Brad, Rick et al:
I'm going to shock no one by taking the middle ground on this one ... I
agree that we need more of a focus nationally on better (not just
non-partisan) election administration, but I also agree that such
treating such changes as the silver bullet for the current partisan
environment is too optimistic.
In the current political and partisan environment, the entire voting
process is under scrutiny before, during, and after election day - and
election officials are going to have to be ready for the foreseeable
future to be named as defendants in a court of law or the court of
public opinion. That said, any system that gives such officials the
opportunity to point to a non-partisan, objective reason for their
actions can only be a good thing. It isn't likely, however, to make the
suspicion and anger go away overnight. Politics ain't beanbag, after
all.
As has been said over and over again, the system can only pick winners
conclusively if the losers are convinced of the fairness of the election
... Improved election administration will go a long way toward providing
evidence of a conclusive result but we don't necessarily have it now.
What's more, in the current environment of distrust even the most
compelling evidence may still be seen as biased or illegitimate - it's
the tenor of the times. It's still worth doing nonetheless if for no
other reason than it's the right thing to do.
In other words - we should treat improved election administration as a
necessary end in itself rather than a means to reduce partisanship
and/or buttress public confidence in "the system."
Doug Chapin
electionline.org
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith,
Brad
Sent: Monday, June 12, 2006 2:15 AM
To: Rick Hasen
Cc: election-law@majordomo.lls.edu
Subject: RE: Mehlman pushes storyline that Democrats commit vote fraud
I don't think I missed your point at all. I don't think there is much
reason to believe that nonpartisan, professional administration does
much to address the problem - as you note, even where that is the case,
as in San Diego, confidence is low. I think the public is skeptical
less because of who is administering elections, or even because of
"mechanical snafus," than because of the determination of many
partisans, including some in very high positions, to indulge, if not fan
the flames, of the conspiracy theorists. I think you and I could agree
on a fair set of rules. I doubt that that would insulate us from
charges of fraud by the losers of a close election. Along those lines,
my point about campaign finance was not that it is easier (or as easy)
to agree upon rules, but that rules, and their non-partisan enforcement,
haven't solved the problem of public perception, and almost certainly
will not so long as there are persons with substantial money and
influence to fan!
the public belief in "corruption." Similarly, so long as major
political figures, partisans, and journalists find it worthwhile (for
their purposes) to fan the belief that elections are rife with fraud and
corruption and the results not to be trusted, that will be a problem.
If large numbers of Democratic partisans are willing to believe that
hundreds, if not thousands, of local Democratic election officials were
complicit in "stealing" the election in Ohio (which is necessary to
their claims), I see no reason why they won't believe that of
non-partisan officials.
I'm not saying that non-partisan administration is necessarily a bad
idea. I'm saying it probably has a minimal impact on public perception
of electoral fraud and integrity, and an excessive focus on bringing it
about probably makes the situation worse, at least in the short run and
I think quite probably in the long run. You apparently disagree.
That's not missing your point, and I hope you will think further about
whether you could be mistaken in placing so much confidence in
non-partisan administration
________________________________
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Mon 6/12/2006 1:00 AM
To: Smith, Brad
Cc: election-law@majordomo.lls.edu
Subject: Re: Mehlman pushes storyline that Democrats commit vote fraud
Brad,
I think you missed my point, which is that partisan bias in election
administration since 2000 (think Katherine Harris (not to mention the
2000 Florida attorney general, Bob Butterworth), Ken Blackwell, Kevin
Shelley, and others) as well as reports of mechanical snafus in the wake
of the revamping of election machinery post-Florida, have caused
significant portions of the the public to become very skeptical about
the fairness and accuracy of election administration. Nationally, many
more Democrats are skeptical than Republicans, but the pattern is the
opposite in Washington state, which saw a closely contested
gubernatorial election end up with a Democratic winner. Public
confidence is so low that even claims of malfeasance in places that have
had good reputations like San Diego are taken seriously in some
quarters.
I don't think it is true, if you look to other countries, that
"nonpartisan, professional" election administrators have been attacked
("legitimately" or otherwise) by whichever side loses. I think there is
a value in both nonpartisanship and professionalism when it comes to
election administration, not only in assuring public confidence in the
accuracy of election results, but in assuring the accuracy of those
results itself. This is not just an "appearance of corruption" type
problem.
