[EL] ELB News and Commentary 1/23/14
Rick Hasen
rhasen at law.uci.edu
Wed Jan 22 21:07:47 PST 2014
"Super PAC Contributions, Corruption, and the Proxy War Over
Coordination" <http://electionlawblog.org/?p=58251>
Posted on January 22, 2014 9:02 pm
<http://electionlawblog.org/?p=58251>by Rick Hasen
<http://electionlawblog.org/?author=3>
I have posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383452>---still
very much a work in progress---on SSRN. I'll be presenting it at a Feb.
7 symposium <http://djclpp.law.duke.edu/symposium/> at Duke. Here is the
abstract:
This essay, written for a Duke Journal of Constitutional law and
Public Policy symposium, considers the constitutionality of limiting
contributions to "Super PACs" and other groups which make
independent expenditures in candidate elections. It begins by
demonstrating that the same four interests which may justify
limiting multi-million dollar contributions to candidates---the
anti-bribery interest, the anti-undue influence interest, the
equality interest, and the public confidence interest---apply
roughly equally to the interests justifying limiting multi-million
dollar contributions to Super PACs. It then demonstrates that thanks
to the Supreme Court's crabbed definition of "corruption" in its
Citizens United decision, contribution limits imposed on Super PACs
appear unconstitutional despite the parallel interests justifying
limiting contributions to candidates and outside groups. The Essay
then considers whether treating Super PACs which are reliable
surrogates for a candidate's campaign as "coordinated" with a
candidate would be an acceptable means of limiting contributions to
Super PACs (on grounds that coordinated spending counts as a
contribution to a candidate).
The Essay concludes that while the doctrinal move to an expanded
definition of coordination to deal with the problem of Super PACs is
completely understandable, given the state of current doctrine, the
effort would be unlikely to be successful. Courts would be likely to
reject a broad coordination rule as infringing on the First
Amendment rights of those involved with independent Super PACs.
Instead, coordination is the sideshow and the fight over the meaning
of corruption is the main event. Reformers must convince the Supreme
Court to return to the broader definition of corruption which
extends anticorruption to include not just the prevention of bribery
but also the prevention of undue influence. That day may not come
until the Supreme Court personnel changes, but it is the linchpin
for the successful resuscitation of meaningful campaign finance
regulation in the United States.
Comments welcome!
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Expanding California's Electorate: Will Recent Reforms Increase
Voter Turnout?" <http://electionlawblog.org/?p=58249>
Posted on January 22, 2014 9:00 pm
<http://electionlawblog.org/?p=58249>by Rick Hasen
<http://electionlawblog.org/?author=3>
Eric McGhee has written this report
<http://www.ppic.org/main/publication.asp?i=1083> for PPIC:
To address declines in voter turnout, California has adopted
same-day registration---so voters can register and cast ballots on
the same day---and implemented online registration. A proposal to
relax the deadline for returning mail ballots is also being
considered. These changes are not likely to significantly increase
turnout, but two of them either decrease or add few administrative
costs.
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Posted in absentee ballots <http://electionlawblog.org/?cat=53>, voter
registration <http://electionlawblog.org/?cat=37>
NYT Ed Board Calls Bauer-Ginsberg #PCEA Report "Superb"
<http://electionlawblog.org/?p=58246>
Posted on January 22, 2014 8:21 pm
<http://electionlawblog.org/?p=58246>by Rick Hasen
<http://electionlawblog.org/?author=3>
Editorial.
<http://www.nytimes.com/2014/01/23/opinion/a-plan-to-make-voting-easier.html?ref=politics>
NYT news coverage.
