2007

More Planning Needed to Prepare for ’08 Election

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By Steven F. Huefner, Daniel P. Tokaji, and Edward B. Foley

Professors Steven F. Huefner, Daniel P. Tokaji, and Edward B. Foley published an Opinion Editorial in Roll Call regarding vulnerabilities in the election systems of five Midwestern states. The three professors recently published a report, From Registration to Recounts: The Election Ecosystems of Five Midwestern States. “If our political representatives are to serve with their electorate’s full confidence, the processes used to select those representatives must be sound. As a nation, we must continue improving our election systems to promote greater access, integrity and finality. Our democracy depends on it,” the editorial says.

Reprinted from Roll Call
December 13, 2007
Copyright 2007 – Roll Call, Inc.
All rights reserved.
Reprinted by permission

Although all the interest surrounding the Nov. 4, 2008, elections currently is directed at the presidential candidates, the state election systems on which we’ll rely that day also require greater attention.

The act of voting is vital to preserving America’s democracy. Yet the election systems that the United States will use to cast and count votes, resolve disputes, and select our next president remain flawed.

From voting machines to provisional ballots to voter identification requirements, the “nuts and bolts” of the country’s election systems have generated bipartisan concern and a variety of reform efforts over the past seven years. We eliminated punch cards and implemented provisional balloting to protect against disenfranchisement from errors in the voter rolls. But vulnerabilities remain that could cause serious problems in future elections.

We have just completed a yearlong study of the election systems of five Midwestern states: Illinois, Michigan, Minnesota, Ohio and Wisconsin. These states embody a variety of approaches to election administration, emblematic of the administrative structures and election procedures found in similar systems across the country. Most of these states have the potential to be “battleground” states in 2008, and each had a 2006 gubernatorial election that we examined. Their quality of election policies and procedures spanned a wide spectrum — some were relatively sound (Minnesota and Wisconsin), while others were not (Ohio and Illinois).

Among the problems we found: poll workers who were unaware of or unable to enforce regulations; partisan election administrators issuing inconsistent or illogical rulings; arcane policies that prevented some voters from registering; and inconsistencies in administering rules, resulting in voters receiving unequal treatment.

Our study leads us to make several suggestions for legislative leaders, as well as state and local election officials. Mindful that too much reform too quickly presents its own dangers, we tailor our recommendations to those that would be less likely to cause inadvertent disenfranchisement resulting from polling place confusion. Here are our main proposals:

States should improve access by reducing barriers to registration. Making it easier to register to vote is one of few reforms that have proved to increase voter turnout. One way of increasing voter turnout is Election Day registration, when eligible citizens whose names do not appear on the list can register on the spot and vote. Minnesota and Wisconsin are among several states that have achieved great success with EDR. Although these states do not suffer from fraud that would undercut the use of EDR or discourage its use elsewhere, other states reluctant to embrace this reform might consider Michigan’s system of affidavit voting, which protects voters whose names are not on the voter rolls even though they have attempted to register.

States need to ensure polling places have enough well-trained poll workers. This was a problem in each state we studied. Such issues inevitably lead to voting delays, increase the number of provisional ballots issued and possibly create security questions.

States should expand in-person early voting instead of no-excuse absentee voting. No area presents a greater risk of voter fraud than the absentee ballot process. If states wish to make voting more convenient, we suggest they implement the more secure, in-person early voting.

State legislatures must provide the tools necessary to enforce consistency across counties and municipalities. Our study confirmed that state election laws were not always being followed on the local level. Consistent treatment of voters and votes is essential to sound election administration. To better enforce compliance with uniform state policies, state election officials should condition state funding on local compliance and conduct audits of local practices.

States need to re-examine their post-election dispute procedures. States need to make sure they have clear, bipartisan and transparent processes for canvasses, recounts and contests. They also should consider creating specialized election courts — structured to be bipartisan — to deal with post-election disputes. Ideally, judges resolving election disputes should be above the partisan fray, as well as able to act with unusual speed. In our five-state study we are concerned that each state’s judiciary would be perceived by its citizens not as neutral, but rather as political allies of one side or the other.

Congress should allow states more time to complete recounts and resolve election contests in presidential elections. The current presidential election calendar does not give states enough time to resolve disputes and could potentially leave the selection of a state’s presidential electors to the House of Representatives. By simply delaying the Electoral College meeting to Jan. 3, states would have an additional three weeks to resolve issues like those that arose in 2000.

These are just a few of the reforms that we suggest. If our political representatives are to serve with their electorate’s full confidence, the processes used to select those representatives must be sound. As a nation, we must continue improving our election systems to promote greater access, integrity and finality. Our democracy depends on it.

Steven F. Huefner, Daniel P. Tokaji and Edward B. Foley are professors at The Ohio State University Moritz College of Law and faculty of Election Law @ Moritz, a nonpartisan organization that analyzes election law issues. The three are co-authors of “From Registration to Recounts: The Election Ecosystems of Five Midwestern States.”

Copyright 2007 (c) Roll Call Inc. All rights reserved.

Look to Minnesota for vote-counting solution

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This commentary originally appeared as an op-ed in the Columbus Dispatch on December 19, 2007.

Ohio Secretary of State Jennifer Brunner is concerned that computers used to count ballots at precincts are vulnerable to hacking. In a major report released last Friday, she recommends instead counting ballots centrally at Ohio’s 88 county boards of election.

Whatever the risk of hacking, however, it is a mistake to eliminate the counting of ballots at local precincts.

Ballots have been known to go missing during transport from precinct to main office. In the old days, ballot boxes sometimes would end up in the river. In 2006, during the much-troubled May primary in Cuyahoga County, election officials misplaced 70 cartridges containing the votes from 200 precincts.

A better way to address Brunner’s concern would be to count ballots twice, first at the precincts and then again after they’ve arrived at headquarters. That way, if ballots were lost en route, voters would not be disenfranchised.

The general point is that we should rely on recounts, or audits, to address our concerns about potential counting errors, including those caused by software sabotage. There are different types of recounts, machine and manual, as well as different types of audits. A mandatory audit of 10 percent of precincts, no matter how close the margin of victory, is obviously stricter than an initial audit of only 3 percent of precincts unless the result is close enough to require a more rigorous review.

Given the concerns raised by Brunner’s report, as well as the potential significance of Ohio to the 2008 presidential election, it would be appropriate to plan an especially rigorous audit of next November’s election.

Depending on cost, for example, it might be worth conducting a 100 percent machine recount of every optical-scan ballot cast in Ohio on Nov. 4. This recount could occur at each county’s central office over the ensuing 10 days, while waiting for overseas absentee ballots.

