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Professor Dan Tokaji
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

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Equal Vote
Monday, September 19
A Problematic Report from Carter and Baker
The Committee on Federal Election Reform (commonly known as the Carter-Baker Commission) this morning released its final report. Commission member Spencer Overton has posted a dissent at http://www.carterbakerdissent.com/.

The commission's report addresses a wide range of voting issues, including registration, technology, accessibility, and polling place operations. The report deserves careful scrutiny . . . and there's no better time to start than the present.* For the moment, I'll focus on the two recommendations that are likely to prove the most controversial:

1. That Congress should pass a law requiring that all voting machines produce a "voter-verifiable paper audit trail" (VVPAT). For electronic voting machines, this would require that they generate a contemporaneous paper record of the ballot, that the voter could see before casting his or her vote electronically.

2. That states require voters to show a government-issued photo identification card in order to vote. Under the proposal, voters would have to show a so-called "Real ID" in order for their votes to be counted, effective 2010.

The first recommendation is one that's mostly been urged by advocates on the left, concerned with the prospect of fraud by election officials or voting machine companies. The latter is one that advocates on the right have been arguing for, ostensibly based on the need to curb fraud by voters. The report seems to be an effort to split the baby between Democrats and Republicans on these two hot-button issues. While that's problematic in itself, one would at least expect that the report would contain a reasoned argument based on evidence in support of these two recommendations.

Unfortunately, that is not what the report provides. I'll start with the VVPAT recommendation. As I've explained before on several occasions, most recently here, it's questionable at best whether the VVPAT is a workable or effective solution to the security concerns surrounding electronic voting. Although several states have recently passed laws to require this device, the only place where it's been used on any significant scale is Nevada. So in determining whether the VVPAT is a reform worth enacting, a logical place to start would be by taking a careful, evidence-based look at how well Nevada's experiment with the VVPAT has worked.

What does the report actually say? I'll quote verbatim: "In 2004, DREs with voter-verifiable paper audit trails were used only in Nevada. They appear to have worked well." (Emphasis added.) The fact that something "appear[s] to have worked well" is self-evidently not a sufficient basis for recommending costly nationwide legislation to require it. A much higher showing should be required, before government invests the considerable time and money that would be required to implement this device nationwide.

But it gets worse. There's a footnote immediately after the two sentences that I've quoted above, which cites a single source: a paper by MIT's Ted Selker, one of the two co-directors of the Caltech-MIT voting technology project. But in fact, Prof. Selker's views are precisely contrary to those attributed to him in the Carter-Baker Commission report. He's consistenly raised problems with the VVPAT, including that voters are unlikely to actually check it.

After reading this portion of the Carter-Baker Commission report this morning, I called Prof. Selker and read back to him the portion of Carter-Baker's report quoted above. Selker confirmed that this is "not what the paper says" and in fact that he says "exactly the opposite" of what's attributed to him. Prof. Selker proceeded to say there's a "higher possibility of fraud with [paper-based] technologies than with electronic ones." For anyone who's been following the VVPAT debate, this should come as no surprise whatsoever. Prof. Selker has been one of the foremost critics of proposals to require a VVPAT, questioning whether voters will really check them and suggesting that the VVPAT may actually create more problems than it solves.

What's mystifying is how the Carter-Baker Commission could have so badly misstated Prof. Selker's views. A short phone call -- like the one I had with him this morning -- could have easily cleared things up.

The report's recommendation regarding the need for photo ID is also lacking in evidentiary support. One looks in vain for any evidence that voter fraud is a widespread problem. In fact, the report admits that there's "no evidence of extensive fraud in U.S. elections or of multiple voting." What there is evidence of is that certain demographic groups are much less likely to have a driver's license than others. For example, a recent report by John Pawasarat of the University of Wisconsin-Milwaukee finds that the elderly, the poor, Latinos, and African Americans are much less likely to have photo ID. Of black males 18-24, only 22% had a photo ID. It is clear that requiring a photo ID does not affect all voters equally -- instead, it poses a special barrier for groups who are less likely to drive.

That's not to say that there are no arguments at all that can be made in favor of some type of identification requirement, as there may be for requiring a voter verifiable audit trail. The problem is that the Carter-Baker Commission report fails to take account of the evidence on these hotly debated questions. Instead of providing us with fact-based argument, the Commission's report on these two question simply regurgitates the old arguments -- and, at least with respect to voting technology, misstates the evidence that does exist.

I'll have more on this tomorrow, in the Election Law @ Moritz Weekly Comment.

Update: Professor Overton and the Brennan Center for Justice have produced an extensive rebuttal to the Carter-Baker Commission's recommendations regarding voter identification, which is available here.

* A disclosure. I'm an academic advisor to the committee, though I had no role in preparing the report and was not privy to the commission's deliberations. My only role with respect to the report consisted of preparing a memorandum on disability access issues which may be found here.

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Moritz College of Law The Ohio State University