[EL] How serious is this problem?

[Craig Holman]

Hi Larry:


A very useful summation of the recent discussion on voter information.


I see below your comment is a rather angrier response to my post of last week from Larry Levine, who challenges what I wrote on slate mailers (and just about everything else). Sorry for missing this earlier; we in DC are just now climbing out of snowzilla and I overlooked many of the emails that piled up. (Today it is getting up to 50 degrees -- and my car is melting free from a snowbank as I write.)


I am not usually one for getting into tit-for-tat discussions on this listserv. They seem to never end and rarely are productive. But I do find one comment Levine made to me of interest: Your writing is so fraught with inaccuracies when measured against today’s reality that there isn’t sufficient room here to deal with all of them.


It prompts me to query what has changed when it comes to slate mailers. Dan Lowenstein, Dick Mountjoy and I once were on a cable TV show called "Full Disclosure", hosted by Leslie Dutton, discussing the value of slate mailers. This show also aired about 20 years ago, but Dutton re-broadcasts the show every election.


The show on slate mailers is available here: http://www.fulldisclosure.net/1998/06/voters-deceived-by-slate-card-mailers/


I would be very interested in Levine posting one of his recent slate mailers so that I could judge for myself whether the new slate mailers are more informative, and less deceptive, than the slate mailers of yore.



Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com



-----Original Message-----
From: Larry Sanger <yo.larrysanger at gmail.com>
To: law-election <law-election at uci.edu>
Sent: Wed, Jan 27, 2016 5:50 pm
Subject: Re: [EL] How serious is this problem?



Thanks very much to the people who replied in this thread (and the one person who replied off-list). Ah, the joys of an old-fashioned mailing list—feels like the 1990s all over again. :-) Really, this is absolutely fascinating, and I am humbled to have elicited such interesting replies from some real experts.


Thanks also for tolerating some more newbie comments and questions. (Some replies to previous posts are interspersed below.)


The issue restated. Let me reiterate the specific issue I wrote about, because I'd like to see if anyone else has anything to say about it.


My experience preparing to vote on Nov. 4 and then seeing the actual ballot leaves me skeptical that it is easy enough for ordinary voters to get their hands on a complete, accurate copy of their ballot. In my case, the fault really lay with the Fairfield County (Ohio) Board of Elections, whose website makes it more difficult than most to find a sample ballot. (It turns out there is a search feature, but only if you guess that you will find it when clicking on "Am I Registered?") We might also blame it on the state of Ohio, which doesn't have a sample ballot lookup system, as according to my research about a third of the states do. To a small extent I'm to blame because it was my civic duty to ensure I studied a copy of my ballot beforehand, but I certainly tried to do my duty.


Studying this problem naturally appeals to me because it has philosophical import and a possible entrepreneurial (or civic-minded nonprofit) solution.


Political ignorance. On Robbin Stewart's point, not being able to find a copy of your sample ballot might be an example of "political ignorance," but if so, it surely isn't a type of ignorance for which ordinary citizens can be blamed. I think government officials sometimes make it unreasonably difficult to find the information. Yes, of course as an expert you know better than most how to find a sample ballot on the relevant government website, but your otherwise well-informed fellow citizens might have more trouble. I couldn't last November, not for lack of trying, and I do read the news and spent many hours researching my ballot.


Doesn't a right to vote entail a right to make basic ballot information easily findable in advance? I would argue that, insofar as we live in a democracy and accordingly have a right to vote, we also possess a right to become informed, without too much effort (or money, etc.), of basic information about who will be on the ballot. In other words, it seems to me our right to vote is infringed or limited if we have to go to unreasonable lengths just to discover in advance what races, names, and issues will be on the ballot. (Am I wrong? Does the law say I am wrong? Has it been litigated?)


