Witnesses:

Maria Echaveste, Democratic National Committee; Hendrik Hertzberg, Center for Voting and Democracy; and Norman Ornstein, American Enterprise Institute

Mr. Philip Zelikow: . . . noting this, we did want to create a panel that actually wanted to hear party perspectives. This is actually not the panel where you are obliged to offer a nonpartisan view; you are certainly welcome to offer partisan perspectives on this panel. We begin with a woman who can be either nonpartisan or partisan. Maria Echaveste is an attorney in Washington, D.C. She is here representing the Democratic National Committee. She has served as an assistant to President Clinton and the Deputy Chief of Staff. Ms. Echaveste, we welcome you here today.

Ms. Maria Echaveste: Thank you very much. Thank you, the commission, on behalf of the Democratic National Committee for your invitation to share some thoughts with you as you take on this very important work. First off, I would like to say thank you to The Century Foundation and all of you who have agreed to participate on this commission. It is extraordinarily important to have a bipartisan group take a look at the issues of election reform.

For the Democratic Party, obviously, November brought a whole host of emotions, controversies, and problems. One of the things the party has done is create the Voting Rights Institute. An effort, in a partisan way, an effort to find solutions to address the voting irregularities that were uncovered in the last election cycle. It is a major initiative of the party. It was created in response to what we perceived to be the violations of constitutional and legislatively protected voting rights. It will use education, training, grassroots advocacy, funding, and communication to create awareness and expand voting rights across the country and at every level of government.

VRI, as in Washington everything always gets shortened, will hold four regional hearings. It has held two already in Riviera Beach, Florida, as well as Newark, New Jersey. It will have two more hearings in the month of June in midwestern and western regions. It, very similar to the work that you are trying to do, is attempting to elicit information, not just in Florida, but throughout the country to try and discover what are the issues that voters face when they go to the polls or when they attempt to vote. From that, it will make recommendations and work towards legislative solutions.

The party is committed to pro-active leadership on the issue of election reform. We hope to be working closely with congressional leaders on the work that is going on in Congress now. Additionally, the institute will provide legal, technical, and political support to state and local parties and Democratic candidates insuring that all local, state, and federal election laws are conducted in compliance with civil rights laws, voting rights laws, and election laws. And finally, the Voting Rights Institute will advocate enforcement and enhancement of the Voting Rights Act and other laws to insure full and equal access to the voting process.

Among some of the issues that we have learned [that] are very important are: first, the need for a provisional ballot. Just because the poll worker can't find a person's name on its register at that precise moment, we all know the potential, as others have testified, of improper purging. It is important to provide that person an opportunity to vote. I particularly care about this issue because I have some experience in elections having served or had the dubious honor of being a commissioner on the New York City Board of Elections from 1988 to 1992.

One of the things that we had to deal with was in the aftermath of Reverend Jackson's race, many, many African-American voters believed to have been registered, excited about actually coming to vote, went to vote to discover that their names had been purged. The need to insure that a person who shows up-who believes that he is registered, might be in the right precinct-be allowed to vote. It is also important to consider that those votes be counted even if they were cast in the wrong precinct, especially for statewide elections. It really shouldn't matter, if that person is otherwise eligible to vote, that he or she cast the vote in the wrong precinct. The purging of voters' names, you have heard from other people, again, it is necessary to find the right balance. It is important to have updated records. Having sat on the commissioner's side of defending a process of purging, I understand that there is a need for balance. But what we should look at is what is the right amount of burden that we should put on voters when they need to change their registration.

What is the right amount of effort to put on overworked election boards? That is something that most people do not understand. We put out in the field on Election Day hundreds of thousands of people for one day with no training. In New York City, again because I put a good chunk of my life there, most of our poll workers were elderly, very ill trained, and not able to really go beyond the immediate task of checking the name. If someone's name was not on the list, they really didn't know what else to do: easier registration-we have talked about that-I know you have heard from others, the training of poll workers. If, in fact, we are going to depend on human resources to assist us as we cast our ballots-perhaps one day there will be automatic voting from home, but that day is not here yet-but we need to be sure the poll workers have that kind of training: consistency of establishing eligibility to vote. There are too many stories of different people asking for different proof of eligibility to vote, and that was heard time and time again. Language accessibility: again, consistency, that is what I think the American people are looking for. They are not asking for a perfect system. They know that it would be impossible to achieve. But what happened in November is very similar to, I believe, the curtain being drawn from the wizard at The Wizard of Oz. What was revealed was that, in fact, our entire democratic system is based on the voluntary efforts of so many good citizens around the country working with antiquated machines, working with very little training, working for very little pay. They hold the keys to our democracy of which we are so proud and which was revealed to be, actually, on very shaky ground.

We are prepared as the Democratic Party to work with all who seek reform. As you sift through all the testimony and debate the recommendations that you will make, I urge you to focus not just on the narrow issue of machines. I . . . again, my New York City experience, one of the recommendations in 1988 was new machines. We have, and still have, lever machines. We went through an extensive contracting process. We hired very highly paid consultants to review all the various types of new electronic machines. At the end of the day, two things stopped New York City from having state of the art electronic voting machines: one was money, an unwillingness to spend the millions of dollars that were required; two was fear of the unknown. People were actually afraid that having an electronic voting machine that might have at its core a computer program would be more susceptible to mistakes, errors, and fraud than our current system.

So if this commission looks only to the narrow, the machine and how it is used, you will be missing two very important aspects: the process for actually getting to use the machine of which you have heard so many issues; and the process of counting after you voted, either the counting of absentee ballots or provisional ballots or the counting based on those machines. So again, on behalf of the party, the Democratic National Committee, we look forward to seeing the recommendations of this commission but more importantly seeing real progress in Congress and elsewhere on electoral reform. Thank you.

