Chris Elmendorf has inaugurated a new series on Rick Hasen’s election law blog, the first expert invited to post on the subject of “Fixing Election Administration.”   This is off to an interesting start: Elmendorf issues a challenge to the preference for “federal fixes” in solving key conflicts, such as in the accomplishment of secure but universally achieved voter registration.  A possibility he urges for consideration is one of encouraging state experimentation with federal grants administered by a nonpartisan federal agency. 

     The nub of the defect in the "federal fix," as Elmendorf sets it out, is that it does not reliably lead to enhanced voter confidence.  And this is how he defines the mission: "to foster public confidence in the electoral process."  A federal fix—a one-size fits-all—assumes too much about the connection between reform and public confidence, and what remains is the more incremental, "modest" intervention by a federal agency seeding state-level innovations and then testing the results.  Elmendorf also argues that any federal fix just ignites the standard partisan warfare producing, at best, party-line votes, not confidence shared across the partisan divide.

     This is "worth exploring," as Elmendorf suggests, but certain problems seem apparent on the face of his brief.  The first is the mission so tightly tethered at the outset to the goal of promoting "confidence."  This is a treacherous road, this appeal to confidence:  the Supreme Court, in the Crawford and Purcell cases, took off in this same direction and got lost.  Since we do not know, as Elmendorf insists, what improves public confidence, we cannot, by the same token, know whether it will thrive more under a state experimental than a "federal fix" program.

     This is the reason why the state experimental approach may also fare no better than the federal alternative in overcoming "the dynamic nature of the public confidence problem."  Elmendorf sees continuing conflict over election reform:  "the next election cycle will probably bring new assaults on the fairness and integrity of the voting process," a state of affairs which he sees as "inevitable in an area marked by distrust of government, partisan polarization, and (except when the economy is tanking) partisan equipoise."  He believes that the state experimental program stands the superior chance of running this gauntlet—but it is not clear why.  In this last election cycle, the partisan mischief was just as pronounced at the state and local as at the federal level—and more consequential, as one would expect in a highly de-centralized system.

     Public confidence will follow the development and successful execution of sound policies and programs.  These policies and programs must be kept uppermost in mind. 

     Chris Elmendorf expresses his skepticism that these policies and programs can be successfully designed and executed at the federal level, but his concerns are at heart political: they are concerns about public "confidence," however it is measured, and about partisan squabbling.  Fair enough—but we may have come to the point where the larger risk is to let politics defeat reform at the outset, with our aim being only to inch forward with "modest interventions."  Public confidence depends on a more ambitious advance—and, of course, on success.

Bob Bauer