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)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- 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)
Tuesday, June 5
Money for Data: Funding the Oldest Unfunded Mandate
Thad Hall & Daniel Tokaji
Federal elections are the country's oldest unfunded mandate. The Constitution gives Congress power to make or alter rules for federal elections, but the task of running those elections has long been left to state and local governments. To this day, state and local governments still bear the costs of running federal elections, while being required to follow complicated rules laid down by the federal government. This division of labor has unfortunate consequences for both sides. State and local election officials lack the resources they need to administer elections optimally. At the same time, it is often difficult to tell where the most serious electoral problems lie, or even whether federal laws are being followed, due to the notoriously poor quality of information on how elections are actually being run.
We propose a significant alteration to this longstanding state of affairs. The federal government should provide an ongoing stream of money to state and local governments for the conduct of federal elections. In exchange, state and local election officials would have to provide comprehensive and reliable data to the federal government on such matters as registration, turnout, voting equipment, absentee voting, provisional ballots, and disability access. Those that provide incomplete or inaccurate information would lose their federal funding. This would make it much easier to evaluate the results of federal election reform and to diagnose problems before they result in post-election meltdowns like the one Florida experienced in 2000, or near-misses like the one Ohio saw in 2004.
Election Administration, Yesterday and Today
Elections today are, of course, much different than they were at the country's founding. In those days, the franchise was sharply restricted -- white men only, please! -- and the means of voting were quite different. Citizens voted by voice or by raising their hands in some places or on party-slate paper ballots. The demands that the federal government put on the states were also minimal. In the early years of the republic, moreover, it was much cheaper to administer elections than it is today. The political parties printed ballots, distributed ballots, provided the poll workers, and counted the ballots at the end of the day. With the innovation of the secret ballot, parties no longer played quite as prominent role, although they still help staff polling places and count the ballots.
Today, federal elections are primarily run by the state and local election officials, with numerous federal rules governing the process. Laws with abbreviations like HAVA, NVRA, UOCAVA, VRA, and ADA play an important role in determining who can vote, where they register and vote, what type of equipment they use to vote, and what happens if there is a problem voting. The federal government not only mandates that states conduct its elections, but also sets detailed rules as to how those elections are to be conducted. This puts state and local election officials in a real bind, given that elections are competing against many other programs -- like education, health care, and law enforcement -- for a very limited pool of funds. When creating a reliable statewide voter registration system would require closing a public hospital, for example, it is small wonder that state legislatures often choose to focus on what seems the more urgent priority. The consequence is that state and local governments have trouble running elections in the manner that federal law requires and that voters rightfully expect.
To be clear, we are not against the federal government making rules for the conduct of federal elections. In fact, we believe that the federal government should play a central role in ensuring that citizens' voting rights are protected, and that there is some consistency in how federal elections are administered across the country. At the same time, it is essential that the federal government help pay for federal elections that state and local entities conduct, even though it is not constitutionally required to do so. Congress provided some funding for election administration through HAVA, the Help America Vote Act of 2002, but that funding was limited both in its amount and in its duration. HAVA did not provide the ongoing support for elections that state and local governments so desperately need.
A Money-for-Data Exchange
What we propose is a simple trade: The federal government would provide an ongoing source of funds for state and local governments to run elections. In return, state and local officials would have the obligation to collect and provide to the federal government data on the performance of their election systems. States that provide quality precinct-level data get paid. Those that provide incomplete or inaccurate data would not get paid.
At first glance, the need for better elections data might not be immediately apparent. Anyone who has carefully studied election administration, however, knows that the lack of adequate and reliable data presents an enormous challenge for researchers and reformers. In 2004, the U.S. Election Assistance Commission funded a survey of all 50 states' election systems. In several areas, states failed to provide the requested information or provided incomplete information. Even where information was provided, inconsistencies in the way that the data was gathered made it difficult to draw reliable cross-state comparisons. Yet the federal government has no carrot or stick by which it can induce the states to provide more comprehensive and accurate data on their election systems.
Reliable data is the mother's milk for studying election reform. If we do not have complete and accurate data on election administration -- the number of voters casting ballots, the number of undervotes and overvotes, the number of provisional ballots cast, the number of poll workers at each polling place, or the number of early and absentee ballots cast in the election -- it is almost impossible to know if election reforms are working (or not) and how well states are serving the needs of their voters. The absence of reliable data makes it difficult to adopt the Moneyball Approach to Election Reform that one of us has recommended, in which election reforms are based on careful research rather than seat-of-the-pants judgments. It also poses a challenge for Professor Heather Gerken's proposed Democracy Index, which would make cross-state comparisons of election administration.
Better information is thus a precondition for future election reform. Without reliable data, we cannot intelligently assess the results of election laws like HAVA, much less determine what changes should be made prospectively. Trading data for money would allow the states to get the money they need to improve their elections processes and systems and for the federal government to get the information they need to evaluate the performance of our democracy.
Getting Better Data
The initial part of the trade requires the federal government to spend some money and work with states to develop common standards for the collecting and reporting of election data and an interoperable system for reporting these data. This is actually much more difficult than it might sound. Today, it is difficult enough to get all states to collect data on the number of ballots cast in the election -- approximately 10 states cannot report this simple number! -- or to have a common definition regarding what constitutes an early or absentee ballot. States need to collect a standard set of data with standard data definitions.
For its part, the federal government also needs to provide states and localities with the software to collect and report these data. The Internet could provide a simple mode for such data reporting and collecting although other systems may also work as well. With these common data definitions and a common reporting system in place, the trade of federal funds for elections in which states report data could be made.
What we are proposing is not without precedent. During World War II, in the 1942 elections the federal government did allow states to apply for compensation for the costs associated with providing voting services to military voters stationed overseas. More recently, of course, HAVA provided money to the states to implement changes in such areas as voting equipment, voter registration, provisional ballots, and disability access. But it is hard to know how well these reforms have worked in real-world elections, given the paucity and unreliability of existing data sources.
It is clear that the work of election reform is far from complete. State and local governments continue to struggle to meet voters' needs with insufficient resources. At the same time, the absence of reliable data has hampered our collective ability to evaluate the success of HAVA and other existing laws. If we are to have real election reform in the future, the federal government needs to provide federal money in exchange for better data from state and local election officials.