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Wednesday, February 13, 2013

Election Law and Compromise: Reactions to President Obama's Election Commission

Last night's State of the Union address included some big news for us election law folk:  the creation of a Presidential Commission on Election Administration, to be chaired by Obama's top election lawyer, Bob Bauer and Mitt Romney's top election lawyer, Ben Ginsberg.  Here is what Obama said last night in his speech:

"We must all do our part to make sure our God-given rights are protected here at home. That includes one of the most fundamental rights of a democracy, the right to vote.  When any American -- no matter where they live or what their party -- are denied that right because they can't wait for five or six or seven hours just to cast their ballot, we are betraying our ideals.  So, tonight, I'm announcing a nonpartisan commission to improve the voting experience in America. And it definitely needs improvement. I'm asking two long-time experts in the field -- who, by the way, recently served as the top attorneys for my campaign and for Governor Romney's campaign -- to lead it. We can fix this. And we will. The American people demand it, and so does our democracy."

This is, in my view, a significant step in the right direction.  President Obama has doubled-down on his Election Night statement that "we have to fix that" (referring to long lines at the polls) and his follow-up in his Inaugural address that "[o]ur journey is not complete until no citizen is forced to wait for hours to exercise the right to vote."

Several experts in the voting rights world have expressed concern that Obama is not going far enough to reform our election system.  Leading election law expert Rick Hasen, for example, wrote that although the Commission is "good news" and "a step forward," "the goals of the Commission are modest, and if all that is produced is a list of best practices, it may have little practical effect on fixing our broken election system"  The League of Women Voters was "surprised and disappointed that the President did not suggest bold action to ensure that every American citizen can exercise the right to vote. Setting up a commission is not a bold step; it is business as usual."

I disagree.  Election law is an area in which partisan motivations necessarily infiltrate any discussion of reforming our system.  It is therefore virtually impossible to effectuate widespread change on a bipartisan basis without first looking for smaller areas of compromise.  Small victories can lead to big victories.  Having Democrats and Republicans working together for more minor solutions can lay the foundation for the harder questions.

As I've written previously, there is room for ADR-type techniques in election law, which ultimately can help to improve our civil discourse.  And that is the key -- we need both sides at the table trusting one another, not spouting off rhetoric about "voter suppresion" or "voter fraud."  Surely everyone can agree that no voter should have to wait in line for several hours to vote.  Finding solutions to that problem presents a modest, bipartisan goal.  If the Commission can come up with a fix to that issue, then it will already have succeeded in tamping down the rhetoric that accompanies most discussion of election reform.  With that foundation of trust and collaboration in place, the Commission can move on to other difficult problems.  Moreover, achieving success requires bipartisan buy-in; and success can occur through modest reforms first which can lead to bolder changes in how we run our elections.  The Brennan Center, which has proposed voting reforms, urged the Commission to "think boldly," although Rick Hasen is not sure that it is set up to do so.  But it does not have to.   Any electon changes will require compromise between Democrats and Republicans.  Sometimes, in an area as charged as election law, compromise entails achieving minor victories, which fosters civil discourse, before bold changes are possible. 

President Obama has now put his weight behind election reform in three major speeches.  Solving the problems, however, does not require immediate, widespread action.  If President Obama is serious about this issue -- which it appears he is -- he will not be satisfied with a report that simply lists best practices and then sits on a shelf. He will demand that modest proposals lead to larger structural changes.  We need to start somewhere.  A bipartisan Commision led by two top election lawyers sets the necessary foundation for improved civil discourse, compromise, and change.

Posted by Josh Douglas on February 13, 2013 at 08:09 AM | Permalink


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Give me a break. Both Hasen and the Brennan Center are strongly left-leaning and want nothing short of taxpayer-funded elections and severe restrictions on the ability of citizens to disseminate political speech.

The Election Assistance Commission was set up after the Florida 2000 debacle and after millions of taxpayers' dollars were spent, the EAC is toothless and ineffectual. The EAC turned into a partisan organization and in 2009, was forced to pay a legal settlement to an attorney who was discriminated against merely because the attorney was a Republican. The EAC already has a similar mission to this new commission proposed by Obama and I don't expect the Presidential Commission on Election Administration to do anything more than the EAC.

Posted by: Liam | Feb 13, 2013 4:18:34 PM

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