Dogcatchers, Russians and Elections

In all the discussion of election hacking, foreign powers, critical infrastructure and the need to more effectively secure elections, there are several facts that need to be considered:
1) The Russians (or the Chinese for that matter) are only interested in affecting the outcomes of federal contests—President, Senator and Congress.
2) Foreign hackers don’t care about dogcatcher, school board member, city clerk, city council or county treasurer.
3) Elections for dogcatcher, et al, and President occur on the same day and on the same ballot using the same rules, laws and technology.
4) Elections for dogcatcher, et al, are conducted using 51+ different sets of rules and laws enacted by states, each of which has its own partisan composition, political history, and traditions.
5) Elections for President, Senators and Representatives are also conducted using 51+ different sets of rules and laws enacted by states, each of which has its own partisan composition, political history, and traditions.
6) Elections for dogcatcher, et al, are not vulnerable or at risk from foreign hackers.
7) Elections for President apparently are vulnerable.
8) Counties pay the cost of elections for President and Dogcatcher and make all the decisions on voting technology and how the election is conducted.
9) The federal government does not pay the cost of elections for President or Dogcatcher but still wants to make the decisions on voting technology and how the election is conducted.

wringinghands2Given these facts, there are several obvious and not so obvious courses of action to secure US elections:

Course of Action A: Wring hands. Americans have a long history of hand-wringing and inaction while contemplating solutions to difficult issues.

Course of Action B: Secure the dogcatcher vote from Russian hacking. If the threat of hacking is eliminated for America’s dogcatchers, we can be assured that the vote for President is just as secure and safe from hacking by Russians. The only trick is to get all 51 states to do everything as mandated by the feds while still picking up the cost of the election and dealing with the political and public blow-back which would result from the changes and the violation of long-standing and closely held history and traditions.

Course of Action C: Bifurcate the election of dogcatchers from the election of Presidents. Let the states and counties elect the dogcatchers, et al, in whatever manner they want since they make the rules and pay the bills. Move the election for President, Senator and Representative to another day to be securely conducted at federal expense under a single uniform set of laws, technology and procedures administered by a federal agency. Maybe the ballots could even be hand-counted on Election Night like our friends in Canada in this scenario.

Of these three options, only one is rational but that assures that it won’t be the one seriously considered and pursued.

The conversation has already focused on strategies for securing the vote of dogcatchers with little recognition of its futility and impracticality. The fiscal, legal, constitutional, technological and logistical challenges of securing our highly decentralized election system are monumental. And we haven’t even mentioned the fact that none of the self-anointed election experts agree on how it could be done., whether they be academic, activist, technologist, journalists, politicians, intelligence and security

The most likely outcome will be continued hand-wringing in the current fear-mongering, doubt-creating, hyper-partisan frenzy.

The Best Laid Ballot Plans Go Awry…

m650_1The California Presidential Primary Election is the most complicated election in a four year cycle and has to be among the most complicated in the nation. The ballot for this election features presidential candidates for six political parties.  Each party establishes their own rules and formats for their candidates.  This year, three of the parties have closed their primary which means that only voters already registered with the respective party may vote their candidates.  Three other parties have opened their presidential preference ballot to unaffiliated voters but have closed the election of their party officers.  The result is seven flavors of party ballots for each precinct in the county.

Because the regular Voter Nominated Primary (Top Two) is also on the same ballot for federal, state and county offices, there is also a non-partisan ballot. All voters, affiliated with a party or not, get to vote this portion of the ballot which gives us a total of eight flavors of ballot per precinct with a convoluted decision tree to decide who gets which ballot.  Typically the Top Two primary is straightforward to design and administer, unless there are 34 candidates and a write in for US Senator.  More about that later.

Because a presidential primary is always the most complicated election and the hardest to explain to voters, we spent months developing a plan for both the official ballot and the voter guide to facilitate voter education. Weeks before the candidate filing period ended we had developed and tested mock ups of the ballots and our voter guide.  We accommodated all the variables and constraints of outdated and meaningless formatting, mandatory language, and font size and face requirements in the Election Code and were satisfied that we had everything covered.

We have actively followed and engaged with the President’s Commission for Election Administration (PCEA), and the Center for Design and we tried to adopt their recommendations. We have embraced plain language practices and have considered and adopted many suggestions from language minority groups, from accessibility advocates and from election reform do-gooder organizations of all stripes.

Our designs were the easiest to read and understand, our instructions were as simple and clear as possible, each voter’s ballot was to have offices appear in the same location, and the risk of voter confusion and error would be minimized. As a bonus, our design would save printing and postage costs (for us and the voter) while also reducing the time required to tabulate the voted ballots.