This recount would use computers and software that have been retested to make sure that no precinct-based hacking had occurred. An additional safeguard would be to rotate machines, so that each precinct’s ballots are recounted on different ones than were used at that precinct on Nov. 4. If a discrepancy occurred, a manual recount would follow. But if not, it would show that nothing nefarious had happened at the precinct.

This centralized different-machine recount, unfortunately, would not work with ballots cast on touch-screen machines. Consequently, the most serious issue confronting Ohio in light of Brunner’s report is what to do about those counties that use touch-screen technology. While in the long run it might be preferable for the General Assembly to mandate optical-scan ballots statewide — although without eliminating precinct-based counting of those ballots — it seems imprudent to hurry this conversion in all applicable counties before the 2008 election.

Franklin County, for example, differs from Cuyahoga in its ability to conduct acceptable recounts using the so-called paper trails that accompany touch-screen machines. In Nov. 2006, Franklin County successfully recounted 10 percent of ballots cast in the Deborah Pryce-Mary Jo Kilroy congressional contest. Cuyahoga County, by contrast, has had serious problems in both 2006 and 2007 with its paper trails, with up to 20 percent mutilated and thus useless in a recount. The explanation might be that Cuyahoga County bought a different type of touch-screen machine than is used in Franklin County. Whatever the reason, a sensible position for November would be to require Cuyahoga County to switch to optical scan while permitting Franklin County to retain its touch-screen technology, as long as it agrees to conduct another 10 percent recount of its paper trails.

The ability of recounts or audits to confirm the integrity of an election’s results has been proved in other states. Minnesota, for example, successfully conducted is first mandatory election audit in Nov. 2006, to widespread accolades.

In a recent study of election administration in five Midwestern states, including Minnesota and Ohio, my colleagues at the Moritz College of Law and I concluded that Minnesota historically has had the best practices, serving as a model for other states.

In preparing for next November, Ohio would do well to emulate Minnesota’s audit approach, rather than to stop counting ballots at the precinct before they may be recounted centrally.

Ohio provisional ballots: Could they determine our next President?

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By Nathan Cemenska

Web Editor, Election Law @ Moritz
Moritz College of Law

As history has shown, almost anything can go wrong in an election. DRE machines can be misprogrammed, memory cards can be lost, ballots can be designed in a confusing manner that leads to over- and undervotes, VVPAT printers can run out of ink, election officials can fail to cooperate with one another, polls can open late or not at all and, if we somehow miraculously avoid all these pitfalls, perhaps a flood will sweep in to disturb what would otherwise have been a smooth election. Any one of these problems could manifest in ’08 and cause a repeat of the 2000 Presidential debacle but, after reading a draft of a paper produced by a colleague, I have come to believe that the most likely basis for a Presidential legal fight in 2008 is the counting of provisional ballots right here in my home state of Ohio.

In order to avoid causing undue alarm, it is important to emphasize that I do not actually think that the election disaster I am about to describe is going to occur. Rather, there is only a small chance (say, about 1%) that the Presidential result will both depend on Ohio and also be close enough to justify litigation over provisional ballots. Nevertheless, I think that this scenario is more likely to occur than any other potential election disaster. Furthermore, the harm that might come to us if this scenario does occur is serious enough to justify giving the matter some attention.

Here is why a 2008 Presidential candidate might dispute the counting of Ohio’s provisional ballots. First, because Ohio is such a swing state, the margin of victory is likely to be small. This in itself increases the likelihood of a dispute, because candidates know that they would only have to gain a tiny percentage of the overall vote to change the result of the election. Second, compared to other states, voters in Ohio cast a huge number of provisional ballots. Provisional ballots, unlike ordinary ballots, come with supporting documentation that in a recount or election contest can be used to prove whether they were eligible to be counted. Thus, provisional ballots are an easy target for litigation attempting to overturn the result of an election.

This combination of a low expected margin of victory and a high number of cast provisional ballots is not present (or at least not as present) in any other state, especially not any state as influential as Ohio (see page 9 of 2004 Election Day Survey—Florida has only a measly .27% of the overall registered population casting provisional ballots, while Ohio has 1.98%). About 2.8 ballots out of every 100 in the 2004 Ohio Presidential race were cast provisionally, and in November of 2006 about 3.1 ballots out of every 100 (see page 22 of Moritz Joyce report). If we assume the same provisional voting rate of 3.1% will remain constant, and assume that turnout figures are exactly the same as they were in 2004, then that means 177,396 provisional ballots will be cast in the 2008 Ohio Presidential election (as opposed to 158,642 that were cast in 2004). This well exceeds the margin of victory of 118,601 that we saw in Ohio in 2004 and, if the stars fall into tragic alignment, in 2008 the number of provisional ballots cast could exceed the margin of victory many times over. You see where I am going.

If it comes to this point, there will be a number of complicating factors that inject further chaos: Ohio’s confusing, labyrinthine provisional ballot statute (see my attempt at explaining it in question #31), alleged failure of elections officials to operate fairly and uniformly (see LOWV v. Blackwell), a series of procedural failures occurring in the state’s most populous county (Cuyahoga), an untested chief elections officer managing her first big election and, for extras, the fact that Ohio courts by statute no longer have jurisdiction over Presidential election contests. O.R.C. § 3515.08(A). Furthermore, because election contests are the exclusive remedy for election wrongs, Ohio courts also would not have jurisdiction over any other type of action to try to change the result of the election. State ex rel. Mackey v. Blackwell, 106 Ohio St.3d 261, 264 (Ohio, 2005). And even if Ohio courts did have jurisdiction, one wonders whether Ohio’s all-Republican Supreme Court would not be attacked, however fairly or unfairly, for any judgment it issued on the matter.

The one thing that may save us, assuming a squeaker where provisional are in controversy, is Ohio’s recount statute. Any candidate can obtain a recount in Ohio, and a recount would give the apparent loser the opportunity to go over the provisional ballots (although this has been an issue in the past) and make an informed decision about whether a lawsuit is really justified. R.C. 3515.01. Where candidates satisfy themselves that there is little chance of victory in an election contest, they may make a strategic decision to forego such a contest in order to avoid being labeled a sore loser. Still, the recount will probably do nothing to stop litigation where the margin of victory is exceedingly close or where the very procedures used to count provisional ballots are themselves in dispute.

I cannot see into the future and, like I said, actually do not think an election disaster is going to occur in the 2008 Presidential year. However, if I was told that a disaster was going to occur and asked to predict its nature, I would describe the scenario alluded to above. And if that happens, let us just say that, for those of us in the election administration community, our lives are going to become very interesting.

