Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Sunday, December 26
 
Happy Holidays!
I'll be travelling (and grading exams) over the next several days, so blogging will be sporadic at best. Hope that everyone has a wonderful holiday season, and a happy new year. Regular blogging will resume on January 9, 2005.
Friday, December 24
 
Early Returns on Election 2004
Some very useful information and reasoned analysis of the 2004 election is starting to come in. Scripps Howard News Service reports here on the impact of the new voting technology deployed in many states. This report finds that the replacement of antiquated voting systems like the "hanging chad" punch card resulted in a substantial decrease in the number of uncounted or "residual" votes -- the sum of undervotes (for which no vote in the presidential race was registered) and overvotes (for which more than one choice for that office was registered resulting in invalidation of the ballot). Nationwide, the residual vote rate decreased from about 2% in 2000 to 1% in 2004.

Florida was among the states that showed dramatic improvement. The Sunshine State replaced its older voting equipment -- including punch cards and central-count optical scans -- with electronic and precinct-count optical scan systems. The result was a marked decrease in the number of uncounted votes, down from 178,145 in 2000 to 30,509 in 2004 (or, in percentage terms, from a 2.9% residual vote rate to a 0.4% residual vote rate).

Meanwhile, the State of Ohio, in which about 70% of voters still use punch cards, unsurprisingly showed almost no improvement. Scripps Howard reports that "96,580 ballots in the Buckeye State failed to register a presidential vote this year, up from 93,991 four years ago," although the percentage of uncounted votes declined slightly. Secretary of State Ken Blackwell attempts, quite unconvincingly, to suggest that intentional undervoting (i.e., the deliberate choice not to mark either candidate) may be to blame. Not so. Intentional undervoting generally runs around 0.3-0.7% in presidential races, far below Ohio's 1.7% uncounted vote rate. Moreover, states like Florida and Georgia that got rid of their antiquated equipment -- most notably the punch card -- saw marked improvements. Bad voting machines are certainly not the only source of lost votes, but they're a significant one.

In a related story, the National Association of Secretaries of State has issued this summary of survey results, on how federal HAVA money was spent. It reports that 96% of states received their FY 2003 funding and that 74% received their FY 2004 funding. The study also shows that the bulk of HAVA monies are going towards new voting equipment and the mandatory statewide registration database, which must be in place by the 2006 elections. One-third of the states will spend between 60% and 90% on equipment, while one-fifth will spend 70% on the registration database. The creation of these databases is a major issue to watch in the coming year.

Finally, electionline.org has released this briefing paper on the 2004 election, which observes that election-related problems received less attention this year than four years ago because the margin of victory exceeded the "margin of litigation" in the key swing states. Put another way, the problems that those states experienced didn't result in enough questionable votes to affect the outcome. The report points out that this doesn't mean that Election 2004 was without problems. It summarizes some of the most significant issues, including provisional ballots, voting equipment, and statewide registration databases. The report contains the first summary I've seen of what percentage of provisional ballots were counted in some key states -- and shows wide and disturbing variations from state to state, suggesting that the implementation of this requirement is anything but uniform.
Wednesday, December 22
 
News on Washington Recount
The Washington Democratic Party claims that its candidate Christine Gregoire leads Republican Dino Rossi by eight votes after a hand recount. The AP has this report. Rossi had led by 261 votes after the first count and by 42 after a machine recount.

Still in dispute are more than 700 uncounted votes from King County (Seattle area), which is predominantly Democratic. Yesterday's Seattle Times has this story on the fight over those ballots. The disputed ballots were erroneously rejected during the initial count because election officials wrongly believed that there was no matching signature that could be used to verify them.

A trial court judge granted the Republicans' request for a temporary restraining order blocking the counting of these ballots. The issue is now before the state supreme court. The case is being argued before that court today at 9:30 am and the decision is to be posted here on the court's website when it's issued.

