This morning, Doug Chapin blogged on the recent decision of the U.S. Court of Appeals for the Third Circuit, based in Philadelphia, in its opinion PG Publishing Company, Inc. v. Aichele. The case involves media access to polling places on Election day to report on the implementation of the state’s new and controversial voter ID requirement. Election officials blocked access to polling places to reporters from the Pittsburgh Post-Gazette. Pennsylvania law contains limitations of who may be in the polling place on Election day and the media is not one of those granted access in the statute. In the decision, the court ruled that the media had no special right which would grant them access to the polling place. (for a more complete summary and analysis of the case, please refer to Doug’s Election Academy blog.)
I mention this case because it represents an example of the type of ambiguity that is often inadvertently and unnecessarily introduced into election administration. My “No Chads” definition of a “good” election argues that anything that adds ambiguity to an election undermines the credibility and “goodness” of an election.
Pennsylvania election officials were on sound legal footing when they made the decision to use the statute to ban the press from the polls. An argument could also be made (and I am sure it was) that it made good administrative sense to limit the potential disruption of the polls by banning the press.
So then, what is the problem and where is the ambiguity? Election administrators understand that election statutes can be interpreted literally, permissively, restrictively or ignored altogether. (One would be surprised how many outdated or contradictory code sections exist in every state’s election law which are ignored out of necessity.) The need to interpret statutes based upon the facts of a given situation is an implicit, and sometimes explicit, expectation in the code and of a legislature’s intent. Election administrators are granted a great deal of discretion in how they apply and implement the law. Administrators often deny or are reluctant to acknowledge the degree of discretion they actually have preferring instead to defend their policies by claiming the ministerial nature of their jobs. Put bluntly, we, as election administrators, often can and do hide behind statutes to defend our policy decisions rather than defend the policies on their merits.
There is a large body of political science and public administration literature that studies the different administrative frameworks and the role that discretion plays in elected and non-elected administrators performing the people’s business. The classic example that analyzes the surprisingly broad discretion of public officials is Lipsky’s well-studied “Street-Level Bureaucracy.” (Lipsky 1980) This scholarly understanding is sometimes at odds with the way administrators describe the way they perform their duties. It is widely accepted among political scientists that discretion plays a large role in decision making by administrators which makes the question not “Do administrators have discretion?” but “How should administrators use the discretion they have?” This latter question has been taken up as an ethical question for public servants by John Rohr. (Rohr 1998) The ethics in the use of discretion will be taken up in a future post.
Voting is one of the archetypical communitarian rituals and practices that exist today in American society. Across the broad nation, in multiple time zones, and on the same day of each even-numbered year; Americans trek to their local polling place to record their voice and fulfill their obligation to participate in governing the republic. There is hardly a more public event and rite in our society (except maybe the Super Bowl?) Because of the implications of an election for each citizen and for the republic, citizens want to know, and have a right to know, that the election was properly conducted. The “Help America Vote Act” (HAVA) and the unprecedented activism, on the right and on the left, surrounding elections since 2000 are evidence enough of the universal desire to have confidence and transparency in our electoral processes.
The stated purpose of the voter identification requirement was to foster confidence that votes were being cast only by eligible voters and to prevent fraud. There has been widespread concern that, while the requirement may prevent fraud, that it will also prevent eligible voters from exercising their franchise. Each of these closely held perspectives is legitimate even though each represents a competing priority and objective. The best resolution, from my experience, for such a situation is transparency. In the absence of transparency, each faction is free to let their imaginations and conspiratorial theories run unrestrained by facts and reality. Competing realities are the essence of ambiguity. Transparency is a cure for ambiguity. When competing groups both see the same reality at the same time ambiguity is eliminated. When one side is denied access, suspicion, doubt and mistrust are the inevitable consequence.
The press (and media generally) has always been the “eyes and ears” of the American public even though, throughout our history, its objectivity and veracity is fairly questioned. It would not be possible for all of us to linger and observe voting at our polling place to satisfy our need to be confident in the election. Even if we could, our observations would be limited to a single location. We rely on the media, with all their shortcomings, to make and report the observations on our behalf. The press is our only practical window and portal for transparency.
I am not questioning why election officials in Pennsylvania used their discretion in interpreting the law to prevent the press from observing the polling places on Election day. The point I hope to make is that lawful, justifiable and reasonable policy decisions made with the discretion enjoyed by administrators have consequences which can either enhance or undermine the “goodness” of an election. Simply avoiding bad press, embarrassing disclosures or poll worker error does not make a “good” election. This point is important for election officials to consider as they plan and administer elections. The use of discretion by officials and its resulting transparency or ambiguity is the take away point for scholars and others seeking a metric for evaluating the “goodness” of elections.
Lipsky, Michael. Stree-level Bureaucracy: Dilemma of the Individual in Public Services. New York: Russel Sage Foundation, 1980.
Rohr, John A. Public Service, Ethics and Constitutional Practice. Lawrence, KS: University Press of Kansas, 1998.