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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Voting next time—and in 2020

[Please note: This comment originally appeared on Rick Hasen's Election Law Blog as part of his Fixing Election Administration series.]

Election reform should embrace a long-term perspective and include non-partisan administration of the voting process. Meanwhile, eliminating unconscionably long lines at the polls is a short-term imperative, as is the need for more data on which to base long-term reform.

It is too soon after the casting of ballots this year for any definitive pronouncements on exactly what reforms the new Congress should adopt in order to improve the voting process. Many of these ballots still remain to be counted. Although there already are calls for legislation that would revamp voter registration, for example, we are likely to learn much more over the next month about the way voter registration actually worked in 2008.

Several significant elections remain unsettled as of this writing, including the presidential election in Missouri, the U.S. Senate elections in Alaska and Minnesota, Ohio’s 15th congressional district (which arguably is “ground zero” for the law of provisional voting), and several other U.S. House races. How these races are resolved is likely to tell us much about the practical significance of various voter registration rules: Election Day Registration (EDR) in Minnesota, compared with Ohio’s five-day limited version of early voting EDR, versus Missouri’s more traditional model.

Moreover, even in elections that are no longer in dispute, the process of reviewing provisional ballots in different states—as well as the analogous process of evaluating the eligibility of absentee ballots that are disputed for various reasons relating to voter registration—will reveal valuable insights about the accuracy of voter registration lists, the challenge of adopting sound practices to maintain those lists, and the obstacles to voter participation as a consequence of suboptimal administrative practices.

As our Moritz-authored book From Registration to Recounts discussed, voter registration is one part of a larger system of interrelated voting administration rules, which also include voter identification, provisional ballots, polling place challenges to voter eligibility, the recruitment and training of poll workers, and many other components. As we documented, it is necessary to understand each component in the context of the state’s overall “electoral ecosystem.” I suspect—although don’t yet know because the data is not yet available—that the problems that voters encountered in 2008 concerning the disqualification of both absentee and provisional ballots will tell us something important about administrative practices concerning voter registration (and vice versa).

Having made this cautionary observation about avoiding a rush to judgment on the specific voting reform legislation to put before the 111th Congress, I do think the following observations are not premature:

First, short-term versus long-term. It is worth distinguishing between problems that are imperative to fix before we vote again as a nation, in contrast to currently identifiable problems that nonetheless would benefit from a more long-term solution. One of the lessons of our experience with the Help America Vote Act (HAVA) may be that Congress moved too quickly to replace the wretched punch-card machines with expensive-yet-inadequate touchscreen technology, which subsequently needed to be jettisoned or imperfectly retrofitted. At least on the issue of vote-counting equipment, the next Congress might do well to set up a decade-long process that, starting in 2010, will lead to the use in 2020 of a new voting infrastructure of which our nation truly can be proud.

“2020 Democracy: Developing and Implementing a Vision for our Nation’s Voting Process” we might call this decade-long agenda. Consider it a gift to the children born in 2000, that year of the hanging chad. For the first presidential election in which these first-born citizens of the 21st century can vote, we will bequeath to them a truly state-of-the-art electoral process. If the nation could actually achieve that objective, it would be worth waiting for; and if the 111th Congress sets in motion the process that yields this result, it will deserve the historical credit. (Putting into place the data collection necessary for Heather Gerken’s “Democracy Index” would be an important first step in this decade-long agenda.)

Second, the immediate imperative of reducing waiting times to vote. Even if one agrees that Congress should take a long-term approach to many aspects of electoral reform, there is one aspect of the process that cannot wait—and that is the truly unconscionable amount of time that many voters, particularly African-Americans, needed to wait in line this past Tuesday in order to cast their ballots. There are profound non-partisan reasons for all Americans to celebrate the vindication of democracy in our nation that occurred last week, as the world rightly took notice. But in the midst of this well-justified celebration, we should not lose sight of the fact that the historically unprecedented nature of this year’s election masks the degree of disenfranchisement that these excessively long lines would have caused in any other election.

Since Tuesday, there have been reports of voters in several states—including Missouri, Pennsylvania, and Virginia—waiting five, six, or seven hours to vote! There was even one CNN report of a Pennsylvania voter waiting 11 hours! Missouri’s Secretary of State has expressed the fear that some voters were unable to withstand the excessively long lines in that state, and since the presidential election in Missouri remains undecided, it is conceivable that disenfranchisement caused by the inordinate waiting times may end up being decisive on which candidate won that state. (If so, one shudders to think what would have happened if Missouri’s Electoral College voters had been necessary for either candidate to reach 270.)

The consequence of the problem would have been much worse if voters, particularly African-Americans, had been unwilling to endure the unconscionable waiting times in order to vote this year, no matter how long it took. But voting should not be such an ordeal. Congress should set a national standard that no voter should have to wait more than one hour to cast a ballot and then work with states on ways to implement this standard. A change from Election Day to Election Week, at least for presidential elections, would seem a sensible place to start.