<http://www.nytimes.com/2014/01/23/us/politics/us-panel-recommends-ways-to-reduce-voting-delays.html?ref=politics>
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>
"Some Initial Thoughts on the Report and Recommendations of the
Presidential Commission on Election Administration"
<http://electionlawblog.org/?p=58242>
Posted on January 22, 2014 8:14 pm
<http://electionlawblog.org/?p=58242>by Rick Hasen
<http://electionlawblog.org/?author=3>
Tom Mann and Raffaela Wakeman blog
<http://www.brookings.edu/blogs/fixgov/posts/2014/01/22-president-election-commission-voting-rights-mann-wakeman>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
PCEA (Bauer-Ginsberg Commission) <http://electionlawblog.org/?cat=79>
Statements About Bauer-Ginsberg Report (PCEA)
<http://electionlawblog.org/?p=58238>
Posted on January 22, 2014 5:52 pm
<http://electionlawblog.org/?p=58238>by Rick Hasen
<http://electionlawblog.org/?author=3>
Demos
<http://www.demos.org/press-release/demos-applauds-president-obama%E2%80%99s-elections-commission-recommendation-good-first-step-m>
NAACP
<http://www.naacp.org/press/entry/naacp-statement-on-presidential-election-commission-report>
Brennan Center
<http://www.brennancenter.org/press-release/voting-commission-ideas-can-significantly-improve-elections>
LWV
<http://www.lwv.org/press-releases/presidential-commission-election-administration-issues-solid-recommendations>
So far, I don't see any statement from True the Vote, Todd Rokita, Kris
Kobach, or others who might criticize report from the right.
I will update with more statements when I get them.
UPDATE: Jon Husted
<http://www.sos.state.oh.us/SOS/mediaCenter/2014/2014-01-22-a.aspx>.
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>
"Experts: McDonnell Corruption Difficult to Prove in Court"
<http://electionlawblog.org/?p=58236>
Posted on January 22, 2014 5:43 pm
<http://electionlawblog.org/?p=58236>by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<http://www.washingtonpost.com/politics/experts-mcdonnell-corruption-difficult-to-prove-in-court/2014/01/22/fdf222a0-837f-11e3-8099-9181471f7aaf_story.html?hpid=z1>
MORE:
NYT
<http://www.nytimes.com/2014/01/23/us/politics/with-virginia-way-state-thought-it-didnt-need-rules.html?ref=politics>
Dahlia Lithwick
<http://www.slate.com/articles/news_and_politics/politics/2014/01/bob_mcdonnell_scandal_what_we_can_learn_from_the_alleged_ethical_lapses.html>
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Posted in bribery <http://electionlawblog.org/?cat=54>, chicanery
<http://electionlawblog.org/?cat=12>
"American elections need help. Here's how to make them better."
<http://electionlawblog.org/?p=58234>
Posted on January 22, 2014 5:39 pm
<http://electionlawblog.org/?p=58234>by Rick Hasen
<http://electionlawblog.org/?author=3>
Nate Persily writes
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/22/american-elections-need-help-heres-how-to-make-them-better/>
for /The Monkey Cage./
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>
"Bipartisan presidential panel suggests ways to improve elections"
<http://electionlawblog.org/?p=58232>
Posted on January 22, 2014 5:37 pm
<http://electionlawblog.org/?p=58232>by Rick Hasen
<http://electionlawblog.org/?author=3>
The LA Times reports.
<http://www.latimes.com/nation/la-na-voting-recommendations-20140123,0,5808736.story#axzz2rBEjYC9u>
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>
"Did These 68 Words Just Kill IRS Oversight of Dark Money?"
<http://electionlawblog.org/?p=58230>
Posted on January 22, 2014 5:29 pm
<http://electionlawblog.org/?p=58230>by Rick Hasen
<http://electionlawblog.org/?author=3>
Probably not,
<http://www.motherjones.com/politics/2014/01/congress-irs-law-regulate-political-groups>
but interesting nonetheless.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Corporate cash helps politicians party on; Inauguration,
convention-related groups boosted by company gifts"
<http://electionlawblog.org/?p=58228>
Posted on January 22, 2014 5:13 pm
<http://electionlawblog.org/?p=58228>by Rick Hasen
<http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2014/01/22/14150/corporate-cash-helps-politicians-party>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Feds: Illegal money funneled to SD pols"
<http://electionlawblog.org/?p=58226>
Posted on January 22, 2014 5:06 pm
<http://electionlawblog.org/?p=58226>by Rick Hasen
<http://electionlawblog.org/?author=3>
Blockbuster report
<http://www.utsandiego.com/news/2014/jan/21/feds-illegal-money-funneled-to-san-diego/>
from San Diego highlights the continued need for effective disclosure
laws to deter foreign money in U.S. elections.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
"Shorter Lines? For Elections Commission, It's Common Sense"
<http://electionlawblog.org/?p=58224>
Posted on January 22, 2014 4:52 pm
<http://electionlawblog.org/?p=58224>by Rick Hasen
<http://electionlawblog.org/?author=3>
Pam Fessler reports
<http://www.npr.org/2014/01/22/265035240/shorter-lines-for-elections-commission-its-common-sense>
for NPR.
