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New Style of Election Reform Begins to Emerge—A Commentary by Heather Gerken

The following commentary was published in Roll Call on March 27, 2007.

New Style of Election Reform Begins to Emerge
By Heather Gerken

After years of electoral crises and near-misses, we have yet to see serious changes in the way we run elections. The good news is that a new style of election reform is starting to emerge, and it has taken root in the offices of two top-tier presidential candidates, Sens. Barack Obama (D-Ill.) and Hillary Rodham Clinton (D-N.Y.).

This new reform paradigm shifts away from the traditional civil rights perspective toward a more pragmatic, data-driven approach. Unyielding in their idealism, the new election reformers attack problems with the hard head of a corporative executive. They look to a variety of institutions (the market, administrative agencies), not just the courts, for solutions. And they are as likely to appeal to traditionally conservative ideas - accountability, competition - as progressive values like participation or empowerment.

During the past two weeks, Obama and Clinton have introduced separate bills to create a "Democracy Index" - a ranking system of state's election administration practices. Just as U.S. News & World Report ranks the performance of colleges and graduate schools, the Democracy Index will rank how well states run their election systems. It will focus on the everyday issues that matter to all voters: How long did you spend in line? How many ballots got discarded? How often did voting machines break down? It should work for the same reason that college rankings have such a dramatic effect on university decision-making: No one wants to be at the bottom of the list.

The Democracy Index, which I first proposed in January in Legal Times, bears all of the hallmarks of the new paradigm of election reform. It avoids one of the central problems associated with traditional reform debates. Reformers often talk in terms of anecdotes and idealism, or they become so bogged down in technical details that almost no one can follow their arguments. Voters simply have no metric to evaluate these claims.

The new reform, in contrast, is data-driven and results-oriented. For instance, Spencer Overton, a member of the Carter-Baker Commission on Electoral Reform, challenged the commission's controversial endorsement of a voter identification requirement by documenting how many elderly, poor and minority voters would be disenfranchised by such measures and the scant evidence of voter fraud. Most arguments about voter ID simply invoke civil rights rhetoric. Overton called upon that tradition, but he also offered a simple cost-benefit analysis. Why, he asked, should we disenfranchise thousands of eligible voters to prevent a handful of ineligible people from casting a ballot? The Democracy Index similarly offers voters the kind of concrete, comparative information voters need to hold election officials accountable.

The index also is more pragmatic than other conventional proposals. Election reformers usually ask politicians to enact reforms that are contrary to their self-interest. The Democracy Index harnesses partisan competition in the service of reform. Any secretary of state ought to want to be at the top of the ranking; it is likely to increase her standing within the professional community and, should she run for office, help her political fortunes as well.

The new reformers are also eclectic in their approach. Typically, reform proposals follow the civil rights model: top-down federal regulation creating rights to be enforced. Some have begun to look to other regulatory approaches, particularly those drawn from private and administrative law. The index, for example, would allow Congress to improve the election system without issuing a single regulation. By requiring states to disclose information, it creates the conditions in which healthy interstate competition can emerge. In place of a command-and-control approach, the index leaves room for experimentation and innovation. With its focus on transparency and accountability, the index ought to appeal to politicians on both sides of the aisle.

The fact that Obama and Clinton, rivals for the presidency, can agree on a proposal like the Democracy Index is highly suggestive. We need a new paradigm for talking about election reform, and the initiatives of these two pragmatic presidential candidates suggest we will get one.

Heather Gerken is a professor at Yale Law School specializing in election law.