Did Obama Break His Promise?
There's been a great deal of criticism of Senator Barack Obama's announcement yesterday that he would opt out of the public financing system for the general election, some of it summarized here on Rick Hasen's blog. Some argue that Obama went back on his word by electing not to accept public financing, and the restrictions on private contributions, that come with it. Less attention has been devoted to what Obama actually said in response to a questionnaire in which this commitment is said to have been made.

First a disclosure and a disclaimer: I helped draft some of the questions in the Midwest Democracy Network's questionnaire that provoked this controversy, though not the ones having to do with public financing. Election Law @ Moritz received funding from the Joyce Foundation, which also supports the Midwest Democracy Network, for our From Registration to Recounts report last year. That said, the views expressed here are solely my own, not those of the Midwest Democracy Network or any of its constituent organizations, and I don't claim any special authority to interpret Obama's response by virtue of my work on other parts of the questionnaire.

The Midwest Democracy Network questionnaire was sent to all the presidential candidates from both major parties in the fall of 2007, but only Obama and John Edwards chose to respond. After the possibility of Senator Obama refusing to accept public financing first became an issue in February 2008, the Midwest Democracy Network again contacted the other candidates -- including Senator John McCain -- and urged them to respond. None did.

The question on presidential public financing asked: "If you are nominated for President in 2008 and your major opponents agree to forgo private funding in the general election campaign, will you participate in the presidential public financing system?" Here's Obama's full response:

Yes. I have been a long-time advocate for public financing of campaigns combined with free television and radio time as a way to reduce the influence of moneyed special interests. I introduced public financing legislation in the Illinois State Senate, and am the only 2008 candidate to have sponsored Senator Russ Feingold's (D-WI) bill to reform the presidential public financing system. In February 2007, I proposed a novel way to preserve the strength of the public financing system in the 2008 election. My plan requires both major party candidates to agree on a fundraising truce, return excess money from donors, and stay within the public financing system for the general election. My proposal followed announcements by some presidential candidates that they would forgo public financing so they could raise unlimited funds in the general election. The Federal Election Commission ruled the proposal legal, and Senator John McCain (R-AZ) has already pledged to accept this fundraising pledge. If I am the Democratic nominee, I will aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election. (Emphasis added.)

Obama did answer the question with a "Yes," but proceeded to provide what can be understood as a qualification. The "novel" proposal of February 2007 to which Obama refers is presumably the one set forth in this letter from Obama's lawyers to the Federal Election Commission. That letter asked the FEC for an opinion on whether Obama could raise funds for the general election, while leaving the door open to accepting public financing in the general election: "Senator [Obama] would not, if the law allows, rule out the possibility of a publicly funded campaign if both major parties' nominees decide, or even agree on this course. Should both major party nominees elect to receive public funding, this would preserve the public financing system, now in danger of collapse, and facilitate the conduct of campaigns freed from any dependence on private fundraising."

The FEC concluded that Obama could solicit and receive funds for the general election without losing eligibility for public funding, so long as he complied with certain conditions. But of course, the February 2007 letter from Obama's lawyer didn't commit him to accepting public financing. It was, if anything, his response to the Midwest Democracy Network's questionnaire that did so.

Whether Obama broke his promise depends on what was meant by the italicized statement in the above block quote, specifically by the statement that he would "aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election." Did he simply mean that he would accept public financing and the limits that come with it if the Republican nominee did so (as McCain has now done)? Or was some further agreement contemplated? Obama's questionnaire response is susceptible to either interpretation.

Later on, in this USA Today op-ed, Obama adopted the latter approach, saying that he wanted a "meaningful agreement" in which the candidates would "commit to discouraging cheating by their supporters; to refusing fundraising help to outside groups; and to limiting their own parties to legal forms of involvement." The key point here is the refusal of help from "outside groups," which presumably includes 527 organizations like Swiftboat Veterans and POWs for Truth and the Moveon.org Voter Fund. Candidates can't prevent campaign-related speech by such groups, but they can discourage it and encourage their supporters not to fund such speech.

Obama's questionnaire response can plausibly be read to make his agreement to public financing contingent upon the candidates reaching some sort of agreement along these lines. The McCain campaign might argue that, if this is really what Obama meant, he should have been clearer in his response to the Midwest Democracy Network questionnaire. But given that McCain failed to respond at all to that questionnaire -- even after being given a second opportunity to do so in February 2008, after this story originally made news -- he's in a poor position to complain. We should, after all, encourage candidates to respond to questionnaires like this one. It seems only fair to give those who do respond the benefit of the doubt, particularly when his or her opponent failed to do so.

If Obama's response is understood in this more generous light, the next question is whether he did in fact "aggressively pursue an agreement" with McCain. On this question, there's a factual dispute. Obama's lawyer Bob Bauer maintains that he discussed this issue for approximately 45 minutes with McCain's lawyer Trevor Potter, on June 6. According to Bauer, "it became clear to me, and I reported to the campaign, that there really wasn't a basis for further discussion," given the McCain campaign's unwillingness to rein in 527 spending. Potter has a different recollection, denying that their was any negotiation. What is clear is that, a few days after their meeting, McCain said that he "can't be a referee" for 527 attacks on his opponent, thus giving Obama an opening to opt out.

