, Stephen Breyer’s statement came closest to what the Commission was saying — that IDs are not unconstitutional but the way in which they are implemented matters.
As far as the suppression of dissent, that is simply nonsense. Spencer Overton had adequate time and place to make his views known. The Commission members wanted the Report to be lean so that it would be read, and so they set a limit on the number of words in the dissent. Many people had strong feelings, but everyone — except Spencer — accepted that limitation. However, to accommodate him, we included a website in his dissent that allowed him to advertise his other views and publications too.
That takes us to the post-Crawford era. Shortly after the Supreme Court ruled, Indiana had a chance to test the thesis that the IDs would lead to massive disenfranchisement. That did not occur. Only one incident was reported, involving a group of elderly nuns. One hopes that in the period between the primary and the general election, someone will help them get free photo IDs. The Center for Democracy and Election Management, which I co-direct, and which organized the Carter-Baker Commission undertook a survey of three states, and found that the number of registered voters without photo IDs was very small. (See http://www.american.edu/ia/cdem/pdfs/VoterIDFinalReport1-9-08.pdf) Frankly, I was very so surprised and uncertain with the results that we brought in a panel of methodologists to review everything about the survey and did not issue the report until everyone was satisfied that it had passed muster.
The conclusion of that report is that the problem is not IDs, but registration. And therefore, the recommendation of the Carter-Baker Commission to encourage states to pro-actively register voters in areas where there are minorities or elderly seem even more valid today. Given the movement across the country to insist on voter IDs, wouldn’t it be better if those who opposed the voter IDs because of fears of disenfranchisement would use their energy to promote the second part of the Carter-Baker Report — to lobby state legislatures to provide resources and authority to the states to register more voters and provide them free voter IDs?
With the movement toward seeking proof of citizenship — a logical step, but one that will raise significant problems in a few sections of the country — it makes sense for the nation to step back from the ID debate, and ask — as the 9/11 Commission did — whether the time has come to have a single, national biometric ID card. That is another issue for another blog.
Finally, there is the question about “shadow institutions.” I believe the Carter-Baker Commission offers the best example as to why private bipartisan/non-partisan Commissions are so important and why we are fortunate that the Supreme Court underscored its importance in their decision. As the political arena is increasingly polarized, we need to find alternative ways to incorporate the concerns of each party. Private Commissions can help in doing that. The alternatives are either stalemate or the majority party imposing its will on the other.