Quality of Election Administration Varies Among Great Lake States (Forthcoming Report: From Registration to Recounts)

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By Steven F. Huefner, Daniel P. Tokaji, and Edward B. Foley

New Hampshire’s decision last week finally setting January 8, 2008, as the date for its presidential primary means that the country is barely a month away from the opening of the 2008 election season. With absentee voting to begin in just a few weeks, this is the perfect time to ask how well our election systems will withstand the pressures they will face in 2008.

For the past year and a half, Election Law @ Moritz has conducted a comprehensive study of the election systems of five key Midwestern states: Ohio, Michigan, Wisconsin, Minnesota, and Illinois. The results of this study, From Registration to Recounts, will be released in both hard copy and electronic formats on December 4, one week from today. The results provide both some encouraging signs and some persistent reasons for concern.

Among the positive features we discovered, perhaps most significant is the dedication to public service of the thousands of state and local election officials in these states. We had the opportunity to meet with a number of these officials in each of the states in our study, and were impressed with their professionalism and commitment. But they need our help.

All five states, like the rest of the nation, struggle with how best to register voters as a voting prerequisite. Minnesota and Wisconsin both have Election Day Registration, which works very well for them. Election Day Registration has repeatedly been found to increase voter turnout. Another important (though less commonly recognized) advantage is that it reduces reliance on provisional ballots, which have proven problematic in states like Ohio. Our study found no evidence that Election Day Registration increases fraud, the most common argument made against it.

For states that may be reluctant to emulate Minnesota and Wisconsin in their adoption of EDR, we identified some other innovative practices, with some of the same benefits. One of them is Michigan’s option of letting voters who claim to have registered to vote, but whose names nonetheless are not on the voter list, cast a type of provisional ballot. This ballot is commonly known as an “affidavit ballot” because the voters first sign an affidavit affirming that they attempted to register. These voters then complete a new registration application and cast a ballot that is marked with an identifying number, then counted with the regular ballots. This ballot is presumptively valid unless a post-election challenge is successfully brought in court to contest its validity.

A variation on this theme would be a system of “provisional Election Day Registration,” in which any voter who is not registered on Election Day would be allowed to cast a provisional ballot after completing a registration application. The provisional ballot would be counted once the voter’s registration application is reviewed and approved post-election. “Provisional EDR” would entail the disadvantages of HAVA-mandated provisional voting, which include inconsistent administration among localities and inevitable delays in certifying election results, but would embrace one important benefit of EDR as currently practiced in those states that have it: eligible citizens who make an effort to participate in democracy by going to the polls on Election Day would not be precluded from casting a valid ballot because they missed a previous registration deadline.

Another innovative practice was the approach that DuPage County, Illinois, took to determining which voters must cast a provisional ballot. Rather than leaving poll workers to sort through a complicated paper flow chart of contingencies and options, the county has developed an electronic flow chart of sorts. This tool guides the poll workers at each step, constraining the poll worker’s choices and prompting them to ask the appropriate questions, dramatically reducing the chances of error in processing voters.

Nevertheless, serious problems remain. Among the concerns we identified were: poll workers who were unaware of or unable to enforce regulations; partisan chief election officers issuing inconsistent or illogical rulings; arcane policies that prevented some voters from registering; inconsistencies in administering rules that resulted in voters receiving unequal treatment; and risks of significant election litigation that would challenge the ability of state courts to reach outcomes perceived as nonpartisan or neutral.

These persistent problems lead us to make several suggestions for legislative leaders, as well as state and local election officials. While some of these proposals will be difficult to implement in time to make a difference in the 2008 election, others could have an immediate impact. For instance, state election officials should do all they can between now and November 2008 to promote consistency among local administrators and poll workers. In addition, most states need to develop greater bipartisanship in matters of state-level election administration, something that the political parties could improve today if they found the will.

Similarly, a major concern is that elected state courts lack the neutrality and independence important for the successful resolution of a close election contest connected with some election system failure. In the next several months, states should be exploring alternative mechanisms and tribunals for resolving such contests. The Michigan Supreme Court’s 4-3 partisan split last week in upholding the state’s January 15 presidential primary – which mirrors the same court’s split last summer upholding the state’s voter identification statute – is emblematic of the difficulties of asking state courts to be the final arbiters of matters of election administration.

These are just some of the findings and conclusions in our study, the full details of which will be available here next week. We invite interested readers to read the report, and then to offer feedback about how we might continue to improve our election systems so as to promote the values of access, integrity, and finality.

You Can’t Predict, You Can Only Plan: More Lessons From Ohio

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By Terri L. Enns

Tuesday’s elections generated no media reports of widespread systemic meltdowns, but a few intriguing situations caught the attention of those of us who follow these sorts of things. One of those glitches, actually a series of events, involved the special primary preceding next month’s special election to replace the late Representative Paul Gillmor in Ohio’s 5th Congressional District.

In August, 2007, much of northern Ohio experienced massive flooding, leading the federal government to declare six counties, including Putnam County, as disaster areas. As a result of the flood, Putnam County lost most of its voting machines.

In September, Representative Paul Gillmor died suddenly, requiring the Governor to call a special election, set for December 11, to fill the vacancy. A battle for the spot on the Republican ticket ensued, pitting State Representative Bob Latta against State Senator Steve Buehrer as the top two contenders and necessitating a primary, which was held on Tuesday contemporaneously with the general election.

In order to hold Tuesday’s elections, the Putnam County Board of Elections borrowed 140 machines (ES&S iVotronic touch screen machines) from the Franklin County Board of Elections to replace those rendered unusable by the flood. Forty of those borrowed machines were used for the special primary, which had its own separate ballot, separate lines for voters, and used separate machines.

Despite being tested multiple times before being sent out to the polling places, (Jennifer Feehan, “Glitches delay vote count for Seneca, Putnam,” Toledoblade.com, Nov. 8, 2007). the machines being used for the primary experienced “widespread” problems, with every precinct reporting at least one problem machine during the day, according to Ginger Price, the Director of the Putnam County Board of Elections. (“Cuyahoga County again part of voting delays around Ohio,” Ohio.com, Nov. 7, 2007.) The problem was traced to flash cards and the solution was to provide voters with the paper ballots usually generated for early and absentee balloting.