Update (2:30 pm PT): The AP reports here that the Washington Supreme Court has ruled in favor of the Democrats, ordering that the 723 late-discovered ballots must be counted. Also, the Seattle Post-Intelligencer has this timeline on the Washington gubenatorial race, which states that King County is to report its results (not including the disputed ballots) this afternoon.
Tuesday, December 21
 
Developments in Ohio
The radio silence in the past few days is due to the end-of-the-semester crunch. I've now left the cold and snow for the holidays, which I'll be spending in Southern California. The situation in Ohio nevertheless remains interesting. Here are some observations -- from afar -- on a few items that have appeared in the past several days.

- The recount of the vote in Ohio's 88 counties is nearly complete, according to this AP story. Not surprisingly, the recount has thus far resulted in only a slight change in the vote totals. With the recount results reported for all but two counties, it's trimmed 242 votes off of Bush's approximately 119,000 vote margin of victory. Although some Democratic-leaning groups continue to argue that electronic voting -- used in seven of Ohio's 88 counties -- was used to steal votes, there's precious little evidence to support this claim. The AP's review of electronic voting found "few reports of widespread problems. "

- A contest of Ohio's presidential election result was re-filed on Friday, according to this AP report. The re-filed contest petition and other documents from the Moss v. Bush case can be found here. The original contest petition was rejected on procedural grounds, because it included both the presidential election and the election for Ohio's chief justice. Relying largely on the discrepancy between early exit polls and the reported results, the contest petition alleges that Bush was not legitimately elected.

- So what about the substance of the petition's claim that the exit poll results demonstrate a calculated plan by Bush, Cheney, Rove and company to steal the Ohio election? (And no, that's not an exaggeration of their claim -- see paragraphs 79 and 81 of the petition.) For more on the basis for petitioner's claims, see this discussion of "The Unexplained Exit Poll Discrepancy" by Steve Freeman of the University of Pennsylvania. For a different view, see this response from MIT's Charles Stewart III. He finds no relationship between the voting equipment used and the discrepancy between exit poll and actual results. Also worth look is this analysis on Mark Blumenthal's "Mystery Pollster" blog. Stewart's and Blumenthal's analysis both cast doubt on the use of early exit polls to challenge election results.

- That doesn't mean there weren't serious problems with Ohio's election. The board of election chairs in both Franklin County (Columbus area) and Hamilton County (Cincinnati area) have publicly criticized actions of Ohio Secretary of State Ken Blackwell in the days leading up to the election. Franklin County Chair William A. Anthony, Jr. comments:
A lot of the problems and allegations could have been avoided if the Secretary of State hadn't made the rulings he did in the last few days leading up to the election .... We in the local election boards tried to do the best we could [with these rulings].... All across this county, we didnt have enough voting machines. People are blaming us at the local level, but the real blame should be placed on Blackwell, HAVA and the Republican state legislature.
See here for more. Anthony also criticizes Blackwell's office for waiting until 37 days before the election to issue a directive regarding provisional voting.

- Blackwell scored a victory in federal court last week, when U.S. District Judge ruled that the state's use of punch cards does not violate either the U.S. Constitution or the Voting Rights Act. (Disclosure: I'm co-counsel for the plaintiffs in this lawsuit.) The Akron Beacon-Journal has this report, which includes my assessment of the court's ruling.

- Meanwhile, the Toledo Blade reports here on Blackwell's plan to run for governor of Ohio in 2006. While criticism of Secretary of State Blackwell is coming from prominent Democrats, some Republicans say that his conduct of the 2004 election will actually enhance his chances of getting the GOP nomination. According to one poll -- paid for by Blackwell's campaign -- 77% of Republican voters say they approve of his handling of the election.
Wednesday, December 15
 
Ohio: Continuing Contest and Controversy
Although the Electoral College voted on Monday, there's continuing controversy over the results of the election, particularly in the State of Ohio. The Washington Post has this report on "'lost' voters" (shouldn't that be votes?). Among the problems identified are long lines, faulty poll worker instructions, the continuing use of unreliable punch cards, and, in one county, allegations that electronic voting machines switched votes from Kerry to Bush.

