[EL] Bauer-Ginsberg report: Initial thoughts

Wed Jan 22 08:12:27 PST 2014

I have a somewhat cheerier view of the report than Rick, though we agree on a lot.

http://electionlawblog.org/?p=58168

Don’t Listen to the Naysayers – This Report is Important, and It’s Going to Matter

            The President’s Commission on Election Administration just released its report, and it offers something we don’t often see in policymaking circles these days:  sanity.  The report provides a knowledgeable, balanced overview of what ails our system, and its recommendations are spot-on.

            No good deed goes unpunished in Washington, of course.  Indeed, I’d be willing to make two predictions.  First, the naysayers are going to tell you the Commission should have “done more” by weighing in on controversial issues like voter ID or the Voting Rights Act.  Second, most reporters are going to miss why this report matters as much as it does.

            If tomorrow’s papers trumpet complaints that the Report doesn’t offer any bipartisan “grand bargains” on voter ID or the Voting Rights Act, toss ‘em.  Grand bargains can’t be had in this political climate.  The Commissioners wisely focused on getting something done.  And their recommendations are going to make a real difference to real people.  I’d take that deal any day.

            Here’s another reason to toss your paper tomorrow:  if the paper buries the story on the back page because the reporter couldn’t figure out what makes the Commission’s recommendations so important.  To be fair, the Commission’s proposals are not the stuff of which reporters’ dreams are made.  But they are the reforms we need.  As I predicted<http://electionlawblog.org/?p=56761>, they are low-key, deeply pragmatic, easily implemented, and assiduously nonpartisan proposals.  The Commission focused on technical and technocratic solutions to the problems we saw in 2012, emphasizing a customer-service model that reflects not just the influence of the Fortune 500 CEOs who served as commissioners, but basic common sense.  Even more impressively, the report reflects a deep knowledge of both cutting-edge social science work and the day-to-day realities of election administration.

            Why would such a technical, even technocratic report matter to everyday Americans?  First, it is going to help make the invisible election<http://electionlawblog.org/archives/012471.html> – the problems that journalists rarely report and voters rarely see – visible in a way they’ve never been before.  For instance, almost no one outside of the election administration community was aware that we are nearing the crisis point for the machines purchased in the wake of the Help American Vote Act.  Now every policymaker is on notice that a Bush v. Gore II lurks on the horizon, which means that they will be on the hook if and when the next disaster strikes.  As I noted in my book on our election system<http://www.amazon.com/The-Democracy-Index-Election-Failing/dp/0691136947>, one of the reasons we have such a shoddy voting system is that election problems are invisible to voters and policymakers, at least in the absence of a recount crisis.  We can’t fix what we can’t see.  Thanks to the Commission, we can now see a lot more than we could before.

            Second, in today’s polarized environment, most election reforms are either impossible to pass or so trivial that they won’t make a difference.  The reforms proposed by the commission are both likely to succeed and likely to matter.  The Commission, for instance, has a multipronged strategy for fixing our broken registration system<http://www.democracyjournal.org/28/make-it-easy-the-case-for-automatic-registration.php>.  An astounding 2.2 million people couldn’t vote on Election Day in 2008 due to registration problems, with another 5.7 million encountering problems that had to be resolved in advance of the election.  The Commission gets it, which is why so many of its proposals are devoted to the issue.  And they are wise proposals. Online registration, for instance, isn’t just more accurate, it’s far more cost effective.  Cleaning up voter rolls is essential and an issue on which people on both sides of the aisle agree.  Integrating voter registration and state DMV’s will make the Moter-Voter Act something that it’s never been:  a success.  I’m often at conferences where people go on and on about amending the Constitution to create a right to vote.  We forget, however, that one of the essential guarantees of a right to vote is an election system that works.  That’s what the Commission is trying to achieve.

            Third, this report is as likely to move reform forward as it is to help us identify what reform ought to move forward.  We often think that voting reform comes from outside of the election system – from rules imposed by legislators or oversight imposed by reformers.  But the most important levers of change areelection administrators themselves.  If election administrators have a strong set of professional norms, agreed-upon best practices, and the technical capacity (and resources) to anticipate and fix problems in advance, there will be a lot less for legislators and reform groups to do.  The problem is that it’s very hard to develop professional norms or technical capacity in our election system.  For reasons I discuss in my book<http://www.amazon.com/The-Democracy-Index-Election-Failing/dp/0691136947>, most of the transmission mechanisms for diffusing professional norms and best practices don’t exist in the elections arena.

            The commission will help remedy that problem.   It’s not just that the report will provide a focal point for reform.  The Commissioners also did a lot of smart things to make sure their recommendations stick.  They don’t just identify goals in the abstract, for instance, but provide concrete examples of where those best practices are working in practice.  Want to improve your DMV-registration transmission system?  Take a look at what Delaware and Michigan have been doing.  Want to clean up your roles?  Talk to the folks at Pew about its “ERIC” system.  Want to learn how to notify voters about wait times?  Call your peers in Orange County or Travis County.  The Commission even provides baselines where appropriate.  As I’ve written elsewhere<http://digitalcommons.law.yale.edu/fss_papers/347/>, baselining drives reform.  That’s why it’s crucial that the Commissioners unanimously agreed that no one should wait in line for more than 30 minutes to vote.  The report gives election administrators – and, more importantly, the people who fund them – a realistic and concrete performance baseline that will do more for accountability than all the editorials that were written about long lines in the wake of the 2012 election.

            Finally, the Commission just doesn’t just give election administrators yet another a “to do” list.  Unlike any commission I can remember, the President’s Commission has given reformers the tools they need<http://web.mit.edu/vtp/> to do what the Commission is urging them to do.  Better yet, election administrators will have every incentive to take advantage of those tools, and that’s not just because they are useful.  Election administrators all dread the perfect storm – the disastrous election where they end up in the papers because of something beyond their control.  The management tools provided by the Presidential Commission are a godsend. They don’t just give administrators capacity they now lack (after all, how many election administrators can afford to hire the experts who createdthese programs)? They also provide a “shield” for election administrators should a problem arise because these tools have been “blessed” by the Presidential Commission.

            So you be the judge.  Would you rather have had a Presidential Commission opining on the need for a “fundamental reordering” of our democracy, offering a “bipartisan” compromise that no partisans would ever pass in this climate, or, worst of all, trotting out the liberals’ list of pet reform projects?  Or would you rather have a Commission that did the legwork necessary to understand the issues and offered a series of sane, sensible-center, and eminently practical solutions to what ails our election system?  The first clearly would have pleased the starry-eyed reformers and made big headlines.  The second, however, is actually going to make a difference.

Heather Gerken
J. Skelly Wright Professor of Law
Yale Law School
127 Wall Street
New Haven CT  06511
ph (203) 432-8022
fax (203) 432-8095

From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Wednesday, January 22, 2014 10:46 AM
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Bauer-Ginsberg report: Initial thoughts

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<http://electionlawblog.org/?p=58109>.

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Rick Hasen
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UC Irvine School of Law
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