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)
Sunday, July 24
Race and Ohio's Machine Shortage
Last month, the U.S. Department of Justice wrote this letter rejecting the conclusion that the allocation of voting machines in Franklin County, Ohio (Columbus area) violated Section 2 of the Voting Rights Act. That section of the VRA prohibits election practices that result in the denial or dilution of the vote on account of race. As I discussed here, DOJ's letter purported to exonerate Franklin County of any claim that it violated Section 2.
But not so fast .... Professor Walter Mebane of Cornell University has written this analysis criticizing DOJ's findings and conclusions. In a nutshell, Prof. Mebane argues that DOJ asked the wrong question, considering only whether machines were misallocated to heavily white polling places and away from heavily black ones. He further argues that if the right question is asked -- namely, whether the shortage of voting machines in Franklin County had a disproportionate impact on black voters -- the answer is probably yes.
DOJ hinged its conclusion that there was no violation on the fact that:
[T]he allocation of voting machines actually favored black voters because more white voters were voting on each voting machine than black voters. (Specifically, white precincts averaged 172 voters per machine, while black precincts averaged 159 voters per machine.)The DOJ acknowledged that there was a "lack of sufficient machines" in Franklin County, stemming from the large overall turnout. It also acknowledged that there were more registered voters per machine in predominantly black precincts than in white ones, although fewer actual voters (i.e., ones who turned up at the polls) per machine in black precincts. This is because turnout was lower in black precincts: "Within the 12 most heavily white precincts, voter turnout was 78.9%. In the 12 most heavily black precincts, turnout was 61.8%."
The problem with DOJ's analysis, Prof. Mebane explains, is that it fails to examine the possibility that the inadequate number of machines had a disproportionate effect on black voter turnout. Relying on the DNC report on Ohio, Mebane notes that Franklin County's "African-American voters reported waiting an average of 52 minutes before voting, while white voters reported waiting an average of 18 minutes." Why might that have been the case, given that there were actually fewer actual voters per machine in heavily black precincts? It appears to be because voters in those precincts took longer to vote -- there were 11 votes cast per hour in precincts with the highest percentage of African Americans, compared to 13 votes per hour in those with the lowest percentage of African Americans. (This is probably due to lower educational levels or less experience voters, both of which one might expect to increase the time it takes a person to vote, though Mebane doesn't go into this.)
In any event, the big question, one that DOJ's report doesn't answer, is whether the inadequate number of voting machines in Franklin County had a disparate impact on the turnout of African American voters. Mebane concludes that it did: "The allocation of voting machines reduced voter turnout more among African American voters than among white voters."
The next question is whether this finding, if accurate, would support a claim under Section 2 of the VRA. Mebane doesn't answer this question, but I think there's a strong argument that it would, regardless of whether Franklin County's conduct was malicious or negligent. Intent isn't the standard under Section 2. The operative question instead is whether the challenged practice "result[ed] in" the denial of votes on account of race. While I don't know of any cases on point, if Mebane's analysis of the facts is right, a claim could certainly be made that the inadequate number of voting machines in Franklin County violated Section 2 of the VRA.
Update: Michael McDonald of George Mason University has this response, which he posted on the Election Law listserv and which I'm reprinting (in edited form) with his permission:
I would be cautious in moving forward with this VRA claim against Franklin County.... My understanding is that Franklin County was inundated with new registrations near the end of the registration period. By the time they processed these forms, it was too late to change the allocation of voting machines to the precincts as the preparation for the election was well underway....Prof. McDonald's complete and unedited response can be found here. A reply from Prof. Mebane is available here.
Mebane claims that African-American voter turnout was lower as a consequence of the misallocation of machines. However, the first evidence cited for this claim is a self-reported survey of waiting times. First, we should always be cautious of self-report bias in a survey. Furthermore, from the DOJ report, which Mebane confirms as being true: "the allocation of voting machines actually favored black voters because more white voters were voting on each voting machine than black voters." This seems at odds with the claim of long lines. The only way it can work out is that the flow of voters was uneven during the day and that at peak voting hours, African-American voters had longer lines, became discouraged, and didn't vote....
There very well could have been a problem as African-American voters in Franklin County reported and that Mebane and Herron describe, though I doubt it was intentional or could have even been avoided by the Franklin County election officials. The messiness of the election statistics and the small estimated turnout effect probably mean that we can't accurately uncover the truth. Before someone goes spending money to advance a Section 2 lawsuit, I hope they take pause in considering the accuracy of Mebane and Herron's report and the arguments that can be marshaled against it.