Did these problems affect the result? The Post story concludes, correctly in my view, that they probably didn't. Some voters, however, take a different view. Now available on buzzflash.com are the contest petition and accompanying motion for a temporary restraining order and preliminary injunction. The contest petition, filed on behalf of several individual Ohio voters, alleges that about 130,000 votes were added to Bush's total and about 130,000 deducted from Kerry's -- meaning that Kerry really won by "at least 143,537 votes." How did this siphoning of votes occur? The petition alleges that President Bush "participated personally and substantially . . . in devising and/or implementing the pattern of vote fraud and discrimination . . . which operated to deprive numerous Ohio citizens of their constitutional and statutory rights." Call me Thomas, but I'm dubious.

Another accusation, one that on its face appears more deserving of careful scrutiny, comes from Rep. John Conyers. Conyers alleges manipulation of the recount procedures in Hocking County, which is located in southeastern Ohio. His letter to the FBI and other information on the allegations can be found here. Keith Olbermann has this post on Conyers' allegations, which appear to be worthy of investigation.
Tuesday, December 14
 
Puerto Rico's Gubenatorial Election in the Courts
Think old-fashioned paper ballots guarantee election integrity? Think again.

In a fascinating case coming out of Puerto Rico, the First Circuit Court of Appeals heard argument Monday over which ballots should be counted in the race between Anibal Acevedo Vila, who narrowly defeated Pedro Rossello, the former governor and pro-statehood candidate, by 3,880 votes. Still in dispute are some 28,000 disputed ballots, cast using Puerto Rico's "outdated paper balloting system, in which voters simply mark an X in pencil next to the preferred candidate for governor and nonvoting member of Congress." The disputed ballots are ones that showed a vote for both Mr. Vila and a small third party that supports Puerto Rican independence. Mr. Vila says those votes were properly counted as votes for him; Mr. Rossello says they shouldn't have been. A Puerto Rico court has said the disputed ballots should be counted, but a U.S. district judge has ruled otherwise.

Former Solicitor General Ted Olson, who famously represented George W. Bush in Bush v. Gore, is representing Mr. Rossello -- and is claiming that the decision belongs with a federal judge, who said the ballots shouldn't be counted. According to Olson, counting the disputed ballots would give more weight to some votes than others. (Well, it worked once before, I guess.) On the other hand, Mr. Vila's lawyer Charles Cooper and the Puerto Rico Election Commission's lawyer Prof. Rick Pildes (whose name the NYT misspells) argue that the decision belongs in Puerto Rico's courts and should be decided under its election laws.
 
Blackwell Responds to House Dems' Letter
Ohio Secretary of State Ken Blackwell has sent this letter in response to a letter from Democrats on the House Judiciary Committee, posted here, which asked him to address alleged irregularities in the state's November 2, 2004 election. Blackwell says he's directed his staff to respond to inquiries from the General Accountability Office and the Department of Justice -- conspicuously omitting any mention of cooperation with the House Judiciary Committee's Democrats or their staff, which according to their earlier letter, are undertaking an investigation into Ohio's election. While stating that he "appreciate[s] the concerns" expressed by some House members (no doubt in much the same way that a comedian appreciates a heckler), Blackwell impliedly rejects the congressmembers' request for a point-by-point answer to their list of alleged grievances. It seems to me like a polite way of telling the House Democrats to get lost.
Monday, December 13
 
Move to Delay Electoral College in Ohio
Today's the day that the Electoral College meets in each of the state capitals. Just hours before, some congressional Democrats and other Democratic activists asked state officials to delay the Electoral College vote in Columbus, Ohio until the recount is completed. The A.P. has this report.

President Bush won by about 119,000 votes, as of the date that Ohio's results were certified a few days ago. But there are recount requests and a contest of the election still pending. The Green and Libertarian parties' candidates requested recounts in each of the 88 Ohio counties, which are to start this week. A spokesman for Ohio Gov. Bob Taft says that the state won't postpone the Electoral College vote or make it provisional, as House Dems areq requesting. Oh well.