At the last minute, all our work was blown to hell. We now are reduced to a ballot design which is hardly adequate for our needs and the needs of our voters.  The inferior design is driven by a sequence of events entirely outside our control.  The 34 candidates for US Senate triggered a domino effect.  Inflexible, mandated and redundant primary instructions constituted the second domino.  Top down, arbitrary and micromanaging office sequences were the third domino.  The next domino was the 1960s voting system software and hardware which is limited to logic and processing speed only slightly more capable and sophisticated than an abacus.  The next largest domino is the federal and state voting system certification regime that prohibits even the most rudimentary and common sense solutions to programming and database problems which could be fixed by today’s average middle schooler or a free mobile database app.  The final and fatal domino is the reality that there are no better solutions for inadequate voting systems for California for 3-6 years at a minimum.  And then the choices will probably be between various versions of 1990 technology.

The field does not to appear to have learned much since the 200 Presidential election. Despite the recurring cries from commissions, foundations, attorneys, advocates, scholars, think tanks and the public for fixing the things that are wrong with our elections, for making things simpler and less complex, for increasing engagement and participation, for removing barriers and for creating more confidence in our elections; election administration is being smothered by the status quo.

The accretion of outdated and conflicting laws, rules and regulations usually devised by legislators for their own political gain has stressed the system to a near breaking point.  The energetic and blind administration and selective enforcement of purposeless, contradictory laws and regulations actively undermines the integrity of elections.  The inertia of “the way we have always done it” or to choose the most onerous of conflicting statutes is thwarting meaningful reform. The absence of courage to do “what is right” when “what is right” is unpopular or new guarantees election administration to perpetual stasis in an unhealthy state.  In short, election administration is suffering from self-interest, abuse and neglect.

Generally I have been optimistic and have embraced progressive election reforms but I am increasingly concerned that, in the current state of affairs, talk of reform and improvement is only happy talk and wishful thinking. The mass of the whole system may be so weighty as to make it impervious to a paradigm change even by the most intelligent, committed and determined reformers.

But that won’t prevent me, and others, from continuing to tilt at windmills.

Carry on.

 

The ElectionGuru Reviews 2013

Guru?  Really?

Guru? Really?

This is the time of the year that many look back over the past year and assess the significance of recent history.  These retrospectives can be helpful in situating ourselves as we enter a new year and can serve as a basis of future improvement.  I thought I would offer my own review of the last year in the field of elections.

Beginning on personal notes—it was nearly a year ago that I launched this blog.  My posts have been read by thousands of people around the world (nearly 20% are readers outside the US) and have occasionally triggered interesting conversations about the administration of elections.  Through this blog I have met many new colleagues and have renewed relationships with others.  My posts have been personally cathartic and have hopefully added to the knowledge base and conversations about election administration in both “theory and praxis.”

Further the year has brought a personal “return to the trenches” of election administration from the halls and towers of academia.  Ironically this change has confirmed to me the uneasy (maybe even incompatible) relationship between administration and academia on practical, cultural and professional levels.   Practitioners seem to lose standing with academic colleagues while fellow election officials grant little credibility to theoretical and scientific approaches to public/election administration.  Nonetheless, I and this blog, have a firmly planted foot in each camp and will continue to attempt to frame issues and topics in a way to foster common understanding and collaboration.

I hoped to trigger many conversations with this blog.  While the exchanges and discussions we have had have been thoughtful and interesting, I hope for more meaningful discussions in 2014.  Please share your ideas and responses to the ideas in this blog with all the readers.  Many readers have shared or retweeted this blog.  Please pass on the ideas, posts and links to those who study, administer, report on or have an interest in elections.

We lost a giant in the field of elections administration with the passing of Dick Smolka in 2013.  Dick and his ”Election Administration Report” were not only icons, Dick was a friend, mentor and role model for generations of us in the field of elections.

2013 saw the end of more than a decade of Doug Chapin’s Electionline and ElectionWeekly which has left a huge void in the daily routine, socialization and education election geeks around the country.  Doug’s Election Academy Blog, Brian Newby’s Election Diary, Rick Hasen’s Election Law Blog, NCSL’s Canvass newsletter and this Election Guru blog are the new on-line gathering places.

The President appointed another commission to examine the administration of elections and make recommendations.  The Commission has completed its hearings and information collection and we are awaiting its report.  The Election Assistance Commission’s future is uncertain and the organization is still rudderless without Commissioners or an Executive Director.

