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Election Law @ Moritz

Free & Fair

What to Tell an Electoral Elf

The country is asking President-elect Obama to play Santa and spend our way out of the economic mess we’re in.  One hears talk of an $850 billion stimulus package, and it’s hard for a non-numbers person like me to fathom what that magnitude means.  

But I do know that there are some election-related projects that would be worth spending federal dollars for, which appropriately would be characterized as “infrastructure improvements,” analogous to the new digital superhighway that is being considering as part of the stimulus. 

Thus, if Santa has one of his elves working on possible election-related items to add to his list, here are three things I would wish for:

The Democracy Index.  It is a common lament that the quality of data on how the electoral process actually operates is inadequate, and accordingly there have been widespread calls for efforts to improve data collection and analysis.  I join my voice to this chorus (as I have many times previously), and here add only one more note. 

While researching the problem of rejected absentee ballots, which has surfaced in the context of Minnesota’s disputed U.S. Senate election, I noticed that Minnesota did not submit data on this issue for the 2006 Election Day Survey undertaken by the U.S. Election Assistance Commission.  Minnesota, the good government state!  And yet it did not report, and presumably did not even collect, data on this important matter—which is potentially outcome-determinative in the Coleman-Franken race. 

The data collection on this topic is even worse in 2004 than in 2006, with many states not reporting for the Election Day Survey in that previous presidential year.  Thus, it is impossible to make comparisons between this year and then.  There is no way to know whether states are improving, or deteriorating, with respect to this particular problem. 

Thus, President-elect Obama, who as a Senator and presidential candidate, already signaled his support for the Democracy Index project (which requires high-quality data in order to make comparative measurements about election administration in the states), should make sure that this project receives the funding it needs.  At this stage, the money is needed to complete the process of designing the Democracy Index itself, figuring out all the data components that would go into giving each state a score or ranking.  After design comes implementation with its attendant expenses of paying for data collectors and processors, as well as for training them.

Of course, insofar as the next round of data collection will not occur until the 2010 election, this chunk of money is likely too late for the immediate stimulus the economy needs.  But there is still data from 2008, however imperfect it may be, to analyze.  For example, there is a strong consensus among the community of election administration scholars that we still need to learn much more about the differential rates of provisional voting that occurred in 2008: over 200,000 provisional ballots in Ohio (according to one preliminary report), in comparison to just 7,000 in Missouri and 4,000 in Virginia. 

If federal funds were to become immediately available for improving “Data for Democracy,” as Pew’s Make Voting Work initiative has termed this effort, the money could be put to good use in progressing the development of the Democracy Index, and at the same time injecting universities and think tanks with some extra funds at a time that they, along with the rest of the economy, are hurting.  (To the extent this suggestion is seen as self-serving, coming from a university employee, I suppose it is in a broad sense; but the number-crunching enterprise is not one to be conducted by law professors.)

2020 Democracy.  The second thing I’d ask an “electoral elf” to tell Santa is that he should set up some sort of commission to study in 2009 how the decade of 2010-2020 could best be used to develop a “state of the art” electoral process, so that when the children born in 2000 are first eligible to vote for President (in 2020), they will be doing so using a process of which they—and the entire nation—can truly be proud. 

This commission wouldn’t do much to stimulate the economy in the short-term, although it probably would take a few million dollars in 2009 to conduct this study properly.  But the philosophy underlying this study should reflect lessons learned from the Help America Vote Act of 2002.  HAVA spent funds for new voting equipment too quickly, before the technology was really ready, or even the design parameters for a “state of the art” voting technology were developed.

The goal of a 2009 study, instead, should be how to set up a decade-long process that would yield “state of the art” voting technology in 2020, technology (or at least a technology platform) which presumably could last another generation, until 2040 or so.  The decade-long process would consider how the technology used to cast and count ballots should be integrated with the technology used to “register” voters and/or assure their eligibility when they vote.  (Maybe this “state of the art” technology will avoid pre-registration by voters, as it has commonly occurred in the United States, but will instead move to a form of “automatic registration” like that used in Canada.) 

Eventually, the federal outlay to build the optimal electoral process for 2020 could be considerable, although likely nothing in comparison to defense spending or other categories of the federal budget.  One of the tasks of the 2009 study process would be to consider the cost/benefit trade-offs of spending more federal funds over 2010-2020 decade to improve the “infrastructure of democracy” in comparison to other social needs.  Regrettably, apart from data improvement efforts along the way to the development of the Democracy Index (as described above), large-scale improvements in the nation’s electoral infrastructure are not “shovel-ready,” to use the phrase du jour. 

