Originally posted on the Election Law Blog. as part of its series on Fixing Election Administration.

By Heather Gerkin
heather.gerken@yale.edu

The 2008 presidential election was one of those remarkable moments in politics when the nation was paying attention. After a riveting primary season and general election, the race ended with millions watching the first black man to accept the presidency.

There was also an invisible election 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.

I draw three lessons from the time I spent watching the invisible election unfold, all of which point to the need to make the invisible election visible to the public, to policymakers, and to election administrators themselves.

First, it is essential that the public see the invisible election. We are never going to get traction on reforming our election system until we have a means of making these problems visible to voters. Virtually every media outlet has reported that the election ran smoothly. The reporting was simply incorrect for a surprising number of jurisdictions. I have recently proposed that we create a Democracy Index, ranking states and localities based on how well they run elections. Without good data on how the election system is performing, voters learn that there's a problem only when an election is so close that the outcome is in doubt and reporters devote the time necessary to investigate what actually happened. That's a bit like measuring annual rainfall by counting how often lightning strikes. The Index would help us assess the problems that occur routinely, before they cause what Rick Hasen has called an "electoral meltdown." Moreover, it would allow voters to reward strong performance. Right now, voters lack the information they need to differentiate between a bullet dodged and a well-run system ... between luck and skill, in the words of Thad Hall.

Second, we need to make the invisible election visible to policymakers. Most of the problems I saw from the vantage point of the campaign's boiler room seem to have been caused not by partisan mischief, but by neglect -- too little funding, too few resources devoted to good planning, even something as simple as not enough poll workers showing up. It confirmed my view that we should never attribute to partisanship that which can be adequately explained by inadequate resources. Here again, a Democracy Index would help. Policymakers, like voters, have no means of judging whether and where there's a problem, no sense of the consequences of starving election administrators of resources. Reliable, comparative performance data would help.

Third, election administrators should have been able to see the same kinds of information that I saw on Election Day. The information that scrolled across my computer gave me a tantalizing glimpse of how useful a tool data can be for management. There were many, many problems that could have been fixed quickly and easily if election administrators had the type of real-time monitoring capacity that the Obama campaign had. In a book coming out in the spring, The Democracy Index: Why Our Election System is Failing and How to Fix It, I spend a lot of time describing the remarkable uses election administrators have made of the data they have collected. Maricopa County has a real-time trouble-shooting system. Forsyth County, Georgia has precise information on turnout patterns and voter dispersion, something that has allowed it to deploy resources wisely and ensure that every community has equal access to the polls. Maryland has used its electronic poll books to figure out precisely how many poll workers, poll books, and machines it needs at every polling place. The Pew Center on the States has been doing extremely important work identifying "data for democracy" -- the basic information we need if we are serious about how our election system performs. As with the Democracy Index, these efforts should help make the invisible portion of our elections visible and eventually help us create the election system that we deserve.

[Editor's Note: So what about that data collected by the Obama campaign? Could journalists take a look at it? I called Bob Bauer, the campaign's general counsel, and asked him. He expressed concerns about verifying the data's  accuracy, and, noting that it's only been a few weeks since the election, said: "I really can't say what we're going to do with it... It's an issue we haven't addressed yet." -- Dan Froomkin]

Heather Gerken is the J. Skelly Wright Professor of Law at Yale Law School where she specializes in election law, constitutional law, and civil procedure. E-mail: heather.gerken@yale.edu

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