Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Our election system is in scandalous shape — lost ballots, inadequate registration lists, malfunctioning machinery, and poorly trained officials. The kind of intense political battles we have seen recently have put more pressure on this creaky system than it can handle. In 2000, we almost couldn’t choose a president. In 2004, we were several thousand votes away from a similar disaster. Had just one of November’s close Senate races occurred in a state with the most serious problems, we still might not know who controls that chamber. Sadly, there is little hope of major reform anytime soon. Congress is not eager to intervene in this traditional area of local control — even in the wake of 2000, it could not pass anything but the toothless Help America Vote Act. Local officials have even less incentive to fix the system because voters tend not to see the costs associated with neglect; they have anecdotes but cannot grasp the broader pattern. As a result, localities are more likely to invest in projects that are visible to voters — such as new schools and more cops — than to upgrade our ramshackle balloting process. What we need is a new approach to electoral reform, one that turns the system’s biggest flaw into a crucial asset. Self-interested politicians are the main obstacle to reform in this country. Any reform should seek to harness the power of partisan competition rather than try to circumvent it. To fix elections, we must realign the interests of politicians with those of the voters. GUARDED BY FOXES Every other mature democracy relies on politically insulated bureaucrats to run its elections. In the United States, we depend on partisans, who have no vested interest in reforming our troubled electoral system. These politicians don’t want to give up one of their most important weapons: the ability to manipulate the rules to help their friends and hurt their enemies. The foxes are guarding the electoral henhouse. At the same time, grass-roots reform has failed to gain traction. Despite deep dissatisfaction among voters about the current state of affairs, bread-and-butter reforms — involving the details of counting ballots, jargon-filled evaluations of election machinery, nitty-gritty registration requirements — are so arcane that even political junkies can rarely stomach them. And when election problems do become visible, the fight between reformers and local officials quickly descends into debates that voters have no yardstick for judging. Who, after all, has strongly held intuitions about what kind of voting machine is better or how provisional ballots should be verified? What we need is a national ranking system for state election-law practices — call it a Democracy Index. This index should take what Ohio State University law professor Daniel Tokaji calls a “moneyball approach.” The word “moneyball,” of course, refers to Michael Lewis’ book of the same name about the success of the Oakland A’s after management substituted hard numbers and empirical research for the gut-level judgments of baseball scouts in making hiring decisions. Similarly, the Democracy Index could change the terms of the debate by giving voters something new: moneyball politics. It would offer cold, hard numbers and comparative data in place of atmospherics and anecdotes. It would provide bottom-line results in place of subjective judgments. It would let reformers talk like corporate executives, not starry-eyed idealists. And, most important, it would enable the voters to hold election officials accountable for their missteps. In the end, a ranking system would work for a simple reason: No one wants to be at the bottom of the list. DRIVEN BY DATA Right now, Americans lack the kind of concrete, comparative information that would tell them precisely what and where the electoral problems are. There is immense power associated with data-driven comparisons. Think, for instance, about the dramatic effect that the U.S. News & World Report rankings of colleges and graduate schools has had upon those institutions. Congress and the Bush administration have embraced the same idea with the No Child Left Behind Act, which generates report cards ranking each school’s performance on a variety of measures. It should be easier to devise objective measures for evaluating local election practices than for ranking educational quality. After all, voters know what they want — or, rather, what they don’t want. A ranking system could tell us, for instance, which states and localities discard the most ballots, which polling places have the longest lines, and where the greatest political or racial disparities in registration and turnout levels lie. Think about how different the debate on election reform would look under a moneyball lens. Rather than bogging down voters in the technical details of election administration, reformers could let the numbers speak for themselves. In place of debates about which machine is “better” or claims that a given state hasn’t done “enough” to measure up to some political ideal, we would know the results of each state’s choices: which state has the longest lines, which state discards the most ballots, and which state registers the fewest voters. Election administrators can talk all they want about what they have done. But they cannot get around the stark reality of a ranking: How is the system working? And why is the state next door doing so much better? Consider what occurred in Belgium after the Environmental Performance Index — a ranking system produced by the Yale Center for Environmental Law and Policy and Columbia University’s Center for International Earth Science Information Network — was first released. Belgian reformers had long tried to persuade legislators that the country’s environmental practices were subpar. But when the index actually showed Belgium well below its European counterparts, reformers had a rather large stick to beat legislators with. The party in power could not dispute the fact that Belgium was not keeping up with its peers on a wide range of measures. The Environmental Performance Index precipitated a modest political crisis in Belgium, and the result was genuine reform. PUSHED BY PARTISANS Many ranking systems, of course, are ignored, so why should we think the Democracy Index would succeed? After all, few of us worry as much about the performance of our polling place as we do about the success of our children’s school. But voters have a ready-made ally that cares deeply about this information: political parties, which can use it for their own advantage if they get the word out. Partisan politics provides a built-in publicity machine to make the Democracy Index work. The Democracy Index would create an incentive for politicians to do the right thing. Consider, for instance, the fate of Ohio’s secretary of state, Kenneth Blackwell, who presided over a 2004 election that was chaotic, error-laden, and tainted by claims of partisan bias. Last year, Blackwell ran for governor (and lost). But imagine what his opponent could have done with hard numbers proving that Ohio had one of the worst-run election systems in the country. Other top election officials, even those rare ones without further political ambitions, would surely remember that campaign. The Democracy Index would thus harness partisan competition — the primary obstacle to change — in the service of reform. For years, reformers have tried to get partisanship out of election administration. It is the right long-term goal, but history shows that we would need a crisis even bigger than the 2000 debacle to get there. In the meantime, the Democracy Index wouldn’t eliminate partisanship, but it would realign the interests of local officials with those of the voters. The raw materials for putting together the Democracy Index are starting to become available. The Election Assistance Commission, created by Congress to deal with the problems we saw in 2000, has been gathering data on election practices nationwide. Although the information so far is inadequate and sometimes unavailable — another reason for outrage — it represents a start. The Election Assistance Commission would also be the right kind of institution to put the index together. It is neutral — or at least bipartisan. Though it needs more money and staff to do a proper job, surely even members of Congress opposed to national reform could not object to a bit of sunshine. Without issuing a single regulation, the federal government could improve our democracy. Even with complete and trustworthy data, it would be impossible to build a perfect ranking system. People would inevitably disagree about which statistics matter and why. But that is precisely the kind of crucial discussion we are not having today. If the Democracy Index did nothing but jump-start an informed national conversation about electoral reform, it would be a major accomplishment. But it has the potential to do a good deal more.
Heather Gerken is a professor at Yale Law School, where she specializes in election law and constitutional law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.