In related news, the Columbus Dispatch reported yesterday that heavily Republican precincts in Franklin County saw an increase in voting machines, while heavily Democratic ones lost voting machines. There were reports of multi-hour lines in many Franklin County precincts on election day, particularly those in or near central Columbus. While the full text of the story doesn't appear to be available on line, the Dispatch report finds that:
- Predominantly Democratic Franklin County precincts -- those where Democrat Al Gore got at least 70 percent of the vote in 2000 -- had 17 fewer machines used in 2004. At the same time, the strongest GOP precincts -- where George W. Bush got at least 70 percent of the vote four years ago -- received eight more machines.

- Based on the information available when officials placed machines, the Democratic precincts had 20 percent more "active" voters per machine used than the Republican areas. The GOP precincts had an 18 percent higher turnout in 2000, but the Columbus ballot this year was much longer than in the suburbs because of bond issues -- which officials say was a major reason for long lines.

- The county average for active voters per machine was 229 per precinct, with a range from 388 in Columbus Precinct 73-J to 84 in Truro Township A. But nearly three-fourths of the Democratic precincts had a higher-than-average voter-permachine number, compared with 30 percent of the GOP precincts.

- Franklin County officials tried to put 29 additional machines into service on Election Day -- all in the Democratic and minority precincts -- but 17 weren't used because they were delivered after the polls closed or because poll workers told those delivering the machines that they weren't needed, officials said. The county didn't use 22 other machines.
My take: The recount and contest in Ohio won't change the outcome, and doesn't provide a good reason for delaying the Electoral College vote . . . this year. But in a closer election, the glaring flaw in Ohio's election procedures, which allows insufficient time for the recount and contest to be completed before the Electoral College meets, could spell disaster.

As far as this year's election goes, I've still not seen any evidence yet that would support the claim that Kerry really won -- or would have won if not for "irregularities." But the latest findings in the Dispatch report are troubling. Franklin County election officials vigorously deny any partisan gamesmanship in the distribution of machines. And that's probably true, given that the county boards of election have equal numbers of Democrats and Republicans. But even if there wasn't an intentional maldistribution of machines, the long lines that many Columbus-area voters faced were a disgrace. There's no telling exactly how many people were discouraged from voting as a result of those lines, and it would be inexcusable if election officials failed to fix this problem before the next presidential elections.

This isn't rocket science folks. We need new voting machines, and we need them now (or at least by 2006).
Friday, December 10
 
Provisional Voting in Illinois
Wide disparities in the percentage of provisional ballots counted occurred in Illinois, according to this Chicago Tribune report. As an example, the Tribune notes that only 26% of provisionals were counted in DuPage County, compared to 61% in Chicago.

Such disparities reflect the lack of any uniform standards across the state for determining which provisionals should count. Some counties followed advice from the State Board of Elections on which provisional ballots should count, while others didn't. It's not clear which jurisdictions counted provisional ballots cast in the wrong precinct, but it appears that some -- but not all -- did so. The pronounced increase in the percentage of provisional ballots counted in Chicago appears to result in large part from that jurisdiction's decision to count those ballots. In fact, the Tribune reports that the "vast majority" of provisionals counted in Chicago were cast out of precinct.

My take: Clearly, there needs to be some statewide uniformity. Otherwise, the state is just begging to be held in violation of the Equal Protection Clause under the rationale of Bush v. Gore.
Wednesday, December 8
 
National Academies Meeting on Electronic Voting
I'll be in Washington, D.C. tomorrow for a meeting of the National Academies Committee on Electronic Voting, entitled "A Framework for Understanding Electronic Voting." The agenda can be found here. Regular blogging will resume on Friday.
 
More on the Florida Electronic Voting Report
Wired News has this story on the debunking of the study by Michael Hout and his associates at U.C. Berkeley, which purported to find that the use of electronic voting machines in Florida resulted in 130,000-260,000 extra votes for Bush. Wired reports that:
A study by Berkeley grad students and a professor showing anomalies with electronic-voting machines in Florida has been debunked by numerous academics who say the students used a faulty equation to reach their results and should never have released the study before getting it peer-reviewed.
See here, here, and here for my prior posts on the Hout study.

