Election Administration: Complexity and Reform Since 2000

ELECTION ADMINISTRATION

Complexity and Reform Since 2000

November 19, 2012

E l e c t i o n A d m i n i s t r a t i o n

There is probably no other phase of public administration in the United States which is so badly managed as the conduct of elections.

Joseph Harris, 1934


ACRONYMS AND VOCABULARY

CEO: Chief Election Official (state)DRE: Direct Recording Electronic voting deviceDOJ: US Department of JusticeEACE: US Election Assistance CommissionEDVC: Election Day Voting CenterFEC: US Federal Election CommissionHAVA: Help America Vote Act of 2002LEO: Local Election OfficialNVRA: National Voter Registration Act of 1993VRA: Voting Rights Act of 1965VVPAT: Voter Verifiable Paper Audit Trail


CONSTITUTION

Article I Section 4The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Amendment 14 Section 1 : Equal Protection Clause

Amendments 15, 19 and 26 : Prohibit eligibility discrimination (race, sex, age)

Amendment 24 Section 1: Prohibits poll tax

Voting Rights Act of 1965 (VRA): Voter Disenfranchisement

Federal Election Campaign Act of 1971 (FECA) and 1974 Amendments: Creation of FEC and National Clearinghouse on Election Administration

Amendments to VRA (1975): Require voting materials available in minority languages under certain conditions

1982-1993: Series of laws to meet needs of disable voters

National Voter Registration Act of 1993 (NVRA): Spread EA responsibilities across multiple agencies (e.g. voter registration at departments of motor vehicles)


FEDERAL LEGISLATION


2000 PRESIDENTIAL ELECTION

— Procedural inconsistencies but between polling places within the same voting jurisdictions

— Inconsistent ballot types and counting procedures

— Lack of clear protocol for ballot counting, canvassing, recount efforts

— Decentralized voter information databases

— Poor access to polling places; insufficient for disabled voters

— Outdated voting technologies


2000 PRESIDENTIAL ELECTION

— Non-existent provisional balloting

— Lack of chain-of-custody procedure for ballots

— Lack of standard operating procedures in general

— Unclear role and authority of courts (local, state and federal)

— Wide gap between legislation and election administration regulation

— Overworked/poorly trained local election officials (LEOs) and poll workers


BUSH V. GORE

— Florida Supreme Court's method for recounting ballots

was a violation of the Equal Protection Clause

— Lack of equal treatment of all the ballots cast

— No alternative method could be established within

time limits set by Title 3 of the United States Code

(December 12)

— Florida Supreme Court had violated Article II, § 1, cl. 2

of the Constitution, by misinterpreting Florida election

law that had been enacted by the Florida Legislature


The lesson the nation seems to have to re-learn time and again is that when the requisites of administration in an important area of public service are neglected for a long period of time, breakdown inevitably results and the affected parties turn to the courts to resolve what has been allowed to develop into a crisis.

Charles Wise, 2001


ROLE OF THE COURTS

— Result of administrative neglect and inadequate legislation

— Undesirable because of:

— Judges’ lack of expertise in specific areas of administration

— Courts’ tendency to focus on discrete cases concerning particular people

or issues

— Inability to solve problems of great magnitude such as the outcome of an

election in a compressed time schedule, in which case the “result may or

may not be in accordance with what citizens would want if they were

confronting the issue by means of deliberation in a democratic forum”

(Wise, 2001, p. 133)


HELP AMERICA VOTE ACT OF 2002 ( HAVA)

A compromise between those who sought to improve access to the polls and those who sought to make illegal voting more difficult.

