Balkinization: The Invisible Election

The Invisible Election

Heather K. Gerken

Given that election law is my specialty, regular readers of Balkinization may have been puzzled that I haven't posted much during the last year. The reason is that I have been serving as a member of then-Senator Obama's national election protection team since April of 2007. Because I was doing that work in my "civilian" capacity, I felt that I had a dog in the fight and shouldn't hold myself out as an academic commentator on any issue that might affect the campaign.

It was worth dropping out of the commentary game for this round. I stood twenty feet away when Senator Obama became President-Elect Obama. I watched as he pivoted from politician to president, as the paean to our history that had inspired Obama's supporters in New Hampshire became a sobering reminder of the enormous challenges the nation now faces. "Yes we can" was once a muscular chant invoked at partisan rallies. At Grant Park, it was repeated almost in a whisper by 100,000 people, as if it were part of a call-and-response between the president-elect and the nation, a secular amen.

Now that I'm back, I thought it might be useful to say a word about the invisible election that took place in 2008 -- the nuts-and-bolts of election administration that journalists rarely report and citizens rarely see. Even election experts catch only glimpses of the invisible election. In the immediate wake of the election, experts must rely on reporters, and reporters won’t bother to investigate, let alone report on, problems that don't affect the outcome. It's only when the race is close -- as in Florida 2000 and Ohio 2004 -- that we see what really happened at the polling place. To be sure, when political scientists eventually start to crunch numbers, data can give us some sense of what problems arose. But the data we have are often so sparse and haphazard that they can give us only a partial sense of what occurred.

I am one of the few people to have gotten a pretty good view of the invisible election, and the reality does not match the reports of a smooth, problem-free election that have dominated the national media. As part of Obama's election protection team, I spent 18 hours working in the "boiler room," the spare office where 96 people ran national election day operations. Obama's election protection efforts, organized by Bob Bauer, were more generously funded, more precisely planned, and better organized than any in recent memory. Over the course of the day, thousands of lawyers, field staff, and volunteers reported the problems they were seeing in polling places across the country. A sophisticated computer program allowed the lawyers and staffers in the boiler room to review these reports in real time. In many places, everything ran smoothly, just as the media have reported. There were glitches, to be sure, but there were enough poll workers and election administrators to fix them as they came along.

Other jurisdictions simply fell apart as wave after wave of voters crashed down upon them. Thousands of people had to wait three hours or more to vote. In some places, there weren't enough machines to process all the voters. In others, there were plenty of voting machines, but voting booths stood empty because there weren't enough poll workers to check people in. Machines broke down. Parking lots were full. Polling places were hard to find or had been moved at the last minute. Poll workers didn’t know basic rules about provisional ballots and election protocols. Far too many people showed up at the polls thinking they had registered, only to be told they weren’t on the rolls. A bewildering number of polling places needed pens by mid-day because theirs had run out of ink. Many polling places simply ran out of ballots.

These problems occurred even though more voters than ever before (an estimated third of the electorate) cast their ballots before Election Day. They occurred even though everyone knew that turnout would be extremely high. They occurred even though at least one of the campaigns -- recognizing that victory depended on an election system capable of processing hundreds of thousands of new voters -- had done an extraordinary amount of work in helping election administrators get ready for the turnout tsunami that was approaching.

If you'd like to read about the lessons I draw from the invisible election, please see my post on election reform over at Rick Hasen's Election Law Blog.

Posted 12:18 PM by Heather K. Gerken [link]

Comments:

How about commenting on how neither the Democrats nor the Republicans should have been on the ballot in Texas, yet got a free pass from the Texas Supreme Court, despite clearly failing to meet the legal filing time to be on the ballot?

No third party would have been given this free pass, so why the big 2? Are we not a country of equal treatment under the law?

# posted by

Unknown : 1:02 PM

"Are we not a country of equal treatment under the law?"