What is the most effort that can be legally required to find ballot information? I don't know the various state laws, but it seems to me that in 2016, it would be a violation of my right as a voter to require me to have to travel to county offices in order to get a sample of my ballot in advance. Fortunately, according to my research (I tested 20 randomly-selected addresses in 20 different states), it seems there are sample ballots available online either through counties (~65% of addresses) or states (about ~35% of addresses). Still, some of the websites are very difficult to use. Suppose we can establish experimentally that fewer than 20% (or whatever you like) of users could extract their sample ballots for an upcoming election from a county or state website. Might it follow their right to vote (i.e., their right to find their ballot information) had been violated?


What is the minimal amount of ballot information to which we have a right? If we do have a right as citizens of a democracy to easily access basic ballot information, then I wonder: is simply the name of the race (elected position) and the names of the candidates adequate? Shouldn't the government be required by law to make it really easy for me to discover basic information about what the position's responsibilities does? How can I exercise my duty as a voter if I am presented with a choice of two names for "Township Trustee" and yet I haven't got the first clue as to what a Township Trustee does? I wonder, also, whether I am not owed some basic information about the candidates (if the candidates so wish)? Obviously this function is usually performed by the Fourth Estate, but what happens when it isn't? Some down-ballot candidates don't even have Facebook pages and clearly are pretty clueless about how to get the word out. Short of calling them up on the phone (if they're listed), how on earth can I exercise my right to vote if I don't have a scrap of information about the candidates? It's incredible that, as Craig Holman said, it cost $18K in 1995 for a statement in the voter's pamplet in L.A.—and that it's higher now. One wonders if voters do not actually have a right to such statements, and if so, whether it follows that the state was obligated to pay.


Administration of elections is a mess. Larry Levine said that as part of his work on an L.A. Commission on Municipal Election Reform, he interviewed a clerk in a Texas county who said that they did not distribute sample ballots or other voter information materials before an election because so few people (11%) actually bothered to vote. The obvious irony is that the failure to mail any information no doubt partly explained why so few people voted. Others failed to inform voters about candidates in the name of "protecting the privacy" of candidates. "In short, the administration of elections across the U.S. is a mess."


First step toward reform? Based on what Larry Levine says, it sounds to me like the situation is ripe for reform—one that, for states' rights concerns, probably has to be done bottom-up, right? (I mean, I'm trying to understand why federal busybodies have not already solved this problem long ago: that's why, right?) In any case, surely one first step would be to create a universal sample ballot lookup and (free and voluntary) candidate information system.



-- 


Larry Sanger
Email: yo.larrysanger at gmail.com  Twitter: @lsanger
Blog/personal homepage: http://www.larrysanger.org





On Sun, Jan 24, 2016 at 10:35 PM, Larry Levine <larrylevine at earthlink.net> wrote:


There are three glaring misrepresentations in what you posted, Craig. 
First, the cost of a ballot statement is much higher now than it was when you wrote you original piece. 
Second, there has been a big transformation in the slate mail world since you wrote what is posted here. Your writing is so fraught with inaccuracies when measured against today’s reality that there isn’t sufficient room here to deal with all of them. I will say only that your use of words that make it sound like all slates are the same, all are evil, and all are for sale to the highest bidder has never been true and is less so today. In the case of judicial races slate mail offers candidates the only way to communicate with voters at reasonable prices. My slate, for instance, usually runs about 4 or 5 cents per household per judicial candidate. There is no other way in which a candidate can get a message delivered to voters at that price or even close to that price. Surely, when multiplied by the number of voting households the raw dollar number can get high. But that is not because the slates are acting improperly; it is because there are so many households with which the candidate must communicate. Let me say also that the majority of the slate publishers with whom I deal recognize the difficulty of raising funds for judicial races and make serious efforts to accommodate those candidates. 
Third is your representation that the cost of a ballot statement in a judicial race is usually beyond the means of all but incumbents. The fact is that incumbents rarely are challenged. The overwhelming majority – virtually all – of races for judicial offices are for open seats, when an incumbent is not seeking re-election.
I agree with your basic premise, which I believe is that the cost of running for judicial office is prohibitive. I have felt for a long time that we shouldn’t be elected judges. I personally favor gubernatorial appointments. But I presume there are those out there who would find this unacceptable because those appointed would so often be attorneys who make contributions to the governor’s campaign.
Finally, I think it is deceptive for you to publish research that is more than 20 years old as if the findings still apply today. I will point out, further, that at least some of those who you cite as having been involved in the research have exhibited a clear anti-slate mail bias through the years.
Larry
 
