Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Example of Commissioner Martinez

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April 11, 2006

Yesterday, Commissioner Ray Martinez III of the Election Assistance Commission ("EAC") announced his resignation, effective June 30, 2006. Commissioner Martinez's resignation letter to President Bush provides personal reasons for his decision, specifically a desire to be closer to his family in Texas. Although he will be greatly missed, the work he has done during his tenure on the commission provides a worthy example, not only for the EAC but also for anyone with an interest in election reform.

Commissioner Martinez has been critical in establishing the EAC's indispensable role in the American election system. Particularly valuable have been his steadfast efforts to ensure that the EAC stays above the political fray, and discharges its responsibilities in a manner that will improve the administration of elections for all voters. In order to appreciate the contributions that Commissioner Martinez has made to the objective of better election administration, it is helpful to understand the significant challenges that the EAC has faced in the first few years of its existence.

In the wake of the 2000 election, it quickly became apparent that the United States had for far too long neglected its election system. Responsibility for the conduct of elections was left almost entirely to state and local officials, with little guidance – and practically no financial assistance – coming from the federal government. While Florida's notorious punch-card ballots attracted the bulk of attention at the time of the 2000 election, post-election research showed that voting equipment was only the tip of the proverbial iceberg. As study after study revealed, there was also a serious need for election reforms in such areas as registration, election-day procedures, pollworker recruitment and training, voter education, access for people with disabilities, and ballot security.

Although the need for reform was clear, it took considerable time for Congress to agree on federal legislation that would satisfy those of both parties. Finally, on October 29, 2002 – almost two years after the 2000 election – the Help America Vote Act ("HAVA") was signed into law. This law imposed new requirements in the areas of voting equipment, registration lists, voter identification, and provisional voting. Perhaps most important of all, HAVA created the bipartisan EAC, consisting of two members of each major party, and conferred on this new federal agency significant responsibilities with respect to the administration of elections. Among the EAC's duties are to provide guidance in such areas as provisional voting and voting equipment, and to commission research on how the administration of elections can further be improved. The EAC is also charged with the responsibility of distributing federal funds authorized by HAVA for election improvements.

From the moment of its creation, the EAC has faced enormous obstacles in fulfilling its responsibilities, and Commissioner Martinez has been instrumental in surmounting those obstacles. Although HAVA required that EAC commissioners be appointed by February 2003, Commissioner Martinez and his three original co-commissioners were not confirmed until December 2003 – less than one year before the 2004 presidential election. Compounding the difficulties arising from the EAC's late establishment was a shortfall in funding during the EAC's early existence. Congress appropriated only $833 million of the authorized $1.4 billion in funding for meeting the requirements of HAVA in fiscal year 2003. In the next fiscal year, Congress appropriated only $1.8 million for the EAC's operations, even though HAVA had authorized $10 million.

Despite these handicaps, the EAC has done an admirable job of fulfilling its responsibilities during its first two-plus years, and Commissioner Martinez's work has been an important reason for its successes. Prior to the 2004 election, the EAC released a "Best Practices Tool Kit" for state and local election officials, which included recommendations on such topics as provisional voting, voter outreach, disability access, accommodating non-English proficient voters, and the transition to new voting technology. It also released guidelines on electronic voting security, as well as a report on best practices for military and overseas voting.

In the end, approximately one million votes were saved in 2004 as the result of improvements in voting technology and polling place procedures. It would be misleading to credit the EAC with full responsibility for these improvements. Still, the work that the EAC did in a very short period of time – accomplished with limited funds – is a tribute to Commissioner Martinez and his colleagues. Their diligent efforts undoubtedly contributed to the improvements that took place in 2004.

Since the 2004 election the EAC has continued to perform an essential function in providing guidance, distributing funds, and commissioning research to improve American elections. Through fiscal year 2005, the EAC distributed over $2.2 billion to the states, in order to satisfy HAVA's requirements. This has demanded careful review and analysis of the plans of all 50 states and U.S. territories, to ensure that federal funds are properly spent.

Another critical initiative of the EAC was a survey of state election officials following the 2004 election. This is the largest and most comprehensive survey ever conducted on the United States' election system. The survey has already been instrumental in illuminating the serious problems that remain. It will undoubtedly prove indispensable to researchers and policymakers for years to come.

The EAC has also devoted considerable effort to developing Voluntary Voting System Guidelines, designed to improve the security, transparency, and accessibility of American elections. Equally critical has been the development of a new federal process for the certification and decertification of voting systems. Time will tell how successful these efforts at improving voting technology will be, but Commissioner Martinez and his colleagues deserve enormous credit for negotiating the multiple competing – and sometimes quite hostile – interests that have dominated the debate over voting technology.

In each of these areas, Commissioner Martinez has performed a critical role in working with his fellow commissioners to get things done. One of the most remarkable aspects of the bipartisan EAC during the early years of its existence is its ability to achieve consensus. The two Republican and two Democratic commissioners have done an admirable job of working together, making all their decisions by unanimous vote in 2005. While we do not know what has gone on behind closed doors at the EAC, there can be little doubt that Commissioner Martinez has played a vital role in allowing the EAC to reach consensus.

It is therefore quite correct to characterize the EAC as a "success story," as Commissioner Martinez did in his letter of resignation. That is not to deny that there were serious problems in the 2004 election, or that our election system today is still in great need of further improvement. Nor can it be disputed that the EAC has had some difficulties in the early years of its developments. It would have been helpful, for example, if the Voluntary Voting System Guidelines, which the EAC unanimously approved on December 13, 2005, had been adopted sooner. Given that key HAVA deadlines in the area of voting equipment take effect in 2006, the late adoption of these guidelines put state and local election officials in a difficult position. On the other hand, it is likely that the EAC's failure to act promptly on some issues is a necessary price for the consensus that has been so essential to its early development.

All those who care about election reform will miss the intelligence, initiative, energy, warmth, and diligence that Commissioner Martinez has brought to his job. In the interests of disclosure, we at Moritz should note our work with the Eagleton Institute at Rutgers, under contract with the EAC, researching provisional voting and voter identification issues. Throughout this work, we have consistently been impressed with Commissioner Martinez's knowledge and insight, as well as his dedication to making elections function better for all voters.

There can be no doubt that a strong EAC will be essential in months and years to come. Foremost among the challenges it will confront are implementation of HAVA's statewide registration list requirement, enforcement of HAVA with respect to those states that are not yet compliant, and Hurricane Katrina's fallout on elections. The EAC will also have to deal with such hot-button issues as voter identification and the security of electronic voting, on which there is a substantial partisan divide. To be sure, state and local government will continue to exercise primary responsibility for the day-to-day conduct of elections. It would be a major mistake, however, to leave election administration entirely to state and local officials, without assistance or guidance from the federal government. A strong and adequately funded EAC will be essential to fulfill the promise of election reform.

As we thank Commissioner Martinez for his leadership, we must also recognize the unresolved issues that remain. And as we confront these issues, we would do well to keep in mind Commissioner Martinez's observation in his resignation letter that the goals of access and integrity should not be viewed as "mutually exclusive." They are instead complementary. Determining how these goals can both be served is among the most formidable challenges that the American election system faces.

We hope that Congress will recognize the vital role of EAC, by providing it with the resources needed to do its work. And we hope that future commissioners follow the example that Commissioner Martinez and his colleagues have set, of working to achieve consensus and to promote access and integrity in American elections, without regard to partisan consequences.

Unsigned comments represent the consensus opinion of the director, associate director, and three senior fellows of Election Law @ Moritz.