But putting together the 2009 commission to think through a plan on how to use the 2010-2020 decade is an immediate priority, and any funds spent to have this commission work properly (and avoid the difficulties that beset the Carter-Baker Commission, for example) would be a well-justified immediate federal expenditure.

Different Post-Voting Dispute Resolution Procedures.  My third wish is likely to cost even less, both short-term and long-term, than the first two.  It is also one that seems to attract less interest within the “election administration” community, understood as the public officials and social scientists who focus on the voting process.  The reason it receives less attention, I believe, is because it concerns a part of the process that kicks into action only at extremely infrequent intervals—at least for statewide elections—and, even when it does, to tends to concern the courts as much or more than the election officials themselves.  Thus, when figuring out what to spend one’s time on, year-to-year and day-to-day, the procedures for handling a dispute in a major statewide election tend to get short-shrift. 

Yet these procedures are all-important in determining the integrity of the electoral process when it matters most.  That truth is clear in light of the presidential election in 2000, as well as the still-ongoing recount of the U.S. Senate race in Minnesota this year.  Citizens pay close attention to these exceptionally close and hotly disputed elections for major offices because they want to know that democracy is capable of working when every ballot really counts. 

But events this year remind us that our existing procedures still are not well-suited to handling a disputed presidential election, like the one that occurred in 2000.  If Ohio had been the single swing state this year (as it was in 2004), and if Ohio had been as close this year as Missouri was (just a few thousand votes separating the two major-party presidential candidates) or indeed as Ohio was in 1976 (when Carter beat Ford by about 11,000 votes), then Ohio would still not know who won its presidential election.  The date for the meeting of the Electoral College would have come and gone (it was last Monday), and either Ohio’s vote-counting process would have been artificially cut short—a winner declared before all the votes had been counted (as the state’s provisional ballots would still have been tied up in litigation concerning the process for evaluating their eligibility before any of them could be counted)—or the nation would have to wait for Congress to resolve a dispute on January 6 concerning a late-arriving result regarding Ohio’s Electoral College votes. 

Neither scenario is appealing.

Consequently, if Congress does nothing else regarding election reform next year, it should fix the Electoral College calendar, to delay the time for the Electoral College to meet to early January, just a day or two before Congress itself meets to accept the Electoral College results.  This fix would give the states more time to resolve the issues that inevitably arise in close and important elections.  And the experience that Minnesota is currently undergoing confirms that even well-run and fair-minded states need the extra time, especially if they use optical-scan paper ballots. 

But while Congress is undertaking a change to the Electoral College calendar, it should also consider a reform of the institution entrusted to resolve any dispute over the counting of presidential ballots.  As the litigation over congressional ballots in Ohio and Minnesota this year remind us, there often is institutional uncertainty about whether a particular court or administrative body has the authority to handle matters like wrongfully rejected absentee ballots, or alleged double-counting of spoiled optical scan ballots, or the disqualification of provisional ballots. 

With respect to presidential elections, Congress would do well to legislate that any such issues regarding presidential ballots should be heard in a special forum created just for this purpose—a forum that would be understood as aiding Congress in its own constitutionally mandated function of officially declaring the winner of a presidential election.  The forum should be structured to be fair to both candidates ensnared in a dispute over presidential ballots, as Bush and Gore were eight years ago.  The forum should be empowered to handle any issues of state or federal law, including Equal Protection and other constitutional claims, that might arise in connection of the counting of presidential ballots.

This reform certainly won’t do much too stimulate the economy.  Any significant expenditure would occur at the earliest in 2012, although some funds could be spent sooner to figure out how best to structure this special forum.  Moreover, even the money spent to operate this special forum would simply displace funds used to litigate issues elsewhere.  Indeed, this reform might even save money insofar as it makes litigation of these issues more efficient.  Part of the problem this year involving congressional ballots in Ohio was that much litigation was simply over which forum should handle certain issues—and the same point might be made of some disputes that have arisen in connection with the recount of Minnesota’s U.S. Senate election.  This kind of “which forum” litigation could be avoided, or at least reduced, through new clear congressional election. 

Thus, this third wish of mine might not be folded into any stimulus package.  But it is still a meritorious idea—one that should be taken up within the next four years.  As long as I’m telling an “electoral elf” what ideas to pass along to Santa, I want to make sure to include this one, so that it does not get overlooked. 

Happy Holidays as we all celebrate the end of this most amazing election year—and a moment of remembrance for Tim Russert, from all his fans, as he hopefully was able to witness the end of the process in his own ethereal way. 


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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