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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Thursday, June 30
What Will the Carter-Baker Commission Recommend?
The Carter-Baker Commission on Federal Election Reform met in Houston, Texas today to hear testimony on registration, identification, voting technology and election managment. The agenda with testimony from participants can be found here, and the AP has this report. (Disclosure: I'm an academic advisor to the commission, but have not been part of its deliberations and have no inside information on what it's likely to recommend.)

Former President Carter took a long view of the committee's objectives, reportedly observing that, "It may be a long time before all the recommendations we make are seriously considered." Of those appearing before the commission today, the testimony of the following is especially worthy of attention:

- Michael Alvarez of Caltech, who identifies the need for improvement of registration systems, suggests ways in which those systems might be improved, and recommends that provisional ballots be counted if cast in the incorrect precinct;

- Norm Ornstein of the American Enterprise Institute, noting that HAVA's success can't fully be judged until after several election cycles and that there's a reluctance to enact new legislation on the part of some key members of Congress, but that there's also a need to propose "comprehensive change" rather than "piecemeal action" on election reform; and

- Don Simon emphasizing the need for nonpartisan (rather than bipartisan) election administration, based on experience with the Federal Election Commission.

So what will the commission ultimately recommend? I don't know for sure, but I suspect that the big recommendations to come out of the commission will be 1) to require some sort of contemporaneous paper record for electronic voting machines, and 2) to create a national voter ID system and registration database to go with it. The first would be a concession to the more "liberal" members of the commission concerned with the possibility of voting machines being hacked; the second to the more "conservative" members of the commission who are concerned with voting fraud.

While I'll withhold judgment until seeing the commission's ultimate findings and recommendations, a compromise along those lines would be most unfortunate from the perspective of voting equality. I've explained on multiple occasions why requiring a contemporaneous paper record for electronic voting is a very bad idea, most recently here and here. Legislating such a requirement will discourage conversion to the best available technology -- particularly from the perspective of racial minorities, people with disabilities and non-English speakers -- while locking in a device that may not be workable or effective, much less optimal.

Civil rights groups are understandably worried about the impact that a national voter ID would have. See this statement to the commission from the Leadership Conference on Civil Rights, noting the unnecessary barriers to voting that such a requirement would create and the prospect of discriminatory enforcement. The obstacles to voting, clearly presented by photo ID laws recently enacted in Georgia and Indiana, might be mitigated by pairing national voter registration with universal registration as Rick Hasen proposes in a forthcoming article. Even so, a national ID would raise privacy concerns. Even if the ID is supposed to be used for voting initially, what will happen when and if another terrorist attack occurs? Can we really confine the use of national ID to voting? As the Leadership Conference argues, a national ID could be a slippery slope to a surveillance society, with authorities demanding "Let me see your ID" for no reason. Racial and ethnic minorities are most likely to bear the brunt of such law enforcement actions.

We'll have to wait and see what the commision comes up with, but there are reasons for concern that this particular way of splitting the baby between liberals and conservatives -- giving the former a "voter verified" paper trail and the latter national voter ID -- could be the worst of all possible worlds. I hope my prediction is wrong.

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Moritz College of Law The Ohio State University