American Enterprise Institute

December 4, 2007

[Edited transcript from audio tapes]

10:15 a.m.	Registration and Breakfast
10:30	Panelists:	Edward B. Foley, The Ohio State University
		Steven F. Huefner, The Ohio State University
		Daniel P. Tokaji, The Ohio State University
	Discussants:	Caroline Hunter, Election Assistance Commission
		Conny McCormack, Los Angeles County
	Moderator:	John C. Fortier, AEI
12:00	Adjournment

Proceedings:

John Fortier:  Good morning.  We’re going to start the event this morning.  This is – welcome to the American Enterprise Institute.  I’m John Fortier at AEI.  We are here for an event sponsored by the AEI-Brookings Election Reform Project.  That is a project that has had a number of events in Washington, and has been looking at the progress of election reform for the past couple of years, and through the 2008 election.  We have the co-directors of the project, Norm Ornstein and Tom Mann from AEI Brookings, sitting here in the front row. 

And this event is also co-sponsored by the Moritz College of Law, and the Joyce Foundation and is to celebrate the release of an important book, just in time for Christmas.  You can get this for free, put it in your stocking.  The price is right, but also the content.  It is a book and a report called From Registration to Recounts: The Election Ecosystems of Five Midwestern States.  And many of you probably have a copy of the report, which is outside.  If you don’t, you can maybe see the map from here. 

The five states we were talking about are Ohio, Michigan, Illinois, Wisconsin, and Minnesota.  And really, I think this is a very significant report because it takes each state’s set of laws and practices from the beginning to the end, essentially, from registrations to recounts, looking in detail at the great differences we have among the states, and some of the strengths each of these states has, as well as some of the weaknesses, and really has some general recommendations that could be applicable to states across the country.  So I recommend it highly. 

What we are going to do is I will introduce the panel, and then we will have some presentation of the findings of the report.  We’ll have some response from respondents, and then we will have a little response again from the presenters, and then open it up to the audience for questions.  So let me start by introducing the panel.

The authors of the report are three Ohio State Moritz College of Law law professors, Steve Huefner, Dan Tokaji, and Ned Foley, sitting in order here.  The lead author is Steve Huefner, who is a senior fellow and Associate Professor of Law at Ohio State Moritz College of Law, and he’s also the director of the Moritz Legislation Clinic.  He had an earlier incarnation here in Washington in the Senate Legal Council’s Office, as some of you may know him from those days. 

Dan Tokaji is Associate Professor of Law at Moritz, and also Associate Director of Election Law at Moritz, which is a wonderful resource for those of you interested in election law, and has written extensively on election law and voting rights, especially questions of voter identification.  And you have a longer bio in your folders. 

Edward Foley, or Ned Foley as he is commonly known, is   the Robert M. Duncan Jones Day Designated Professor of Law at Moritz, and is the Director of Election Law at Moritz, and is a prominent expert on election law, and has written recently on Bush v. Gore, but a number of other topics on election law as well.

I should also mention Nate Cemenska who is not with us today, but is somebody who contributed to the report, and is also an important part of the election law at Moritz project.

With the presentation of that report, we have two experts on election law.  One from a practitioner’s standpoint, Conny McCormack, who has run the largest jurisdiction in America – is this true? – in Los Angeles County, as the Registrar of Voters and County Clerk for Los Angeles County.  And that is enough in itself, but has done it for twenty-six years and has only thirty-one days left, but says she is staying in the field, if not in the particular job, and is also a frequent commentator on election law, and someone who contributes to a lot of election reform efforts. 

And then, Caroline Hunter, an Election Assistance Commissioner, who is recently appointed in 2006, and previously served in the White House, also with the Republican National Committee, and worked on election law issues as well.  So, what we’re going to do is start with Steve Huefner, then Ned Foley, we’ll come to Conny McCormack and Caroline Hunter, and then we’ll have Dan Tokaji follow up, and we’ll go to your questions.  Steve.

Steven F. Huefner:  Well, it’s terrific to be here, and let me first thank AEI-Brookings Election Reform team members for hosting us, in particular, John, for his work, and Tim Ryan, I know, has done a lot of work in putting this event together for us, and we’re really delighted to be able to be here with you today and appreciate your being here as well.  We’re also appreciative of Commissioner Hunter being here, and Conny McCormack.  It’s nice to have you with us.  I also just wanted to thank the Joyce Foundation for providing the funding for our report.

As John said, we think this book is really the first of its kind in the way in which it looks at an election system in depth from registration to recounts, and then, does that not just with one state, but with five states, and is able to make some comparative judgments.  In looking at systems from registrations to recounts, we identified, as focuses of our research, eight sequential topics that we knew we needed to consider.  At the same time, we wanted to understand how they worked together, and those included, at the registration phase, things like how a state was constructing its HAVA – Help America Vote Act – mandated statewide database, and so forth. 

And then move from the registration process itself into things like how states permitted challenges to voter eligibility, and then the ways in which states chose and managed their voting technology, how states chose to conduct early and absentee voting, how states operated polling places on election day, the ways in which states worked to secure the ballot, the ways in which states conducted provisional voting, particularly as another HAVA-mandated requirement.  And finally, the way in which states counted and recounted and conducted contest over the outcome of elections. 

Those eight sequential topics, in turn, we early recognized, needed to be understood, also in light of the institutional structures that a state had chosen to oversee its election processes.  And so the first topic, really, that we looked at, was those institutional arrangements in each state.  And again, the focus in doing this was to think about the interrelationships between those different areas, and what was working in a state and what wasn’t working, in light of that systemic approach.

We did that in five key Midwestern states, the states that John identified, in part, because this is a region of the country that is America’s heartland, and a number of battleground states have come out of – include a number of battleground states today.  These are states with some similar origins and historical traditions, but at the same time, particularly in the area of election administration, they were using a variety of systems, and had taken a variety of approaches to the things we knew we wanted to study.  And those variety of approaches were emblematic of the kind of variety that we find around the nation today.  And so this in depth look, this ecosystem model, would provide lessons for other states as well. 

Let me turn to, just try to give you a very quick summary of what we found in each state, and I can’t do this in any depth right now, but I really just want to identify a few – give you a flavor for some of the key features and variations that we found in these five states.  And I’m going to do it in the order of the states with the greatest problems in our judgment.  So I start with Ohio.

Ohio obviously has attracted national attention in recent years, particularly in the ’04 and ’06 elections for a variety of problems in its election administration, and prominent among that is the role that the Secretary of State, as the state’s Chief Election Officer has played there.  And I think it’s fair to say that there has simply been too much of partisanship infecting the way in which election administrations have been run. 

And one of the consequences of that is that there – Secretary Blackwell, Ken Blackwell, especially in the ’06 election, found himself hamstrung in some ways because of the concerns that had arisen about partisanship and was unable to be an effective statewide leader.  And we continue to suffer, as a result, from a lack of statewide uniformity.  And that, in turn, has resulted in a fair amount of litigation about Ohio election processes.

Turning to Illinois, in contrast to Ohio, Illinois is a highly decentralized state.  It lacks a strong state leader over elections.  It has a state Board of Elections, but that state administrative body is comparatively weak.  At the same time, it has experienced also a number of inconsistencies.  For a different cause – I mean, the cause of inconsistencies in Illinois is that the state Board of Elections is comparatively weak.

Turning to Michigan, we once again have a state where the Chief Elections Officer is the Secretary of State, a partisan elected official, but in contrast with the Ohio experience, the Michigan state elections system has been, for many decades, really, run in a highly professional and non-partisan way.  Now, Michigan has an even more decentralized election system in that the actual operation of the polls is done not at the county level, as is typical in most states around the country, but is done at the municipal level. 

And so, the role of the state Elections Bureau is to coordinate more than fifteen hundred local jurisdictions, and that is a complicated task that the state folks have been doing well.  Our concern in Michigan has to do with some of the individual municipalities, particularly Detroit, but also large urban areas have some similar risks.  Detroit had experienced a number of problems up through the ’05 election including, most importantly, serious issues about maladministration of its absentee voting process.

