The democracy index: Why our election system is failing and how to fix it

The Democracy Index: Why Our Election System Is Failing and How to Fix It

Volumn , Issue , 2009, Pages

  Gerken, Heather K ^a  

^a YALE UNIVERSITY   (United States)

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EID: 77954657980     PISSN: None     EISSN: None     Source Type: Book    
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References (407)

1. Abby Goodenough, "In Florida, Echoes of 2000 as Vote Questions Emerge," New York Times, November 10, 2006.
2. Building Confidence in U.S. Elections: Report of the Federal Commission on Election Reform, September 2005, available at http://american.edu/ia/cfer/.
3. Thad Hall et al., "Are Americans Confident Their Ballots Are Counted?" 3, unpublished draft, 2007.
4. Electionline, Briefing: The 2006 Election, 7 (2006), http://www .pewcenteronthestates.org/report_detail.aspx?id=32758.
5. Ariel J. Feldman, J. Alex Halderman, and Edward W. Felten, "Security Analysis of the Diebold AccuVote-TS Voting Machine," September 2006, http://itpolicy.princeton.edu/voting/summary.html.
6. Fred Hessler and Matt Smith, City and County of Denver 2006 Election Technical and Operational Assessment, December 8, 2006, 5, http://www .votetrustusa.org/pdfs/Colorado_Folder/Denver_Report.pdf.
7. Hessler and Smith, Denver 2006 Election Technical and Operational Assessment.
8. M. R. Kropko, "Election Staff Convicted in Recount Rig," washington.com, January 24, 2005.
9. "Ohio's Largest County Finishes Tabulating Votes Five Days after Primary," CantonRep.com, May 8, 2006;
10. Dan Tokaji, "Cuyahoga County's Election Woes," Equal Vote Blog, May 9, 2006.
11. Press release, "Brunner Calls for Clean Slate in Cuyahoga County," http://www.sos.state.oh.us/.
12. Clive Thompson, "Can You Count on These Machines?" New York Times Magazine, January 6, 2008.
13. Joe Guillen, "20 Percent of Election Printouts Were Unreadable," Cleveland Plain Dealer, November 28, 2007;
14. Thompson, "Can You Count on These Machines?"
15. Guillen, "20 Percent of Election Printouts."
16. The term was coined by Rick Hasen.
17. Richard L. Hasen, "Beyond the Margin of Litigation: Reforming Election Administration to Avoid Electoral Meltdown," 52 Washington & Lee Law Review 937 (2005).
18. Daniel P. Tokaji, "The Birth and Rebirth of Election Administration," 7 Election Law Journal 118, 121 (2007), reviewing Roy G. Saltman, The History and Politics of Voting Technology: In Quest of Integrity and Public Confidence.
19. Twenty percent of states do not report this information; they disclose only how many ballots were successfully counted. Thad Hall and Daniel Tokaji, "Money for Data: Funding the Oldest Unfunded Mandate," June 5, 2007, http://moritzlaw .osu.edu/blogs/tokaji/2007/06/money-for-data-funding-oldest-unfunded.htm l.
20. e.g., http://www.aclu.org/votingrights/exoffenders/statelegispolicy 2007.html.
21. e.g., Chris Elmendorf, "Representation Reinforcement through Advisory Commissions: The Case of Election Law," 80 New York University Law Review 1366 (2005);
22. Heather K. Gerken, "The Double-Edged Sword of Independence: Inoculating Electoral Reform Commissions against Everyday Politics," 6 Election Law Journal 184 (2007);
23. Heather K. Gerken, "A Third Way for the Voting Rights Act: Section 5 and the Opt-in Approach," 106 Columbia Law Review 708 (2006);
24. Heather K. Gerken, "Citizens Must Drive Electoral Reform," Roll Call, November 15, 2005;
25. Heather Gerken and Chris Elmendorf, "Next Time, Start with the People," http://balkin.blogspot.com/2005/11/next-time-startwith- people.html;
26. Michael Kang, "De-rigging Elections: Direct Democracy and the Future of Redistricting Reform," 84 Washington University Law Review 667 (2006);
27. Dan Tokaji, "The Moneyball Approach to Election Reform," http:// moritzlaw.osu.edu/electionlaw/comments/2005/051018.php.
28. I wrote about the "here to there" question in a series of blogs during the summer of 2007.
29. Heather K. Gerken, "A New Agenda for Election Law Scholarship," Balkinization, http://balkin.blogspot.com/ (series of posts dated June 18-22, 2007). At roughly the same time, political scientist Bruce Cain was writing about the need to create "a new sub-field of political reform" for an article that came out in PS in October, 2007.
30. Bruce E. Cain, "Reform Studies: Political Science on the Firing Line," 15 PS 635, 635 (2007).
31. Cain's focus is quite different from mine. The field he has in mind addresses reform writ large and includes existing work on redistricting, election administration, and campaign finance-the topics that make up the "there" part of the "here to there" equation. Cain is absolutely right to emphasize the importance of pulling together these academic camps and doing a better job of integrating the normative, descriptive, and analytical components of our research. In my view, however, studying the reform process-the "here to there" problem-should be a subfield within the broad field of political reform that Cain proposes.
32. Carter-Baker Commission, Building Confidence in U.S. Elections, 25-26.
33. Interview with Justin Levitt, June 14, 2007.
34. There is, of course, an irony here. Funders are often reluctant to support projects like this one because it is hard to measure whether they are succeeding. As I note in chapter 2, however, one need not endorse the witless notion that everything can be measured to believe that election performance is susceptible to data-driven analysis.
35. These examples were all drawn from American Society of Civil Engineers' "Report Card for America's Infrastructure," which provides a state-by-state analysis of the problems associated with deferred maintenance, at http://www .asce.org/reportcard/2005/Index.cfm.
36. While most assumed at the time that deferred maintenance was the cause the Minnesota debacle, subsequent investigations suggest that a design problem led to the collapse. Matthew L. Wald, "Controversy Dogs Inquiry on Bridge Collapse," New York Times, January 30, 2008, 13.
37. The American Society of Civil Engineers estimates that we need to spend $1.6 trillion to "bring the nation's infrastructure to good condition." American Society of Civil Engineers, "Report Card for America's Infrastructure." The Government Performance Project gives the country a B- for its efforts to maintain our physical infrastructure.gpp_report_card_details.aspx?id=35348.http://www.asce.org /reportcard/2005/ index.cfm
38. http://www.pewcenteronthestates.org/ .
39. For a useful survey of the problems associated with poll workers as well as a comparison of state training and compensation practices, see electionline.org, "Helping Americans Vote: Poll Workers," September 2007; Thad Hall and Quin Monson, "The Human Dimension of Elections: How Poll Workers Shape Public Confidence in Elections, 2007, unpublished draft, 3-4.
