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Heather Gerken: Presidential Commission Lots More Than "Nothing"

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[Image courtesy of sonofthesouth]

Recently, political scientist and blogger Johnathan Bernstein expressed doubts about the forthcoming report of the Presidential Commission on Election Administration:

I'll stick to what I said back in February: a presidential commission is the wrong way of going about this, and Bauer and Ginsberg are the wrong people to head it if the goal is to really change things.

Yesterday, Yale law professor and election geek emeritus Heather Gerken responded at the Election Law Blog with this observation, which I'm reposting nearly in its entirety:

Jonathan Bernstein has insisted that we should “expect nothing” from the president’s electoral administration commission, headed by Bob Bauer and Ben Ginsberg. It’s not a bad prediction for any pundit, because “nothing” is pretty much what we’ve been getting out of Washington for a good long while. Moreover, I wasn’t sure that anyone was more cynical than I am about the possibility of election reform, so it’s nice to have company. As I've written elsewhere, getting “from here to there” with election reform is incredibly difficult in the current political climate. Nonetheless, I think that Bernstein is wrong and that it’s worth saying why. (In the interest of full disclosure, I should note that I have occasionally been asked by the commission to provide technical expertise and, like most of the people in my field, know and respect both Bauer and Ginsberg).

Your view of the commission will depend on what you think it’s realistic to expect on the reform front. Bernstein, much to his credit, candidly admits that he wasn’t sure what President Obama should have done in the wake of the 2012 election. He suggests that Obama should have pushed for legislation in the hope of slipping it into an omnibus bill, although he ruefully admits it “probably would have died.” (On that prediction, I'd just omit the “probably.”) Or perhaps, says Bernstein, Obama should have pushed to draft “model legislation” for the states. (This doesn’t strike me as any more likely to succeed; it’s hard to see why state legislators will pass meaningful reform given that they are no less self-interested than members of Congress.) Bernstein nonetheless thinks that a dead bill that squeaked through the Senate or model legislation for the states will do more to reform our system than the president’s commission will.

If this were yet-another commission pronouncing on the deep systemic reforms we need (or, worse, trotting out the liberals’ list of pet reform projects), I’d be with Bernstein. I’d be even gloomier than Bernstein, actually. But Bernstein either isn’t paying enough attention to the structure of the commission or doesn’t realize how much good a commission structured in this fashion can do.

As Bernstein astutely points out, this commission doesn’t look like it’s structured to “cut a deal” on election reform. To my eyes, it doesn’t even look like it’s structured to propose Bernstein's “strong” federal bill or his model legislation for the states. I assume we aren’t going to see some substantial compromise proposal on the hot-button issues of the day. And with good reason. In the current political climate, there is no grand bargain to be had. I don't care who is on the commission or who is sponsoring Bernstein’s proposed legislation. The votes aren’t there.

The Commission is, however structured to get something done. It’s a commission filled with highly respected election administrators and Fortune 500 CEOs. No representatives of “the groups,” no office holders, no academics, no political types save Bauer and Ginsberg. What can a commission like that do?

It can get something done. I’ve spent a great deal of time working with election administrators under the auspices of the Pew Foundations, which has turned my proposal for a Democracy Index into a reality. That work really brought home the lesson familiar to anyone familiar who understands the root causes of the lines we saw in 2008 and 2012: election administrators are doing an extraordinarily hard job with extraordinarily few resources. Many lack the planning expertise and technical support they need to do the job we’ve assigned them. Some don’t have the tech, some don’t have the training, and some don’t know the tricks necessary to deal with the administrative problems they face. They lack, in short, the tools and knowledge possessed by . . . that’s right, Fortune 500 CEOs.

Having a problem with lines? Maybe you should talk to Brian Britton, a top executive at Disney. Struggling to do the short- and long-range planning necessary to predict voter turnout, allocate staff and machines, and use what resources you have wisely? Maybe you should talk to Joe Echevarria, the CEO of Deloitte. Election administrators routinely encounter an endless number of technical, nuts-and-bolts problems. Election administrators don’t need a grand bargain. They need small, pragmatic solutions. They need more technical capacity. They need, in short, the knowledge and capacity that Fortune 500 companies possess.

And, lo and behold, guess who’s on the commission? The election administrators who know the most about the nuts-and-bolts problems of election administration and the Fortune 500 CEOs who know the most about solving those kinds of problems. I would expect a commission structured in this way to offer low-key, deeply pragmatic, easily implemented, and assiduously nonpartisan proposals for making our election system work. I would expect a commission like that to begin the important task of getting the technical tools and business know-how to the election administrators who desperately need it. That’s a nonpolitical solution, but it’s also a cure for at least some of what ails our politics.

Progressives are likely to be disappointed in such an outcome. They want nationally mandated standards. They want the states to pass model legislation. They want a solution to the voter ID fight. They want a lot of things that are never going to happen in this political climate. But they ought to appreciate what a commission like this can do. To the extent we’ve seen any meaningful election reform during the last few years, most of it has come from capacity-building efforts like [Pew's] ERIC project or ... the University of Minnesota “Election Academy” to raise the level of professionalization among election administrators. None of this work is glamorous. It’s the type of technocratic work one expects from CPAs, not civil rights crusaders. It’s not the stuff of reporter's dreams. It’s not the stuff of anyone’s dreams. But it matters.

Having watched two presidential elections from the Obama campaign’s Boiler Room, I've become convinced that if you care about the rights of voters, you should focus as much on what business school teaches us as what the Constitution teaches us. Sometimes, a well-run, properly administered election system is a civil-rights solution. If the commission helps us get even a little bit closer to a well-run, properly administered system, that’s a victory in my book. At the very least, it ain’t “nothing."


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