Jessica Leval and Jennifer Marsico, Research Assistants, AEI-Brookings Election Reform Project

December 12, 2008

Though the 2008 election happened just a few weeks ago, it is never too early to think about improving the process for the future. Recent election reform conferences have offered not only a postmortem on the events themselves, but also a look ahead at ways to improve future elections based on lessons learned in 2008.

On December 4, the AEI-Brookings Election Reform Project co-sponsored a conference entitled "Making Elections Work: The Law and the Process After November," featuring four panel discussions examining various aspects of the 2008 election and how to improve for the future. The first panel, "Reflections on the Two Presidential Campaigns," was moderated by Daniel Lowenstein of UCLA School of Law and the Election Law Journal. Bob Bauer and Trevor Potter spoke about their experiences as legal counsels for the Obama and McCain campaigns, respectively. Bauer described the daily and seemingly endless influx of emails from campaign strategists seeking immediate legal counsel and expecting instant responses. Potter opened his remarks by asking "what are the rules on mental commitment in Northern Virginia?" to illustrate the obscurity of questions to which a campaign legal counsel is expected to respond. The two also discussed the public funding system, asserting that the system used during presidential primaries was "dysfunctional" and agreeing that only candidates on the verge of financial collapse would opt in to the system in the primaries. Bauer and Potter also explained the pressing need to accurately assess the system's inadequacies - either through the creation of "empirical measures of how the system is working" (such as a "Democracy Index," as Bauer proffered) or through other means.

Shifting towards the financial aspects of elections, the second panel, entitled "Campaign Finance," was moderated by Tom Mann of the Brookings Institution. Anthony Corrado of Colby College and the Brookings Institution began by explaining that the 2008 election marked the "demise of the current system [of campaign finance]." With Obama raising an unprecedented $750 million-more than all the 2004 presidential candidates combined-Obama's campaign "has essentially become a party in and of itself," said Corrado. With such large sums of money and "party advertising exceed[ing] the candidate advertising," the role of party committees in campaign fundraising is increasingly being called into question. Michael Toner, a lawyer at Bryan Cave who worked for the McCain campaign, explained that the Republican National Committee helped McCain close fundraising gaps, raising $337 million as compared to the Democratic National Committee's $206 million. Party-funded 501(c)(4)s and MCFL-type entities, which are exempt from restrictions on advertising and do not have to disclose their donors, are becoming more popular ways of circumventing strict campaign finance regulations. Michael Malbin of the Campaign Finance Institute argued next that small donors had suddenly started "paying attention" in the 2008 presidential election, as evidenced by the fact that nearly half of Obama's overall campaign contributions came from contributions of $200 or less. Malbin also highlighted the recent phenomenon of "repeaters" - donors who made small contributions to Obama's campaign and then made one or more additional small donations later in the campaign. Though reporting obstacles make it difficult to categorize these "repeaters" as "small donors" or "large donors," they undoubtedly represent a phenomenon to be watched and analyzed going forward. Rick Hasen of Loyola Law School and the Election Law Journal closed the panel by arguing that public funding prior to the party conventions is essentially "dead," and that it is becoming a way of the past for the general election period as well. Hasen also explained that regulations on overall candidate spending will likely be opposed by Republicans and thus are unlikely to pass, as such regulations could be construed as "welfare for politicians."

The final two panels of the day examined issues dealing with election administration. The first, "Early and Absentee Voting Issues," was moderated by Norm Ornstein of the American Enterprise Institute. Panelist Paul Gronke of Reed College began by explaining that though the exact number of people who voted absentee or early in the 2008 election is still unknown, "no excuse" absentee and early in-person voting are on the rise nationwide. Because of the increasing importance of absentee and early voting, he argued that election reforms designed to "reduce inequalities" in early voting must be implemented. States should, for example, implement an equal early voting period nationwide. Illustrating some of the lack of uniformity Gronke had highlighted, Edward Foley of Ohio State's Moritz College of Law spoke next about rejected absentee ballots - the regulations for which vary on a state-by-state basis. He explained that Minnesota rejected approximately 12,000 absentee ballots in 2008, representing about five percent of all absentee ballots cast this year. Of these rejected ballots, Foley hypothesized that as many as 500 to 1,000 had been improperly rejected and their fate currently remains unclear. Lastly, John Fortier of AEI raised concerns about the vote-by-mail system, arguing that it increases the risk of voter fraud and voter intimidation over voting in a more traditional polling place.

The final panel explored issues concerning voter registration and identification. By examining electionline.org, data from the Election Protection Hotline, and survey data from the Verified Voting Foundation and the Election Administration Research Center, Karin Mac Donald of the University of California, Berkeley showed that long lines at polling places and equipment problems constituted the most frequent complaints by voters in this year's election. Based on these findings, Mac Donald argued for the urgent need for uniformity in election administration. Michael McDonald of George Mason University and the Brookings Institution spoke next about database matching, explaining the concept of improper list "purging," or removal of certain individuals from voter rolls when their names match those of felons or deceased persons. McDonald recommended the improvement of computerized voter registration lists, which would enable individual verification of a database match before a person is removed from the registration rolls. Nathaniel Persily of Columbia University Law School then discussed some of the recent litigation concerning voter registration and identification issues. With Democrats now in control the election apparatus, Persily highlighted the shift to a "different series of plaintiffs and defendants" in election law cases. Last to speak was Doug Chapin of electionline.org, who described a shift in the key players in election administration. For the past eight years, he argued, lawyers have been central to the process, but now election officials are beginning to supersede lawyers. Chapin urged researchers to look beyond legal solutions to administration problems to develop innovative solutions to pressing election problems.

Legal issues surrounding campaigns, the decline of the public funding system, and issues of election administration and polling place problems will undoubtedly be relevant concerns in future elections. Though new issues will likely arise, it is important to constantly deal with correcting and trying to stay one step ahead on ways to ensure that our next elections will run as smoothly and be as fair as possible, and post-election discussions such as this one are an important part of that process.

Jessica Leval can be reached at jessica.leval@aei.org. Jennifer Marsico can be reached at jennifer.marsico@aei.org.