Election Reform: Six Principles Could Bridge Differences

Michael Davidson and
Michael Davidson Counsel, The Constitution Project;<br> former Senate Legal Counsel
Thomas E. Mann

February 18, 2002

A critical test of American democracy this past year has been
our ability to convert outrage and embarrassment over the 2000
presidential vote count into significant improvements in
administration of elections

Although many advocates and analysts chafed at the slow pace
of action, the House passed a bill late last year, and the Senate
is expected to approve its own bill next week. These two
measures share broad areas of consensus. The challenge is to
reconcile these two versions of reform as quickly and
pragmatically as possible and not get sidetracked by rehashing
old grievances and partisan suspicions.

The areas of agreement are striking. The federal government will
finally pick up a share of the costs of administering federal
elections. Voter registration systems will be modernized.
Provisional voting will be guaranteed for anyone whose
registration is in question on Election Day. New voting
equipment providing citizens with an opportunity to correct
mistakes will replace outdated and error-prone systems.
Statewide standards for ballot design, valid votes and recounts
will be developed. Access to secret balloting for disabled
citizens will be increased. Voter education and information
initiatives will be launched.

The remaining differences should be resolved with a clear eye
toward their comparative advantages and ease of
implementation by federal, state and local officials. There are six
essential areas for resolution.

First, the House bill makes a strong commitment to long-term
support of research and development on new voting systems.
The Senate should readily agree that the final bill ought to build
on that commitment.

Second, the House ($2.7 billion) and the Senate ($3.5 billion)
are close enough on what Congress should spend; they can split
the difference, but the case for the larger amount is strong. An
equally important question is what election officials may do with
that money. The House list is so long there may be little to
show at the end of the day. The Senate’s shorter list has the
opposite vice—it is too restrictive. Taking the best from each,
Congress should enable states to make long overdue capital
investments in improved registration and voting systems. To
make good on that investment, funds should be available for
educating officials and voters about those improved systems.

Third, the House would distribute funds by a formula based on
each state’s population. The Senate would have a nationwide
competition among the states. Turning the entire effort into a
competition will require a larger federal apparatus and delay
distribution of needed funds. Every state needs basic election
improvements. The House has the better idea.

Fourth, the Senate would require each state to develop a plan,
in consultation with local officials and subject to public comment
before adoption, that describes how federal funds will be used.
The House would not require states to explain, even to their
own citizens and local governments, how they will use federal
funds. Everyone will have to hope for the best. On this point,
the advantage goes to the Senate. Involving local governments
and citizens in preparing state plans will foster robust debate
within each state, helping to assure that reform is delivered
wisely and fairly.

Fifth, on no subject has there been as much heat as on
mandates. Should there be a federal stick to require reform to
go with federal carrots to induce it? In fact, both bills agree
there should be national requirements on key matters such as
computerized statewide registration and provisional voting. The
House generally reserves for states the right to choose
implementing methods. The Senate provides more specification.
Compromise is possible if each requirement is looked at
separately on its merits. On at least one there is now broad
agreement based on a fundamental principle. Voting-machine
technology should be harnessed to enable disabled citizens to
cast secret ballots on their own, as is our common right. And no
further delay should be brooked in the right to accessible polling
places throughout the nation.

Finally, neither chamber has yet offered a good answer on one
critical matter. Federal money will not improve elections unless
delivered by an effective system for administering the federal
role. The House proposes a weak, part-time federal agency
surrounded by more than 100 advisers. The Senate proposes a
stronger agency. But as it may take a year to set up, the
Senate would farm out start-up functions to a Justice
Department whose attention is elsewhere.

Both bills would repeat the weakness of the Federal Election
Commission by carving up the new election agency between the
two political parties, inviting gridlock. To make the national
investment in reform count, the House-Senate conference
should take a fresh look at the administration of the federal
program. A solution could be modeled on the National Science
Foundation, coupling a prestigious collegial body with a
presidentially appointed, Senate-confirmed director who
commands broad support and is capable of effectively
administering a long-needed national effort to improve elections.