Law School professor reshapes voting

Yale Law School professor Heather Gerken believes that rankings have the power to shape policy — and now, her ideas will play a major role in reshaping how the nation’s largest city runs its elections.

Two weeks ago, New York City Mayor Michael Bloomberg announced that, pending his re-election in November, the city would be the first jurisdiction in the country to implement electoral reforms in line with Gerken’s “Democracy Index,” a ranking system that compares the ease and integrity of voting across different states and localities by tabulating statistics generated by the voting process.

The New York plan, called “Easy to Vote & Easy to Run,” aims to measure indicators such as the quantity of discarded ballots, the ease of voter registration and the time it takes to vote at different city polling locations. That data will then be used to improve and modernize the city’s voting infrastructure.

“For far too long, our election system has been plagued with antiquated rules and procedures that effectively limit its fairness and effectiveness,” Bloomberg said in a Sept. 10 statement. “This plan will enable more New Yorkers to engage in the democratic process by making it easier for them to run for office and easier for them to vote.”

The New York plan is a major landmark for Gerken, who first developed the idea for the Index in January 2007. A 2007 editorial in Legal Times caught the attention of then-senators Hillary Clinton LAW ’73 and Barack Obama, each of whom introduced bills to create a state-by-state index based on Gerken’s theory.

“A ranking system could tell us, for instance, which states and localities discard the most ballots, which polling places have the longest lines, and where the greatest political or racial disparities in registration and turnout levels lie,” Gerken wrote in 2007. “Rather than bogging down voters in the technical details of election administration, reformers could let the numbers speak for themselves.”

The 2008 presidential campaign sidelined legislation regarding the Index, but Gerken followed up on the initial excitement generated by the idea with the 2009 publication of her most recent book, “The Democracy Index: Why Our Election System is Failing and How to Fix It.”

Gerken’s approach measures outputs, rather than inputs: The length of lines at polling stations would be evaluated, for example, but not the training of poll workers in different jurisdictions. Ultimately the Index produces a number, which is ranked alongside the numbers from different states and localities using the Index.

“A lot of it has to do with peer pressure,” Gerken said. “It’s a professional version of high school. No one wants to be Florida.”

A former Yale Law School student brought the Index to the mayor’s attention. Bloomberg is running for re-election this year, and he has highlighted electoral reform as a major part of his campaign platform.

At a campaign meeting with Bloomberg and several aides, including Brian Mahanna LAW ’09, the mayor solicited proposals for reforming New York’s election law. Mahanna was already familiar with the Index, and pitched Gerken’s idea to Bloomberg.

“Anyone who has looked as the system would say that our voting system is antiquated at best, inefficient and dysfunctional as worst,” Mahanna said. “So how do we change that? What new ideas can we bring to the table that will allow us to have more impact?”

The success of the Index will largely depend on the perception of it in the media, said Thad Hall, an associate professor in the Department of Political Science at the University of Utah. Poor marks on the Index could lead the media to attack elected officials, Hall said, when those marks are just as likely to indicate weak or inadequate election laws.

“It’s important to respect the fact that there are lousy election laws and not just automatically blame the officials,” Hall said. “Pressure needs to be put on recognizing that state legislatures have a responsibility as well. It’s easy to say, ‘Well, you didn’t count these votes,’ but more often it’s that the law is out of date.”

And the challenge, said Daniel Tokaji, an associate professor of law at Ohio State University, is “figuring out what things can reliably be measured in such a way that will give a true indication of the state of election systems.”

Gerken’s idea was intended for the nation, but its emphasis on empirical data makes it a good fit for New York City, Gerken said, because the city has traditionally been a leader in data-driven management.

And New York, Mahanna said, is a microcosm of election infrastructure across the country, because the city is divided into five boroughs with semi-separate election boards.

“There are interesting parallels between the system she foresaw on the national level and the system that we have in New York City,” he said. “The idea made sense.”

So far, Gerken has helped the mayor’s office reach out to think tanks and academics who can aid with the development of New York’s electoral reforms, but the biggest obstacle is the dearth of information.

“We have more data about baseball and dishwashers and corporations than we do about elections,” she said.

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