Mr. Zelikow: Thank you. I should mention that the commission worked hard to make arrangements so that a representative of the Republican National Committee would appear as well but was unsuccessful despite good will on all sides to arrange an appearance today. Our next witness would have been John Andersen who might represent a perspective outside the traditional two party system. John is the president of the Center for Voting and Democracy. He has had to undergo minor surgery, and Hendrik Hertzberg is offering his testimony on his behalf with thoughts of his own. Mr. Hertzberg does not have as grand a title as some of our panelists, but many of you may know him from his essays in prominent national magazines. I can simply say, personally, that I know him because once he favorably reviewed a book that I wrote. And while reading that review, it struck me forcefully, and not for the first time, what an acute and perspective observer of the national scene Mr. Hertzberg is. So, thank you for joining us.

Mr. Hendrik Hertzberg: Thank you. As you sow, so shall you reap. John prepared written testimony, and it has been submitted to the commission. I am here substituting for him. It is a big honor to appear here before you.

John touches on a lot of important points, and I endorse every word that he has written. But in the limited time that I have this afternoon, I would like to dwell on just one of them: instant runoff voting. As all of you know, the United States uses the same system for almost all of its elections: single member district, winner-take-all, plurality elections. The main reason that we use this system is not because it is the best but because it is the oldest. It may be a museum piece now, but it was cutting edge in 1789. Most of the world's democracies, including all of the countries of western and central Europe, use some form of proportional representation, which we don't use because it was not invented until the mid-nineteenth century. That is something that comes in a tremendous variety of forms. The main exceptions now are Britain; some former British colonies like Canada, India, and the United States; and some former American colonies like the Philippines. Even in Britain, the mother of parliaments, and some other former colonies like Australia and New Zealand, the trend is away from single member plurality and towards a p.r. in one of its many forms. But the practical reality, and occasionally at the Center for Voting and Democracy we touch on that, the practical reality is that the United States is going to continue to use single winner, winner-take-all, for a long time for everything from president and governor to Congress and the state legislatures. This is where instant runoff voting or IRV comes in.

IRV is simple, as simple as one, two, three. On your ballot you mark your choices in order of preference: one, two, three or more, as many or few as you wish up to the total number of candidates. When the votes are counted, if one candidate has a majority of first choice votes, then that is it; that person is elected. If not, you drop the candidate with the fewest votes then distribute their second choices. You just keep doing that until somebody has a majority. This does several good things. One, it guarantees that the winner will have, if not the active support, then at least the grudging acceptance of an absolute majority of voters. It allows voters to express themselves at the polls with some subtlety and precision. A voter can say, in effect, this is what I really want and this is what I would be willing to settle for. It eliminates the spoiler effect because you can vote for the candidate or party that you completely agree with without having it come out of the hind of the candidate that you agree with most of the time. It opens the debate to a greater number of voices, while at the same time it promotes consensus and civility and discourages the excesses of negative campaigning. Candidates will be hoping to get the second choice votes of the people they are running against. It tells candidates exactly where their support is coming from. It creates a kind of contour map of the winner's mandate. In sum, IRV would make elections more democratic, by insuring something like majority rule, and more interesting, by opening the debate to more viewpoints. There is no doubt in my mind that it would lead to greater voter turnout. Voting would be more interesting, more meaningful, and more fun.

Now, another reality: as long as you have winner-take-all, especially plurality winner-take-all, you are going to have a two-party system. This is not the result of some conspiracy by the big parties to crush dissenting purposes; it is for perfectly good democratic reasons. You have got to have two parties if you are going to have a chance of electing somebody who represents something like a majority. But the fact remains that independent candidacies and third parties and fourth parties have been part of American politics for more than one hundred and fifty years. They are not going away. They will never take over. The Greens will never replace the Democrats. The Libertarians will never replace the Republicans. But they are not going away. We can lecture them as much as we like. I am a big party man myself; I am not a Green, and in 1980, much as I love John Andersen, I voted for Jimmy Carter since I was working for him. We can lecture these little parties and their adherents as much as we like about how they are messing it up for the rest of us. I am sure Mr. Gorton knows what I am talking about because if it were not for the Libertarians, who he probably agrees with sixty or seventy percent of the time, he would be in Washington right now caucusing with his fellow members of the Republican minority. A lot of things would be different if you had IRV in the state of Washington. We can lecture them or we can tweak our system a little bit so they can participate in a non-destructive way.

This movement for IRV is a real grassroots movement. There are bills pending in twelve state legislatures. In Alaska it is on the ballot. There is a proposal on the ballot next year to institute IRV for all federal and most state elections. Right here in Austin, there is a very serious effort underway right now to put in IRV for city elections following a unanimous recommendation of a charter commission. There is nothing exotic or un-American about IRV. Runoff elections are familiar to most Americans; a lot of jurisdictions use them for all kinds of offices. As you know, they are expensive and for the second round turnout is usually low. IRV just takes this just one logical step further. It is common sense. I hope this commission will give it a careful look. At a minimum, recommend that when states and localities adopt new voting procedures and new voting equipment, that those procedures and that equipment be able to accommodate the possibility of making the choice to go to instant runoff voting.

Mr. Zelikow: Thank you, Mr. Hertzberg. Our final witness on this panel is Norman Ornstein. Ornstein is not here representing any political party, but he is a friend and an observer of them all. Mr. Ornstein, thank you for joining us all. Mr. Ornstein is a resident and scholar at the American Enterprise Institute for public policy research.

Mr. Norman Ornstein: Thank you, Professor Zelikow. For a minute there I thought you were going to say that the Republicans had selected a representative to appear here today, but Senator Jeffords couldn't make it.

Mr. Boschwitz: If you would yield for a moment, Norman, I have to leave. My taxi is here. I will have to read your testimony, which I look forward to doing. I yield my time to Professor Edley down there, and all of my questions he will take forward to Mrs. Echaveste.

Mr. Ornstein: It is an honor to be here in front of this distinguished group, including many of my heroes in public service. I am here also, let me say, as a chair of the task force of the Constitution Project, a complementary group to yours on voting procedures. These are my own views, but I think that they will show up in substantial form in the report that we will issue that you will have as soon as it is available. As I thought about which of the many issues I wanted to raise in the brief opening statement, I decided to settle on one large one, which I think needs a substantial airing, and that is this-it is really, in fact, where our report will flow from-that, as we consider electoral reform, there should be one fundamental principle, and that is that voting at the polls on Election Day should be a highly valued act of citizenship for the individual voters.