So did Obama fail to keep his word? It depends on what one thinks his words on the questionnaire meant, as well as on what words were exchanged between the candidates' lawyers. One might criticize Obama for failing to "aggressively" pursue an agreement with McCain. One might also point to Obama's statement during one of the debates with Senator Clinton, that he would "sit down with John McCain and make sure that we have a system that works for everybody." It's apparently undisputed that Obama and McCain didn't personally sit down to discuss the issue, though their lawyers did. But if one believes Bauer's account, it seems clear that such efforts would have been futile, particularly in light of McCain's later statement on 527 spending.

Finally, one might complain that this is all a very lawyerly, a point I cheerfully concede, and to which I would reply: A lawyerly question deserves a lawyerly answer. - posted by Dan Tokaji @ 12:34 PM

 
Are We Condemned to Repeat It?
It's election year in Ohio, likely to be pivotal in the presidential contest. Everyone expects a close race. Yet there's great concern about whether the state's election infrastructure can hold up to the pressure that will be upon it. Of special concern is the voting equipment to be used, particularly in the state's largest and most diverse county. Another worry is provisional ballots, upon which the state increasingly relies for registration problems, voters who lack proper ID, and those who've moved. If the election is close enough, the two major parties could wind up fighting over which provisional ballots should count. The spectre of litigation thus hangs heavy over the state. To top it all off, there have been repeated accusations of partisanship by Ohio's chief election official, the Secretary of State, from the opposing party.

Any of this sound familiar?

When the nation's attention focuses more intently on battleground states later this year, many will no doubt scratch their heads and wonder what the State of Ohio has been up to since 2004. In reality, there have been plenty of changes, some of them for the better. But many of the same issues remain. This comment discusses three big ones: voting equipment, provisional ballots, and allegations of partisanship. It remembers the past while looking ahead to the future, in light of some brand new information from the March primary.

Voting Equipment

This is one area in which there have been significant improvements since 2004, when most voters throughout the state still used "hanging chad" punch card voting systems. The result was that tens of thousands of ballots didn't register a vote for President. Elsewhere in the country, voters used newer voting equipment that provided voters with notice and an opportunity to correct errors. Such "notice" voting equipment combined, with better procedures, saved about one million votes that would otherwise have been lost in 2004.

By 2006, Ohio counties had finally switched to notice voting technology, of either the electronic touchscreen or precinct-count optical scan variety. Both types of systems allow voters to check for overvotes, and thus reduce the number of uncounted votes. The bad news is that Cuyahoga County, the state's biggest county which includes Cleveland, had well-documented problems implementing the Diebold touchscreen system it decided to buy. Among the problems was that somewhere around 20% of the paper records generated by the system were damaged or unreadable, something that's especially problematic given that Ohio law makes paper the official ballot of record.

As a result, Cuyahoga County switched again, using a non-notice optical scan ballot system in the March 2008 primary. The ACLU sued, arguing that votes would predictably be lost due to the switch, but a federal district judge declined to order the county to use a notice system so close to election day. (Disclosure: I consulted with the ACLU on that case.)

The result was that Cuyahoga County used a non-notice system in the March primary. So how did things go? At first glance, it didn't look so bad. The county initially reported 818 overvotes at the time of its unofficial count. (This page now seems to have been removed from the Secretary of State's website.) That's more than any other county but one, but still relatively low when you consider the total turnout of 436,609 in that county.

Some brand new information explains the suspiciously low number of overvotes initially reported. The earlier figure didn't include ballots that would have been overvotes, but had been "remade" so as to avoid being rejected by tabulating equipment. The practice of remaking, as the name suggests, involves marking a new ballot that replicates what election officials believe to be the voter's intended choices, when a ballot is mismarked. Until today, there wasn't publicly available information on how many ballots had been "remade" but I've just received information from the Cuyahoga Board of Elections that that there were really over 4000 overvotes:

During the Unofficial Count, the M650 Optical Scan units were programmed to accept and count overvotes, alllowing all ballots to scan through the machines without stopping. A total of 4,117 overvotes were recorded within the 406,450 votes counted in the Unofficial Canvass, equaling 1.01% of the total votes cast.

... All ballots containing overvotes were examined by a BOE Management Team to determine whether the voter clearly intended to vote for a single candidate. Of the 4,117 overvotes, it was determined that 1,240 contained a clear indication of the voter's intent. Those ballots were remade ..., reducing the overvote total to 2,877

The translation is that there were a lot more overvotes than the county originally reported (though "406,450 votes" should, I think, be "406,450 ballots," making the percentage smaller than reported). The number of overvotes was reduced from 4,117 by remaking ballots, in accordance with what the board's management team deemed the "clear indication of the voter's intent."

Does anyone remember Palm Beach County?

There are of course good reasons why election officials might want to remake ballots, but it introduces an element of subjectivity into the process. In the event of a close election, one could easily imagine litigation over whether and how to remake those ballots, analogous to those which took place in Florida over whether and how to count punch card ballots in 2000.