40. For useful surveys of the problems described in this paragraph, e.g., Caltech/MIT Voting Technology Project, "What Is, What Could Be," July 2001, www.votingtechnologyproject.org;
41. Carter-Baker Commission, Building Confidence in U.S. Elections; General Accounting Office, "Elections: Perspectives on Activities and Challenges across the Nation," GAO-02-3, October 2001;
42. Thad E. Hall and R. Michael Alvarez, "Why Everything That Can Go Wrong Often Does: An Analysis of Election Administration Problems," Caltech/MIT Voting Technology Project, VTP Working Paper 10, November 2003;
43. Steven Huefner, Daniel P. Tokaji, and Edward B. Foley, From Registration to Recounts: The Election Ecosystems of Five Midwestern States (Columbus: Ohio State University Michael E. Moritz College of Law, 2007).
44. For initial research on making polling places more accessible, J. G. Gimpel and J. E. Schuknecht, "Political Participation and the Accessibility of the Ballot Box," 22 Political Geography 471, 471 (2003);
45. Moshe Haspel and H. Gibbs Knotts, "Location, Location, Location: Precinct Placement and the Costs of Voting," 67 Journal of Politics 560, 561 (2005);
46. Robert M. Stein and Greg Vonnahme, "Election Day Voter Centers and Voter Turnout," unpublished manuscript, 2006
47. Robert M. Stein and Patricia A. Garcia-Monet, "Voting Early but Not Often," 78 Social Science Quarterly 657 (1997).
48. I draw these statistics from estimates offered in Alan Agresti and Brett Presnell, "Misvotes, Undervotes, and Overvotes: The 2000 Presidential Election in Florida," 17 Statistical Science 436 (2002).
49. The U.S. Commission on Civil Rights, Voting Irregularities in Florida during the 2000 Presidential Election (Washington, D.C.: Government Printing Office, 2001).
50. More detailed accounts of these events can be found in the large number of books on the subject, including Ronald Dworkin, ed., A Badly Flawed Election: Debating Bush v. Gore, the Supreme Court, and American Democracy (New York: New Press, 2002).
51. Bruce Ackerman, ed., Bush v. Gore: The Question of Legitimacy (New Haven: Yale University Press, 2002).
52. Arthur Jacobson and Michael Rosenfeld, eds., The Longest Night: Polemics and Perspectives on Election 2000 (Berkeley and Los Angeles: University of California Press, 2002);
53. Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts (Princeton, N.J.: Princeton University Press, 2001);
54. Jack Rakove, ed., The Unfinished Election of 2000 (New York: Basic Books, 2001);
55. Cass R. Sunstein and Richard A. Epstein, eds., The Vote: Bush, Gore, and the Supreme Court (Chicago: University of Chicago Press, 2001).
56. Richard Hasen, "Voting System Is Haunted by Democratic Meltdown, Canberra Times, January 22, 2008.
57. Caltech/MIT Voting Project, "What Is, What Could Be," 8.
58. Caltech/MIT Voting Technology Project, "Immediate Steps to Avoid Lost Votes in the 2004 Presidential Election: Recommendations for the Election Assistance Commission," 2004, 3.
59. Carter-Baker Commission, Building Confidence in U.S. Elections, 54.
60. Eric A. Fischer and Kevin J. Coleman, Election Reform and Local Election Officials: Results of Two National Surveys, Congressional Research Service Report for Congress, RL-34363, February 7, 2008.
61. http://www.washingtonpost.com/wp-dyn/politics/elections/2004/ for state-by-state election results for 2004 presidential race.
62. Richard Lacayo, "Eye of the Storm," Time, November 20, 2000.
63. Timothy Egan, "Questions Linger as Governor Takes Over Washington," New York Times, January 13, 2005, A20;
64. Mike Francher, "Governor's Race to Make Many Voters Feel Cheated," Seattle Times, December 26, 2004;
65. Sarah Kershaw, "Governor-Elect Declared in Washington Recounts," New York Times, December 31, 2006, A18.
66. Roy G. Saltman, The History and Politics of Voting Technology: In Quest of Integrity and Public Confidence (New York: Palgrave Macmillan, 2006), 185.
67. For a granular analysis of changes since 2000 and the effects of HAVA, electionline.org, "Election Reform: What's Changed, What Hasn't and Why," November 2006.
68. electionline.org, "The Help America Vote Act," 2007, 5.
69. Deborah Hastings, "Problems, Funding Plague Voting Panel," Associated Press, June 23, 2008.
70. Norm Ornstein, "Voting Machine Mess Can't Just Be Fixed by Congressional Bilks," Roll Call, November 26, 2007.
71. Feldman, Halderman, and Felten, "Security Analysis."
72. As the Carter-Baker Commission has observed, "Most other democratic countries have found ways to insulate election administration from politics and partisanship by establishing truly autonomous, professional, and nonpartisan independent national election commissions that function almost like a fourth branch of government" (Building Confidence in U.S. Elections, 49).
73. For helpful comparative surveys, see Michael Gallagher and Paul Mitchell, eds., The Politics of Electoral Systems (New York: Oxford University Press).
74. Louis Massicotte, Andreï Blais, and Antoine Yoshinaka, Establishing the Rules of the Game: Election Laws in Democracies (Toronto: University of Toronto Press, 2004);
75. Administration and Cost of Elections Project Survey, http://aceproject.org/.
76. For instance, most secretaries of state are elected, and many subsidiary election positions, such as membership on election boards, are either elected or awarded based on partisan affiliation.
77. Hasen, "Beyond the Margin of Litigation," 974.
78. Compare Samuel Issacharoff, "Gerrymandering and Political Cartels," 116 Harvard Law Review 593 (2002).
79. with Nathan Persily, "In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent- Protecting Gerrymanders," 116 Harvard Law Review 649 (2002).
80. Interview with Chris Nelson, January 25, 2008.
81. Huefner, Tokaji, and Foley, From Registration to Recounts, 170;
82. David C. Kimball, Martha Kropf, and Lindsay Battles, "Helping America Vote? Election Administration, Partisanship, and Provisional Voting in the 2004 Election," 5 Election Law Journal 447 (2006), which finds some evidence that partisanship influenced choices on provisional balloting rules.
83. Dan Tokaji, "The New Vote Denial: Where Election Reform Meets the Voting Rights Act," 57 South Carolina Law Review 689 (2006).
84. The facts in this paragraph and the next are drawn from Huefner, Tokaji, and Foley, From Registration to Recounts, chap. 3.
85. Laura A. Bischoff, "Blackwell Plays Pivotal Role in Elections, Dayton Daily News, October 4, 2004, 1A;
86. Joe Hallette, "Campaign Consequences: Blackwell Faces Own Referendum on Election Day," Columbus Dispatch, October 19, 2004, 1A.
87. Interview with Trey Grayson, January 9, 2008.
88. Grayson, interview.
89. Interview with Conny McCormack, October 26, 2007.
90. McCormack argues that there are "professional politicians" at the top and "professional administrators" at the bottom of the election administration hierarchy (McCormack, interview).
91. Robert Bauer, "Partisanship and the Dark Side of Election Law," http://www.moresoftmoneyhardlaw.com/.
92. Interview with Joe Mansky, June 6, 2008.
93. Tokaji, "Birth and Rebirth," 121.
94. Saltman, History and Politics, 185.
95. Kimball Brace, testimony before the Committee on House Administration, April 15, 2008.
96. What follows is drawn from an interview conducted on June 23, 2008, and a handout Streater authored entitled "Duties of a County Clerk."
