Earlier this month, the Center of the American Experiment released a report, entitled “No Longer a National Model: Fifteen Recommendations Fixing Minnesota Election Law and Practice.”The report, authored by American Experiment Senior Fellow Dr. Kent Kaiser with the input of numerous (but unnamed) contributors, criticizes aspects of the election system in Minnesota and proposes solutions for some of the problems seen in recent days, especially in the lengthy and controversial recount process in the 2008 US Senate race.

The fifteen proposals have already been lauded by the Pioneer Press and Politics in Minnesota. Many of the proposals are no-brainers. For example, it’s unacceptable that “Military absentee ballots were 16 times more likely to be rejected and that most of them were rejected because they were received after Election Day.” Logistical problems and a tight schedule from primary to election day in Minnesota are to blame. Another example: (although the debate often carries a partisan edge) the inability to verify voters at the polls with something as simple as a photo ID requirement is a problem. Allowing voters who vote absentee to “verify” their ballots as valid by running them through a test machine seems like a reasonable idea, although the ability to do that doesn’t seem like it would help people mailing in ballots, especially from afar. Yet another example: checking to make sure that people aren’t voting in multiple states. If somebody applies for a drivers’ license in another state, the license in the other state is automatically cancelled. Why not the voter registration? Many of the technical solutions being proposed are sound and simple and one may ask why haven’t they been proposed before? One suggestion is already on the table. Senator Al Franken has just submitted a bill to Congress requiring states to grant at least 45 days for overseas ballots to be issued and returned.

There are other suggestions that may generate more controversy.  Not, as you might imagine given the Center’s conservative bent, with liberals who might find changes to be a handicap to access, but rather to conservatives and libertarians who might well ask, how do these suggestions fit with constitutional principles? We are talking about a basic element in our democratic government, one that defines it, gives it is shape and credibility.

Center of the American Experiment President Mitch Pearlstein provides a response to that question in his foreword. “…while the explicit purpose of most of the previous investigations was to apply conservative and free market tests to what the government does, the explicit purpose this time around has been to have nothing whatsoever with anything ideological—be it right, left, sideways –as conducting elections which command the trust of citizens is of an entirely different order.”

Nice try, but it’s a cop out. Political Science 101 teaches us that ideology is embodied in institutions. That’s true if you are a libertarian, a Marxist or a feminist. When we tinker with the mechanics of something as fundamental as an election, we need to pay even greater attention to the messages we send and the behaviors we incentivize and judge them according to whether they conflict with and undermine or help to translate constitutional principles in light of new problems and possibilities.
Returning to the question of the photo ID for voters–yes, it is controversial on the left, as a “barrier to voting.” ( Let’s leave aside for a moment it is nearly impossible to live in the modern world without being able to acquire and present a photo ID of some sort, whether to drive, to purchase certain classes of items or to conduct even the smallest of financial transactions.) Civil libertarians are critical of any sort of government controlled and mandated ID card where data is collected on an individuals’ movements or tagged with other personal identifiers. Dr Kaiser’s characterization of the use of such an ID is not likely to put their fears to rest:

“A quick swipe of a photo ID through a card reader could fill in the data fields in the state’s voter registration system, thereby eliminating common data-entry mistakes that take place with the current pen and paper registration system. A quick swipe of such ID at the sign-in-table in the polling place on Election Day would eliminate the need to line up by parts of the alphabet, would conserve thousands of pounds of paper currently used to print voter rosters in every election, and would greatly speed up the lines in polling places. It would also eliminate the need for post-Election Day data entry of voter participation history, which after the 2008 election took several months and cost county governments tens of thousands of dollars to complete.”

There is obviously a tradeoff in cost, convenience and the integrity of the vote vs. having to present a “swipeable” government ID with a yet to be determined amount of personal data. But we aren’t looking at “ideology” so privacy concerns and civil rights concerns are not considered here.

Another of the more controversial aspects of the report is likely to be how many of the solutions to the current problems boil down to “centralizing” the process at the state level. Historically, cities and counties (local units of government) have controlled elections. This is not merely a practical matter but a reflection of local governance and local control enshrined in the constitution. The suggestions:

• No more SOS political appointments—election workers (other than ground level election judges) are all state employees
• No more partisan appointments to State Canvassing Board—make appointed administrative law judges members, who are state employees
• Centralized administration of foreign ballots
• Barcoding and central processing of ballots
• Instituting a provisional ballot system for voters without ID on election day, checked centrally
• Requiring recounts to be done at a central location

The experience of elections in other countries where democracy is challenged suggests that ballot fraud takes many forms. There is localized fraud, where the town political bosses fail to accurately count ballots. There is regional fraud, where ballot boxes go “missing” (or wires get crossed) on the way to the centralized counting and there is national fraud, where the central electoral council announces a result and manufactures a paper trail later. Centralizing ballot counting is no guarantee of fraud elimination. In fact, it makes fraud on a massive scale, more possible if not more likely. In the case of a state like Minnesota, one need not even imply that the fraud could be intentional. A small mistake at the local level would involve a minimal number of ballots and would be less likely to throw an entire election and elections system in disrepute. A mistake on the state level would be, by definition, systemic and could be catastrophic.

Dr. Kaiser admits that there is a limit to how insulated even a “professional” government employee can be with this vignette from the 2008 Senate recount, in the “drama” of the “missing ballots:”

…the drama involved in getting these “missing” ballots counted, in spite of their apparent non-existence, was viewed as partisan. This suspicion was fueled by the fact that the Director of Elections in Minneapolis at first explained how there might never have been ballots to back up the numbers indicated on the ballot scanner from the precinct in question. Later we were distressed to witness the City of Minneapolis Director of Elections seeming to buckle under partisan influence….

The Deputy Director of Elections in Minneapolis at the time was Cindy Reichert, an employee of the city of Minneapolis. If she could be susceptible (or be perceived to be susceptible) to “partisan” pressure, why would a state employee not feel the heat in a hotly contested state legislative or gubernatorial race, which arguably holds more portent for their conditions of employment than a U.S. senate race would have been for Ms Reichert? State employees are not devoid of associations. They may belong to parties, political groups, churches and unions. There is no state version of the Federal Hatch Act that prevents state employees from participating openly in politics. With partisan appointees to the Secretary of State’s office, at least, we may guess at the affiliation of the appointees and if bias is evident, it may be confirmed and overruled. By demanding that career bureaucrats staff the office, we’ve merely thrown a cloak over any bias by assuming it away.

There is a constitutional solution for many of these problems. It was built into the original design. If the party system is competitive, control over the Secretary of State’s office is bound to alternate. If no party expects to control the office permanently, then competition should keep them honest and cause them not to act in any way that they could pay the price for, down the road, when they are no longer in power. Another constitutional principle, accountability, would prevent any future political appointee or their minions from engaging in any significant abuse that could be exposed. In order to have accountability, there is a great need for transparency in the Secretary of State’s office, for procedures to be visible and understandable to the voter, from the handing of a ballot to and from the voter to the result on election night. Robust competition and the intense scrutiny it fosters is the solution, not placing the entire office into the hands of mandarins.