At the time of the ACLU lawsuit earlier this year, Cuyahoga County had expressed its intent to use a notice system -- probably precinct-count optical scan ballots -- in the November 2008 election, but has since decided that it would prefer to stay with it's non-notice, central-count system. But an Ohio statute passed earlier this year (SB 286) forbids counties from using central count systems after the March 2008 primary. Sec. 3506.21(D)(1). There's also a reasonable argument that remaking ballots to avoid overvotes violates Sec. 3506.21(B)(3) of that law, which provides:

If automatic tabulating equipment detects that more marks were made on an optical scan ballot for a particular office, question, or issue than the number of selections that a voter is allowed by law to make for that office, question, or issue, the voter's ballot shall be invalidated for that office, question, or issue.

If Cuyahoga or other counties continue the practice of remaking ballots before feeding them into the scanner, we could expect an argument that this practice violates Ohio law.

The bottom line is that Cuyahoga County will have to switch to a notice-based system, probably precinct-count optical scan, unless the Ohio legislature changes the law. At this point, it looks like there won't be any such change. In my view this is a good thing, since precinct-count optical scan systems provide voters with notice of overvotes and therefore reduce errors. It also avoids the legally problematic practice of remaking ballots, which also increases the risk of post-election litigation over the result. But it will mean that Cuyahoga County will have a lot of work to do, getting a new system up and running in less than six months.

Provisional Ballots

Provisional ballots are required by the Help America Vote Act of 2002 (HAVA), for voters who arrive at their polling place to find their names not on the rolls or who don't have required identification. In 2004, attention focused on the question of whether provisional ballots should be counted if cast in the wrong precinct. Ohio's then-Secretary of State, Republican Ken Blackwell, said no. This led to litigation by the Democratic Party and voting rights groups, in which Blackwell's position prevailed. A subsequent study by a Cleveland advocacy group found that, of 11,600 provisional ballots rejected for this reason in 2006, 32% were actually at the right polling place but the wrong precinct. (Many polling places in Ohio have multiple precincts voting at them.)

Just after the election, in the early morning hours of November 3, 2004, it looked like Ohio's provisional ballots might determine the outcome of the race between President Bush and Senator Kerry. Bush led by 136,484 votes in Ohio, with what turned out to be 155,000 provisional ballots left to be verified and counted. At the end of the day, when those provisional ballots were counted, President Bush's margin of victors shrunk by around 18,000 votes to 118,601.

Provisional ballots can make the difference between victory and defeat in a close race. Several states were closer than Ohio in 2004, including swing states of Iowa, New Mexico, and Wisconsin. In all these states, the margin of victory was less than the roughly 18,000 votes that Kerry "made up" through provisional ballots in 2004. Provisional ballots thus provide fertile ground for post-election disputes -- it's one of the main ways that someone on the losing end can make up ground. It follows that heavy reliance on provisional ballots increases the "margin of litigation," within which election results can be disputed and litigated after the fact.

Now here's the really troubling part: It looks like Ohio's reliance on provisional ballots is actually increasing, rather than decreasing. In our report last year on the election systems of five midwestern states, my colleagues Steve Huefner, Ned Foley, and I found that the percentage of Ohio voters casting provisional ballots increased between the 2004 and 2006 general elections, going from 2.77% to 3.09% of total ballots cast (see Chapter 3, p. 32).

In the 2008 primary, the percentage of provisional ballots was higher still. According to recent data from the Secretary of State's office, there were 123,432 provisional ballots, out of 3,603,523 overall. That means that 3.43% of Ohioans voted provisionally in this year's primary. Once those provisionals were counted, Senator Obama picked up two delegates from Ohio's March 4 primary, a possibility I'd noted here and here.

It's hard to say for sure why this is happening, since there are a number of reasons voters cast a provisional ballot. It could be that there are problems with the new statewide registration database required by HAVA, resulting in many voters' names not being on the rolls when they appear at the polls. It could be that voters and/or pollworkers are unfamiliar with Ohio's rather confusing identification requirements, enacted for the 2006 election. It could be that a lot of voters have moved from one precinct to another between elections and are casting provisional ballots at their new polling place, as state law allows. What we know is that more provisional ballots increases the risk of post-election litigation.

Allegations of Partisanship

In 2004, Democrats harshly criticized Secretary of State Blackwell, for what they perceived to be partisan decisions. Foremost among them was the decision not to count provisional ballots cast in the wrong precinct, and to require that voter registration applications be on heavy-stock "80 pound" paper to be accepted (the latter order was ultimately rescinded).

In 2006, Ohio elected a Democrat, Jennifer Brunner, to the Secretary of State's office. She too has proven controversial, most notably with the recommendations contained in her office's EVEREST report late last year, which included some drastic, ill-considered, and impractical recommendations -- including a return to central-count voting systems. She's also come under fire for her efforts to remove local voting officials who've criticized her, a point on which I've expressed concern. Republicans accuse her of a "Culture of Intimidation, Bullying."

The truth is that there's plenty of blame to go around, when it comes to the problems in Ohio's election system. Brunner has done some good things, like commissioning research on the security of all Ohio voting systems and clarifying state rules on voter ID. But she's also made some bad decisions, which have damaged her credibility with the legislature, the media, and the public. And like any other elected official, she's probably motivated to some extent by the interests of her party.

