Checklist Manifesto: Law Professor Josh Douglas’ “Non-Legal” Prescription for Better Elections


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University of Kentucky Law professor Josh Douglas is already well-known in the field of election law, particularly with regard to his work on the interplay between state and federal protections for voting. But a new piece from Josh takes a very practical and entirely non-legal approach to the question of improving election performance.

A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls uses the concept of checklists to address on-the-ground election problems that often create the most trouble on Election Day. Here’s the abstract:

Mistakes happen – especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election reforms, this idea is likely to gain traction and see actual implementation. That is because the idea is “non-legal” in nature, in that it comes from the private sector and is achievable outside of the political process. Given the structural impediments to legislative or judicial change, non-legal solutions such as the use of checklists are the way forward in election reform.

In the paper itself, Douglas references the key role a well-designed checklist can play in focusing individuals on the task(s) at hand:

An effective checklist has various attributes. First, there must be a clear “pause point” when the user must stop doing the task and reference the checklist. This will ensure that the checklist actually hits upon the important parts of the process. Second, the checklist must be the correct type for the situation. [Atul] Gawande explains two main kinds of checklists, which he calls “DO-CONFIRM” and “READ-DO.” When using a DO-CONFIRM checklist, the individual completes several tasks from memory and experience but then stops at set points to confirm that he or she has done each one. That is, the user proceeds through the activity, having completed the process before many times, but pauses throughout to reference the checklist and ensure that nothing is missed. When using a READ-DO checklist, by contrast, the individual references each stated task and then completes it in turn. DO-CONFIRM checklists are best for routine processes in which pausing throughout can help to ensure everything was done; READ-DO checklists are best for activities that occur intermittently and require certain steps in a certain order or otherwise benefit from the user going through the task one step at a time.

Third, the checklist must be the correct length; between five to nine items is about right. This means that the checklist must focus on the “killer items” – “the steps that are most dangerous to skip and sometimes overlooked nonetheless.” They must be precise. Good checklists “do not try to spell out everything – a checklist cannot fly a plane. Instead, they provide reminders of only the most critical and important steps – the ones that even the highly skilled professionals using them could miss.” Fourth, the formatting and text must be easy to read and use so that individuals do not have to spend extra effort deciphering the text or looking for the relevant part. After all, a checklist is supposed to help all kinds of potential users, especially in high-pressure situations, not make it harder for them to complete the task. Finally, and crucially, the drafters should test the checklist in actual or simulated settings and revise accordingly until it actually works well. A good checklist requires trial and error and revision so that it touches on only the most crucial points in the process. [pp. 35-36, citations omitted]

Douglas then goes on to apply these approaches to checklists targeting voters and pollworkers, noting how the general rules and formats (READ-DO and DO-CONFIRM) work in different contexts.

Here’s his conclusion:

Sometimes the simplest solutions are the best, even for complex problems. This certainly rings true for Election Day. The voting process involves a complicated web of rules and regulations, run largely by poll workers who are not professional election administrators. Poll workers are faced with myriad situations in which voting can go awry, and voters must comply with various requirements to ensure their votes count. But poll workers and voters generally are not given simple tools to help them through the process. Instead, the training guides poll workers receive are lengthy, comprehensive, and difficult to use in the heat of the moment when an issue arises. It is no wonder that poll workers, other election officials, and voters make mistakes in every election, which lead to long lines and lost votes. A simple checklist can supplement these materials and help to avoid the human errors that occur in many elections. Checklists have helped improve outcomes in various private sector industries; elections can also benefit from these tools. Further, it is hard to object, on political or other grounds, to a jurisdiction using a checklist to fix its voting system. Well-designed and vetted checklists are therefore the perfect non-legal solution to the legal and policy problem of reducing errors in the operation of our elections. In a time in which policymakers are searching for how to remedy the voting woes in our country, checklists provide a simple, non-legal, nonpartisan, and low-cost idea to improve election administration. [pp. 47-48]

This is a fantastic piece – not just because of the content, but because it represents an effort by an expert in one field (election law) to look beyond his own discipline to find solutions to the challenges facing election administration.

Thanks to Josh for writing and sharing this piece – make sure you put reading this article at the top of your to-do list very soon!

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