2005

Ohio’s ID Proposal: More Harm Than Good

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By Daniel P. Tokaji

The eyes of the country were focused on Ohio during the last presidential election, and for good reason. The outcome of the 2004 presidential election turned on the Buckeye State. The comprehensive scrutiny to which the state’s election process was subjected revealed a number of problems, prominent among them the handling of registration forms and provisional ballots. Although these problems probably weren’t sufficient to change the outcome of the election, they did lead to numerous lawsuits, which I’ve described in this just-published article. A narrower margin of victory would probably have resulted in a litigated election, as was the case in 2000.

Unfortunately, the Ohio legislature is now considering a mammoth bill that, on balance, would do more harm than good. The present version of the bill (Sub HB 3) is almost 400 pages long. If enacted, it can be expected to cause longer lines at the polling place and more provisional ballots cast. That will make post-election litigation more likely, rather than less likely, in future years. Worse still, there’s a significant risk that many eligible voters won’t have their votes counted at all.

The ID Provision

The provision of Ohio’s bill that has sparked the most concern is one that would require voters to provide identifying information in order to have their votes counted. The good news is that government-issued photo ID isn’t the only form of identification allowed. In this respect, Ohio’s ID law differs from those enacted by Indiana and Georgia. A federal court in Georgia has issued a court order against that state’s ID law, while a challenge to Indiana’s law is pending. Had Ohio gone the way of these two states, its law would almost certainly have been challenged as a violation of the Voting Rights Act and the fundamental right to vote under the U.S. Constitution.

That’s where the good news ends, however. A close look at the fine print of the current Ohio bill shows why its ID requirement can be expected to cause serious problems – for voters, poll workers, and election officials – in future elections.

Perhaps the biggest problem lies in the bill’s definition of acceptable forms of ID, which voters would be obliged to present. In addition to photo identification, the bill allows voters to show a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the “name and current address” of the elector. This is better than disallowing anything other than photo ID, but it can be expected to impose serious burdens for certain groups – especially voters who are poor, elderly, disabled, or homeless. What are voters to do if the utility bill comes in someone else’s name? Even those who receive Social Security or other government benefits may not have ready access to a Xerox machine. For those voters, the imposition of this requirement creates an obstacle that can be expected to lead many to stay home. Indeed, one cannot help but wonder if this is part of the bill’s purpose.

Even for voters who have a photo ID, such as a state-issued drivers’ license, the Ohio bill will cause problems. A look at the fine print reveals that the photo ID must contain not only the voter’s name but also his or her current address. It is common for people to move while retaining their driver’s license. Even after a voter notifies the Bureau of Motor Vehicles of his or her new address, a new driver’s license with the new address is not routinely issued. What this means is that some voters will be denied a regular ballot even though they have a current and valid driver’s license with their photo. People whose licenses list a former address will be in for a rude surprise, when they appear to vote in 2006 or 2008.

[Note: Shortly after this comment was written, the legislature amended this provision of the bill, as noted in this blog post. Under the revised version of the bill, which was ultimately enacted into law, a driver’s license with a former address is considered acceptable identification. See this eBook entry for more on the ID requirements, as enacted.]

Under the proposed bill, those voters who don’t have ID with the current address will have to vote provisionally. To cast a provisional ballot, these ID-less voters will be required to provide the last four digits of their Social Security number or execute an affirmation under penalty of perjury, saying that they can’t provide the required ID. Provisional voters will also be required to execute a written affirmation stating that they are registered in the jurisdiction where the ballot is being voted and that they are eligible to vote in that election, and containing their name and signature. County boards of elections will then have the responsibility of reviewing all these provisional ballots, to determine whether each voter is in fact qualified and properly registered to vote.

The Bill’s Likely Consequences

If this sounds like a headache for everyone involved – from voters, to poll workers, to county boards of election – well, it probably will be just that. There are at least three major consequences that will flow from Ohio’s proposed ID requirements, none of them favorable.

First, we can expect this process to cause longer lines at the polling place, especially in presidential election years. It will take time for poll workers to check identification and, for the many voters who don’t have compliant ID, help voters fill out the affirmations required to vote provisionally. In addition to leaving many voters angry, including those with a valid driver’s license, this will strain already scarce poll worker resources.

Second, the new bill is certain to result in more provisional ballots cast. Voters who don’t have the requisite ID will be required to vote provisionally, as will those voters who are sent the newly-required mail notices that are returned as undeliverable. The increase in provisional ballots will, in turn, provide more for candidates in close elections to fight over after election day. It will thus increase the margin of litigation and, with it, the chances of post-election lawsuits deciding who wins and who loses – as was the case in Florida’s 2000 presidential election in 2000 and Washington’s 2004 gubernatorial election. The prospect of more protracted post-election litigation shouldn’t please anyone, except dissatisfied candidates and their lawyers.

The third consequence is that an unknown number of eligible voters won’t actually have their votes counted. There’s no reliable way of predicting how many of the additional provisional ballots that will result from Sub HB 3 will, in the end, be counted. Much of this depends on the standards and procedures followed by individual county boards of election, and the present bill does little if anything to promote uniformity across the state. We can therefore expect not only that some eligible voters won’t have their votes counted, but that there will be disparities in the vote-counting methods applied in different counties – a situation that could well lead to an equal protection challenge based on the rationale of Bush v. Gore.

There might be an argument for the new barriers that Sub HB 3 imposes to voting, if it were shown that the state has a serious problem with voters showing up at the polling place pretending to be someone they’re not. But that evidence doesn’t exist. To the contrary, a recent report, issued by the League of Women Voters and the Coalition on Housing and Homelessness in Ohio, found only four cases of proven fraud in the 2002 and 2004 elections, out of a cumulative nine million votes cast.

To the extent that there is any voting fraud, the available evidence suggests that it’s much more likely to take place with mail-in absentee voting than with in-person voting at the polling place. That’s understandable: A voter who shows up at the polls pretending to be someone they’re not is taking a big risk, with very little to gain. If someone is determined to commit fraud, they’re much more apt to do so through mail-in absentee ballots – a practice that, ironically, the Ohio legislature has liberalized through another measure it passed earlier this year (HB 234).

A Better Approach

The proposed ID provisions in Ohio’s bill will make voters jump through hoops for no good reason. It will frustrate poll workers and election officials as well as voters, something we can ill afford at a time when we desperately need more qualified poll workers and when voting participation isn’t what it should be. And this is just one of several problems with the proposed bill, others of which I’ve discussed here. The legislature should scrap Sub HB 3, and instead consider reforms along the lines of the Ten Most Urgent Election Reforms that my colleague Ned Foley has proposed. This would provide a much more fruitful starting place for real reform than the deeply flawed bill that’s presently before the state legislature.

Too Little, Too Late

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By Ruth Colker

The Gongwer News Service reported on September 26, 2005 that Secretary of State Kenneth Blackwell had approved the distribution of $1.1 million in federal grants to county election boards for improved signage and temporary ramps to help make polling places more accessible to disabled voters. Unfortunately, this money is likely to be too little, too late.

The Help America Vote Act requires that states have accessible machines in each precinct by 2006 and allocates $100 million to make polling places more accessible. Further, Congress conditioned the acceptance of federal funds on states adopting federal accessibility standards for polling places. As Ohio wrangles over a paper trail requirement, it has taken few, if any, steps to comply with the accessible machine requirement. (A paper trail isn’t much help to a visually impaired voter who can’t read the paper trail and must wonder if the person assisting him or her to vote has actually reflected the voter’s intent.)