At the same time, Republicans are partly responsible for many of the problems with the state's election system, particularly their enactment of massive changes in the state's election laws in 2006, many of them confusing and otherwise problematic. In addition, they're no doubt motivated by the hope of capturing the Secretary of State's office in 2010, which brings with it not only control of the state's election system but -- probably even more significant, from the parties' perspective -- what could well be the pivotal vote on Ohio's reapportionment board, which will redraw state legislative districts after the next census. This partly explains the heated rhetoric flying between Brunner and the GOP.

From Katherine Harris to Kevin Shelley to Ken Blackwell to Jennifer Brunner, it's become abundantly clear that partisanship in the administration of elections is a recurring subject of controversy that won't go away by itself. It's important to look beyond personalities, and recognize that there's an institutional problem with having a state's chief election official chosen through partisan elections -- as a sizeable majority of states still do. It's not just that the umpire has a stake in the game; he or she is actually a player in that game -- however much election officials may talk about not "wear[ing] a jersey of one of the teams." This is a structural problem that demands structural reform. One good model is Wisconsin's Government Accountability Board, discussed here.

Of course, we won't see such institutional reform between now and November 4, 2008. Nor are we likely to see major changes in the voting equipment that's used. What we can do is focus on procedures that will ensure voting system integrity, consistent implementation of voter ID and provisional voting rules, and poll worker recruitment and training. And for those of you wondering what you can do, volunteering as a poll worker or in election protection efforts (like this one) is a great place to start.

So come see us in Ohio this fall. It's sure to be a lively election season. Again. - posted by Dan Tokaji @ 9:27 AM

 
Elmendorf on Crawford on Harper
Chris Elmendorf offers this comment for EL@M, regarding last week's decision from the Supreme Court in Crawford v. Marion County Election Board. It's characteristically thoughtful, provocative, and well worth reading. (Disclosure: He and I co-authored an amicus brief to the Court on the case.)

Particularly interesting is Elmendorf's discussion of the lingering uncertainty over the level of scrutiny to be applied in cases challenging restrictions on participation. As I suggested in my initial post on Crawford last week, one of the most important aspects of the lead opinion is its treatment of the Court's landmark decision in Harper v. Virginia Board of Elections (1966), which struck down a $1.50 poll tax on the ground that it violated equal protection. Elmendorf has this to say about the discussion of Harper in Justice Stevens' lead opinion (joined by the Chief Justice and Justice Kennedy):

Much to my surprise, six Justices unequivocally affirmed that Burdick requires open-ended balancing, rather than a threshold classification of the challenged requirement as "severe" or "not severe." To emphasize this point, Justice Stevens's lead opinion read Harper v. Virginia Bd. of Elections, which held that Virginia may not require would-be voters to pay a $1.50 tax, as standing for the proposition that "[h]owever slight [a] burden on [voting] rights may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation." Slip op at 7. (I had treated Harper as the source of a special, per-se rule that express financial conditions on political participation are qualitatively "severe in kind" and thus subject to strict scrutiny, even if not practically burdensome.)

I think Elmendorf is right to say that the lead opinion requires some sort of weighing of interests in all cases involving restrictions on participation, and not just in those which impose "severe" restrictions -- more on this below. But I don't think it's the lead opinion renounces the idea that "severe" restrictions warrant strict scrutiny. Rather, the lead opinion in Crawford understands Harper as a case that did apply something like strict scrutiny. At the start of his discussion of Harper (slip op. at 5). Justice Stevens describes Harper as "[a]pplying a stricter standard" than rational basis. This is consistent with Harper itself, which said that laws burdening fundamental rights like voting must be "closely scrutinized and carefully confined."

Of course, Harper came before the development of the three-tiered approach to levels of scrutiny that we know today. And, of course, Justice Stevens has never been a fan of the Court's three-tiered approach. (See, e.g., his concurring opinion in Craig v. Boren (1976).) Still, I don't think Crawford should be read as discarding the idea that some restrictions on participation are sufficiently severe as to warrant strict scrutiny. Later in the same paragraph, Justice Stevens characterizes Harper as a case involving "invidious" discrimination. Even though there wasn't a showing of intentional discrimination, and even though the tax was "rational," according to Justice Stevens, "it was invidious because it was irrelevant to the voter's qualifications." This suggests that there's still a threshold test, which was met in Harper but not Crawford, for determining whether to apply strict scrutiny.

In the passage Elmendorf quotes, Justice Stevens goes on to say that "[h]owever slight [a] burden on [voting] rights may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation" (emphasis mine). But appearances can be deceiving. In Harper, the law was "invidious" despite its relatively benign appearance. After its discussion of Harper, the lead opinion reaffirms the approach in Anderson and Burdick, cases that articulated the severe burden standard, while recognizing that there's no "litmus test for measuring the severity of a burden that a state law imposes ...." (slip op. at 7).

