Evaluating Election Administration in the 2006 Midterm Elections

Professor Rick HasenLoyola Law School, Los Angeles

Three means of evaluating 2006 election

Meltdown standard Public confidence standard Election administration competence

standard

Meltdown standard

Election a success because the balance of Senate or House did not depend upon resolution of an election administration snafu

Serendipity: We are lucky Montana election administration was not like Denver’s

Public opinion standard: Evidence to 2004

Figure 1.Percentage of National Election Studies Survey Respondents

Believing the Most Recent Presidential Election Was "Very Unfair" or "Somewhat Unfair"

9.6

37

13.6

7.5

44

21.5

11.9

24.9

2.90

5

10

15

20

25

30

35

40

45

50

1996 2000 2004years

pe

rce

nta

ge

All respondents

Democrats

Republicans

Public confidence standard shows gaps by race, party in 2006 (pre-election)

Source: Pew Center for People and the Press Oct. 11, 2006 release http://people-press.org/reports/pdf/291.pdf

Election administration competence standard

Serious, isolated problemsDenver, FL-13 (Sarasota race)

Less serious, widespread problemsPoll worker problems, machine

malfunctions, etc.

Litigation issues

The average number of cases in the 1996–99 period was 96 per year, compared to an average of 254 cases per year from 2001–04.

Preliminary look at 2006 numbers shows at least 240 cases, consistent with post-2001 trend.

Main issue with much election administration litigation: lack of good empirical evidence

Voter identification evidence needed to assess

(1) Extent of impersonation fraud voter id laws deter; and

(2) Extent of deterrence of eligible voters caused by voter id laws

Unfortunately, access v. integrity debate mostly in a vacuum

So far, not much evidence points to impersonation fraud. EAC preliminary report; lack of EAC leadership on this issue

Preliminary study by Eagleton Institute and Moritz on deterrence of eligible voters showing decline in voting in states using voter identification cases, especially among racial minorities (http://www.eac.gov/docs/Public%20Meeting,%202-08-07,%20Testimony%20O'Neill%20and%20Vercellotti.pdf)

Troubling treatment of this issue by the courts

Supreme Court’s opinion in Purcell v. Gonzalez

Troubling suggestion of balancing a “feeling” of disenfranchisement when ineligible voters vote

7th Circuit opinion in Indiana voter identification case: no good evidence on either side (but concerns about Judge Posner’s opinion on value of voting)

Electronic voting issues

Sarasota/Florida governor’s decision on electronic voting machines

EAC/Ciber controversy Possible congressional legislation Voter confidence v. election

administration issues (paper trail)