My take: It was apparent from the beginning that there were some serious problems with the Hout study, even to a relatively untrained empirical eye such as mine. The latest story is quite remarkable, given that Wired has been one of the most aggressively skeptical media outlets when it comes to electronic voting. When the data are in from Florida and other states, as they are in Georgia (see here), we're likely to see that the use of electronic and precinct-count optical scan voting technology resulted in a significant decrease in the number of uncounted votes -- with particularly significant benefits for minority voters. We're also likely to find that, contrary to some of the conspiracy theories that continue to make the rounds, electronic voting technology wasn't used to steal the election. See here for the Cleveland Plain-Dealer's description of some of the more pervasive theories that have been making the rounds.
Monday, December 6
 
California Task Force on Poll Worker Training
A task force on poll worker training created by California Secretary of State Kevin Shelley has released this preliminary report. Comments will be received through December 18. Among the areas examined are cultural competency and accommodating people with disabilities. Although I've not yet read the report, poll worker training is an underexamined issue and California deserves credit for taking a hard look at it.
 
Ohio: Certification, Recount and Contest
Ohio Secretary of State Ken Blackwell has certified that President Bush won the state by about 119,000 votes, even as third-party candidates and independent groups continue to question the result. The New York Times has this report.

On Wednesday, the Alliance for Democracy reportedly plans to file a petition contesting the election results. The Alliance's attorney Cliff Arneback states that "We will allege in the complaint that the result should have been Kerry winning." As for the Democrats, the NYT reports that: "Democratic officials, walking a fine line between their angry liberal base and centrist voters who consider the election over, said they were not contesting the results."

In addition to the contest, a recount request is anticipated by the Green and Libertarian Party candidates. Now posted on the EL@M website is U.S. District Judge Sargus's order denying both sides motion for a preliminary injunction, in the case brought by Delaware County to stop the recount. As I've noted, I think that Judge Sargus was right to deny both preliminary injunction motions. The fact that the election isn't close doesn't excuse Delaware County from its obligation to conduct a recount -- however pointless it may seem. At the same time, the Green and Libertarian candidates can't show that they'd suffer any irreparable injury if the recount isn't completed by the "safe harbor" date of December 6 or the date the Electoral College meets, December 13.

Also posted on the EL@M website is the Kerry-Edwards' campaign's motion to intervene. The motion appears artfully drafted to avoid formally joining in the recount, while attempting to convey at least tepid support to appease Democrats who believe the election was stolen. In particular, it states that Kerry and Edwards "have an interest in fully participating in the recount requested by the Defendants [Green candidate Cobb and Libertarian candidate Badnarik] in the instant action." Pretty pro forma stuff.

Meanwhile, the DNC says it will launch an investigation into voting irregularities in Ohio. The Washington Post has this story. The Post also mentions this new report from the Lawyers' Committee on Civil Rights and People for the American Way, analyzing problems during the election in a number of states.
Saturday, December 4
 
Federal Judge Denies Motions to Stop and Start Ohio Recount
You read that right. U.S. District Judge Edmund Sargus yesterday denied a request by the Delaware County Board of Elections' request to enjoin a recount, sought by the Green and Libertarian parties' presidential candidates. But Judge Sargus also denied a motion by these candidates that the recount be ordered to start immediately. The A.P. has this report. Recount supporters plan to file their formal request on the recount as soon as possible after Secretary of State Blackwell certifies the election, probably Monday.

There's a structural defect in Ohio election laws that I've noted here. The problem is that they don't provide a means for the recount and contest to be complete by the "safe harbor" day, by which controversies regarding electors must be resolved to be assured that the state's chosen electors will be the ones whose votes are considered when Congress meets to count the electoral votes. This year, the "safe harbor" date is December 6. In fact, Ohio's recount and contest almost certainly won't be completed by December 13, when the Electoral College meets in each of the state's capitals.