What all this means, I think, is that there's a spectrum of burdens, and that the justification that the state must provide will vary accordingly; but it's not to deny that, at one end of the spectrum, the state will have to show that its law is narrowly tailored to a compelling interest. Most if not all of the justices seem to agree that some voting laws warrant strict scrutiny. Joined by Justices Alito and Thomas, Justice Scalia reads Harper -- properly in my view -- as a case applying "strict scrutin[y]" (although I think he's wrong to characterize the poll tax law as "nondiscriminatory"). And Justice Souter, joined by Justice Ginsburg, acknowledges that burden imposed by Indiana's voter ID law isn't severe, but then go on to explain why that burden shouldn't be ignored altogether.

It thus appears that a majority of the justices agree that even laws that don't impose a severe burden get something more than deferential rational basis review. This is something on which I hadn't really focused before reading Elmendorf's comment. It's a point on which the lead opinion and the Scalia group sharply disagree. Justice Scalia would adhere to a more rigid two-tiered framework, applying a "deferential" standard where a "severe" restriction is lacking (Scalia slip op. at 1-2). By contrast, both the lead opinion and the dissenters seem to think there's got to be some evidence justifying a burden on voting, even one that isn't "severe." See Souter slip op. at 7 ("Although making voters travel farther than what is convenient for most and possible for some does not amount to a 'severe' burden under Burdick, that is no reason to ignore the burden altogether.") ; Breyer slip op. at 1 (looking to whether the law's burden is disproportionate to its benefits).

I thus think it's right to point out, as Elmendorf does, that Crawford softens the two-tiered severe/nonsevere framework that some courts have read Anderson and Burdick to have created. It doesn't reject the idea that "severe" burdens get strict scrutiny, but less now hinges on this question. That's because even laws that don't impose severe burdens on voting should (according to six justices, by my count) get something more than deferential rational basis review.

All this admittedly requires some not inconsiderable between-the-lines reading of the various opinions in Crawford. As Elmendorf puts it, those opinions "do little to clarify how the courts ought to weigh the 'voting related interests' assertedly at stake in constitutional challenges to voting mechanics." Indeed, the case may well leave the law more confused than it found it. The Crawford opinions can, however, be read to support the proposition that the state isn't off the hook just because its law imposes a "nonsevere" burden on voter participation. That's certainly how I'd read them, were I a voting rights lawyer trying to challenge an election administration practice after Crawford. - posted by Dan Tokaji @ 10:53 AM

 
An Election Day Registration Bill
A bill has been introduced in the Senate that would require states to allow election day registration (EDR) in federal elections. The bill may be found here and co-sponsor Senator Russ Feingold's statement in support of the bill here.

EDR has been used in nine states some of them since the 1970s. We therefore have quite a bit of evidence on its efficacy. As detailed in our recent report From Registration to Recounts: The Election Ecosystems of Five Midwestern States, it's been very successful in those states, increasing participation without any evidence of an increase in voter fraud -- the main argument that's usually used against EDR. Minnesota and Wisconsin are particularly good examples of the positive effects of EDR, as documented in that report.

Social science research has consistently found an increase in turnout due to EDR, probably in the range of 5-10%, as documented in testimony that I offered to the House Adminstration Committee when it was considering another EDR bill late last year. Senator Feingold's statement in the support of the bill thus aptly cites this as an example of the "moneyball approach to election reform," which I discussed in this post. That's the idea that election reform ought to be based on solid empirical evidence rather than intuition and anecdote -- something that's too often been the case by reformers on both the left and the right.

Another benefit of EDR is that it reduces reliance on provisional ballots and, with it, the likelihood of post-election litigation over whether those ballots should be counted. As I stated in testimony on another EDR bill that was being considered by the House Administration committee late last year:

While the turnout benefits of EDR are widely recognized, another advantage has received virtually no attention: allowing EDR can almost entirely eliminate the need for provisional ballots. That is primarily due to the fact that voters whose registration forms are mishandled need not cast a provisional ballot in EDR states. Instead, they may simply register at the polls. Consider, for example, voters whose names do not appear on registration lists when they appear at the polling place for any of the following reasons:

-a third-party registration group soliciting voter registration inadvertently failed to return the form,

-a public agency that took the voter's registration application, such as a state motor vehicle office, failed to transmit that registration to the appropriate county election office, or

- the county election office made a data-entry error, say in the voter's home address, causing the voter's not to appear on the registration list for his or her polling place.

In each of these circumstances, the voter's name would not appear on the registration list for the proper polling place when he or she shows up to vote on Election Day. In a state without EDR, that voter would be relegated to the provisional voting process. In an EDR state, by contrast, the voter would be permitted to register and vote on Election Day, provided that he or she satisfied state requirements for confirming eligibility.

The data on provisional voting confirms that EDR states are much less reliant on provisional ballots than other states. In the 2004 election, for example, the EDR states of Maine, Wisconsin and Wyoming all had 0.05% or less of their registered voters cast provisional ballots.1 Maine had only 483 provisional ballots cast statewide, while Wisconsin had only 374, and Wyoming just 95.2 In Minnesota, there were zero provisional ballots cast in the 2004 presidential election. By contrast, almost 2% of Ohio's registered voters - a total of 157, 714 people - cast provisional ballots in 2004. Quite clearly, the much larger number of provisional ballots cast increases the likelihood of a close election turning into a disputed election. It is not difficult to imagine the nightmare scenario that would have emerged in Ohio in 2004, had the margin of victory been closer. The two candidates would have wound up arguing over whether provisional ballots should be counted in counties across the state, just as they argued over whether punch card ballots should be counted after Florida's 2000 election.

