New Article on Election Administration Reform

The Washington and Lee Law Review has sent me the final version of my article, Richard L. Hasen, "Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown," 62 Washington and Lee Law Review 937 (2005). The article should appear in print and on Westlaw and Lexis within a few weeks. In the meantime, you can download a pdf of the article at this link. Here is the abstract:

In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the "margin of litigation," and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.

The bad news from the story of Election 2004 is that things likely won't get better enough in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.

In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administration

Second, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.

Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.

"A Growing Wariness About Money in Politics"

Jeffrey Birnbaum offers this analysis in the Washington Post. It begins: "For several years now, corporations and other wealthy interests have made ever-larger campaign contributions, gifts and sponsored trips part of the culture of Capitol Hill. But now, with fresh guilty pleas by a lawmaker and a public relations executive, federal prosecutors -- and perhaps average voters -- may be concluding that the commingling of money and politics has gone too far." Bob Bauer comments as does Allison Hayward.

"Voting-machine deadline at risk"

The Sacramento Bee offers this report, with the subhead: "California's secretary of state says he may not certify any more electronic ballot systems this year, throwing compliance with a U.S. disabled-voter law into doubt for many counties." In somewhat related news, the SF Chronicle offers Hacking of Voting Machines Put on Hold, which begins: " A state-sanctioned attempt at hacking one brand of electronic voting machines will not occur Wednesday, Secretary of State Bruce McPherson said Monday at what's billed as the nation's first summit on voting machine testing."

New Voting Rights Suit in Indian Country

The Jackson Hole Star-Tribune offers Legal Clash Shapes Up on Race.

"Daniel Weintraub: Redistricting reform might live to see another day"

See this Sacramento Bee column.

John Lott on Judge Alito and the "One Person, One Vote" Controversy

See this Washington Times oped. A snippet: "Hopefully, Mr. Biden's selective moral outrage will produce some very educational exchanges. After all, did Mr. Biden ever put forward legislation to stop the unfair practice of giving Delaware and other small population states overrepresentation in the Senate? It will be interesting to see how he attacks Judge Alito without facing such obvious hypocrisy." My own views on the controversy should appear at Findlaw tomorrow.

"Closing In On Election Reform; Top Democrats Back Public Financing Plan"

The Hartford Courtant offers this report. See also this AP report. Thanks to Dewey Dow for the links.

"McGahn Staying Put at NRCC"

The Washington Post's blog, "The Fix," offers this post, which begins: "Don McGahn, the lead lawyer for House Republicans' campaign arm, will not be named to fill a GOP vacancy on the Federal Election Commission; instead, he will stay with the National Republican Congressional Committee for the duration of the cycle." Thanks to Ed Feigenbaum for the pointer.

"Hispanic community grows, but its politicians lose; Some wonder why Hispanic candidates don't win races in Osceola County, where one in three voters is Hispanic"

The St. Petersburg Times offers this very interesting report. A snippet:

Nov. 5, 1996, marked a historic night. Osceola County elected its first Hispanic to a local office. It symbolized how Hispanics were reinventing this community in the shadow of Disney's theme parks.

But on the same ballot, voters eliminated the system of single-member districts crucial to Guevara's victory.

After Guevara, Osceola forced candidates to run countywide, where white voters still make up the majority.

And since then, no other Hispanic has won a local election in Osceola County, even though more and more are running. Hispanics account for one in three Osceola voters.

Now, in a rare move for the Bush administration, the U.S. Department of Justice is suing Osceola under the Voting Rights Act, claiming that countywide districts discriminate against Hispanics.

It's one of the first times the Bush administration has used the Voting Rights Act, designed to help black voters, to ensure that Hispanics have the opportunity to elect their preferred candidates.

Thanks to Ned Wigglesworth for the pointer.

"Democrats Plan To Vote This Week On Campaign Reform"

A.P. offers this report from Connecticut.

-- 
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