My take: Though I've not yet seen the order, it sounds like Judge Sargus acted properly in denying both motions. Delaware County shouldn't be allowed to allowed to disregard state law just because it will be expensive for it to comply; by the same token, a recount probably isn't "ripe" until Blackwell certifies the vote. But whether or not the recount actually happens this year is much less important than that our laws be amended to make sure that recounts and contests are completed before the Electoral College meets.
Friday, December 3
 
The Washington Recount
The Seattle Times reports here that Republican gubenatorial candidate leads Democratic candidate Christine Gregoire by a razor-thin margin of 42 votes out of almost three million votes cast in the state. And you thought Florida's 2000 election was close. The margin narrowed from its previous 261 votes after the machine recounct mandated by state law. The Democrats have reportedly put up the $730,000 for a hand recount, and the Secretary of State is expected to order a recount on Monday.

The Washington election is clearly close enough to warrant a recount. What's not entirely clear, at least to me, is whether a hand recount will yield a more accurate result than the machine count. People make mistakes too, after all. On the other hand, it may be that a hand recount will allow the deciphering of valid votes under Washington's standard that couldn't be read during the machine count.

In any event, it looks like we won't have a clear winner in Washington until the end of this month at the earliest. But it's more important to get it done right -- or at least as right as possible -- than to get it done quickly.
 
Provisional Ballots Narrow Bush's Margin in Ohio . . . Slightly
The deadline for Ohio's counties to count provisional ballots and submit certified totals was Wednesday night. According to this report from the Cleveland Plain-Dealer, Bush's margin of victory declined by about 18,000 votes after the counting of provisionals. Bush was ahead by about 136,483 on the morning of November 3, and he's now ahead by 118,443, most of the difference being the result of the counted provisional ballots. As I've noted previously (see here), Bush's margin of victory would have been insurmountable even if Kerry had gotten a much higher percentage of the counted provisionals than he actually did.

What remains unclear is whether there was any cross-county uniformity, in the standards for determining which provisional votes should count. Under the Help America Vote Act, provisional ballots must be counted if cast by voters determined eligible and registered to vote. The A.P. reports that, statewide, 121,598 of the 156,977 provisional ballots cast in Ohio were counted. That's about 77%.

Not yet reported are the county-by-county numbers, showing what percentage or provisionals were cast in each county. We also don't know what process the various counties were applying in determining whether a provisional ballot should be counted. Variations in either of these areas -- the percentage of provisionals counted or the process followed in validating provisionals -- will likely be very important to the pending claim in Schering v. Blackwell that Ohio's provisional voting system violates equal protection under Bush v. Gore.
 
Georgia's Electronic Voting Machines Yield Fewer Uncounted Votes
We're still in the early stages of discovering how the changes in voting equipment have affected the number of votes counted, but there's some early evidence that Georgia's switch from paper-based to electronic voting had positive results. The A.P. reports here that, statewide, the percentage of residual votes (combined overvotes and undervotes) declined from about 3.5% to 0.39%. Georgia used a hodgepodge of voting equipment -- including punch cards, optical scans, and paper ballots -- in 2000 but switched to electronic voting technlogy statewide in 2004. The biggest increase in the percentage of votes counted occurred in African-American precincts:
An analysis of results from precincts where more than 80 percent of registered voters are black showed even more dramatic drops. In 77 of those precincts studied by the Secretary of State's office, the percentage of so-called "undervotes" in the 2000 presidential election was 6.7 percent - almost twice the state average. This year, that percentage dropped to 0.69 percent.
In other words, heavily black precincts saw the percentage of uncounted votes drop to about one-tenth of what it had been in 2004.

My take: This is good news for Georgians. These numbers suggest that the state is reaching the upper limit of what it's possible to accomplish through voting technology. Analyzing surveys from past presidential elections, Stephen Knack and Martha Kropf have found that about 0.3 to 0.7% of voters intentionally undervote in presidential elections -- that is, they deliberately leave the presidential line blank. These numbers are approaching that threshhold. That suggests that almost all of the remaining undervotes are probably intentional.

