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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.

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New York’s Voting Problems: Is It Possible to Be Both Nonpartisan and Competent?

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September 15, 2010

A royal screw up is how Mayor Michael Bloomberg characterized the roll-out of New York's new voting machines yesterday. 

The story this morning isn't even bigger because the Republican gubernatorial primary was a 62%-38% blowout and Representative Rangel divided and conquered a field of five challengers.

Maybe yesterday's farce will serve as sufficient warning for New York to get its act together for November, in which case the episode won't have been all bad.  But the early reports on what happen suggest there may be deeper institutional problems that transcend unfamiliarity with new technology. 

Before getting to this institutional concern, I should mention one no-brainer that should help any jurisdiction coping with the challenges of keeping its voting machinery in good working order.  NPR's Pam Fessler this morning had a piece about Larry Norden's new report for the Brennan Center, which recommends a federal database that collects complaints from localities all around the nation on the malfunctioning of voting equipment.  Currently, local officials are usually "in the dark" about the problems that other jurisdictions have encountered with the same technology—and equally ignorant of the workarounds that have been developed to address those problems.  A database of this kind would let localities in our highly decentralized electoral system learn from each other's experience.  It is the kind of commonsense, but not yet developed, innovation that the field of election administration so desperately needs.  (Heather Gerken's idea of a "Democracy Index," which would provide comparative data on how different jurisdictions perform on a variety of electoral metrics, is another example of this kind.)

But the deeper concern buried in the story about New York's problems yesterday concerns the composition of the city's board of elections and what effect its institutional structure might have had on the board's ability to prepare for the new technology.  The New York Times reports that the board is designed to be evenly split between "five Democrats and five Republicans."  At first glance, that sounds like a good thing.  You don't want either major party controlling the electoral process.  We've seen the problems that partisan election administration can cause in places like Florida and Ohio.  It's a basic point worth repeating frequently: the umpire should not be a member of either team that competes for electoral victory.

But a board with an even number of members (in this case, 10), divided equally between Democrats and Republicans, is a recipe for stalemate that causes the essential governance of the electoral process to collapse.  We've seen that with the 3-3 gridlock at the Federal Election Commission and similar 2-2 splits at the newer U.S. Election Assistance Commission.  Those that study redistricting reform know that similar stalemates have occurred on reapportionment bodies (like the one in Illinois) that require equal numbers of Democrats and Republicans. 

Apparently, the same thing happened this year with New York City's board of elections.  The New York Times again: "The political infighting has been so intense that the board could not agree on an executive director for much of this year."  Not until "last month" was the logjam broken when one Republican member finally broke ranks with the four other Republicans on the board in order to move the process forward.  One can easily imagine that the lack of an executive director until just a month before the board must finalize the biggest transition in voting technology in over a half-century is a recipe for administrative disaster. 

Not surprisingly, after what happened yesterday, some New Yorkers are wondering whether it would be better to put the board of elections under the control of a single official, directly accountable to the people.  (The mayor hinted that perhaps he should be that official.)  Likewise, when criticisms of partisan Secretaries of States arise, the Secretaries themselves push back by saying that each of them is directly responsible to the electorate, and as a single "electoral CEO" for each state they have the institutional energy and capacity to get things done. 

The point is a legitimate one.  The administration of the electoral process must be competent.  There is no point creating a bipartisan, or nonpartisan, electoral commission if the institution is destined for stalemate and thus incompetence in the most basic sense: the incapacity to do the job it is designed to accomplish. 

But is it really impossible to have both competence and evenhandedness (in other words, impartiality) in election administration?  Would it not be possible to design institutional mechanisms that require the five Republicans and five Democrats to select an Executive Director, or tiebreaking member of their board, long before the date of the primary?  A flip of a coin, if nothing else, if the deadlock passes a certain deadline on the calendar?

I don't suggest that it is easy to design an electoral institution with the optimal combination of appointment procedures and incentives to yield both evenhandedness and decisiveness.  On the contrary, I think that New York's experience yesterday reminds us that more scholarship should be devoted to precisely this topic of optimal institutional design.  I don't believe that we have exhausted our collective intellectual capacity to develop creatively innovative solutions to this problem of electoral governance.  In short, I think we can do better than a coin toss as a tiebreaking mechanism. 

One thing I do know: if we cannot come up with better institutional designs, then we will be consigned to the blight of partisan bias in the administration of the voting process.  The umpire will be a member of one of the competing teams.  Why?  The reason is that we will not tolerate the situation where the game cannot be played at all because the two sides cannot agree on an impartial umpire. 

That seems to be what happened in New York.  But, as Mayor Bloomberg said, it is "completely unacceptable."  Given the choice between no umpire and a biased one, the public will pick the latter option just to be able to play the game and have a winner.  Let's hope, therefore, that we are not limited to this unattractive choice.