Archive for the 'Election reform' Category

In 2016, Department of Homeland Security Secretary Jeh Johnson found that state election officials were suspicious of federal offers of assistance in defending their voting systems from cyber attack. He tried to persuade them to accept DHS designation of those systems as “critical infrastructure,” which would have given states access on a priority basis to a range of protections. The response he received ranged from “neutral to negative.” DHS concluded that, in the middle of an election, it was best not to have a protracted, politicized fight over this step. It focused on providing assistance where it could, and a large number of jurisdictions requested help. In January 2017, even with officials remaining skeptical about the designation, Secretary Johnson proceeded to issue it.

According to Johnson, and as further reflected in reporting by The Washington Post, election officials resisting this engagement with the federal government viewed it as a threat to” states rights.” At least one, Brian Kemp of Georgia, suspected that the Administration might be using the claimed Russian interference as a ploy to advance the political prospects of its favored candidate, Hillary Clinton.  Kemp and others were not convinced that the Obama Administration had properly fixed blame on the Russians. Congressional Republican leadership stayed close to their state allies on these points, also stressing the rights of states and declining to embrace the finding of Russian intrusions.

This is a revealing part of the 2016 story: government at war with itself, in the grip of partisanship, when under cyber attack from a foreign government. The attack was directed at the electoral process, and yet it was still not enough to produce a unified, fully coordinated federal and state response. For all the progress in bipartisan election administrative reform in recent years--and there has been a fair measure of it--Johnson’s account exposes key, and altogether familiar, structural obstacles.

In apparent haste, with not all its members appointed, the President issued the executive order establishing the Pence vote fraud Commission. The appointments still to come will add only marginally to an understanding of this Commission’s objectives. As the Order is written, and with the naming of Kansas Secretary of State Kobach as Vice Chair, those objectives are clear, and the outcome not hard to forecast. And yet there are extraordinary features to the Commission, none of them surprising, and none are the result of error or lack of foresight.

Begin with the leadership:

The Chair is the Vice President of the President who has announced that millions of illegal votes were cast in the last election, all against him (or for his opponent). Now Mr. Kobach, as Vice Chair, has joined the leadership ranks as a public supporter of the President’s claims.  He has said that the “White House has provided enormous evidence with respect to voter fraud.” This is untrue.   As for the problem of non-citizen voting, Kobach has asserted that there is a “lot of evidence” of it. This is also untrue. The larger point is that the Vice Chair of the Commission has reached these conclusions long ago, before a day of testimony or an hour of deliberation. What are the chances that this Commission will arrive at judgments contrary to the ones asserted so confidently by the President--and echoed by Mr. Kobach whose bid for national prominence rests on loudly ringing the alarm about voter fraud?

Now, onto the Commission's purposes:

The EAC’s Troubles

April 12, 2016
posted by Bob Bauer

When the Presidential Commission on Election Administration held hearings around the country, the future of the Election Commission Administration came up regularly in discussions and testimony.  The EAC had no Commissioners, and the concern was chiefly that it could not attend to its responsibility for voting machine standards and certification. There was also a sense that the absence of the EAC—amid indications of neglect, partisan stand-off, or both—highlighted the weakness of a national commitment to progress in professional election administration.  The EAC was an invaluable resource for administrators, and, if it could steer clear of partisan conflict, it could perform a valuable service to the election administration community—and to the voters.

The EAC then got enough Commissioners for a quorum and full operations.  This was a period of considerable promise, and those working in the field moved quickly to engage with the EAC.  For example, early on Ben Ginsberg and I sent a letter urging that the newly functional Commission initiate steps to improve the standard-setting and certification process for voting machines.  The Commission subsequently acted, and it did so unanimously.  EAC-sponsored discussions in which former PCEA Commissioners and election administrators participated heightened the expectation that the Commission could help mark out the ground for professional administration even in a period of intense political and other conflict over voting rights.  There were warm and encouraging words all around.

Brian Newby, appointed Executive Director in November of 2015, has quickly managed to put all of this at risk.  Claiming authority to disregard past EAC policy and precedent--and understanding full well that he was ignoring disagreement among the Commissioners and provoking fresh partisan conflict--he purported to consent to state requests to modify the Federal Form for registration applicants to include a requirement of documentary proof of citizenship.  On this highly visible and divisive issue, in the face of its long and actively litigated history, Newby concluded that this is what he should do.

Voter ID Facts and Motivation: Easterbrook v. Posner

October 16, 2014
posted by Bob Bauer
Judges Easterbrook and Posner square off in their opinions on the Wisconsin voter ID statute and their exchange comes down to two questions: the differences in the design and effects of ID statutes, and the significance of partisan motivation. Frank V. Walker, Nos. 14-2058 & 14-2059 (7th Cir., Oct. 6, 2014). Easterbrook is casual, if not careless, in discussing the differences, and in his treatment more generally of facts. Posner insists on their importance. Easterbrook sweeps aside the question of political motivation, and Posner does not.

Setting Goals for Political Reform

November 6, 2013
posted by Bob Bauer

Joe Nocera has put out a call for reform and opens the discussion with a few that he favors. Tying his list together is his hope to "invigorate the electorate" and encourage "more responsive, and less extreme, political candidates.” These different goals can pull in different directions. An electorate is often invigorated by negative campaigns—which is not to say that candidates have to be extreme in order to be negative, or that only negative campaigns are invigorating, but the connection is not unknown, either. And there is also nothing to suggest that extreme candidates, however Nocera defines “extreme,” are unresponsive. Many are responsive to constituents that reward them for this type of behavior.

Of the different reforms Nocera lists, two illustrate the reasons why some reform programs open with hope and end in frustration, and others might stand a chance.