Ohio SOS Jon Husted, a Republican, expresses support for #PCEA.
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>
Watch Presidential Commission at GW Now
<http://electionlawblog.org/?p=58222>
Posted on January 22, 2014 12:18 pm
<http://electionlawblog.org/?p=58222>by Spencer Overton
<http://electionlawblog.org/?author=17>
Right now, the Commission is here at GW Law, discussing their report in
detail for the first time. Watch live video of event on C-Span 2 by
clicking here
<http://www.law.gwu.edu/Academics/research_centers/politicallaw/Pages/AboutPLSI.aspx>!
<http://electionlawblog.org/wp-admin/post-new.php>
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"CREW Releases White Paper Rebutting Arguments Against Reforming
Tax-Exempt Political Groups" <http://electionlawblog.org/?p=58220>
Posted on January 22, 2014 11:57 am
<http://electionlawblog.org/?p=58220>by Rick Hasen
<http://electionlawblog.org/?author=3>
Press release
<http://www.citizensforethics.org/press/entry/crew-white-paper-rebutting-arguments-against-reforming-irs-dark-money>:
Today, Citizens for Responsibility and Ethics in Washington (CREW)
released a white paper, /The Dark Money Debate: Responses to
Arguments Against Reforming IRS Treatment of 501(c) Groups/,
responding to arguments against proposed reforms that would rein in
abuses of tax-exempt organizations for political purposes. Four
years after the Supreme Court's disastrous /Citizens United
/decision opened the floodgates allowing dark money groups to
influence elections, there is a concerted effort to keep this system
in place and even extend First Amendment constitutional protections
to prevent regulation of groups organized under section 501(c)(3)
and (c)(4) of the tax code. CREW's paper directly addresses these
fallacious assertions.
*Read the white paper.*
<http://www.citizensforethics.org/page/-/PDFs/General%20CREW/Reforming_IRS_501c_Treatment_CREW_1_2014.pdf?nocdn=1>
*Read a two-page summary of the white paper's major points.*
<http://www.citizensforethics.org/page/-/PDFs/General%20CREW/Reforming_IRS_501c_Treatment_Summary_CREW_1_2014.pdf?nocdn=1>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Attorney General Kathleen Kane says appeal of Voter ID ruling rests
with Gov. Tom Corbett" <http://electionlawblog.org/?p=58218>
Posted on January 22, 2014 11:33 am
<http://electionlawblog.org/?p=58218>by Rick Hasen
<http://electionlawblog.org/?author=3>
News from Pa
<http://www.pennlive.com/midstate/index.ssf/2014/01/attorney_general_kathleen_kane_23.html#incart_river>.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
Bauer-Ginsberg Report "Challenge" to Republican Lawmakers?
<http://electionlawblog.org/?p=58216>
Posted on January 22, 2014 11:28 am
<http://electionlawblog.org/?p=58216>by Rick Hasen
<http://electionlawblog.org/?author=3>
Steve Benen
<http://www.msnbc.com/rachel-maddow-show/election-panel-eyes-reforms>:
In this sense, the new non-partisan commission represents something
of a challenge to Republican policymakers at every level: you can
make it easier or harder for Americans to participate in their own
democracy. This panel concluded that "no citizen should have to wait
more than 30 minutes to vote," and presented steps to help ensure
that standard is met.
Are Republican officials prepared to take this seriously or not?
