AEI, Brookings Sponsor Election Reform Conference

A veteran Congressman; local, state, and federal election officials; academic experts; legal specialists; and advocates for election system reform from around the country gathered at the American Enterprise Institute (AEI) in Washington on March 9 for a wide-ranging discussion of prospects for election reform – and whether reform is actually needed.

Addressing the questions, “Is Our Election System Broken? Can We Fix It?”, the conference – part of an ongoing joint project of conservative AEI and the liberal Brookings Institution – heard very different answers from different participants, reflecting an observation of panelist Thomas Mann of Brookings, who compared the situation to Rashomon, the classic film that tells the same story from various points of view.

Mann said that people of good will and integrity can “view the world in different ways,” and gave as an example the issue of proposed legislation to require photo ID cards from voters. There is “a belief among Republicans that there is fraud” that needs to be prevented, while “Democrats believe there are accessibility problems” making it more difficult for people to exercise their right to vote.

Mann, among other speakers, noted that the question of election accuracy and integrity has become more salient in recent years because of heightened partisanship and polarization. Because close elections are becoming more common than in the past, there is greater scrutiny of election systems and a stronger demand that vote counts be precise and trustworthy. “Change will have to come through the broader political environment,” Mann cautioned, and not just through reform of election laws or systems.

In the first panel of the day, federal Election Assistance Commissioner Gracia Hillman gave an optimistic assessment of progress over the past several years. Looking back on last November’s elections, Hillman said there have been “many discussions” about what happened and what could be improved. “Every person involved in the election process,” she said, “ has learned lessons.” We are, she added, “going through a major transformation.”

A problem faced by elections professionals and officials, however, is that in our society “there is no tolerance for the time it takes to get things right,” and it has only been a few years since the Help America Vote Act (HAVA) began to be implemented in every state and locality.

Following along the same optimistic line, Indiana Secretary of State Todd Rokita stated flatly that he does “not believe our election system is broken.” He asserted that the United States today has the “most accurate, accessible, and fair elections our country – even the world – has ever seen.”

He bemoaned the fact, however, that “we have got to the point where elections must be ‘textbook perfect,’” an unattainable goal, since “we have never seen a perfect election.” The reason is that “in every election humans are involved,” and humans inevitably incur error.

Despite this inevitability of imperfection, Rokita assured the audience that “every state has backup procedures written into law or regulations,” which take effect when one or another component of the election system breaks down – anything from a battery on a voting machine running out of power to names missing from a voter registration database.

“Our processes these days,” he said, “are better than ever before in history.” Still, there are things we can do to make the system “more fair, more accurate, and more accessible.”

Addressing the central question on the minds of the audience as to whether there needs to be a wholesale abandonment of electronic voting machines in favor of some other system (such as paper ballots or optical-scan equipment), Rokita noted that “in Indiana, we have used electronic voting since 1986, and we have not seen any evidence that the machines have ever been manipulated” to change the results of an election. Moreover, he added, “in Indiana, there was no lack of voter confidence in the equipment” prior to the highly-publicized election problems in Florida in 2000.

With proposals in Congress to amend and update HAVA, which was implemented in stages from 2003 through 2006, Rokita said “it would be detrimental and irresponsible to make further changes until pollworkers and voters get used to the changes” that have taken place over the past several years. He emphasized: “We have got to stop being afraid of technology and using it in electoral processes.”

Rather than focus on the technology, he said, we need to “focus on the people.” Specifically, “we need more resources for pollworker training.”

Rokita concluded his opening remarks by saying, “We have got to remember that voting machines are not the election, they are a tool” to make the election happen. “It is the people in an election – the workers and the voters – who make the election.”

Offering a dissenting voice was Loyola Law School professor Rick Hasen, who offered three overarching standards for judging election success or failure: (1) meltdown, in which everything goes wrong and the trust of the electorate is lost, which is the least likely outcome of an election; (2) public confidence as manifested in opinion surveys; and (3) election administration competence.

Hasen noted there were isolated problems during the 2006 midterm elections, including a breakdown of voting centers in Denver and the 18,000 “missing” votes in Sarasota County for the election of a Member of Congress from Florida’s 13th District, a contest that is still not settled. (There were an unusual number of “undervotes” in the congressional race, leading to questions about the accuracy of the voting machines used in Sarasota.)

Hasen also brought the attention of the audience to an increase in litigation on election issues, from an average of 96 cases per year from 1996 through 1999 to an average of 254 cases per year from 2001 through 2004.

The litigation, he said, is taking place in the absence of empirical studies that prove the points of those on both sides of these issues. He cited a couple of cases regarding voter ID laws, in which the arguments are either voter ID prevents “impersonation fraud” at the polls or “deterrence of voters” who lack the necessary ID cards. Neither argument, he said, can be proven through existing empirical research.