Wisconsin is our fourth state.  Wisconsin, like Michigan, also runs its elections at the municipal level, but at the state level, it has had a state Board of Elections which, in contrast to the Illinois state Board of Elections, has been much more aggressive and successful in coordinating what’s happening at the local level, but they are in a transition now from their state Board of Elections to a new government accountability board that was just – came into existence this year, and it will be important to see how that works.  Another key feature in Wisconsin is that they have had election day registration since 1976, but they’re struggling with their HAVA database at the moment.  Still, comparatively speaking, they’re doing a better job than the other states. 

But that takes me now to Minnesota, our fifth state, which also has election day registration, like Wisconsin, and like Michigan and Ohio, has a Chief Elections Authority that is the elected Secretary of State.  The state has a tradition of integrity, and has not experienced nearly the kinds of problems that some of these other states have.  But we see partisanship creeping in Minnesota. 

Now, Ned’s going to take these states and expand upon a few key findings, but I’m just going to note quickly, before I turn it over to him, that as we looked at all these states, one of the things that clearly stands out in our mind is how important it is for states to find ways to treat voters equally around the state, and to develop consistency, and the states are struggling to do that, for a variety of different reasons.  It suggests to us the value of having a strong central state chief elections authority of some sort. 

We’re not committed to the idea that that should be an individual elected Secretary of State vs. an appointed body necessarily.  I mean, we recognize that states may have different reasons for doing different things.  But we do think that states should work to have a strong central authority, and that it needs to be one, most importantly, that is insulated from partisanship, and that becomes a really critical aspect of successful administration.  I’m going to leave it there for now, and let Ned expand on a couple of things.

Edward B. Foley:  Great.  Thanks, Steve, and I will, hopefully, just move right into three specific points that follow along the general themes that Steve is presenting.  Can all of you see this from where you’re sitting?  Hopefully that’ll work.  So these will be the three things that I go through pretty quickly. 

So the first is what I call endgame scenarios, the back end of the process.  We all hope that there won’t be a major problem in a close race, but the questions – how does a state handle it if that kind of problem does arise?  Does the state have institutions that can get it through a potentially ugly dispute?  And all of the states that we looked at have vulnerabilities and weaknesses in this regard.  I’m going to pick Ohio again, because it is our poster child, if you will, but what I say about Ohio, you know, could apply really to some of the other states, as we’ll see. 

So Ohio, right now, I think many of you know, but just to remind ourselves, has an elected Secretary of State, who happens to be a Democrat at the moment, an elected state Supreme Court that is predominantly republican, although they run on an ostensibly non-partisan ballot that they get nominated through partisan systems, and are known to be – have partisan affiliations, and those are quite heavily contested elections for the control of the state Supreme Court along party lines.  The governor currently is a Democrat, and the legislature is currently controlled by Republicans, both houses of the legislature. 

So just to pick a hopefully hypothetical scenario, let’s assume that in an election, there are some problems on the ground, polling places are opening a little late, machines are breaking down, poll workers may not be showing up as they’re supposed to be, and there are long lines, and at the behest of the Secretary of State, the decision is to keep polls open a couple of extra hours in a large number of precincts, and let’s just assume that as a result of that, there are a lot of voters who take advantage of the extra hours that are available at the end of the day. 

Now, as many of you know, HAVA requires that any ballots cast after the time that the polls were scheduled to be closed, people who weren’t standing in line at the time, have to be provisional ballots.  So -- and let’s assume for the moment that that actually gets followed, and so here we have a stack of provisional ballots that are subject to this feature of being, you know, beyond the time that the polls were supposed to close.  And let’s assume that they could make a difference in a close race.  We can imagine that the Secretary of State takes the position that they should be counted.  After all, the Secretary of State had urged that the polling places be kept open longer. 

But we can also imagine that the state Supreme Court takes the opposite view, and there’s a ruling that these provisional ballots shouldn’t be counted because there was not authority under state law to extend the ballots.  It wasn’t warranted.  And we’ve seen cases from that around the country in 2000, for example, in Missouri, the state judiciary invalidated a decision to keep polling places open longer and issued a temporary restraining order during the day.  The scenario that I’m talking about here is at the counting stage after the polling places close and the ballots are being counted. 

So that just dispute right there between the state’s Chief Elections Officer and the majority of the state Supreme Court would be ugly enough, I think, as it is, in terms of how the people in the state perceive the system handling the situation, but unfortunately, we can imagine it getting worse.  So, for example, suppose the local election officials, just innocent misunderstanding, you know, forgot or didn’t remember about that HAVA requirement, and had those extra ballots cast at the end of the day be regular ballots, not provisional ballots, and therefore, they cannot be set aside and disputed one by one.  They’re comingled with the rest of the votes in a situation analogous to what happened in Washington State in its gubernatorial election in 2004.  They had different problems on the ground there, but it would be an analogous comingling of proper ballots and arguably improper ballots. 

You know, so that’s the hypothesis now, and we can imagine that the judiciary, the state Supreme Court saying that was not only a violation of state law, but that was a violation of the federal requirement.  The election must be voided.  We may not be able to identify who those ballots were cast for, but that nullifies the count.  We have an improper count, we have a void election. 

Think about that if it were a presidential race, and the Secretary of State took the position there’s no time to hold a new election before the safe harbor deadline for the electoral college and the electoral college meets, and the Secretary of State insists that at least we have an election where most of the ballots were valid, and she takes the position -- and we’re hypothesizing as Ohio, that there was nothing wrong with extending the polling places in the first place, and we shouldn’t fault the voters for the fact that they voted regular ballots instead of provisional ballots. 

So, the situation could get even uglier in terms of the jostling between those two institutions.  You know, the governor might enter the picture and under authority from Congress say, “I’m going to send the slate of presidential electors that this Secretary of State has certified as the correct outcome”, and, of course, the legislature could take the opposite point of view.  The key point here, the key take-away point is what we don’t have in Ohio, and we don’t have, really, in any of these five states, is a dispute resolution institution that is seen by both sides to be fair, and that is above the fray, because each one of these other institutions can be seen as on one side or the other of this conflict. 

And ordinarily, you might want the state Supreme Court to be that above the fray, neutral, impartial institution, but in these states, we have elected state judges, and they are not above the fray.  If anybody has been following Michigan, in particular, its decision in the voter ID issue, but on a host of other issues, it’s not a reliable institution to resolve a dispute of this nature, which is why we hope we don’t have these disputes in the first place.

Okay, now I want to turn to my second specific topic and talk about just some data that we’ve taken from public sources from the Secretaries of State concerning provisional voting.  If there are disputed elections, it seems to us that people will look at provisional ballots as a way to try to gain some ground, if you will.  They’re an obvious target.  They may not be successful in this regard, but, you know, after the election day, after the initial count of the regular ballots, people start focusing very closely on provisionals. 

So, the story here – we’re going to get to a bottom line where – look at how similar Illinois and Michigan are, and how different Ohio is in these numbers, and – so that’s going to be a bottom-line story, and let me tell you how we get to it.  What  -- it was true in ’04 and again true in ’06 is Ohio is – just has a larger volume of provisional ballots than these other states, and Ohio, on a national basis, has a high percentage of provisional ballots, and there’s some national data that’s not in our state-specific report, but if other people are interested, you know, we could pursue that on another occasion.

But what’s also important here is what happens between ’04 and ’06.  So, while Ohio increases the rate at which it’s casting provisional ballots – so this number here, this column, is what percentage of all ballots cast are provisional.  So it jumps in Ohio from 2.7 percent to over 3 percent.  It drops in the other states, and that’s what you see here.  Ohio is increasing its number of provisional ballots as the other states are decreasing them.  And, by the way, this is in the book, so you can look at – these numbers are fascinating in many ways, and we discuss it, but I’m only trying to point out a couple of key features. 

Now, someone might say, well, Ohio is counting more provisional ballots, right?  They increase the number and percentage of provisional ballots that they actually counted.  But that’s not necessarily a good story.  The story could be that Illinois and Michigan are figuring out how to give people regular ballots instead of provisional ballots.  That’s why they’re cutting their percentage of provisional ballots almost in half, and as a result, the folks who are then voting provisional ballots are people who weren’t entitled to vote, and that’s why they’re not counting so many. 

On the other hand, Ohio, by giving out more provisional ballots, and counting more, it could’ve given those folks provisional ballots – I mean, excuse me, regular ballots in the first place.  So, but again, the main takeaway here is we’ve got differences among similarly situated Midwestern states. 