Whatever can be done to encourage it should be. Steps that dilute voting at the polls on Election Day should be discouraged and avoided. Voting at the polls on Election Day should be convenient, accessible to all, expeditious, as uncomplicated as possible, and all in all a pleasant experience. That is not always the case in many places. Voting at the polls on Election Day is an act of community, balanced with individual freedom: one of the things that Mr. Gashel expressed quite eloquently here just a little bit earlier. It is done just as voters choose, from a common pool of available information with prompt counting and verification of results, and with a critical zone of privacy surrounding that vote.

Now, as you know, the trend in this society has been almost uniformly and very sharply, some of you know more acutely than others, in the opposite direction. We have moved toward unlimited, no-excuses absentee voting; toward vote by mail in some places universally, and in others close to it. We have moved toward early voting. I suspect and fear that we may be moving towards Internet voting ultimately. We know why, and I know that what I am saying here today will be vigorously opposed by a vast majority of the secretaries of state and an awful lot of other election officials. It is cheaper and easier to have vote by mail and other forms of voting that do not occur at the polls on Election Day. There is a belief that, I think, in large part is a mistaken one, that it enhances turnout. We now have a substantial number of studies, some done at the University of Michigan under Michael Traugott, some done at the Center for the Studies of the American Electorate, suggesting that with a few possible exceptions in local elections, it does not enhance turnout.

What to do? Let me raise that in a couple of ways, and then I will come back to why I think this trend is not a very good one and emphasize a few things. To make voting at the polls convenient, accessible, expeditious, and so on, we need more polling places. We need more polling machines. We need, definitely, more poll workers. We need longer hours. Here, I believe, New York, which has its polls open from 6 am to 9 pm, is a good model, a good place to start. We clearly need to improve the registration process including, as many states are doing, moving towards a central statewide registry of voters with access to it, instanteous access at all polling places and a much, much better process of provisional voting. I do not object to at all, in fact I would encourage, experiments with intranet voting and experiments with local area networks that can be secured. This is not going to be an easy thing to do because you are going to cut across jurisdictions and you are going to have to have multiple ballots. But it seems to me that allowing people to vote, perhaps, close to their work where the vote would register at home, given the hours that many people keep and the difficulties with voting on Election Day, it is worth experimenting with in certain places, as it has been and should be a little bit more.

One suggestion I would make with regard to poll workers: first, if we extend the hours, then we would have to move to shifts for poll workers. Given the number of elderly people, this would probably be a good thing. But we know that we have at least an army of available people that exist because schools are closed on Election Day for the most part. We are now beginning to see some states experiment with having high school students. In many places there are laws suggesting that if you are not eligible to vote yourself, then you are not eligible to be a poll worker. There are administrators and teachers, and I suspect-working with organizations like the National School Board Associations, the NEA and the AFT, and others-we might be able to expand that list.

All of these things are going to cost money. But in the larger context of a nine trillion dollar economy and a two trillion dollar federal budget, I don't think the amounts are very large. I am concerned about this for a whole host of reasons, and my colleagues are as well. I am concerned, first, because the trend towards voting over a very substantial period of time, I believe, is the equivalent, and becoming the equivalent, of voting on the results of an NBA game at the end of the third quarter. Now, the San Antonio Spurs might like that a little bit, this last week, but what we are finding is that more and more people are voting before the final week or two of a campaign. And as everybody we know that has been involved in campaigns knows, as the pressure increases, information becomes available and candidates respond in a different fashion. These become the crucial moments in a campaign. For people to vote without the available information, creates an uneven process. It also complicates and greatly adds to the expense of the campaign, as you have to campaign to different slices of the electorate in different ways, at different times.

At the same time, voting at the polls really is an important link to citizenship. It is an exquisitely balanced act where you go and congregate with your fellow citizens showing that you are a community, but then you move into a private booth, draw a curtain, and perform a supremely private act, an enormous act expressing the freedom of choice that exists in a democracy. Most importantly, that zone of privacy-if you go back and look at history and the history of corruption in elections at the turn of the century, the advent and expansion of the Australian ballot: Washington state being an innovator in this area-it occurred because we had enormous corruption because people did not have a secret ballot. Others could look over their shoulders, watch as they held up party ballots of different colors and shapes, and we acted in ways to remove that corruption. More and more absentee voting leads to more and more possibilities of, opportunities of, and realities of corruption. It is corruption that occurs, in part, because people can be coerced into voting in ways that they would not otherwise do; we have seen this in Florida, by the way, not this last time, but numerous instances in the past. Ballots can be stolen or forged, but [this corruption] also takes place in a more subtle form where you can have a spouse looking over your shoulder while you vote or a group of people encouraged to vote together on the shop floor or perhaps in the place of worship. We also know that when you vote at the polls on Election Day, parties have poll workers there. They can watch through that finite period of twelve or fifteen hours to make sure there is not any chicanery. The more we move toward vote by mail and absentee balloting, admittedly this is a problem more in states that have a greater culture of corruption than others. But as we saw again in Florida this last time, you can have thousands and thousands of ballot applications or even ballots sitting around an election supervisor's place of business for days or weeks with nobody there to see what goes on inside that office or that hall.

And finally, of course, we know-and we know from the experience this last time in California, in Washington and in Oregon-that when you vote by mail or you vote absentee in substantial numbers, it takes an enormous amount of time to count those ballots. Even in a state where the ballots all had to be in, in hand, by the close of business on Election Day, as they were in Oregon, it took two to three weeks to count those ballots. In California there were millions of ballots left uncounted for weeks. We didn't know the final presidential election and the popular vote totals, in a significant part, because we had to wait for those results coming from California. The more we move in this direction, the more we are going to have elections where we don't know the results for weeks. So, this is not a good trend. It is a trend that, I think, most people view, because of its convenience, as a perfectly good one. But I think and hope that the commission should weigh in and get citizens and other bodies to think twice before they move additionally in this direction and, perhaps, to try and reverse the trend a little bit. Thank you very much.

Mr. Zelikow: Thank you, Mr. Ornstein. Mr. Chairman.

Mr. Cutler: We will start from the left this time. For some reason we have our Republicans strategically placed on the left.

