an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Getting from Here to There in Election Reform: What Barack Obama and Hillary Clinton Know that We Don’t
Heather K. Gerken
One of the puzzles in my field, election law, is that we spend a great deal of time thinking about what an ideal election system ought to look like, but almost no time figuring out how to get from here to there:that is, how reform actually takes root.Although we purport to study the political process, remarkably little scholarship is devoted to remedying the crucial problem within election law -- it is extraordinarily difficult for reform proposals to get traction in this country.The most telling evidence that a problem exists?Even in the wake of a national crisis like the 2000 election, the best Congress could do was drag its feet for two years and then pass the exceedingly modest Help America Vote Act.Until we figure out how to jumpstart the conversation about reform so that voters begin to demand that politicians do the right thing, our election system will remain teetering on the edge of another election crisis.
Two top-tier presidential candidates – Senators Hillary Clinton and Barack Obama – have taken an initial step toward jumpstarting the conversation on reform.They have separately introduced bills whose aim is to establish a "Democracy Index," a ranking system of state election administration practices.The basic idea is to establish the rough equivalent of a U.S. News and World Report ranking for state election systems. The Index would concentrate on the issues that matter to all voters:How long did you spend in line?How many ballots got discarded?How often did voting machines break down?It should work for a simple reason:no one wants to be at the bottom of the list.
I am quite biased about this development, as I proposed the idea in January in the Legal Timesand thus have every reason to believe it's a good idea.Regardless of whether you like the proposal, however, what is striking is how quickly these two senators moved on it.It is rare for an idea to move from op-ed to proposed legislation in the space of two months, but that is what happened here.And I think there is a reason that this idea proved to be attractive to these two, pragmatic presidential candidates, both of whom have first-hand knowledge of how hard it is to reform our election system.
The Democracy Index appeals to reform-minded candidates like Obama and Clinton because it is a "here-to-there" solution.First, and most importantly, it changes the terms of the debate.Right now, it is extremely hard for voters to figure out whether the system is working or not.Problems occur routinely, but they become visible to most of us only when an election is so close that those problems threaten to affect the outcome of an election.The episodic way in which problems become visible means that we have only a haphazard sense of how well our elections are run, and we have no comparative data that would tell us which states' systems work and which don't. The Index would make the systemic problems in our election system visible to everyone.It would thus provide voters with a metric to hold elected officials accountable.None of us is born into the world with strongly held views about the routine issues that divide reformers and election administrators – e.g., whether DRE machines are a good idea, what is the optimal strategy for counting provisional ballots, or how best to train poll workers.But we all have a view about the concrete results of those choices – how long the lines are, how many ballots are discarded, how many problems voters encounter in registering and casting a ballot – and it is those results that the Democracy Index measures. The Democracy Index thus gives voters a yardstick to evaluate the competing claims of reformers and officials.Election administrators can defend their choices all they want, but they cannot get around the stark reality of the bottom line:How is the system working?And why is the state next door doing so much better?
The Democracy Index is a "here to there" solution in a second, key respect.One of the central obstacles to reform is political self-interest.The foxes are guarding the henhouse in this country – partisans make decisions about how elections are run – and it is difficult to persuade politicians to give up that power.Most reformers ask politicians to do just that – to act contrary to their self-interest.The Democracy Index realigns the interests of politicians with the interests of voters.After all, every Secretary of State will want to be at the top of the Index.And certainly no one wants to be at the bottom.After all, most of the people who run our election system have higher political aims.Imagine you were a running against a former Secretary of State like Ohio's Kenneth Blackwell or Florida's Katherine Harris.What better campaign weapon could you imagine than a ranking system showing that your state is one of the worst-run systems in the country?
The Democracy Index, to be sure, is just a wedge strategy.It is useful because it gives voters a metric for holding election officials accountable and creates incentives for politicians to do the right thing.If it works as it should, the Index should generate a healthy race to the top, allowing Congress to improve the election system without issuing a single regulation.But it cannot address many of the problems in our election system, particularly those that will involve a political fight.It is a conversation starter, not a conclusion.
Happily, we can see other examples of conversation starters emerging within the academic and reform communities – more efforts to think about how to get from "here to there."For instance, scholars and reformers have begun to speak differently about election reform.I call it "the new politics of election reform" in a piece that came out last week in Roll Call.There I argue that "[t]his new reform paradigm shifts away from the traditional civil-rights perspective toward a more pragmatic, data-driven approach.Unyielding in their idealism, the new election reformers attack problems with the hard head of a corporative executive.They look to a variety of institutions (the market, administrative agencies), not just the courts, for solutions to the problems that plague us.And they are as likely to appeal to traditionally conservative ideas –accountability and competition – as progressive values like participation or empowerment."The Democracy Index – with its data-driven, deregulatory approach – is of a piece with this trend.
