By Heather Gerken
Professor of Law
Yale Law School
Many thanks to Ned Foley for letting me respond to his thoughtful post, about designing the “Democracy Index,” a national ranking of state election administration practices, which I proposed a few weeks ago in the Legal Times. Though I was tempted to reply to Ned’s helpful suggestions with a simple “amen,” it seems useful to sketch out an important issue flagged by Ned’s post and talk about some of the questions raised about the proposal during the last few weeks.
Picking the right metric. Ned and I agree substantially about the way the Index should work. It must focus on the nuts-and-bolts of election administration. It should be assiduously nonpartisan. It ought to encompass issues all voters care about (long lines, discarded ballots) while eschewing hot-button topics like felon disenfranchisement or campaign finance.
Ned is also right that the Index should measure how well the election system is run, not the general health of the state’s democracy. In practice, it will sometimes be tricky to separate those issues Consider, for instance, registration rates. Registration rates are plainly influenced by what Ned calls “social and cultural conditions,” and it seems unfair – or at least unproductive – to penalize a state for low registration rates caused by socioeconomic conditions beyond election officials’ control.
But low registrations rates may also be symptoms of a badly run system. Election administrators sometimes manipulate registration requirements to make it harder for voters to take part in the election. Think about Ohio’s Kenneth Blackwell’s failed effort to force voter registration cards to be printed on paper of a certain weight. I’d bet that most voters would think that requirement was a sign of mismanagement. Indeed, I suspect most voters would agree that states should make it easier, not harder, to register to vote provided there are adequate protections against fraud. The question, then, is whether we can devise output measures that penalize states for creating unnecessary barriers to registration without asking election administrators to fix problems beyond their capacity.
Three other questions about the Index have been posed to me during the last few weeks. The first is whether civil rights groups should back this proposal. The second is what to do if states fake their data. And the last is whether the Index would reduce the incentive for top-ranked states to improve their systems. Let me address each in turn.
The New Vote Denial. The first question – whether civil rights groups should be interested in backing this proposal – has already been answered by OSU’s own Dan Tokaji in his article, The New Vote Denial. As Dan points out, the “new vote denial” is the old vote denial. We are back to worrying about the use of basic administrative practices to deprive citizens – especially racial minorities – of the right to vote. For this reason, as Rick Pildes has observed, one of the best ways to protect minority voters is to enact uniform rules protecting the right to vote generally.
To be sure, the Index is different from the traditional weapons in the civil-rights arsenal. It would require advocates of reform to speak the language of corporate executives, not constitutional lawyers. The debate will not be about ideal practices, constitutional rights, or equal protection but hard numbers, accountability, and bottom-line results.
It is, however, essential that we cast the debate in those terms. One of the reasons that the new vote denial is so hard to combat is that it’s difficult to prove intentional discrimination or vote dilution in any given instance. We need a different kind of metric to challenge the new vote denial, and the Democracy Index provides that metric.
It would, of course, be a mistake to shift all reform efforts to the turf of “moneyball politics”; doing so would obscure the stakes of these debates. Nonetheless, as Spencer Overton has recently emphasized in his comprehensive article on voter i.d., data-driven, factual analysis ought to be part of every reformer’s vocabulary. Indeed, the Democracy Index seems like a promising way to bridge the political divide over election reform, as words like accountability and transparency are part of everyone’s vocabulary.
Faking the data. Another important question raised about the Democracy Index is whether states will manufacture data to improve their rankings. This worry is, of course, a happiness problem. If the Democracy Index were having such a powerful effect on politicians that they were tempted to cheat, we would already have come a long way. Nonetheless, every law professor is familiar with the outrageous lengths to which schools have gone to improve their ranking on the U.S. News and World Report ranking (University of Texas’s Brian Leiter has been one of the most trenchant observers of this problem, see, e.g., http://www.leiterrankings.com/usnews/guide.shtml).
Happily, there are a number of ways to verify state disclosures. The scholars who have designed the Environmental Performance Index, which ranks the environmental performance of nation-states, have succeeded in ensuring their data are reliable. The same can be done in the election context. For instance, many voters complained in 2004 about long lines at polling places. One way to test whether states are properly disclosing information about voters’ experiences would simply be to ask people during exit polls how long it took them to vote. We could also devise random sampling strategies that would give us a pretty good sense of which states were playing fast and loose with their data.
Resting on one’s laurels or keeping up with the Joneses? Finally, several friendly critics – who agree that the Democracy Index will encourage states at the bottom of the ranking to improve – worry that top-ranked states would lose any incentive to do better. This situation would still represent an improvement on the status quo – at least the Index would provide an impetus for change somewhere in the system. But it is also possible that a ranking system will encourage top-ranked states to compete among themselves. For instance, residents of reform-minded states like Massachusetts or California might care a great deal about how they rank against similarly progressive states even if they are ranked well above others. Consider, for instance, what took place when the first Environmental Performance Index was released, showing Sweden and Norway ranked first and second on the worldwide ranking. One might have thought that Norway would have celebrated its extraordinary achievement. Just the opposite occurred. Why? Norwegian leaders did not care that they were ranked ahead of 131 other states. What mattered to them? Sweden was number one.
Generating a race to the top is not the only way in which the Democracy Index might turn one of our system’s liabilities – decentralization – into something positive. For instance, an Index gives states the chance to experiment with different reform strategies while providing objective measures for holding them accountable. States can serve as the “laboratories of democracy” lauded by the Supreme Court. And we can test the results from these many experiments. That is because, consistent with the moneyball approach, the Democracy Index lets us figure out the real drivers of performance. Once we know who runs the best elections, we can figure out the formula behind those successes. For instance, is it money or training that guarantees a well-run system? Even if our end goal is uniform, national legislation, the Democracy Index should help Congress identify best practices, choose sensible standards for regulatory floors, and pinpoint local outliers.