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Craig Holman
Sent: Sunday, January 24, 2016 3:01 PM
To: gtbear at gmail.com; yo.larrysanger at gmail.com
Cc: law-election at uci.edu


Subject: Re: [EL] How serious is this problem?



 
Larry: 

 

Without getting into all of your fine questions, a study that I co-authored when working for the Center for Governmental Studies in California (with Bob Stern, Tracy Westen and Matt Stodder) focused on similarly low-level information in political races -- judicial elections. The findings stunned me. I have long written about the problem of money in politics; so this is nothing new to anyone on this listserv. But when it comes to low-level informational campaigns, money means everything. ("The Price of Justice" http://www.policyarchive.org/collections/cgs/index?section=5&id=216)

 

In California's judicial elections, there are two primary means for getting voter's attention -- the ballot pamphlet and slate cards -- both of which are available only for a price. Believe it or not, a candidate only gets space in the government-sponsored ballot pamphlet if they pay for it. Incumbents will put up the price for a statement in the ballot pamphlet; post that they paid for this statement in the financial disclosure forms; wait and see if any challengers step up to the plate; and when no challenger can afford to match the price, withdraw their statement from the ballot pamphlet and get a refund. Slate mailers are even worse when it comes to financing voter disinformation. This is what we wrote about the situation back in the 1990s. Not much has changed since then. You may find it informative.

 


 

In Los Angeles County, the two most effective forms of paid campaign

advertising are the voter’s pamphlet and slate mailers. With a 200-word statement

in the voter’s pamphlet costing $18,340 in November 1994 ($36,680 for a bilingual

statement), and inclusion in a slate mailer often contingent upon hiring the right

professional campaign consulting firm, these avenues of voter information are

largely the domain of the wealthiest judicial candidates. According to the

Commission’s data base, these two sources of voter information have consumed

nearly 60% of all campaign dollars spent on judicial elections between 1976 and 1992.

 

Candidate statements in the voter’s pamphlet and slate mailers are not only

expensive but often directly or indirectly misinform voters. The voter’s pamphlet

only provides information on those candidates who can afford to purchase a

statement in it-which’ more often than not, is limited to incumbents. Voters

reading the pamphlet may conclude that the candidates whose statements it

contains are unopposed (or somehow face opponents who lack sufficient “official

imprimatur’’ to be included.) Even the statements that do appear are required by

legal and ethical rules to avoid partisan positions or controversial social issues.

Slate mailers are notoriously deceptive. They are usually designed to “imply” a

candidate’s party identification or position on social issues, neither of which may be

true. Although slate mailers have been used for decades, they matured in the early

1980s into a powerful form of political advertising. Originally, political parties and

other ideological organizations prepared slates of recommended candidates for

distribution to their members or a targeted audience. But much has changed in

recent years. Instead of allowing like-minded groups to inform voters of candidates

and ballot issues that are in conformity with the organization’s political philosophy,

slate mailers have become a profitable and frequently deceptive business. They are

often run by private campaign consulting firms on behalf of paying clients or simply

by profit-making entities with little concern about election outcomes. Slate mailer

endorsements are frequently sold-often to the highest bidder.

