Last night’s State of the Union address included some big news for us election law folk: the creation of a Presidential Commission on Election Administration, to be chaired by Obama’s top election lawyer, Bob Bauer and Mitt Romney’s top election lawyer, Ben Ginsberg. Here is what Obama said last night in his speech:
“We must all do our part to make sure our God-given rights are protected here at home. That includes one of the most fundamental rights of a democracy, the right to vote. When any American — no matter where they live or what their party — are denied that right because they can’t wait for five or six or seven hours just to cast their ballot, we are betraying our ideals. So, tonight, I’m announcing a nonpartisan commission to improve the voting experience in America. And it definitely needs improvement. I’m asking two long-time experts in the field — who, by the way, recently served as the top attorneys for my campaign and for Governor Romney’s campaign — to lead it. We can fix this. And we will. The American people demand it, and so does our democracy.”
This is, in my view, a significant step in the right direction. President Obama has doubled-down on his Election Night statement that “we have to fix that” (referring to long lines at the polls) and his follow-up in his Inaugural address that “[o]ur journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.”
Several experts in the voting rights world have expressed concern that Obama is not going far enough to reform our election system. Leading election law expert Rick Hasen, for example, wrote that although the Commission is “good news” and “a step forward,” “the goals of the Commission are modest, and if all that is produced is a list of best practices, it may have little practical effect on fixing our broken election system” The League of Women Voters was “surprised and disappointed that the President did not suggest bold action to ensure that every American citizen can exercise the right to vote. Setting up a commission is not a bold step; it is business as usual.”
I disagree. Election law is an area in which partisan motivations necessarily infiltrate any discussion of reforming our system. It is therefore virtually impossible to effectuate widespread change on a bipartisan basis without first looking for smaller areas of compromise. Small victories can lead to big victories. Having Democrats and Republicans working together for more minor solutions can lay the foundation for the harder questions.