97. Fischer and Coleman, "Election Reform."
98. Fischer and Coleman, "Election Reform," 2-3, 6.
99. Fischer and Coleman, "Election Reform," 6.
100. Fischer and Coleman, "Election Reform," 31.
101. Except where indicated, the quotations and information in the next three paragraphs are drawn from an interview with Gary Smith on May 21, 2008.
102. "GEOA Wage and Benefit Survey-2005" (on file with the author).
103. Pew Election 2008 Forum, Washington, D.C., December 10, 2007.
104. Interview with Matthew Damschroder, October 29, 2007.
105. Or, perhaps more accurately, in elections we see a race to get as close to the bottom as one can get without the entire system breaking down.
106. Grayson, interview.
107. Grayson, interview.
108. Interview with Jennifer Brunner, January 28, 2008.
109. The line between a policy input and a performance output can be fuzzy.
110. For instance, a badly maintained registration list might be classified as a performance output, the result of a poor data-entry system. Or it might be thought of as a policy input in the voting process, one that will result in voters being turned away from the polls on Election Day.
111. I am indebted to Cameron Quinn, the chief elections officer under Virginia governor Jim Gilmore, for pushing me on these issues.
112. David Roodman, "Building and Running an Effective Policy Index: Lessons from the Commitment to Development Index," March 2006, available at http://www.cgdev.org/content/publications/detail/6661.
113. Roodman, "Building and Running an Index," 7.
114. Roodman, "Building and Running an Index," 12.
115. Charles Stewart III, "Residual Vote in the 2004 Election," 5 Election Law Journal 158 (2006).
116. Stephen Ansolabehere and Charles Steward II, "Residual Vote Rates Attributable to Technology," 67 Journal of Politics 365, 366 (2005).
117. Presentation of Lynn Olson, Designing a Democracy Index Conference, September 28, 2007.
118. Charles Stewart III, "Measuring the Improvement (or Lack of Improvement) in Voting since 2000 in the U.S.," Caltech/MIT Voting Technology Project, VTP Working Paper 36, August 2005, 7.
119. Roodman, "Building and Running an Index."
120. What follows below is drawn from Spencer Overton's published dissent to the Carter-Baker Commission, "Dissenting Statement," http://www.carter bakerdissent.com/dissent.php; an article he wrote on the controversy, "Voter Identification," 105 Michigan Law Review 631 (2007);
121. Two phone interviews. Direct quotations are attributed to the specific source in each instance.
122. Spencer Overton, Stealing Democracy: The New Politics of Voter Suppression (New York: Norton, 2006).
123. Interview with Spencer Overton, November 15, 2007.
124. Carter-Baker Commission, Building Confidence in U.S. Elections.
125. Carter-Baker Commission, Building Confidence in U.S. Elections, 18.
126. Stephen Ansolabehere and Nathan Persily, "Voter Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements," 121 Harvard Law Review 1737 (2008).
127. Overton, "Voter Identification," 634.
128. Overton, "Dissenting Statement."
129. On the one hand, as Overton observed, his numbers might lead one to overestimate the effect of an identification requirement.
130. For example, voters who don't possess ID may "have lower participation rates," so that an identification requirement may not have a significant effect on turnout (Overton, "Voter Identification," 660). Moreover, people who do not currently possess an ID might try to get one rather than sit out an election ("Voter Identification," 661). On the other hand, Overton's numbers may underestimate the effect of an identification requirement. For instance, even people who possess ID might be deterred from voting because of the hassle involved in bringing it to the polls. ("Voter Identification," 661).
131. Overton, "Voter Identification," 636.
132. Overton, "Voter Identification," 635.
133. Overton, interview.
134. Crawford v. Marion County Election Board, 472 F.3d 949, 954 (2007) (Evans, J., dissenting).
135. Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (2008).
136. Lev Tolstoy, as translated by Diego Gambetta in "'Claro! An Essay on Discursive Machismo," in Deliberative Democracy, ed. Jon Elster (New York: Cambridge University Press, 1998), 19.
137. Hall and Tokaji, "Money for Data."
138. Cal Tech/MIT Voting Technology Project, "Insuring the Integrity of the Election Process: Recommendations for Consistent and Complete Reporting of Election Data," October 2004.
139. Stewart, "Measuring the Improvement," 35.
140. Hall and Tokaji, "Money for Data." The difference between absentee and early ballots is complicated. If you are ever at an election administration cocktail party and don't know what to say, just raise the question, step back, and enjoy your martini.
141. Carter-Baker Commission, Building Confidence in U.S. Elections, 57.
142. Election Assistance Commission, 2006 Election Administration and Voting Survey, http://www.eac.gov/News/press/clearinghouse/2006-electionadministration- and-voting-survey.
143. The three reports that the EAC published on election administration are 2006 Election Administration and Voting Survey, 2005-2006 National Voter Registration Act Survey, and 2006 Uniformed and Overseas Citizen Voting Act, all available at http://www.eac.gov/clearinghouse/reports-and-surveys/.
144. Many thanks to Peter Miller for his work in creating this ranking and to the folks at the Pew Center on the States and electionline.org for suggesting the idea in the first place.
145. These included (1) the numbers of active and inactive voters.
146. (2) the number of voters registered on Election Day (for the states that allow for Election Day registration).
147. (3) the manner and location voters were registered.
148. (4) the number of registrations rejected and the reasons for the rejection.
149. (5) the number of registrations removed and reasons for the removal.
150. (6) the number of ballots cast and counted.
151. (7) reasons for rejecting provisional ballots.
152. (8) the reasons for rejecting domestic absentee ballots.
153. (9) the number of undervotes and overvotes.
154. (10) information regarding the number of precincts and polling places, poll worker information, and information regarding the accessibility of polling places for people with disabilities.
155. (11) the number of ballots cast and counted from voters covered by UOCAVA (overseas voters, domestic military voters, and overseas civilian voters).
156. (12) the number of absentee ballots sent and received under UOCAVA.
157. (13) the number of UOCAVA ballots that were rejected. These categories correspond to the data categories in each report. Because the jurisdiction count was unavailable for overvote and undervote reporting below the state level, this category was excluded from the ranking.
158. A state that reported 100 percent of its data in a given category was awarded a 1. A state that reported all of the data requested for only half of its jurisdictions would receive a 0.5 in that category.
159. For instance, localities that reported a 0 in a given category (rather than leaving it blank) were counted as properly reporting their data even when it was difficult to believe that the score represents an accurate report. As noted in the text, several states reported that there were zero votes were cast by overseas military voters. Further, as noted above, because the jurisdiction count was unavailable for overvotes and undervotes reporting below the state level, this category was excluded from the ranking.
160. Alabama, for instance, tended to have high reporting rates for some portions of each survey but quite low reporting rates for others, resulting in a very low overall ranking. Similarly, Vermont provided complete or near-complete data for basic questions (e.g., how many provisional ballots or absentee ballots were rejected) but failed to report data on the reasons why these ballots were rejected. While the latter information is important for reasons I outline below, Vermont at least had good data on the primary questions.
161. For the full table, see democracyindex.com.
162. The information in this and the next paragraph was provided by Peter Miller, who played a significant role in pulling the EAC study together.