Obviously a rhetorical question, as the answer has been apparent for decades. if not a couple of centuries. The Golden Rule applies here as elsewhere - "Whoever has the Gold makes the Rules" (cf Parker and Hart, Wizard of ID). All we can hope for is that some sort of popular pressure can at least slow, if not divert, the steamroller of money and power from crushing those of us with neither. Our only strength is in the force of mass. Unfortunately, that is also our critical weakness, as anyone knows who has tried to herd cats. Or lemmings.

# posted by

Anonymous : 3:27 PM

I was one of your footsoldiers- I worked voter protection in Northeastern Ohio.
If this organization persists with the same focus on voting, the Democrats will be electorally dominant for a long time.

My experience was thus:
I worked at a polling place with 3 precincts, 2500 registered voters. I was on a voter protection team of 5. There were 3 lawyers, (incl 2 ohio residents inside the polls) and 1 outside working with me. We were there from 545am til 8pm and watched the whole process.
We answered questions from voters about ID requirements, precinct location and election law questions, making sure as few people as possible had to vote provisionally.
We translated for spanish speakers since Ohio does not have spanish ballots. We also helped an illiterate 20 year old read the ballot and cast a touchscreen vote for Obama. When he finished voting he asked if this meant he would have to fight in the war now.
I called the boiler room once when several people carrying notification of registration were forced to vote provisionally because they were not on the rolls. Only a handful of the thousand or so who voted ended up like this, but we reported.

In our county just for the voter protection program, there were about 400 volunteers (mostly lawyers and some professionals) working the 235 precincts.

An entirely separate, but equally impressive story was the Obama campaign ground game.

During the entire day, there was an Obama Campaign "line manager" entertaining the voter line and handing out snacks and water. There was also a county dem party person passing out endorsement strips. At 11am when precincts report early turnout numbers, 2 Obama GOTV guys (union organizers) showed up and got the numbers then got in their pickups to redistribute door knockers.

All day long, I saw not a single Republican affiliated with the McCain campaign. No GOTV, no voter suppression team.
There were 2 republican poll judges (from the county in addition to 2 dem ones), but there was ZERO evidence of McCain ground game to me or to any of the other out of state people I talked to at the election watch party.

At any rate, the Obama campaign had a crushing advantage on the ground at least in the county I was deployed to.

On a final note, all my involvement in this (except the training, 3 hours) was internet, email, cell and text. If they can maintain interest and enthusiasm, the netroots infrastructure will be an instrumental part of future Democratic victories.

# posted by

drational : 3:43 PM

I just wanted to thank drational for the comment. I've been hearing similar stories all day about the intelligence-gathering on the ground. Thanks for the informative comment.

# posted by

Heather K. Gerken : 5:08 PM

Ms. Gerken,

First, congratulations on a job well done. I watched the process closely and was impressed by what I saw, not only from the campaign but from public interest groups, labor unions, informal ombudsmen, and even a few journalists. I write, however, to ask about something you didn't touch on.

During the run-up to Election Day, a public critic of electronic voting told me it appeared the Obama campaign had not assembled an IT team that could, among other things, size up and take steps to mitigate the risk of electronic vote theft, help poll watchers spot and react to DRE anomalies, eyeball incoming tallies in the way they would, say, a series of credit card transactions, and help prepare affidavits (about any anomalies) and motions for injunction (to protect hard drives and the like) if the result in a given election seemed tainted by electronic vote theft.

This surprised me along with everyone with whom I'd shared the educated guess. It was obvious that law without facts would be next to useless if a crisis had emerged; that the McCain campaign had the services of Mike Connell, a security expert who was deposed (by coincidence) on 11/3 as to his involvement in the 2004 Ohio election; that persons would have made themselves available to the Obama campaign had they been asked; that there were D-to-R shifts in early voting on touchscreens in several states; and that it would not have been in character for the campaign to leave such things to chance. At times I half imagined that the campaign had ramped up but did so quietly so as not to spook the voters or look tin-foil hattish.