 

The payment-for-endorsement aspect of slate mailers is made all the worse by

the fact that this for-profit arrangement is not disclosed to the voters-leaving them

with the deceptive impression that the mailer represents an official endorsement by

a political party or by respected elected officials. Although such deceptive tactics do

not violate existing laws, it is evident that slate mailers mislead many voters who

believe they represent an official party endorsement. Indeed, many mailers are

carefully designed to create precisely this impression. They select the “top” names

on the slate to suggest that the mailer represents a single partisan stance; the

mailer is constructed in an official format, frequently as a sample ballot; the mailer

is labeled with a partisan name; and the committee behind the operation always

uses a pseudonym that suggests an official party organ. Voters have been deluged,

for example, with for-profit slate mailers from the private consulting firm of

BermadD’Agostino (BAD Campaigns, Inc.) that are labeled “Democratic Voter’s

Guide,” compiled and distributed by BAD Campaigns, Inc. under the pseudonym of

“Californians for Democratic Representation.” The official Democratic Party symbol

of a donkey is plastered across the mailer, and the well-recognized Democratic

candidates for governor and US. Senate are prominently displayed at the head of the

ticket.

 

The potential for slate deception can be particularly effective in low-level

contests and ballot measures. One mailer by Cerrell and Associates, a Democratic

consulting firm, on behalf of a liberal client running for a judicial position in

conservative Orange County, featured the leading Republican candidates for national and state offices. The mailer prominently endorsed Ronald Reagan for president and other well-known Republicans for state offices-and then included the liberal judicial candidate. Reagan and other top Republican endorsees neither paid for nor authorized the use of their names in the mailer. Even though Cerrell’s client was diametrically opposed to the Republican party’s positions, Orange County voters who received the mailer assumed that Reagan and other Republicans had endorsed the unknown judicial candidate and decided that the judicial candidate was “one of them.” (For further discussion of the abuses of slate mailers, see Chapter 5.)

 


 



 

Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com

 



-----Original Message-----
From: Robbin Stewart <gtbear at gmail.com>
To: Larry Sanger <yo.larrysanger at gmail.com>
Cc: Election Law <law-election at uci.edu>
Sent: Sun, Jan 24, 2016 11:55 am
Subject: Re: [EL] How serious is this problem?


One of the Volokh.com conspirators, perhaps Ilya, has been writing about the problem of political ignorance, which is what you are describing.

One of the main solutions to this problem is party labels. In this model, voters decide which party reflects their values. They then either vote those party candidates or just hit the big green button if the machine is so equipped.
The party chooses its candidates in a primary, where a smaller number of better informed or otherwise motivated voters do the choosing. In my county, the primary is proceeded by a slating convention, at which precinct captains vote on who to slate. Normally, the county chair tells the precinct captains how to vote. Normally, the slated candidate wins the primary. There are occasional exceptions,and occasionally an independent candidate has enough of a following to overcome the party advantage.
  Additionally, many voters are motivated by machines. The machine does a favor for the voter, and in exchange for the favor, the constituent is expected to vote. At one time, the favors came mostly from the party itself. Post-LBJ, the favors were more likely to come from the government, as controlled by the party. Tammany Hall was a pioneer of how this works. Plunkett of Tammany Hall is a book, free online, that talks about this.

  When I ran for a non-partisan school board office, there was great public interest, several debates and extensive news coverage, because the usual signals were missing. When I ran for the legislature, there was no coverage, because we all knew it was a safe seat for the incumbent. He did go out and knock on doors and shake hands.
We all knew and liked John. The book "Positioning" talks about signals that lead people to vote a certain way or buy a brand of a soap. Richard Winger has shown that having the top line on the ballot is good for about 3%.
Names can be signals. I had a client who won a congressional primary as "Bob Kern" who had previously lost running as "Bobby Hildago." My friend Tony Garcia did pretty well running for Lt. Governor in Texas, Although he doesn't look much like what you'd expect a Tony Garcia to look like, the voters didn't know that.

