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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 Ten Most Urgent Election Reforms

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November 8, 2005

In both California and Ohio, voters are expected today to defeat proposals that would put legislative districting in the hands of independent non-partisan commissions. These defeats, if they happen, should not be taken as a sign that our nation's electoral system is not broken. Instead, the message is that other elements of the electoral process need more pressing attention.

Indeed, in Ohio voters are expected to pass at least two of the reform measures before them, one that would adopt the option of early at-home voting (also called "no excuse" absentee voting), and another that would impose several new campaign finance rules, including strict contribution limits. A third reform on the ballot, which would transfer the authority to administer the state's election laws from the elected Secretary of State to an appointed nine-member board, faces an uncertain fate.

With all the talk of needed reforms after last year's presidential election, it is worth taking stock of how much - or little - has been done in the past year to fix the flaws that were exposed a year ago. About a dozen states have enacted legislation to improve their procedures for provisional voting. Most prominent on this list is Washington , which had especially acute problems in its 2004 gubernatorial election. But most states need to do much more to clarify their rules for determining when provisional ballots count as valid votes. Colorado can serve as a model for the nation on this point, having adopted in August a detailed set of administrative rules concerning the verification of provisional ballots. States that fail to follow this lead risk an electoral Katrina.

Too much legislative time and attention have been spent during the last twelve months on the topic of voter identification. Although I continue to believe that there is a middle ground on this contentious issue - my compromise would require a digital photo (at the state's expense) at time of registration but not at time of voting (because poll workers could look at the voter in person to compare with the digital photo contained in their electronic poll books) - there is no immediate need to adopt any new method of voter identification. The problems that plagued the electoral process last year, even those involving allegations of illegal votes (mostly votes by disenfranchised felons, or double votes by the same person), were not ones that would have been avoided by a requirement to produce a photo ID when voting at the polls.

Instead, improving the accuracy of voter registration databases - to eliminate the deceased and the relocated, while avoiding erroneous purges - is a much more urgent matter. Yet, while Congress in 2002 mandated that the states adopt centralized registration databases by the beginning of next year, many states will fail to meet that deadline. States like Wisconsin , which already has announced its noncompliance with this mandate, should worry much more about their inability to develop an accurate list of registered voters than about the imposition of a new photo ID requirement.

Reflecting on the relatively little progress made in improving our nation's electoral system over the last twelve months, and anticipating the need for rapidly accelerating steps before Americans return to the polls for federal elections next November, I offer this list of the ten most pressing reforms in order of priority:

  1. Development and implementation of selection mechanisms and accreditation standards to assure nonpartisanship and professionalism of election administration officials. Ohio's ballot initiative on this point (Issue 5) is flawed in its details, but some version of this basic concept is essential for the success of all reform efforts.

  2. Improved methods, including increased funding, for recruiting and training well-qualified poll workers. As long as we continue to cast the majority of our ballots at polling places, rather than by mail, we must continue to invest in the quality of our poll workers in order for the voting process to work well.

  3. Implementation of pre-election procedures to verify the accuracy of new HAVA-mandated centralized voter registration databases. Already mentioned above, this reform is examined more closely in a two-part commentary from March 22 and March 29.

  4. Enactment of clear and specific rules of uniform statewide applicability for determining whether provisional ballots count. Also mentioned above, this widely embraced proposal has been insufficiently implemented.

  5. Adoption of expedited post-election procedures for the timely resolution of disputes concerning the accuracy of a vote count. The most sobering lesson of 2004, as evidence in both Ohio and Washington , is that existing procedures for both certifying winners and litigating election contests are too slow to meet the Electoral College deadlines set by Congress - or, for that matter, the date for inaugurating a state's new governor.

  6. Review of procedures for assuring the integrity of mail-in ballots. As more and more states adopt the option of early at-home voting, there will be increased scrutiny of the procedures for handling these mail-in ballots.

  7. Improved collection and public availability of election administration data. The U.S. Election Assistance Commission, with the release of its Election Day Survey, is making progress on this front, but there is still more to do.

  8. Dissemination of easily available public information concerning the proper polling location for each voter. Although improvements are also being made in this area, the states that do not count out-of-precinct provisional ballots need to undertake extra efforts to make sure that voters know where to go, especially when these states change precinct assignments and polling locations.

  9. Abolition of the disenfranchisement of former felons. This reform, unlike the previous ones, concerns not the mechanics of voting but the qualifications. It seems time for all states to recognize that, once the felon's sentence is complete and thus punishment has been fulfilled, the felon's voting rights should be restored, so that this citizen can resume participation in democracy.

  10. Elimination of partisan gerrymanders through increased use of nonpartisan districting commissions. Although I hope that voters in California and Ohio confound expectations and approve the redistricting measures on their ballots today, this reform is last on my list. This placement underscores the point that, even if these initiatives are defeated, there is still much more reform work - specifically, items 1 through 9 - to accomplish before next year's election.