| Subject: Electionlawblog news and commentary 9/19/05 |
| From: Rick Hasen |
| Date: 9/19/2005, 8:56 AM |
| To: election-law |
Today the Commission on Federal Election Reform headed by former President Jimmy Carter and former Secretary of State James Baker issued its final report and recommendations on election reform. As a matter of disclosure, I served as an academic advisor to the commission and testified at a commission hearing; as noted (page 103) serving as an advisor "does not imply [agreement] with all of the report's recommendations." In fact, I think that some of this report is right on target, some of this report has distracting recommendations, and some of the recommendations are wrongheaded.
Nonpartisan election administration: the right call: First, what is right, and what is most important, is the section on election administration. The report strongly recommends nonpartisan election administration, and agrees with my idea for state chief election officers to be appointed by governors and confirmed by a supermajority vote of the state legislatures. This method will move election administration toward professsionalization and depoliticization. The commission also agrees that states should endorse the IDEA code of conduct for nonpartisan election administration. These are crucial steps in restoring public faith in the elections process. Nelson Lund appears to be the only commission member to dissent from these recommendations.
Distractions: Primary timing, etc. It seems to me that the Commission is squandering much of its political capital by focusing on less important issues than questions of the free and fair running of elections. The nonpartisan election adminstration chapter is chapter 6; it should have been first. Much of the press coverage will also go to tangential issues such as Chapter 9's call to change the timing of presidential primaries. To see what kind of distraction this is, compare the LA Times story (focusing on election administration) with the NY Times story (focusing only on primaries, and not even discussing election administration issues).
The Mistake: Voter ID Rules. The Commission recommends (section 2.5) the adoption of state voter identification rules, which is tied in maily with new federal REAL ID requirements for drivers licenses. (The Washington Post story focuses on this aspect of the report.) Three commissioners dissented from these recommendations. For some inexplicable reason, dissents were limited to 250 words. Spencer Overton's 597 word dissent is now posted on a separate website and it appears that he will be posting additional material there.
The problem with the commission's recommendations is not, as Bob Bauer suggests, that we don't have enough information about voter i.d. problems. The problem is that this proposal is not correctly targeted at the problem. Here is what we know: some voter fraud (likely not much) occurs on the local level, there is some double voting by voters who vote in two separate states, and the bulk of fraudulent voting appears to occur through absentee ballots. Requiring the presentation of voter i.d. at the polling place addresses only the first (and least significant) of these problems. In addition, voter i.d.s tied to drivers licenses (as the commission suggests) will place an onerous burden on the poor and those (especially elderly) who lack drivers licenses.
The need for voter i.d. is real, so as to prevent real fraud (especially through absentee voting and double voting across states) and to keep public confidence in the process. But it should be coupled with a government universal voter registration plan. The government should affirmatively go out and register everyone who wishes to be registered, and collect a thumb print, which can then go in voter rolls and on every absentee ballot (in such a way to assure secrecy of voting). The voter ids should be free to everyone, and anyone who shows up without an id should be able to vote by giving a thumb print.
By tackling only half the problem, the commission in this regard
makes things worse than the status quo. This recommendation will only
increase the divide over the fairness of election administration in the
U.S.
Prentice Hall has just published Clicker
Politics: Essays on the California Recall, edited by Shaun Bowler
and Bruce Cain. I have an essay in the volume entitled "The California
Recall Punch Card Litigation: Why Bush v. Gore Does Not 'Suck'"
(earlier draft here).
Michael Waterstone has published Lane, Fundamental Rights
and Voting, 56 Alabama Law Review 793 (2005). I read this article in
draft and it is well worth the read for those interested in the
intersection of voting law and disability rights.
Roll Call offers this
report (paid subscription required). It begins:
The basis on which the decision was made, however, may represent the FEC’s formalization of a method used by the parties and outside groups to comply with — or in the view of it critics, circumvent — contribution limits
The Los Angeles Times offers this
report, with the subhead: "Measure championed by the GOP would
restrict unions' ability to put dues to political use."
See this
report from New Jersey, on GOP allegations of voter irregularities
in that state. See also this
very insightful post from Michael McDonald on the election law
listserv.
Following up on this post
Vik Amar and Ethan Leib offer this
Findlaw column. They suggest that if the measure were signed by the
governor, its effect would be to create a referendum to be put before
the voters.
Heather Gerken has written Race
(Optional): A Voting Rights Act Compromise for the New Republic.
-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 - voice (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org