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
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
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- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Wednesday, November 16
Why the Reform Initiatives Failed
The Reform Ohio Now measures went down in flames last week, as did California's Proposition 77 which would have created a nonpartisan redistricting commission. There's now been some time to survey the wreckage. Chris Elmendorf and Heather Gerken posted this comment on Balkinization last week. They recommend the creation of "citizen assemblies" like those used in British Columbia. These are randomly selected groups of citizens, which reach agreement on proposed reforms and then have the authority to present them to the electorate by way of referendum. My Election Law@ Moritz colleague Ned Foley has this weekly comment, suggesting that it was a mistake to package redistricting reforms with campaign finance reforms that some perceived to benefit labor unions. This made it easier, he suggests, to tar the redistricting and election administration reforms with the partisan label.
Having watched the Reform Ohio Now battles up close, my own view is that the result wouldn't have been any different on Issues 4 and 5 (the independent redistricting and election administration proposals), even if not packaged with Issue 3 (regarding campaign finance regulation). In fact, pre-election polling by the Columbus Dispatch showed Issue 3 prevailing among likely voters with Issues 4 and 5 going down handily. In the end, all three went down, Issue 3 by a slightly smaller margin.
The reality is that redistricting and election administration are complicated subjects. Even those of us who devote our lives to studying these sorts of things found our eyes going bleary trying to understand what the Ohio measures would do. This isn't meant as a criticism. The point is that these sorts of things are inherently complex, and thus hard for ordinary voters to understnd. It's difficult enough to try to explain to non-experts why our current system of drawing districts is flawed, much less the detailed competitiveness formula that Issue 4 would have required to fix the problem. It's much more difficult to educate the general public, which gets most of its information from sound bites in 30-second TV spots in which both sides claim that the other side is trying to pull the wool over voters eyes and protect the power of incumbents and/or bureaucrats. With such complex ballot measures, it's practically impossible for voters to determine who's telling the truth. The safe, one might even say rational, choice for the average voter is to preserve the status quo by voting "no." You know what they say about the devil you know ....
So for those who think there is a serious problem in how we draw districts and administer our elections (and I include myself in this group), what is to be done? The lesson I draw from Ohio and California's experience is that building public support is a long-term enterprise, of which these measures were just the first step. Perhaps citizens assemblies might be a part of this process, but establishing such bodies and giving them the power to do what Elmendorf and Gerken suggest is likely to be a long-term project also. It might be helpful here to take a page from the playbook of campaign finance reformers, who spent many years educating the public and building public support for their cause, and have achieved some successes. Many voters still don't understand the details of campaign finance reform ... but know (or at least think) that they like it.
Despite the crushing defeats in Ohio and California, I don't think reformers should give up. Instead, they should dig in and recognize that they're in for a long, hard fight if they hope to win the public's hearts and minds.