Greater participation in our democracy is thus only one of the benefits of EDR. Adopting EDR can virtually eliminate the need for provisional ballots and, with it, a potential source of contestation and litigation over close elections.... Put more simply, EDR promotes the value of finality as well as access, and does so without sacrificing electoral integrity.

For these reasons, I hope Congress will give serious consideration to this bill. - posted by Dan Tokaji @ 9:46 AM

 
Crawford: It Could Have Been Worse
That's about the best that can be said about yesterday's opinions in Crawford v. Marion County Election Board. Following the precedent set by LULAC v. Perry and Randall v. Sorrell in 2006, the Court issued a splintered decision in an important constitutional election law case. The lack of a majority opinion, and the narrowness of Justice Stevens' lead opinion (joined only by the Chief Justice and Justice Kennedy), will probably limit the harm done by the Court's decision to uphold what is probably the strictest and most exclusionary voter ID law in the country.

One couldn't realistically expect much better from the current Court. In a variety of areas -- most notably abortion and racial integration of public schools -- the Roberts Court has taken a dramatic turn to the right. While nominally adhering to past decisions, the Court has in fact eviscerated precedent, something that Justice Scalia in last year's Wisconsin Right to Life v. FEC referred to as "faux judicial restraint." What almost certainly prevented the Court from doing similar damage in Crawford is the fact that, in something of a surprise, Justice Stevens was part of a majority of justices voting to uphold Indiana's restrictive law, which requires government-issued photo ID in order to vote at a polling place and have that vote counted.

Justice Stevens' lead opinion, to its credit, starts with the precedent most at risk in Crawford: the Court's 1966 opinion in Harper v. Virginia Board of Elections which struck down Virginia's $1.50 poll tax. In that case, the Court applied what Crawford properly characterizes as a "stricter standard" than rational basis to a law that imposing a voting condition that would disproportionately exclude poor people. As I set forth in this recent comment in the University of Pennsylvania Law Review's online supplement, Harper ought to be the starting point for evaluating claims that an election practice disproportionately excludes a particular group from participating in elections.

In Crawford, the lead opinion declines to apply a comparably strict standard, despite the fact that Indiana's law seems comparably designed to exclude poor voters, not to mention those who are elderly, disabled, students, and racial minorities. It's certainly true that the evidence of disparate impact on these and other groups was pretty thin in the case. But the same could be said of Harper, which didn't rest on empirical research that a poll tax would have a disparate impact on poor voters. If anything, Indiana voters' empirical case was stronger.

So what distinguishes Crawford from Harper? The lead opinion's answer seems to be this: "Although the state's justification for the [poll] tax was rational, it was invidious because it was irrelevant to the voter's qualifications." The problem here is that the same can be said for Indiana's law, given the utter lack of evidence showing that the state has any problem whatsoever with voters going to the polls pretending to be someone they're not -- which the lead opinion admits to be the only problem that the state's ID law could possibly remedy. Even if one looks beyond Indiana's borders the evidence of in-person voting fraud is exceedingly scant, as a careful reading of the lead opinion (especially footnotes 11 & 12) makes clear. The evidence of fraud that exists is mostly with absentee ballots, a problem to which a polling place ID requirement is irrelevant, as the lead opinion admits.

The lead opinion goes on to weigh the burdens on the voter against the state's asserted interest, concluding that Indiana's law doesn't impose "substantial burdens." It's here that I have my most serious disagreement with its reasoning. Its analysis focuses on the individual voter, reasoning that, even for poor voters, there are ways of complying with Indiana's law. But this really misses the point of the law -- both from a judicial perspective and almost certainly from the perspective of those who enacted it.

It's probably true that, for most individual voters, the burdens imposed by the law are surmountable. Even a voter who doesn't drive can purchase a birth certificate and then take a bus trip to the BMV to get a photo ID card. But the focus on the individual voter overlooks the systemic impact of such a photo ID requirement. Some voters will surely go through the hoops required to get photo ID. But others won't wait in a line at the BMV to get photo ID, only to wait in another in order to vote. The legislators in Indiana who voted for the law, almost all Republicans, surely know this -- a cynic might say that the disparate burden on likely Democratic voters is exactly why they voted as they did.

In short, the focus on the individual voter misses the likely systemic impact of the law upon certain groups, in this case poor, disabled, minority, elderly, and student voters. The question upon which the Court should have focused is whether Indiana's law would have a skewing effect on the electorate, as Chris Elmendorf and I argued in our amicus brief.

Here again, it's fair to point out that plaintiffs' lawyers put together a pretty weak case. And the Court does point this out, in declining to strike down Indiana's law on its face: "[O]n the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." Ironically, though not uncommonly, the weakness of plaintiffs' evidence helps avoid some really bad law.