Now, Ohio is not counting all of its provisional ballots.  Over twenty percent of the provisional ballots that were cast in Ohio in ’06 are still not being counted, and here is the aggregate statewide reasons for that.  Most of it is – these three reasons up here count for ninety percent of why provisional ballots aren’t being counted.  The primary one is voters were voting in the wrong precinct.  Ohio is a state that requires you to cast your ballot in the correct precinct.  I think what’s most interesting are these two lines here, because they’re still significant -- folks who are told that you’re not registered or that you didn’t have the right kind of ID.  And what I think is most interesting in that is to try to figure out how that occurs. 

Why does it occur?  There’s not a uniform story statewide.  So what we did is we looked at the most significant urban counties in Ohio, and the cities that are associated with them to try to figure out what’s going on, and again, I won’t go through all these numbers.  I’d like you to focus first on this number here.  Eleven percent, which is Toledo, and this three percent number here, which is Columbus.  This has to do with the provisional ballots being rejected because the voter is not registered. 

But remember, everybody who casts a provisional ballot is signing an affidavit saying that they think they are registered, and that they’re entitled to vote.  So what happens here is, of the folks who are casting provisional ballots, if you live in Toledo, over ten percent have been told, “You’re mistaken.  You weren’t registered, even though you thought you were.”  A much lower number in Columbus.  Only three percent or so are being mistaken, told that they’re being mistaken in that way.  Is that because folks in Toledo are just more likely – that much more likely to be mistaken about their registration status, or instead, is it that election officials in Columbus are more lenient when there’re doubts about registration, and they’re more likely to resolve those doubts in favor of the voter in counting the ballot instead of, more stringently, throw the ballot out?  That’s what’s going on here. 

And again, to underscore that even more, let’s look at the next category of folks whose ballots are rejected because they didn’t provide the right kind of ID.  Again, in Toledo, over seven percent, almost eight percent of provisional ballots are being rejected for that reason.  You know, about one in twelve.  One of about a dozen people who cast provisional ballots are told, “you didn’t have the right kind of ID.”  Look, well, this number’s low, here, for Dayton, very low.  But look at this number here.  Zero in Columbus, Franklin County.  Obviously, a policy on the part of the election officials there that they were not going to throw out provisional ballots for lack of ID.  Again, kind of generous or more lenient. 

What may have been going on there is that Franklin County had a very tight Congressional race between incumbent Debra Price and a democratic challenger, Mary Jo Kilroy.  And it’s our supposition that the election officials in that jurisdiction were afraid of litigation over provisional ballots having been rejected because of ID.  There had been some pre-election litigation about how to deal with Ohio’s new ID requirement, and so, it seems that they just said, “Well, we’re going to count all those ballots anyway.” 

But avoiding one kind of litigation may lead to another, because if there really is this policy difference at the local level, with respect to enforcement of the ID rule, that raises the question of whether that’s legitimate under the Equal Protection Doctrine of Bush vs. Gore.  It’s a statewide ID requirement that’s supposed to apply to all citizens throughout the state, and yet you have some officials exercising some kind of administrative discretion, maybe improperly, to treat that ID requirement one way much more stringently, others the opposite way. 

So you may avoid one lawsuit by bringing another lawsuit on.  So that’s just the point I want to make there about this.  I think we need – we need statisticians to really do some, you know, number crunching on this and similar provisional voting data. 

The final point I just want to leave you with is a sense, on our part, that there’s a lot to be learned about the distinctive challenges of running elections in urban jurisdictions.  You know, there are a lot of votes there, and problems can crop up there, perhaps with some more frequency.  And so, we just need a better handle on that. 

But what is also true, and I think importantly true, is that even within the pool of counties that are urban counties, there are differences in how well they handle the challenges.  They’re not all equally dysfunctional.  Do not take away a monolithic story about voting in urban areas.  Some cities in some urban jurisdictions just do a much better job at this than others.  That’s true across states in our study.  In other words, there’s differential abilities between Detroit and Chicago, Milwaukee and Minneapolis.  Likewise, within the state of Ohio, there seems to be differential administrative talent in running elections, depending upon whether you’re talking about Cincinnati, Cleveland, or Columbus. 

Culture may make a difference.  We need to study this a lot more as social scientists.  And then, finally, to pick up on the point that Steve ended with, you know, where you have inconsistencies you have inequalities, and that’s why one of our primary recommendations is that we encourage states to try to achieve more equality through stronger state level oversight.  Maybe at Q&A we can talk about how that might be done. 

We have struggled, I think, as the author’s team, about how to reconcile two observations that we have.  We do not like the partisan feature of an elected Secretary of State, and Steve mentioned that.  On the other hand, we see energy and power in that structure.  In other words, because they’re elected, they have clout vis a vis the legislature, vis a vis the governor.  I mean, they are a major political player, and so we – so it is a good thing to have a chief elections officer in a state that has that kind of visibility and independent political stature and clout. 

On the other hand, we see, in Illinois, a state that has an eight-member board that’s split evenly down the middle between, you know, one political party and the other, and that deadlock is similar to what you guys know in Washington from the Federal Elections Commission, and, you know, when you have deadlock, you can often have inaction.  And so, when you have appointed boards, there can be lack of energy, lack of initiative. 

And so, we need to search for a model that can marry the best of these two features and leave behind the worst of these two features, and we’ve sort of colloquially toyed with the notion of, you know, the Alan Greenspan-type approach to election administration.  Somebody, again, who has independent stature.  Again, it’s not a perfect analogy, but, you know, can there be an official that meets the criteria of nonpartisanship, and yet, at the same time, meets the criterion of stature and independence and initiative?  And with that, I’d like to leave it there.

John C. Fortier:  Thank you, Ned.  We’ll call that irrational exuberance.  We’re going to turn to Conny McCormack and – for some comments on the report.

Conny McCormack:  Thank you, John, and I would like to start by commending the authors.  You have really made a huge contribution to the election administration field.  There has been so much emotionalism in election administration, and suppositions of what facts mean.  It’s a very, very complicated field, and you’ve taken that, and you’ve dispassionately said -- you’ve shown a region that is so similar in many ways, and is so incredibly disparate in how the rules are applied, and what the rules are, and then how they are applied.  And, if you think of that, that’s ten percent of the states in the United States.  It’s a microcosm of what’s going on everywhere. 

And when I read your book and when I looked at the analysis, one of the first things I came away with is, you know, we all – I think what happened in this country – a little historical perspective – if you’ve been an election administrator in an urban area, and I’ve done that for twenty-six years, first in Dallas, then San Diego, and the last twelve in L.A., so I’ve seen different state laws, I’ve seen different applications, and resources make a huge difference, if you have resources.  And I don’t mean just money.  I mean support.  When you talk about the Secretaries of State, it really reminds me of an analogy of what happens in Washington, where the elected officials come and go and the staff that has the expertise, more consistent and knowledgeable. 

And what’s happened in our state, in California, is we’ve had four Secretaries of State in five years, and there hasn’t been the absolutely vital collaboration between the local election officials and the state, because yes, if you got everyone in the room, all the locals will say, “We are big believers in consistency.  Why wouldn’t we be?  No one wants a spotlight on you because you’ve done something different in L.A. than Alameda County.  Nobody looks good in that situation.”  But yet, you’ve got a situation where you can’t have the kind of – we haven’t had the kind of collaboration that we really need with the state. 

One of the things we found that works is to get the locals together, come up with recommendations that then can be bought into, first by the locals, and then try to work it with the Secretary of State, because if you have this huge disparity with the locals, you’re never going to get to the statewide consistency that is absolutely necessary.  And I think what we saw in 2000, the big surprise to everyone in the United States was, you mean, the rules are different?  You know, from state to state?  You mean, people standing in line in Florida that weren’t on the list didn’t get to vote?  But they did in California because we’ve had provisional balloting for twenty-five years, and if you’re not on the list, you get to vote. 

And I think there could be some correlations between the numbers of provisional ballots and just how long a state has had provisional balloting processes, because I think the best, the most incredible barrier right now to getting – to making sure the elections are conducted accurately is change.  There’s been too much change, too fast, and think about the human endeavor of poll workers.  Poll workers – bless their hearts, because those 1.4 million of them, most of whom are volunteers, they do this job one or two days a year or fifty percent of them are new, never done it before, and think of any other job what happens after your first day on the job. 

