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Finding a Truce in the Voting Wars

Connecticut ranks 24th out of the 50 states in an Elections Performance Index study conducted by the Pew Charitable Trusts, released on February 5, 2013.

The Elections Performance Index, or EPI, has long been sought by watchers of elections as a way of improving elections processes.  Yale Professor Heather Gerken first proposed the idea in a January 2007 article.

Senators Hillary Clinton and Barack Obama proposed the idea for legislation within months of Gerken’s first article, although the bills went nowhere.  Gerken expanded the concept into the 2009 book The Democracy Index: Why Our Election System is Failing Us and How to Fix It.

Yet no one did anything about it until Pew published this study.     Pew examined 17 facets of elections, like absentee ballot usage, military voting, voting wait time and voting technology accuracy, and ranked all 50 states for the 2008 and 2010 elections

Connecticut scored poorly in part because it submitted incomplete data. Thirty-eight states provided better data than CT, which missed four categories: absentee ballots unreturned, military ballots overseas rejected, military ballots overseas unreturned and voting technology accuracy.

The Constitution State placed well in many categories. For example, CT ranked 14th with an 85.6 percent voter registration rate.  Minnesota was first with a 92 percent voter registration rate, Hawaii was worst at 69.6 percent.

Most states do this without online voter registration. Only two states have online voting registration (Washington and Arizona), and North Dakota does not require voter registration at all.

Nutmeggers tied Florida 14th place in voter turnout at 66.6 percent. Minnesota was first with a 78.1 percent voter registration rate, Hawaii was worst at 49. percent.

Connecticut was 19th in voting wait time at 10.1 minutes. Vermont led that category with 2.1 minutes of time. South Carolina was worst at 61 minutes.

Connecticut Secretary of the State Denise Merrill’s office did not return a call seeking comment on this at presstime.

Part of the concept of this democracy index is to make secretaries of the state and other elections officials embarrassed, said Professor Rick Hasen, of the School of Law at the University of California at Irvine.

“The shaming of elections officials goes a long way,” Hasen told a packed auditorium at Cardozo School of Law on Fifth Avenue in New York City on Monday, February 11, 2013.  “But some elections officials are shameless.”

Hasen joined a panel of election law experts including Professor Mark Alexander of Seton Hall University, Professor Richard Briffault of Columbia Law School and Professor Janai Nelson of St. John’s University School of Law to discussed Hasen’s new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown.

The Voting Wars details the fights around the litigation and manipulation of election law for partisan gain since Bush v. Gore in 2000. For me, Hasen left out the oppressive litigation tactics by the Democratic Party in 2004 to keep Ralph Nader off the ballot in many states. I saw firsthand how this hurt the Nader campaign when I worked for it in 2004.

Hasen said his book was more concerned with the process of counting and casting ballots than getting on the ballot itself. Yet Hasen was skeptical of the effectiveness of a Democracy Index, since elections are episodic events that only get covered for six months every four years.

Part of the problem with casting and counting ballots has to do with the lack of professionalization of the process. Hasen’s book focused on what he called “Hanlon’s Razor” – never attribute to corruption what can be explained by incompetence.

Is incompetence due to partisanship, Prof. Briffault wondered.

“Elections become dumping grounds for partisans whose sole qualification is party loyalty,” Briffault said.

The Pew Index, combined with Hasen’s book and the discussion this past Monday was enough to make overall took a pessimistic view of the potential for election law reform in America. Briffault saw three main vulnerabilities in our elections systems.

First, is the problems with voter registration and elections administration, second is legislative apportionment and third is campaign finance reform, he said.  The problem, though, is that no one pushes too hard.

“There is not a mobilized constituency for improvement of elections administration,” Briffault said. Hasen’s book quoted a former member of the federal Election Assistance Commission as saying that you need to pass a test to fly a plane, and get training to be a lawyer, but you need nothing more than party loyalty to administer elections.

It is worthwhile to note that the Elections Assistance Commission, created by the Help America Vote Act in 2002, has four commissioners. All four seats were empty for the 2012 election.

“No one was giving advice about best practices,” Hasen said. Nor are there many best practices.

Professor Nelson took aim at Hasen’s characterization of apparent voter suppression as incompetence.  Nelson, who formerly worked for the storied NAACP Legal Defense Fund, said that Hanlon’s Razor does not explain the concerted effort to create voter identification laws and the seize upon early voting.

“There was an overall strategy within the Republican Party to take over state legislatures to enact these laws,” Nelson said, dismissing Hasen’s claims that suppression is not the new Jim Crow. “These new laws present disproportionate problems to minority voting rights.”

Hasen’s “objective approach” in trying to paint a balanced picture ignored the evidence laid out in Prof. Michelle Alexander’s book the New Jim Crow (no relation to Prof. Alexander of Seton Hall), about concerted efforts to disenfranchise blacks in 21st century America.

Getting that to change will be difficult because partisans appear unwilling to transcend party to change the rules, especially those that benefit the parties.

“The rules shape the outcomes,” said Professor Mark Alexander of Seton Hall University. “Technical rules can be manipulated for partisan gains.”

The experts agreed non-partisan administration of elections would go a long way towards solving many of the intractable problems in American election law. But how exactly to get there?

The problem is not the inability to imagine solutions, but the lack of political will, Hasen said.

There is very little space in the middle because of the hyper-polarization of American politics, Hasen said. “Everyone makes their own reality,” he said, in a quote reminiscent of an unnamed adviser to George W. Bush in a 2004 New York Times magazine article “George W. Bush: “We’re an empire now, and when we act, we create our own reality.”

And when every county in every state has a different ballot design and different way of counting the votes, the reality, at least according to Hasen, is that America will see another Bush v. Gore election meltdown.

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