Georgia's numbers are also consistent with prior research finding that switching from punch cards to electronic voting systems dramatically lowers the percentage of uncounted votes, particularly in minority precincts. For research on the effect of moving away from punch cards, see this page containing research by Henry Brady at U.C. Berkeley. For an analysis of how switching to electronic voting lowers the racial gap in uncounted votes, see this paper by Michael Tomz and Robert Van Houweling.
 
Letter from House Dems to Blackwell
Democratic members of the House Judiciary Committee have written this letter to Ohio Secretary of State Ken Blackwell, expressing concern regarding "irregularities" in the November 2, 2004 election. The allegations in the letter include:
- a lockdown of the election administration building in Warren County on election night,

- discrepancies between the number of voters who signed in and the number of votes cast in certain Perry County precincts, and peculiarities in that county's registration lists,

- an apparently anomolous result in Butler County, in which the Democratic Supreme Court candidates received more votes than the Kerry-Edwards ticket,

- an unusually high number of votes for third-party presidential candidates in certain precincts in Cuyahoga County, which uses punch card ballots,

- a high percentage of ballots in which no valid presidential vote was cast (as high as 25%) within certain Montgomery County precincts, another county that uses the punch card ballot,

- the mistaken addition of 3893 votes to Bush's total in one Franklin County precinct where electronic voting machines are used, which was quickly detected and corrected,

- the addition of some 19,000 votes in Miami County after all precincts had supposedly reported,
- allegations that some voters using Mahoning County's touchscreen machines tried to vote for Kerry and had the votes come up for Bush instead,

- machine shortages in Franklin County,

- provisional ballots that weren't counted, and

- Blackwell's directive, eventually rescinded, that registration forms on less than 80-lb. paper weight wouldn't be accepted.
The House members' letter states that the Democratic House Judiciary Committee's staff will be investigating all these allegations.
Thursday, December 2
 
Federal Judge Reportedly Declines to Stop Recount
A United States District Judge has declined to extend a temporary restraining order barring the Ohio recount from proceeding in Delaware County, according to this press release. As I noted yesterday, the TRO had been issued by state judge, but expired by its terms yesterday at noon. After the TRO issued, the Green and Libertarian candidates removed the case from state court to federal court. Today's press release doesn't explain the federal judge's reasoning, but does note that a hearing is set for tomorrow afternoon in Columbus, to consider the matter further.
Wednesday, December 1
 
Indictment Against Former RNC Official
An indictment was filed today in the U.S. District Court for the District of New Hampshire, against the former New England Regional Director of the Republican National Committee. The indictment in United States v. Tobin can be found here. It alleges that James Tobin engaged in a conspiracy to disrupt Democratic get-out-the-vote efforts in 2002, by hiring an Idaho telemarketing firm to repeatedly call and hang up on the phone banks operated by the Democratic Party and Manchester Firefighters. According to the indictment, several hundred calls were made on November 5, 2002. It alleges a conspiracy to make interstate phone calls "with intent to annoy and harass," in violation of 47 U.S.C. 223(a)(1)(D).
 
Recounts, Contests and the Electoral College
There's been continuing attention devoted to the Ohio recount and contest efforts in recent days. The latest developments include the Kerry campaign's reported intent formally to join the recount litigation, and Rev. Jesse Jackson Sr.'s attempt to call attention to alleged irregularities. But the most significant issue, which few people seem to have noticed, is the structural flaw in Ohio's recount and contest laws -- which in a close election could degenerate into a genuine constitutional crisis.

Kerry Campaign Joining Recount Litigation

The Washington Post reports here that the Kerry campaign will be joining the Green and Libertarian party efforts to force Delaware County, just north of the Columbus area, to participate in the recount. Delaware County's prosecuting attorney had brought suit to avoid having to go through the recount and, on November 23, a state court judge issued this temporary restraining order preventing the candidates from requiring Delaware County to perform a recount. That case has now been removed to federal court -- in other words, the defendants have had the case moved to federal court. And the state judge's TRO expired, by its terms, at 12 noon today, the day that counties are supposed to have completed their official canvass of the votes.

