Congress Comes to Columbus
Several weeks ago, Ohio Secretary of State Ken Blackwell declined to accept the House Administration Committee's invitation to appear before it in D.C. regarding Ohio's 2004 election experience. Yesterday, the committee -- or at least two members of it -- came to Ohio. The Ohio News Network has this report and the Cleveland Plain-Dealer this one.

House Administration Chair Bob Ney and ranking Democrat Juanita Millender-McDonald presided over yesterday's hearing at the Ohio State House. Joining them was Rep. Stephanie Tubbs Jones, a prominent critic of the irregularities in Ohio's election. Though not a member of the committee, she engaged in some of the sharpest questioning yesterday. Panelists included state legislators, local election officials, and Secretary of State Blackwell. Needless to say, Millender-McDonald's and Jones' questioning of Secretary Blackwell was one of the day's highlights. The Plain-Dealer reports:

Blackwell repeatedly interrupted a pair of Democratic questioners at a meeting of the Committee on House Administration to explain the controversial directives and divisive decisions that marked his administration of the 2004 contest.

His testimony culminated in a sparring match with Cleveland congresswoman Stephanie Tubbs Jones, a vocal critic of his rulings, in which she told him to "haul butt" if he wouldn't answer her questions.

Blackwell, a Cincinnati Republican, retorted: "I refuse to sit here and be harangued by you."

On a substantive level, one of the most important statement's came from Rep. Ney. He stated that he wouldn't consider relaxing the 2006 deadline for states to replace their punch card voting systems, if they accepted money under HAVA's Title I. I'm with Ney on this one. The states have already had more than enough time to get rid of their punch cards. The State of Ohio, for example, promised in its 2003 report to get rid of its punch cards by 2004 -- and still has yet to do so. My estimate is that approximately 48,000 to 63,000 presidential votes were lost in the last election, that would have been counted if Ohio had replaced its punch cards. Not enough to have affected this past election, but it could well be determinative in coming elections, including what may be a tight race for Governor with (yup, you guessed it) Ken Blackwell among those running.

There was also an academic panel, which included my colleague Ned Foley. I was scheduled to testify, but had to leave early to catch a flight. But here's an excerpt of my thoughts:

Despite the fact that there was no post-election meltdown this year, there remains significant room for improvement in the functioning of our election system. Yet there is one thing that I would like to make clear at the outset: The fact that this state and others experienced problems, and very significant ones, in 2004 does not mean that HAVA was a failure or that the law should be amended. To the contrary, I believe that HAVA's reforms have already made our election system better in important respects, and that other aspects of the law still to be implemented will improve the system further in years to come.

What is clear, however, is that any major change to the ecology of our elections system will initially cause some disruption in the short run – and the changes that occurred with HAVA were no exception. It follows that Congress should be extremely cautious in amending HAVA's requirements, at least until all of its core provisions have gone into effect. Put another way, HAVA should be given a chance to work before new federal requirements are imposed.

It is also clear that state election officials, in Ohio and elsewhere, could have done a much better job at implementing some of HAVA's existing requirements. In my opinion, the most important changes between now and 2008 should occur at the state rather than the federal level. Although the high level of attention to Ohio's election made the problems that occurred here particularly conspicuous, we were not the only state that had problems. I thus hope that election officials both throughout the country may learn from the mistakes that Ohio made in 2004.

I closed with three lessons that I think should be drawn from Ohio's 2004 experience:

Lesson 1: States should set clear standards well in advance of election day, preferably through legislation rather than administrative directive.

Truly speaking, we have not a single election system in this country nor even 50, but roughly 13,000 election systems -- the approximate number of local entities with responsibility for the conduct of elections. Perhaps the most important lesson to emerge from both the 2000 and 2004 elections is the need for each state to provide specific and uniform guidance to its local jurisdictions, to ensure some semblance of consistency among counties.....

It is equally vital that the rules governing the administration of elections be transparent. Regrettably, transparency has been an area in which the Ohio Secretary of State's office has been sorely lacking. That office does not even post its directives to the counties governing the administration of elections on its website, even though these directives are obviously matters of public interest. In the controversy over whether voters who had requested an absentee ballot should be allowed to vote provisionally, the Secretary of State's office guidance came in the form of a private email just days before the election. And in some cases, such as the standards for counting provisional votes, it was not until shortly before the election that the directive was actually made public. This can only lend the appearance that the election is being run according to secret (or at least semi-secret) rules.