If you're familiar with the subject and are in a position to comment, I and many others would like a clearer picture of what was done on this front – or not.

# posted by

Occasional Observer : 8:09 PM

"eyeball incoming tallies in the way they would, say, a series of credit card transactions,"

LOL! That's an ironic comment: One hopes that the incoming tallies were a LOT more secure than the way Obama handled credit card transactions...

I think it's actually a shame that the big race this time around was 'beyond the margin of fraud', because that means we put off one more election cycle doing anything about the problems. Two and four years from now the system will still be every bit as messed up.

# posted by

Brett : 6:03 AM

"eyeball incoming tallies in the way they would, say, a series of credit card transactions,"

In addition to calling in problems, we (voter protection) reported precinct turnout numbers continuously throughout the day at 10am, 2pm, 4pm, and at poll close. We also were also tasked with calling if the line delay reached 1 hour.
I can only imagine that the quantity and quality (from a coordinated team of observers inside and outside the polling place) of data being reported enabled very sophisticated data analysis (I am very much looking forward to Prof. Gerken's book.)

The Obama GOTV collected the official turnout report at 11am and adjusted their GOTV to that report.

# posted by

drational : 8:17 AM

Brett,

The implicit reference for my comparison was a remark from Steve Spoonamore, a cybersecurity expert, who said that banks live with a credit card fraud rate of 2.5%, his point being that even this "optimal" level of integrity makes electronic voting a nonstarter. (You can hear his take over at Velvet Revolution. Like Mike Connell, he's a witness in the pending Ohio lawsuit.)

drational,

The efforts you describe would certainly have helped, furnishing a database against which Obama could cry foul if votes disappeared on a scale approaching that of the 2006 Sarasota, FL congressional race (to give just one example), with or without anomalous undervotes such as were seen in Ohio 2004 (the so-called "Connolly anomaly).

What still puzzles me is why (if it's true) the campaign left itself unable to mount a sophisticated challenge if anything was found to be amiss. Conceivably the thought was that the analog ground game was enough to nip digital foul play in the bud. I don't dismiss that tack. It may have been effective, though I'm not one to assume that any hanky panky was actually in the planning stages.

But I have to say that, knowing what I did, even discounting rumors as best I could, I came into 11/4 fully convinced on the one hand that Obama would swamp McCain if all who reached voting booths had their votes counted (I'd given him a conservative 320 electoral votes) but also knowing enough to wonder, on the other hand, if that would suffice.

I'm glad my concerns proved baseless, but it remains the case that this is no way to run a democracy.

# posted by

Occasional Observer : 10:30 AM

First of all, Professor, I'd like to thank you for your service to our nation. People like you hear the calling to demonstrate the necessary selflessness it takes to effectively operate a proper democracy, and it's admirable. Congratulations, too, for the historic win.

As well, I commend your view of "never attribut[ing] to partisanship that which can be adequately explained by inadequate resources."

But, the media certainly does investigate election issues...when Democrats may be affected (a few links provided).

I'm really curious where voter suppression from Republicans is actually happening, if at all. Do you have any examples of it from this past election? It's a common argument from my friends on the left, but I don't see it. I'm fairly involved in Republican grassroots efforts (admittedly not as integral in the voting process as you), and I've never been made privy to any of the right wing conspiracies for which we seem to be constantly accused.

Respectfully.
_______________________________

http://blog.wired.com/27bstroke6/2008/11/hacker-sends-vo.html

http://www.nomorestolenelections.org/

http://www.freep.com/article/20081104/NEWS15/81104049/1005

http://blogs.sfweekly.com/thesnitch/2008/11/voter_suppression_in_san_franc.php

# posted by

asgh : 10:39 PM

Love is blind; friendship closes its eyes.
Agen Judi Online Terpercaya

# posted by

Unknown : 2:11 PM