Ms. McAndrews: Well, I share a lot of your concerns about the move toward vote by mail and absentee ballot. Just as an aside, I inquired at the last hearing of some of the election officials if they thought the genie could be put back in the bottle. Given that it is so enormously popular as used by the citizens, people like to take the ballot and vote at home and not be troubled to come out on Election Day. They had a resounding response: they did not think the genie could go back in the bottle. But I share a lot of your concerns.

One of the things we have talked about at past hearings that addresses your issues of needing lots of polling places, workers, expanded hours to make elections in a polling place enticing to voters, one of the suggestions that came up, and I would like all of you to comment on it, is to try and create, at least for the presidential election every four years, a national holiday on Election Day. One of the suggestions made by a member of Congress, and I think there is actually a bill been introduced, is to move Veterans Day every four years to the first Tuesday after the first Monday in November, which the Constitution calls for so we would not have to have an amendment. It would not be tied with a Friday or a Monday so that everyone would leave town. It would still be on a Tuesday, and you would have state, local, and federal government workers available who might be willing to earn the extra compensation if you upped the pay. Schools, teachers, and students would also be available to be workers. You would also possibly be able to not have such a huge span of time for the polls to be open because people would not have to go to work. They would be able to vote during the day.

I observed elections in Russia after the fall of the Soviet Union where the election was held on a Sunday, and it became sort of a festive atmosphere at the polls. Community events could go on adjoining or whatever. I wonder if you would comment on this: if it would solve some of your problems to make Election Day more user friendly.

Mr. Ornstein: When I started this process, if I could have waved a magic wand, I would have said to actually move to a weekend and have a twenty-four hour voting period from noon Saturday to noon Sunday, East Coast time, with the hours staggered across the entire country. You would solve any Sabbath problems that way. Partly believing that, if Wal-Mart can be kept open 24/7/365, then surely every couple of years we can have the polls open for twenty-four hours. Because even on weekends or holidays, there are still those who have long working hours and some difficulty that way. If you spread it out over that period of time, you really do provide opportunities for everybody. But I recognize that the practicality of that is limited.

A holiday, so long as it didn't involve the expense of a newly created holiday, is an appealing idea. We actually raised this and talked about it at length in our task force. A number of people threw some cold water on it by suggesting that in other countries there is not a lot of evidence that it increases turnout; people treat a holiday as a holiday. Voting Day, even if it is a workday, is something that people have integrated into their experience over a period of time. Many people in Congress do favor the holiday idea, and I would not be surprised to have it move forward. At minimum, it is something we ought to experiment with. It has been experimented with in some local elections, but we ought to begin that process. If we can, at a relatively low cost, reduce the problems that people have. I found when I wrote an article in the Washington Post decrying the increase in absentee voting; I found that I received an immense response via email and calls. Many were from people saying, �I agree. But I get to the polls at six o'clock in the morning because I have to be at work at eight, and the line is already two hours long. I get there at seven at the end of the day when I get back, and the line is two hours long. You tell me what I am supposed to do.' There is a genuine need to find a different vehicle.

Ms. McAndrews: Just to follow up on the observations of countries or other places, in Santa Monica there was actually an experiment in a special election several years ago to have weekend voting on two different weekends, and the result was that there was not that much increased turnout. Any other comments on the holiday?

Mr. Hertzberg: It sounds like a totally terrific idea, one hundred percent.

Ms. Echaveste: It may not solve all of the issues in terms of increased voter participation and reducing some of the obstacles to voting, but it sounds like an idea that ought to be explored. Certainly the experience in some other countries-or even, say, Puerto Rico, that votes on a Sunday for its elections-it becomes a community-oriented type of event. If we are going to try to stop the trend of the apathy that we see all over the country, then I think it is something that the Democratic Party would be supportive of.

Senator Gorton: Well, Mr. Chairman, I reflect on the fact that I think in each of the three hearings we have had, I found the last panel to be the most stimulating, if not the most helpful in coming up with the answers to the questions that we may have. For example, I laud and agree totally with Mr. Ornstein's view about the way that Americans ought to vote. His suggestions are totally impractical; we are not going to go back and do it that way. His objections are sound. He stated quite eloquently the desirability of a community activity in voting, as well as on the part of one of the earlier witnesses. But I don't think it is going to happen. What we need to do here is to try and see to it that we improve the situation, as it actually exists.

With respect to Mr. Hertzberg, he has caused me once again to discover a character trait I never thought I had until six months ago, that is, total masochism. If it were not for special or provisional ballots, I would be in Washington, D.C., today, but as the rest of the members of the commission know, I think the provisional ballots are the answer to a very large number of the questions we have faced here together about the eligibility of people to vote.

If we had his preferential system, I would be in Washington, D.C., today with the second choice of 65,000 Libertarian votes, and I think his idea is a terrible idea. Elections ought to be about choices. I like the idea that we might require, or be benefited by, runoff elections when a candidate does not receive a majority; it has a great deal of merit. But people ought to make choices; those choices ought to be absolute and straightforward. As to his . . . the idea that he considered to be impractical himself, I am glad that is impractical in a country with as much diversity as in the United States. We would have a less responsive and less effective government than Italy does if we went to proportional representation with ten or fifteen parties represented in the Congress of the United States.

I must say that each of the witnesses here this afternoon has been extremely stimulating, and I am delighted to have heard them, even when I disagreed with their ideas.

Mr. Hertzberg: Can I treat that as a question? On the matter of proportional representation, PR gets a bad rap on account of Italy and Israel, but as I mentioned in my remarks, there are all kinds of ways to do it. Israel is a mess because with one percent of the national vote, you get a seat in the Knesset. So there are fifty or twenty parties in the Knesset, and the little parties can hold up the big parties. Everybody in Israel knows that is the problem, but nobody can do anything about it. If you have a five percent floor or a ten percent floor, however you do the hydraulics, Germany-which is a very stable, well-run, democratic and very free country that recently absorbed East Germany with very little unrest-that is a country that has a mixed proportional system. Because they have a five percent floor for representation, it is essentially a four party system.

Senator Gorton: Which is actually two more than we need.