However, since their need had not been anticipated, the polling places did not stock a sufficient number of those paper ballots and they could not be printed quickly enough to accommodate waiting voters. Because voters were asked to return later when ballots would be available, the Secretary of State filed suit to keep the polls open in Putnam County until 9:00 p.m., and to delay reporting the Congressional primary’s results in all sixteen counties within the congressional district until Putnam County’s polls closed. The Help America Vote Act of 2002 required those voters voting during the extended hour and a half to vote by provisional ballot.

Once the polls closed, some poll workers began counting ballots at the polling place, instead of waiting until the machines and ballots were all sent to the county Board of Elections as the Secretary of State’s offices had instructed. While promising a “full review” of the process, Secretary of State Brunner stated “We didn’t lose any data. It was just a question of putting the data into a format that could be counted.” (“Brunner says full review of Putnam County election woes to be conducted,” Defiance Crescent-News.com, Nov. 8, 2007). Additionally, the Board of Elections did not have containers for the paper ballots, which also delayed the counting.

Results for the Congressional primary were announced at 6:00 a.m. on Wednesday morning, with a margin of fewer than 1500 votes. Senator Buehrer, the second-place finisher in the race, did not request a recount.

No one could have predicted the series of events leading up to the need for the election and the way in which it was run. However, many of these types of events should be planned for, as they are likely to occur in the future.

For example, a variety of circumstances can lead to a late-entry election or ballot changes. The death of an office-holder or a candidate is an obvious one—Minnesota Senator Paul Wellstone’s tragic plane crash is perhaps the most recent famous example– but so are legal issues including successful challenges to eligibility of candidates or issues (as witnessed by the late ineligibility of an Ohio ballot measure that remained on the ballot although not valid), criminal convictions that render a candidate or office holder ineligible, and other changes in life circumstances that require withdrawal or resignation. Technological changes can accommodate some of these changes, and, in addition, it makes good sense for the General Assembly and the Secretary of State to be reexamining the deadlines for filing, as they are doing currently.

Another issue that cannot be predicted but that should be anticipated is that groups of machines will become inoperable. That can happen by natural disaster, such as the flooding that incapacitated Putnam County’s machines, or by other kinds of accidents. For instance, as machines are driven from storage sites to polling places, they are vulnerable to vehicular crashes. Additionally, bad actors may intentionally incapacitate machines. While I would not advocate that every county board of elections stock a large surplus of machines just in case a natural or human disaster wrecks some of their machines, we should think about how to plan for the need for additional machines. Had Putnam County’s flooding occurred next February, prior to the presidential primary, would Franklin County have had machines to lend?

One technical difficulty that beset Putnam County was the time it took to print additional paper ballots. Since paper ballots are the solution to a variety of problems, including an unanticipated deluge of voters or machines that stop working properly, we should anticipate the need to generate those ballots and should have the capacity to do so quickly.

Paper ballots, once voted, raised the need for a different counting process, which apparently tripped up some of the Putnam County poll workers. Again, as paper ballots are the preferred back-up system for all manner of voting problems, all poll workers should be trained specifically on how to deal with them, rather than assuming that paper ballots will be the exception and only a few people need to understand their handling.

Elections are not like running a Wal-mart or a grocery store in that elections do not permit just-in-time delivery with a rain-check for out-of-stock items. While it is important that county commissioners, who pay for most of the costs of elections in Ohio, are careful stewards of the taxpayer’s money, it is also imperative that elections be treated as the critical foundational events that they are. A few dollars saved in printing costs can be disastrous if that savings results in eligible voters being disenfranchised. Boards of elections, county commissioners, and the Secretary of State should work together to plan for those events which are sure to happen, but which cannot be predicted.

Refining the Bush v. Gore Taxonomy

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My follow-up contribution to the “Election Law and the Roberts Court” symposium is now posted on SSRN. Thanks to the insights of Dan Lowenstein’s response to my initial piece (both also part of the same symposium), this follow-up advances the analysis of potential claims based on Bush v. Gore. It is certainly a quicker entry into this topic than the much longer initial piece.

These new Bush v. Gore claims are relevant to the Indiana voter identification case now before the Supreme Court, Crawford v. Marion County Election Board. In the lower courts, the Crawford plaintiffs raised one of these Bush v. Gore claims as part of their attack on the new statute (arguing that ambiguities in the statute would lead to unequal enforcement of the ID requirement). This type of claim was recently accepted by the district court in the Albuquerque voter identification case, ACLU of NM v. Santillanes, 506 F. Supp. 2d 598 (D.N.M. 2007).

Interestingly, there may be a way to use another type of Bush v. Gore claim as a defense to the Indiana statute. One important feature of that statute is that it has a much narrower range of acceptable forms of identification than other ID laws (including HAVA). An argument might be made that this narrower range is easier for poll workers to administer and therefore less likely to cause poll worker mistakes, of the kind that have been seen in connection with more complicated ID laws (including Ohio’s). Mistake-induced inequalities in the enforcement of a voter ID requirement present the basis for somewhat different version of a Bush v. Gore claim from ambiguity-induced inequalities (a point I discuss in both of my symposium pieces). Consequently, it might be argued that Indiana’s narrow ID law promotes voter equality—and avoids potential constitutional violations—by reducing the risk of these mistakes. As Stephen Ansolabehere said in discussing the preliminary evidence from a national study whose “most unexpected finding” was a high incidence of these mistakes: “Both sides in the heated debate over voter ID should be able to agree that a person’s ability to vote should not depend on the luck of which administrator he or she draws.”

I will address this and related points concerning the constitutionality of Indiana’s voter ID law in a preview of Crawford to be published in the Election Law Journal.

AVBM: What If We Could Make It Fraud-Proof?

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By Nathan Cemenska
Web Editor, Election Law @ Moritz
Moritz College of Law

Oregonians are proud of their all-vote-by-mail elections, and election administrators in other states are investigating the benefits of adopting such a system. The benefits include avoiding the bottlenecks of having a single Election Day, avoiding duplication of costs involved in administering a hybrid in-person/absentee voting system, and the convenience of mail voting. One downside, critics claim, is the risk of fraud, though Oregonians are quick to point out that no serious fraud has ever been shown to have occurred under their system, which has been in place since 1998. But maybe smart technology and procedures can take away the risk of fraud and make AVBM a very attractive option, quite possibly the best for some jurisdictions.

