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By Jack M. Balkin

Given that election law is my specialty, regular readers of Balkinization may have been puzzled that I haven't posted much during the last year. The reason is that I have been serving as a member of then-Senator Obama's national election protection team since April of 2007. Because I was doing that work in my "civilian" capacity, I felt that I had a dog in the fight and shouldn't hold myself out as an academic commentator on any issue that might affect the campaign.

It was worth dropping out of the commentary game for this round. I stood twenty feet away when Senator Obama became President-Elect Obama. I watched as he pivoted from politician to president, as the paean to our history that had inspired Obama's supporters in New Hampshire became a sobering reminder of the enormous challenges the nation now faces. "Yes we can" was once a muscular chant invoked at partisan rallies. At Grant Park, it was repeated almost in a whisper by 100,000 people, as if it were part of a call-and-response between the president-elect and the nation, a secular amen.

Now that I'm back, I thought it might be useful to say a word about the invisible election that took place in 2008 -- the nuts-and-bolts of election administration that journalists rarely report and citizens rarely see. Even election experts catch only glimpses of the invisible election. In the immediate wake of the election, experts must rely on reporters, and reporters won?t bother to investigate, let alone report on, problems that don't affect the outcome. It's only when the race is close -- as in Florida 2000 and Ohio 2004 -- that we see what really happened at the polling place. To be sure, when political scientists eventually start to crunch numbers, data can give us some sense of what problems arose. But the data we have are often so sparse and haphazard that they can give us only a partial sense of what occurred.

I am one of the few people to have gotten a pretty good view of the invisible election, and the reality does not match the reports of a smooth, problem-free election that have dominated the national media. As part of Obama's election protection team, I spent 18 hours working in the "boiler room," the spare office where 96 people ran national election day operations. Obama's election protection efforts, organized by Bob Bauer, were more generously funded, more precisely planned, and better organized than any in recent memory. Over the course of the day, thousands of lawyers, field staff, and volunteers reported the problems they were seeing in polling places across the country. A sophisticated computer program allowed the lawyers and staffers in the boiler room to review these reports in real time. In many places, everything ran smoothly, just as the media have reported. There were glitches, to be sure, but there were enough poll workers and election administrators to fix them as they came along.

Other jurisdictions simply fell apart as wave after wave of voters crashed down upon them. Thousands of people had to wait three hours or more to vote. In some places, there weren't enough machines to process all the voters. In others, there were plenty of voting machines, but voting booths stood empty because there weren't enough poll workers to check people in. Machines broke down. Parking lots were full. Polling places were hard to find or had been moved at the last minute. Poll workers didn?t know basic rules about provisional ballots and election protocols. Far too many people showed up at the polls thinking they had registered, only to be told they weren?t on the rolls. A bewildering number of polling places needed pens by mid-day because theirs had run out of ink. Many polling places simply ran out of ballots.

These problems occurred even though more voters than ever before (an estimated third of the electorate) cast their ballots before Election Day. They occurred even though everyone knew that turnout would be extremely high. They occurred even though at least one of the campaigns -- recognizing that victory depended on an election system capable of processing hundreds of thousands of new voters -- had done an extraordinary amount of work in helping election administrators get ready for the turnout tsunami that was approaching.

If you'd like to read about the lessons I draw from the invisible election, please see my post on election reform over at Rick Hasen's Election Law Blog.

Full post as published by Balkinization on November 18, 2008 (boomark / email).