Privatizing Democracy: Promoting Election Integrity through Procurement Contracts
Nou, Jennifer, The Yale Law Journal
NOTE CONTENTS INTRODUCTION 1. THE FEDERAL IMPERATIVE A. Legitimacy Externalities B. Resource Disparities II. PUBLIC AND PRIVATE ACCOUNTABILITY PROBLEMS A. The Katherine Harris Problem B. The Stunted Market Problem III. PROCUREMENT CONTRACTS AS AN ACCOUNTABILITY TOOL A. Diversifying the Toolkit B. Procurement's Promise IV. TOWARD PRINCIPLED REFORM A. Amending the Help America Vote Act 1. Design Versus Performance 2. Contracting Out of Trade Secrets B. Enforcing HAVA CONCLUSION
For democracy to be done, it must be seen to be done. (1) Political legitimacy springs not only from how the state acts, but also from how those actions are publicly perceived. Nowhere is this insight more crucial than in election law and administration, where casting a ballot can mark the start of a saga. Perhaps now more than ever, Americans leave the polls wondering whether their votes were counted--and for the right candidate. But if the media spectacle of Bush v. Gore (2) was this nation's wake-up call, the latest round of elections did little to allay those fears. Newspaper headlines relayed stories of disappearing ballots and malfunctioning machines. (3) Battleground states had more than their fair share of woes, (4) though larger margins of victory in 2008 have dampened the real and perceived consequences. With soaring rates of voter turnout, (5) voters' experiences with and the growing media attention to voting machine glitches have cast a pall on Election Day, throwing into question the results of political contests nationwide. (6) The need for accountability abounds.
Central to this growing sense of unease is the role that for-profit companies play in the provision of our electoral infrastructure. One famous flashpoint occurred in 2003 when Walden O'Dell--then-chief executive of Diebold Election Systems, a voting machine manufacturer--sent out a fundraising letter on behalf of George W. Bush, promising that he was "committed to helping Ohio deliver its electoral votes to the president next year." (7) Few need to be reminded of Ohio's pivotal role in the ensuing race to know why O'Dell's remarks raised hackles. (8) Consider still the revelation following Chuck Hagel's surprising Senate race win in 1996, called by some the "major Republican upset in the November election." (9) Until two weeks before he announced his candidacy, Chuck Hagel had been chairman of American Information Systems, now known as Election Systems & Software. (10) This company was the same one that supplied many of the very voting machines used to count his election's votes. (11) While there has been little, if any, evidence of actual tampering or undue influence, the perception of impropriety is undeniable. (12)
These episodes reflect America's public-private partnership of election administration: a publicly funded system for the private provision of governmental services. (13) This hybrid regime features thousands of decentralized bureaucracies and a select group of private vendors that produce the equipment and requisite software to count millions of ballots. (14) An increasing demand for vote-counting goods and services has only augmented the private sector's role. With butterfly ballots still fresh in voters' minds, for example, many counties switched from paper-based ballot systems to Direct Record Electronic (DRE) systems--stand-alone machines that record votes in their internal memories. (15) In 2006, more Americans than ever used electronic voting machines to cast their ballots, accounting for millions of dollars in revenue. (16) Georgia, as well as several other states, employed DRE touch screens in every precinct. (17) Though some states like California have recently decertified their DREs due to security concerns, (18) major problems with paper ballots in recent primaries suggest that many jurisdictions will revisit their technological options. …