Oregonians are proud of their all-vote-by-mail elections, and election administrators in other states are investigating the benefits of adopting such a system (see this post). The benefits include avoiding the bottlenecks of having a single Election Day, avoiding duplication of costs involved in administering a hybrid in-person/absentee voting system, and the convenience of mail voting. One downside, critics claim, is the risk of fraud, though Oregonians are quick to point out that no serious fraud has ever been shown to have occurred under their system, which has been in place since 1998. Some elections scholars have also theorized that fraud is more difficult to accomplish under AVBM than under traditional absentee voting because, among other reasons, it is impossible to double-vote by casting both an in-person and absentee ballot (see Edward Foley, The Where and When of Voting, 6 Election Law Journal 270, a review of Absentee and Early Voting by John Fortier). I do not know what risk of fraud is present in AVBM systems, but I do think that smart technology and procedures can probably reduce whatever risk of fraud is present and make AVBM a very attractive option.

Cook County, Illinois, presents one example of how smart procedures can help. Cook County uses a traditional absentee voting system that requires voters to provide an “excuse” to obtain an absentee ballot. To reduce the risk of fraud, administrators look at the number of incoming absentee ballot applications from each precinct to determine whether an unusual number of such ballots have been requested. Where the number of requests is high in a precinct, administrators place a call to each and every voter in that precinct and ask the voters whether they have requested ballots, whether anyone has attempted to improperly influence their votes, whether anyone has offered to return the absentee ballots for them, and other questions. Using this system, Cook County succeeded in preventing a number of significant absentee voting schemes, including one involving about 250 votes in 2003.

The problem with this system is that it cannot be applied to AVBM. The Cook system relies upon “spikes” in ballot applications to target investigations, but these spikes do not occur under an AVBM system where everyone receives absentee ballot and ballot applications are unnecessary. Instead, administrators in an AVBM system would have to find some other way to target investigations or, alternatively, perform some kind of untargeted follow-up. An example of an untargeted follow-up is provided by Chicago, which is within Cook County, but has a separate election authority. In Chicago, administrators place phone calls randomly to 5% of individuals who have requested absentee ballots and ask them the same types of questions asked in Cook. While this system has the benefit of potentially catching fraud in precincts where ballot applications have not spiked, it also has a considerable downside: It says only that 5% of voters had a clean experience, and says nothing about the other 95% of them. Under such a system, the chances of an administrator uncovering an absentee fraud scheme might be significantly reduced.

However uncomfortable one feels about such a system, one thing is for certain: The degree of discomfort is inversely proportional to the percentage of absentee voters who receive a phone call. Five percent might not be enough, but what about 50%, 75%, or 100%? As the percentage rises, it begins to look less and less reasonable and more and more contrary to claim that we cannot have faith in our elections results—although even at 100% perhaps it is still more reasonable than contrary.

I do not think that phone banking alone can bring the risk of fraud down to reasonable levels in every jurisdiction (some jurisdictions are more prone to fraud than others), but it can be one piece of a rational system that accomplishes this goal. Another important part of such a system would be educating voters about common absentee fraud techniques and encouraging them to report suspicious activity. To be effective, the encouragement might have to go beyond mere words and include financial incentives, formal public recognition, or other incentives to blow the whistle. It is also probably desirable for fraud-prone jurisdictions to stiffen penalties and put as much bipartisanship and transparency in their administration as possible, although this may be less necessary for jurisdictions without a demonstrated history of fraud. Finally, there are probably ways that technology could be used to further reduce the risk of fraud, although I am not sufficiently apprised of technological matters to say for sure.

Those who are still concerned about fraud under such a system should consider the true cost of their concern. The cost of AVBM may be that occasionally 250 fraudulent ballots are cast, but I’m willing to pay that cost if—if– the alternative is an unwieldy Frankenstein-type monster that strains resources, drives good administrators into early retirement, and disenfranchises thousands of voters who do not have the luxury of waiting in line for four hours to cast a vote that might not be counted.

All of this is not to say that AVBM is clearly the answer. AVBM can lead to lost votes because it does not provide the type of voter error correction provided by DRE and in-precinct optical scan systems, and it also may skew participation by disproportionately increasing turnout among those groups already most likely to turn out. But it is possible that the fraud concern could be reduced or eliminated by appropriate use of procedures, and AVBM should not reflexively be rejected on the basis of fraud.

Don’t Play Poker with All Saints Church

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By Donald B. Tobin

All Saints Church in Pasadena, California is in the headlines again in its dispute with the IRS on whether it improperly intervened in a political campaign in opposition to a candidate for public office. The IRS concluded the All Saints Church improperly intervened in the election, but the IRS determined that it would not proceed further with the examination of All Saints. In short, All Saints called the IRS’s hand, and the IRS folded. Here is what happened.

A retired pastor of All Saints Church gave a sermon about what Jesus would say to Bush and Kerry. The Pastor criticized the war in Iraq, Bush’s policies dealing with poverty, and Bush’s position on abortion or a woman’s right to choose. The IRS concluded that this was implicit intervention and that All Saints had gone over the line.

In most cases such as this, Churches say they are sorry and that they won’t do it again, and the IRS is satisfied. But in this case, All Saints Church hired one of the best lawyers in the field, Mark Owens with Caplin and Drysdale, and decided to take on the issue. All Saints argued both that the provision prohibiting churches from intervening in elections was unconstitutional and that, even if it was constitutional, All Saints had not violated the provision.

Then the case got interesting. All Saints indicated that it would not respond to the IRS’s summons in this case (copy available on All Saints web site). The decision not to comply with the summons is a means of contesting the case because, as I explained here, the IRS, through the Justice Department, must then go to court to seek enforcement of the summons.

It appears that the IRS and/or the Justice Department decided not to try to enforce the summons and instead issued a letter to the taxpayer saying that the taxpayer violated the provision but that the IRS was not going to take further action. A big win for All Saints, but I can clearly understand why All Saints is not happy. It has been warned that the IRS views its activities as a violation of (c)(3) status and not to do it again, when All Saints has said that it would do it again and that it does not think that its actions violated the statute. Since there is now no controversy, All Saints cannot contest the IRS’s determination in court.

Why would the IRS and the Department of Justice do this? If they believe that All Saints violated the provision, why not take it to court? Probably because they think that All Saints violated the provision, but are worried that they would lose the case if it went to court. The All Saints case is a very close call, and there are not many published cases on this topic. I am sure that the Department of Justice would prefer to choose its test cases more carefully. So this is likely a “prosecutorial discretion” decision by Justice and nothing more.

All Saints, however, did not stop there. Like a good poker player who has just won a big hand, All Saints is pushing back. Marcus Owens, All Saints Church’s lawyer, claims that e-mails he received as part of a Freedom of Information Act request show that there may have been improper contacts between the Department of Justice and the IRS regarding the case. All Saints claims that it “is very concerned that the close coordination undertaken by the IRS allowed partisan political concerns to direct the course of the All Saints examination.”