Your second day, the boss says, “You know, you did these things really well, but you might want to make a couple of changes on these.”  There is no second day for poll workers.  They’re doing that stuff they did wrong for fourteen hours, they’re doing it wrong.  They’re doing it wrong all day, and a lot of the time, they’re doing it wrong because they think it’s right, because what we’ve seen in our jurisdiction is the laws have changed so much that the ones who are the experienced poll workers, they were told to do it a certain way for years, and then it changed.  And the change didn’t make any sense to them, so they’re practical people, and they said, “This made sense.  We always did it this way.”  And they’re making on-the-ground decisions that make sense.  They’d make sense to you, too, if you were on the ground, and they make sense to them, and the problem is, it’s wrong. 

You know, it’s a huge problem.  I have five thousand voting precincts in L.A. and my definition of a voting precinct is an opportunity for error.  I mean, every one of them, I don’t care how much consistency you’ve given to the training, the process of the training, when you get a situation that we’re going to have in California on February fifth – I’ll just give you this example, because I think it’s going to create huge problems – where, for the last – we have a crossover allowance for the decline-to-state nonpartisan voter, there’s nineteen percent of the electorate in California who are decline-to-state.  Huge, huge -- fifth of the electorate. 

Ever since crossover was allowed in 2002, 2004, and 2006, the Democrats and the Republicans said the crossovers could enter their party.  So, you know, at least if they were – poll workers were making mistakes, they were making it pretty equally on the two major political parties.  Well, on February fifth, that’s not going to be the case.  The Democrats are going to allow decline-to-state voters to cast a ballot for president, and the Republicans are not.  So picture a polling place where you’re the volunteer poll worker, and you hear -- the person in front of you is an Independent, decline to state, and say, “I’d like a Democratic ballot.”  Fine.  Here it is.  Person behind him asks for Republican, and they say, “No, you can’t have it.” 

Now, you know, that’s going to sound discriminatory to that next voter, I would think.  And then they’re going to argue with the poll worker who’s a volunteer.  What do you think they’re going to do?  “Oh, here, have it.”  I mean, can you really blame them if some of those decisions – my point is, and there’s a million of these microcosm decisions going on in polling places.  Can you blame them for the lack of logic of that?  You really can’t. 

And we can train and train, but if we keep changing the rules, and keep changing the equipment, and keep changing the procedures, there’s a pushback from that, and there’s going to be a consequence.  Some of their research starts to point this out, but throughout the country we’re seeing all of these changes, and the result of that is mistakes.  And what everyone wants is perfection in elections, and no one can deliver it.

I’d like to see a study after the ’08 elections that looks at – we all know who’s going to be looked at in ’08 where it’s close, and guess what they’re going to find?  Problems.  Electoral administration problems.  I’d like to see a comparative study between that and a place where it wasn’t close, because the same problems are there, and no one’s looking at them. 

I had a major election November sixth.  One of the elections was one vote apart.  Yesterday was the deadline for recounts.  No one asked for a recount.  Do you know how happy that made me?  I mean, do you think maybe there could’ve been a problem in that election that maybe would’ve been discovered?  I don’t know.  I mean, we’ve looked at it, we do an audit, if it came out perfect for the percentage that we audit it.  But the bottom line is close has its own problems associated with it, and it isn’t perfect, and then, what you see is an error, and now it’s magnified.  Now that error looks like it’s throughout the – everybody did this.  And, you know, they didn’t. 

So these are some of the challenges.  Their research starts to get at this regionally.  I think the parts on the registration component were to me the most interesting as an administrator, to see the barriers, what is happening, because I think in terms of concept, HAVA really hoped there would be more consistency, and people getting into the voting booth and having an opportunity to cast a ballot.  That’s what the provisional process was all about, how we interpret whether or not there’s more or less provisionals. 

I think there’s many, many ways, and I like the fact that their research doesn’t say, “This is what it means.”  Because it doesn’t necessarily, as Ned just pointed out, mean that.  It can mean six different things are going on, whether it’s an election administration decision on ID, or whether it’s just the way people did it, or I’d like to think some of my decisions get carried out, but hey, I have the facts to prove they don’t.  I mean, we have the manual, and here’s what they’re supposed to do, and we have a million examples of the fact that that’s not what happened. 

And most of my elections aren’t close because California -- in terms of the partisan elections, but the local elections that I describe from last month, water board, school boards, those tend to – we had many of them within ten and fifteen votes.  That’s sort of normal.  Ties, we’ve had ties.  We’ve had one-vote elections, and it creates angst, and close elections are not what people want in this room, and certainly not in this profession. 

But I’d like to thank you for a really good excellent – I hope this is replicated around the country.  I hope that we can do other regional studies, and I hope that there can be some more research that picks up and creates ideas on how to take this type of research and further it, and you’ve done a great job [indiscernible].

Caroline Hunter:  Thank you very much to AEI-Brookings for including me in this conversation today, and to the authors, very much.  I would like to just thank Rosemary Rodriguez, fellow commissioner, and Tom Wilkie, our Executive Director of the EAC for joining us today. 

I, too, thought the book was excellent.  It was a very useful, productive way to study what works and doesn’t work in the states.  I’d never seen a study like it before, and I hear others say that it has not been done before, and I commend an excellent job.  I think it’ll be very useful, and I, too, encourage, I hope, other states will do similar types of studies. 

At the RNC, as – oh, I should also mention that I had a chance over the weekend the past couple of days to talk to election officials, current and former, in four of the five states, and they all had similarly glowing praises for the authors, and said you worked very hard to work with local and state election officials, and they really appreciated that.  With one minor exception, which I’ll get into later, they really had no comments, so I think that speaks volumes. 

As John mentioned, at the RNC I studied the election laws of many of these same states in a very broad manner.  I never really thought of them as ecosystems of interdependent parts, but I think that’s a great way of looking at it, because it’s obvious, but not something I had really thought about.  Obviously, one thing affects the other in a major way, with the whole process, so I think that’s a very interesting way of looking at it. 

The parties in voter advocacy groups, you know, look at the laws in a different way, and maybe not as broad and thorough as the way you’ve studied it, but some of the same things we look at that you’ve looked at, which is what are the rules for registration drives?  Can the parties or the groups reprint registration forms?  Can the third parties deliver the forms?  If they do that, is it considered a mail-in ballot?  If so, then they might have to provide ID.  I mean, all those kinds of detailed things, you know – do we advise our voters to bring their ID to the polls? 

Some states require it, some states don’t, and there’s some sort of nuances to that, of course.  When is one entitled to cast a provisional ballot, and when does it count?  These are all very important issues also for the parties in the advocacy groups because they’re major players in turning out the vote.  So I think this book will be very useful to those players as well as we try to determine, you know, the best way for all of us to understand what the election laws are.

And one thing to note is that when we were looking at some of the laws in advance of the 2004 election, there really wasn’t a lot of certainty, and I know a lot of that has changed since 2004 in the positive, and some of this has been fleshed out in a very good way.  But there we were, sitting there on election night, and looking at the results coming in, and realizing okay, the battleground isn’t in Florida this time, now it’s in Ohio.  And despite the fact that I had worked with many people on a bipartisan basis, both at [indiscernible] and even at the EAC, and other places, to say, you know, “Let’s collectively encourage states to come up with, you know, procedures for counting provisional ballots.”  And it wasn’t a partisan issue at all, because everybody wants to know. 

I think we can all agree that our overarching goal is knowing what the rules of the game are in detail before the game starts.  And unfortunately, in 2004, we didn’t know what the rules of the game were in a lot of states, and in particular, in Ohio.  So, you’re sitting on election night, and people are saying, “Well, you know, you’ve looked at this.  When do we start counting the provisional ballots?”  And I’d say, “Well, you know, there are about four different advisory opinions, or whatever they’re called, in Ohio, on point, but none of them is – sort of contradict one another, and Ohio hasn’t gotten around to putting the HAVA requirements in the law” at that point, in 2004, so you can’t answer that. 

It’s a pretty basic question, and, furthermore, how are the provisional ballots going to be counted?  Again, we don’t know.  I mean, talk to ten different people in Ohio, and you’ll get ten different answers, and even a lot of the county officials were going back literally in their paper files to try to find old directives that were on point, that people just hadn’t really thought to look through before election day.  So, everybody understands the need for spelled-out, thorough transparent procedures in all aspects in advance of election day. 