This move would differ from “early voting,” as currently practiced in many states, where only one location is available for voting in each county prior to Election Day. This year we saw five-hour and longer lines at these single “early voting” locations. The different concept of Election Week, by contrast, would consist of multiple “voting centers” dispersed throughout a county, which would be open twelve hours per day, for seven days. Surely, voters could find a time within their busy schedules to visit one of these vote centers and cast a ballot without having to wait more than one hour. It would be more expensive than our current practice, but this year demonstrates that there is a constitutionally minimum level of expenditure necessary in order to prevent voters from having to suffer unreasonably long lines at polling places.

Bottom line on this point: certainly by 2012, when the United States next votes for President, Congress should have put in place a solution to the long-line problem we saw this year.

Third, rules versus institutions. One truth that this year already confirms is that it is not enough for Congress, or the states, to write new legislation that purports to set the rules for operating the voting process. To be sure, those rules are important, and it is highly desirable that those rules be clear and straightforward, whatever policy judgments they reach concerning the balance between facilitating voter participation and protecting the integrity of the voting process. But even with well-written rules, unexpected issues will emerge, and in this intensely competitive environment candidates will be looking for ways to exploit unforeseen gaps in the legislative scheme. In this situation, the identity of the administrator who implements the legislation is crucial.

We have seen the inevitable problem whenever a state’s chief elections officer, charged with implementing the voting rules, is an elected partisan official. This problem is structural, and it exists whether the officer is an elected Democrat or an elected Republican. The problem merely may be one of appearances, rather than reality, but that is enough in the elections business. The dynamic now exists in which the other political party attempts to undermine the credibility and legitimacy of the state’s chief elections officer, so that it can win back the position.

This dynamic has been most acute in Ohio, where Republicans have looked for ways to attack Jennifer Brunner’s every move (and she has regrettably given them some openings), in an apparent payback for the Democratic attacks on her Republican predecessor, Ken Blackwell. But the same dynamic has occurred to a lesser extent in Minnesota, where Republicans have looked for opportunities to trip up Mark Ritchie in a tit-for-tat response to Democratic criticisms of his predecessor, Mary Kiffmeyer. This childish behavior would be inconsequential except that it erodes public confidence in the fairness and integrity of electoral process. Even worse, the maneuvering makes it even more difficult for local administrators to do their jobs properly, as they endeavor to keep their heads down while the partisan bombshells are hurled back and forth. We’ll see, too, whether this dynamic interferes with Ritchie’s ability to conduct the impending Minnesota recount in a way that both sides perceive as impartial and fair, even assuming the best of intentions on his part.

It may be difficult for Congress to mandate that for federal elections, including presidential elections, states employ a non-partisan chief elections officer. That issue is one that needs further examination, including an analysis of relevant constitutional considerations. Nonetheless, there will be no truly successful reform of the voting process—whether for 2020 or any other year—unless and until our nation figures out a way to rid itself of this structural defect in our system.

The new Congress thus should not have the attitude, “We’re fine with states having elected Secretaries of State running their elections, as long as they are Democrats.” Instead, Congress should look for ways creatively to eliminate this institutional problem. Since it won’t be easy, even though it is essential, tackling this topic is another reason to set our sights long-term.

Fourth, the ticking time bomb of the Twelfth Amendment. We now have had two presidential elections in which we’ve escaped another disaster like the one in 2000, and the odds are in our favor that we will have many more escapes until the next disaster hits. But these escapes do not mean that we are safe.

At some point in our nation’s future, there will be another incredibly close presidential election, where the winner of the Electoral College depends on the outcome in a single state and the result in that single state depends upon the resolution over a dispute over the counting of ballots for presidential electors there. When that occurs, all the reform of the voting process will not matter—including the institutional reform of non-partisan chief election officers in each state—unless Congress has also reformed the institutional mechanism for resolving this kind of dispute over presidential ballots.

In the aftermath of Bush v. Gore, it is unclear whether as a practical matter the institution that will resolve a future dispute over presidential ballots will be the U.S. Supreme Court again or, instead, Congress according to the arcane and imperfect procedures of the Electoral Count Act, which was adopted in the wake of the crisis of 1876. This institutional uncertainty is unsettling—and undesirable. It is the result of the Twelfth Amendment failing to specify what should happen when this kind of dispute arises, a defect noted presciently by Joseph Story in the 1830s but we have yet to rectify.

While it might not seem the most pressing reform given the odds each year against another meltdown scenario, as a nation we have suffered considerably the two times that this deficiency has mattered: 1876 and 2000. It would be preferable that, whenever this kind of situation happens again, we have already taken the steps to be better equipped with a clear and fair method of resolving this kind of dispute.

Thus, as long as we are itemizing the elements of a state-of-the-art electoral system for 2020, this particular item should be added to the list.

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


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