[EL] Will the Bauer-Ginsberg Election Reform Commission Improve Our Dismal Election System?
Rick Hasen
rhasen at law.uci.edu
Tue Feb 12 20:54:14 PST 2013
<http://electionlawblog.org/>
Will the Bauer-Ginsberg Election Reform Commission Improve Our
Dismal Election System? <http://electionlawblog.org/?p=47191>
Posted on February 12, 2013 8:50 pm
<http://electionlawblog.org/?p=47191> by Rick Hasen
<http://electionlawblog.org/?author=3>
During tonight's State of the Union speech, the President made the
following remarks:
But defending our freedom is not the job of our military alone. We
must all do our part to make sure our God-given rights are protected
here at home. That includes our most fundamental right as
citizens: the right to vote. When any Americans -- no matter where
they live or what their party -- are denied that right simply
because they can't wait for five, six, seven hours just to cast
their ballot, we are betraying our ideals. That's why, tonight, I'm
announcing a non-partisan commission to improve the voting
experience in America. And I'm asking two long-time experts in the
field, who've recently served as the top attorneys for my campaign
and for Governor Romney's campaign, to lead it. We can fix this,
and we will. The American people demand it. And so does our democracy.
Here the President has followed up on his "we can fix that" statement
about long lines from his victory speech on election night and his
reiteration of the point in his inauguration speech. The issue is now
officially on the agenda. The White House's fact sheet
<http://electionlawblog.org/wp-content/uploads/SOTU-factsheet-Elections-FINAL.pdf>
on the new Presidential Commission on Election Administration tells us
that two of the leading election lawyers in the country, Democrat Bob
Bauer (Obama's campaign lawyer) and Republican Ben Ginsberg (Romney's
campaign lawyer) will come together to lead a commission on ways to
improve voting: especially in terms of long lines, the experience of
military and overseas voters, and related issues (such as voting
machines, polling places, and problems faced by voters with disabilities
and those with limited English language proficiency).
What to make of this effort? Will it lead anywhere? Here are my initial
thoughts.
1. Getting buy-in not just from the president and Democrats but from a
leading Republican election lawyer such as Ginsberg is quite
significant. Ginsberg is an adult who has never bought into the
hyperbolic rhetoric by some on the Republican side about an epidemic of
voter fraud requiring all kinds of steps to make it harder to vote. Yet
Ginsberg is not like Trevor Potter (McCain's campaign lawyer), who is a
campaign reformer and is regarded by some Republicans with suspicion.
Ginsberg is a strong conservative, very smart, and not likely to give
away the store to Democrats. His buy-in makes it more likely that other
Republican leaders in this area will join in the work of the commission,
and that what emerges really does get some bipartisan support.
2. At the same time, the goals of this commission appear to be quite
modest. Democrats in Congress have been pushing for legislation to fix
problems with voter registration and with long lines (such as proposals
for mandatory early voting periods nationally). But it does not appear
that proposed federal legislation is on the horizon (as I had advocated
whenI suggested just such a commission
<http://electionlawblog.org/?p=43847> a few days after Election Day).
Here's what the fact sheet says: "By Executive Order, the President will
charge the Commission to consider such issues, and identify practical,
commonsense steps that state and local election officials can take to
improve the Election Day experience. The Commission will also identify
the practices of voting jurisdictions where voters have the best
Election Day experience." So if all this effort does is lead to a list
of best practices, it is not clear that this will do much to really
solve the problem. We already have the Pew Election Performance Index
<http://electionlawblog.org/?p=47114> to move us towards exchanges of
information and best practices. We've had Carter-Ford and Carter-Baker.
A blue-ribbon commission report might simply gather dust in the corner
of the 13,000 election jurisdictions in this country charged with
running our elections.
3. Why so modest a goal? Why not consider federal election reform
solutions? There are three possibilities. First is that Ginsberg would
not go along with even a hint of a stronger federal role in
elections---something both Republicans and local election officials have
been fighting, and fighting hard since the issue came on the table in
November. Second, whether or not Ginsberg would go along, the people
setting up the Commission may have made the calculation that such
proposals would not get anywhere in the Republican House (or get through
a potential Senate filibuster). House Administration Chair Candace
Miller (former Republican Secretary of State from Michigan) opposes a
federal role or even holding hearings on these issues. Why propose
legislation which would be doomed to failure? Better to set the goals
lower. The third possibility that federal legislative proposals still
might emerge from this commission, even with the modest charge from the
President in the executive order. In a statement issued tonight
<http://www.brennancenter.org/press-release/brennan-center-statement-bipartisan-voting-commission>,
the Brennan Center urges the Commission to think "boldly." I'm not sure
that it can or will.
So to sum up: this is good news, and a step forward. But the goals of
the Commission are modest, and if all that is produced is a list of best
practices, it may have little practical effect on fixing our broken
election system. It will take a lot more
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>.
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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