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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>
"Anonymous pre-election hit piece on Horne was legal, attorneys
argue" <http://electionlawblog.org/?p=58214>
Posted on January 22, 2014 11:25 am
<http://electionlawblog.org/?p=58214>by Rick Hasen
<http://electionlawblog.org/?author=3>
Arizona Daily Star
<http://azstarnet.com/news/state-and-regional/anonymous-pre-election-hit-piece-on-horne-was-legal-attorneys/article_edbc4687-b63b-57a1-9f03-2255f098d3a2.html>:
"A lawyer for the Democratic Attorneys General Association told the
state Court of Appeals Tuesday that organizations have a constitutional
right to run what amounts to anonymous "hit pieces" on candidates right
before the election."
(h/t How Appealing <http://howappealing.law.com/012214.html#054575>)
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
"Should politicians have the right to lie? U.S. Supreme Court could
decide in Ohio case" <http://electionlawblog.org/?p=58212>
Posted on January 22, 2014 10:05 am
<http://electionlawblog.org/?p=58212>by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Cleveland Plain Dealer/ reports.
<http://www.cleveland.com/open/index.ssf/2014/01/us_supreme_court_case_from_ohi.html>
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Posted in campaigns <http://electionlawblog.org/?cat=59>
Put Jonathan Bernstein in the "Naysayer" Category on Bauer-Ginsberg
<http://electionlawblog.org/?p=58210>
Posted on January 22, 2014 10:02 am
<http://electionlawblog.org/?p=58210>by Rick Hasen
<http://electionlawblog.org/?author=3>
Do we really want to make elections better?
<http://www.bloomberg.com/news/2014-01-22/do-we-really-want-to-make-elections-better-.html>
I remain a pessimist about this. To the extent that states want to
make it easy for everyone to vote and are willing to devote the
resources to achieve that, it's great that they'll now have a path
to do so (see Heather Gerken's optimistic take for how this could
work
<http://electionlawblog.org/?p=58168&utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+electionlawblog%2FuqCP+%28Election+Law%29>).
But I just don't see "make it easy for everyone to vote" as a goal
that most, or even many, states share.
I hope I'm wrong! To the extent that the problem is mainly one of
information not previously available to well-intentioned,
non-partisan election administrators, then Bauer-Ginsburg could
certainly make a big difference. But to the extent the problem is
one of partisan state governments who want to maintain high hurdles
between (at least some) people and the franchise --- or to the
extent that money is needed to implement change and election
administration remains a low priority --- then change will be minimal.
Still, I strongly agree with Hasen that the people involved were
excellent. And even modest improvements would be welcome. I just
don't see much hope for significant progress given the partisan
environment. Voting should be easy for everyone. There are reasons
it's not.
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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>
"Voter Fraud Is 'Rare,' Presidential Election Commission Finds"
<http://electionlawblog.org/?p=58208>
Posted on January 22, 2014 9:14 am
<http://electionlawblog.org/?p=58208>by Rick Hasen
<http://electionlawblog.org/?author=3>
TPM reports.
<http://talkingpointsmemo.com/livewire/voter-fraud-is-rare-presidential-election-commission>
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>, The Voting Wars
<http://electionlawblog.org/?cat=60>
"Inside the 'Lines Commission,' an Answer for Elections?"
<http://electionlawblog.org/?p=58206>
Posted on January 22, 2014 9:12 am
<http://electionlawblog.org/?p=58206>by Rick Hasen
<http://electionlawblog.org/?author=3>
Jeff Toobin
<http://www.newyorker.com/online/blogs/newsdesk/2014/01/inside-the-lines-commission-an-answer-for-elections.html>inside
the Bauer-Ginsberg Commission.
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>
"The Forgotten Law of Lobbying" <http://electionlawblog.org/?p=58204>
Posted on January 22, 2014 9:11 am
<http://electionlawblog.org/?p=58204>by Rick Hasen
<http://electionlawblog.org/?author=3>
Zephyr Teachout has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383317> on SSRN.
Here is the abstract:
For most of American history, until the 1950s, courts treated paid
lobbying as a civic wrong, not a protected First Amendment right.
Lobbying was presumptively against public policy, and lobbying
contracts were not enforced. Paid lobbying threatened the integrity
of individuals, legislators, lobbyists, and the integrity of society
as a whole. Some states had laws criminalizing lobbying; Georgia had
an anti-lobbying provision in its Constitution. Inasmuch as there
was a personal right to either petition the government, or share
views with officers of the government, this right was not something
one could sell---it was not, in the term used by one court, a
"vendible"--a sellable item. Line-drawing between illegitimate paid
lobbying and legitimate legal services was not easy, but in general
courts enforced contracts where the thing being sold was expertise
to be shared in a public forum, while refusing to enforce contracts
where the thing being sold was personal influence to be shared in
private meetings.