Donald Moynihan, 2008



— Authorized the distribution of $4 billion to states as encouragement to replace outdated voting technologies

— Creates a state-level position of Chief Election Officer (CEO)Usually an elected official such as the secretary of state and who can make rules but does not employ or fund local election officials

— Established the Election Assistance Commission (EAC)



Mandates that states:— Develop administration plans, centralized (master) voter information

databases, and voting system standards

— Adopt compliance legislation in voter identification

— Adopt voting technologies which satisfy minimum standards for disabled voter and language minority access, notification of overvotes, and auditing procedures

— (For some states) obtain prior federal approval of changes to their election practices pursuant to the VRA to prevent disenfranchisement of minorities

Leaves election law and local jurisdictions to states


US ELECTION ASSISTANCE COMMISSION (EAC)

— Independent and bipartisan administrative body led by four commissioners appointed by the president and confirmed by the senate for a four-year term

— Replaced the Office of Election Administration at the FEC

— Uses a combination of grants (carrots), regulation (sticks), and information (sermons)

— Leaves the responsibility for enforcement on the US Department of Justice (DOJ)

— Regulatory function is limited to powers gleaned from the NVRA

— Maintains the national voter registration form, — Developed accreditation system for non-federal

laboratories which provide voting system testing


NON-GOVERNMENTAL INTERDEPENDENT NETWORKS

Election Center (1985)Non-profit devoted to generating and disseminating information about election processes and best practices through literature, conferences, and training

Joint Election Officials’ Liaison Committee (1995)Consortium for public officials, private sector parties and non-profit organizations seeking to fill in the administrative gaps left by federal mandates and legislation


NON-GOVERNMENTAL INTERDEPENDENT NETWORKS

Certified Elections /Registration Administrator (CERA) (1992)Certificate program through partnership of the Election Center and Auburn University

Train election administrators in theory, history, law, ethics, research analysis, and best practices

Early CERA graduates later developed a set of principles to guide election administrators which “exceeds the baseline approach to professionalization with its broad curriculum, which reaches beyond the procedures, rules, and routines that make up the conduct of elections” (Hale et al., 2008, p. 844).


ROLE OF THE LOCAL ELECTION OFFICIAL

The irony here is rich. Elections are where the public makes primary decisions that affect all citizens and all administrators. It is where public preferences manifest themselves in decisions about who will run all levels of government and, through the initiative and referenda process, even how the government will be run. Yet the history of election administration is one where frequently ill-equipped, poorly trained, part-time administrators have been trusted with managing this critical democratic function.

Alvarez et al., 2006



— Myriad principal-agent problems due to all-in-one-day nature of elections

— Design ballots

— Marshal and train thousands of workers to staff the polls

— Locate and prepare polling places

— Organize and deliver voting equipment and supplies

— Educate citizens

— Share control of the election with an army of poll workers



— Purchase voting equipment according to set purchasing procedures involving interaction with multiple actors, vendors and agencies, and deploye to the polling sites.

— Find polling sites and set them up Often rented spaces such as schools, churches, private businesses, and hotel ballrooms




POLL WORKERS

— Operate the machinery — Distribute and collect the ballots— Left alone to manage the poll site — Historically civically-minded volunteers, often retired — Long hours, low pay, and workday conflicts — Often untrained in the face of the increasing technological demands of the job


ADMINISTRATIVE BURDEN

Burden et al. (2012) survey reveals that the level of administrative burden perceived by local election officials as a result of legislative mandates on both federal and state levels is directly related to whether a local election official supports a particular reform effort, policy and governance issues in general, and determines the likelihood that an employee will attempt to shirk a responsibility in favor of a conflicting, election-un-related responsibility.



The Sacramento County training manual for poll workers was non-existent in 1976, but by 2008 it was 96 pages long (Hawkins, 2008).



The state has great training requirements, and that gives me a choice – to obey the law or put on an election.

New Jersey LEO


EFFORTS TO SIMPLIFY

— Reduce number of polling places Negative effect on voter turnout and satisfaction

— Vote-By-Mail only system in Oregon

— Election Day Voting Centers (EDVC) in Larimer County, ColoradoCentralize all voting activity in a single site


RISING COSTS – CONTRA COSTA COUNTY, CA


RISING COSTS – WELD COUNTY, CO


TECHNOLOGY

Natural Accident/Systems Theory

Complex systems make accidents inevitable.

Errors in small and/or multiple parts of a complex system can lead to dramatic and unexpected system failure.


TECHNOLOGY

Possible security risks associated with DREs: 1. Proprietary nature of OS2. No voter-verifiable paper audit trails (VVPATs)3. Strong correlation between DREs and residual votes

Only 22 states require the use of VVPATs or paper ballots. (Electionline.org, 2006)

From lever machines and punch cards to optical scan equipment and direct-recording electronic (DRE) voting devices


IMPLICATIONS

The lack of a purely technical solution highlights the importance of the interaction of people, processes and technology.

