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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- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Tuesday, July 5
DOJ: No Discrimination in Ohio Election
The U.S. Department of Justice has concluded that there was no discrimination in the allocation of voting machines by two Ohio counties that experienced exceptionally long lines in the November 2004 election. The letters address complaints arising from Franklin County where Columbus is located, and Knox County where Kenyon College is located. Voters in some Columbus precincts reported lines from 4-5 hours long, while some voters near Kenyon waited until the 4:00 in the morning on November 3 to cast their votes.
The Justice Department found no violations of the Voting Rights Act in either Franklin or Knox County. In Franklin, DOJ's letter says it investigated whether machines were systematically misallocated in a manner that favored predominantly white precincts over predominantly black ones. According to DOJ, "the long lines were attributable not to the allocation of machines, but to the lack of sufficient machines to serve a dramatically enlarged electorate under any allocation." Put more simply, Franklin County simply didn't have enough machines to go around.
As for the alleged racial disparity in Franklin, DOJ finds that there were more registered voters per machine in predominantly black precincts than in predominantly white ones. However the number of actual voters (i.e., those who showed up) per machine was actually higher in predominantly white precincts than in black ones, according to DOJ.
What's still not clear, as the DOJ acknowledges, is whether voters in black precincts actually waited longer than voters in white precincts. Even if there were more voters per machine in white precincts overall, as DOJ concludes, it may still be the case that lines were longer in white precincts. That's because "predominantly black precincts had larger numbers of newly registered, first-time voters -- 17.6% of voters in the 50 most heavily black precincts compared to 7% in the 50 most heavily white precincts."
One would expect that new voters would take longer to vote than experienced voters; thus, there might be longer lines in precincts with more new voters. In addition,one would expect more provisional ballots cast in those precincts (newly registered voters are more likely to be omitted from the list and therefore to need a provisional ballot). This would also slow down the voting process, resulting in longer lines.
As for Knox County, the DOJ's investigation focuses on the Gambier/Kenyon precinct, where many Kenyon College students voted. DOJ examined whether the allocation of voting machines compromised the Twenty-Sixth Amendment right of 18-21 year olds to vote, protected by the Voting Rights Act, 42 USC 1973bb. Here also, DOJ finds no violation. DOJ attributes the long lines at the Kenyon precinct to a sharp increase in turnout that "Knox County was simply not equipped to handle." Interestingly, a large number of voters at the precinct registered shortly before the election, and DOJ finds that the decision about how to allocate voting machines was made before many of those registrations were received.
This begs the question of why Knox County officials didn't adjust their allocation decisions, when the new registration numbers came in. The DOJ's answer to this question is less than completely satisfying, to my mind. It finds that officials were "overwhelmed" and "lacked the resources to resolve many of the issues." DOJ reports that Knox County has agreed to increase its stock of voting machines to make sure this doesn't happen again.
My take: Whether or not there was intentional discrimination, the lines in both Franklin and Knox Counties were a total disgrace. If the problem is that counties lack the staff and machines needed to deal with sharp increases in registration or turnout, the obvious solution is to make sure that local election officials have those things.
The big open question is whether HAVA's long-overdue allocation of money to make our elections better was simply a one-time deal or, alternatively, whether we're willing to make a long-term commitment to improving the infrastructure of our democracy on an ongoing basis. If it's the former, we can expect to see more inexcusably long lines, like those which took place in Columbus and Gambier, in future elections.