I tend to believe that a recount is not likely to do much good. It won't address the very serious problems that materialized in Ohio's election, such as confusion over provisional voting, long lines at the polls, partisan election administration, and the continuing use of unreliable punch card voting machines that disproportionately harm minority voters. A recount won't change any of these things. And a recount certainly won't change the outcome of the election, as I've explained here.

Still, I don't see any reasonable basis for a court order preventing the Green and Libertarian candidates from seeking a recount in Delaware County or anywhere else in the state. Ohio's recount statute, described here, allows candidates to demand a recount, even if the election results aren't close. If Ohio wants to amend its statute, to limit recounts to cases in which the vote is close, fine, but as long as the current statute is in effect candidates are entitled to a recount -- assuming they're willing to put up the required ten bucks per precinct -- regardless of whether it will accomplish anything.

Protest and Contest

Meanwhile, civil rights advocates are descending upon Ohio, contending that the election results were fraudulent. The A.P. reports here on the efforts of activists such as Rev. Jesse Jackson, who's held rallies in the state in recent days. Democracy Now has this interview with Rev. Jackson, in which he calls for a federal investigation.

The A.P. also reports that activists are still planning a contest of the election results, although it's still not clear when the contest petition will be filed. See here for my earlier description of plans for a contest, which is heard in the first instance by the Chief Justice of the Ohio Supreme Court.

The Big Problem That Almost No One's Noticed

What few people seem to have noticed is the structural problem with Ohio's recount and contest laws. In brief, Ohio's statute doesn't allow for an election recount and contest to be completed in time for the state to meet the "safe harbor" deadline (December 7 this year) or even by the time the Electoral College meets (December 13 this year). I discussed the problem in this post a few days ago, and my colleague Peter Shane yesterday posted this more extensive analysis on the EL@M site. As he explains:

Federal law requires states to appoint electors on the first Tuesday after the first Monday in November in every fourth year, 3 U.S.C. 1. The electors, in turn, are to meet and give their votes on the first Monday after the second Wednesday in December, 3 U.S.C. 7, which is to say, 41 days later. Yet, nothing in Ohio law purports to assure that Ohio's electors will be certified, and that any dispute regarding their certification will be resolved, within 41 days of the November balloting.

Moreover, Ohio law lacks clear guidance on how state officials should proceed if the recounts or election contests guaranteed under state law should determine, more than 41 days following a presidential election, that the slate of presidential electors entitled to cast ballots for Ohio is not the slate of electors originally certified winners by the Ohio Secretary of State.

As it happens, virtually no one regards the outcome of Ohio's 2004 presidential balloting to be seriously in doubt. Yet, the recount already demanded, and the prospects for additional contests, highlight the confusions engendered by Ohio's failure to prescribe a process that coordinates well with federal election law. Given that close presidential balloting may well be an ongoing feature of Ohio political life for many years, this is a problem that ought to be addressed.

For a suggestion that federal law might be amended -- to move back the dates of the safe harbor, meeting of the electors in the states, and counting of electoral votes in Congress -- see this post by my colleague Steve Huefner.

Much of the criticism of the administration of Ohio's 2004 election has been directed toward Secretary of State Ken Blackwell. I've joined in some of this criticism, particularly as to his handling of provisional ballot and registration matters. But the structural problems in the state's election system go well beyond him, and at least some of the responsibility lies with the state legislature. That's particularly true when it comes to the replacement of punch card voting machines, setting standards for the counting of provisional ballots, limiting challenges to voter eligibility, and reforming the contest and recount process. All of these things represent failures on the part of the state legislature, in my view, and need to be addressed by the state legislature.

While my focus in this post has been on Ohio, other states face similar issues. The understandable desire to criticize partisanship in the administration of elections shouldn't blind us to the need to reexamine and revise state election laws -- and perhaps even the federal statute governing the Electoral College.
 
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Moritz College of Law The Ohio State University