Legal Commentary

I'm usually quite sympathetic to the plight of election administrators. They do a hard job with inadequate resources, and it is always election officials -- not the state legislators and local officials who starve them of funds -- who get the blame for any problem. In a few hours (knock wood), I will hand in the first draft of my book on election administration -- "The Democracy Index: Getting From Here to There in Election Reform" -- to my editor at Princeton University Press. There I argue that we are too quick to attribute partisanship or incompetence to election administrators. We see a problem, we know that the officials involved are aligned with one candidate or another, and it's all too easy to connect the dots and conclude that someone was playing politics when in fact the problem is probably caused by a lack of resources. I suggest in the book that we follow a gentle version of the rule called "Hanlon?s Razor," which says that we should never attribute to malice that which can be explained by incompetence. In the context of election administration, we should never attribute to partisanship that which can be explained by a lack of resources.

Despite all this, in my view there is no excuse for election administrators not to have enough ballots on hand this Tuesday. Everyone knows that turnout is likely to be huge. In the South Carolina primary, 530,000 Democrats cast ballots, up from 290,000 in 2004 (a number that was itself a record). Fifteen thousand people showed up for an Obama rally in Boise, Idaho, roughly three times the number of Democrats who caucused in Idaho four years ago. Given that I'm affiliated with Senator Obama's campaign, I'll hasten to add that Hillary Clinton is drawing large crowds wherever she goes and is similarly turning out huge numbers of voters. Republican turnout has also been high, though not nearly in the range of Democratic turnout. It's one of those amazing years where the nation is paying attention.

More importantly, different people are turning out than in prior years. Young people and African Americans have turned out at extraordinarily high rates. That means that the people running polling places in university towns and predominantly black neighborhoods should be particularly worried about turnout. Think about what happened in Boston when Deval Patrick ran for governor in 2006. A number of predominantly black precincts ran out of ballots. This led many to excoriate Mayor Menino for failing to anticipate that black turnout might be high in a year when Deval Patrick-- an African American famous for his grass-roots organizing -- was running a historic race for governor. The problems were so bad that the Secretary of State vowed to take over the Boston Elections Department, and Mayor Menino publicly apologized. Given that the mayor has endorsed Hillary Clinton, I imagine that he is one of the people most worried about a repeat performance.

Boston election officials, like election officials throughout the country, would be wise to take a page from the playbook of election officials in South Carolina. South Carolina's Republican primary, which occurred a week before the Democratic one, was marked by a number of problems, most of which had to do with the unexpectedly high turnout. In a single week, election officials made sure that they printed enough ballots and remedied the other problems they saw. Despite the fact that those officials were hit by a turnout tsunami during the Democratic primary, everything went smoothly.

Election administrators in the SuperTuesday states have had a good deal more warning than South Carolina had about the need for ballots. The problem is not only easy to spot but easy to fix. Unlike the other issues that routinely occur during elections -- malfunctioning machinery, poll worker problems -- this problem has a simple solution. Print enough ballots. No excuses on this one.

Full post as published by Balkinization on February 03, 2008 (boomark / email).