Election Reform Isn’t a High Priority Now, But It Should Be

Posted May 16, 2005 at 4:04pm

Who cares about election reform? Almost nobody. You’d think that after the 2000 presidential election debacle in Florida — and after narrowly avoiding post-election litigation in 2004 in Ohio — the states and the federal government would be using this time between elections to move ahead with serious election reform. After all, free and fair elections are a cornerstone of democratic government, and public confidence in our system of elections is quite low. Unfortunately, things are moving in exactly the wrong direction, and they won’t get better without stronger leadership from Congress, state legislatures and the press.

DeForest Soaries, a member and former chairman of the federal Election Assistance Commission, has resigned in protest over what he termed the lack of a “commitment to real reform from the federal government.” The resignation was barely or not even mentioned in most of the nation’s major newspapers. Only the Boston Globe chose to editorialize on what the resignation means for election reform prospects.

In Florida, the Republican Legislature is moving to consolidate the power to run elections in a secretary of state who is appointed by the Republican governor, thus taking power away from county canvassing boards, many dominated by Democrats. A similar battle over which party should control the election system in Maryland has been brewing between the Republican governor and the Democratic Legislature. The Democratic secretary of state in California had to resign amid allegations that he was using federal election reform money for partisan purposes.

Indiana and Georgia are adopting voter-identification requirements that may cut down on some unknown amount of fraud, but that stands to disenfranchise those voters, especially among the poor, who may have difficulty obtaining and holding on to state-issued identification. Litigation will inevitably follow. And some states are lobbying Congress to loosen up post-Florida requirements to create statewide registration databases — databases meant to ensure that voters who are registered to vote will in fact be allowed to vote.

According to a post-election NBC News/Wall Street Journal poll, more than a quarter of Americans worried the vote count for president in 2004 was unfair. To restore public confidence, we need reform of the way we register voters and who conducts our elections.

When it comes to registration reform, there has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, can minimize the potential for and political rhetoric regarding voter fraud and can eliminate a great majority of potential litigation surrounding presidential election administration.

Under my proposal, the federal government would take on the task of voter registration, much like it does in conducting the census. It would issue voter registration cards with biometric information such as fingerprints, as is done today in Mexico. The nationwide database would eliminate double registrations, assist in quickly identifying voters for purposes of provisional ballots, and help restore faith in the election process.

Because the cards would contain biometric information, voters could show up without identification at the polls and still have their votes counted.

The cards certainly raise privacy concerns. But in an era where the government already has so much information about us, the additional privacy costs of the card are small compared to the potential gain in voter confidence they likely would achieve. And if the “Real ID” legislation gets enacted into law, the marginal costs of a voter ID requirement get even smaller.

Second, as I’ve written in these pages before, we need to move toward nonpartisan election administration. The nonpartisan solution aims to create both the appearance and actuality of neutrality in election administration, thereby bolstering the public’s faith in the process. At the least, states should adopt codes of conduct consistent with nonpartisan administration, such as a rule preventing a secretary of state or other chief elections officer from being co-chairman of a party’s presidential election committee, or from taking a position on a pending ballot measure in a state.

To assure a truly nonpartisan chief elections officer, administrators should be chosen statewide through a nomination of each state’s governor, subject to a 75 percent approval of the state, to ensure that the person could garner wide support.

Some point to improvements in voting technology as evidence that reform has “worked” and that no more steps are necessary. It is indeed true that voting technology has gotten better. According to a recent Caltech-MIT study, more than 1 million votes that would have been lost using older technology were counted in the 2004 presidential election. Florida made especially good strides in this regard.

But even Florida saw its share of voting snafus, including electronic voting machine malfunctions and missing mailed absentee ballots. Another razor-thin election for president could have made Florida the next Florida. Indeed, almost any election system viewed up close will reveal imperfections.

Perfection is not achievable. But as long as we continue to have the prospect of close elections, we need to take additional steps — especially registration reform and a move toward nonpartisan election administration — to improve public confidence in the voting process and minimize the chances of post-election litigation and meltdown.

But changes won’t happen unless Congress, the states and the media start to pay attention. I know from trying to place this opinion piece that the press is not interested. Many op-ed editors from the nation’s finest newspapers and online outlets, including many that have published my work in the past, told me that the issue is just not on the public agenda right now.

Of course, by the time the issue is back on the public agenda, it will be 2008 — and thus too late to fix the system in time for that election. Once that happens, the press and other critics will whine about why nothing was done for four years.

Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles and edits Election Law, a Web log covering the law of politics and the politics of law.