Responding to Hasen and Rokita’s comments, EAC Commissioner Gracia Hillman said that “setting a goal of perfection sets you up for failure.” Instead, she suggested that “a goal of excellence is an achievable standard that provides results in the form of customer satisfaction.” Following up, Rokita reiterated his opinion that “fair, accurate, and accessible ought to be the standards.”

Between the first and second panels of the morning, U.S. Representative Vernon Ehlers (R-Michigan), the ranking member of the Committee on House Administration, offered some remarks. Ehlers is the only research physicist in Congress, and he has been responsible for several technological achievements on Capitol Hill, including the setting up of the web site for the House of Representatives and the establishment of THOMAS, the research tool from the Library of Congress that allows anyone with a computer and a modem to follow the legislative process. (Thomas Mann pointed out later in the discussion that, prior to THOMAS, one of the specialized services lobbyists in Washington could offer their clients was “I can get you a copy of that bill” – something far easier to secure now than then.)

Ehlers noted that “every election has errors; some are fraught with errors.”

Looking back on the 2000 election in Florida, he said, “what amused me were the attacks on punchcard voting. Because one community in Florida failed to clean out its machines before the election, the rest of the country had to get rid of” their punchcard voting machines.

In regard to proposals for a paper trail (VVPAT, or “voter verifiable paper audit trail,” in the jargon of elections), Ehlers said he believes there “should be redundancy but a paper trail is not the answer.” The paper trail could be in the form of an optical scan system that uses paper ballots, he said, but “the important thing is redundancy.” “I would also point out,” he added, “that punch card ballots are made of paper – thick paper, of course.”

Ehlers spoke at length about the situation in Sarasota and Florida’s 13th Congressional District, suggesting that the real problem was in the design of the ballot. Ehlers’ remarks were later challenged by an attorney for Christine Jennings, who (so far, at least) lost the election to Republican candidate Vern Buchanan. Once the contestants’ options are exhausted in state and federal court, the case will come before the House Administration Committee, on which Ehlers sits.

Ehlers said that based on his experience, “Secretaries of State, County Clerks, and City Clerks” charged with running elections “are extremely conscientious.” He cautioned the audience: “Do not blame election officials” when things go wrong. “They try hard,” he said, and “they know what they are doing.”

In regard to proposals to replace electronic voting with paper ballots or optical-scan ballots, Ehlers said that struck him “as being a good system, until I started looking into this.” He then gave a number of amusing examples of how large numbers of voters actually marked their ballots. For instance, in Los Angeles County in 2004, 3,616 people voting for president filled in nine out of ten ovals (instead of one out of ten) – which led to a puzzle for election officials: Were they showing their strong support for President Bush – the one oval left blank -- or were they saying “anybody but Bush”? Ehlers asked: “How do you interpret that?”

Asked whether various bills proposed to alter federal election law will progress through Congress, Ehlers answered, “I can’t say. You’ll have to address that to the new chairwoman [of the Administration Committee], Juanita Millender-McDonald. If I were still chairman,” the Republican said to laughter from the audience, “I could tell you.” He added, however, that he and the new chairwoman have “a good relationship” and he expects to work with her on any proposals that reach the committee.

The second panel of the day was moderated by AEI’s Norman Ornstein, who played an active role in the discussion. Ornstein started by saying “election reform is not rocket science” and listing a number of bills recently introduced by, for instance, Congressman Rush Holt (D-New Jersey), Senator Barack Obama (D-Illinois), and Senator Hillary Rodham Clinton (D-New York), and one planned to be added to the hopper by California Democrat Dianne Feinstein.

Panelist Doug Chapin, director of ElectionLine.org, began by noting the large number of people in the audience (well over 100) and described himself as a long-time “election geek,” a term, he said, that “connotes a sense of loneliness.” The large audience, he mused, is a sign that being an election geek may not be so lonely anymore.

In examining the “lay of the land” on election reform, Chapin pointed out that there are twelve new Secretaries of State (who serve as chief election officers for their states), eleven of them elected and one appointed. Those who were elected ran for office on election reform platforms, bringing a “tremendous range of experience” and “hitting the ground running [and] thinking out loud” as they pursue their reform agendas.

Chapin also brought attention to the “tremendous changes in Congress,” notably the shift from Republican to Democratic control. The “Democratic majorities change the climate” for election reform on Capitol Hill. “Now that the Democrats are in charge,” he said, “they have a responsibility to lead the debate on voting technology and voter registration” issues.

