[EL] Bauer-Ginsberg report: Initial thoughts
Rick Hasen
rhasen at law.uci.edu
Wed Jan 22 07:46:11 PST 2014
http://electionlawblog.org/?p=58109
Commission on Election Administration (Bauer-Ginsberg) Releases Its
Report: Some Initial Thoughts
Posted on January 22, 2014 7:45 am
<http://electionlawblog.org/?p=58109>by Rick Hasen
<http://electionlawblog.org/?author=3>
The Presidential Commission on Election Administration
<http://www.supportthevoter.gov/>, headed by Democratic lawyer Bob Bauer
<http://www.perkinscoie.com/rbauer/> and Republican lawyer Ben Ginsberg
<http://www.pattonboggs.com/professional/benjamin-ginsberg>, and staffed
by senior research director Stanford's Nate Persily
<http://www.law.stanford.edu/profile/nathaniel-persily>, is meeting
<http://electionlawblog.org/?p=58083> with President Obama today and
releasing its report
<http://electionlawblog.org/wp-content/uploads/pcea-final-report.pdf> to
the public. The release comes with a unanimous set of recommendations
and best practices. Along with the release come 26 Appendices
<http://www.supportthevoter.gov/appendix/> comprising documents with
data and best practices totalling over 1,000 pages, an extensive survey
<https://www.supportthevoter.gov/appendix-z> of local election
officials, and an Election Toolkit <http://web.mit.edu/vtp/> (hosted by
the Caltech-MIT Voting Technology Project) with tools for state and
local election officials to calculate poll worker placement and minimize
long lines, as well as to set up or integrate existing tools for online
voter registration systems. The report will likely please many election
administrators, academics, and professionals, displease voting activists
who will see it as not going far enough in particular areas, and get
attacked by partisans on the right and left as containing too many
compromises. The big question is what happens next with the Commission's
recommendations---will it lead to Congressional, state, or local changes
to the way we run our elections? Here are my initial thoughts on the
Commission's work (with more to come from ELB contributors and others in
coming days in a PCEA mini-symposium) <http://electionlawblog.org/?p=57949>:
*1. Putting the /Administration/ Back in Election Administration, Rather
than Politics. *The quality of the research and writing of this report
is outstanding, the recommendations are sensible and doable, and (rarely
in this politically sensitive area), the report generates much more
light than heat. This should really be no surprise. Bauer, Ginsberg,
and Persily are at the very top of the field of election law. They and
the other commissioners have collaborated with some of the top political
scientists and academic experts on election administration, consulted
heavily with local election officials, and drawn on the experience of
those in the private sector who deal with customer service, technology,
and queuing issues. I agree with the vast majority of these
recommendations, on issues ranging from online voter registration, to
polling place management, to professionalization of election administration.
*2. The limited nature and scope of the report.* Achieving bipartisan
consensus is a big deal, and ending with unanimous, rational
recommendations in this contentious area rife with partisan skirmishes
(some involving Bauer and Ginsberg) is no small feat. The commission
ended with a set of recommendations and best practices which should be
studied and seriously considered by all those in election
administration. But the Commission went even farther with its Election
Toolkit and appendices which will provide ongoing tools for
administrators and others. Its data collection will help social
scientists study election systems and administration. That said, the
scope here is modest. The initial charge
<https://www.supportthevoter.gov/files/2013/12/PCEA-Executive-Order-13639.pdf>
to the Commission contemplated no federal legislation and the Commission
recommends none. This is really the fault of the Order's charge and not
the Commission (and I would guess the limited charge was necessary to
get buy in from some of the Commissioners.) The Commission takes the law
and politics as given: there is nothing about reviving the moribund
Election Assistance Commission (more about that later), about fixing the
Voting Rights Act, or about strengthening voting protections in the face
of partisan manipulations of voting rules in states and localities.
There are pleas for collecting data and adopting best practices, but no
calls for money to fix problems or federal legislation to mandate fixing
the problems. The report and Commission's lasting impact will be limited
by the absence of enforcement mechanisms, unless Commission members can
use the attention from the Report to push for change.
