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 Voter Engagement “Two-Step”

texas-two-step-dance

Voter turnout has been on the decline in many jurisdictions for years. California’s turnout in the Gubernatorial election of 2014 was a measly 42%. In the Los Angeles City election held in spring 2015, the turnout was a paltry 11%. Pundits, interest groups and elected officials perceive this decline as a crisis- a problem to be solved immediately. Whether a crisis or not, the trend is disturbing and dispiriting for those who administer elections.

Shaming the populace for its lack of participation is often a thread in media coverage, blogs and social media. The implication is that those who don’t vote lack some moral or ethical quality that should be inherent in all good Americans. Interest groups blame barriers, real or imagined, for the lack of participation of their constituencies. Those who appear on the ballots blame the system as they can’t imagine that voters could really be that apathetic about their ideas or them personally. Some of these propose structural changes which will place contests that generate little interest in their own right onto ballots which attract a higher rate of participation. Such solutions are like rearranging the chairs on the deck of a sinking ship– it looks good but doesn’t solve the problem. And candidly, there are many who are just fine with low participation rates as any increase would be, by definition, by uninformed or ill-informed voters.

While there may be a grain of truth in each of these points of view, none of them frame the issue in a manner which reveals an effective solution. The solutions proposed by each are different versions of doing more of the same thing that is already being done—that is– registering voters. Automatic registration, aggressive enforcement of mandated agency based registrations, registration drives, multi-lingual forms, and on-line voter registration applications are great solutions to the issue of getting voters registered. Unfortunately, these activities which suck up almost all the attention and resources directed at improving turnout do not directly engage voters in participating in the act of voting on Election Day.

Participation and engagement in elections in the US is a two-step process: registration then voting. While we measure the rates for each activity, we ultimately judge ourselves by voter turnout. In California, there is not much more to be done in facilitating voter registration other than sustaining the current efforts.

So what about getting voters to the polls to vote? Surveys continually ask voters why they didn’t vote and common answers include- “it was too hard or inconvenient”, or “I didn’t know where to go”, or some other excuse involving something outside of their own control. With no-excuse vote-by-mail, and in some areas, early voting, “hard and inconvenient” is not a credible response. In a land where not voting is considered by some to be a moral defect, it’s reasonable that many would make this kind of excuse. Mailed notifications of assigned polling locations and the internet with its widespread polling place look up tools make ignorance of where to vote another suspect response to the question.

Responses like: “my vote won’t matter anyway” or “they are all lying/they are all the same” or “none of them represent my views” or “the campaigns were too negative” or “it’s all about money” are closer to the real reasons people don’t vote. Rather than being victims, as suggested by the previous responses, these responses indicate that voters who don’t vote may be doing so out of some type of rational decision making process. These reasons for not voting are out of the direct control of election administrators and point to the need for political solutions and reforms rather than administrative fixes.

Serious efforts to improve voter turnout and engagement must also focus and dedicate resources to the second part of the two-step dance- turning out the voter to the polls. The administrative actions of election officials can directly enhance or suppress the effectiveness of voter registration activities but there are no administrative actions which can address the rational reasons voters stay away from the polls.

Doubling down on registration activities, to include registering younger and younger voters, is not the solution. Changing election dates to game the numbers is form without substance. Making voting more convenient is hardly possible if voters choose not to vote. To those proposing solutions: any real solution to the problem of voter turnout needs to take on the thorny political issues underlying the “my vote won’t matter anyway” or “they are all lying/they are all the same” or “none of them represent my views” or “the campaigns were too negative” or “it’s all about money” responses. The right solutions will give voters reasons to vote– by their own choice.

Stay tuned.

Inside or Outside the Box?

Several times during the election conference I am attending, I have heard the expression “outside the box.” To no one’s surprise, many (but not all) of these comments were directed at me and many of the ideas I have expressed in this blog. Like much jargon, overuse has changed the original meaning of the term. Originally, the term was positive and conveyed innovation. The tone and meaning of this week ‘s comments ranged from “I never thought of it that way before” and “Dude, you are waaay out there.” The latter implying that being “outside the box” is a negative and unsafe place to be. These polar opposite normative takes on the expression appear to echo the attitudes the speakers hold on change (see my previous post “Faster Horses and Election Administration“.)

