Reforming American elections: The problem and a proposal

Peter Brent, Australian National University

Heather Gerken The Democracy Index: Why Our Election System is Failing and How to Fix It, Princeton, Princeton University Press, 2009 (192 pp). ISBN 9-78069113-694-3 (hard cover) RRP $44.95.

Election reform is big business in the United States. The country has oodles of individuals and organisations who energetically promote the cause. Academics meet at conferences to deliver papers explaining what must be done, individuals and groups run blogs and proselytise in print and on the airways on the cause of reform. A few politicians push it and public radio stations run the cause earnestly. There is no danger of all this human activity dropping off soon because little ever changes and America persists with its awful electoral system.

What is wrong with the way America runs elections? Lots of things, but the two main ones are that it is infested with party interference and it is extremely decentralised. The causes and effects are many. There is no one law stipulating who can vote and how at national elections; this is left to the states, and then each of the some 13,000 local governments (counties) runs its own portion of national polls. No firewalls exist between the executive and election officials; indeed they are often one and the same.

No-one has overall national responsibility and so it is done on the cheap, yet inefficiencies, duplication and multiple diseconomies of scale mean it is not done cheaply. Secretaries of State in the fifty states—many of whom are directly elected and nearly all of whom belong to a political party—can, and sometimes do, indulge in dodgy behaviour regarding voter registration and facilities on polling day. In some places voters queue for hours to vote, either because of incompetent administration or because it suits the electoral purposes of one political party. In some places it has been known for partisan operators to collect filled out registration forms from people intending to enrol and then throw away those registering for the other major party. (In most states people must nominate a party when registering.)

America’s twin curses were famously highlighted to the world in Florida in 2000. The decision of when to stop counting the votes sat with the elected Secretary of State, Katherine Harris who, with the outcome of the presidential election at stake, unsurprisingly took the path that would favour her party. And one of the state’s counties, Palm Beach, innovated with the woeful ‘butterfly ballot’, which saw thousands accidentally vote for the wrong candidate.

America’s twin curses were famously highlighted to the world in Florida in 2000.

As it happens, a country that provides perhaps the sharpest contrast to America is Australia. Here every aspect of nationwide elections (and referendums and some local council polls) are run by a national body, the Australian Electoral Commission, which is funded by the federal government but enjoys statutory independence. The AEC has a central office in Canberra, a head office in every state capital and divisional offices in nearly each of the 150 electorates across the country. Its approximately 700 full-time permanent staff (who are supplemented by many hundreds more around election time) are public servants who are prohibited from engaging in political activity. Apart from postal voting applications (an unfortunate exception), political parties, and indeed politicians, are kept well out of the process.

There is a long-standing culture in the federal and state spheres: politicians know where the line they cannot cross is, and electoral officials firmly remind them when they forget. Consequently, after every election in this country, some minor exceptions aside, no-one seriously questions the outcome. In America the line doesn’t exist, partly because so many public positions are elected and in most cases the individual responsible for elections, be it at county or state level, is partisan.

The reasons for our countries’ different approaches to the running of elections lie, unsurprisingly, in our histories. It is largely about the timing—of European settlement in the ‘new world’, the arrival of mass franchise and the ‘Australian ballot’. The popularity of ‘Benthamite’ approaches to society at the time the Australian colonies began running elections saw us quickly develop a ‘professional’, bureaucratic approach to elections. The government unashamedly took control, at substantial public expense, to ensure elections were run properly. Hence we had the first professional electoral officials in the world. By the time political parties emerged, Australia’s electoral institutions were robust enough to withstand the pressure.

Part of the problem with United States is that there are so many elections, for so many positions in so many jurisdictions, that little space is left for disinterested public servants to do their work. One suspects that Americans view electoral reform as they do health reform: a nice idea perhaps but in practice too much like those socialist European countries. And any move towards centralisation, meaning greater power in Washington, would be viewed with suspicion.

Heather Gerken, a professor of law at Yale Law School, has proposed a simple, inexpensive, non-coercive solution to her country’s woes, which she calls the Democracy Index. She first suggested it in an article several years ago and the idea was subsequently picked up by Democrat presidential frontrunners Hillary Clinton and Barack Obama. She has now written a book arguing her case, The Democracy Index: Why Our Election System is Failing and How to Fix It which was published this year but largely written before the 2008 elections. Her plan is for data to be gathered from every jurisdiction to compile a ranking of their competence in running elections. Various criteria would be used, and the details are yet to be decided, but they would measure ‘three simple things: (1) registering voters, (2) casting ballots, and (3) counting votes’. The Index and all its inputs would sit on a website, run by a respected non-partisan body, so that anyone would be able to see how the list was calculated.