But what is $1.1 million likely to buy for Ohio voters with respect to accessibility? In data supplied to the Election Commission, Ohio reports that it has 6157 polling places and that 76.2% are accessible to voters who are physically disabled. (Ohio provided no figures on accessibility to visually impaired voters.) By Ohio’s own figures, there are therefore approximately 1526 polling places that are inaccessible to individuals with physical disabilities. Hence, each polling place would receive approximately $720 to improve its physical accessibility if the $1.1 million were spread evenly among the inaccessible polling places. $720 is approximately the cost of one temporary portable aluminum ramp to provide access across 3-4 steps. That would leave no money to tackle other path of travel issues, provide assistive technology to visually impaired voters, create signage directed at voters with disabilities, and comply with new curbside voting rules. Specialized equipment for voting machines to make them handicapped accessible can cost as much as $5000. $720 is barely a downpayment on the technology needed to make voting accessible in Ohio.

The Government Accounting Office reported in 2000 that 28% of polling places nationwide were physically inaccessible and did not offer curbside voting. By 2004, Ohio still reported that 24% of polling places were inaccessible. So far, the Help America Vote Act has done little to improve accessibility in Ohio. Unfortunately, it is hard to imagine that $1.1 million will make a significant difference by 2006. One aluminum ramp per polling place is unlikely to solve Ohio’s problems with voting inaccessibility.

The Federalism Defect in the Prosecution of Tom DeLay

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This comment originally appeared in the November 28 edition of Roll Call and is being reprinted with permission

As we all know, Rep. Tom DeLay (R-Texas) was Majority Leader in one house of the U.S. Congress, yet the indictments that deprive him (at least temporarily) of this powerful post allege violations of state, rather than federal, law.

According to these indictments, several major corporations wrote large checks to a DeLay-controlled political action committee, which then funneled the money to the Republican National Committee, which in turn re-routed the corporate dollars back to several candidates for the Texas Legislature. Because it is illegal under Texas law for corporations to contribute to a state legislative campaign, the indictments claim that the three-step financial transaction ­ from corporations to PAC to RNC to candidates ­ was a deliberate and impermissible attempt to evade this prohibition.

The first indictment charged DeLay as a co-conspirator in this alleged evasion. The second, based on the same underlying facts, added the charge that this effort to circumvent the state’s campaign finance laws violates the state’s money laundering statute.

DeLay now seeks to dismiss these indictments. Whatever one thinks about DeLay as a politician, or even about the ethical propriety of the alleged financing scheme, there is a basic reason why his dismissal motion should prevail: As a Member of Congress, he should be accountable for his campaign finance practices to federal, not state, authorities.

Let’s assume, for sake of argument, that what occurred did violate Texas law and that DeLay orchestrated the flow of funds. It still does not follow that DeLay should be prosecuted for this Texas crime.

The purpose of the Texas prohibition on corporate contributions to state legislative candidates is to protect the Texas Legislature, and by extension the Texas residents it represents, from the potentially corrupting influence of these corporate dollars, as would occur if the corporations called in the debts these candidates owed them. It is a laudable purpose, and this law should be enforced. Therefore, the state of Texas would be well within its rights to prosecute the corporations that provided illegal contributions of this nature as well as the candidates who received the illegal funds.

Texas, too, would be entitled to prosecute most middlemen who facilitated or arranged this kind of illegal transaction. If a local powerbroker had intentionally orchestrated the transfer of funds from corporations through conduits to candidates, then the local powerbroker deserves the threat of local prison.

But DeLay is no local powerbroker. Although the indictments paint DeLay as an incidental player in a crime committed mostly by others, it is hard to imagine DeLay is anything but the main character in this drama. Rather, it has been widely reported that DeLay conceived the plan that would put the Texas Legislature in Republican control, with the consequence of increasing the size of the Texas delegation in Congress as well as his own political power. As campaign finance activist Fred Wertheimer put it after DeLay’s indictment, “DeLay has been the king of a Washington-lobbyist, influence-money approach for governing America.”

All this suggests, however, that the corporations in this instance gave their funds not so much to win influence over future members of the Texas Legislature, but instead to curry favor with the Majority Leader of the U.S. House of Representatives. But then we must ask whether DeLay’s actions, as alleged in the Texas indictments, violated federal campaign finance laws.

These national laws are designed to protect Members of Congress from the risk of corruption. Thus, if there is a concern that the corporate contributions described in the indictments presented the risk of corrupting DeLay ­ and with him, as Majority Leader, the entire agenda of Congress itself ­ then one would think that this concern would be addressed in a provision of the federal campaign finance law.

It turns out that it is a bit tricky to determine whether the alleged facts violate federal law. There is a provision of the McCain-Feingold statute that prohibits a Member of Congress from raising corporate funds on behalf of a candidate for state office, but this provision did not take effect until November 2002, two months after the financial transaction described in the indictment.

The point here is not to resolve conclusively whether DeLay violated federal law, but rather to make the case that DeLay’s fate should depend on the answer to this federal question, not on whether he committed a state crime. If a Member of Congress goes to prison for soliciting corporate contributions, it should be because a federal prosecutor and federal court (both jury and judge) have determined that the Member has committed a federal offense.

One could argue that if DeLay facilitated the corruption of state officeholders, he should be accountable under state law, just as the local powerbroker is. But my answer is no. The involvement of the Member of Congress in this political fundraising scheme means that the liability of the Member should be handled by federal, rather than state, law. Other participants in the scheme can be fully subjected to the strictures of state law, but the national interest that Congress operate under national rules to protect its Members from corruption requires that state law yield in this limited respect.

In substance, the financial transaction is a different one if the House Majority Leader orchestrated it. When a local powerbroker facilitates the receipt of corporate funds by a local candidate, that powerbroker is an agent of corruption. But DeLay is a principal, not an agent, and prosecutorial discretion should respect this difference.

So far there has been no clamor for a federal indictment against DeLay because of these alleged activities. Without one, DeLay should be free from risk of prosecution.

If the Majority Leader did nothing wrong according to the rules that seek to protect Congress from improper influence, then neither he nor the nation’s business should be snagged by local rules for the governance of local politics.

The IRS and Secret Campaign Regulation

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By Donald B. Tobin

During the 2004 Presidential campaign, 501(c)(3) organizations, including religious institutions, were extremely active in attempting to influence the election. The IRS recently sent letters to All Saints Church in Pasadena, CA, and the NAACP, indicating that the IRS was examining whether the organizations violated their (c)(3) status by giving speeches critical of President Bush.

The organizations involved and others have cried foul. They argue that the IRS should not be subjectively analyzing the content of these speeches, and that the IRS is engaged in a political attack against opponents of President Bush. Critics note that the IRS appears not to have initiated an inquiry into a letter that Reverend Michael J. Sheridan, the Bishop of the Catholic Dioceses of Colorado Springs, sent to parishioners that favored President Bush. 1

Because the IRS does not make taxpayer inquiries public, and, absent litigation, does not publicize or explain the reasons for its decisions in a particular case, it is impossible to tell whether these criticisms are in fact accurate. But the fact that these decisions are not public increases the chances that the rules will not be applied in a fair, non-biased fashion. In my view, the decision whether a 501(c)(3) intervened in a campaign on behalf of a candidate for public office should be moved outside the IRS and into a forum where taxpayers can both file complaints against (c)(3)s and where the decisions regarding who is investigated and why is transparent.