163. Carter-Baker Commission, Building Confidence in U.S. Elections, 54.
164. Ian Ayres, Super Crunchers: Why Thinking-by-Numbers Is the New Way to Be Smart (New York: Bantam, 2007).
165. Emily Nelson, "Retailing: Why Wal-Mart Sings, 'Yes, We Have Bananas!'" Wall Street Journal, October 6, 1998, B1.
166. Constance L. Hays, "What Wal-Mart Knows about Customers' Habits," New York Times, November 14, 2005.
167. "Priority Is Clear: Improve the Shopping Experience," MMR, December 11, 2006,.
168. Brennan Center for Justice, The Machinery of Democracy: Voting System Security, Accessibility, Usability, and Cost, 2006, http://brennan.3cdn.net/ cb325689a9bbe2930e_0am6b09p4.pdf.
169. Stewart, "Measuring the Improvement," 23 ("The best data we have to track how the use of voting machines is evolving is still imprecise and incomplete").
170. Julia Melkers and Katherine Willoughby, Staying the Course: The Use of Performance Measurements in State Governments, IBM Center for Business and Government, November 2004, http://www.businessofgovernment.org/pdfs/ MelkersReport.pdf.
171. For a survey, see Harry P. Hatry, Elaine Morley, Shelli B. Rossman, and Joseph S. Wholey, How Federal Programs Use Outcome Information: Opportunities for Federal Managers, IBM Center for Business and Government, May 2003, http://www.businessofgovernment.org/pdfs/HatryReport.pdf.
172. For a useful sampling of these programs, see Daniel C. Esty and Reece Rushing, Governing by the Numbers: The Promise of Data-Driven Policymaking in the Information Age, April 23, 2007, http://www.americanprogress.org/issues/ 2007/04/data_driven_policy.html.
173. Paul O'Connell, Using Performance Data for Accountability: The New York City Police Department's CompStat Model of Police Management, IBM Center for Business and Government, August 2001, http://www.businessof government.org/pdfs/Oconnell_Report.pdf.
174. For a comprehensive but perhaps unduly cheerful analysis of CitiStat, see Robert D. Behn, What All Mayors Would Like to Know about Baltimore's CitiStat Performance Strategy, IBM Center for Business and Government, 2007, http:// www.businessofgovernment.org/pdfs/BehnReportCiti.pdf.
175. Behn, What All Mayors Would Like to Know, 9.
176. O'Connell, Using Performance Data for Accountability.
177. Hatry et al., How Federal Programs Use Outcome Information, 37-43.
178. Hatry et al., How Federal Programs Use Outcome Information, 57-58.
179. Hatry et al., How Federal Programs Use Outcome Information, 21-30.
180. Charles P. Kindleberger, Manias, Panics, and Crashes: A History of Financial Crises, 4th ed. (New York: Wiley, 2000), 105.
181. Federal Agencies with Statistical Programs, http://www.fedstats.gov/ agencies/.
182. The facts in this section were drawn from interviews I conducted with Esty as well as his writings. Direct quotations from those interviews and his writings are cited individually.
183. Daniel Esty, Greening the GATT: Trade, Environment, and the Future (Washington, D.C.: Institute for International Economics, 1994).
184. The report is available at http://www.weforum.org/en/initiatives/gcp/ Global%20Competitiveness%20Report/Index.htm.
185. Dan Esty, presentation at Designing a Democracy Index Conference, Columbus, Ohio, September 29, 2007.
186. The ranking and information on its constructions is available at http:// www.yale.edu/epi/.
187. http://sedac.ciesin.columbia.edu/es/esi/rank_01.html.
188. http://www.yale.edu/epi/.
189. Esty, presentation at Designing a Democracy Index Conference.
190. http://www.carbonfootprint.com/.
191. Roger Angell, Once More around the Park: A Baseball Reader (New York: Ballantine, 1991), 4. Many thanks to Doug Chapin for sharing this with me.
192. Michael Lewis, Moneyball: The Art of Winning an Unfair Game (New York: Norton, 2003).
193. The information in this paragraph is all drawn from an interview with Bob Murphy, July 8, 2008.
194. Gary Smith, "Using GIS Data to Confirm Viability of Early Voting Sites," http://datafordemocracy.org/blog/?q=node/17.
195. Interview with Joe Mansky, May 6, 2008.
196. Huefner, Tokaji, and Foley, From Registration to Recounts, v.
197. Some initial answers to these questions have been offered by a group of scholars based on an in-depth, qualitative study of five election systems in the Midwest (Huefner, Tokaji, and Foley, From Registration to Recounts). This important study should be immensely useful in trying to figure out how to generate answers to these questions on a larger scale once better data becomes available.
198. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Scholars of "democratic experimentalism" have explored the practical and theoretical dimensions of benchmarking in the governance context.
199. See, e.g., Joshua Cohen and Charles Sabel, "Directly-Deliberative Polyarchy," 3 European Law Journal 313 (1997).
200. Michael Dorf and Charles F. Sabel, "A Constitution of Democratic Experimentalism," 98 Columbia Law Review 267 (1988).
201. Public choice scholars would not be surprised that an issue that affects everyone is not at the forefront of the political agenda. Oddly enough, minority groups-sometimes condemned as "special interests"-are often the ones that succeed best in a majoritarian system like our own.
202. See, e.g., Bruce Ackerman, "Beyond Carolene Products," 98 Harvard Law Review 713 (1985). Political scientist Robert Dahl famously claimed that "minorities rule" in the United States.
203. coalitions of organized interest groups join together to form majorities and get legislation passed. Robert Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), 133. Or, as Jesse Jackson put it, "In politics, an organized minority is a political majority" (CNN, Both Sides with Jesse Jackson, Transcript 0013000V49, January 30, 2000). What matters in a system where "minorities rule" is the ability to organize-to turn out the vote, lobby representatives, and raise money. And it is often easier to organize a small, easily identified group with a concrete complaint than it is to get a large majority affected by a diffuse harm to coalesce. The public choice explanation is not, of course, a complete answer. Other problems that impose diffuse harms are salient to voters and thus to politicians.
204. For instance, politicians are careful to sketch out positions on things like the environment or foreign policy. Moreover, politicians are notoriously risk averse; none of them is going to be enthusiastic about flouting the preferences of the majority even when no special interest group is there to fight about it.
205. Building on the work of Erving Goffman in Frame Analysis: An Essay on the Organization of Experience (New York: Harper and Row, 1974), social scientists have extensively analyzed the ways that issues are presented to, and affect the behavior of, voters.
206. For a sampling of this literature, see Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American Politics (Chicago: University of Chicago Press, 1993).
207. Dennis Chong and James N. Druckman, "Framing Theory," 10 American Review of Political Science 103 (2007).
208. James N. Druckman, "Political Preference Formation: Competition, Deliberation, and the (Ir)relevance of Framing Effects," 98 American Political Science Review 671 (2004).
209. Shanto Iyengar and Donald Kinder, News That Matters: Television and American Opinion (Chicago: University of Chicago Press, 1987).
