The president has named the members of the Presidential Commission on Election Administration and tasked them with reporting back within six months of their first meeting, scheduled for June.
The unfortunate fact is that the Election Assistance Commission (EAC) is already tasked to do what the commission is being asked to do, and we would do better to focus our limited resources and attention to such matters on making the EAC a serious professional body that focuses on the many and evolving challenges of election administration in 21st-century America.
The other fact that seems to elude most is the sheer complexity of election administration. As a former member of Brazil’s electoral tribunal has put it, “There is no function of the modern state, short of going to war, that is as complex as election administration.”
If the commission takes its task seriously, it is unlikely to complete its work in six months. When Canada faced increasing questioning of its democracy and election administration in the late 1980s, the Royal Commission on Electoral Reform and Political Financing took three years to research a plethora of issues, held public hearings across the country and eventually issued more than 30 volumes of research, findings, and recommendations.
Opponents of the EAC assert that the EAC is no longer necessary, having fulfilled its primary purpose of administering the disbursement of HAVA (Help America Vote Act) funds that were to help states address some of the problems encountered in the 2000 elections. Yet a simple reading of the act’s “header” makes it clear that the EAC was established to do more than just administer those funds.
"To establish a program to provide funds to States to replace punch card voting systems, to establish the Election Assistance Commission to assist in the administration of Federal elections and to otherwise provide assistance with the administration of certain Federal election laws and programs, to establish minimum election administration standards for States and units of local government with responsibility for the administration of Federal elections, and for other purposes."
Among the EAC’s mandates is establishing voluntary standards for voting and vote-counting equipment, but it is currently only able to certify equipment against old (2005) standards, as there are no commissioners to approve new standards. This in turn discourages the development of any new equipment. With information technology and security changing quickly, the U.S. continues to fall farther behind other countries that have more functional bodies to address such issues on an ongoing basis.
After re-reading key portions of HAVA, I believe the following could help get the EAC back to work:
• The president’s role is to appoint EAC members “by and with the advice and consent of the Senate”, similar to ambassadors, judges, and Cabinet members.
• Congressional leaders — the Speaker, the House minority leader and the majority and minority leaders of the Senate — are obliged by HAVA to “recommend” candidates for EAC vacancies. But it does not say that the president must accept — or wait for — those recommendations beyond the time given for filling vacancies.
• If vacancies on the commission are to be filled “in the manner in which the original appointment was made and … subject to any conditions which applied with respect to the original appointment” and if one of those conditions (203.a.4) was that appointments were to be made within 120 days following enactment of the act, I would argue that replacements should be appointed within 120 days of the vacancy they are filling.
Thus, if he has not received recommendations within 120 days, the president should forward nominations to the Senate for confirmation. In doing so, he should nominate at least two individuals who are well regarded within the other party in a good-faith effort to give the EAC the balance that it was intended to have, just as he has done in naming his Commission.
That some congressional leaders are unwilling to implement a law duly passed by Congress should not discourage the president from doing his best to do so — and should not result in America falling even farther behind advances in election administration elsewhere in the world.
Kennedy has worked in the field of international electoral assistance since 1990, first at the International Foundation for Electoral Systems, a Washington, D.C.-based NGO, and more recently with the United Nations. He holds a Ph.D. from Johns Hopkins SAIS. The views expressed are his own and in no way reflect the views of any of the entities with which he has been affiliated.