For now, however, the IRS is responsible for the initial decision whether to investigate an organization and whether to revoke its (c)(3) status. It is not easy to draw the line between intervening in a campaign (which is prohibited) and speaking out on issues of public concern (which is not). To date, the best information available on how to draw the line between intervention in a political campaign and general policy discourse comes from a Technical Advice Memorandum 8936002 (TAM) issued by the IRS. 2  The TAM involved ads by an organization promoting world peace that ran during the Reagan/Mondale presidential campaign. According to the TAM,

The ads stressed the liberal posture on such war and peace issues as nuclear war, the defense budget, and ‘star wars’, urging listeners to get involved with rallying calls such as the following:

  1. ‘Think about it when you vote this November….America can change course….the choice is ours.’
  2. ‘Let’s choose leaders who will lead us away from a nuclear nightmare not into one.’
  3. ‘When I hear talk of winnable nuclear war, of doubling the defense budget, of spending billions to turn the heavens into a battleground, I don’t like it.
  4. ‘This November….vote….Our future depends on it.’
  5. ‘Choice is ours this fall….Something has to change….Let’s lead America away from a nuclear war not into one.

The ads in question discussed issues that were clearly contrary to the policies of the Reagan Administration. The ads urged the public to “vote,” and suggested “something has to change.” It would be hard to view the ads as anything but an attempt to encourage people to vote against President Reagan. The ads, however, did not mention either Mondale or Reagan by name.

Despite what appears to be a clear attempt to influence an election, the TAM notes that the organization “probably did not intervene in a political campaign on behalf of or in opposition to candidate for public office.” This TAM left many in the non-profit community secure that organizations could discuss political issues in a very political way without jeopardizing their 501(c)(3) status.

If this type of communication isn’t intervention in a political campaign, what is?

In Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000), the IRS successfully revoked a church’s tax-exempt status because the church ran newspaper ads urging Christians to vote against then candidate Governor Clinton. Branch Ministries, however, was an easy case. It was explicit political intervention.

Therefore, political intervention is presumably more intervention than the TAM and as much intervention as Branch Ministries.

The All Saints Church sermon, the NAACP speech, and the pastoral letter by Bishop Sheridan all were partisan and clearly designed to encourage members to vote for certain candidates. In the All Saints Church and NAACP examples, the speakers were implicitly encouraging people to vote for Kerry. Bishop Sheridan’s letter was a clear call to vote for Bush. (See All Saints Church Sermon, NAACP Speech, Bishop’s Letter)

If all three speeches clearly urged listeners to vote a certain way, why are all three not being investigated? Or if all three are being investigated, then shouldn’t the public and other 501(C)(3)s be aware of that fact so they could ensure that they acted appropriately. For example, one response to the criticism of selective enforcement would be that Bishop Sheridan’s communication was in fact being investigated.

But assuming for the moment that All Saints and the NAACP are under investigation and the Colorado Springs ‘s Dioceses is not, is there any justification for this distinction? In my view, the Bishop’s letter is further toward Branch Ministries than the All Saint’s sermon and similar to Bond’s speech at the NAACP. Reverend Sheridan basically told followers that they had a moral duty as Catholics to vote for Bush, and Bond noted that members were ready to work for regime change here at home.

One answer could be that the IRS has a political vendetta, and that the Bush Administration is doing this to attack its enemies. My initial reaction was that these allegations are ridiculous and that the career employees at the IRS would not engage in such political manipulation. I concede that after the Plan B affair at the FDA and the Valerie Plame incident, it is harder to trust that these decisions are being made in a non-partisan way. Nonetheless, I do not believe that there is such a vendetta. My experience is that the IRS employees in the exempt-organization branch are top-notch and non-political. I am further convinced that the IRS set up procedures that were designed to ensure non-partisan consideration of these issues. The fact that some perceive this to be a vendetta is problematic for the IRS, and part of the problem arises from the fact that the IRS must keep information regarding taxpayer inquiries private. We therefore have no idea what criteria the IRS is using to make its decision, and have no idea if that criteria is being applied in a fair and balanced way.

If there is a disparity between these cases and there has been no political vendetta, 3  than why would the IRS investigate All Saints and the NAACP and not the Diocese of Colorado Springs?

I think the answer may be that the IRS is using a bizarre failed test to evaluate intervention. It may be borrowing from failed campaign finance doctrine. Based on communication made public by All Saints, it appears the IRS has determined that the use of a candidate’s name, plus criticism of that candidate, is enough to warrant action. This would be similar to the failed “magic words” test used by the Court in the campaign finance context after Buckley v. Valeo, whereby only communication that used certain words would be considered express advocacy. The “magic words” test was a bright-line rule that could easily be avoided by simply choosing your words carefully. In this case, the IRS might be applying a test that finds political intervention only if a candidate’s name is used. In other words, the “magic words” in this test would be the candidate’s name plus criticisms of the candidate.

In the TAM discussed above, just as in the Bishop’s letter, the ads never mentioned either Mondale or Reagan. In fact, if I were a lawyer representing the Diocese of Colorado Springs, I would argue the Bishop’s letter is no different than the situation in the TAM (although I think the Bishop’s letter is more forceful than the situation in the TAM). All Saints and the NAACP cannot make such an argument if the use of the candidates name is a dividing factor. The All Saints Church sermon referred to both Bush and Kerry by name.

If this is the dividing line, than the IRS has created a crazy distinction. Section 501(c)(3)s will simply engage in political communication, but will just use different terminology.

In the end, these ruminations are just that. We have no idea how the IRS is making these decisions. And that is the big problem. These decisions need to be moved out of the IRS and into a forum where taxpayers can both file complaints against 501(c)(3)s and where the decisions regarding who is investigated and why are transparent.

The decision whether an organization should lose its tax-exempt status for intervening in a political campaign is an important one. Ultimately, tax-exempt organizations can appeal the IRS’s action to Federal district court and the IRS’s reasoning on that particular case will then be public. But this process fails to ensure that tax-exempt organizations are treated equally. Court action allows us to see why the IRS took action in a particular case, but it does not tell us whether the IRS is applying that logic to all non-profits. In addition, most of these conflicts never go to court, so non-profits are thus deprived of helpful guidance regarding whether their activities constitute political intervention. An open and non-partisan process should be put in place to deal with this issue. Campaign regulation is too controversial a topic to be done in secret.

The (c)(3)s in these cases, however, are not without blame. The IRS has issued guidance and warnings indicating that (c)(3)s should not intervene in political campaigns. When 501(c)(3)s take actions that are clearly designed to influence elections — as did the Catholic Bishop’s, the NAACP, and the All Saints’ pastor, they should not be surprised when the IRS comes calling. In my view, we need a better system. But (c)(3)s also need to realize that if they want the benefits of (c)(3) status, they should not try to influence people to vote for particular candidates.

Notes

1. The letter did not mention President Bush by name, but as discussed later, clearly indicated that Catholics should vote for the pro-life candidate for President.