It is impossible to rule anything out, but the evidence that All Saints points to does not even come close to making its case. Because All Saints has made all the documents public, we have the ability to really see the nuts and bolts of the case.

So what do these e-mails show? They show that the IRS contacted the Justice Department (not the other way around) to discuss the All Saints case. It appears that the IRS wanted to make sure that the Justice Department was on board with the case before the IRS issued a summons. The e-mails do not indicate any intervention on the part of the Justice Department regarding whether to audit All Saints. Instead they show proper and I think advisable coordination between the Tax Division at the Department of Justice and the IRS. Although the IRS is in charge of auditing taxpayers, the Justice Department is the IRS’s lawyer in Federal court (with the exception of the Tax Court). Thus it was the Justice Department, not the IRS, that would have to bring the enforcement action. It makes perfect sense to me that the IRS would consult with Justice before issuing a summons that the Justice Department would have to enforce. If Justice did not think it was advisable to bring a case to enforce the summons, then the IRS might decide not to issue it. To me, this is advisable communication between the IRS and its lawyers.

What would be unadvisable and, in my view, improper, is if political people at Justice or the IRS were trying to influence whether the IRS proceeded with the case. But the e-mails indicate no such communication. The content of the e-mails indicate that Justice was troubled with the substance of the case and had questions for the IRS. It appears from the e-mails that Justice wanted answers to some of All Saints Church’s complaints and also wanted to know how the IRS distinguished this case from some contrary rulings. The substance of the e-mails shows collaboration not intervention. The e-mails posted on All Saints’ web site reference discussions with two Justice Department employees. One is Claire Fallon, the Deputy Assistant Attorney General in 2006. Ms. Fallon had an over 30 year career at Justice as a non-political appointee. She started as a line attorney and was promoted over the years all the way to Deputy Assistant Attorney General of the Tax Division. She was appointed to that position by President Clinton.

The second name mentioned in the e-mails is David Hubbert. In 2006, he was the chief of one of the tax division’s civil trial sections. He is also a long-time career employee with over 20 years of experience. He is known in the Tax Division as one of its experts in the tax-exempt area.

Fallon and Hubbert are exactly the types of people that I would want the IRS to be consulting in a case like this. They are not political appointees and have worked for both Republican and Democratic administrations. They are the exact type of people we want around to protect against political manipulation of tax administration. In All Saints Church’s world, the IRS and the Justice Department could not consult on a case until the case was formally transferred to the Justice Department by the IRS. In my view, such a policy would be a big mistake. A client needs to be able to talk with its attorney, and communication between the IRS and the Department of Justice is essential for coherent and efficient tax enforcement.

While I think All Saints played its hand almost flawlessly in this controversy, I think it has overplayed its hand with regard to the alleged political intervention by the Justice Department. There is simply no evidence that the Justice Department attempted to influence this case for political reasons. But thanks to All Saints Church’s decision to make all documents public, you can decide for yourself.

My disclosure: I worked in the Appellate Section of the Tax Division at the Department of Justice from 1997 – 2001. I left the Department of Justice in 2001 and was never involved in any proceeding regarding All Saints Church.

The Supreme Court and Election Law: In Search of Doctrinal Specificity

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The three cases currently on the Court’s calendar all involve line-drawing challenges, and collectively they give the Court the chance to provide much-needed precision to the constitutional law that governs elections.

Listen to Professor Foley’s podcast on Washington State Grange & Washington v. Washington State Republican Party , et al. by clicking here.

The Supreme Court opened its term yesterday with an election law case, Washington State Grange v. Washington, and it will hear oral argument in another one tomorrow, New York State Board of Elections v. Lopez Torres. Last week, it added a third to its calendar, Crawford v. Marion County Election Board, better known as the Indiana voter identification case, which instantly overshadowed the others and became one of the handful of cases that Court-watchers will watch most closely.

All three cases share a common attribute: they will be challenging for the Court because they each require distinguishing when one burden is too much, and when another is not, based on nothing more than the vague phrases of the Constitution’s equality and liberty guarantees. Take the voter identification case for purposes of illustration. Although some of the rhetoric surrounding the case might make one think any voter identification requirement is inherently evil, or inherently innocuous, depending on one’s point of view, the truth of the matter is that determining the constitutionality of specific voter identification laws will require a much more nuanced analysis, focusing on the factual details of the particular law at issue.

Some forms of a voter identification requirement undoubtedly would be unconstitutional. Think of a statute that required voters to present three forms of photo identification, including one that cost voters $100 to obtain. Conversely, asking voters to sign a poll book is a form of an identification requirement, one that has existed for decades and obviously is permissible. So, too, presumably would be a law requiring voters to bring any postmarked piece of mail delivered to their residence showing their name and address, or else swear out an affidavit of homelessness.

Once the status of these two “polar” examples is accepted, it becomes quickly apparent that the Court faces a difficult line-drawing challenge. There is little to guide the Court in drawing this line between permissible and impermissible voter identification laws, except the bare concept of equal citizenship in a democracy. The Justices can also use their basic powers of reason, to consider how onerous a particular voter identification requirement may be in relation to the objectives it purports to serve. But in a close case, where the burden is slight (the government pays for procuring documentation of a voter’s U.S. citizenship), and the benefit not entirely illusory (proof of U.S. citizenship makes negligible the risk of non-citizens voting), there is nothing in the Constitution itself—or even in the Court’s precedents—requiring it to rule one way or the other.

The same observation applies in the case that the Court heard yesterday. There the question is whether Washington State’s particular form of a “top two” primary, one in which candidates are permitted to identify a “party preference” on the ballot, is compatible with the party’s own constitutionally protected freedom of association. (The top two vote-getters might both self-identify as Republicans, for example, even though only one of them is the party’s officially endorsed candidate.) We already know that one form of inter-party (or “blanket”) primary is unconstitutional: one in which all voters, regardless of their own party affiliation, are permitted to select a party’s official nominee. Conversely, the Supreme Court has already told us that a different version of a “top two” primary would be unproblematic: one which did not list any partisan affiliation on the ballot. The Washington case thus requires the Court to explain more precisely what distinguishes the permissible from the impermissible—and whether Washington’s party “preference” label crosses the line. (If Washington allowed a party to disown an objectionable candidate, presumably its labeling law would be permissible. But what if the state adopts a generic disclaimer, that a candidate’s statement of party “preference” entails no implication that the party itself accepts the candidate’s affiliation with it?)