One of the points in the book was the field of election administration remains underdeveloped.  That’s an understatement.  As just one little anecdote, last night, a friend of mine called me on my cell phone and said, “I need to know right now.  Do I have to put a disclaimer on this ad?  I’m about to run an ad, you know, in ten minutes, and I need to know right now.”  And I said, “Oh, my gosh, remember, I’m not the FEC, I’m at the EAC”, and this is someone who knows the political world very well, and I said, “You know, I think you do, but I really don’t feel comfortable answering right now.  I’ve been sort of immersed in the other side of election law.” 

She said, “What do you mean the other side of --?”  “Well, it’s not campaign finance, you know, it’s the whole election administration.”  “Oh, you mean the machine stuff?”  “Yes, yes.  That’s what I mean.”  Okay, so that’s basically the only thing people on the street tend to know about is what kind of machine do you have and – so anyway, it is definitely an underdeveloped field, to say the least.  But – there are a lot of points in the book, and I think if we tie some of those points together, maybe there is a little bit of a good story to tell. 

As the field develops and these types of conversations continue, perhaps some of the assumptions regarding certain policies and procedures will disappear, and it’s possible that some of the policymaking is perceived to be, or is, in fact, partisan, due to the lack of risk assessment, and the lack of thorough studies and misperceptions regarding what will benefit one party over another.  So these are all concepts that are talked about in the book, but I’m sort of drawing them together to say, “Maybe one will answer the other.” 

If we have good studies, and we have more developed procedures, and people understand what those procedures will do to the overall electorate, maybe people are less likely to sort of fight for a position that they don’t even really know who’s going to help who.  I mean, everybody needs to consider the overarching goal which is providing access to the poles to every eligible voter, and doing that is, I think, universally the goal no thoughtful serious person wants to give an advantage to any one party or group.  Equal access to the polls for all eligible voters is the sort of the mantra of every serious person I’ve ever talked to. 

And going back to the idea of not really thoroughly understanding what helps the electorate and what doesn’t, back in the motor voter days, the Republican party, for one, was concerned that that law would overly benefit the Democrat party, and I think in retrospect, it hasn’t.  And those are the kinds of things that thoughtful study of what we thought was going to happen and what has happened is really useful.  And that may have eliminated a lot of the partisan battling back in those days. 

I think similarly, in the regard to provisional ballots, a lot of Democrats, I think is fair to say, thought that that may be a silver bullet until people started realizing that just sending people to vote provisionally may not be so good because their votes might not count.  So I think we just need to think through what’s the best way of doing this, and some of that will hopefully dissolve some of the perceived and sometimes real partisanship that is occurring.

I think one note on the partisan aspect of the Blackwell administration, I can tell you that we wanted more rules and procedures at the Republican National Committee, and so, we didn’t view him as being partisan, at least in 2004, with regard to some of the procedures, and I think that the EAC has learned, particularly when the EAC was first formed, that sometimes inefficiencies can be misconstrued as being partisan, when they’re really not.  It’s just unfortunate, you know, startup costs and inefficiencies and that sort of thing.

A couple of comments a little more specifically in the book.  One of the comments, and Ned alluded this into his presentation.  The book states on page 179, “In general, we believe a system that reduces the need for provisional ballots is preferable to one that relies extensively on them.”  And I don’t think anyone would disagree with that.  However, there’s a presumption that those people who are now voting provisionally weren’t able to vote in states that didn’t have provisional balloting before HAVA. 

So one should at least consider that more people are able to vote than before.  So even though there is some negative implications to having too many provisional ballots, at least, as Conny mentioned, the states that don’t have a lot of experience, they’re the ones that are having some growing pains, and do need to work those things out. 

Another point – one of the comments on that same page, “improving the registration process, both by easing registration and increasing the accuracy of voter registration lists, states can reduce their reliance on provisional ballots.”  And I would just like to talk further about how does easing registration requirements help reduce the number of provisional ballots? 

I have to admit to cramming a little bit last night and staying up awfully late, so I could be missing something, but I don’t see that unless you call easing registration requirements – unless you say the way to do that is to have automatic registration, which is also mentioned in the book as a proposal of Secretary of State Mark Richey.  So that’s the only way I can see, because then, when you go to the polls, you’re automatically a registered voter, and therefore, there’s no – I can’t think of a need to vote provisionally if you’re automatically registered.

You can respond now, if you want.  Unless I get in trouble with John.  So, and then the book also points out that even in election day registration states, you could end up with something akin to a provisional ballot, which I forgot exactly what they called it, but something like “provisional EDS voting”, which means that somebody could, in theory, cast a ballot, but the election officials would have to later verify the eligibility of that person.  So it’s essentially a provisional ballot.  It’s just called – to me – and it’s called something different.

I, a hundred percent, agree with the concept that increasing accuracy of lists will reduce the number of provisional ballots, and that is an area where, I think, we can certainly agree that we all agree that that area needs improvement.  And I saw Michael [indiscernible] walk in recently.  I don’t know where he is.  But he’s had some good conversations along those lines, and I hope that improving those lists and databases is the first level of priority for all of us.

Lastly, just to comment on the concepts of whether or not the authors think it right for Congressional intervention, yet again, in this area of election administration, and one part of the book mentions that the authors think it necessary for there to be a stronger set of guiding principles that will enhance election fairness and uniformity throughout the nation.  And that’s from Congress, or from the federal government. 

And then, but on page 184, they note that they’re not advocating that Congress take a new approach to election administration and mandate more issues until the states have had time to develop their responses to HAVA, and something along those lines.  So there’s a call for a broad principles, but not specific legislation.  I would even caution asking Congress to give any broad principles at this point.  I don’t know that they’re in the best position to do that respectfully, and one of the – I thought the most intriguing parts of the book was when the authors discussed different types of systems, and you could characterize some of them as a moralist culture, and those were some of the better election ecosystems of a moralist nature, were better equipped to handle some of these issues. 

And I’ll just – so you know what moralist means in this context.  “One in which the government is viewed positively as a shared enterprise to enhance community well being.”  And I don’t know that Congress could be seen at this point as a moralist enterprise, especially in the context of election administration.  So, I think it useful to do as the authors suggest, on page 184, to just wait and see.  Give states the time to respond to all of the new mandates of HAVA and other things, and states like Ohio – I have to stick up for Ohio a little bit, because I’m rooting for you in the BCS title championship game.  Even though I went to Penn State, where rival [inaudible] regular season, the post season, I’m going to root for my big ten colleagues.  So. 

So, just to be fair a little bit to Ohio, this was the first election in 2006 that was administered under the new state law, which finally adopted HAVA, and so there were some quirks in the system, and the election officials have said there were a lot of issues that we really just didn’t even know how to deal with on election day, and one of them that was brought to my attention is, even though the new state law requires that your identification match your address that’s listed on the poll book, there’s no requirement that voters get a new driver’s license, so it’s okay to have a driver’s license with an inaccurate address. 

So that makes it hard to require voters to come in with a new driver’s license – so those are practical considerations that I don’t think people really thought through in the 2006 election, and so I think they will in ’08, and I’ve also heard that the Secretary of State, even this past Monday, a week ago today, had a meeting on statewide registration databases.  So they recognize a lot of these issues and I think this book will go a long way to helping them make a more efficient process and to helping other states as well.  So thank you very much.

John C. Fortier:  Thank you, Caroline.  I used the term “irrational exuberance” in describing Ned’s proposal earlier, but maybe I should have saved it for Dan, because he looks eager to come in.  So I’m going to turn it over to Dan.

Daniel P. Tokaji:  Well, the big smile on my face, which distracted Caroline as she was speaking, is a result of my pleasure with finding so many areas of agreement.  I think it’s safe to presume that Caroline’s political views and mine don’t align completely.  And so, too, with Conny, we actually met in 2001, if I recall correctly, for the first time, over a lawsuit, yes, where I was suing on behalf of a group of voters trying to stop California from using punch card machines, including the ones that Conny was using at the time.  And I think we’ve really made a conscious effort in this report to write a document that can help us bridge divides, right? 