It occurs to me that those who see being outside the box as dangerous may be drawing the box too small. There is a perception that external constraints, i.e. legislation, regulations, traditions, past practices and fear, compress the size of the “box.” The smaller box is drawn by segments of a wide and varied cast- administrators, legislators, vendors, academics, advocacy groups, and of the political class.

Yesterday a direct question about these kinds of constraints was posed to me and here is my response:

“Election Administration is always performed in the context of statutory and regulatory constraints. Effective administration is able to manage and succeed within any framework. In CA at the moment the statutory and regulatory framework is difficult and arguably overly complicates administration generally and HAVA implementation specifically. Having said that, my position is that these constraints should not be used as an excuse. My past and present experience confirms generous areas in which administrators can and should be using their knowledge, expertise, judgement and discretion to reform or create more effective practices to manage within safely within existing laws and limits. Certainly, administrators acting collectively and collaboratively can influence the changes and reforms to these constraints more effectively than actions by single counties/voices. Unfortunately, administrators tend to be focused on preserving the status quo rather than creating and embracing a vision of what could/should be in a set of future laws and regulations.”

As I penned this response it occurred to me that there is often more room in the “box” than what we see and use. In fact, thinking is seldom truly “outside the box.” The “boxes” we operate in as we administer elections is really a very large “box.” When we realize this and draw the “box” larger, it is much safer to consider new, unconventional and innovative ideas.

To improve the practices and administration of elections, to find solutions to complex issues, to successfully collaborate, share and innovate, we should recognize that our “box” is large and that the constraints of a “box” are largely self-imposed.

Thinking Like Its 1999

imageEach January election officials from across the country as well as many others from government and industry gather in what is called the “Joint Election Official Legislative Committee.” As the name implies, the focus is legislation and developments at the federal level that impact election practices at the local level. Of all the professional meetings held throughout the year by the election profession, this is the most substantive and useful. The networking which occurs among officials from across the country and with others with election related interests is one of the great benefits of the meetings. Despite differing structures, laws, terminologies and sensitivities, the issues and challenges faced by election officials are very similar if not identical.

Typically the topics discussed are voting systems, money and resources, technology, postal regulations, civil rights enforcement, census as well as any proposed legislation. During the first session, attendees are asked what issues are of particular interests for discussion during the multi-day conference. In this morning’s meeting, the issues were not solely the typical reiteration of the usual topics but no clear theme emerged until, Alysoun McLaughlin, the Deputy Director of Elections in Montgomery County, MD, articulated one.
She proposed that we discuss internal processes for effectively managing technology and election processes instead of merely its acquisition. That theme was picked up and added to as others cited her recent piece which was reposted by Doug Chapin and spoke to the need of using language and terminology that is meaningful for those observing the elections process.

This theme echoes much of what I have been proposing in this blog- there is a need for the profession to focus on management skills and professional practices -themes which appeal to some but not to many in the profession. Technical subjects- voting machines, pollworkers, lawsuits, budgets, registration- dominate our discussions while “soft” subjects- leadership, management, performance management, staff development, etc are seldom addressed.

What is the discussion to address the issues Alysoun has raised? Individual voices calling for the introduction of “soft” practices such as Lean quality management practices and administrative reforms are like voices in the wilderness. How can the profession embrace a culture of continuous improvement? How can we leave behind the critical issues of 1999 and more effectively address the issues of 2013?

I am increasingly beginning to believe that those of us who have been in the profession for years and the institutions we have created (and lead) are not best situated or equipped to address 21st century election administration issues. It is promising to see the post-boomer generation move into leadership roles, create new institutions and ask the questions that haven’t been asked nearly enough.

Stay tuned.

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

Hiding Behind the Words

Zebra_in_black_and_white There is comfort in seeing the world as black and white.  When the duties of election administrators require decisions, solutions which are black or white are highly preferred.  Shades of gray, interpretation of rules and codes, and the use of discretion are fatuously avoided.  No administrator wants to take unnecessary risk or to explain and justify a decision.  Bureaucrats and administrators carefully seek out simplistic and unambiguous responses from statutes, procedures, precedents, and even the practices of others.

A fundamental premise of this decision making style is that the right answer can be found in rules and statutes and, further, when an answer is found in the rules (or in past practices or best practices), it is, by definition, the right answer.   The right answer is the answer that stands on its own without the decision maker having to accept any responsibility for the answer, i.e. the codes says…”, past practice is…”, other jurisdictions do…”, etc..  The ability to insulate oneself from the consequences or criticism of a decision is not the sole advantage, however, in the minds of those who employ this approach.