Mr. Hertzberg: Well, that is why. . . So, you said you didn't like instant-runoff voting, but I don't understand why you like runoff but not instant runoff; you make a choice when you run in an instant runoff.

Senator Gorton: I don't believe that for a minute; it is an excuse. If we feel that it is necessary for any candidate to be elected to have a majority, a runoff is perfectly appropriate. But to allow people to fudge their choices and understand that it is almost certain that their vote will get counted one way or another seems to me to be highly undesirable. As you pointed out, if we had exactly the kind of election in the state of Washington that we did but after the election was over we decided that we would count second place votes, I would have been elected. If we had run the election with people knowing it in advance, we would not have had three candidates on the ballot then; we would probably have had six. The result would have been far more diffuse. That is it.

Mr. Michel: Maria, you made mention right off, from the front of your testimony, about the need for provisional ballots. How would you define a provisional ballot?

Ms. Echaveste: It would be a ballot from a person who the poll worker could not find on his register. To be able to do a paper ballot, to identify on the outside who that person is and their address etcetera and inside there would be a ballot on which they could vote. It would be subject to confirmation that, in fact, that person was registered to vote somewhere, whether in that precinct or in another precinct, provisional in that nature. Cast pending confirmation or verification that the person is eligible to vote. In New York it is called an affidavit ballot because the person signs on the outside of an envelope that says, "I declare that I am eligible and registered to vote under penalty of perjury." So, there is some ownership that says you are making an oath that you are, in fact, eligible to vote and want to vote.

Mr. Michel: You and Norm both made mention of a problem with poll workers and poll watchers, whatever you want to call them, and the lack of trained . . . I don't know who is supposed to be responsible for training the poll workers. I suspect that it is the election machinery in the particular counties. Norm, you even suggested that we ought to have more polling places and more precincts, which means compounding the problem we already have. Now, I have a problem when I hear the testimony that the voter coming in was not told this or was not told that; he was completely uninformed. I think sometimes the voter himself has some responsibility to be informed before he goes to the poll. We can't all be imbeciles and go voting for responsible public officials. That is what wrangles me a bit, that the burden is all placed on an entity of government versus the responsibility of the individual. I thought that it was so touching when the gentleman representing the blind community said that if we all vote absentee we take something away from what it really is to go to the polling place to vote. I will tell you that touched me in itself. Norm, I have to agree to some degree: where are we going with absentee ballots? Well, we have more time, and it is so much easier. Would you like to comment on that observation, either one of you?

Ms. Echaveste: If I may, Norm. I think there is no question that a voter has to be responsible. You have to be responsible when you look at the ballot and make your choice. That process . . . that is why every jurisdiction I know of sends out a sample ballot, so that a voter will know what the ballot is going to look like. When I talk about the need for training, I am talking about poll workers. There is a difference between poll workers and poll watchers. Poll watchers are the folks that the parties have in place to make sure that there is not chicanery or improprieties, but poll workers are the people sitting behind the desk, checking your name off, making sure that they have handed you your ballot, gone off, and that you drop it in the right box. Sadly, we are highly dependent upon people who are not otherwise engaged on Tuesday, which is mostly retired and elderly. We are depending on them to be consistent in the questions they are asking. When I show up to vote am I asked for one piece of id or am I asked for my name and my address? It changes and varies. There needs to be consistency. Some expenditure of resources for training would not absolve the voter of the responsibility he or she has but would, in fact, make it easier to discharge that responsibility.

Mr. Ornstein: Let me address those issues as well. I agree with you entirely that there ought to be a responsibility on voters. In fact, one of the things that has distressed me about the tendency to move toward vote by mail and all of these other forms, is the idea that we should make it absurdly easy for people to vote, to a point where it is like filling out a Publisher's Clearing House sweepstakes ballot rather than actually going to the polls. We ought to make it easy in many ways; people should not have to wait in line for two or three hours because there are either registration problems or there are not enough machines. Lots of people are willing to make very substantial sacrifices. It is a precious right that includes a responsibility. Having said that, trained poll workers-in just the way that Maria suggested: people who understand and know what the rights of voters and the rights and responsibilities of the state are and who have some sense of the machinery that exists there, who know the rules-is a necessity. This is a matter of money, frankly. It is also going to be the responsibility of local jurisdictions, differing according to states. It is probably going to have to be done in some sort of a matching form, but it ought to be done with a very substantial imprimatur to give something to it.

Now having said that, let me go back to what Senator Gorton said: I am certainly not na�ve enough to think that we are going to go back away from this trend. But I hope that among the things that the West has exported are initiatives and referendums, which I am not happy with either, as I believe in a representative form of democracy, but this has not spread quite like wildfire through the rest of the country. What we have seen in Washington, Oregon, and California, it won't be reversed in Washington and Oregon, I know; it does not necessarily have to expand in California. But it has been moving in other states, in part, because there has been simply no resistance to it. If you are a local election official, you have an enormous temptation to move in this direction because you can reduce your cost. You could reduce the hassle of trying to find poll workers or keep the polls open or get more equipment and maybe gin up turnout, and that is good but that is not the only good that exists. It doesn't seem to work anyhow.

Senator Gorton: Would you have Congress restrict the right of the state to move in that direction?

Mr. Ornstein: No, I certainly wouldn't. It seems to me we need to do two things. First, we need to provide as many resources as we can with as strong an imprimatur as we can to make voting at the polls on Election Day easier. But it also seems to me that the bully pulpit-and I hope the bully pulpit that Congress represents, and what many of the rest of us can do-is to begin to present to voters, to election officials, and to other decision and opinion makers out there, the other side. A lot of people have not thought about the downside to voting by mail or voting on the Internet. They think, �Oh boy, it is easier. We need to do more.'

Ms. McAndrews: Have there been any studies done of the cost of the absentee ballot. You say they want to do it because it is cheaper, but mailing the ballots out and bringing them back, the manpower of checking the absentee ballots and checking them for weeks afterward, there must be a cost in that. How does that compare to simply beefing up Election Day?

Mr. Ornstein: My guess is that since we have now moved this experiment to a presidential election, when Oregon begins to tally up the costs of opening all those ballots and having them come in so, it is not going to be any significant savings. In the short run, it has been a savings.