2. TAM’s are not binding on the IRS and are not precedent. They are advice from the National Office to IRS employees. They do, however, provide practioners with guidance regarding the IRS position in certain cases.

3. Again, I concede that the IRS may be auditing the Catholic Church and we may not be aware of that fact.

Future Redistricting Reform Must Learn from this Year’s Mistakes

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Cynics say that there is now no chance at nonpartisan redistricting reform, given the overwhelming defeat last Tuesday of the proposals on ballots in California and Ohio. Although sadly cynics are often correct, there are two good reasons for disbelieving the cynics this time.

First, this year’s redistricting proposals were flawed both procedurally and substantively. Second, at least in Ohio, opponents of the ballot measure – rather than gloating over their victory – have pledged to pursue a different version of redistricting reform and have offered to work with the failed measure’s proponents to develop a proposal both sides can agree on.

The procedural mistake in both California and Ohio was to include redistricting reform in a package of ballot measures that the voters correctly perceived were politically one-sided, not the even-handed measures they purported to be. Redistricting reform, to be successful, must be genuinely nonpartisan, but in neither state this year could voters be confident of this.

In California, Governor Schwarzenegger combined Proposition 77, his redistricting proposal, with Proposition 75, which would have restricted the political activities of labor unions representing public employees. In Ohio, the reform group responsible for Issue 4, that’s state’s redistricting issue, also sponsored Issue 3, a campaign finance measure that would have given a new advantage to labor money unavailable to corporate money.

Labor unions consequently fought vociferously to fight Schwarzenegger’s so-called reform package. Likewise, business interests worked hard to undermine the pro-labor effort in Ohio.

In both states, huge sums of money was spent to defeat the ballot measures, and the TV ads attacking them tended not to differentiate among the specific proposals, arguing instead that they all should be rejected as an improper partisan power-grab. Given the large number of measures on the ballot (four from Schwarzenegger in California, eight in all; four from the reform group in Ohio, five in all), combined with the complexity of the redistricting proposal in each state, voters were reluctantly uncomfortable to approve a supposedly “neutral, fair-minded” proposal that had come under such withering criticism for being egregiously one-sided and deceptively so.

Voters in each state, in other words, weren’t sure whether the redistricting measure was a Trojan Horse – the proverbial wolf in sheep’s clothing. But since it was pretty easy to see (especially after the opposition’s campaign got underway) that the other parts of the “reform” package on the ballot were partisan, and hardly neutral at all, voters were understandably suspicious.

Thus, in both California and Ohio the redistricting proposals were tainted by their association with anti-labor or pro-labor efforts. Lesson Number One from Election 2005, then, is straightforward: don’t package redistricting reform with other measures, especially ones that take sides in the perennial battles between business and labor interests. Redistricting reform, if true to its own professed goal of achieving an unbiased electoral system, needs to remain pure and cannot become sullied by forming alliances with interests on one side or the other of the great partisan divide.

But guilt-by-association was not the only reason Prop 77 and Issue 4 were defeated. Both proposals were substantively defective in certain critical details, and these defects were exposed and exploited by their opponents.

Both shared the same flaw of requiring one round of mid-decade redistricting, a feature that increased the suspicion that they were designed for the short-term advantage of one party as much as for the long-term health of the system as a whole. Beyond that, the California proposal relied upon retired judges to make redistricting decisions, an element that was easily attacked for being insensitive to the state’s increasing cultural diversity (old-timers being unrepresentative demographically, as well as potentially out of touch with current conditions, trends, and values).

In Ohio, Issue 4 had a particularly severe flaw: it relied heavily on a virtually incomprehensible mathematical formula that, once understood, was revealed to cause districting maps as convoluted and bizarre-looking as those it was designed to replace. The mathematical formula elevated “competitiveness” as a districting criterion above contiguity and respect for traditional city and county boundaries. While “promoting competitive elections” may sound good in the abstract, it cannot be achieved without serious adverse affects in a state where Republicans reside in certain distinct localities (mainly rural counties and more southerly suburbs), while Democrats live in different places (mainly cities and more northerly suburbs).

Ohio is a state that overall is quite competitive between Republicans and Democrats. Although Republicans have won virtually all statewide offices in recent years, and President Bush famously won the state narrowly in both 2000 and 2004, Clinton carried the state twice in the two previous elections, and Democrats can point to other statewide wins in recent decades. Nonetheless, being closely divided between Ds and Rs statewide does not mean each locality within the state is likewise closely divided. As long as both houses of the state’s legislature are closely balanced between both parties (which they are not because of partisan gerrymandering), there is no need for most legislative districts to be tightly competitive. Instead, districts drawn according to the traditional criteria on compactness and respect for traditional local boundaries will result in a sensible map that yields quite a few uncompetitive districts, yet fairly represents the constituents of the state overall.

Once the editorial boards of the state’s major newspapers saw this flaw in Issue 4, most of them urged their readers to reject it as a cure at least as bad as the gerrymandering disease. In essence, then, many Ohio voters asked themselves, “Why trade one crazy map for another?”

Lesson Number Two of Election 2005: redistricting details matter, and it is important that reformers get them right by submitting their proposals to rigorous field tests (including focus groups and critical examination from potentially hostile experts) before putting them on the ballot. The resources needed to mount an initiative campaign should not be squandered on defective measures that could have been fixed in the drafting process.

It would have been nice if reformers had learned these two lessons ahead of time. But the good news, at least in Ohio, is that the process of defeating this year’s proposal has led to widespread recognition – and agreement – that the state needs a better version of redistricting reform on the ballot next year.

If Republicans and Democrats, business and labor, can jointly sponsor a redistricting measure in 2006, it stands an excellent chance of adoption. Indeed, one measure on the Ohio ballot this year, unrelated to the four reform proposals, was enacted: a public works financing plan that received this kind of bipartisan support.

Despite what cynics may say about the likelihood of a bipartisan redistricting proposal, both Republicans and Democrats in Ohio may see such an effort as in their own party’s particular self-interest. Republicans have suffered from severe scandals in the state recently and may wish to go to the voters next fall, when all the major statewide offices are up for grabs, as the party of reform. (Given the announcement last week from Republican leaders that their party will seriously pursue a reform alternative in the wake of Issue 4’s defeat, it may look doubly bad if by next November they have failed to deliver on this promise.) Likewise, Democrats, who have suffered from the Republican’s partisan manipulation of district lines in most recent round of gerrymandering, may wish to return to an even playing field.

But even if it proves impossible to get bipartisan support for a new redistricting reform proposal, it does not follow that a well-designed reform plan necessarily will go down to defeat. If proponents of reform observe Lessons One and Two, then they can go to the voters with a redistricting measure that stands on its own, untainted by collateral partisan disputes, and which truly can be promoted as fair and impartial. In this context, any future opponents of such a virtuous proposal will come across as crassly attempting to cling to an unfair advantage as a result of previous gerrymandering.

In neither California nor Ohio were reformers able to conduct the public debate in these terms. In short, this year the reformers could not convince the public that they truly were acting in the public’s interest. Therefore, the defeat of Prop 77 and Issue 4 do not forecast what will happen if and when reformers learn their lessons and therefore rightfully earn the public’s trust.

