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.

Management by the Lowest Common Denominator

Management by the Lowest Common Denominator (LCD) is a prevalent although inefficient management style in the public sector and one which characterizes the field of election administration. This style of leadership is based on a negative view of people and human nature and is intended to hedge against this nature.  In the field of elections, this is idea is expressed in such terms as:  voters are dumb, poll workers always screw up, temp workers are lazy, observers always cause problems and so on.

Management by LCD explicitly recognizes that mistakes will be made and some individuals can’t be counted on to do what they are asked.  It is true in most organizations that errors are made, misunderstandings occur, some things which should happen don’t get done, and some things that shouldn’t happen occur anyway.  Because these types of things could occur, management by LCD acts as if they must happen.  Because some people will make mistakes or not understand simple instructions, everyone is treated as if they are screw ups and dummies.  This is the idea of the Lowest Common Denominator in action.

In response, rules, policies, decisions, and procedures are developed in anticipation of the actions of the LCD.  This response inevitably leads to repetitive, overly prescriptive and micro-management tactics.  Management by LCD attempts to anticipate every situation and contingency and to prescribe, in advance, a standard solution since others cannot be trusted to problem solve or use their own judgment to handle situations.  Because someone might do it wrong (or differently than the manager), no one is permitted to anything other than follow instructions.  Management by LCD spends endless amounts of time contemplating unlikely “what ifs…” and exceptions at the expense of formulating efficient procedures to handle routine situations.  Ironically, despite all the time and effort to anticipate mistakes and prevent exceptions, mistakes and exceptions are never eliminated.

Management by LCD does not focus on how to best serve the 99% of the customer base efficiently and effectively; rather, it dedicates the majority of its energy and resources to anticipating and resolving potential problems of the 1%.  Of course not all possibilities can be predicted and anticipated in advance since humans are so adept at creatively making errors and misunderstandings.  The fact that exceptions are never eliminated reinforces the need for practitioners of management by LCD to manage in this fashion.  In a viciously circular logic, the inability to prevent exceptions drives management by LCD to expend increasing resources to resolve potential, future problems of a tiny minority at the expense of serving the vast majority.

Not only is management by LCD highly inefficient in delivering services and costly in fiscal terms, it is expensive in human terms as it is demoralizing and punitive to those who work in organizations who practice management by LCD.  Management by LCD prevents capitalizing on the strengths, knowledge and initiative of team members, further contributing to the ineffectiveness of the organization.

Those who have a tendency to manage by the lowest common denominator should take a step back and question their assumptions and ask themselves “Do I give a lot of thought about what people might do wrong or do I do I count on people doing what’s right?”; “Do I try to compensate for possible failures or do I try to facilitate successes?”; “Do I think people are dumb or do I think I need to do a better job communicating expectations?”  “Do I plan for failure or do I plan for success?”  If the responses to these questions point to a style of management by LCD, there are tremendous operational efficiencies, fiscal savings and human successes to be claimed by abandoning “lowest common denominator” thinking.

Stay tuned.

Hiding Behind the Words

 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 19^th and early 20^th 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 15^th and 29^th day don’t 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.

Headline: “Clerks kill Election Day voter registration”

The last hours of many legislative sessions are filled with unexpected and sometimes hard to explain events.  Yesterday (March 14), the last day of the Utah 2013 legislative session was definitely one of those cases.  For years, the media, scholars and politicians have bemoaned the fact that the state has suffered from low voter turnout.  The Salt Lake Tribune, reporting on the close of the session summarized the low turnout dilemma:  

The Governor’s Commission on Strengthening Democracy — formed by former Gov. Jon Huntsman to find ways to improve voter turnout — made Election Day registration a top priority, but the idea has foundered for five years since it was recommended.

Utah voter turnout is among the nation’s lowest. In 2010, 36.2 percent of Utah’s voting-eligible population cast ballots — ranking No. 49 among the 50 states. In 2012 when favorite-son Mitt Romney was running for president, that rose to 55.4 percent — but still ranked only No. 38, and was still below the national average of 58.2 percent.