Ms. McAndrews: And in a state where you still have to have both systems, it certainly is not a savings to go to the vote by mail. There must be costs there, like California; you still have to man the polls and have them open and have the machines.

Mr. Ornstein: I believe we are going to start to see more systematic research done or more studies that will look at the costs and the benefits, but there has been nothing that I have seen so far. I would say that if we are balancing these various things, the early voting where you go to a central place, even though I am uneasy about the notion about people voting without the same collective pool of available information, at least there, where you have that zone of privacy and you have that experience of going to vote at a polling place, is preferable to some of these others. I just think, realistically, we may not be able to reverse it, but it is incumbent upon those that believe that this is not a good trend, and we are going to pay a price down the road for this, to put up some resistance to it.

Mr. Cutler: I have two questions. The first is that in order to make this communal experience of going to the voting booth available to more people and to persuade them to do it, it seems to me the evidence is quite clear that you need more and more poll workers. We pay poll workers a minimum wage, and it is very difficult to find them. We don't reward them in proportion to what they contribute to having this communal experience. What would you think of some sort of good citizenship award to poll workers by means of a state-run or federally-run lottery in which, say, at the rate of 100,000 dollars per state would take only 5 million dollars for the fifty states. If we could get 50 million dollars to support poll workers or reward poll workers by means of a lottery, there would be a million dollar lottery in each state. It would be simple enough to do because every poll worker is registered and is given a number.

Mr. Ornstein: I would be for that. There is a downside to that, which is that you are in some ways saying that this is not really an obligation, it is a reward. But anything that we can do to encourage people, I would do. When I mentioned getting those from the schools involved, it seems to me . . . and I am hopeful that the Constitution Project might be able to begin an effort here to work with some of these educational organizations: for example, to have extra credit for students who are willing to serve as poll workers, to provide paid leave or an extra day of leave for teachers or principals or administrators who are willing to spend that day working at the polling places. There are probably a number of innovative things that we can do that move beyond a simple grant of money, a lottery being one of them that we ought to be thinking about and experimenting with. As I said before, and I wasn't being facetious, if Wal-Mart, Price Club, CVS, and other chains somehow manage to keep stores open twenty four hours a day, seven days a week, throughout the year and find personnel to do it, it ought not to be that great of a challenge with a very substantial pool of people out there, whether they are retired individuals or people from schools or people from home, to get them there for a day every couple of years with a little bit of effort, innovation, and money.

Mr. Cutler: Any other comment on that question?

Ms. Echaveste: It is an interesting idea. I must say there is attractiveness to it because it could create some excitement, but I think that as you consider the various . . . finding ways to attract more poll workers should be one of the things that we see in your recommendations. It isn't just about making it financially rewarding; I mean, that is part of it. If there is a theme that I am hearing from my other colleagues here, it is that there is something very substantial that is evaporating; there is something very substantive about voting that seems to be going into the air. That is to say, our obligations as citizens and that very important responsibility seems to be not so important. Trying to recapture, create, or regenerate in younger generations a sense that my responsibility, one of my obligations-if I can find the time and I can, indeed, take time off work-is to be a poll worker. I have never seen a campaign. When we recruited poll workers in New York City, it was never a PR effort saying, �It is your obligation as a citizen.' We depended totally on the political clubs to find the retired workers. So, we are not taking responsibility for generating that sense of obligation as citizens.

Mr. Cutler: My second question relates to the instant runoff. I suppose Congress would have the authority to do that for state or congressional or Senate elections. How could it be done for the federal or presidential election short of a constitutional amendment?

Mr. Hertzberg: Actually, Congress does not even have to do it. It can be done, I think, for House seats without any act of Congress for changing the Constitution. It could also be done for presidential electors. States could elect presidential electors by instant runoff voting without any action from Washington at all or any change of the Constitution.

Mr. Cutler: But it could not be national. It would only happen in particular states.

Mr. Herzberg: It would have to be state-by-state; that is right. That is, in fact, what Alaska has on the ballot. If Alaska passes their initiative next year, then in the next presidential [election] Alaskan voters will vote for their presidential electors by instant runoff voting.

Mr. Cutler: But would you want a system in which that instant runoff voting [is] for one state or four states out of fifty?

Mr. Hertzberg: I would rather have all fifty, but I don't see any problem with that; I don't see that as an equal protection problem or something like that. Four states doing it would be four to the good; the more the better that do it. We have a lot of inequalities and inconsistencies in the way that elections and presidential electors are elected around this country. This would be one more, but it would be a real gain for the voters involved.

Mr. Cutler: Any other comments?

Ms. Echaveste: If I may, I think it is terrific to have a bold idea, something to shake the system up, but as I sit here, the challenge of running our current system, our current two party system, and the problems that you have heard over and over again of the problems of people coming to the polls, to add a whole new layer is a terrific, bold, academic kind of idea. But I would be deathly afraid to see what is going to happen in Alaska, if that is the first place it is going to start, when we haven't solve some of these really basic problems. I really want to underscore what we learned in November was that anyone who had worked on the nuts and bolts of running an election knew that it is really hard to put together an operation, to put together the mechanics of voting. You have an opportunity with your work to make real progress. Think big, but don't think so big that we don't end up with some real concrete improvements by the next election cycle.

[Mr. Edley]?: I am just sitting here thinking about what a butterfly ballot would look like with the instant runoff voting provisions. It is making me very dizzy.

Mr. Hertzberg: It would not look any more complicated than an SAT answer sheet. And certainly, if you had touch screen voting, no problem at all.

[Mr. Gorton]?: I would make one observation: I don't like proportional representation; I like majorities. As I look at Germany, even, we have had many instances where a small party either held the balance of power and developed an extraordinarily disproportionate power in governing or came very, very close, including parties that many would have viewed as extreme. So even in a system as balanced as Germany, different from Israel or Italy, it creates dangers, I believe. I do think that one of the advantages that we have had in our democracy is that it builds broad coalitions and actually ends up closer to finding and expressing a larger viewpoint and moving politics toward the middle where most Americans are. If we do continue to move in a direction in which some of our political figures would like, to create purer parties, it is a very, very dangerous development: a little aside.