The Ten Most Urgent Election Reforms

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In both California and Ohio, voters are expected today to defeat proposals that would put legislative districting in the hands of independent non-partisan commissions. These defeats, if they happen, should not be taken as a sign that our nation’s electoral system is not broken. Instead, the message is that other elements of the electoral process need more pressing attention.

Indeed, in Ohio voters are expected to pass at least two of the reform measures before them, one that would adopt the option of early at-home voting (also called “no excuse” absentee voting), and another that would impose several new campaign finance rules, including strict contribution limits. A third reform on the ballot, which would transfer the authority to administer the state’s election laws from the elected Secretary of State to an appointed nine-member board, faces an uncertain fate.

With all the talk of needed reforms after last year’s presidential election, it is worth taking stock of how much – or little – has been done in the past year to fix the flaws that were exposed a year ago. About a dozen states have enacted legislation to improve their procedures for provisional voting. Most prominent on this list is Washington , which had especially acute problems in its 2004 gubernatorial election. But most states need to do much more to clarify their rules for determining when provisional ballots count as valid votes. Colorado can serve as a model for the nation on this point, having adopted in August a detailed set of administrative rules concerning the verification of provisional ballots. States that fail to follow this lead risk an electoral Katrina.

Too much legislative time and attention have been spent during the last twelve months on the topic of voter identification. Although I continue to believe that there is a middle ground on this contentious issue – my compromise would require a digital photo (at the state’s expense) at time of registration but not at time of voting (because poll workers could look at the voter in person to compare with the digital photo contained in their electronic poll books) – there is no immediate need to adopt any new method of voter identification. The problems that plagued the electoral process last year, even those involving allegations of illegal votes (mostly votes by disenfranchised felons, or double votes by the same person), were not ones that would have been avoided by a requirement to produce a photo ID when voting at the polls.

Instead, improving the accuracy of voter registration databases – to eliminate the deceased and the relocated, while avoiding erroneous purges – is a much more urgent matter. Yet, while Congress in 2002 mandated that the states adopt centralized registration databases by the beginning of next year, many states will fail to meet that deadline. States like Wisconsin , which already has announced its noncompliance with this mandate, should worry much more about their inability to develop an accurate list of registered voters than about the imposition of a new photo ID requirement.

Reflecting on the relatively little progress made in improving our nation’s electoral system over the last twelve months, and anticipating the need for rapidly accelerating steps before Americans return to the polls for federal elections next November, I offer this list of the ten most pressing reforms in order of priority:

  1. Development and implementation of selection mechanisms and accreditation standards to assure nonpartisanship and professionalism of election administration officials. Ohio’s ballot initiative on this point (Issue 5) is flawed in its details, but some version of this basic concept is essential for the success of all reform efforts.
  2. Improved methods, including increased funding, for recruiting and training well-qualified poll workers. As long as we continue to cast the majority of our ballots at polling places, rather than by mail, we must continue to invest in the quality of our poll workers in order for the voting process to work well.
  3. Implementation of pre-election procedures to verify the accuracy of new HAVA-mandated centralized voter registration databases. Already mentioned above, this reform is examined more closely in a two-part commentary from March 22 and March 29.
  4. Enactment of clear and specific rules of uniform statewide applicability for determining whether provisional ballots count. Also mentioned above, this widely embraced proposal has been insufficiently implemented.
  5. Adoption of expedited post-election procedures for the timely resolution of disputes concerning the accuracy of a vote count. The most sobering lesson of 2004, as evidence in both Ohio and Washington , is that existing procedures for both certifying winners and litigating election contests are too slow to meet the Electoral College deadlines set by Congress – or, for that matter, the date for inaugurating a state’s new governor.
  6. Review of procedures for assuring the integrity of mail-in ballots. As more and more states adopt the option of early at-home voting, there will be increased scrutiny of the procedures for handling these mail-in ballots.
  7. Improved collection and public availability of election administration data. The U.S. Election Assistance Commission, with the release of its Election Day Survey, is making progress on this front, but there is still more to do.
  8. Dissemination of easily available public information concerning the proper polling location for each voter. Although improvements are also being made in this area, the states that do not count out-of-precinct provisional ballots need to undertake extra efforts to make sure that voters know where to go, especially when these states change precinct assignments and polling locations.
  9. Abolition of the disenfranchisement of former felons. This reform, unlike the previous ones, concerns not the mechanics of voting but the qualifications. It seems time for all states to recognize that, once the felon’s sentence is complete and thus punishment has been fulfilled, the felon’s voting rights should be restored, so that this citizen can resume participation in democracy.
  10. Elimination of partisan gerrymanders through increased use of nonpartisan districting commissions. Although I hope that voters in California and Ohio confound expectations and approve the redistricting measures on their ballots today, this reform is last on my list. This placement underscores the point that, even if these initiatives are defeated, there is still much more reform work – specifically, items 1 through 9 – to accomplish before next year’s election.

Issue 3 is a Big Mistake

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Issue 3 is the Ohio ballot measure that concerns campaign finance. It has two major defects. First, it would put specific rules concerning campaign contributions into the state’s constitution, including specific dollar amounts on contribution limits (for example, $1,000 per person to General Assembly candidates). Second, it would upset the traditional parity between corporations and labor unions in campaign finance regulation, by creating a new pro-labor device called a “small donor action committee.”

The details of campaign finance regulation, like the details of tax law, do not belong in a state’s constitution. The main reason is that these kinds of rules need to be updated periodically, and it is too cumbersome to update them by means of constitutional amendments. The voters of the state should not have to review each change in these very technical rules – that’s a job for government officials – but Issue 3 would impose that inappropriate obligation on the voters.

Reform Ohio Now, the group that put Issue 3 on the ballot, is understandably upset that the General Assembly last December raised the limit on contributions from individuals to candidates from $2,500 to $10,000. That fourfold increase was excessive and unsubstantiated by any evidence of a need to do so. Nonetheless, in any democracy, sometimes the legislature rejects your position. That doesn’t mean you try to overrule the legislature by putting your position into the state’s constitution. Instead, you wait and fight it out again in the legislature a few years down the road. This point is just as true of laws that govern the operation of the electoral process as laws on substantive matters like health care, employment practices, or criminal justice.

Moreover, if Reform Ohio Now could not wait for the General Assembly to fix the mistake it made last December, it could have put on the ballot a different kind of initiative, which would have overturned the legislature’s statutory law without amending the Constitution. To be sure, this other kind of initiative could be repealed by a new vote of the General Assembly. But it seems unlikely the people’s elected representatives would be so directly hostile to the will of the people, especially after the additional corruption scandals that have surfaced in this state since last December. And if unforeseen problems surface after the implementation of Reform Ohio Now’s proposed rules, then it is important that the General Assembly have the authority to undertake a course correction.

Issue 3, however, is flawed not merely for trying to clutter Ohio’s constitution with campaign finance rules. One of the rules it would impose is objectionable whether included in the constitution or, instead, adopted as statutory law subject to revision by the General Assembly.

This problematic provision sounds innocuous enough at first glance. It would establish a new kind of campaign finance entity called a “small donor action committee.” These small donor funds would be entitled to receive up to $50 per person. In turn, these funds would be permitted to give up to $10,000 per candidate.

In theory, these small donor funds might not be a bad idea. There is nothing inherently wrong with a group of likeminded citizens pooling their limited resources in order to express their collective voice on which candidate should prevail in an election. Citizens of all different stripes – pro-choice, pro-life, for gun control, against gun control, and so forth – could take advantage of this new institutional form.