Voter guides help solve the voter ignorance problem. One of our list members, Jim Bopp, has done valuable litigation over voter guides. Signs are another factor. In Indiana, and many other states,, you can go to jail for putting up a sign like "Vote for Smith." I challenged this twice, winning in Stewart v Taylor but losing in Majors v Abell. (Recently cited in Van Hollen v FEC.) I am semi-retired but remain interested in working with people willing to litigate these disclaimer-type cases.

As a political junkie, I know how to go to my county clerk's office, enter an address, and pull up a sample ballot, but very few people know how to do that, all it gives are the names,and there's no one national site to do that.
It would be feasible for somebody with deep pockets to do a national version. The two big political parties could do this, perhaps only listing their own candidates, or the Koch brothers could do this. I'm not sure common cause or ballotpedia has the resources. I suppose Google could.

The question you've raised is a deep and valuable one. Philosophers have their uses.

 

On Tue, Jan 19, 2016 at 11:49 AM, Larry Sanger <yo.larrysanger at gmail.com> wrote:


All,

 

I'm new to the list. Apologies if this is covered in the archives...

 

I'm a "concerned citizen" without training in law or political science (my Ph.D. is in philosophy). I'm just interested in the following special issue. I was talking to a list-member about the problem and he recommended I check this list out.

 

I'm trying to understand a problem I encountered last Nov. 4: not being able to find my complete ballot, in advance, including all down-ballot races. I live in an exurb of Columbus, Ohio, in a mostly rural county.

 

The problem: There were races on my actual ballot that I never saw on the sample ballots I found, I couldn't do my due diligence and make my mind up about the candidates before I stepped in the voting booth. My immediate reaction was: WTF? How is this even possible?

 

I'm trying to find out how widespread and serious this problem is.

 

(In case you're curious, here's how it shook out for me. I had moved from a locality that sent voter guides regularly to one that did not. I knew an off-year election was coming up, so I looked on vote411.org and Ballotpedia and a few other places for what would be on my ballot. I even went to the county Board of Elections website (Fairfield County, Ohio), but I couldn't find my ballot there. It turns out it was there, but the procedure for extracting it from the website is so arcane that I couldn't figure it out.)

 

It turns out that not even the Columbus Dispatch (which I had neglected to check out) had all the downballot races on my ballot; the Dispatch lacked a library board race as well as two or three judgeship races, and possibly something else. The other ballot lookup sites had even less information. Ballotpedia had my school board races, but vote411.org didn't even have that, and neither had my township trustee race.

 

After my shock at having spent hours doing my due diligence, only to discover that I couldn't vote on the down-ballot races (not honestly), which I hadn't known about, I started checking out the problem. I ended up calling the guy who lost the township trustee race. I asked him if he felt disappointed that many if not most of the people who went to vote in the election didn't even know that an election was taking place. He said he tried to get the word out, but to little avail. I asked if he thought it was a failure of democracy, and he replied that he thought it was a failure of bureaucracy; we concluded by agreeing that bureaucracy had failed democracy.

 

Here are some of my questions for the experts on this list; any help would be greatly appreciated:


Have I somehow misunderstood the situation? Is this somehow not a problem after all?
Just how widespread is this problem? For what percentage of the American public is locating a complete ballot, including all down-ballot races, a serious challenge (as it was for me)?
I grew up in a locality that supplies a fine voter's guide. This isn't a problem there. Where is it a problem? (Maybe rural or semi-rural places, like mine?)
How do local candidates feel about this problem? Surely they realize it is a problem...when it is.
And more of a philosophical question: In your expert opinion, does this represent a serious failure of democracy?
And if so, why haven't we solved it??
Where can I read more about this problem or otherwise get insight?


Thanks in advance for any help!

 

Larry Sanger

 

-- 



Larry Sanger

Email: yo.larrysanger at gmail.com  Twitter: @lsanger 

 


Blog/personal homepage: http://www.larrysanger.org 

 






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Email: yo.larrysanger at gmail.com  Twitter: @lsanger
Blog/personal homepage: http://www.larrysanger.org



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