Tokaji [Ohio State]: The Future of Election Reform

Daniel Tokaji, Moritz College of Law, Ohio State University:

"While some advocates are looking to Congress to fix some of the problems that emerged in the 2004 election, this report from electionline.org suggests that they may have better luck in the states. House and Senate staffers suggest that Congress isn't in much of a mood to reopen the Help America Vote Act. The story also suggests that more legislation, even at the state level, may not be the answer:

Legislative action, said election officials, does little to address apprehension over the lack of voting system technology standards, looming HAVA deadlines, costs incurred to meet these deadlines, and the future of funding for statewide registration databases and voting systems. It now appears that there is little possibility that any of these cost concerns will be met in the coming year.
My take: While I wouldn't rule out the possibility of federal legislative action, it's not at all clear to me that Congress is the most promising venue for improving many of the problems with our election system. There are clearly changes to be made, particularly in such areas as provisional voting and registration databases. The Election Assistance Commission, created by HAVA, has a critical role to play in addressing these problems. Part of its responsibilities include funding research and making recommendations as to best practices.

Passing federal legislation setting specific rules could give rise to unintended and unfortunate consequences. A case in point is the proposed legislation to require that all electronic voting machines generate a contemporaneous paper record (CPR), euphemistically known as the "voter verified paper audit trail." It's far from clear that this will appreciably enhance voting security, given that it will only function effectively if the integrity of the paper records can be assured and -- most important -- that the paper ballots are actually counted at the end of the day. Moreover, requiring any particular security fix will have the effect of locking that technology in place -- discouraging innovation, including the development of technologies that may turn out to be much more effective in promoting security and transparency.

What the CPR can certainly be expected to do is to discourage counties from moving to electronic technology, as has recently happened in Ohio which passed a CPR requirement last year. That legislation precipitated Secretary of State Blackwell's decision to mandate that counties go to precinct-count optical scans. The big losers from these developments are likely to be people with disabilities, since there's no certified technology that can meet the requirements of state law and it's doubtful at best whether it can be implemented in time for HAVA's 2006 deadline for providign accessible technology.

Congress should stay far away from mandating this or any other specific security fix. What it should do is to fully fund HAVA, and provide the resources that the EAC needs to accomplish the worthy goal of equal voting access for all. It would also be worthwhile to explore the possibility of giving the EAC or some other federal agency responsibility for setting standards. This might have the effect of taking away chief election officials' power to engage in partisan decisinmaking. But to enact rigid election adminstration rules into federal law is a dangerous game, one that could well end up doing more harm than good." [January 14, 2005; Equal Vote has the post]

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