He said he has also noticed that NGOs (non-governmental organizations), including advocacy groups, have become more active in recent years. There is a split among these groups developing, he added, between those who prefer a paper trail (VVPAT) and those who want to scrap electronic voting in favor of optical-scan paper ballots. This changes the dynamic of the debate by diminishing what was formerly a near-unanimous position among the advocacy groups.

Ironically, Chapin said, “Congress is coming to a consensus just as the advocacy community is becoming divided.”

Even with the activity in Congress, Chapin added, the emphasis “will be on state capitals,” where experimentation with different models of reform legislation can take place. Moreover, at the state and local level, “nitty-gritty problems will drive the debate.” He offered as examples the fact that a voting equipment vendor in Indiana went out of business, leaving the localities that use that equipment without a support system, and a county in Pennsylvania that suffered extensive water damage to its voting machines and faces a fee of $100,000 from its vendor for recalibrating all its machines.

Before moving forward with new legislation, Chapin said, “we need better access to empirical data.” But “data doesn’t end the conversation,” he added; “it gives us something different to debate about.”

Washington Post reporter Zachary Goldfarb, the second member of the panel, spoke about the challenges faced by the news media in covering issues of election reform. “Many of the issues,” he said, “seem theoretical or potential,” even though we are dealing with “theoretical questions with practical applications.”

Thomas Mann of the Brookings Institution said that he urges “caution on using voter confidence as a standard to act” or not act. Voter confidence, he said, “has less to do with the quality of the system of election administration than it does on close elections. Winners will have a different level of confidence than losers.” (This view was borne out by some graphs shown by morning panelist Rick Hasen, of trends in polling data showing a Republican/Democrat divide on confidence in the system, based upon who won the previous election. The trend does not follow in lockstep, but it is very close.)

Mann asked, “How do we judge between the inevitable [minor] imperfections of the system and the [major] systemic issues that need tending to?” He argued that, “in general,” top election officials are “a little too defensive on this score,” and that “there is a legitimate question to be asked about national vs. state responsibility.” The fact is, he noted, “we are never going to go back to the era” of state-by-state choices with no overriding national guidelines or mandates.

Mann was not optimistic that legislative proposals will move through Congress. The bottom line, he said, “if you accept what I’ve argued, efforts in Congress to amend HAVA, to require VVPAT, to establish voter ID requirements … will be frustrated by partisan considerations” and perhaps even a filibuster in the Senate.

Because, on VVPAT, individual states are taking the lead, “slowing the process down may make good sense in Congress” because hasty federal action could frustrate lower-level efforts for reform based on new technology coming on board that can replace earlier technologies, while federal legislation might lock the older technology in place.

Echoing earlier remarks about partisanship and polarization, Norman Ornstein began the general discussion with the panel with the observation that, in contrast to the years in which most elections were decided by clear outcomes, “problems at the margins are now very important.”

Ornstein asked whether the decision by Florida’s governor to discard electronic voting machines “is a harbinger of things to come.”

Doug Chapin answered that “Florida is an indicator of concerns. Florida plays the same role for us that Britney Spears plays for the tabloids. Florida is the poster child for reform, both in identifying problems and in responding to them.”

Ornstein also sparked a discussion about ballot design, with several of the panelists noting efforts to improve ballot design. Chapin pointed to a “Design for Democracy” project from the American Institute for Graphic Arts, but added that design considerations often run afoul of state election laws. One example was during the California gubernatorial recall election, when graphics experts recommended that the “five top candidates” be given more prominence on the ballot while all the other candidates should recede – a solution in opposition to election laws that call for all candidates’ names to appear uniformly on a ballot page.

In response to an audience question about where this debate about election reform originated, Thomas Mann stated that “we tolerate more error (a) when we don’t know about it and (b) when the stakes are lower.” Florida in 2000 “changed things even though the overall administration of elections had not worsened” in the years leading up to that situation, and may have even been better. But “we discovered many imperfections we weren’t willing to live with.” Mann added that, if the media plays a role in all this, it is in the “breathless quality” of its reporting and its “lack of perspective.”

Zachary Goldfarb added to this point by reminding the audience of the “constant change in who covers [these issues] at most newspapers and magazines.” There is no “election law beat.” The media, he said, is “focused on what’s new and we’re dense about potential problems.” Moreover, “the media are responsive to crises,” so election officials and experts need to “provide context” to reporters, since “newspapers don’t have someone dedicated to this topic.” Goldfarb concluded: “There is no easy answer.”

The AEI-Brookings conference ended on that note, but the discussion will continue through this forum and others. On March 26, the top Mexican election official will be speaking on his country’s disputed election of 2006, which was even closer than the 2000 Bush-Gore contest. Ornstein invited the audience to attend that event, also sponsored by the AEI-Brookings Election Reform Project to learn what Mexico is doing to deal with its own partisanship and polarization.