[EL] Butler and the EAC

[Nate Persily]

The only one of the four nominees who I know (relatively) well is Matt Masterson, a Republican nominee.  And he is exactly what we should want from an EAC commissioner.  He has been administering elections in Ohio for  many years and worked on voting technology issues (among
others) at the EAC during its infancy.  He was also a great help to the Presidential Commission at various points.  
I consider the EAC (still) to perform three critical functions.  The first is to adopt standards for new voting technology (something they cannot really do
without a quorum). On this, Masterson is really a national leader.  This should not be a partisan issue but it requires a great deal of work and expertise.  As machines are breaking down around the country, this function must be performed by the EAC or we need it reassigned to another
agency.  The second is to perform the various surveys related to election administration (EAVS, UOCAVA, NVRA).  We all have lamented the absence of adequate data in our field, and despite whatever shortcomings we might note in EAC data, their surveys are absolutely critical to
understanding certain aspects of election administration.  Third, the EAC serves as a clearinghouse for information on election administration.  As the on-line Appendix to the Presidential Commission Report  makes clear in its assembly of the various quick start guides and other EAC
reports, the EAC has served as the principal repository for information on virtually every operational issue on how to run an election.  
The EAC does much more than these three functions (e.g., administering grants and approving federal voter reg form), but these are the functions that I
would deem critical.  And in terms of bang for the taxpayers buck, I have to say that the EAC does an unbelievable amount with the limited funds it has.
The tragedy of the EAC is that the voter ID debate has now cast a shadow over its many critical functions so the agency, itself, has
become a locus for partisan debate, even if most of what it does and what we need it for should be at least one step removed from the hot button issues that divide the parties.
 
 



---------------------------- Original Message ----------------------------

Subject: Re: [EL] Butler and the EAC

From: "Rick Hasen" <rhasen at law.uci.edu>

Date: Thu, November 20, 2014 12:56 pm

To: law-election at department-lists.uci.edu

--------------------------------------------------------------------------



> I'm going to disagree strongly with you here Justin.

>

> To begin with, there is already a tremendous amount of mistrust on the

> Republican side about the EAC, with many claiming the agency should be

> disbanded. (The House voted to do so already, and it is kind of shocking

> Republicans might allow a vote on commissioners). Choosing someone who

> has worked for Media Matters and who apparently has no election

> administration experience to speak of is (deliberately?) provocative of

> the Republican side. The overheated reaction of Michael Thielen at the

> RNLA is entirely to be expected:

> http://thereplawyer.blogspot.com/2014/11/victory-and-defeat-for-open-fair-and.html.

> I expect many more level headed Republicans to have their doubts as well.

>

> I am not saying that Mr. Butler could not be a fair commissioner who

> could make decisions that he sees to be in the best interest of the

> country and in a non-partisan way. But he will start out at an already

> troubled agency without any goodwill and with lots of mistrust.

>

> Compare that situation to the Democrats nominating someone (who is a

> lifelong Democrat) who has extensive experience actually administering

> elections, or at least being somewhat involved in the world of election

> administration. That would be a way to try to build some good will,

> bring competence and confidence to the agency, without sticking a finger

> in someone's eye.

>

> I don't know anything about the Republican-nominated commissioners, and

> whether they are any better on this score than Butler. But, as indicated

> in my blog post (and my book), I have written off the EAC as the site

> for trans-partisan important work.

>

> Rick

>

>

>

>

> On 11/20/14, 9:37 AM, Justin Levitt wrote:

>> I've never met or spoken with Mr. Butler (at least, not to my

>> knowledge), and I have absolutely no idea from any other sources

>> whether he'd be a partisan EAC commissioner or not. But to draw

>> conclusions from the 159 characters in his Twitter bio about how he

>> would act in a position of official responsibility strikes me as just

>> as silly as concluding how he'd act in a position of official

>> responsibility based on who he chose to vote for. And whether Rick

>> means the suggestion that Butler could be quite partisan in a new

>> position as praise or critique, it also strikes me as deeply unfair to

>> Mr. Butler.

>>

>> The quoted Twitter bio tells me that Mr. Butler has consulted for

>> political organizations and nonprofits. He currently runs an

>> organization supporting independent filmmaking apparently for the

>> benefit of communities affected by disaster, displacement and economic

>> disparity <http://www.filmaid.org/what-we-do/>. He used to run an

>> organization that is highly critical of some conservative news

>> outlets, Fox included, and recognizes that Fox supporters aren't

>> likely to agree with him.

>>

>> I don't see anything in there about political parties or government

>> service, much less using government service for partisan political

>> ends. Even if you think that these past jobs have been partisan,

>> there's no reason to assume that people can't tell the difference

>> between appropriate behavior in a private capacity and appropriate

>> behavior in a government job representing the people. Some people,

>> it's true, have only one gear. But as I've written

>> <http://ssrn.com/abstract=2239491>, the vast majority of people

>> understand role morality pretty well, and behave differently in

>> different roles throughout their life.

>>

>> Branding people as partisan through-and-through based on a few words

>> in a different context (much less words that don't actually show a

>> predilection to political partisanship) has costs. Aside from any

>> personal impact on Mr. Butler, or individuals who may be contemplating

>> public service in the future, it decreases any effect of critique that

>> actually may be merited by real inappropriate action.

>> --

>> Justin Levitt

>> Professor of Law

>> Loyola Law School | Los Angeles

>> 919 Albany St.

>> Los Angeles, CA 90015

>> 213-736-7417

>> justin.levitt at lls.edu

>> ssrn.com/author=698321

>> On 11/20/2014 7:32 AM, Rick Hasen wrote:

>>>

>>>

>>> Myrna Perez Withdraws from EAC Consideration; President Nominates

>>> Matthew Butler <http://electionlawblog.org/?p=68518>

>>>

>>> Posted onNovember 19, 2014 4:41 pm

>>> <http://electionlawblog.org/?p=68518>byRick Hasen

>>> <http://electionlawblog.org/?author=3>

>>>

>>> The rumors turned out to be true. The Brennan Center's Myrna Perezhas

>>> withdrawn

>>> <http://www.whitehouse.gov/the-press-office/2014/11/19/presidential-nominations-and-withdrawal-sent-senate>her

>>> nomination and one of the Democratic-appointed EAC commissiners. In

>>> her place, Matthew Butler.

>>>

>>> Butler's current twitter bio<https://twitter.com/matthewsbutler>makes

>>> it sounds like he could be quite partisan in this position:

>>> "Political & Non-Profit Management Consultant. Current interim ED

>>> @FilmAid <https://twitter.com/FilmAid>. Fmr. CEO @MMFA

>>> <https://twitter.com/MMFA>. Opinions my own and probably not popular

>>> with many fans of Fox News."

>>>

>>> As I explain in /The Voting Wars/

>>> <http://www.amazon.com/The-Voting-Wars-Election-Meltdown/dp/0300198248>,

>>> there was a time when a few courageous EAC commissioners could have

>>> made the Commission something to get above the partisan sniping. But

>>> they were shut down and that moment regrettably has passed.

>>>

>>>

>>> Posted inelection administration

>>> <http://electionlawblog.org/?cat=18>,Election Assistance Commission

>>> <http://electionlawblog.org/?cat=34>,The Voting Wars

>>> <http://electionlawblog.org/?cat=60>

>>>

>>>

>>

>>

>>

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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

> http://www.law.uci.edu/faculty/full-time/hasen/

> http://electionlawblog.org

>

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--

Nathaniel Persily

James B. McClatchy Professor of Law

Stanford Law School

Stanford, CA 94305-8610

(917) 570-3223

nate at persily.com

www.persily.com
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