During the mid-20th century, the practice of not enforcing lobbying
contracts fell away. This change came from two things: the growing
sanctity of contract, and the professionalization of the lobbying
industry. State laws regulated lobbying instead of banning it. At
the same time, as a constitutional matter, the law of lobbying
occupied something of a no-mans land for many years---paid lobbying
was neither explicitly protected by the First Amendment nor
explicitly not protected. Supreme Court cases suggested, but did not
hold, that paid lobbying was a First Amendment right. Only recently,
and without much judicial discussion, has the legal-academic
community presumed that there is a unique First Amendment right to
pay someone to lobby, or be paid to lobby, grounded in the speech
and/or petition clauses of the First Amendment. The scope of that
right is unclear.
This Article tells the history of the earlier approaches towards
lobbying. It explores the lobbying cases of the 19th and early 20th
century courts, looking at the logic underpinning them and how
courts distinguished between illegitimate lobbying and legitimate
hiring of professional lawyers.
This Article is largely historical, but has doctrinal implications.
First, it shows that as a matter of practice, there is no historical
consensus on a First Amendment right to lobby. Second, the length
and breadth of the treatment of lobbying as wrong--not a right--is
indirect evidence that the First Amendment was not intended to
protect paid lobbying. Third, the reasoning of the courts that
invalidated lobbying contracts is still relevant to the degree of
protection, and the kinds of activities that might be worthy of
greater or lesser protection.
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Posted in lobbying <http://electionlawblog.org/?cat=28>
"Cornyn opposes bipartisan plan to revive Voting Rights Act"
<http://electionlawblog.org/?p=58202>
Posted on January 22, 2014 9:10 am
<http://electionlawblog.org/?p=58202>by Rick Hasen
<http://electionlawblog.org/?author=3>
This is a big deal
<http://www.dallasnews.com/news/politics/headlines/20140121-cornyn-opposes-bipartisan-plan-to-revive-voting-rights-act.ece>.
I have not yet heard of a single Republican Senator who has so far
endorsed the VRAA (never mind the problems in the House).
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Posted in VRAA <http://electionlawblog.org/?cat=81>
Seven of the Most Important Achievements of the Presidential
Commission on Election Reform <http://electionlawblog.org/?p=58197>
Posted on January 22, 2014 8:33 am
<http://electionlawblog.org/?p=58197>by Richard Pildes
<http://electionlawblog.org/?author=7>
The Commission's report is one of the most effective and credible
documents on /meaningful /voting reform issued in many years. I
attribute much of that effectiveness to the original decision of how to
design the Commission itself. It was not structured to include voting
rights activists from the left and the right; nor did it include
national politicians. Instead, the Commission was dominated by local
election administrators -- the people who have the most experience with
all the dysfunctions in our current voting system and some of the
strongest incentives to make the process work well -- along with
business leaders in high-volume service areas who cannot survive unless
they treat people as consumers to be respected and cultivated. And it
was led by two of the most experienced and respected election lawyers in
the country committed to evidence-based voting policy.
Here is an initial list of what I consider seven of the Commission's
most important achievements that need to be highlighted. The report
itself is all business: it is blissfully free of the kind of glittering
and vacuous generalities about voting one would expect in a
government-commission report; nor does the report trumpet its own
achievements. Partly for this reason, the report is actually more
innovative than I suspect will generally be recognized.
*1. Focusing on What Matters to Political Participation*. The biggest
policy barrier to more widespread voting is our unique -- and uniquely
burdensome -- system of voter registration. The media and others tend
to focus far more publicity on controversial /changes / to voting --
such as the controversies over voter ID laws -- and to ignore the much
larger /static /and long-standing barriers. There is no "news" or
"controversy" about obstacles to voting that are part of the status
quo. But in terms of the numbers of voters who are shut out of voting,
there is much more at stake in fixing our registration system than in
the ID-law controversies of the moment. The Commission not only throws
its weight behind fixing this system. Even more importantly, it
provides an exceptionally clear path and direct guidance on exactly the
right changes that need to be made -- and that some states are making
already -- to knock down the major registration barriers to more
widespread participation.