There has been no significant change in federally certified voting technologies or products.  Aging HAVA era voting systems remain the most viable systems going into the 2016 Presidential election cycle.  California passed SB 360 which changes the requirement for federal certification, streamlines the state process for certifying voting systems and offers the possibility of new development and business models to get system to the market and in use.  Time will tell.

The SCOTUS gave us two major election related decisions in 2013, both of which leave doors open for new issues and legal challenges.  In Shelby County v. Holder, the Court struck down Section V of the Voting Rights Act but left Section IV intact.  The decision did not remove the authority of the DOJ to enforce provisions of the VRA but merely removed the requirement for pre-clearance.  In Arizona et al. v. Intertribal Council of Arizona, the decision to strike down the Arizona requirement for proof of citizenship at the time of registration was less a decision than a punt.  The Court found that as the proof of citizenship provisions were not on the prescribed federal registration form, the state could not require the information if the registration was to be used for the voter rolls in a federal election.  The decision offered no opinion on the constitutionality of the proof of citizenship requirement and opened the door to dual (federal and state) registration rolls.

Several states, Florida, North Carolina and Kansas and others, continued to pass restrictive election laws on the pretext of preventing fraud even though there is no evidence of the type of fraud the measures could detect and prevent.

Internet voting in the US is still stuck in 1999 (and is likely to stay there for another generation) despite the efforts of FVAP to facilitate electronic delivery (and return) of ballots and election information to service members deployed abroad.

On a positive note- a generation of young, smart and action-oriented election officials is entering the field.  This generation is well exemplified by Kammi Foote, the Clerk, Recorder, Registrar of Inyo County, CA, who recently organized an international panel of scholars, administrators, technologist, vendors and activists to discuss the future of voting technologies.  It will take a generational change led by people like Kammi to find solutions for today’s most insoluble issues in the field of elections.

While much has happened in 2013, in the end, little if anything has really changed.  That shouldn’t be hard to improve upon.

Stay tuned

Adaptation and the “Shrek Effect” in Elections

Shrek

As is usually the case, the period of calm that follows a Presidential election is more an illusion than a reality.  This year, the peace is probably more illusory than most off-years:

    • Legislatures are in session passing laws to fix last year’s problems, real and perceived.  This is the time-honored ritual of closing the barn door after the horses have escaped.
    • The President is forming a new commission to study and propose new election reforms and has pledged to fix the problem of voters waiting in line to vote on Election day.
    • The President has also proposed increasing the federal minimum wage to $9.00 an hour (Brian Newby explains why this is an election issue).
    • The Post Office, a long-time partner with election administrators, is reducing service and forcing administrators to examine its impact on postmark and ballot receipt requirements.
    • Administrators, both state and local, have received their “report card” in the form of the recently published PEW Election Performance Index and are in the process of deciding how to or if they should respond to this and future studies.

The reflection and discussion that these activities bring to the profession are essential and are part of a healthy post-action, post-election review that characterizes effective management practices.  Unfortunately, much of the value of these exercises escapes our grasp.  Over the period of nearly 20 years in elections I have observed a pattern among administrators, legislatures, scholars and activists that accumulates “best” practices, new policies, laws, regulations, studies and reforms and overlays them onto their existing counterparts every year.

This practice is like a dripping faucet that keeps accreting minerals onto surfaces that eventually become lime and scale deposits which constrict and shut off the flow of water (at worst) or deface and mar the visible appearance of the sink (at best).   While this is an apt visual metaphor, I prefer to call this the “Shrek Effect.”

In the original Shrek movie while the talking Donkey and Shrek, the Ogre, were getting to know each other, the Ogre claimed a complex personality and character.  Donkey, in a flash of understanding, exclaimed “like a parfait!!  You have multiple layers!!”  Shrek agreed, but not willing to accept such a sweet comparison, said “…more like an onion.  I have layers like an onion.”

The “Shrek Effect” is illustrated by problem-solving processes which fail to diagnose the real issues creating the problem.  “Shrek Effect” solutions attack the visible symptoms of issues while leaving the root causes invisible and undisturbed.  The “Shrek Effect” demands immediate and urgent action in the form of visible technical solutions– “If we only did this…”

“Shrek Effect-ed” management relies on borrowing solutions from others– solutions which make some anonymous and dubious claim to being “best practices.”  The result of the “Shrek Effect-ed” processes is the continued layering of the parfait (policy on top of policy).  The result is new layers on the onion (new laws on top of unrepealled old laws).  The result is the relentless mineral accretion of the drip, drip, drip of the faucet (new reforms reforming prior reforms).