*3. The partisan valence of the report.* As I noted in the last point,
part of the way that the bipartisan commission achieved uniformity and
consensus was by sidestepping some of the most contentious issues, such
as those involving voter identification provisions. But there are some
notable recommendations which could be seen as having a partisan
valence. For example, the report endorses some form of early voting,
whether in person or absentee. While many Republican administrators
have long supported early voting to take the pressure off election day
lines and stresses, in recent years some Republican legislators in
places like Ohio and North Carolina have cut back on early voting in a
belief that it helps Democrats. Another aspect of the report which could
be seen as being more on the Democratic side is a call for increased
enforcement of the NVRA's motor voter provisions, especially registering
people at DMV offices. There is less emphasis on here of voter purges
under another provision of NVRA. On the other hand, the report strongly
endorses programs (such as IVCC and ERIC) to compare voter registration
databases across state lines in part to stop voter fraud through double
voting in states and to improve the accuracy of voter registration
rolls. This is an issue which has been favored by Republicans and less
enthusiastically endorsed by Democrat--though Democrats will like the
aspect of ERIC identifying potentially non-registered eligible voters.
While I think partisans on both sides may complain about these aspects
of the report, for the most part the report sidesteps hard issues,
rather than taking one side.
*4. The bit about fraud.* Consistent with the last point, there's not
much in the report which is overly controversial on the voter
fraud-voter suppression debate between Republicans and Democrats, but I
did find this line in the report particularly notable: "Fraud is rare,
but when it does occur, absentee ballots are often the method of
choice." (Page 56.) That's my conclusion
<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>
too, but it is not the typical line of hard line Republicans like KS SOS
Kris Kobach.
*5. Whither the EAC?* One of my main criticisms of the PCEA concept from
the beginning is that we already have a standing federal agency which is
supposed to be doing, on an ongoing basis, what the PCEA is doing as a
six-month temporary commitee: the U.S. Election Assistance Commission.
Republicans and state election officials want it shut down, and it has
no confirmed commissioners <http://electionlawblog.org/?p=58063> now.
It is therefore notable in the context of talking about problems of
voting technology and machine certification that the Commission cannot
envision a time when the EAC is functioning again (p. 65):
At a minimum, the authority for standards adoption and the
certification of testing laboratories cannot depend on a quorum of
EAC Commissioners. The EAC has been the subject of considerable
partisan and other disagreement about its broader mission. There is
little prospect that these conflicts will be fully or significantly
resolved, even if a fresh complement of EAC Commissioners were to
take office. Either some other body within or apart from the EAC
must be in charge of approving standards or the states should adapt
their regulations such that federal approval is unnecessary.207 A
move away from federal certification will still require states, with
the appropriate independent technical advice, to join together (as
they did before HAVA with the National Association of State Election
Directors) to endorse standards that give vendors and innovators
sufficient guidance.
The statements about the EAC are pretty sad given how much the Report
praises the work that the EAC has done in the past in its data
collection, best practices, and clearinghouse functions.
*6. The two biggest election administration time bombs in the report:
technology and polling places. *The report sounds a huge alarm bell
about the problems of voting technology, and the end of HAVA-funded
machinery's lifespan with no good replacements on the horizon. There has
been a terrible market failure in voting technology which needs to be
addressed (and which needs federal funding---something the Commissioners
don't call for). There also needs to be a substitute for EAC technology
certification if the agency is indeed dead. The other alarm bell is for
the loss of schools as polling places, thanks in part to schools which
don't want people coming onto campus after Newtown. The Commission says
schools should have pupil-free in-service days for teachers to
accommodate voting needs. It is a sensible idea.
****
Kudos to the Commissioners and staff for accomplishing much more than I
thought could be accomplished given the limited charge. Given the
charge, this is a tremendous accomplishment. If these changes could be
implemented it would positively affect the voting experience of millions
of voters. Unfortunately, the problems identified by the Commission, and
those sidestepped by the Commission, will require much more than this
Commission's good work to be solved. It remains to be seen if we can get
beyond partisan recriminations and actually fix what remains a broken
U.S. election system. Much depends upon the persuasive powers of
Commission members, the President, and others.
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This entry was posted in election administration
<http://electionlawblog.org/?cat=18>, PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> by Rick Hasen
<http://electionlawblog.org/?author=3>. Bookmark the permalink
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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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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