* 2. Collaborating with the Private Sector to Improve the Voting
Process*. A major innovation in government over the last 20 years --
more at the local government level -- has been finding ways to take
advantage of private-sector expertise and incentives to make government
function more effectively (think bike-share programs or Millennium Park
in Chicago). But our system of voting has remained oblivious to these
changes. The difficulties in the rollout of the Health Care Act are a
recent reminder that government often needs private-sector expertise on
matters like technology. The Commission report is the first significant
innovation in the voting area to suggest a series of ways our voting
system can be made to deliver a higher-quality experience for voters by
taking advantage of the tools and knowledge the private sector has
already developed to deliver high-volume services at good quality levels.
* 3. A Commitment to Concreteness*. The report is unusually concrete.
Instead of talking abstractly, for example, about how no one should have
to wait an "unreasonable" amount of time to vote, the Commission bites
the bullet and lays down a specific marker: no one should have to wait
more than ½ hour. This is now likely to become a benchmark against which
election systems and administrators are going to be judged. It will
provide a key focal point for organizations and journalists to assess
elections.
This is only one example of the report's commitment to being concrete.
Instead of just offering general recommendations on various issues, the
report consistently points to specific examples in which some states or
local jurisdictions have already created the "best practices" in various
areas that others should now follow and adapt to their particular
circumstances. Election administrators and others are not left at sea to
figure out how to institutionalize the report's new administrative
reforms and guidelines. They are told: we need to start collecting data
in effective ways on the voting experience in order to improve it -- and
if you want to see exactly how that can and should be done, Wisconsin
already has a model system in place that enables its election to run
well. For how to run an online voter registration system, look to
Arizona and Washington.
*4. The Strong Endorsement of Early Voting.* Early voting in various
forms (which includes absentee voting) has been among the most
significant changes of the last decade, with 1/3^rd of the votes cast in
the 2012 elections being cast early. Initially, there was a great deal
of consensus on this issue and it was adopted with bipartisan support.
Since 2008, when Democrats began to appear to benefit more from early
voting, the issue has become a bit more partisan at the legislative level.
At this stage, it is unclear whether Democrats have just been better
organized about early voting, so that Republicans will soon catch up, or
whether there are more structural reasons early voting is likely to
benefit Democrats more than Republicans in an enduring way. In reaction
to the short-term success Democrats have had thus far with early voting,
Republican legislatures have cut back a bit on early voting in a handful
of states. But the actual election administrators who dominated the
Commission recognize that early voting is essential to making the entire
election process function smoothly and successfully (one of the most
interesting empirical findings in the report is that voters are willing
to tolerate longer waits during early voting than on election day,
because they feel more control during the early voting process -- they
can come back another day, or schedule their lives with more flexibility
than a single Tuesday permits). Specific issues about how to structure
early voting remain. But the report firmly recognizes and endorses the
inevitability and desirability of early voting in general, and there
will be significant policy consequences, in my view, from that strong
bipartisan endorsement.
* 5. Bringing Modern Data, Management Tools, and New Technology to
the Voting Process.***This is another of the report's most innovative
moves, and it is closely related to the emphasis on learning from the
private sector. Put most simply, the report tries to push voting
systems in the 21^st century. It suggests measures like using
conventional business analytical tools and technology that are used to
manage potential line problems in the most efficient ways. It suggests
collecting real-time data on how well polling places are performing and
using feedback and monitoring processes to improve performance. It
provides actual web-tools and sites to enable instant, complex
calculations on how long lines will be at various times of the day,
based on number of poll workers, expected number of voters, and the
like. These are all highly creative and intriguing ideas. I would like
to have seen the Commission do even more in this area; this is one place
where the report is less concrete and less developed than in most other
areas. But this is a major innovation that begins to open the door to
bringing voting as a system of public administration into the modern age.