First of all, bridge divides between the academic community and election officials, and in my opinion, academics who have worked in this area have not always paid close enough attention to the perspective of the many fine and dedicated election officials in this country like Conny, and we really made a real effort in the writing of this report to go out there and speak to people who are on the ground running elections at the state level, but especially at the local level.  And I hope that what we’ve come up with is something that all of us can work together on. 

And also, you know, working across political and ideological lines as well, as I know AEI and Brookings have been attempting to do.  I do think that – and I think we all share this belief, that despite this sharp partisan ideological bickering that can sometimes characterize debates in this area, there is room for us to find common ground, and to move forward in improving the ways that we administer elections.  And I – just to respond to something that Caroline said towards the end, I don’t think we’re suggesting that all this work need or should be done by Congress.  In fact – and I know that that’s not what you were saying, but we were – we tried to be very cautious.  If I recall correctly, there’s only one specific area where we really think there’s a need for Congress to legislate.

Let me briefly respond to the comments in three specific areas.  I want to leave plenty of time for your-all’s questions.  One point that I just want to emphasize, and I don’t think this is a point of disagreement between ourselves and the commentators, is how we look at our election ecosystems.  Our choosing of the title, as Caroline was suggesting, is a reflection of our belief that we can’t speak of the United States as having a single election system, that each state’s ecosystem has to be analyzed on its own, and I think we really do believe that this is the kind of study that really needs to be done for the other forty-five states, if we’re going to analyze how those states can improve the functioning of their election system, not that we’re volunteering to do that at this point. 

In effect, we could go further and say that it’s not just fifty election ecosystems, but really the thousands of local election officials who are effectively, as Conny suggested, you know, street level policymakers in some instances.  Now, we do, I should emphasize, overall recommend statewide equality over local autonomy, and I think that is a particularly important part of our recommendation.  The provisional balloting example that Ned put up is, I think, a really wonderful example of that as an area in which we need greater uniformity.

Secondly, on this subject of provisional voting and registration, Conny’s actually quite right that there are discrepancies between old and new states in the percentage of provisional ballots that they count.  Some of you may have seen this news yesterday about a supposedly super-secret study that Ned and I worked on with the Eagleton Institute at Rutgers. 

It was actually released about a year ago and became part of the public domain about a year ago, but one of the things we found in this study – it was a study funded by the EAC, was that there was, in fact, a discrepancy.  Older provisional voting states tended to count a higher percentage than states for whom provisional voting was new, and while I do think it’s safe to say we see a high number of provisional ballots as in Ohio as something of a warning sign, there are lots of different reasons why you could have a high number.  One is that you’ve got real serious problems in your registration system. 

Another is that you’re using provisional ballots for a lot of things that other states aren’t using them for.  For example, people who move within a precinct, and, you know, a third reason could be, well, it may be that some of the states with lower provisional balloting numbers simply aren’t complying with HAVA, and are giving provisional ballots to everyone who’s entitled to receive one.  Following up on one of Caroline’s comments, yes, I mean, I think it’s definitely true that in the aggregate, HAVA’s provisional voting requirement has resulted in improvement.  It’s protected some people, had their votes counted in situations where they wouldn’t count it. 

At the same time, we should also acknowledge there are significant down sides to a large number of provisional ballots.  Not only are they a headache for election officials, but in a close election, this along with ambiguously-marked ballots is one of the big things that parties can fight over.  And we are quite worried, I think it’s safe to say all of us, about the prospect of having the Florida 2000 fiasco repeated with this time, the fight being over whether provisional ballots in a state like Ohio ought to count, rather than over whether punch card ballots ought to count.

Responding specifically to a question that Caroline asked, we do think that some, dare I say the word, liberalization of registration rules, would reduce the number of provisional ballots.  It has certainly been true in the states of Minnesota and Wisconsin that we looked at, which have model election day registration systems.  If someone has tried to register in one of those states before an election, and there’s been some screw-up, either the motor voter agency screwed up, or a third-party group like Project Vote screwed up, or if the election authorities screwed up, well, they can simply register or reregister, however you want to look at it, on election day, avoiding the need for provisional ballot, which can provide grist for the litigation mill after the election in a state like Ohio. 

So, too, we have a couple of alternative recommendations for states that don’t want to go the whole way towards election day registration.  One is the provisional EDR concept, which still has some of the same problems as you suggest, but could at least allow voters’ votes to be counted in circumstances where they haven’t been put on a registration list through third party error.  But another alternative is the one that Michigan uses.  Michigan has a very small number of provisional ballots.  We think that’s partly because of their affidavit ballot system, where voters who claim to be registered, but whose names aren’t on the list, can cast an affidavit ballot, which is presumptively counted.

Final point that I wanted to make is about the field of election administration.  I mentioned earlier the need for us to cross bridges both academic vs. election official bridges and ideological bridges.  You know, I’ve made the point in my review of Roy Saltman’s book, who is with us today, that this really has been an underdeveloped field, especially in the academic realm, throughout the twentieth century, and we’re still working to correct this. 

And I hope that – we always like to say it’s the beginning of a conversation.  This is a continuation of a conversation, but I hope that all of us can be part of the ongoing effort to talk and think about how election administration can be developed as a field, and on the ground how it can be improved across the country throughout our fifty election ecosystems.

John C. Fortier:  Thank you, Dan.  Thank you to the panel.  I’m going to take the moderator’s prerogative and ask the first question.  And that is – I mean, it’s a very rich book with lots of aspects of the election process in them, but you have two states here, Wisconsin and Minnesota, which are known for election day registration.  And maybe you could say something about the differences between them.  How they’re administered, both on the side that you’ve alluded to, of access, but also on the side of integrity.  How are people registered those days, and what do you see the advantages and disadvantages of the two types of election day registration you saw in your study?

Daniel P. Tokaji:  I mean, my impression – I was principally the one who wrote that this [indiscernible] chapter, Ned did Minnesota, and I don’t know that we’ve specifically discussed this question between the two of us.  My impression was that their election day registration systems function fairly similarly.  And, you know, one of the criticisms that might be made is that – look, these are states with moralistic or good government political cultures, and we can’t assume, based on the experience of these two states alone, that election day registration would work well in other states.  I think that’s a fair criticism.  I also think there’s other evidence from other states.  I’ll turn it over to Ned to see if he has any ideas on it.

Edward B. Foley:  Well, I think that’s right.  I think I would emphasize the similarities rather than the differences with respect to that aspect of the two states.  They have other differences.  What’s interesting, though, as was alluded to just a moment ago, is that Minnesota, ever trying to be in the forefront of change, and is trying to supplement its EDR system with this thing called automatic voter registration, so they’re not – you know, some people may argue that EDR works just fine in Minnesota, just leave it alone. 

In fact, the legislature adopted this reform at the Secretary of State’s request.  The governor vetoed it, said “we don’t – there’s no problem, so no need for change.”  But there has been this effort in Minnesota to have automatic registration, partly as a cost-saving measure.  At least, it’s defended on that ground, that if you can simply do it, have the government do it automatically by having motor – the motor vehicle people talk to the election people, then you kind of bypass some of the expense of doing it on election day at the polling places. 

When EDR was first instituted in Minnesota, you know, decades ago, there were actually long lines at the polls, as people took advantage of it.  Then they learned how to accommodate that, and staff up for it, and now they’ve been doing it long enough, they don’t have a long line problem.  But that is potentially an issue for those states that have moved to EDR – as a few states – I think North Carolina is doing it for the first time next year, and Montana and Iowa, I think, have adopted it.  You know, they may have to watch out for longer lines if Minnesota’s history is any example on that. 

So – and just to echo Dan’s point, and to clarify, what is true about Minnesota – Minnesota seems to avoid the potential for election day calamities by having simplicity built into its system.  And, you know, it does have a good culture, relatively speaking.  There are strains on its culture that we talked about, but, you know, as you try to imagine the awful nightmares that might occur on election day, like the kind that I describe of the workers not showing up, and the machines breaking down, and so forth, you know, some of that can occur in Minnesota. 

It can occur anywhere, like Conny was saying.  But through the laws that they’ve adopted, through their practices, they seem less at risk of that.  And one way that they avoid risk is that they do avoid the risk of fighting over provisional ballots by virtue of their election day registration system.  Now, that isn’t to say that EDR is for everybody, and that’s why this Minnesota affidavit idea is an interesting alternative, and that’s why provisional EDR, which is – I’m sorry.  Michigan has the affidavit system.  You know, provisional EDR still gives you provisional ballots.  It does allow people to correct for registration errors.  It’s a compromise that has problems in it.  But Minnesota has some simplicity that means that they’re less likely to have back in litigation. 