Tomorrow’s case likewise involves some tricky line-drawing. The details of that case are complicated. It concerns the method by which New York State selects a party’s judicial candidates to run in the general election. The method involves both a primary and a convention: the primary chooses the convention delegates, and the delegates nominate the judicial candidates. The complaint is that the structure of the combined primary-convention process has the effect of foreclosing judicial candidates not favored by party bosses. Assessing the merits of this complaint is made more difficult by recognizing that some candidate-selection processes would undoubtedly be unconstitutional (for example, a primary in which party bosses received extra votes by virtue of their official positions within the party leadership), while others would be undoubtedly unobjectionable (for example, a primary in which one candidate appeared on the ballot as the officially endorsed candidate of the party’s central committee). The Court may well reject this complaint, on the ground that that there are no formal barriers to mounting a challenge to an insider candidate (the challenger can run a slate of delegates at the primary stage, who if successful will control the convention)—but to do so will require the Court to rule irrelevant all the evidence of the practical impediments that the current system imposes.

The common feature of these three cases—difficult line-drawing with little guidance from the Constitution itself or the Court’s precedents—calls upon the Court to think more systematically about the development of doctrine that can do more to constrain the Court in future related cases. It is not as if the Court has never decided relevant election law cases previously. On the contrary, the Court decided cases involving state primary laws in both 2000 and 2005, and of course 2000 was the year of Bush v. Gore. It is just that the Court’s articulation of the constitutional principles governing election cases has been so abstract and diffuse as to impose little in the way of further specification of the controlling constitutional standards. It is not just Bush v. Gore that reflects the Court’s intensely fact-specific approach to the resolution of election cases. Rather, it is the entire array of election cases that the Court has decided in recent years.

Heather Gerken has usefully described this period as one of “doctrinal interregnum,” but it is now time for the Court to lay down some binding law. As Chris Elmendorf observes in a major scholarly project designed to offer structure to organize the existing nebulousness, “where judicial intervention [in election cases] is highly discretionary, unconfined by clear rules,” there is a “particularly acute” risk that the Court’s “reputation for political neutrality” will suffer irreparably. Accordingly, the Court needs not just to decide its three pending cases, but to do so in a way its new precedents establish more law to be followed than its previous precedents have done.

This brief overview is not the place to offer the specific intermediary rules that the Court ought to adopt in each of the cases. Professor Elmendorf has already developed a menu of analytically rigorous options that the Court could pursue in the New York judicial candidates case, and his larger project has promised a later installment that provide something similar for the Indiana voter identification case. Whether or not the Court embraces any of the particulars of his analysis, the Court should heed his basic message (one that I’ve also echoed previously): election law as a subfield within constitutional law is in an especially urgent need for doctrinal specification. The Court would do well to use the three pending cases to this end, coordinating their writing and release as necessary—not merely to avoid conflicting signals, but to advance a coherent vision of the extent to which the Constitution governs election law. This vision can then become the reference point for further elaboration of the specific rules that, rather than ad hoc judicial predilections, will serve to distinguish permissible and impermissible provisions of state election statutes.

What Congress Should Be Talking About

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By Daniel P. Tokaji

The U.S. House of Representatives may soon resume consideration of H.R. 811, a bill that would require voting machines to generate a “voter-verified” paper record. This bill is the outgrowth of a bitter and protracted debate over the security of direct record electronic (DRE), which has consumed considerable time and attention across the country over the past few years. In this comment, I briefly canvass the current debate over electronic voting, and then turn to the more pressing election administration issues that Congress ought to be considering.

The U.S. House of Representatives may soon resume consideration of H.R. 811, a bill that would require voting machines to generate a “voter-verified” paper record. This bill is the outgrowth of a bitter and protracted debate over the security of direct record electronic (DRE), which has consumed considerable time and attention across the country over the past few years. Even among the fiercest critics of DRE technology, there is persistent disagreement over whether the current version of the bill will really improve electronic voting security.

More distressingly, the current Congress’ preoccupation with electronic voting continues to serve as a distraction from much more serious problems with the administration of elections, including problems in how voter registration is being handled in the states. Rather than squandering further time and energy on the electronic voting debate, Congress should turn its attention to improving registration, enhancing participation, and collecting better information if it really wants to ensure a fair electoral process in 2008. In this comment, I briefly canvass the current debate over electronic voting, and then turn to the more pressing election administration issues that Congress ought to be considering.

The Electronic Voting Debate

Prompted by Florida’s 2000 election and the Help America Vote Act of 2002 (HAVA), new voting equipment has been implemented throughout the country in the last few years. Few dispute that changes were sorely needed, given the high number of votes lost with punch card voting equipment that was prevalent before HAVA. There has, however, been enormous controversy over the new technology, especially DRE machines. This equipment has the advantage of reducing the lost votes which resulted from the use of punch cards and other paper-based systems. By providing voters with notice and the opportunity to correct errors, DREs reduce the number of unintentional undervotes and eliminate overvotes. This equipment also makes it easier to accommodate non-English proficient voters, and can allow many people with disabilities to vote independently.

Electronic voting has nevertheless become the bete noire of some activists, mostly those on the left side of the political spectrum. DRE critics argue that the machines are insufficiently secure, leaving open the possibility that software could be manipulated to “steal” an election. There have also been well-publicized problems with the implementation of DRE machines in some jurisdictions. The most notable was in Sarasota County, Florida, where there were over 18,000 undervotes in the 2006 election for Florida’s 13th Congressional District.

According to some activists, the solution is to require that all voting equipment generate a “voter-verified” paper record. For electronic voting machines, the most common configuration is a reel-to-reel printer attached to the touchscreen voting unit, on which the voter’s choices are contemporaneously printed as the voter votes. In theory, these printouts could be verified by the voter and later audited to ensure the accuracy of the electronic voting totals. In practice, it is questionable whether voters will actually check the paper record — hence the quotation marks around the term “voter verified.” There are also serious issues of ballot integrity associated with the printed paper records, as well as privacy concerns recently reported here.

All of these issues make contemporaneous paper records a dubious solution to the security concerns associated with DREs. In fact, some DRE critics — most notably the N.Y. Times editorial page — have shifted away from the oft-repeated argument that a mandatory paper trail is the solution (see here and here) and now call for a total ban on touchscreen DREs.

This is not the place to engage in an extensive discussion of the paper trail debate, as I have previously done in this article and in prior weekly comments (see here and here). It should be noted, however, that electronic voting is not the greatest problem facing our democracy. In fact, the transition to new voting technology is one aspect of election reform that has really worked. According to one study, one million lost votes were avoided in 2004 due to improvements in voting technology and administrative procedures. That same study found that counties moving from punch cards to DREs saw the greatest improvement in lowering the number of uncouted votes.