This leaves the door open to challenges to other election administration laws, where plaintiffs are able to put together a stronger evidentiary case than did the Crawford plaintiffs' lawyers. It's not clear from the lead opinion how much stronger that evidence would have to be to be in order to support a facial challenge -- but from a voting rights perspective, that lack of clarity is almost certainly a blessing. In fact, the Court even leaves the door open to an as-applied challenge to Indiana's law, by someone presenting stronger evidence of a burden.

While Crawford doesn't close the door on facial challenges to election laws, it does continue the Court's inching toward as-applied challenges in these cases, also evident in its recent decision in Washington State Grange. This is a troubling trend, at least when it comes to election administration cases like this one. The reason is that it will often be difficult to know the precise impact of a particular practice on individual voters before an election. It may be difficult for plaintiffs to establish standing before an election to challenge rules pertaining to ID, registration list maintenance, provisional ballots, or polling place operations, since no particular voter can say for sure that she'll be impeded from voting due to that practice.

What this means is that great weight will end up being placed on the back end of the election process, particularly on the post-election mechanisms for resolving disputes. It will put particular pressure on a state's provisional voting system, where a lot of these questions are likely to be worked out. A voter who doesn't have ID, for example, should still be allowed to cast a provisional ballot. It will be left for the parties and candidates, in the event of a close election, to fight things out afterward. We've seen before what can happen when problems are shunted to the back end of the process. Was 2000 really that long ago?

On this point, I am somewhat surprised to find myself in partial agreement with Justice Scalia. Joined by Justices Thomas and Alito, Justice Scalia rejects the focus on "individual impacts" in ascertaining the burden imposed by a law. Here, I'm with him. The main focus should be on the systemic impact of a law.

At this point, Justice Scalia and I would go in opposite directions. He would uphold virtually all laws alleged to systemically exclude certain classes of voters, at least where they don't affect a suspect class. He relegates Harper to his cryptic footnote *, which acknowledges that it "strictly scrutinized" Virginia's poll tax law. Justice Scalia then says that "we have never held that legislatures must calibrate all election laws, even those totally unrelated to money, for their impacts on poor voters ...." I'm not quite sure that I understand what this means. Perhaps Justice Scalia means to sweep Harper into the dustbin of history, or at least confine it to its facts. If he means to suggest that Indiana's law (unlike the poll tax) is really "unrelated to money" -- well, that's a pretty hard one to swallow, even on the relatively meager record in this case.

This brings me to an important lesson for voting rights lawyers who lose in lower courts: Think long and hard before seeking Supreme Court review. That's true even when you've got a poorly reasoned lower court opinion like the one Judge Posner authored for the Seventh Circuit in Crawford (see this post by Bob Bauer). In retrospect, it was a major error in judgment for plaintiffs' lawyers to seek cert in this case. This isn't just Monday-morning quarterbacking. Most of the civil rights community knew that taking this case up to the Supreme Court was a bad idea, given its present composition.

It's also clear that the Supreme Court should not have granted the cert petition in this case. The more prudent course would have been to let the issue percolate in the lower courts and, perhaps even more important, to let the empirical research on the impact of voter ID develop further before taking up the issue. Again, this isn't just Monday-morning quarterbacking. As I said in an article published last year: "Instead of granting certiorari in Crawford, the Court should have awaited a case presenting a more fully developed record that included empirical research on the harms and benefits of voter identification." Perhaps the most conservative justices on the Court (i.e., Justices Scalia, Thomas, and Alito) were hoping for a decision that would give states carte blanche on voter ID laws, but fortunately that's not what this set of opinions does. Instead, Crawford accentuates the lack of coherence in the Court's jurisprudence when it comes to election law.

But, as I say, it could have been worse. - posted by Dan Tokaji @ 6:53 AM

 
The Problems with All-Mail Elections
With the Clinton and Obama camps at odds over whether to seat Florida and Michigan delegates, the idea of holding an all-mail election has emerged as a possible solution. The New York Times reports today that Democratic Party officials are "close to completing a draft plan" for a mail-in primary in Florida that would take place in early June. Proponents of all-mail voting often cite Oregon's experience in support of their arguments. If they can do it, the argument goes, why can't we?

Given that Democratic Party rules set clear standards for having delegates recognized, which Florida and Michigan just as clearly failed to abide by, it seems obvious that the delegates selected through those states' prior primaries shouldn't be recognized. At the same time, there are reasons to be very cautious about exporting all-mail elections to these states, especially in a hotly contested and undeniably important race like this one. Here are a few of those reasons:

- Lack of experience. All-mail elections would be new to Florida. It's certainly true that some voters in Florida and other states already vote by mail, in the form of absentee ballots. But having everyone vote by mail is a major change that raises a different set of issues. In Oregon, the transition to all-mail elections was made gradually, over two decades as summarized in this timeline. Trying to implement all-mail voting on an extremely accelerated schedule would invite trouble. This is particularly true for a state like Florida, to put it mildly, doesn't exactly have a trouble-free history of election administration. With so much at stake, this isn't a great time to experiment.