210. William H. Riker, The Art of Political Manipulation (New Haven: Yale University Press, 1986); Deborah A. Stone, Policy Paradox and Political Reason (Glenview, Ill.: Scott, Foresman, 1988).
211. Deborah A. Stone, Policy Paradox and Political Reason (Glenview, Ill.: Scott, Foresman, 1988).
212. Deborah A. Stone, "Causal Stories and the Formation of Policy Agendas," 104 Political Science Quarterly 281 (1989).
213. Interview with Jonah Goldman, January 4, 2008.
214. Lest you think that only a law professor would feel the need to footnote this claim, it is worth noting that many scholars argue, with some evidence, that voters cast their ballots in an irrational fashion.
215. See, e.g., Bryan Caplan, The Myth of the Rational Voter: Why Democracies Choose Bad Policies (Princeton, N.J.: Princeton University Press, 2007). Arguments like these often underestimate the useful role that heuristics can play in guiding voting behavior, a point nicely made by David Schleicher in his review of Caplan's book in "Irrational Voters, Rational Voting," 7 Election Law Journal 149.
216. Arguments like these often underestimate the useful role that heuristics can play in guiding voting behavior, a point nicely made by David Schleicher in his review of Caplan's book in "Irrational Voters, Rational Voting," 7 Election Law Journal 149.
217. Take a look at the fights that recently took place over redistricting reform in Ohio and California. Rightly or wrongly, those were precisely the kinds of accusations levied against those trying to prevent legislators from drawing their own districts. In Ohio, for instance, critics of the initiative repeatedly branded it a Democratic power grab.
218. See, e.g., "Case against Issue 4 Takes a Hit," Dayton Daily News, November 3, 2005, at A14 ("From the beginning of the debate about Issue 4, critics have portrayed it as a Democratic effort to take power from Republicans");
219. Kevin O'Brien, "Reform Ohio Now? No, No, and No," Cleveland Plain Dealer, October 19, 2005, B11 ("It's easy to see why Republicans don't want to see Ohio change the rules that govern political fund-raising, leg-islative district mapping, elections supervision and political fund-raising. They hold all of the high cards at the moment. . . . It's just as easy to see why the Democrats are dying to change the rules. They're so short of high cards, they've practically been dealt out of the game").
220. Aha. I knew you'd be curious enough to peek at the note.
221. http://www .natives.co.uk/news/2002/0502/08iron.htm.
222. See http://www.usarps.com/Index.php. I should emphasize here that I side with Demetri Martin, who is flummoxed as to why paper can beat rock just by covering it. He proposes instead that the game should be called, "rock, dynamite with a cuttable wick, scissors" (http://www.devilducky.com/media/79750/).
223. See http://www.westmountgolf.com/mcindex.htm.
224. A recent study reveals that two of five voters surveyed stated that "they could not evaluate their local election administrator." Lonna R. Atkeson and Kyle L. Saunders, "The Effect of Election Administration on Voter Confidence: A Local Matter?" 15 PS 655, 659 (2007).
225. See, e.g., Samuel L. Popkin, The Reasoning Voter: Communication and Persuasion in Presidential Campaigns, 2nd ed. (Chicago: University of Chicago Press, 1994).
226. For early work in what is now a vast literature, see, e.g., John H. Aldrich, Why Parties? The Origin and Transformation of Political Parties in America (Chicago: University of Chicago Press, 1995).
227. Bernard R. Berelson, Paul F. Lazarsfeld, and William N. McPhee, Voting: A Study of Opinion Formation in Presidential Campaigns (Chicago: University of Chicago Press, 1954).
228. Angus Campbell, Philip E. Converse, Warren E. Miller, and Donald E. Stokes, The American Voter (New York: Wiley, 1960).
229. V. O. Key, Jr. and Frank Munger, "Social Determinism and Electoral Decisions: The Case of Indiana," in American Voting Behavior, ed. Eugene Burdick and Arthur J. Brodbeck (Glencoe, Ill.: Free Press, 1959).
230. See, e.g., Richard R. Lau and David P. Redlawski, "Voting Correctly," 91 American Political Science Review 585, 590 (1997).
231. Arthur Lupia, "Shortcuts versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Elections," 88 American Political Science Review 63 (1994).
232. Arthur Lupia, "Dumber Than Chimps? An Assessment of Direct Democracy Voters," in Dangerous Democracy? The Battle over Ballot Initiatives in American, ed. Larry Sabato, Howard R. Ernst, and Bruce A. Larson (Lanham, Md.: Rowman and Littlefield, 2001).
233. Popkin, The Reasoning Voter.
234. Berelson, Lazarsfeld, and McPhee, Voting, 321.
235. Indeed, a major movement within political science insists that we need strong, cohesive parties in order to give voters a better predictive cue as to how candidates will vote. Better party cues, the argument goes, means greater accountability. This notion of "responsible party government" was first endorsed by the American Political Science Association's Committee on Political Parties in 1950.
236. See American Political Science Association, "Toward a More Responsible Two-Party System: A Report of the Committee on Political Parties," 44 American Political Science Review (Supp. Sept. 1950).
237. This sentence oversimplifies things a bit. As I have noted, whether the Democracy Index gets traction will depend on what is happening in the political arena.
238. News release, Office of Governor Chris Gregoire, "Washington Earns Top Rating for Managing Public Resources," March 3, 2008; news release, "Virginia Gets Top Grade in Performance," March 3, 2008.
239. News release, "Virginia Gets Top Grade in Performance," March 3, 2008.
240. See, e.g., David Schleicher, "Why Is There No Partisan Competition in Local Elections? The Role of Election Law," 23 Journal of Law and Politics 419 (2008).
241. I am indebted to David Schleicher, whose work on the role of partisan heuristics in local elections suggested this line of criticism and whose conversation helped me work out a response.
242. Michael S. Kang, "The Hydraulics of Politics and Party Regulation," 91 Iowa Law Review 131, 151 (2005).
243. Thanks to an anonymous reviewer for suggesting this line of critique.
244. Caltech/MIT Voting Technology Project, "Insuring the Integrity."
245. Caltech/MIT Voting Technology Project, "Insuring the Integrity."
246. Press release, "Brennan Center Report Finds New Improvements in New Voting Technology Being Implemented in Several States," http://www.brennan center.org/content/resource/brennan_center_report_finds_improvements_in_ new_voting_technology_being_imp.
247. Government Performance Project: "About Us," http://www.gpponline.org/AboutUs.aspx.
248. Unless otherwise noted, what follows in the next two paragraphs is drawn from an interview with Richard Greene conducted on June 12, 2008.
249. David S. Broder, "Managing: An Affair of States," Washington Post, March 9, 2008, B7.
250. Pew Center for the States, Government Performance Project, http://www .pewcenteronthestates.org/states_overview.aspx?abrv=GA.
251. http://sedac.ciesin.columbia.edu/es/esi/rank_01.html.
252. For a survey of this literature, see the section "Can the Democracy Index Help?" in this chapter.
253. Interview with Cameron Quinn, December 21, 2007.
254. http://www.imdb.com/title/tt0417433/quotes. Many thanks to David Pervin for suggesting the reference.