Part of the problem with United States is that there are so many elections.

Gerken’s spiel is appealing. Rather than pushing for something that is not going to happen—wholesale reorganisation of the way the country runs elections—reformers should instead accept the world as it is and make the best use of what they have. In particular, the bane of the election system, the powerful twin forces of partisanship and decentralisation, will be turned by the Democracy Index into attributes. How? Through those American rhetorical staples: competition, self-interest, human nature and the market’s invisible hand. Because no jurisdiction will want to appear at the bottom, the poorly performing ones will be shamed into emulating the good ones, and the high ranking ones will persist because they’re proud of their recognition. The market-place will bring out the best in everyone. In this way the Democracy Index would be ‘harnessing partisanship and localism in the services of change’.

Gerken’s presentation is decidedly ‘Third Way’. Determined not to come across as dewy-eyed liberal, her writing is full of references to ‘evidenced based’ outcomes, ‘new style reformers’, markets, competition and rationality. The old debates between Left (agitating for greater access to the vote, especially for the poor and disadvantaged) and right (who are more interested in safeguarding against fraud) will be left behind. The Democracy Index will work out the balance between the two.

Gerken mentions data a lot. One big problem is that there is none at the moment, that when it comes to elections Americans live in ‘a world without data’. In fact,

[m]any states and localities cannot tell you how many poll workers showed up on election day, how many people were registered to vote or cast a ballot during the last election, or what share of votes came from absentee or early voters.

Data data data: the sort of language that appeals to left-brained no-nonsense types. Gerken is bipartisanship personified.

The great thing about her suggestion is that it would not cost much to do and at the very least its outcome, a collection of data on American election management, would be extremely worthwhile in itself. It could provide the framework for meaningful analysis of the problem, and would concentrate people’s minds on the topic. She correctly notes that rankings such as this are superficial, but reasonably argues that this makes it accessible and amenable to popular participation. In any event, boffins will be able to find all the details on the website. One can imagine that on slow news days badly performing jurisdictions would be put under the spotlight by their local media. And the Index would be probably do much more than that.

There are also potential problems with Gerken’s idea. Indeed, most of them are pre-empted by the author in her book. Deciding on criteria will be difficult. The Index may, particularly in its early stages, have unforeseen consequences and encourage undesirable behaviour—inefficient use of resources whose only purpose is to raise a jurisdiction’s ranking. The counties and states will be supplying the data, so they may simply lie. But she sees all these as teething problems rather than reasons not to proceed.

The great thing about Gerken’s suggestion is that it would not cost much.

But there is something troubling about her idea, or perhaps in her argument for it, which maybe only jars to the non-American reader. Gerken sees her Democracy Index as empowering voters, drawing them to be more involved in the way elections are run. She states that ‘voters care about how elections are run’—a bold claim. But furthermore, she envisages election administration becoming, thanks to her Index, first order election issues, and indeed ‘[t]he most optimistic hope for the Index is that it will encourage voters to get more engaged in grassroots activities’.

This may be hyperbole on her part, icing on her argument, but the prospect of electoral administration becoming election campaign fodder would send a shiver up the spine of any Australian electoral administrator. And of the spine of anyone who believes in careful, professional election administration. Election campaigns in America (and Australia) are hardly exemplars of thoughtful consideration of issues. Rather, they are characterised by misrepresentation, glib statements, sound-bites, emotion, mindless partisanship and market-tested promises. The more outrageous promises are usually broken and voters don’t particularly care.

Jurisdictions competing up the democracy ranking is one thing, but citizens directly voting on electoral matters in another. According to Gerken, voters ‘make surprisingly good decisions about how to cast a vote’. Really? ‘Good’ according to whom? Not everything in life should be directly voted on. Electoral administration should remain away from daily politics. Hopefully, however, American voters will, like counterparts the world over, continue to find the topic a big yawn, and this ‘most optimistic hope’ for the Index will not come to pass.

Anyone interested in learning what’s wrong with the American election system should read Heather Gerken’s book. It outlines the case for change and gives many concrete examples. Though not a large book, it has a slightly padded feel, which perhaps this accounts for the occasional over-ambitious claim. But stripped of these, Gerken’s Democracy Index is an excellent, affordable low risk idea. Let us hope it is taken up. It is certainly worth a try.

Dr Peter Brent is a researcher at the ANU. His PhD, awarded in July 2009, examined the history of Australian electoral administration. He also runs the website, which deals with electoral behaviour.