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.

Opinion and Analysis

How to Avoid an Electoral Katrina

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November 7, 2005

This piece originally appeared in The Press-Enterprise (Riverside, California), on Sunday, November 6, 2005.

Election administrators nervously await this year's election, as they do every year, hoping to avert the kind of disaster that occurred in Florida in 2000 and almost occurred in Ohio in 2004. An electoral disaster did strike the State of Washington last year, where the Governor's race remained unresolved for over seven months after Election Day.

Electoral disasters, thankfully, are not as calamitous as natural disasters. At least American citizens do not die when denied the right to vote. Nonetheless, the body politic suffers serious injury when voters lose confidence in the ability of American democracy to fairly record and count the votes they wish to cast.

We are as unprepared for the next electoral hurricane as we were for Katrina. This is sobering message of the report recently issued by a bipartisan blue-ribbon commission on election reform led by former President Jimmy Carter and former Secretary of State James Baker.

Avoiding an electoral disaster requires two types of advanced planning in the same way that Katrina revealed two types of neglect in preparing for a major hurricane, as the Carter-Baker Commission correctly recognized. First, there is the need to design and build a voting system strong enough to withstand the pressures of a major electoral storm. These infrastructure strengthening measures correspond to the need for a levee system built to withstand a category 4 or 5 hurricane.

In the context of elections, strengthening the infrastructure requires the creation and up-to-date maintenance of verifiable registration databases, something mandated by Congress in 2000 but yet to be implemented in many states. It also requires significant improvements in the procedures used for evaluating provisional ballots, to determine whether they should be counted as valid votes. The need for transparently tamper-proof vote counting machines has been well publicized. Less often mentioned, however, is the pressing necessity of improved methods and increased funds for recruiting and training well-qualified poll workers. Just as penny-pinching is partly responsible for the horrors of Katrina (tragic proof that "penny-wise is pound-foolish"), so too a paucity of dollars devoted to the voting process is a partial cause of our nation's electoral nightmares.

But strengthening the infrastructure is not enough. Averting a disaster requires a second kind of planning. Some problems cannot be anticipated even with the best of efforts. Therefore, there needs to be a well-developed contingency plan in the event that an unforeseen breakdown occurs, despite best efforts at infrastructure strengthening. The worst failure of Katrina was the inability to get rescue teams to New Orleans after the levees broke, and the greatest threat to our electoral system is the inadequacy of response mechanism in the event of unexpected failure in the operation of the voting process.

The essential - and missing - element of an adequate response to an electoral breakdown is a nonpartisan institution responsible for deciding what the specific response should be. Precisely because elections are contests between political parties (the candidates they nominate being the standard-bearers of these opposing partisan forces), it is simply unacceptable that the decision of how to resolve a breakdown in the voting process should be made by a leading official within one of the two contending parties. Yet that is the current contingency plan.

The Carter-Baker Commission recognized the seriousness of this problem. Unfortunately, however, the Commission left this point for the latter pages of its report, causing it to be overlooked in some of the initial news accounts. But it is the measure most necessary to prevent an electoral storm from becoming a crisis of political legitimacy.

Problems in the voting process are obviously most acute in close elections, when the outcome depends on the particular way the problem is resolved. If, for example, an upcoming election turns on whether 5000 questionable registration forms will be considered valid - the Democrat prevailing if the answer is yes, the Republican if not - and the registration infrastructure did not specify how to handle this particular scenario, then no one will trust the resolution of this problem if made by a partisan Democrat or Republican.

There is a simple way to assure nonpartisanship in these decisions: require that the official responsible for making them receive the approval of both major political parties. Without this simple measure, all the efforts at improving the electoral system may go for naught. It will be like building a levee without planning for the possibility that the levee might break.