[Mr. Edley?]: Well, I am an academic. But on the other hand, I also abhor utopianism, and I confess to being very intrigued with the instant runoff notion. If not something that could be adopted and implemented in the near term, then at least something that might be worth pointing the country toward for the not too distant future. I am a little bit perplexed by Senator Gorton's strong and principled opposition to it because it is conceptually-if you imagine people casting a vote on Election Day and at the same time, if you will, filling out their vote by mail or absentee ballot for the runoff to come afterwards, but simply doing it at the same time-that certainly seems unobjectionable, and yet conceptually, it seems indistinguishable from the instant runoff vote. I would view it as sort of a convenience to prevent people from having to come to the polls a second time for a runoff. I think there are problems with people getting elected by pluralities. I think there is much to be said for pressing toward a majority. I would not dismiss it. I think it deserves some debate and consideration. I would be curious though, and let me ask Rick this, who are the losers likely to be? What kinds of interests are likely to be losers if one moves to it? Do you expect this to strengthen or weaken the influence of the Christian Coalition or organized labor or environmentalists? If you could just respond to that.

Mr. Hertzberg: To a certain extent that you could say that the big parties might be losers, in the sense that, as Senator Gorton suggested, it would attract more parties into the field. I don't think in any great numbers because there is a limit placed both by ballot access laws and complications and just by human effort. Whoever loses from having a broader range of debate is going to be the loser. A lot of our politics in this country is extra parliamentary. You could say the most important American politician of the twentieth century in many ways is Martin Luther King, Jr., and he never ran for office. Proportional experiments, like IRV or proportional representation, tend to bring politics into the political system, into the legislature, and make it part of the democratic machinery. I don't really know who would be the losers. Right now it is kind of a hit-or-miss situation. In Alaska, under a winner-take-all plurality, the Republicans are the losers because the Libertarians always knock them out. In New Mexico the Democrats are the losers because of the Greens. Of course, it is those short term political considerations, not these lovely systemic analyses that drive the actual adoption of these kinds of reforms. But I don't know who would be the losers. I think it is basically a win-win proposal. I don't understand who would lose from it except candidates whose strategy it is to essentially get in with a minority of votes while a like-minded majority splits among itself. That is whom our system serves.

[Mr. Edley?]: I share the concerns that have been expressed about proportional representation, at least in many of its forms. But I will also say that under our dominant two party system, Norman, there are, obviously, those who think that there are minority interests, special interests if you will, who have excessive power over their party, be it organized labor or minorities or the Christian Coalition or whatever. Even without having multiple parties there still is this question of the appropriate political influence of a minority caucus, if you will. Let me throw out to all of you this question. We heard, very interestingly, first of all, a clear sense that Congress has plenary constitutional authority to impose upon the states when it comes to congressional elections. Secondly, we heard that for most of the nation's history non-citizen immigrants have had the franchise. So my question, as an academic, how would you react to a proposal that immigrants be eligible to vote in congressional elections as of the date in which they file naturalization applications?

Mr. Cutler: You would have to amend the Constitution.

Mr. Edley: I am saying in congressional elections. There is nothing in the Constitution that requires that�

Mr. Cutler: Don't you have to be a naturalized citizen of the United States to be a member of Congress but not to be a voter? That is a big stretch of the time, place, and manner clause.

Mr. Edley: Well, let me put aside the constitutional concern that Lloyd has raised because, of course, we could try and do it through the spending power rather than as a mandate. But the general proposition that long-term immigrant residents that have, in that formal way, indicated an intention and, indeed, taken a step toward becoming a citizen . . .

Mr. Hertzberg: Well, while we are all puzzling over that, Chris, maybe I can answer a question.

Mr. Edley: About understanding what the proposal is or the desirability of it?

Mr. Hertzberg: Well, you mentioned Congress' plenary power. I actually want to shovel something in from the side if I can. I would like to see the states experiment with proportional schemes for electing members of Congress, three, four, five-member districts. Right now there is a statute which requires single member districts. This is a very well-intentioned statute. It is because some states were electing members of Congress in big four or five member at-large districts as a way of shutting out minority voters. But Illinois, Mr. Michel knows this; the Illinois legislature for years was elected by a cumulative voting system. It was something that the citizens of Illinois were very happy with. This kind of voting could also be done for Congress if this statute were repealed. There is a bill pending to do that. One of the problems of our winner-take-all system is that it does exacerbate regional conflicts. We have all seen those red and blue maps. But oddly enough there are some Democrats in those red areas; there are some Republicans in those blue areas. It makes sense for them to be represented, not for them to dominate, but for them to be represented. A simple bill in the House, in Congress to eliminate that requirement for single member district elections would open it up for experimentation in the states. That could open the way toward getting past problems like a lot of the re-districting perplexities that we have where we are creating majority or minority districts and trading it off in bargains where you get more racial and ethnic diversity but less political diversity. All of these problems could be solved in a much more democratic way through proportional kinds of experiments.

Mr. Edley: Ms. Echaveste.

Ms. Echaveste: I think that the idea is interesting, to allow people who have filed for naturalization, given how long it takes the Immigration and Naturalization Service to process those applications, sometimes it can be two years, three years, or four years. That is a heavy price to pay. How you would go about enforcing and proving that you filed such an application and that you have met those requirements, I think, would be a bit of a headache. Having immigrants, who are now on the path to be citizens, not have to wait such a long time to be able to cast their vote, at first blush seems very interesting and very attractive. I worry about the implementation from a pragmatic standpoint.

Mr. Ornstein: I must say that when Congress moved to take away welfare benefits from legal resident aliens who worked, paid taxes, and then were denied some of those basic benefits, I thought it was a big mistake. But the vote is another issue. This is one that we have to mull over long and hard. Partly, this is because one could imagine a lot of chicanery. One could imagine a lot of applications for citizenship filed simply with the intent of jamming in voters at a particular point in time, a change of incentives here. A better way to go is to change public policy to expedite the movement toward naturalization from the time that is filed, this has been on the list for a lot of people. I think that it is one of those things, along with the absolute obligation of government to provide the resources to make the vote work in elections, there should be an obligation to make the laws work so that people who go through that enormous effort to come here and want to be citizens and have gone through all of the legal requirements and have paid all of that price, and to have it held up for years basically because of bad rules and red tape and lack of resources is wrong. But that is as far as I would go with that.

