[EL] Bauer-Ginsberg report: Initial thoughts
Rick Hasen
rhasen at law.uci.edu
Wed Jan 22 08:28:36 PST 2014
I think I'm pretty cheery about this report, at least compared to my
usual pessimism, cynicism, and dourness!
On 1/22/2014 8:12 AM, Gerken, Heather wrote:
>
> 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
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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
--
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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