- Security. The likelihood of fraud and other forms of electoral manipulation is frequently exaggerated. But to the extent foul play happens, it's most likely to occur with mail-in ballots. That's partly because the anonymity of the ballot is compromised, allowing people to buy and sell their votes in a way that's not possible with in-precinct voting, as Rick Hasen has pointed out. It's also because lots of things that can happen to a ballot between the time it's goes from election authorities to the voter and back again. Suppose some election insider has a list of "deadwood" on the rolls (i.e., people who've died or moved yet remain on the rolls) and is able to intercept those ballots before they get into the mail? Or suppose someone has a connection at the post office? This isn't to argue that these things often happen -- there's not much evidence of such fraud in Oregon, according to this report by Paul Gronke. But again, Oregon's got a long history of dealing with the problems with mail voting, and not much history of corruption. By contrast, there has been fraud with mail ballots in Florida, specifically in a Miami mayoral election in which absentee ballots were found at the home of a local political boss, as noted by Prof. Gronke (at p. 2).

- Voter mistakes. As we learned in Florida eight years ago, voters make lots of mistakes. Fortunately, the current generation of voting technology can reduce those mistakes, as I've discussed at length in this article. That includes not only electronic touchscreen voting systems, but also paper-based "notice" systems that are used at Florida's precincts. With such "notice" systems, commonly known as precinct-count optical scan, voters run their paper ballots through scanners at each polling place. Those scanners provide voters with notice and the opportunity to erroneous "overvotes" (making more choices than allowed). Such mistakes are more common than you might think, as documented in the media consortium study of ballots in Florida's 2000 election. That study found more than 40 overvotes per 1000 ballots with optical-scan paper ballots. The use of precinct-based notice technology reduced the number of errors to less than 3 per 1000. People voting by mail, of course, don't have access to notice technology and can thus be expected to cast more ballots that won't be counted. And this isn't even taking into consideration the other mistakes than can occur, like sending in the ballot late, failing to include adequate postage, not including adequate identifying information, or not signing in the right place. See this study by Mike Alvarez, Thad Hall, and Betsy Sinclair on the errors that voters make when voting by mail

- Skewing the electorate. To my mind, the most serious risk of all-mail elections is that it will distort participation to the disadvantage of certain demographic groups. Those who are most familiar with voting by mail are likely to have the highest levels of participation; others can be expected to have more trouble and thus lower levels of participation. This includes not only people who have moved or who are homeless, but also those who are illiterate or marginally literate, and therefore may have difficulty following written instructions on mail ballots. At the polling place, such people can of course rely on poll workers' assistance -- not so when they vote by mail.

Empirical research for Oregon provides some support for this concern. It's true that some studies have found a modest increase in overall turnout in Oregon, after many years of experience. But even in Oregon, that increase tends to occur disproportionately among those already most likely to participate, including those who are better educated and more affluent. As one researcher has put it, mail voting can have "perverse consequences" because it tends to "reinforce the demographic compositional bias of the electorate and may even heighten that bias." The end result could be an electorate that's even less representative of the general public than the existing one -- older, richer, and whiter.

Even if one believes that all-mail voting works well in a smaller and relatively homogeneous state like Oregon, there's reason to be very cautious about exporting it to larger, more heterogeneous states. These concerns are especially acute in states such as Florida and Michigan, parts of which are covered by Section 5 of the Voting Rights Act. That means that any change to their election rules -- including an all-mail primary election -- would have to be precleared by the U.S. Department of Justice or the U.S. District Court in Washington, D.C. If the use of all-mail voting would have a retrogressive effect, making racial minorities worse off than they were before, then the change couldn't be made.

There's a reasonable argument that preclearance should be denied, on the ground that an all-mail election will have a negative impact on the participation of minority voters. But even if preclearance is granted, mail voting could still have a disproportionate impact on participation by some groups of voters. And that, of course, would cloud the legitimacy of Florida's election -- and perhaps the selection of our next President. As Yogi Berra (or John Fogerty) might put it, it's like deja vu all over again. If there's going to be a re-vote in Florida, it should be conducted at precincts rather than by mail. - posted by Dan Tokaji @ 11:40 AM

 
Blackwell Redux?
The AP has this report on the Ohio Supreme Court's decision rejecting Ohio Secretary of State Jennifer Brunner's request that she be shielded from the deposition in a case regarding a Summit County Board of Elections member whom she refused to reappoint. This follows yesterday's story in the Columbus Dispatch, reporting on allegations that Brunner has retaliated against those who disagree with her by effecting their removal from office. The deputy chair of the Ohio Republican Party, Kevin DeWine, complains that Brunner is "injecting a culture of fear and intimidation" into county boards of elections. See here for more of DeWine's accusations.

This is a particularly significant issue to watch in Ohio, given the allegations of partisanship surrounding Brunner's Republican predecessor, Ken Blackwell. I've previously discussed concerns regarding Brunner's possible role in ousting the Matt Damschroder from his position as Franklin County's elections director. If Brunner is in fact using her power vindictively, to retaliate against local election officials who disagree with her, it can be expected to furthe erode public confidence in the state's administration of elections. - posted by Dan Tokaji @ 10:40 AM