Post Date: September 28, 2005

The following editorial by Professor Heather Gerken, For Shame, originally appeared in The New Republic Online on September 28, 2005.

Yesterday, the Election Assistance Commission (EAC) released the results of a national study of election practices. Created in the wake of the 2000 presidential election, the commission is charged with improving how elections are run. Unfortunately, Congress gave the new agency a modest mandate, little money, and less clout. The EAC has been so embattled that the National Association of Secretaries of State demanded that Congress dismantle it before all of its members had even been appointed (a request that, fortunately, was not granted).

Still, even without the authority accorded to most federal agencies, the EAC can get something done. In politics, information is power, and the EAC is uniquely suited to use that power to catalyze reform. The study released yesterday, which documents election practices in different states and localities, is an important first step. But it also presents much of its information in disaggregated and difficult-to-navigate form, and it does not provide a full set of comparative rankings on every issue that matters to voters.

Now the EAC should use its data to create explicit, comprehensive rankings of states and localities, shaming those local governments that are doing a poor job of running elections and rewarding those that are excelling. It’s a strategy taken directly from the playbook of some human rights and environmental organizations, which have long used rankings to prod nations into improving their practices. The strategy works for a simple reason: No one wants to be at the bottom of a list.

It isn’t hard to devise objective, comparative measures for state election practices. Voters know what they want–or, rather, what they don’t want (long lines, discarded ballots, burdensome registration requirements). For instance, an EAC ranking system should tell us which states and localities discard the most ballots, where we find the greatest racial disparities in registration or turnout levels, and which polling places have the worst voter-to-machine ratios. Such methods of delivering information to citizens have become quite familiar in the wake of the No Child Left Behind Act, which generates school-by-school report cards showing how well students perform on standardized tests and even breaks the information down so that parents can evaluate how certain types of students (such as racial minorities or students with disabilities) fare within each school. Voters need the same type of comparative information if they are to hold election administrators accountable for their failures.

Would people pay attention? After all, few of us worry as much about the performance of our polling place as we do about the success of our children’s schools. But voters have ready-made allies that care deeply about this information: political parties, which can use the rankings for partisan advantage if they get the word out. As the experience of other countries suggests, election reform proposals often gain the most traction when they become a stick used by the opposition to beat up the party in power. It’s ugly, but effective.

Consider the fate of Ohio’s secretary of state, Kenneth Blackwell, who presided over an Election Day that was error-filled, chaotic, and tainted by claims of partisan bias. Blackwell is now angling to be the GOP nominee for governor. Imagine if Ohio Democrats had a national ranking system showing Ohio to be one of the worst-run election systems in the country based on a variety of objective, EAC-endorsed measures. Across the nation, secretaries of state would surely take notice of that campaign. Even the rare election administrator without higher political ambitions would feel pressure to do better; shaming is a remarkably effective device.

Were the EAC to create national rankings, it could unleash something unusual in a federal system: a race to the top. It might thereby help create the type of shared standards and professional culture we sorely need among election administrators. The proposal also gives states the independence and flexibility necessary to experiment while providing objective measures for holding them accountable. Finally, a national ranking system wouldn’t be hard for even a toothless agency like the EAC to put in place. Information gathering is far easier than imposing national standards on the states. And it just might yield a similar result.

Heather Gerken, an election law expert, is a professor at Harvard Law School.