[EL] Will the Bauer-Ginsberg Election Reform Commission Improve Our Dismal Election System?

[Michael McDonald]

I am curious what members of the list would recommend to the commission.
Here are my suggestions of what can be done in a bipartisan way:

1. Review of the Census Bureau's Current Population Survey Voting and
Registration Supplement. The CPS is an important survey source about
elections in the U.S. There are a few questions about election
administration, such as reasons why people report not being registered. Are
there additional questions that could be put on the survey related to
current policy issues, such as what id a voter was asked to present and wait
time to vote? Questions have recently been raised about the CPS methodology
(I've previously blogged about this on the HuffPost Pollster section). I'd
like to see an outside review of the questions and methodology by top survey
researchers with recommendations to the Census Bureau.

2. Federal grants to states to support on-line voter registration. This one
seems like a no-brainer. On-line voter registration decreases costs of
processing registration applications and increases the accuracy of the
information by cutting out an office worker to transcribe paper
applications. A number of Republican states have adopted it, with no hint of
fraud.

3. If federal money is to be involved in upgrading election administration,
we know where election administration is most stressed in this country. It
is among rural jurisdictions that predominantly serve Republican voters.
Most large urban jurisdictions are professionalized, with adequate office
space and full-time support staff, while elections in small rural
jurisdictions are primarily run by a part-time administrator with election
machinery stacked in the corner of their office. I'd like to see discussions
and recommendations on how to improve election administration generally, but
particularly for rural jurisdictions.

4. Federal access to data on federal elections. In the course of the last
year, I am increasingly convinced that there may be serious validity
problems with data reported to the federal government by local election
officials, such as the EAC and FVAP, related to federal mandated policies,
such as UOCAVA voters and provisional balloting. (See #3 where I think these
problems are most acute.) A review of these data are needed, and
astonishingly, in a few states the federal government -- much less academic
scholars -- cannot even access these data. If the federal government is
going to give out money, I'd recommend attaching a string that states must
provide election data at the very least to the federal government, if not
more broadly to people willing to sign confidentiality agreements.

Now for some recommendations that I believe would be a bipartisan compromise
position:

5. Universal voter registration/Election Day registration. This is likely
off the table since Republicans will not agree to it. On-line voter
registration is a step in the right direction. Another policy that a number
of states have adopted, some controlled by Republicans, is what I call
statewide portable registration. Currently, NVRA mandates registration
portability for registered voters moving within local jurisdictions. The
statewide voter registration databases mandated by HAVA have enabled robust
verification of voter registration status for someone moving within a state.
There is no evidence of fraud in states that implement statewide portability
(or local jurisdiction portability) -- it is very easy to detect someone
trying to vote twice by re-registering at a new polling location. It thus
possible to broaden the scope of current federal law regarding jurisdiction
portability to include statewide portability. When I looked at the partisan
implications in North Carolina, it appears to be a wash, in that registered
Democrats and Republicans took advantage of that state's policy at nearly
equal rates.

6. Universal in-person early voting. This one is likely off the table, too,
since Democrats tend to vote in-person early (although we really do not know
the substitution effects, that is to say, whether these folks would have
voted by other means if in-person early voting was unavailable). The
compromise position is universal no-fault absentee voting. Republicans
should generally be in favor because Republicans tend to vote by mail when
multiple voting options are available. However, I'll admit even no-fault
absentee voting will be difficult to get bipartisan consensus on. For
example, Virginia Republicans recently rejected a bill for no-fault absentee
voting. I suspect it is because there is a perception that anything that
makes voting easier will automatically be to the Democrats' advantage. The
truth is more nuanced, in that a new law may not necessarily affect all
non-voters equally, it may have a greater effect on segments of the
non-voting population that are more Republican in character, thus offsetting
the fact that most non-voters tend to look like Democrats.

Finally, one on my wish list:

7. Universal pre-registration. Pre-registration is a policy that allows 16
year olds to register to vote so that they are on the voter registration
rolls by the time they turn 18. It allows high schools to develop civics
education around voter registration. In states were poll workers must be
registered voters, it enables high schools students to be poll workers.

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Tuesday, February 12, 2013 11:54 PM
To: law-election at UCI.edu
Subject: [EL] Will the Bauer-Ginsberg Election Reform Commission Improve Our
Dismal Election System?

Will the Bauer-Ginsberg Election Reform Commission Improve Our Dismal
Election System? 
Posted on February 12, 2013 8:50 pm by Rick Hasen 
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 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 when I
suggested just such a commission 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 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, 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.

Posted in election administration, The Voting Wars | Comments Off |
-- 
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