The problem, however, with the particular way that Issue 3 would implement this new institutional form is that it would permit existing membership organizations, including labor unions, to divert up to $50 of annual dues per member into one of these small donor funds. The members themselves would not be required to approve each diversion. Members would be required to give a one-time assent to the ongoing use of their dues in this way, an assent which they would be permitted to revoke, but this kind of “blank check” authority is hardly the same as a requirement that members specifically authorize each use of their dues for campaign contributions.

This diversion potential would be questionable enough in the case of most membership organizations. When citizens pay dues to the World Wildlife Federation, because they share that group’s environmental goals, they don’t necessarily want their dues to be contributed to a particular politician, just because the group believes that this candidate is more environment-friendly than the opponent. The individual member might believe that, notwithstanding the candidate’s better record on the environment, other factors (like views on health care reform and foreign policy) make the opponent preferable overall.

But the diversion potential is especially troublesome in the case of labor unions. Ever since at least 1947, when Congress adopted the Taft-Hartley Act, the prevailing view in the field of campaign finance law has been that both labor unions and business corporations should be treated equally: their treasuries should be off-limits for the purpose of campaign contributions. The reason for this parity stems from the economic nature of these entities. Both business corporations and labor unions exist to promote the economic agendas of the individuals they represent: shareholders in the case of corporations, and members in the case of unions. The money belonging to these entities, whether shareholder investments or union dues, which have been given to advance economic interests, should not be used to support or oppose particular political candidates. The danger of their economic agendas corrupting the political process is too great to permit this diversion of funds. If corporate shareholders or union members wish to contribute money to political candidates, they need to do so with money raised and kept separately from their corporate investments and union dues.

Moreover, business corporations and labor unions are in a kind of economic warfare and have been for over a century. For most of this time, right up to the recent enactment of the federal McCain-Feingold campaign reform law, it has been perceived an unfair advantage if either business corporations or labor unions (but not both) are entitled to use their general-treasury funds to contribute to political campaigns. Such a disequilibrium would allow one side, but not the other, to divert some of its economic resources into political campaigns, in the expectation of securing friends in the legislature who would enact laws that give that side an upper hand in their economic warfare.

Yet this disequilibrium is precisely what would occur if Issue 3 were adopted. It would permit labor unions to divert $50 for each dues-paying member into a fund that it could use to contribute to political candidates (up to $10,000 per candidate), yet it would not permit a business corporation to divert $50 for each shareholder to a similar fund. This disequilibrium is inconsistent with the equal treatment of corporations and unions that has prevailed from Taft-Hartley through McCain-Feingold and was affirmed by the U.S. Supreme Court only two years ago in McConnell v. Federal Election Commission .

This unequal treatment of unions and corporations is reason enough to oppose Issue 3. But the fact that Issue 3, if adopted, would imbed this unequal treatment into Ohio’s constitution makes it especially objectionable. Even if this disequilibrium is soon recognized to be a mistake, it cannot be easily fixed. Instead, another ballot measure – with all its attendant costs – will be necessary.

To avoid this mistake in the first place, and to avoid the general problem of putting specific campaign finance rules in the constitution, Ohio voters should reject Issue 3, thereby returning the topic of campaign finance to the General Assembly, where it belongs.

Redistricting, Electoral Competition, and Citizen Control

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By Steven F. Huefner

Two weeks from today, Ohio voters will have the opportunity to vote on five ballot initiatives, four of them directed at changing the state’s election system. As my colleague Dale Oesterle noted in his Oct. 11 Comment, by far the most transformative of these reform proposals is Issue 4, which would deprive elected politicians of the power to draw their own districts and instead create an appointed redistricting commission to draw districts according to a formula. As the hyperbole about Issue 4 heats up, it is worth taking a closer look at some of the key features of how this proposal would actually restructure Ohio politics.

The existing redistricting process is like letting corporate managers pick their friends to audit the company books. Under current law, the Ohio General Assembly controls the boundaries of all 18 Ohio congressional districts, and an apportionment board of five politicians controls the boundaries of all 33 districts in the Ohio Senate and all 99 districts in the Ohio House of Representatives. The legislature and the apportionment board are free to pack as many Republicans or Democrats as they want into any district, as long as the districts for each type of office contain equal populations, as determined from U.S. census data. As I have previously written in this column, the result has become a set of “safe” districts that protect incumbents of both parties, exacerbate political extremism, and dramatically reduce the competitiveness of the general elections. Or, as Dean Murphy, the New York Times‘ San Francisco bureau chief, wrote this past Sunday, “The drawing of legislative boundaries is one of the most politicized and corruptible practices in American-style government, and few people will say they approve of the gerrymandering it has unleashed.”

A primary purpose of Issue 4 is to do away with these partisan and incumbent-protecting gerrymanders. Political districts ought first to reflect naturally occurring communities and geographic boundaries, and then, to the extent that additional considerations must also be taken into account in equalizing district populations, the district lines should be based on factors reasonably calculated to enhance (or at least to preserve) the strengths of representative democracy. In contrast, our current system of partisan gerrymanders – which some opponents of Issue 4 are defending as just an inevitable part of “politics” – operates to insulate incumbents from voters and to safeguard those in power from the democratic accountability that is at the heart of a healthy system of representative democracy. We should not continue to tolerate this “politics as usual” when it allows elected representatives to escape meaningful public scrutiny, any more than we would tolerate “business as usual” if it meant that corporations were not subject to independent auditing. Accordingly, doing away with partisan gerrymanders is in itself a sensible and worthy purpose.

Of course, in order to do away with the current redistricting system we must find something to replace it. Several states already are succeeding with various preferable alternatives, in which nonpartisan commissions draw political boundaries based on factors such as geographic compactness and existing communities of interest. California voters also will have the opportunity this fall to remove control over the redistricting process from the representatives themselves. But Issue 4 gives Ohio voters the opportunity to adopt a fresh approach, in which the primary criterion of the redistricting process would become the competitiveness of the districts. Above and beyond the justifications for scrapping the current system, this approach would further increase democratic accountability and revitalize our political discourse, as many presently “safe” districts would once again become “competitive” districts.

As Travis McDade has explained in a recent Election Law @ Moritz posting, under the Issue 4 redistricting system competitiveness would be measured according to a formula based on the percentage point spread between the two major parties in several recent elections. Any group of concerned citizens could submit a redistricting plan, and the redistricting commission would then apply the formula to determine the total competitiveness number of each submitted plan. The commission would then evaluate all the proposals in order to adopt the plan with the highest competitiveness number, provided that it also satisfies several other criteria, as discussed below.

Unfortunately, the impact of the competitiveness factor has been distorted by some opponents of Issue 4, who argue that it will only lead to a different type of gerrymandering, in which ridiculous boundaries continue to be drawn, this time to achieve competitive balance in as many districts as possible. For instance, under the caption “What Can Happen,” one opposition group has publicized a congressional district map that it argues would be possible under Issue 4, and which includes several long, narrow districts running through dozens of Ohio counties and communities across large portions of the state. Other opponents argue that a focus on creating competitive districts will divide naturally occurring clusters of like-minded voters.