None of this is to deny that there are legitimate concerns associated with new voting technology. But at this point, the best solution is far from clear, and very unlikely to be achieved through federal legislation. County governments are strongly opposed to the current bill, given the massive changes in voting equipment that it would require. Many e-voting critics are also skeptical, given that one of the more promising means by which to address their concerns — a strong requirement that source code be disclosed for testing — is absent from the current bill. As demonstrated by the recent experiences of California and Ohio, which were among the first to pass paper-trail laws, this requirement will not resolve the debate over voting technology.

With election officials strongly opposed to the current federal bill and voting activists divided, it appears unlikely that we will see productive voting technology reform coming from Congress anytime soon. As a practical matter, it’s not realistic to require election officials to procure new technology for next year’s elections. And even if it were possible to make major technological changes in time for 2008, it is far from clear what direction that reform should take. At least for now, these issues are best left to the states.

The Debates That Aren’t Happening

Congress’ preoccupation with electronic voting would be less costly, were there not other pressing issues of election administration desperately in need of attention. If left unaddressed, these problems could result in systematic inequalities that impede many voters from participating in the 2008 election. Here are three issues to which the current Congress should be devoting attention right now, if it’s serious about improving election administration in 2008 and beyond.

1. Statewide Registration Databases

One of the most important changes mandated by HAVA was that each state have in place a computerized statewide voter registration list. A few states, including Michigan, had statewide voter registration lists in place before HAVA that worked well. In other states, voter registration lists were maintained at the local level — and often had serious problems. According to an influential report by the Caltech/MIT Voting Technology Project, registration glitches were probably a bigger source of lost votes than bad voting equipment in the 2000 election. The idea behind HAVA’s statewide voter registration list was to improve the quality of lists and to allow for address changes to be more easily tracked when voters moved across county or municipal lines. HAVA also included a requirement that voters’ information be “matched” against motor vehicle and social security records.

While the idea behind the statewide registration database requirement is commendable, the transition has not gone smoothly everywhere. As summarized in this table, many states are not yet in full compliance with HAVA’s requirements, as they were supposed to be by 2006. More disturbing is the possibility that state “matching” practices may result in some eligible voters being wrongfully stricken from the rolls. On Monday of this week, the Brennan Center for Justice and other voting rights advocates filed suit in Florida, arguing that the state’s overly strict matching criteria may wind up excluding up to 30% of voters due to typos and other data entry errors. Latino voters who use both maternal and paternal surnames are especially at risk. If Congress is really intent on preventing the systematic exclusion of voters in 2008, it should pay close attention to how states are implementing HAVA’s statewide registration database requirement.

2. Barriers to Registration and Participation

Since 2004, a number of states have moved to impose more stringent requirements as part of the registration or voting process. A voter-enacted initiative in Arizona requires proof of citizenship in order to register and vote, driven by the spectre of noncitizens fraudulently participating in elections. In Georgia, Indiana, and Missouri, state legislatures adopted laws requiring voters to provide government-issued photo ID in order to vote, despite arguments from voting rights advocates that such requirements would disproportionately burden poor, minority, disabled, elderly, and college-age voters. In Ohio, the legislature declined to adopt a photo ID requirements, but instead enacted a confusing identification law that leave voters and poll workers alike unsure as to exactly what must be done in order to have one’s vote counted.

There’s precious little evidence of voting fraud to justify these laws. It’s extremely rare for voters to appear at the polls pretending to be someone they’re not, the only form of fraud that an ID law would address. There is, on the other hand, a significant risk that such laws will disproportionately exclude some groups of eligible voters. By conditioning voting on identification that some voters do not have — and that certain groups of voters are much more likely not to possess — the composition of the electorate is likely to be affected. Even in states with less stringent requirements, the confusing patchwork of rules for registration and voting make it more difficult for all voters to participate in the electoral process.

The time has come for Congress to consider imposing clear and uniform requirements for participating in federal elections. Such requirements should be designed to preempt the unduly restrictive, exclusionary, and confusing ones adopted by the states noted above. In the long run, the best solution might be to couple uniform identification requirements with election-day registration (EDR), which has now been adopted in eight states with excellent results. This is a reform that could at once increase participation while enhancing the integrity of our electoral system.

3. Bad Information from the States.

For those seeking to understand the administration of American elections, one of the most serious problems is the absence of reliable data from the states. As part of HAVA, Congress created the U.S. Election Assistance Commission (EAC), which is supposed to serve as a clearinghouse of information from which better election policies might emerge. One of the things the EAC did in 2004 and 2006 was to survey states on various aspects of their election system, including voting technology, registration, provisional voting, and disability access. Unfortunately, the quality of information received from the states in 2004 was poor. Many states provided incomplete or inaccurate data. At present, neither the EAC nor any other agency of the federal government has the tools to make the states provide better information.

This is a serious problem for both researchers and reformers. Without accurate information, it is difficult if to know where the most serious election administration problems lie. In fact, it is hard to know whether state and local entities are complying with existing laws such as HAVA and the National Voter Registration Act of 1993 (NVRA). Without adequate information, it is impossible to diagnose problems, much less prescribe appropriate remedies.

To deal with the poor quality of election administration information, Thad Hall and I have suggested a money-for-data swap. States would receive needed federal funding and, in exchange, would be required to provide accurate and complete data on the administration of their elections. Under our proposed carrot-and-stick approach, those that provide this information would receive monetary benefits; those that fail to comply would face monetary sanctions. Most recently, the Midwest Democracy Network — a coalition of political reform advocates — issued a questionnaire to presidential candidates challenging them to support federal funding for election administration in exchange for better information from the states (Question IV-A) .*

It may be possible to come up with other means by which to improve the quality of information on election administration. What cannot be seriously questioned is that better data is a necessary precondition for future election reform. Now is the time for Congress to focus on what can be done to get better information on election administration in 2008.

These three items are not meant to be an exclusive list. There are undoubtedly other things that Congress could do to prepare the 2008 election season and pave the way for long-term improvements in the administration of elections. Instead, Congress remains mired in an electronic voting debate that is unlikely to result in any real improvements in our election system, but at best to provide a placebo for activists who view electronic voting as the problem and paper as the answer. This may score some members of Congress points with their base, but it will do nothing about the more serious barriers to a fair democratic process.

* Disclosure: I have attended meetings of the Midwest Democracy Network and consulted in the preparation of this portion of its questionnaire.