* 6. Ringing the Fire Bell on the Coming Crisis in Voting
Technology.***Enough said. Hopefully, election administrators and others
will be able to wave this report in front of legislators to force this
issue onto the budgetary agenda.
*7. Treating Voters with the Dignity Democratic Citizens Deserve.*
Finally, the report implicitly recognizes that voters should come out of
the voting process with a sense of elevated respect for the democratic
process and their role as citizens. Voting should not be a degrading
process in which voters leave with contempt for the way government
treats them, including the kinds of indignities involved in being forced
to wait hours to vote. Everything about the report -- including its
efforts to draw on private-sector experience about how to provide
high-quality services to large numbers of consumers that make them want
to come back for more -- creates the right atmosphere for thinking about
what the voting process ought to be like and how we can reform it to
make that happen.
The Commission's mandate to fix the problem of unconscionably long lines
to vote was initially criticized by some as too narrow. But long lines
were always a lever into unearthing a great many of the dysfunctional
elements in our voting system. The Commission pressed on that lever
harder, and with greater effect, than many people perhaps expected. Now
the question is how much leverage the report itself will provide as a
means of getting its solid recommendations adopted in practice. The
report should provide a central mobilizing focal point for what will
take a concerted effort.
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>, voting
<http://electionlawblog.org/?cat=31>
At GW Today: Briefing by Presidential Commission Co-Chairs
<http://electionlawblog.org/?p=58192>
Posted on January 22, 2014 8:27 am
<http://electionlawblog.org/?p=58192>by Spencer Overton
<http://electionlawblog.org/?author=17>
Moments ago, the Presidential Commission on Election Administration
<https://www.supportthevoter.gov/the-commission/> released its report,
which is here
<http://www.law.gwu.edu/Academics/research_centers/politicallaw/Pages/AboutPLSI.aspx>.
We've already got thoughts from Rick Hasen
<http://electionlawblog.org/?p=58109>, Heather Gerken
<http://electionlawblog.org/?p=58168>, and Rick Pildes
<http://electionlawblog.org/?p=58197>.
<http://electionlawblog.org/?p=58109>
*At 2:30 pm ET today, immediately after meeting with President Obama,
the co-chairs of the Commission and several commissioners will come to
GW Law.*
In their first extensive discussion after releasing the report,
co-chairs Robert Bauer and Benjamin Ginsberg will provide a briefing on
the report and the process, including an extensive opportunity for
questions from election experts, the press, and other audience members.
*We have only a few spots left. If you would like to attend, click this
link and RSVP immediately
<http://www.eventbrite.com/e/briefing-on-presidential-commission-on-election-administration-tickets-10290915405>.*
If you cannot attend, *watch live video of event by clicking here
<http://www.law.gwu.edu/Academics/research_centers/politicallaw/Pages/AboutPLSI.aspx>*.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
PCEA (Bauer-Ginsberg Commission) <http://electionlawblog.org/?cat=79>,
Uncategorized <http://electionlawblog.org/?cat=1>
Don't Listen to the Naysayers -- This Report is Important, and It's
Going to Matter <http://electionlawblog.org/?p=58168>
Posted on January 22, 2014 8:04 am
<http://electionlawblog.org/?p=58168>by Heather Gerken
<http://electionlawblog.org/?author=6>
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 are election 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 created these 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.
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Posted in PCEA (Bauer-Ginsberg Commission)
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Presidential Commission on Election Administration (Bauer-Ginsberg)
Releases Its Report: Some Initial Thoughts
<http://electionlawblog.org/?p=58109>
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.
Share
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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>
"Rumors of Our Death Have Been Greatly Exaggerated: EAC Responds on
Proof-of-Citizenship Issue" <http://electionlawblog.org/?p=58185>
Posted on January 22, 2014 7:19 am
<http://electionlawblog.org/?p=58185>by Rick Hasen
<http://electionlawblog.org/?author=3>
Doug Chapin blogs
<http://blog.lib.umn.edu/cspg/electionacademy/2014/01/rumors_of_our_death_have_been.php>.
Share
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Election Assistance Commission <http://electionlawblog.org/?cat=34>,
NVRA (motor voter) <http://electionlawblog.org/?cat=33>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voter registration
<http://electionlawblog.org/?cat=37>
--
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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