The alternative to the “Shrek Effect” is an adaptive approach which conceives of election laws and administration as a system.  It is a problem solving approach which insists on taking the time to diagnose the real problem(s) and which is willing to resist the temptation to act for the sake of action.

It is an approach which critically identifies and considers assumptions underlying both the existing practices and the proposed solutions.  It is an approach that develops and assesses multiple solutions before committing to a course of action.  It is an approach that is willing to get rid of unneeded clutter and noise –to perform housekeeping on the existing inventory of policies, practices and canons of law.  It is an iterative approach which is constantly evaluating effects and outcomes and which makes adjustments on an on-going basis.

Adaptive leadership and management techniques are proven to be effective but they are not part of our public/election administration education, training and culture.   Adaptive leadership and management requires more patience, more self-reflection, and more courage than the muddling style of so many administrators and scholars.

As the profession participates, navigates, and deliberates in the forums and venues of 2013, situations will arise in which administrators, scholars and politicians can mitigate the “Shrek Effect” and foster adaptive solutions.  To do otherwise invokes the plot of another well-known movie- Bill Murray’s “Groundhog Day.”

Note: For more information regarding Adaptive Leadership, see The Practice of Adaptive Leadership and the Kansas Leadership Center.

Stay Tuned.

Federalism, Reform and the State Election Paradigm

federalism mapSeveral years ago in an interview with the original Commissioners of the US Election Assistance Commission, I made the assertion that there is no such thing as a “federal election.”  After a few moments of stunned silence, Buster Soares, the Chair of the Commission, asked me to explain what I meant- which I did.  Later in the interview, he again returned to my assertion and asked what the implications were to my argument.

I have been reminded of this exchange by the recent discussion of federal actions to address the perceived election issues from the past 2012 election.  The role of the federal government in election reform has always been contentious.  The reason for controversy lies in the evolution of the popular view of our federal form of government.  Americans today see the United States as a single nation, a unitary actor, which is (or should be) governed by a leader popularly elected by all the citizens of the nation.

When inconsistencies between laws, practices and systems between states and local jurisdictions are revealed during an election, the public perceives sloppiness, mismanagement and even malfeasance.  The Electoral College notwithstanding, shouldn’t all Americans have an equal opportunity to elect their President?  Obviously, the solution is for Congress, the President or the courts to mandate technical and uniform standards for federal elections so that everyone elects the President the same way.

A person in Florida shouldn’t have to wait in line to vote any longer than a person in Kansas, right?  Why should a voter in Oregon be forced to vote by mail when in Nevada a voter can vote early at lunchtime at their workplace or when a voter in Virginia must appear in person at the polls to vote?  Why should a provisional ballot cast in Washington State be counted when the provisional ballot of a voter from Ohio in the same circumstance is not counted?  Why should a voter in Arizona be compelled to produce valid photo identification to vote and another voter in California be allowed to vote without identification?  Why should counties in Utah audit their electronic voting machines using a paper audit trail and counties in Georgia, using the same voting system, not be required to create a paper record of votes?  These questions only have relevance when there is an assumption of a “federal election”, a national election conducted on a common date.

My answer to the Commissioners was that, in reality, there are 50+ state elections conducted on the same day but using different laws and regulations for federal, state and local offices.  Our system of federalism, rather than a national form of government (or as Madison describes it in Federalist 51- our compound republic), intentionally diffuses power between states and the federal government and establishes an elaborate system of checking and balancing power.  The methods of electing persons to federal office (House, Senate and President) in the Constitution were created to be part of the balancing mechanisms.  The Federalists, in advocating for ratification, argued that the Constitution did not create a national government but a federation of sovereign states who would elect and send their representatives to the federal Congress.

To balance against the whims of public opinion and to minimize the framers’ fear of a fickle and uniformed popular vote, the Constitution specified that only members of the House of Representatives could be elected by a vote of the people.  Senators would be indirectly elected by the state legislatures and the President, even more indirectly, by the Electoral College whose delegates would be appointed or elected by the states.  The 17th Amendment changed the method of electing Senators by permitting their direct election by the voters of each state.  We can see then, that those that hold federal office, including the President, are elected at the state and not federal level as specified by the Constitution.

The constitution is otherwise silent on the laws, regulations and procedures for conducting elections thereby delegating responsibility for elections to the states (at least not claiming it for itself).  The 10th Amendment reinforces the authority of the states to conduct elections as they will.