255. Thanks to an anonymous reviewer for offering this critique.
256. E. E. Schattschneider, The Semisovereign People: A Realist's View of Democracy in America (New York: Holt, Rinehart and Winston, 1960), 68.
257. Goldman, interview.
258. For an excellent overview of the role of framing in this debate, see R. Michael Alvarez and Thad E. Hall, Electronic Elections: The Perils and Promises of Digital Democracy (Princeton, N.J.: Princeton University Press, 2008).
259. See, e.g., Daniel Tokaji, "The Paperless Trail: Electronic Voting and Democratic Values," 73 Fordham Law Review 1711 (2005).
260. Political competition represents an important force in shaping public opinion. As Robert Bennett explains, "American democracy is an extraordinary engine for producing a conversation about democratic affairs" that ultimately shapes "the content of public policy decisions." Robert W. Bennett, Talking It Through: Puzzles of American Democracy (Ithaca, N.Y.: Cornell University Press, 2003), 2. The fuel for that engine is political competition, as political leaders compete against one another to "shape, coordinate, and frame the public's understanding about electoral politics, public policy, and civic affairs." Michael Kang, "Race and Democratic Contestation," Yale Law Journal, forthcoming, draft at 15-16. The literature on the relationship between political competition and public opinion dates back at least to the work of venerable political scientists like V. O. Key and Schattschneider.
261. V. O. Key, The Responsible Electorate: Rationality in Presidential Voting, 1936-1960 (Cambridge: Belknap Press of Harvard University Press, 1966).
262. Schattschneider, The Semisovereign People. Scholars often call these leaders "political entrepreneurs" because of the creative ways in which they forge new platforms, frame issues, and exploit latent political energies in the process of building new political coalitions.
263. Kang, "Race and Democratic Contestation," 4 n. 17.
264. For a necessarily incomplete sampling of the seminal work in this area, see William H. Riker, The Strategy of Rhetoric: Campaigning for the American Constitution, ed. Randall L. Calvert, John Mueller, and Rick K. Wilson (New Haven: Yale University Press, 1996).
265. Schattschneider, The Semisovereign People; Key; The Responsible Electorate.
266. Roger W. Cobb and Charles D. Elder, Participation in American Politics: The Dynamics of Agenda-Building (Boston: Allyn and Bacon, 1972).
267. One could, of course, make an argument like this about most "latent" reform platforms that are amenable to effective framing. But few issues are as closely linked to partisan politics as this one. We are already waging political battles in which the Index could be used as a partisan weapon.
268. http://eirs.cs.net:8080/EIRS_WEB/User/findHome.do.
269. Stewart, "Measuring the Improvement," 16.
270. Anonymous interview, April 15, 2008.
271. Presentation of Lynn Olson, Designing a Democracy Index Conference, September 28, 2007.
272. Pew Journalists Forum, December 10, 2007.
273. Doug Caruso, "Vendor's Donation Questioned," Columbus Dispatch, July 16, 2005.
274. Farhad Manjoo, "Was the 2004 Election Stolen? No," http:// www.salon.com (making this argument and quoting William Anthony).
275. http://www.franklincountyohio.gov/commissioners/budget.
276. Jerry L. Mashaw, "Structuring a "Dense Complexity": Accountability and the Project of Administrative Law," Issues in Legal Scholarship, March 2005, http://www.bepress.com/ils/iss6.art4.
277. Cass Sunstein and others, for instance, have written about the pressures of conformity upon individuals. Cass R. Sunstein, Why Societies Need Dissent (Cambridge: Harvard University Press, 2003). One of the results of conformity is a decision-making "cascade" (Sunstein, 10-11). If one set of decision makers or "early movers" converges on a particular option, subsequent decision makers- influenced by the agreement of the first movers-make the same choice even if they would not have reached such a decision independently (Sunstein, 10-11, defining conformity and cascades). Sunstein also explains both why reasonable people rely on the decisions of first movers and why this tendency sometimes has unfortunate consequences (54-73).
278. The global polity "consists of much more than a 'system of states' or 'world economy' or 'international system.' Rather, the global environment is a sea teaming with a great variety of social units-states and their associated polities, military alliances, business enterprises, social movements, terrorists, political activists, nongovernmental organizations-all of which may be involved in relations with the polity." John Boli, "Sovereignty from a World Polity Perspective," in Problematic Sovereignty: Contested Rules and Political Possibilities, ed. Stephen D. Krasner (New York: Columbia University Press, 2001), 59-60.
279. For a helpful survey of this literature, see John W. Meyer, "The World Polity and the Authority of the Nation-States," in Studies of the Modern World-System, ed. Albert Bergesen (New York: Academic Press, 1980).
280. John W. Meyer, John Boli, George M. Thomas, and Francisco O. Ramirez, "World Society and the Nation-State," 103 American Journal of Sociology 144 (1997).
281. Martha Finnemore, "Norms, Culture, and World Politics: Insights from Sociology's Institutionalism," 50 International Organization 325 (1996).
282. Gili Drori, John W. Meyer, and Hokyu Hwang, eds., Globalization and Organization: World Society and Organizational Change (New York: Oxford University Press, 2006).
283. For a general introduction to the social science behind the global polity literature, see W. Richard Scott, Institutions and Organizations, 2nd ed. (Thousand Oaks, Calif.: Sage, 2001). Ryan Goodman and Derek Jinks have led the way in connecting this literature to legal scholarship and exploring its potential ramifications for international law, particularly human rights law.
284. Ryan Goodman and Derek Jinks, "Towards an Institutional Theory of Sovereignty," 55 Stanford Law Review 1749 (2003); Ryan Goodman and Derek Jinks, "How to Influence States: Socialization and International Human Rights Law," 54 Duke Law Journal 621 (2004).
285. Ryan Goodman and Derek Jinks, "How to Influence States: Socialization and International Human Rights Law," 54 Duke Law Journal 621 (2004).
286. Gili Drori, John W. Meyer, Francisco O. Ramirez, and Evan Schofer, Science in the Modern World Polity: Institutionalization and Globalization (Stanford, Calif.: Stanford University Press, 2003), ix.
287. For instance, nation-states deploy similar record-keeping systems and mandate mass education in school systems using similar curricula and administrative structures. Isomorphism and decoupling have been found in "constitutional forms emphasizing both state power and individual rights, mass schooling systems organized around a fairly standard curriculum, rationalized economic and demographic record keeping and date systems, antinatalist population control policies intended to enhance national development, formally equalized female states and rights, expanded human rights in general, expansive environmental policies, development-oriented economic policy, universalistic welfare systems, standard definitions of disease and health care and even some basic demographic variables."
288. Meyer et al., "World Society and the Nation-State, 152-53.
289. David John Frank, Suk- Ying Wong, John W. Meyer, and Francisco O. Ramirez, "What Counts as History: A Cross-National and Longitudinal Study of University Curricula," 44 Comparative Education Review 29 (2000).
290. John W. Meyer, "The Changing Cultural Content of World Society," in State/Culture: State-Formation after the Cultural Turn, ed. George Steinmetz (Ithaca, N.Y.: Cornell University Press, 1999).