Mr. Steele: Under what circumstances would any of you see the need to purge voter rolls, and what timetable would you use to do it?

Ms. Echaveste: Clearly you must purge the voter rolls of deaths. That is an important thing. People laugh, but it needs to be done. It needs to be done properly and within a timely period. That requires coordination between the medical office and the updating of those records. The movement of people out of state who no longer live in the state but are cluttering up the registrar's list is also important. But how do you go about doing that? Does that same requirement to purge, is it as important when the person moves from one side of the city to the other side? Those are some of the questions that need to be asked.

Mr. Steele: If I may interject, what about the idea that I have not voted in the last four cycles?

Ms. Echaveste: Perhaps, I have decided that none of the elections or candidates are exciting to me? What has happened is, and we learned this in 1988, that there are people who believed that they had been registered to vote; nothing had excited them about an election until that person had decided to run and got them excited. They walked in, and they knew that they voted before. They assumed that they were still on the polls. Often times in government, we decide that if you have not voted in four cycles, then you must no longer live there or you must no longer live here or you must no longer be part of this. But this is as far as we went. I am not sure whether that is a sufficient basis for penalizing people that might have just decided that they didn't want to vote.

Mr. Ornstein: I think you need regular purging of voter rolls. Death and mobility are serious things. There is a significant possibility of corruption when you have an awful lot of people there on the polls. The temptation is fairly easy to figure out, for outsiders and for parties, to figure out those who are on the rolls who are not eligible to vote and to corrupt the process. It is something that needs to be done. We clearly have to be very careful about how we are going to do it. As the Florida experience this last time suggests, it is easy to have something occur that has a taint of bias and even a reality of bias, and that means, in part, we have to be sure. This is going to be done under the supervision of election officials, some of whom may be elected themselves or appointed by elected officials who are partisans. There must be nothing partisan about this. As we know, in Florida whether through just ineptitude or error or something worse, they sub-contracted to a group to do purging of the voter rolls that had at least some hint of bias about it. They sent out messages to local polling places that suggested [a] large number of voters that should not have been purged be purged. You have got to get this as far removed, from any suggestion that there might be a partisan bias, to the process of purging as possible. We also have to work, and I also think that it ought to be on the list of things the commission should do, to discover how we are going to share information across state lines without getting into questions of privacy. It is done in so many other areas. Since it is done from driver's licenses now and we have Motor-Voter, maybe it is an issue that should be revisited in the context of Motor-Voter. Now we have so many citizens that are moving from one state to another and who end up being registered in two states that there ought to be relative easy ways to deal with that problem.

Mr. Steele: One final point: Norman, you had referenced in giving some sense of recommendations of what you would like to see that would lead to greater voter participation. The idea that increasing voter turnout-the type of mechanisms that we can employ to increase voter turnout without creating obstacles for the voters, for example Internet voting, which you seem to have a problem with-I find it a little bit intriguing. To the extent that maybe there will be some uptake in voter participation if they can somehow access the system better. Do you think that is a valid notion overall, or is it just with respect to Internet voting that you seem to find a barrier?

Mr. Ornstein: I think we need to be cautious here. The goal of increasing participation is a laudable one. It is not the only one. I worry about many things with Internet voting. First, I have participated in a number of seminars with experts. I simply do not believe that we are anywhere near, or will be for a long time, a point where there is real security. When Microsoft and America Online can be invaded or when we know that there are programs that exist where you can vote on your computer and think you voted one way and never know that it has been turned around into something different, it ought to make us pause. But it is more than that. I think this technology and this notion that we should just make everything easy for people to do from their homes is very dangerous. It leads, perhaps, inexorably to the notion of instanteous national referendums on everything. That means, inevitably, the decline and maybe the demise of representative institutions. It takes us completely away from the notion of those institutions or our representatives doing face-to-face deliberation: not voting up or down, missile defense up or down. But rather debating and deliberating and amending and over time seeing disadvantages and advantages and, perhaps, striking balances. I don't like that idea. I don't like anything that moves us in that direction.

I come back to the notion of corruption, big and small, when you do not have that zone of privacy of a hundred feet around a polling place or a private curtain. I frequently appear before a group called the Business Council, which is a collection of the chief executive officers of large companies. I go down to their meetings, and you have maybe one hundred and fifty CEOs, 95 percent of whom are middle-aged to elderly men and their spouses. Over the years as I have been there, I am absolutely convinced that in 95 percent of the cases, their spouses cancel out the votes of the members of the Business Council. For better or for worse, that happens all around the country. The notion that you might have to vote in a way where you spouse is able to see how you are voting or another family member or a boss or a neighbor is not a good thing. Not to mention, the kind of larger corruption that can occur when you move away from that zone of privacy. I think we need to do whatever we can to make people understand that ease of voting. And more voting and more participation in and of themselves are not the only goals, and we need to strike better balances here.

Mr. Steele: If I could make just one final point. Maria, I think you hit on what, I think, is the nuts and bolts of part of our electoral problem. You said something is missing. It made me think of a little experiment I conducted when I taught a group of high school seniors at an all-boys school in Pennsylvania and I had given them a lot of privileges through the democratic process, so if they wanted to do something, they could vote on it. This was to teach them the value of voting as they were going to enter the world as eighteen-year-old men. Then I took it away from them. I told them that for the next three months of the school year when you walk into this classroom all of the privileges that you had through the democratic process of voting, you no longer have. So, I will no longer recognize your right to vote. It was astounding the appreciation that came from the three-month period. They realized how valuable it was to actually be heard and listened to and have an impact on the system, so I think that going to your core point that something is missing, really drives why we are here and what we are trying to accomplish. Thank you all very much.

Mr. Zelikow: That concludes this panel session. We are very grateful for the distances that you have traveled and the intellectual miles that you have logged in being able to prepare the testimony that you offered to us today.

Thank you very much.