There is a normative mindset inherent in those who demand black and white and eschew shades of grey which condemns the interpretation and application of rules and laws.  This approach condemns permissive interpretations and liberal construction of the election code, even when the code provides a range of solutions or directs the application of judgment based upon facts for specific cases.  In this framework, there is no discretion and interpretation is always wrong.  Those who maintain this approach see not only the decisions based upon interpretation and discretion as wrong but also see those who would interpret and use discretion as being corrupt and unethical.

The presumed moral superiority of those who read rules and laws restrictively and who assume to correctness and rightness of pat answers is based upon a false sense of neutrality that such an approach provides.  This view is steeped in the tradition of the politics-administration dichotomy which dominated late 19th and early 20th century public administration theory.  Political leaders made the rules and laws based upon a mandate received by the electorate and the role of the virtuous administrator was to faithfully, and with neutrality, implement the will of legislators.  This theory assumes that all situations can be/should be/are addressed in legislation and that the legislators have the expertise to provide technical solutions to complex questions.  Scholars, ethicists, legislators and administrators have all recognized practical and theoretical limitations of governing in this manner but the mindset persists in many current administrators.  It is these administrators who I refer to as bureaucrats.

Bureaucrats do not seem to realize that, in an attempt to avoid errors of discretion and interpretation, they themselves make their own interpretations and use their own discretion.  They use to use choose restrictive and literal interpretations regs, rules and laws even when these decisions are not consistent with facts or with other sections of code. 

There are two important points I am trying to make in this post.  First, a literal, restrictive, black and white reading of governing documents for decision and policy making is equally, although unconsciously, interpretive and discretionary as the approaches of deliberate interpretation and the conscious use of administrative discretion.  There is no legal, ethical or moral high ground to be gained by appeals to literal readings when there is space for interpretation.  In fact, the opposite may be true. 

Let me refer to a recent discussion regarding the mailing of information to voters pertaining to a specific election.  The Election code directs administrators to mail the material to voters as early as 40 days prior to the election.  At the time the code was written, the deadline for registering was 29 days prior to the election and there is a provision in the code that indicates that voter information should be sent to everyone registered 29 days prior to the election.  Since that time, the registration deadline has been moved to 15 days prior to the election but the practice of cutting off mailing voter information at 29 days continues in many places.  When I asked why people who register between the 15th and 29th day dont get voter information, I was told that the 29 day cut-off was interpreted to prohibit sending voter information even when new voters were legitimately registered and there were adequate time and resources to do the mailing.  The suggestion of mailing to these voters was perceived to be provocative and subversive, not to mention reckless.

To be clear on the matter, the code did not direct nor did it prohibit mailing information after 29 days.  It was simply interpreted to mean that registrants after 29 days would not be mailed the same information that other voters received.  At some point in time the 29 day cut off made sense but over time, as other laws changed and printing and mailing technologies evolved, the interpretation somehow evolved to a prohibition on mailing to these voters.  When I challenged this interpretation by asking why it was good service and good policy to withhold the mailing, the answer was predictable– “the code says…”  When I pointed out that it was actually cheaper to do the mailing after 15 days, it reduced returned mail, and it was a greater service to voters; I received a slightly different yet obstinate response-“the code doesn’t say we can….”

My second point is that hiding behind a literal or black and white interpretation sets up intransigent and counter-intuitive policy positions that serve no public interest and often result in high visibility lawsuits which are costly and undermine confidence in our institutions.  There are many notable examples: the 2004 San Diego County case in which clearly legible write-in votes were not counted, reversing the apparent outcome of the election, because the write-in votes were not machine readable (the bubble was not filled in) but were clearly human readable;  the 2009 Hamilton County, Ohio case in which provisional ballots were not counted because the ballot was cast at the right polling place but the wrong precinct ballot was used (even though the ballot contents were identical); and the 2012 Allegheny County, PA case in which reporters were banned from entering a polling place and reporting on voting on Election Day.  The list could go on and on.

Good elections are based upon good decisions- not bureaucratic decisions.  Good decisions are based upon an ethic that seeks the protection of constitutional principles, individual rights, and the respect for the rule of law. 

Stay tuned.