Privatizing democracy: promoting election integrity through procurement contracts.

• Author: Nou, Jennifer

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 INTRODUCTION

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. (19) These jurisdictions will then turn to private vendors as both consultants and suppliers, further reinforcing the necessarily symbiotic relationship between public and private interests in election administration.

Private companies will thus continue to play a pivotal role in the core democratic task of administering elections. While election administration has never been performed solely by government, (20) the need for technological innovation coupled with recent outlays in federal funding guarantee that private actors will be entrusted with central electoral functions. This prospect demands the recasting of familiar debates over privatization and the kinds of institutions that will ensure accountability. (21) The confluence of private interests and technological development also raises novel legal issues surrounding the ownership of intellectual property marshaled for inherently public purposes. All the while, the need for election integrity--and the perception of integrity-remains paramount.

This Note proceeds in four Parts. Part I critically examines threats to voter confidence resulting from disputed election results and voting machine failures. Breakdowns in technology or simple incompetence in one locality can impose legitimacy externalities on others. That is, questionable electoral outcomes in one election can cast grave doubts upon the results of another, even in the absence of formal challenges. These Election Day snafus serve only to exacerbate striking resource disparities in election administration across localities arising from wealth inequalities and competing budgetary priorities. (22) Poorer counties, for example, tend to have more antiquated voting equipment while affluent ones can afford more modern technologies, which yield lower rates of vote invalidation. (23) A lack of centralized coordination has also resulted in diverging election standards and ballot design, with little sense of shared best practices. (24) Taken together, these interjurisdictional threats to voter confidence make plain the need for greater federal intervention in election administration.

Given this need for a more robust federal role, Part II considers America's existing mix of what I will call accountability tools--the institutional means through which actors force others to account for their actions and praise or blame them accordingly. These tools provide both ex ante incentives to structure parties' relationships as well as meaningful mechanisms to enforce these relationships ex post. They can take many forms, including market transactions, regulatory mandates, or familiar legal sanctions such as criminal punishment or civil damages. In the context of voting reform, the most prominent federal effort to restructure electoral institutions has been the Help America Vote Act of 2002 (HAVA). (25) The Help America Vote Act was Congress's first real effort to replace outdated vote-counting technology and spur voluntary national standards for voting machinery. A combination of short-sightedness and timidity, however, prompted states and localities to quickly purchase and invest in expensive voting equipment. Consequently, HAVA's one-time payouts have succeeded only in cutting short the development of a secondary market and concomitant avenues for competition.

A major challenge for future election reform, then, is to develop vigorous market incentives for innovation safeguarded by greater public inspection and transparency. Legitimate elections demand mechanisms that can ensure robust oversight without stifling advances in voting technology and security. Part III thus conceptually develops a largely overlooked device in the election accountability toolkit: the institutional design of procurement contracts. Procurement contracts differ from traditional commercial contracts insofar as they combine competition and bargaining with an independent body of norms emphasizing transparency and fairness. (26) Longer-term contracts can also help tie the hands of successive election officials well past their party's stint in power. This would help create incentives for officials to purchase equipment that best serves the public interest, rather than short-sighted partisan aims. Furthermore, procurement contracts can also limit the remedies available to private contractors in the event of government breach as well as impose unique requirements justified by distinct public needs. (27) While contracts may seem worrisome in their ability to obscure traditional lines of responsibility, this Part will argue that well-designed contracts signal not a retreat of government oversight, but rather a reconfiguration much needed in election administration.

Armed with these insights, Part IV then proposes two related reforms using procurement contracts to hold both private manufacturers and election officials accountable. First, it suggests that the Help America Vote Act be amended to mandate, as a condition of federal funding, that state procurement contracts include a performance provision requiring bidders to provide the technology and access with which to verify votes cast. When mandatory contractual provisions are performance based, they can encourage the market to supply accountability-enhancing options such as open-source technology or voter-verified paper trails. This Part will also explore the reasons why procurement contracts will likely result in more innovation and resource flexibility relative to legislative bargains struck in Congress. Second, current (and proposed) HAVA provisions should be enforced through the explicit designation of candidates as third-party beneficiaries to voting machine procurement contracts. Allowing candidates to sue state election officials and private manufacturers for specific performance to disclose underlying source code and to verify election results would not only provide a meaningful sanction, but also increase the public legitimacy of the American election system as a whole.

1. THE FEDERAL IMPERATIVE

   That states and localities continue to administer federal...