There is a conflict between the 21st century expectations of American voters and elected leaders and the federalism’s Constitutional paradigm.  Rather than acknowledging and addressing the conflict, the public, pundits, and media call for solutions to which those in authority are happy to respond.  Tiptoeing carefully around Constitutional concerns, the 2002 Help America Vote Act (HAVA) “mandated” voting system reforms by footing the bill for voluntary compliance and by creating the ever oxymoronic federal “Voluntary Voting System Standards.”  Further, HAVA ordered the states to develop provisional voting, voter intent and voter registration reforms but was silent on the substance of the reforms deferring instead to the states to implement them as they saw fit.  The unintended, but not unexpected, outcome of imposing solutions without addressing the paradigmatic conflicts is a crazy quilt of conflicting legislation, practices and case law.

One of the reasons states resist federal solutions for electing federal officers, besides the issues of federalism, is the concurrent election of a myriad of state and local officials on the same ballot as the federal offices.  Any changes targeted to federal offices have an usually undesirable ripple effect to state and local offices.  States compound the problem by loading up the even year ballot with as many offices and ballot measures as possible to get economies of scale and cost savings.  As a Registrar of Voters in California, I received scores of petitions from local governments to change their election cycle from odd to even years for the sole purpose of reducing election costs.  The result is extremely long, complex and cumbersome ballots that feature federal offices as well as every minor local office.

The point of this diatribe is to propose that further federal reforms not be hastily considered and added to the often contradictory and ambiguous existing canon of election law.  Additionally, it is time to acknowledge the elephant in the room which represents the conflict between modern expectations of elections and federalism.  It is time to discuss solutions which bridge this paradigmatic divide.  It is time to identify and discuss strategies for bifurcating state and federal elections.  For example, how could elections for federal office be conducted on a different day than state elections?  If elections were on different days, could there be a uniform set of federal rules for federal offices?  Could elections for federal office be conducted by federal authority?

The answers to these questions have the potential of addressing and resolving all the issues of voter equity raised earlier.  Doing more of the same type of federal election reform as the past will only add new patterns to the crazy quilt of election laws and practices without realizing the intended results of the reforms.

Federal Election Reform and the EAC, a case of “Ready! FIRE! Aim!”?

All indications are, a decade after the passage of the Help America Vote Act (HAVA), the federal government is again seriously ready to tackle election reform.  Clearly the President has reform on his agenda based upon his remarks in his Inaugural Speech when he said, “…our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.”  In Congress, a half dozen election reform bills have already been filed.   The Nation reports that democratic leadership has made election reform a legislative priority in both the House and Senate.  After years of election legislation at the state level, which notably has given us Voter ID and stricter voter registration regulations, the feds appear ready to weigh in.

Without offering an opinion on the substance of any of the proposed legislation, it seems to me there is something out of sequence in the process.  Congress, through HAVA, created the US Election Assistance Commission (EAC) as a federal agency to address on-going election issues in the wake of the 2000 election.  Congress was hesitant to grant much responsibility to the new agency thus contributing to the Agency falling short of its promise and potential.   For more than a year now, the agency has been languishing with severe budget cuts, without any Commissioners or Executive Director and has not taken any substantive actions.

HAVA limited the role of the EAC to dispersing and accounting for federal funds for new voting technology, setting voting system technical standards, selectively granting research funds for a limited set of election topics and acting as an information clearinghouse.  HAVA funds have been distributed, spent and audited, although the success of the programs is uncertain.  The EAC has created a voting technology bottleneck by failing to issue standards in a timely manner and by encumbering an already lengthy voting system certification program.  Many EAC funded research projects have not been released because of partisan squabbling over the findings.

The original Commissioners took a timid approach and permitted the culture and personalities of the national elections community in its hiring decisions and in the way it chose to fulfill its charter.  The record of the EAC has been disappointing to supporters and critics of the agency alike.

Nevertheless, it seems reasonable to me, as Ready! AIM! Fire! implies, that Congress and the Administration should look to reforming, re-chartering and re-staffing the EAC as the first step in any federal election reform.  As election reform has proven to be an important and persistent national issue, it makes sense to grant broader authority to the EAC rather than disband it as has been repeatedly proposed.

The EAC is not the authoritative voice representing the functions of and policies for conducting elections in the US.  Imagine if Congress consulted with all 50 states and their National Guard bureaus and professional organizations as the primary source of input and expertise into decisions regarding national defense rather than the federal Department of Defense.   Presently, consulting with the states and professional associations is what Congress does for federal election reform.

It seems reasonable that Congress would look to reforming and re-chartering the EAC to be the authoritative source of input for Congress, regarding election reform.  To do otherwise, would be short sighted and nonsensically juxtapose the well known military command “Ready! FIRE! Aim!”

Stay tuned

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