Beyond Transparency: Rethinking Election Reform from an Open Government Perspective

• Publication year: 2015

Washington Law Review Volume 38, No. 3, SPRING 2015

Beyond Transparency: Rethinking Election Reform from an Open Government Perspective

Michael Halberstam(fn*)

ABSTRACT

During the past decade, "transparency" has become a focus of democratic governance. Open government and right-to-know regimes have been around at least since the 1970s. They include measures like open meeting laws, campaign finance disclosure, lobbying registration, and freedom of information laws. But the Open Government projects-variously referred to as e-democracy, Open Data, or Government 2.0-have evolved into something new and different. They view transparency not primarily as a right to know, but as a condition for a more efficient, intelligent, and cooperative form of democratic government. This Article considers how various election reform projects fit with the Open Government model and considers the new opportunities that such projects generate.

I. INTRODUCTION

Since the turn of the century, "transparency" has emerged as a focus of democratic governance.(fn1) Government transparency has become a measure of democratization and a goal of good government reform. This is true of election law. Transparency in election administration,(fn2) voting rights,(fn3) redistricting,(fn4) and campaign finance(fn5) are widely embraced as conditions of fair elections.

Traditionally, government transparency has been associated with right-to-know legislation, such as open records laws, open meeting laws, access to court records, legislative transparency, and disclosure policies.(fn6) The principal purpose of such transparency regimes is thought to afford citizens the means to hold their elected and unelected government officials accountable.(fn7)

Because transparency is assimilated to the right to know, it is not always understood that conceptions of government transparency have evolved into something new and different.(fn8) I do not refer here to the kind of demands for "radical transparency" of a WikiLeaks, which fits within the traditional framework of safeguarding against the abuse of power by government and ruling elites.(fn9) Rather, transparency reforms that are variously referred to as Open Government,(fn10) e-democracy,(fn11) Open Data,(fn12) or Government 2.0(fn13) view access to government information not primarily in terms of the right to know, but as a condition for deploying the information technologies that have revolutionized the private sector to create a more efficient, collaborative, and innovative form of democratic governance. In other words, they go "beyond transparency" in its conventional sense.(fn14)

The contemporary open government movement, "Open Government," evolved out of the open data and open source movements in the technology sector.(fn15) It draws on information economics and the economics of networks, recognizing that the networked society has engendered new modes of social production based on the technology of an interactive Internet.(fn16) It advocates active information sharing by government at all levels,(fn17) civic/private sector participation in collective problem solving, and, in its more idealistic strain, the transformation of government into a kind of "platform" for convening and enabling collective action.(fn18)

The election law community largely still conceives of open government projects on the traditional model of transparency or openness.(fn19) But we are beginning to make use of the Open Government model and its toolkit: * Heather Gerken's proposal to develop election administration data for purposes of performance measurement has helped to focus our attention on improving election operations to deliver on the promise of constitutionally guaranteed voting rights.(fn20) And the 2013-2014 Presidential Commission on Election Administration has pursued this data-driven approach to improve voter registration, reduce excessive lines at the polls, and help improve the certification process for new voting technology at the state level.(fn21)* In voter registration, The Pew Charitable Trusts (Pew) facilitated a partnership between top election officials from several states, with support from IBM, to create a joint computing center called Electronic Registration Information Center (ERIC). ERIC helps states manage, scrub, and service their voter registration data by sharing registration information previously locked up in separate state databases.(fn22)* In redistricting, a joint working group of the American Enterprise Institute and the Brookings Institution set forth basic principles of transparency and open data in the redistricting process. These principles were influenced by the "best practices" developed by California's Statewide Database under the direction of Karin Mac Donald.(fn23) California's Statewide Database has pioneered the collection, production, and dissemination of political and demographic data as a public service.(fn24) Mac Donald has also been instrumental in developing the institutional mechanisms to put this data to use in citizens redistricting, which replaced statewide legislative redistricting in California during this decennial redistricting cycle.(fn25) Separately, the Public Mapping Project, founded by Micah Altman and Michael MacDonald, developed an online, interactive, data visualization and political mapping system called DistrictBuilderT, which has given the general public free access to user-friendly redistricting software and encouraged public participation in the 2012 redistricting cycle.(fn26) * In the voting rights area, comprehensive election databases are critical to the enforcement of voting rights, especially in light of the U.S. Supreme Court's recent 2013 decision in Shelby v. Holder, which disabled the information forcing "preclearance regime."(fn27) But Voting Rights Act litigation, which now remains the principal vehicle to challenge violations, requires parties to analyze election data and district performance information for the past three election cycles.(fn28) Michael Halberstam,(fn29) Spencer Overton,(fn30) and others have suggested that voting rights disclosure systems could satisfy at least some of the information requirements of civil rights advocates, make redistricting more open and transparent, but also save local governments considerable costs by making this information easily available during litigation, and by avoiding litigation in the first place. In all these areas, however, the potential of the Open Government toolkit is not always recognized.

This Article explores how current election reform projects fit with the contemporary Open Government model, and how greater clarity about the goals of this model might inform these projects. It begins by distinguishing four types of government transparency or openness-(1) right-to-know transparency, (2) transparency as regulation, (3) transparency in regulation, and (4) transparency as Open Government-and relates this typology to competing conceptualizations in the literature. This analysis provides a clear statement of the features of Open Government, which is then applied to the examination of the different election reform projects described above.

Part II distinguishes between four different conceptions of government transparency and gives an account of the Open Government model. Part III examines the shift from a concern with voting rights to a concern with operations in the election law community. Part III.A considers Professor Gerken's demand that we focus on generating data about election administration. Part III.B describes the Pew's initiative to develop information sharing to solve voter registration problems. Part IV describes how Open Data in redistricting works and how it has provided opportunities for public participation. Part V describes how Open Government platforms may help address the Supreme Court's invalidation of Voting Rights Act preclearance. Part VI considers criticisms of the Open Government approach. Part VII concludes.

II. BEYOND TRANSPARENCY: FROM RIGHTS TO WELFARE

Concepts of transparency and open government have taken on increasing importance in connection with contemporary efforts at government reform and democratization. But in the legal literature, transparency and open government are often used ambiguously, and to make things worse, synonymously with other terms like "freedom of information" or "sunshine laws." The "opacity of transparency" has thus been remarked upon by more than one commentator.(fn31)

Professor Richard Peltz-Steele highlights this in his leading textbook on the law of access to government information. Defining the "law of access to government" as "freedom of information," he writes: "Whether the mechanism of access is common law, administrative rule, sunshine statute, or constitutional doctrine, freedom of information in its broadest formulation is simply transparency. Transparency is a sine qua non of democracy, hand in hand with free speech and fair elections."(fn32) Peltz-Steele thus identifies transparency and freedom of information with the law of access to government information in the service of democracy. The law of access defines rights that can be vindicated in the courts, such as the right of access to government records under the federal Freedom of Information Act. Transparency or freedom of information law thus concerns the scope of such rights of access and the legal doctrines justifying them. At...