In fact, these alarmist accounts tend to overlook or distort how several additional requirements under Issue 4 constrain the competitiveness factor. Without these additional requirements, the number of potential ways that Ohio’s 11,000 precincts could be arranged into 18 congressional districts, or 99 Ohio House districts, would be staggering. But the additional requirements significantly limit these possibilities. For starters, a qualifying proposal cannot divide any of Ohio’s 88 counties between more than two districts. In addition, those Ohio counties large enough to contain within them an entire congressional district (or an entire Ohio House district) MUST contain an entire district. And all existing federal constitutional and statutory requirements remain applicable, including those that protect the equal opportunity of racial minority voters to elect representatives of their choice.

Even with these constraints, a number of qualifying configurations could still produce the same competitiveness number. But this fact only further enhances the strength of the Issue 4 process: If the redistricting commission has before it several qualifying plans each having the same high score, the commission must adopt the plan with the fewest county, municipal, and township fragments. As a result, the incentive will be to create competitive plans while minimizing the bizarre fragmentation that under the present system occurs purely for partisan reasons. Furthermore, after determining the prevailing plan, the commission then is empowered to make modest adjustments to it to further protect existing communities of interest, provided that the changes do not reduce the plan’s overall competitiveness score by more than two points for the congressional map, and by more than four points for the Ohio House map.

Accordingly, district boundaries produced under Issue 4 are more likely to resemble a sample map just released by Issue 4 proponents, rather than to look like the hypothetical “What Can Happen” map described above. Notably, the proponents’ sample lacks the distended districts sprawling most of the way across the state, and also splits in two far fewer counties than does the “What Can Happen” map. But it is also worth noting that no redistricting map can avoid a certain amount of what some might view as a gerrymandered appearance, if it must both establish districts of equal population and avoid splitting any one county into more than two districts. The important question, given these conditions, is to what end are various geographic areas being grouped together into districts.

Furthermore, it also is worth noting that the alarmist depiction of the impact of Issue 4 in fact is not much different from current reality. Indeed, the “What Can Happen” map seems similar to many of the misshapen legislative districts that now exist in Ohio and elsewhere. For instance, the current map of Ohio’s 18 congressional districts, adopted by the General Assembly in 2002, itself has one long narrow district stretching from Youngstown to Wheelersburg. More fundamentally, the present redistricting process already permits the General Assembly to adopt precisely the hypothetical “What Can Happen” map – or maps even more extreme! – and to do so for far less admirable purposes than Issue 4’s goal of making politicians more accountable.

Issue 4 provides a genuine method for achieving its worthy goal. Contrary to the opponents’ hyperbole, it is the present system that deprives voters of any meaningful control over district boundaries, and in turn lets the politicians insulate themselves from electoral risks. In contrast, under Issue 4 ordinary citizens will themselves have the ability directly to shape the boundaries, and then will once again be able to select their representatives in more meaningful political contests. Furthermore, this restoration of electoral competitiveness need not result in a highly fragmented amalgamation of counties, municipalities, and other communities of interest. Rather, Issue 4 creates a mechanism for balancing the preservation of pre-existing boundaries with the creation of greater political competition.

At the very least, the Issue 4 proposal deserves a chance to show Ohio and the nation how redistricting can be improved to revitalize representative democracy, and in the process to show that “politics as usual” is not inevitable.

 

The Moneyball Approach to Election Reform

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By Daniel P. Tokaji

Michael Lewis’ 2003 book Moneyball: The Art of Winning an Unfair Game tells the story of how the Oakland A’s general manager Billy Beane built successful baseball teams year after year, while spending far less money than his competitors. The secret to the team’s success? Rather than relying on the gut instincts of old-time scouts, as was standard practice for decades, the A’s adopted a research-driven approach that relied heavily on empirical analysis of player performance. This allowed them to look behind the conventional wisdom and assess what practices were most likely to lead to success on the field. When Beane and the A’s carefully scrutinized the numbers, it turned out that many of the intuitions upon which their hard-bitten, tobacco-spitting scouts had relied for years were just plain wrong. By adopting a research-driven approach to baseball, Beane was able to build a franchise that has competed for pennants year after year, while spending a fraction of what other teams spend.

With the baseball playoffs in full swing, it seems like an especially appropriate time to compare recent developments in the world of elections to the phenomenon that Moneyball describes. To an unfortunate extent, efforts at election reform have been based an intuition-based approach resembling that of the old-time scouts in Lewis’ book. That approach places too much weight on seat-of-the-pants assessments of what makes for good elections, neglecting serious empirical research into what works and what doesn’t in the real world. In calling for a “Moneyball Approach to Election Reform,” I mean to suggest a research-driven inquiry, in place of the anecdotal approach that has too often dominated election reform conversations. While anecdotes and intuition have their place, they’re no substitute for hard data and rigorous analysis.

Some examples may help in illustrating these contrasting approaches. For a long time, many election observers have suspected that our election system does not treat all voters equally – more specifically, that racial minorities, non-English speaking citizens, people with disabilities, and low-income voters are denied equal access to the ballot. But for the most part, the evidence has been anecdotal, relying on stories such as that of those of four to five hour lines that some voters faced in Columbus, Ohio in the November 2004 election. Such anecdotes may be helpful in illuminating problems that demand further inquiry, but it is perilous to make policy based upon anecdotes alone.

Fortunately, there is a recently released report that extensively documents the functioning of our election system, and supports the conclusion that there really are grave inequalities in the administration of elections. Last month, the United States Election Assistance Commission released its 2004 Election Survey, prepared by Election Data Services. It reports the results of the most comprehensive survey of U.S. election officials ever conducted, covering such areas as voter registration, turnout, ballots counted, voting machine malfunctions, and polling place operations. Among the most striking results found is the existence of substantial disparities across demographic groups. For example, the report finds that:

Jurisdictions with low education and income, compared with other jurisdictions, tend to report more inactive voter registration, lower voter turnout, higher number of provisional ballots cast, higher drop-off and associated components of overvotes and undervotes, lower average number of poll workers per polling place, and greater percentage of inadequately staffed polling places.

The report also finds that jurisdictions with large black populations report a greater percentage of polling places with inadequate numbers of poll workers. Jurisdictions with large numbers of non-English proficient voters also show disparities in the registration rolls, turnout absentee ballots, and provisional ballots.

As for people with disabilities, the survey’s findings are even more depressing. Only about half of the jurisdictions surveyed even bothered to answer the question whether their polling places were wheelchair accessible, and less than a quarter of polling places were reported to provide the means for blind citizens to vote unassisted. This provides strong evidence that, in most places, disability access ranks very low on the list of election priorities.

To be sure, the data reported in the 2004 Election Day Survey is only a starting point. Social scientists and other policy analysts will spend considerable time in the coming months parsing this data. There is reason to hope that a set of thoughtful policy recommendations will emerge from that analysis. This could ultimately lead to legal reforms that may move us closer to the promise of equal access for all voters, while promoting the integrity of the voting process. The Election Updates Blog recently started by political scientists Michael Alvarez and Thad Hall is an important contribution to this approach, providing up-to-date information on the latest developments on the election research front.

