OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Designing the Democracy Index

The new year began with an important piece of commentary published on January 1 in Legal Times by Heather Gerken, election law expert and professor at Yale Law School. The piece advocates the creation of a "Democracy Index," which would measure how well each state in the nation performs in the administration of its electoral system.

Building upon a similar call by my Moritz colleague Dan Tokaji for the collection of reliable statistics relevant to policy judgments about election administration (as Gerken graciously acknowledges), the piece seeks a hard-number formula that would embarrass states with low scores. This embarrassment, in turn, would generate momentum for reform that would feed on itself in a cyclical "race to the top," as low-scoring states leapfrog over previously higher-ranking ones, which having now slipped in the rankings would undertake initiatives to reestablish their superiority, and so forth.

Anyone familiar with how similar numerical rankings exert competitive pressures on law schools (and universities generally) to improve their performances according to the criteria used to determine these rankings, a phenomenon Gerken herself invokes in support of her proposal, knows the power of these numbers and thus the truth of Gerken’s insight.

But as anyone familiar with such rankings also knows, it is important to design these rankings properly. Otherwise, they can create counterproductive incentives. Since the institutions being evaluated by the rankings will attempt to improve whatever numbers are components of the overall formula, and will devote special attention to any factors that receive extra weight in that formula, including the wrong numbers in the formula or giving some factors undue weight will cause these institutions to chase after the wrong priorities.

Thus, a top agenda item for election administration analysts in 2007 should be to see whether a consensus can begin to emerge on what would be an appropriate formula to measure the functioning of a state's electoral system.

Only two weeks into the year, I cannot say that I've gotten very far in my own thinking on this topic, and thus the very sketchy thoughts that follow are intended merely to elicit responses from others in the field. With that caveat in mind, I can imagine three basic principles that might guide the design of this formula. (I believe these principles to be consistent with Gerken's own conception of this project, but I wish to highlight them somewhat more explicitly.)

First, at least for starters, I would think the scope of a Democracy Index should be confined to the "nuts and bolts" subject of voting administration specifically—the procedures for voter registration, the casting and counting of ballots, and the resolution of any disputes that may arise in the event of a close outcome—rather than the broader topic of election law or administration in general (which would include redistricting, campaign finance, and ballot access issues, among others). It likely will be difficult enough to establish a consensus on how to measure the functioning of even this "nuts and bolts" portion of the overall electoral process. The rest should be left for later, if ever.

Second, I would suggest that the formula attempt to measure only the infrastructure that the state uses to administer the voting process and how well state officials operate that infrastructure, but not endeavor to evaluate social or cultural conditions that might affect the health of the electorate’s utilization of the voting process the state provides. In other words, I would be disinclined to include a measurement of voter turnout as part of this Democracy Index, even though voter turnout is often mentioned as a tool for evaluating the health of popular sovereignty within a state. Low voter turnout may be a product of social or cultural conditions, rather than flaws in the infrastructure the state uses to administer the voting process or flaws in how state officials actually operate that infrastructure. To use an analogy from the field of education, the goal here is equivalent to measuring only how well the state does in providing opportunities to learn, not how well students do in taking advantage of those opportunities. There surely is a time and place for measuring the health of electoral participation, just as there is a time and place for measuring the quality of learning rather than just the quality of teaching. But if the Democracy Index is supposed to be a tool for critiquing state government insofar as it underperforms in enabling citizens to exercise the franchise, as I understand it to be, then the formula should be confined to measuring the performance of the government itself, not the citizenry’s willingness to take advantage of what the government provides.

Third, I would urge that the design of a Democracy Index endeavor to be as bipartisan as possible, so that its implicit critique of low-scoring states will be seen as valid by public officials on both sides of the aisle and, therefore, a more powerful impetus of reform. Inevitably, advocacy groups on both the left and the right may be tempted to develop their own versions of the Democracy Index, emphasizing the values they most care about. (Predictably, the left will focus on impediments to voting, while the right will focus on perceived risks of fraud.) But any Democracy Index that does not appear to both sides as straight down the middle is likely to be dismissed as inherently biased, especially if dueling formulas emerge. Both the American Conservative Union (ACU) and Americans for Democratic Action (ADA) rank the performance of Members of Congress, but nobody uses either of those rankings as an objective bipartisan measure of how well a legislator is performing in office. Rather, partisans use their side’s preferred rankings to determine how closely a legislator toes the party line. It would be a shame, and contrary to its intended purpose, if the effort to design a Democracy Index degenerated into competing measures of how high a "liberal" or "conservative" score each state’s voting process would receive.

Even if these three principles are accepted, there is still a wide range of issues to consider regarding the design of a Democracy Index. I, for one, haven't yet even begun to analyze possible factors that might be included in the overall formula. Nor have I addressed whether a series of entirely separate measurements might be preferable to combining them into a single overall formula. After all, to echo Dan Tokaji's invocation of Moneyball, the numerical evaluation of baseball talent tends to rely upon a series of separate measurements – On Base Percentage, Slugging Percentage, and so forth – rather than any single overall formula.

For now, I plan to pause my thinking about the design of a Democracy Index, except to float a few potential metrics as candidates for inclusion, whether as separate statistics or combined into a single formula:

  1. "Disenfranchisement Rate": the percentage of a state’s eligible citizens who attempt to register to vote and to cast a ballot that will be counted, but who are ultimately unsuccessful in their effort to exercise the franchise because of how the state administered the voting process.
  2. "Unlawful Vote Rate": the percentage of votes counted by the state that were cast by ineligible individuals, whether knowingly or mistakenly.
  3. "Unresolved Elections Rate": the percentage of elections in a state that remain contested or otherwise unsettled by the time the winning candidate is supposed to take office (as has occurred in Florida's 13th congressional district this year).

While these three metrics no doubt need to be supplemented by others and could use considerable conceptual refinement in themselves (not to mention the difficult task of figuring out exactly how one would gather accurate data to make these measurements), they perhaps can serve as a start, just to move the conversation along.

The interesting and important question will be: on January 1, 2008, how much progress will have been made toward a consensus on how best to design a bipartisan Democracy Index?

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

more commentary...

In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

more EL@M in the news...

Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

more info & analysis...