291. Karen Bradley and Francisco O. Ramirez, "World Polity Promotion of Gender Parity: Women's Share of Higher Education, 1965-85," 11 Research in Sociology of Education and Socialization 63 (1996).
292. Finnemore, "Norms, Culture, and World Politics," 336-37. Similarly, the enrollment of women in institutions of higher education, for example, increased around the world at roughly the same rate and at about the same time in Western and non-Western countries.
293. Bradley and Ramirez, "World Polity Promotion."
294. Martha Finnemore, "International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy," 47 International Organization 567, 593 (1993).
295. Jack L. Walker, "The Diffusion of Innovations among the American States," 63 American Political Science Review 880 (1969);
296. Virginia Gray, "Innovation in the States: A Diffusion Study," 67 American Political Science Review 1174 (1973).
297. This literature is vast, so what follows is only a sampling drawn primarily from the work of sociologists and political scientists.
298. Frances Stokes Berry and William D. Berry, "State Lottery Adoptions as Policy Innovations: An Event History Analysis," 84 American Political Science Review 395 (1990).
299. Frances Stokes Berry and William D. Berry, "Tax Innovation in the States: Capitalizing on Political Opportunity," 36 American Journal of Political Science 715 (1992).
300. Frances Stokes Berry and William D. Berry, "Innovation and Diffusion Models in Policy Research," in Theories of the Policy Process, ed. Paul A. Sabatier (Boulder, Colo.: Westview Press, 1999)
301. Karen Mossberger, The Politics of Ideas and the Spread of Enterprise Zones (Washington, D.C.: Georgetown University Press, 2000).
302. Henry R. Glick, The Right to Die: Policy Innovation and Its Consequences (New York: Columbia University Press, 1992).
303. Michael Mintrom, "Policy Entrepreneurs and the Diffusion of Innovation," 41 American Journal of Political Science 738 (1997).
304. Michael Mintrom and Sandra Vergari, "Policy Networks and Innovation Diffusion: The Case of State Education Reforms," 60 Journal of Politics 126 (1998).
305. Andrew Karch, Democratic Laboratories: Policy Diffusion among the American States (Ann Arbor: University of Michigan Press, 2007).
306. Anne Schneider and Helen Ingram, "Systematically Pitching Ideas: A Comparative Approach to Policy Design," 8 Journal of Public Policy 61, 62 (1988).
307. Richard Rose, Lesson-Drawing in Public Policy: A Guide to Learning across Time and Space (Chatham, N.J.: Chatham House, 1993).
308. David L. Weimer, "The Current State of Design Craft: Borrowing, Tinkering, and Problem Solving," 55 Public Administration Review 110 (1993).
309. Steven J. Balla, "Interstate Professional Associations and the Diffusion of Policy Innovations," 29 American Politics Research 221 (2001).
310. Harold Wolman and Ed Page, "Policy Transfer among Local Governments: An Information-Theory Approach, 15 Governance 477, 496-98 (2002).
311. For a critical take on some of this work, see Christopher Z. Mooney, "Modeling Regional Effects on State Policy Diffusion," 54 Political Research Quarterly 103 (2001) (questioning whether regional effects on diffusion are as pronounced as prior work has suggested).
312. For examination of interstate diffusion among European Union states and Canadian provinces, see Katerina Linos, "When Do Policy Innovations Spread? Lessons for Advocates of Line Drawing," 199 Harvard Law Review 1467 (2006).
313. Katerina Linos, "How Can International Organizations Shape National Welfare States? Evidence from Compliance with European Union Directives," 40 Comparative Political Studies 547 (2007).
314. James M. Luz, "Emulation and Policy Adoptions in Canadian Provinces," 22 Canadian Journal of Political Studies 147 (1989).
315. Dale H. Pole, "The Diffusion of Legislation among Canadian Provinces: A Statistical Analysis," 9 Canadian Journal of Political Studies 605 (1976).
316. For a survey of the literature on diffusion among nonstate organizations, see David Strang and Sarah A. Soule, "Diffusion in Organizations and Social Movements: From Hybrid Corn to Poison Pills," 24 Annual Review of Sociology 265 (1998). As one of the earliest pieces in the field explains, policy diffusion takes place within "a national system of emulation and competition" (Walker, "Diffusion of Innovations," 898). A network that "links together the centers of research and generation of new ideas, national associations of professional administrators, interest groups, and voluntary associations" helps establish "a set of norms or national standards for proper administration" (898).
317. Karch, Democratic Laboratories, 2-3.
318. Karch, Democratic Laboratories, 7-8.
319. A recent survey indicates that 60 percent of local officials do not belong to a national professional association, and one-quarter of local officials do not belong to any professional association. Eric A. Fischer and Kevin J. Coleman, "Election Reform and Local Election Officials: Results of Two National Surveys," Congressional Research Service Report for Congress, RL-34363, February 7, 2008, 5-6.
320. Grayson, interview; Goldman, interview; interview with anonymous election official. It is worth noting that these organizations lack the resources they need to provide such broad services to their members. The National Association of Secretaries of State, for instance, has an extraordinarily small staff and has accomplished an impressive amount with the staff it possesses.
321. Interview with Leslie Reynolds, December 11, 2007.
322. Interview with Ray Martinez, January 24, 2008.
323. Anonymous interview, April 15, 2008.
324. Linos, "When Do Policy Innovations Spread?" 1473.
325. Strang and Soule, "Diffusion in Organizations," 274-75.
326. Karch, Democratic Laboratories, 8. This is, to be sure, not a conclusion reached only by political scientists. Sociologists Harold Wolman and Ed Page, for instance, have reached a similar conclusion. Harold Wolman and Edward Page, "Policy Transfers among Local Governments," 15 Governance 477, 498 (2002).
327. Balla, "Interstate Professional Associations".
328. Karch, Democratic Laboratories, 105-43.
329. For work in sociology exploring similar themes in the context of private institutions, see, e.g., Lauren B. Edelman, Christopher Uggen, and Howard S. Erlanger, "The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth," 105 American Journal of Sociology 406 (1999).
330. Lauren Edelman, "Legal Environments and Organizational Governance: The Expansion of Due Process in the Workplace," 95 American Journal of Sociology 1401 (1999).
331. Mintrom, "Policy Entrepreneurs".
332. Mintrom and Vergari, "Policy Networks."
333. Karch, Democratic Laboratories.
334. Karch, Democratic Laboratories, 31.
335. Karch, Democratic Laboratories, 8.
336. Karch, Democratic Laboratories, 9.
337. Stein Ringen, What Democracy Is For: On Freedom and Moral Government 283 (Princeton, N.J.: Princeton University Press, 2007).
338. Indeed, this is true of both of the democracy indexes that exist-the "Index of democracy" put out by the Economist, www.economist.com/media/ DEMOCRACY_INDEX_2007_v3.pdf, and the "Democracy Index" put out by Fair Vote, http://www.fairvote.org/?page=729.