One good example of this new generation of election reformers is Dan Tokaji, a former ACLU lawyer and newly tenured professor at Ohio State.Tokaji has recently argued that we should start taking what he terms a "moneyball approach" to election reform.The term comes from Michael Lewis' book on the success of the Oakland A's, whose management drastically improved the team's performance by hiring based on hard, comparative data instead of the gut-level judgments of baseball scouts.Tokaji argues that "efforts at election reform have been based on an intuition-based approach resembling that of the old-time scouts in Lewis' book."He thus calls for data-driven analysis "in place of the anecdotal approach that has too often dominated election reform conversations." Perhaps the most prominent example of the new style of election reform is Spencer Overton's work on voter i.d.Overton was a member of the Carter-Baker Commission on Election Reform, which generated great controversy by endorsing a voter i.d. requirement.Overton dissented from that decision, and he did so in a particularly interesting way.Most advocates contesting voter i.d. have simply invoked civil-rights rhetoric.Overton called upon that tradition, but he also documented how many elderly, poor, and minority voters would be disenfranchised by such measures and the scant evidence of voter fraud.He then spoke in terms that one rarely sees in election reform circles.Taking a page from the conservatives' policy handbook, Overton offered a cold-blooded cost-benefit analysis.Why, he asked, should we disenfranchise thousands of eligible voters to prevent a handful of ineligible people from casting a ballot?Like Tokaji, Overton has urged civil-rights advocates to focus more on hard data and empirical analysis in their efforts to reform our voting system.
Finally, on the more conventionally academic front, the field of election law has begun to take an institutional turn. As a result, a handful of scholars have begun to focus on the ways in which changes to the political process can produce more reform-minded outcomes – that is, they have started thinking about the "here to there" problem.Chris Elmendorf of UC Davis, for instance, has written at length about the productive role that advisory commissions can play in jumpstarting reform. Michael Kang of Emory has explored the ways in which direct democracy might be harnessed to mitigate the problems endemic to our districting process. I have also tried to contribute to this effort with my work on citizens' assemblies (here, here, and forthcoming here)and the Voting Rights Act.Each of these interventions offers some variant of a "here to there" strategy – an effort to alter the incentive structure that has made reform so difficult to achieve thus far.
These correctives may seem modest when compared to typical reform proposals, like calls to rewrite our campaign finance system or demands for a nonpartisan districting system.But, for the most part, these wide-ranging reform proposals have been met with a deafening silence from voters and politicians, and I am quite pessimistic that any meaningful reform will take root until the conversational dynamic changes.The Democracy Index is an effort to help effect such a change, and it should not surprise us that two presidential candidates, both of whom have more ambitious reform goals on their agendas, have moved so quickly to implement it. Posted
by Guest Blogger [link]
Even in the wake of a national crisis like the 2000 election, the best Congress could do was drag its feet for two years and then pass the exceedingly modest Help America Vote Act.
Congressional failure to act is not evidence that there was no problem, it's evidence that partisanship prevented any real solutions.
The Index would concentrate on the issues that matter to all voters: How long did you spend in line? How many ballots got discarded? How often did voting machines break down? It should work for a simple reason: no one wants to be at the bottom of the list.
While I think this would be helpful in solving the less significant voter issues, I have some concerns that a focus on solving these relatively minor problems will detract from the really significant ones:
1. The undemocratic nature of the Senate.
3. Voter suppression such as the disenfranchisement of convicted felons; phony voter fraud accusations; and similar tactics.
I read somewhere long ago that in Australia it is against the law NOT to vote. The article also noted that it was rarely/never enforced, but that the law still served a useful purpose by reminding people of the importance of voting.
While I am not sure I agree with criminalizing non-voting, I have a lot of sympathy for the idea.
The most ground toward a democratic vote is in the choice of voting equipment. The most forge-proof, democratic equipment is pencil and paper. The most democratic line to wait in is the one in front of your mailbox. The most democratic time to vote is over a period long enough that you will likely need to reach civilization to get food or fuel. The most democratic conditions are those which are individualized, where the tools are in my hands, where I'm responsible and nobody else, where only pure accident or my own disinterest can disenfranchise me.
This is similar to the fear of flying on a commercial airline. Yes, maybe it is statistically safer, but the passengers have no control over the ultimate cause of any accident, just buckle up and hope for the best. Not democratic.