Lesson 2: The Election Assistance Commission has a vital role to play in the ongoing process of election reform.

Congress' decision to create the Election Assistance Commission to assist with these and other issues was a wise one. Unfortunately, the EAC got off to a slow start due to the delay in appointing the four commissioners and to a shortage of funds. However, the Commission is now engaged in some very important work. It promulgated best practices for the implementation of different voting technologies and is presently at work on the HAVA-required improvements to the testing and certification of voting equipment. These remains a great deal of research that needs to be done in such areas as the usability and accessibility of voting technology, the implementation or provisional voting, methods of registering voters, and means by which to discourage fraud. Moreover, state and local election administrators are sorely in need of guidance on how to implement the provisions of HAVA.

The EAC's ongoing work is clearly essential to the success of HAVA. I would therefore urge that the EAC be given the funding it needs to continue its vital work.

3. Lesson 3: Precipitous federal legislation should be avoided at least until HAVA’s voting systems and registration requirements are fully implemented.

If the 2004 election should teach us anything, it is that election reform is a process, not a destination. That process is not complete now, nor will it likely be complete in 2006 or even 2008. To the contrary, much of the most important work still remains to be done. In Ohio and other states, this means replacing present voting equipment with technology that is more reliable and accessible to people with disabilities. It also means finishing the massive task of implementing the statewide registration databases required by Title III, which must be in place by 2006. Many states implemented provisional voting for the first time in 2004 and will have to refine their process in response to problems that occurred in this election cycle. Even states like Ohio, which had some type of provisional voting in place before 2004 -- although a much more limited one that is now required by HAVA -- have considerable work to do in refining and improving their process.

There is reason to be optimistic that these ongoing changes will serve the goals of expanding access while promoting integrity, particularly if the EAC is given the resources it needs to provide assistance to the state and local entities that are principally responsible for implementing HAVA's mandates. It is my recommendation, however, that Congress be extremely cautious in enacting new legislation before HAVA is fully implemented. We should give HAVA's key provisions a chance to work and then measure their performance objectively, before rushing to enact new federal legislation.

A case in point is the proposal to require a contemporaneous paper record, or "voter verified paper audit trail" (VVPAT) for electronic voting technology. While there are certainly legitimate concerns regarding the possibility of fraud and error with electronic voting, it is a mistake to equate paper with security or to mandate any particular technological fix until that fix has proven workable, effective, and superior to other alternatives. That is particularly true, given that the EAC and associated bodies are still in the process of making improvements to testing and certification procedures as prescribed by HAVA. States should be free to experiment with the VVPAT, as Nevada did in the most recent election. This state's experience is worthy of careful examination. For example, did voters actually check the paper records? Should all or some significant percentage of the paper records actually be recounted in every election to check the accuracy of the electronic county? What happens in the event of paper jams? Are disabled and non-English speaking voters adequately accommodated? Is the voter's privacy protected? How much will it cost, not only to purchase this technology but to administer it properly on an ongoing basis?

These and other questions ought to be asked and answered before new federal requirements in the area of voting technology are enacted. One of the great advantages provided by our federalist system in general, and our decentralized system of elections in particular, is that it allows different jurisdictions to experiment. To mandate any particular technological fix, let alone one that has yet to be proven workable and effective, would not only short-circuit this process but would stifle innovation by requiring a particular device that may not turn out to be the best one -- or even a satisfactory one. In fact, the headaches that Ohio is now experiencing in trying to conform to its VVPAT statute enacted last year demonstrate the dangers of legislating specific requirements that have not yet proven workable.

These thoughts one the VVPAT are just one example of a broader point: that Congress should be very reluctant to impose new federal requirements until HAVA is fully implemented. State and local entities should instead be given some breathing room that will allow them to comply with HAVA's key provisions, with guidance from the EAC. That is the approach that you most wisely took when you enacted HAVA more than two years ago, and I would urge you to stay that course today.

- posted by Dan Tokaji @ 4:09 PM