Utah has an interesting form of same day registration as part of the statute pertaining to provisional ballots.  If a voter fails to re-register or update their registration by the legal registration deadlines, the voter can cast a provisional ballot at the polling place assigned to their new address and that ballot will be counted provided the voter was previously registered, at anytime, anywhere in the state.  The statewide registration system makes this easy to verify and simple to verify that the voter has not previously voted.  The vast majority of provisional ballots cast (75%+) fall into this category.  The net result is same day registration for a sub-set of the state’s residents.

The ballots of voters who showed up on election day, cast a provisional ballot but were not previously registered in the state yet are otherwise qualified are not counted.  These voters are registered for future elections but the registration is not effective for that election.  The majority of provisional ballots not counted in the state fall into this category.

The upshot of the statute is that one group who ignores or fails to meet arbitrary registration deadlines gets their vote counted and another group who fails to meet the same deadlines does not.  To close this gap, Rep Rebecca Houck has sponsored a bill for the last five years which would close the loophole and would permit the provisional ballots for all eligible voters who show up on election day at the correct polling place to count.

The bill’s sponsor, Rep. Rebecca Chavez-Houck, D-Salt Lake City, has noted that Utah law now allows people to register on Election Day and cast provisional ballots. While that is used to register them for future elections, the provisional ballots are discarded if officials find those people were not previously registered in Utah.

“What this bill does is allow the vote to be counted,” Jenkins [the Republican Senate Sponsor] said. “This allows you to register and vote on same day if you prove your residency and identity.”

Previous attempts to pass the bill met partisan resistance and did not make it to a vote.  This year, however, the bill had support from both major political parties and the House passed the bill after hearing testimony in favor by the State Republican Party, State Democratic Party, League of Women Voters and the head of the Utah Tea Party.  The only testimony in opposition came from County Clerks—who complained it would be too much work.  As the bill proceeded to the Senate and passed out of committee, the Clerk’s Association mounted the bill’s only opposition.

A bill to allow Election Day voter registration died Thursday — ironically killed by election officials who worried that it could work too well, and cause them too much work, in a state that has among the worst voter turnout in the nation.

HB91 died on a 10-18 vote in the Senate, after earlier passing the House 58-14.

Most of the opposition cited was from county clerks who said it could create more work than they could now handle between when votes are cast and when counts must be finalized.

This case is representative of election administrators across the country and is not merely a Utah aberration.  Clerks and administrators are not effective policy makers nor is it their function.  The role of administrators should be to inform policymakers about proposed legislation and to even take positions on bills.  There is a fair question of where genuine support and opposition of a proposal ends and where active lobbying and activism for a bill begin.  That line can be fuzzy and may not be meaningful much of the time. 

However, when opposition by election officials to a measure, which is uniformly agreed by all parties to be in the interest of voters and the electoral process (as in this case), is based solely on avoiding additional work, the personal competence, the profession’s credibility and the integrity of the process is rightfully scrutinized, and even called into question, by the public.  The passage of good public policy should not be thwarted by complaints by election administrators that it is “too hard” or by their exaggerated estimates of time and cost.

 Stay Tuned

“Measure twice, cut once.” Election Data and Norm Abram

Measurement is the first step that leads to control and eventually to improvement.  If you can’t measure something, you can’t understand it.  If you can’t understand it, you can’t control it.  If you can’t control it, you can’t improve it. ~ H.  James Harrington

The pithy maxim “Measure twice, cut once” is the title of a book by one of my heroes- master woodworker, Norm Abram of PBS series “The New Yankee Workshop.”  Silently repeating this advice to myself as I undertake making the cuts for a new woodworking project has saved me countless hours of labor and untold dollars in materials.   Besides the obvious wisdom of double checking a measurement before committing a board to the teeth of sharp saw, there are other critical aspects of measuring to be considered:

1. The accuracy of the measuring instrument must precise and consistent.  Poorly designed or hastily constructed measuring tools lead to work products of uncertain quality.
2. The instrument must be calibrated in the right units of measurement.   To make a measurement in inches and fractions, the rule must be in the right units.  A metric rule or a rule incremented in tenths of an inch may be accurate for its respective purpose but is inaccurate if measuring for fractions of inches.  The impulse to simply convert between units of measure with confidence in its accuracy is a fallacy.  Conversion always introduces error and cannot be consistently replicated.
3. Identical measuring instruments yield different results.  Slight variations in the scale and condition are introduced through use, wear and tear.  The same instrument should be used throughout a project for accuracy and consistency.  Switching instrumentation in the middle of a project introduces unequal lengths and loose joints (error and uncertainty).
4.  Two craftsmen using the same instrument will measure differently.  Each has his own technique and method of marking.  One craftsman cannot cut with confidence on the measurement made by another unless he knows the method and assumptions underlying the mark of the other.
5.  The method of recording the measured mark determines its accuracy.  Felt tip markers, carpenter’s pencils, fine lead pencils, marking knives and scratch awls are all common methods for recording a measurement.  Each recording device has its own pluses and minuses and none are the right tool in all cases.  The material being measured and the level of accuracy required determine the appropriate recording device.
6. Mid-stream shortcuts always lead to mistakes.  During the course of a project and the repetition of tasks, the creative (and lazy) always learn enough to find a way to make the work go faster.  Improving processes and increasing productivity is a good thing unless introduced in the middle of a project.  Changes in techniques or assumptions during a project add complexity and inevitably introduce errors.  Lessons learned and shortcuts are best left for future projects (rather than the current one).

A lot has been made recently of election metrics and it’s about time the idea got some traction in the US elections community.  Doug Chapin has written several times recently about data and metrics and has noted a movement among election administrators to begin to measure, analyze and use data.  What to measure, how to measure it, how to analyze it for meaning and how to leverage it are all questions that need to be asked by everyone.  Unlike the myriad of terms, definitions and meanings found in the fifty + election codes around the country, the answers to these questions must be consistent among the profession to yield meaningful data, comparisons and insights.

In a gallant first cut at collecting, aggregating and analyzing election data from around the country, the Pew released a compilation of comparative election metrics intended to score performance among the states in February 2013 along the lines of the “Democracy Index” proposed by Hether Gerken.  Like good craftsmen, those working on the project had well-tuned saws and sharp chisels.  What they did not have, however, is valid, reliable measures of comparable material recorded using similar assumptions and techniques in the same unit of accuracy with equal accuracy. 

Even where the data were comparable, meanings of the data were not clearly defined.  For example, the meaning to be assigned to the number of provisional ballots cast is ambiguous and contradictory:

“Unless provisional ballots are being given to voters for other administrative reasons, a large number may indicate problems with voter registration records. The meaning of a small number of provisional ballots, from an election administration standpoint, is more open to question. On the one hand, a small number may indicate that registration records are up to date; on the other hand, small numbers may be the result of poll workers not offering voters with registration problems the provisional ballot option when appropriate.” (Pew Center on the States, “Election Performance Index”, February 2013, p. 38) Emphasis added.

The danger of proceeding further into the data-driven world of empirical analysis without clarifying and standardizing definitions, specifying measuring instruments and units of measurement, and formulating measurement protocols (before the fact) is not merely fuzzy research.  Fuzzy research will tell a story to the public and politicians that is not accurate, that is not credible, and which may not be entirely ethical.  The real danger is that policies and decisions will be made on the basis of fuzzy research and careers and reputations will be made and damaged.  The results will be just like an inferior quality, poorly measured woodshop project regardless of the quality of the tools and the earnestness of the craftsman.

The parallels in the art of measurement between my twin passions of woodworking and elections administration are insightful to the present situation.  My point is not to criticize the Pew’s bold undertaking nor is it to put a damper on the emerging enthusiasm and commitment to gathering and using election data.   By pointing to the wisdom of masters of other crafts, I hope to shape the future of data collection and analysis in our craft of election administration.

 “While ‘measure twice and cut once’ is always pithy advice, it more important to measure accurately and to know that you have.”  ~Aldren Watson “Hand Tools: Their Ways and Workings”

Stay Tuned

Ambiguity and Transparency in Elections

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.

Stay tuned.

www.qualitypublicperformance.com

Works Cited

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.