Autonomy, equality, and decentralization. As Stephen Ansolabehere argues,
the first two are "arguably essential" to any democratic scheme and
the third is a deep feature of American political culture. Together
they are appropriate guiding principles for any reform of the American
election system. With that, I agree.
Stephen Ansolabehere has, however, specified these general values in
a fairly particular way. According to Ansolabehere, we ensure autonomy
"by requiring secrecy" and thus preventing vote buying; we ensure equality
by "prevent[ing the] vote dilution" that counting fraudulent votes would
cause; and we maintain decentralization in order to "achieve broad electoral
control and technological innovation."
These three general values, however, imply very different meanings
to different people. To some, for example, autonomy means less the right
to a secret ballot than the right to make an informed choice at the
polls. To others, equality entails ensuring real access to the ballot
more than preventing fraud. These loftily general values, in other words,
hide some deep conflicts—conflicts that new technologies may not
help us to overcome.
Consider how competing conceptions of equality might operate as constraints
on technological design. For Ansolabehere, the "demand for equality…requires
that all legitimate votes be counted, and that they must not be diluted
by fraudulent votes cast by others." Equality, in other words, largely
entails counting every legitimate vote correctly and preventing voting
fraud. It calls for a technology that accurately registers voter preferences
and resists attempts at manipulation. Among existing technologies, in
Ansolabehere's view, paper ballots—either of the old-fashioned
or optically-scanned type—perform these functions best and it
may well be that no new technology can surpass them.
But this particular conception of equality leaves out a great deal.
It ignores concerns about the relative accessibility and ease-of-use
of a particular technology for different voting populations. Under the
Voting Rights Act, for example, every jurisdiction must make voting
materials available in the appropriate language to any language minority
group that comprises at least 5 percent of the jurisdiction's voting-age
population. In the next decade, that means that Los Angeles County will
have to provide county-wide voting materials in more than ten different
languages. Traditional and optically-scanned paper ballots make satisfying
this requirement very difficult. If every ballot, not to mention any
supporting materials, has to be printed in more than ten different forms,
the expense quickly becomes unsustainable and paper management alone
becomes a nightmare. Paper architecture, in other words, frustrates
this competing conception of equality.
It is no accident that Los Angeles and Riverside Counties, which are
both linguistically diverse, prefer punch card and DRE technologies.
Neither requires expensive preparation of physical materials to make
the ballot accessible to language minority groups. With punch cards,
for example, the same blank card works for all voters. Only the instruction
frame on the voting machine, which points to where to punch, has to
be available in different languages. Paper architectures, on the other
hand, make satisfying the particular conceptions of equality that the
Voting Rights Act embodies financially difficult.
The case of blind voters is even more interesting. Existing law clearly
grants citizens with disabilities the right to be assisted in voting
by someone of their choice. Many jurisdictions believe that providing
such assistance exhausts their equality obligations to the blind; they
make no effort to support technologies that would enable the blind to
vote without assistance in secret. Although some advocacy groups have
pressed claims that the Americans with Disabilities Act guarantees the
blind the right to vote in secret (and such technology is currently
available), the courts have been hesitant to require it.
The claims of the blind, though, pose the same conflict over competing
conceptions of equality: the technologies that most easily promote equality
in the sense of ensuring accuracy and preventing fraud do a lousy job
of promoting equality in the sense of ensuring access to the blind on
terms similar to those of other voters. Paper ballots of either the
traditional or new sort throw up serious obstacles to this group's full
This same type of conflict occurs over different conceptions of autonomy.
As Ansolabehere specifies that value, it largely concerns secrecy. Yet,
as Oregon's experiment with mail-in voting shows, secrecy can come at
the expense of other conceptions of autonomy. Under Oregon's system,
voters fill in their ballots wherever they want and then mail them in
or drop them off at central collection points. There are no traditional
polling places. Some defenders claim that this way of voting allows
voters to become better informed. People can fill out their ballots
as they discuss the issues and candidates with those around them. Others
argue that this informality makes it too easy for others to influence
one's vote. If choices are not made in secret, others will have a better
opportunity to disturb the voter's will. A strong family member, for
example, might coerce the votes of weaker members of the family.
I do not mean to take either side in this debate. Both views are partially
right. Mail-in voting will probably cause some voters to make more informed
and better choices and will probably lead other voters to vote in ways
that reflect preferences other than their own. Promoting autonomy as
secrecy may make one form of coercion more difficult but also may degrade
some voters' decision-making. It is simply impossible to say whether
secret voting or mail-in voting promotes autonomy in the abstract.
It is hopeless, of course, to expect any technology to escape these
difficulties. The conflict is loaded into the values themselves. Some
may accuse Ansolabehere, though, of advancing but not acknowledging
one particular interpretation of these values. If autonomy and equality
do not necessarily entail such an exclusive focus on secrecy and fraud
prevention, Ansolabehere's design constraints aid particular conceptions
of democracy at the expense of others. Indeed, to some, this architecture
is apt to appear somewhat partisan. In the current debate, Republicans
tend more to see election reform in terms of fraud prevention while
Democrats tend more to see it in terms of civil rights. These are two
somewhat opposed ways of framing the debate, both of which resonate
in equality. But to Democratic partisans at least, the assumptions behind
Ansolabehere's architecture are likely to appear Republican.
Daniel R. Ortiz is the John Allan Love Professor of Law and
Joseph C. Carter, Jr. Research Professor of Law at the University of
Return to the forum on machine
politics, with Stephen Ansolabehere and respondents.