John C. Fortier:  Okay, we’re going to turn this over to the audience for their questions.  We have a couple of mics in the back.  While I’m here, I’m going to thank Tim Ryan, especially, for putting this together.  He has one mic there.  Molly Reynolds is also in the audience somewhere, and I don’t see her [indiscernible] back there.  And Matt Weil, with the other mic on this side.  So, if you could please identify yourself when you get the mic, and we are going to start right here.

Deborah Berry [phonetic]:  I’m Deborah Berry with the New News Service.  Do you take a look at voter ID laws, and particularly, can you speak to the potential impact of the newer laws in Georgia and Indiana?

Edward B. Foley:  Well, let me just say one quick thing about Ohio’s voter identification law.  We did focus on these five states.  We did look at it in a national context.  As was mentioned a bit ago, Ohio has an unbelievably complicated voter ID law, which is understandable why the officials in ’06 didn’t – couldn’t implement it, because it was brand new and it’s just overly complicated.  And, you know, HAVA has a bit of this, too. 

I mean, there is a tension in voter ID thinking, I guess, between flexibility and menu of choices, but a risk associated with that is extra complexity, and means that officials don’t understand it, and that leads to another conclusion of our book, which is the law as written, in the regulations, is not necessarily the law as enforced on the ground.  I mean, that’s Conny’s point, and we really have found that.  And the more complicated a law is, even when well-attentioned, the more difficult it is to administer, because elections, particularly in polling places, are these episodic twice-a-year kind of thing events.  Or maybe a few times a year. 

And so, as we think about ID law going forward, I think we have a tension between the values of, you know, array of options, you know, vs. the value of simplicity.  For example, Indiana has a very rigid law in the – some people say it’s the most rigid in the nation because there’s just very few options.  On the other hand, yes, you have an ID that counts or you don’t.  So – I’m going to stop there.

Daniel P. Tokaji:  Yes.  None of the states that we examined in our report have the strictest types of voter identification laws requiring government issue photo ID as is true in Indiana in the case going up to the Supreme Court right now, or Georgia, or Missouri, whose requirement was struck down.  There has been a vigorous debate over voter identification and whether to require this kind of photo ID in Wisconsin in recent years.  We do talk a bit about some of the available evidence both on the fraud side and on the – who has ID question, and we’re fortunate in that some of the best available evidence on who has and who doesn’t have at least a driver’s license is from Wisconsin. 

We know that there’s a stark discrepancy between whites who have ID, somewhere over eighty percent, and African Americans.  For African American men, if I recall correctly, it was something like forty-five percent, African American women, fifty-one percent in the state of Wisconsin.  For black males, eighteen to twenty-four years old, something like twenty-two percent had government-issued photo ID.  But, you know, none of these states had the kind of requirements that are at issue before the Supreme Court right now, so we don’t go into that issue in great length in the report.

Male Voice:  Let me begin by saying the book is a wonderful book and a wonderfully thorough book.  I had the chance to read it over the weekend in PDF form and it’s terrific.  One of the elements that I found most arresting in the book is somewhat of a distraction from the focus on the organisms, the ecosystems that you’ve described, but it’s pretty – it’s of potentially great importance for the ’08 election, and that’s the discussion you have on page 42 of the book. 

You don’t have to open the books – of House Bill 3 in Ohio, removing from the state courts the right to have contests for any federal officeholder, specifically the new provision 3515.08 says, “Contests of the nomination or election of any person to any federal office shall be conducted in accordance with the applicable provisions of federal law, but the state law will not be available.”  And that this means that for races like [indiscernible] in ’06, if it had gone into a fight, it would’ve been resolved by the House of Representatives, not by the state courts, and I’d like if you can just touch on how this came about, and is it reversible before this election? 

Steven F. Huefer:  That’s a really interesting question that we’ve given some thought to and have been a little puzzled by ourselves.  Ohio, like most states, does not have much in the way of legislative history for its state legislature, and this provision sort of showed up in House Bill 3, and struck us as disconcerting, to say it mildly, and there it is.  Now, of course, we’ve said in our report, and as Ned said here today, that we are also worried about the extent to which post-election contest proceedings, at the moment, in most respects, are resolved by state courts that may lack the amount of independence and nonpartisanship that would be ideal.  Now, of course, this is a footnote to that in saying that federal elections in Ohio don’t get resolved by the state courts.

Edward B. Foley:  If I can just jump in on that.  It’s not obvious to me that the state Supreme Court will necessarily obey that instruction.  I mean, you’d like to think that they might, but they could use an alternative procedure like mandamus or writ – I mean, we don’t have to get into the weeds of Ohio technical procedural law, but we’ve seen this in Ohio and other areas of high partisan-fraught litigation on other issues.  We’ve seen this is other states involving states’ Supreme Courts willing to – including Illinois, declare its election statutes unconstitutional, and sort of take it on their own judicial authority to figure out what it wants to do.  Now, these were pre-Bush vs. Gore decisions, but it is conceivable that the Ohio Supreme Court, if it so desired, would find an end run around this.  But it is there in the law.  It has to be grappled with, so –

Steven F. Huefner:  Well, there are also the prospects of some federal litigation, too, although much more difficult, but, you know, you can imagine some constitutional claims being brought under federal law without resolving the issue necessarily only in Congress.  Now, I presume that both the House and the Senate would prefer to have an election contest come before them with a more fully developed record than they would be getting otherwise, although they’re able to handle it in this way. 

Well, I see Karl nodding his head that they’re not able, but in theory, they are capable of it, and they have done, in the past, similar sorts of election contests where they have performed the same type of role that the state courts have, although typically, after the state courts have done it.  And they’ve been reviewing what the state courts have done, sometimes just really taking a look at it and saying what they think, other times recreating what the state courts have done.  But the other part of your question was is it reversible.  And, you know, as an Ohio person, I think the prospects of our state legislature changing it in the next six months are small, but there’s – it’s not inconceivable. 

Daniel P. Tokaji:  And let me say -- what I’m about to say goes outside the scope of our report, and it’s my own personal take on that amendment that was part of HB 3, the Comprehensive Ohio Election Reform Bill that passed at the beginning of last year.  I testified against that particular provision, and my sense of what was motivating the majority was that they were reacting to the stolen election claims that had been made around the time of the 2004 election, which included some – not Kerrey’s, or his campaign, but others, and other groups bringing lawsuits, saying that the election had been stolen, relying on such things as exit polling data in an attempt to make their claim.  And I think that the goal of the legislature was to close off that option. 

An interesting question which Steve’s remark notes is, you know, are the federal courts going to be more willing to entertain constitutional, perhaps even statutory claims in the event that there are serious improprieties that the Ohio state courts are at least formally barred from now considering?  That prospect, to me, is not at all inconceivable, and it could well be that federal district judges are more receptive to claims than they would otherwise be, because the parties are now barred from going into Ohio state court. 

John C. Fortier:  Karl is answering.

Karl:  First a comment on Ned’s seeing some virtue in the Indiana law.  In fact, it doesn’t even have the virtue identified in that some voters in Indiana have to present two different IDs and if you think it’s going to be complicated in Indiana with respect to the IDs, it’s because some poll workers are now going to have to understand for federal elections you may have to present one ID, but quite different an ID for state elections.  In respect to whether there’s a need for legislation at the national level, I think you need – if you don’t have legislation, all you’re going to get is increased litigation. 

Now, I’ll give you an example of one that Conny, I think, is quite familiar with – is the matching of drivers’ license numbers and social security numbers to voter registration records.  We’ve already seen the suit in Washington State.  We have a [indiscernible] suit in Florida, and in another example of that, of course, is what does it mean when you cancel provisional ballot if a judge has ordered the polls to be kept open?  HAVA doesn’t tell you what it means, and apparently, there will be provisional balance with no idea what consequence falls from the casting of a provisional ballot.  And that’s why even your neutral arbitrators might come to very different decisions about what does it mean.  So I do think there is a need, because of a lot of the ambiguity in HAVA, to actually have federal legislation to clarify what the law is.