339. Angell, Once More around the Park, 4.
340. Interview with David Roodman, February 1, 2008.
341. Roodman, "Building and Running an Index." 2.
342. Ringen, What Democracy Is For, 284.
343. Michael Maslin, cartoon, New Yorker July 23, 2001.
344. Ringen, What Democracy Is For, 284.
345. Yale Center for Environmental Law and Policy and CIESIN, EPI Report, 285.
346. Thanks to Christine Jolls for offering this suggestion.
347. There is, needless to say, a cost to change. As David Roodman, an architect of the Commitment to Development Index, observes, when an Index "jump[s] from year to year," it undermines the Index's ability to serve as a "policy metric." Nonetheless, Roodman argues-correctly, in my view-"the benefits of public learning-a more credible Index-will outweigh the costs provided that the Index methodology stabilizes in due course." Roodman, "Building and Running an Index," 8.
348. Esty, presentation at Designing a Democracy Index Conference.
349. Roodman, "Building and Running an Index," 12.
350. Ringen, What Democracy Is For, 284.
351. Oxford's Stein Ringen frames the question similarly but offers a different answer. He argues that the decision whether to rank depends on whether one wants to "guide decisionmakers towards good decisions" or "assist towards a rational political process" (What Democracy Is For, 285). In his view, these categories boil down to "measurement" and "social reporting" (286). When decision makers just need information about facts on the ground in order to decide, indexing is a sensible strategy. But, argues Ringen, when the issue at stake involves "political, normative, or moral questions," indexing improperly shortcircuits the deliberative process (285-86).
352. For the substantive pros and cons of the U.S. News & World Report rankings, with most people firmly in the con camp, compare, e.g., Ronald G. Ehrenberg, "Method or Madness: Inside the U.S. News & World Report Rankings," 29 Journal of College Admission 29 (2005).
353. Stephen Klein and Laura Hamilton, "The Validity of the U.S. News & World Report Ranking of ABA Law Schools," report commissioned by the American Association of Law Schools, February 18, 1998, http://www.aals.org/reports/validity.html.
354. Shuky Ehrenberg, "A Question of Rank: An Empirical Investigation into Law School Rank Maximizing Strategies, with a Focus on Admissions Decisions," 10, http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=976200.
355. Michael Sauder and Ryan Lancaster, "Do Rankings Matter? The Effects of U.S. News & World Report Rankings on the Admissions Process of Law Schools," 40 Law and Society Review 105, 106 (2006).
356. with Mitchell Berger, "Why the U.S. News and World Report Law School Rankings Are Both Useful and Important," 51 Journal of Legal Education 487 (2001).
357. "Indiana University School of Law 2005 Symposium on the Next Generation of Law School Rankings," 81 Indiana Law Journal 1 (2006). It is worth noting that some critics of the U.S. News & World Report rankings quarrel with its methodology, but not the idea of ranking itself.
358. For instance, Brian Leiter, one of the most trenchant critics, believes that a good ranking is possible.
359. "Brian Leiter's Law School Rankings," http://www.leiterrankings.com/.
360. Alex Wellen, "The $8.78 Million Maneuver," New York Times, July 31, 2005.
361. Wellen, "The $8.78 Million Maneuver."
362. Wellen, "The $8.78 Million Maneuver."
363. Wellen, "The $8.78 Million Maneuver."
364. For a useful analysis of this problem, see Esty and Rushing, Governing by the Numbers, 38.
365. It is worth noting that this requirement has generated a good deal of debate and controversy among corporations and academics. Congress would have to think hard about the lessons learned from Sarbanes-Oxley before taking this path.
366. Megan Greenfield, "The People's Revenge," Washington Post, June 14, 1978, A27.
367. Ohio Rev. Code § 3501.35.
368. Mansky, interview, May 6, 2008.
369. Interview with anonymous reformer, January 8, 2008.
370. Andrew Gumbel, "Connie [sic] McCormack: 3rd Degree," Los Angeles City Beat, http://www.lacitybeat.com/article.php?id=942&IssueNum=51.
371. Andrew Gumbel, "Conny's Final Ballot," Los Angles City Beat, http://www.lacitybeat. com/article.php?id=6118&IssueNum=222.
372. Robert F. Kennedy, Jr., "Was the 2004 Election Stolen?" Rolling Stone Magazine, June 1, 2006.
373. Thomas Mann, Pew Journalists Forum, December 10, 2007, Washington, D.C.
374. Mark Niquette, "Franklin County Elections Chief to Lead Statewide Group," Columbus Dispatch, March 13, 2007.
375. Interview with Tammy Patrick, June 5, 2008.
376. Dean C. Logan, Memorandum, Preliminary Findings and Analysis of Sample Set of Non-partisan Ballots Cast in the February 5, 2008 Presidential Primary Election, February 11, 2008.
377. Email from Kim Alexander to Heather Gerken, June 30, 2008.
378. Thanks to Steve Weir for letting me use this phrase.
379. Goldman, interview.
380. Martinez, interview.
381. "Tokaji and Hall, "Money for Data."
382. Brunner, interview.
383. Some privately funded studies have large sample sizes but classify voters by region, not by state or locality. Others classify voters by state but don't survey enough voters within each state or locality to offer trustworthy samples. Still other studies just don't ask the right questions. With the support of political scientists and foundations, however, it is possible to imagine correcting these problems in order to piggyback on existing research.
384. I borrow the Field of Dreams reference from Edward B. Foley, "A Model Court for Contested Elections (or the 'Field of Dreams' Approach to Election Law Reform)," http://moritzlaw.osu.edu/electionlaw/comments/articles.php? ID=157.
385. Deborah Hastings, "Problems, Funding Plague Voting Panel," Associated Press, June 23, 2008.
386. Martinez, interview.
387. Martinez, interview.
388. For an extended analysis of deliberation and its role in contemporary politics, see Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge: Belknap Press of Harvard University Press, 1996).
389. I make this argument in extended form in "Double-Edged Sword of Independence."
390. http://www.csuchico.edu/econ/old/links/econhumor.html.
391. Thanks to Doug Chapin and Charles Stewart for formulating the issue this way.
392. Charles Stewart, Data for Democracy Conference, Pew Center on the States, May 12-13, 2008.
393. Eric Fischer, Data for Democracy Conference, Pew Center on the States, May 12-13, 2008.
394. Smith, interview.
395. Murphy, interview.
396. Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000), 28.
397. For information on Nielsen families, see http://www.nielsenmedia.com/ nc/portal/site/Public/. Many thanks to David Schleicher for the great analogy.
398. Stewart, "Measuring the Improvement," 7.
399. The 2006 Cooperative Congressional Election Study (CCES), an opt-in Internet-based survey put together by several universities, already asks people how long they stood in line and whether they encountered any problems in registering to vote.
400. Stewart, "Measuring the Improvement," 12-13.
401. David Brooks, "Thoroughly Modern Do-Gooders," op-ed, New York Times, March 21, 2008. For more systemic studies, see David Bornstein, How to Change the World: Social Entrepreneurs and the Power of New Ideas (New York: Oxford University Press, 2004)
402. David Bornstein, How to Change the World: Social Entrepreneurs and the Power of New Ideas (New York: Oxford University Press, 2004)
403. Charles Leadbetter, The Rise of the Social Entrepreneur (London: Demos, 1997)
404. Johanna Mair et al., eds., Social Entrepreneurship (New York: Palgrave Macmillan, 2006).
405. 153 Cong. Rec. S 2503 (2007).