Donald Moynihan, 2008


IMPLICATIONS

Openness and transparency are preventive forces against system failure.

Standard Operating Procedures (SOPs)Chain-of-Custody ProtocalAlternative models to one-day polling placePreferred structure of electoral governanceRevamp approach to DREsNo unfunded mandatesConsistent use of VVPATsOpen-source software comparable to Linux


RECENT RELEVANT PRESS

— Is the VRA Doomed? http://tinyurl.com/b5ufdap— Problems at the Polls: http://tinyurl.com/avb7wc6— Democrats Sue to Extend Florida’s Early Voting: http://tinyurl.com/av5pez6— Memphis library cards acceptable as photo ID for vote: court

http://tinyurl.com/b4z6rud— Election’s poll workers face a myriad of challenges amid changes in voting rules:

http://tinyurl.com/csyvk7a— Who created the voter fraud myth? http://tinyurl.com/9pu9dgf— Ohio County Elections Chief Quits, Citing Stress: http://tinyurl.com/czn3aay— Justices to Review Voter Law in Arizona: http://tinyurl.com/c4lzlkd— Pennsylvania Voter ID Law Enforcement Halted: http://tinyurl.com/bhg72l3

http://tinyurl.com/b5ufdap

http://tinyurl.com/avb7wc6

http://tinyurl.com/av5pez6

http://tinyurl.com/b4z6rud

http://tinyurl.com/csyvk7a

http://tinyurl.com/9pu9dgf

http://tinyurl.com/czn3aay

http://tinyurl.com/c4lzlkd

http://tinyurl.com/bhg72l3


References

Alvarez, R. M., & Hall, T. E. (2006). Controlling democracy: The principal-agent problems in election administration. Policy Studies Journal, 34(4), 491-510.

Alvarez, R. M., & Hall, T. E. (2008). Building secure and transparent elections through standard operating procedures. Public Administration Review, 68(5), 828-838.

Alvarez, R. M., Hall, T. E., & Llewellyn, M. (2008). Who should run elections in the United States? Policy Studies Journal, 36(3), 325-346.

Burden, B. C., Canon, D. T., Mayer, K. R., & Moynihan, D. P. (2012). The effect of administrative burden on bureaucratic perception of policies: Evidence from election administration. Public Administration Review, 72(5), 741.


REFERENCES

Hale, K., & McNeal, R. (2010). Election administration reform and state choice: Voter identification requirements and HAVA. Policy Studies Journal, 38(2), 281-302.

Hale, K., & Slaton, C. D. (2008). Building capacity in election administration: Local responses to complexity and interdependence. Public Administration Review, 68(5), 839-849,782.

Hawkins, E. (2008). Practitioner commentary: Observations on the changing job of the local election official. Public Administration Review, 68(5), 850.

Montjoy, R. S., & Chapin, D. M. (2005). The U.S. Election Assistance Commission: What role in the administration of elections? Publius, 35(4), 617-634.

-J


REFERENCES

Montjoy, R. S. (2008). Introduction to the PAR symposium on election administration. Public Administration Review, 68(5), 785-787,781.

Montjoy, R. S. (2008). The public administration of elections. Public Administration Review, 68(5), 788-799.

Montjoy, R. S. (2010). The changing nature . . . and costs . . . of election administration. Public Administration Review, 70(6), 867-875.

Moynihan, D. P. (2004). Building secure elections: E-voting, security, and systems theory. Public Administration Review, 64(5), 515-528.


REFERENCES

Moynihan, D. P., & Silva, C. L. (2005). What is the future of studying elections? Making the case for a new approach. Policy Studies Journal, 33(1), 31-36.

Moynihan, D. P., & Silva, C. L. (2008). The administrators of democracy: A research note on local election officials. Public Administration Review, 68(5), 816-827.

Wise, C. R. (2001). Election administration in crisis: An early look at lessons from Bush versus Gore. Public Administration Review, 61(2), 131-139.

Election Administration: Complexity and Reform Since 2000

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