Steven F. Huefner:  Jumping in quickly, you know, our report identifies weaknesses and vulnerabilities in these five states, some commonalities, some idiosyncratic to the particular states.  But as I think both Dan and Steve had mentioned and has been commented, there’s a – the need for reform doesn’t necessarily translate to “fix it right now in this way before the next election”, and so, we hope that our report is valuable now, but we also hope that it has some longevity of its usefulness, and we are cautious in this notion of too much reform, too quick, too fast. 

You know, some of these vulnerabilities, if we’re fortunate, may not come to pass in terms of actual problems emerging, at least not now.  So we may dodge some bullets this time around, and there may be an ability to fix things down the road, so, I mean, HAVA has its weaknesses.  I don’t disagree at all, but that doesn’t automatically mean you fix it today.

Male Voice:  [Subject far from microphone]

Steven F. Huefner:  But the reality is that an effort to fix it now is going to introduce other litigable issues, right?  And Conny, I think, has articulately pointed out that the election administration community is justifiably wary of being required to make too many changes too quickly.  And they’re still adjusting to the last change, and they really would benefit from the opportunity to develop consistency in what we now have.  Now, you know, that’s not to say that a certain particular reform, if we could accomplish it ourselves, might not be beneficial.  But we’re not going to do it.  Right?  It’s going to – if we reopen at a federal level today, these issues, we’re not really able to control what comes out.

Daniel P. Tokaji:  I actually think – you make a really interesting point, and, you know, we don’t say Congress should never legislate in this area ever, but on both the topics that I heard you raise in a registration database matching question and provisional vote counting, I guess my inclination is similar to those of Steve and Ned is that Congress should be exceptionally cautious in this area.  I do think you’re right, though, that what it means, where there’s an ambiguity in HAVA, is that the federal courts are going to wind up resolving it, hopefully through litigation brought well in advance of election day. 

That’s actually something that I am perfectly comfortable with, and I think is an appropriate role for the federal courts to play.  And I think, by and large, they’ve actually done a good job in that role, although I certainly don’t agree with all of the decisions, for example, in the lead-up to Ohio’s 2004 election, that the courts made.  But that’s a prospect I’m comfortable with.

Steven F. Huefner:  The other thing that I’d like to emphasize is that our report urges consideration of informal mechanisms, not just formal laws and reforms, to deal with some of these issues.  So, for example, in that ugly scenario that I – endgame scenario that I showed, what would be useful, rather than a new law right now, is just to have a kind of informal summit.  It could even be without the press, behind closed doors between the leadership of both parties in Ohio to say, “Look, if we have problems in Cuyahoga County in November, can we put in place a kind of protocol ahead of time, so that things don’t get out of hand and don’t get acrimonious?” 

Interestingly, I think the most fascinating part of the Minnesota story is how they dealt with their 1962 gubernatorial contest.  They had – their Bush vs. Gore occurred in 1962, and what happened?  There was a three/two partisan split of their elected state Supreme Court at an early phase of the process that the people said just felt wrong, because of their culture.  The two political parties and the lawyers for the two candidates sat down and wrote their own independent election tribunal and procedure.  They selected themselves three judges that they wanted to hear their contest, and they wrote the rules of the procedure for that ad hoc court, and you were able to get bipartisan agreement on a method to resolve the dispute. 

Sadly, I’m not sure Minnesota could replicate that, given polarization that has occurred there.  Sadly, I don’t know that we can replicate that anywhere, but that’s unfortunate.  In other words, what -- we need both sides to step up and say, “You know, there was something really great about the fact that even though they’re fighting over that governor, and even though both sides want to win, they were able to say we can have a fair process to adjudicate this dispute.”  So let’s – so there – if there is a will, there is a way in terms of informal mechanisms.

John C. Fortier:  We are running close to the end.  We’re not going to keep the polls open past our time, and we are going to take a last question from Tom Mann [phonetic].

Tom Mann:  Thank you, John.  Let me first add my congratulations and express my appreciation to the authors of this really excellent report.  I’d like to direct a question to Conny and Caroline.  We’ve had two successive close presidential elections.  The odds are we may be spared a third in a row if the past patterns in American history are any guide, and that may take some of the pressure off the possible nightmare scenarios that could develop.  Nonetheless, I would love to hear your thoughts, one from a local election administrator, one sitting on EAC and looking at the country, of what you worry about most.  That is, where the vulnerabilities are in the upcoming election round, where we ought to be, in your view, directing our attention to.

Conny McCormack:  Well, I think the answer to that question is I think we should be most focused on learning from the experience of the states with new voting machines.  I think that experience in many jurisdictions – they’ll be using new voting machines, they’ll have changes that they will have adopted in the ‘08 election, and they’ll be more mature than they were in establishing procedures and that sort of thing than they were in 2006.  I also think it will help the EAC because, as you know, we’re in the midst of – we’ve just begun the process of adopting the voluntary voting standard guidelines, so it’ll take some time, but selfishly, studying that area will be helpful to the EAC. 

The other area, which I mentioned earlier, is the statewide voter registration databases, and again, I believe that if those are working as HAVA anticipated, and as most states, you know, strive to get to a point of accuracy, that will help the overall election system.  That is the one area that I think can have the broadest implications.  So those are the two areas that I hope we can focus on.

Caroline Hunter:  I think the biggest danger in what we’ve seen in the past and what – it’s inevitable we’re going to see next year, is the misconstruing of data, this oversimplifying what an event means.  When X happens, it means Y, and it often doesn’t, and interestingly, and somebody – Michael [indiscernible] is in the room, but wasn’t at a seminar that he sponsored in San Francisco on Saturday that I was very fortunate to participate in, and there’s going to be more around the country, is bringing this – concept of bringing the media in, and it was a day-long seminar with media from seven states to talk about the complexities of election administration from every aspect, from election administration, from academic, there was a panel, there was a panel from advocates and activists. 

And what I saw all day long in looking at the media’s faces, which was fascinating, they started out, “Yes, yes, get it!”  And then at the end of the day, that nobody got it, which was the best thing that could’ve happened in the room, because all of a sudden, the light bulb went on that this is a very complicated area.  X doesn’t mean Y.  There were speakers that used the same data all day long to say this is what it means, and they were saying diametrically opposed things.  So this is not what the media – I used to – that’s how I started my career, as a journalist, and you just want to hear what someone says, write it down, put a quote around it, and go print it. 

And all of a sudden, you realize you can’t do that anymore, because if you do, you’re either going into a camp that is “gotcha”, you know, the gotcha situation, over-simplifying what it means, and we’re going to see that.  And I think there’s a real opportunity now for journalists, academics, practitioners to start having much more dialogue as to what it means. 

What Karl mentioned about the matching of the databases – huge issue.  Huge issue, not just in those states that have dealt with it more publicly, and again, this gets back to my earlier point.  There’s a lot of issues that are being dealt with not publicly, that are still being dealt with.  That makes a big difference because even if you get a provisional ballot, if you’re not on the list, and the rules say that if you weren’t on the list it isn’t going to count, it’s just a – it’s a fake provisional ballot, it’s not a provisional ballot anymore. 

It’s a problem to get the person – my earlier example of the nonpartisan [indiscernible] in California February fifth, who says, “I want a Republican ballot”.  One of the things that a lot of the poll workers will do, and probably do correctly, is to say, “Well, if you’re insisting, rather than hitting me, or whatever your next action’s going to be, here’s a provisional.  You can have a provisional Republican ballot.  Then, when it gets down to our office, we’re going to adjudicate that.  We’re not going to count it for the president, but then there’s all those statewide propositions that it’ll count for.” 

So we always tell our – it’s been our “just say yes” campaign for years in California.  Just -- if someone’s looking at you and arguing – just give them a provisional ballot.  You know, it’s the – just say here, diffuse the situation, but if, on the back end, you’re knowing it’s not going to count, that’s not good for anybody.  So, I think, to get back – and I’m way around, and not even gone your question, is it’s too complex, people are starting to realize it’s complex with the help of your organization as well. 

And the kind of research that’s being sponsored is going to tell people, dig a little deeper.  Get another opinion.  You heard from this person over here, go ask somebody else, and then try to do a little bit more analysis.  If just that comes out of ‘08, it’s going to help people who are reading it understand.  It didn’t just mean that, when I got the provisional ballot or didn’t just mean that.  And -- but that would be my hope.

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