Part of the reason I have faith in election administration being done in
a nonpartisan and professional way is that I think if you and I sat down
we could agree upon a set of fair election administration rules in
advance, while we likely could not sit down and agree on a set of fair
campaign finance or redistricting rules. In other words, I think that
there are some basic principles of fair election administration for
which there is widespread consensus. (I'd point you to the IDEA code of
conduct, referenced in my Washington and Lee article.)
Rick
Smith, Brad wrote:
If California has had a "very good reputation for
nonpartisanship and professionalization," wouldn't that suggest that,
"more nonpartisan professionalized election administration systems" are
unlikely to make a difference?
I doubt that the problem has as much to do with who administers
elections than with the disposition of partisans to want to claim
election fraud. "Nonpartisan, professional" is another way of
describing a person who can be legitimately attacked by whichever side
loses. Heck, we have already seen partisans attacking election
officials of their own party. And we have the relatively new phenomenon
of major party leaders and candidates stoking, rather than calming, the
fears of the most crackpot conspiracy theorists.
I think that partisanship is working to create the appearance
that our elections are substantially and regularly unreliable and rife
with fraud; and this appearance, which is far different from the
reality, leads to hasty and unwise laws. Again, I can't help but notice
the similarity with campaign finance laws - once appearances become more
important than reality, we have a prescription for bad public policy and
disregard for the rights of the public.
I would not be at all surprised if nonpartisan election
administration increases distrust of the electoral process, just as
public perception of corruption in office has correspondingly grown with
the imposition of an increasingly complicated web of "ethics" rules,
lobbying restrictions, and campaign finance laws.
Brad Smith
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick
Hasen
Sent: Sat 6/10/2006 2:04 PM
To: Michael McDonald
Cc: election-law@majordomo.lls.edu
Subject: Re: Mehlman pushes storyline that Democrats commit vote
fraud
It is worth pointing out that some on the left too are looking
to use the Bilbray-Busby race as proof of fraud (or potential fraud) in
the electoral process:
http://www.bradblog.com/archives/00002924.htm
This pattern of partisans trying to raise questions about the
fairness of the electoral process is something I expect to continue
until we see more moves toward creating more nonpartisan
professionalized election administration systems. It is especially
troubling in this instance because local election administration in
California has, at least until recently, had a very good reputation for
nonpartisanship and professionalization.
Rick
Michael McDonald wrote:
I thought this would be of interest:
In the wake of the Busby defeat in California's 50th
district, Republican
chair Ken Mehlman pushed the storyline on Hardball that
Busby encouraged
illegal immigrants to vote in the special election, and
tied the claim to
Democrat Gregoire's victory in the Washington recount
case.
For a transcript see:
http://mediamatters.org/items/200606090002 (for the
conservatives on the list, my apologies for linking to a
left-leaning web
site.)
A few points here:
1. A fair reading of Busby's controversial comment that
"you don't need
papers to vote" is that she mispoke and corrected
herself in the next
sentence to say that you don't have to be a citizen to
volunteer for a
campaign. From my vantage of teaching a campaigns class
in Washington DC at
a school with many foreign nationals, I have known
non-citizen students who
worked on Democratic and Republican campaigns. I'll be
curious to hear the
opinion of those on the list if the campaign activity
represents an illegal
political donation from a foreign national. Was Busby
promoting illegal
activity?
2. To my knowledge, there is no evidence that any
fradulent votes were cast
in the California special election. There is, to my
knowledge, no
investigation underway to determine if Busby's campaign
orchestrated the
casting of fradulent votes. Perhaps someone knows
something different?
3. With regards to the Washinton recount case, there
were inleigible felons
and a husband of a deceased women who testified that
their illegal votes
went to Rossi, the Republican candidate. There is no
evidence that
Gregoire's campaign knowlingly solicited illegal votes.
I'm sure we can all see where this is leading: we need
photo identification
at the polls to prevent Democrats from stealing
elections using illegal
immigrants. I'm sure that we're going to hear more of
this as the election
approaches. Chris Matthews can be expected to promote
this kind of
rhetoric, but I am disappointed that Charile Cook (the
third guest on the
show, and typical of the cable talk shows, he was
apparently there to
provide "balance" to Mehlman) didn't interject a more
reasoned response.
------------
Dr. Michael P. McDonald
Assistant Professor, George Mason University
Visiting Fellow, Brookings Institution
Mailing address:
(o) 703-993-4191 George Mason University
(f) 703-993-1399 Dept. of Public and
International Affairs
mmcdon@gmu.edu 4400 University Drive - 3F4
http://elections.gmu.edu Fairfax, VA 22030-4444
--
Rick Hasen
William H. Hannon Distinguished Professor of Law Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org