Unfortunately, the moneyball approach remains the exception rather than the rule. A regrettable example of the opposite approach is a recent report on voting fraud recently issued by a group calling itself the “American Center on Voting Rights.” The report, entitled “Vote Fraud, Intimidation & Suppression in the 2004 Presidential Election” is based mainly on unverified newspaper articles. The report attempts to create the impression that fraud is rampant, especially in predominantly black communities like East St. Louis, Detroit, Milwaukee, Philadelphia, Cleveland, and Alabama’s Black Belt. It places special emphasis on reports that registrations with phony names such as “Jive F. Turkey, Sr.” were submitted, though there’s scant evidence that any of those people actually attempted to vote. Based on these anecdotes, ACVR argues that a strict photo ID requirement should be implemented.

In short, the ACVR relies on anecdotal evidence in an attempt to create the impression that fraud is rampant, and on this basis seeks to justify photo ID laws. When one looks carefully, however, it turns out that there’s much less there than meets the eye. For example, even according to ACVR’s own estimates, there were only 100 alleged instances of double-voting in Milwaukee, which has a voting age population of some 425,000 people. Further reason for skepticism of ACVR’s anecdotal report arises when one looks deeper. As it turns out, one of the leaders of the group is Mark P. “Thor” Hearne who served as National Election Counsel to Bush-Cheney 2004. This makes one wonder whether ACVR’s report is driven more by partisan motivations than by objective factfinding. Completely lacking is even a cursory cost-benefit analysis, estimating how many fraudulent votes are prevented for every person who is discouraged from voting.

While there’s been relatively little effort an empirical analysis on the issue of voter ID, there is one recent study that provides a helpful counterpoint to the ACVR report. John Pawansarat of the University of Wisconsin Milwaukee recently issued a report on The Driver License Status of the Voting Age Population in Wisconsin. The study looks at which demographic groups do and don’t have drivers license. This information is clearly essential, in evaluating the likely impact of proposals for state-issued photo ID. The disparities found were striking. Overall, more than 80% of adults had a driver’s license; but only 45% of black men and 51% of black women had one. Disparities in the possession of photo ID also exist with respect to Latinos, elderly, and people of low income. The bottom line is that we can expect requirements for state-issued photo ID to have a much greater impact on these demographic groups. This is particularly troublesome given the EAC study’s findings, which suggest that racial minorities, language minorities, poor people and people with disabilities already face greater obstacles.

It’s not only those on the right who have succumbed to the old-time scouts’ approach when it comes to election reform. Some electronic voting critics have engaged in an approach similar to ACVR’s faulty fraud report, in urging that a “voter verifiable paper audit trail” (VVPAT) be required for all electronic voting machines. There’s no question that there have been problems with some electronic voting systems, just as there have occasionally problems with fraud by individual voters. Lost amid the criticism of electronic voting is the fact that they help reduce the rate of uncounted votes, and do better than other technologies in providing disability access. Social science research shows that the implementation of electronic voting can significantly reduce the racial gap in uncounted votes that exists with other systems – see for example this study by Michael Tomz and Robert P. Van Houweling. On the other hand, there’s little evidence to support the conclusion that the most frequently proposed remedy (the VVPAT) would be an effective remedy. Nevertheless, several states have decided to move forward with this so-called “common sense” solution – one that, once the evidence is examined, may turn out to make not much sense at all.

A more constructive approach to the voting technology issue may be found in a recent report from the National Academies, entitled Asking the Right Questions of Electronic Voting. This approach urges that research on voting technology be made an ongoing national priority, wisely recognizing that the evaluation of systems requires the balancing of many considerations including security, speed, usability, and access to all voters. A similarly constructive approach is exemplified by the National Institute of Standards and Technologies attempt to identify and analyze the various threats to voting systems. This approach will likely generate a more realistic approach to voting technology, one that focuses on things might realistically go wrong and what preventative measures are most likely to be effective.

The “moneyball” approach to election reform demands that we engage in empirical research and rigorous analysis, before passing laws. The alternative is to make policy based on seat-of-the-pants judgments and so-called “common sense.” While intuitively appealing, this approach may result in policy recommendations that, in the end, don’t make much sense at all.

Ohio’s Dramatic Citizen Initiative: “Reform Ohio Now”

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By Dale A. Oesterle

A former Ohio State Supreme Court Justice, Andrew Douglas, and a Professor Emeritus of Political Science at the Ohio State University, Dr. Herb Asher, lead a coalition of progressives, Reform Ohio Now, that have put on the Ohio Nov. 4, 2005 ballot a series of state constitutional amendments that could revolutionize Ohio politics. It is a stunning opportunity for Ohio voters to reshape the Ohio political system.

Ohio is a state with both major parties in tatters. Democrats have self-destructed and do not hold a single state-wide public office (unless one counts a lone Supreme Court Justice). Republicans, with control of all state-wide offices as well as control of both houses of the state legislature, have used their power to take illegal gifts, mismanage state trust funds, and generally run a “pay-to-play” system of politics in which trading favors is the name of the game. This kind of logrolling politics has its origins in the Mark Hanna state political machine from the turn of the century.

Rather than a traditional partisan approach to the state’s political problems (that would view the Republican problems as a boon for Democrats), the Reform Ohio Now folks have decided to scrap the system that produced the mess and hope that a new system will produce better, more accountable elected officials.

The changes make up four separate citizen initiatives on the ballot. Issue 2 makes it much easier for Ohioans to vote by mail. Issue 3 significantly reduces the monetary caps on individual campaign contributions. Issue 4 creates a new legislative districting authority, and Issue 5 creates a new independent State Board of Elections.

Of the four initiatives, the most path-breaking change comes in Issue 4. The amendment creates a new independent board and empowers the board to redefine the state’s legislative districts. At present elected politicians draw the legislative districts and they “logroll” (trade favors) to maximize the number of safe districts in the state. It is also known as gerrymandering, usually when the deal making produces districts that are oddly shaped.

Year after year incumbents win re-election with little or no substantial opposition. The percentage of races won by incumbents is usually in the eighties and the percentage of races won by the incumbent party is usually in the nineties. There are very few truly contested elections for legislative seats in Ohio .

If Issue 4 passes, anyone can propose state-wide district maps to the new Redistricting Commission and the board must choose the map that scores the highest on a pre-determined scale of values. The scale is designed to encourage contested elections and discourage the creation of “safe districts” for either party. Issue 4, if passed, will no doubt radically alter the political map of the state. The current geographic political structure of both parties will evaporate.

This is powerful stuff and those now in power know it-and don’t like it. Leaders of the Republican Party, for example, have already come out against Issue 4 and are forming political action committees to oppose it. Their most successful tactic is to draw outrageous district maps (layered, thin, border to border districts) and claim that the new system would allow them. Additional charges will follow. The opponents have had some success as Issue 4 is the only one of the ballot issues shown to be losing in the early polls, 38 percent opposed, 26 percent in favor, and 36 percent undecided.

If Reform Ohio loses Issue 4, they lose their fight to transform Ohio politics. Issues 2, 3, and 5 make incremental changes; Issue 4 restructures the landscape of state politics. The Issue offers Ohio citizens disgruntled with the shenanigans of those in power a second alternative to the traditional “voting the rascals out” (voting against incumbents), the new option of voting out “politics as usual.”

For additional commentary by Professor Oesterle on the separate Issue 1, also on the ballot in Ohio on November 8, see Referendum in Ohio Survives Single Separate Vote Rule Challenge.