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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
Thursday, September 29
 
Young and Overton on Voter ID
Andrew Young has this letter to the editor in today's N.Y. Times, and Professor Spencer Overton has this op-ed published in Roll Call. Both address the voter ID issue. Professor Overton was a member of the Carter-Baker Commission, who dissented on the requirement that voters show "REAL ID" in order to vote. Mr. Young supported the voter ID requirement and apparently was instrumental behind the scenes in persuading some of the other commissioners to support this requirement. (On that point, see this post from Professor Overton.)

Mr. Young's letter to the editor is puzzling. He attempts to justify his support for the requirement that all voters show a state-issued "REAL ID" on the ground that "there is already a photo ID requirement in federal law: the new Real ID requirement imposed by Congress as part of homeland security policy." This is misleading. There is no federal law that requires that photo ID be presented in order to vote. HAVA requires only that first time voters who registered by mail present one of several documents, including but not limited to voter ID. The acceptable documents include things like utility bills that those who don't drive are likely to have. The "REAL ID" law passed by Congress requires that states verify certain information before driver's licenses are issued. It doesn't require that all voters be issued ID, and doesn't make state-issued photo ID more available. To the contrary, it makes it marginally more difficult to obtain.

Mr. Young suggests that state-issued photo ID should be made "widely available, easily accessible and free of cost." I agree that this is essential ... if photo ID is required. But this deftly avoids the primary question of whether photo ID should be required at all. Moreover, if states are responsible for providing the mandated photo ID, how are we going to ensure that states really do this in good faith. Can we really trust partisan Secretaries of State to go out of their way to register new voters? And even if we can, is it plausible to expect state legislative bodies to appropriate the monies needed to make this happen? Mr. Young's arguments are particularly ironic in light of the EAC's 2004 election day survey, which reveal large disparities in our election system based on race, language, and class. The proposal he endorses would make things worse rather than better, by imposing an additional barrier on those whose votes are already disproportionately diminished. One can only conclude that Mr. Young failed to do his homework before being coaxed into appearing before the Carter-Baker Commission to assure them that the "REAL ID" proposal really isn't the new poll tax.

In contrast to Mr. Young, Mr. Overton is in command of his facts and cogent in his arguments. He takes a much more realistic approach to the ID issue, one that takes account of both existing law and the evidence. Overton notes that the "REAL ID" proposal is " more exclusionary than any state ID law -- including Georgia's." Moreover, Young and the Carter-Baker Commission ignore the indirect costs of voter ID. As Overton points out: "A certified copy of a birth certificate costs from $10 to $45 depending on the state, a passport costs $85 and certified naturalization papers cost $19.95. About 12 percent of voting-age Americans currently lack a driver's license, and the hassle and cost of the supporting documents required under the Real ID law will only increase these numbers. "

Overton also points out that Michigan, which has a program to provide free ID to its citizens, still has about 10% of its population without photo ID. And this is completely aside from the fact that neither Young nor the Commission provide a shred of evidence that requiring photo ID is necessary to combat fraud.

Sadly, Mr. Young had acceded to the fraud-hyping of those who are bent on erecting new obstacles to political pariticipation. It is very fortunate that we have voices among us like Professor Overton's, who relies on evidence rather than hype, and who engages in rigorous analysis rather than leaping to endorse "common sense" solutions that really make no sense at all when one takes a careful look at the facts.
Wednesday, September 28
 
Race, Language, Class, and Voting
One of the most striking aspects of the 2004 Election Day Survey released yesterday are the substantial disparities based on race, language, and class in a wide range of areas. As set forth in the report's executive summary:
Jurisdictions with low education and income, compared with other jurisdictions, tend to report more inactive voter registration, lower voter turnout, higher number of provisional ballots cast, higher drop-off and associated components of overvotes and undervotes, lower average number of poll workers per polling place, and greater percentage of inadequately staffed polling places. While these patterns present a challenge to election administrators, they are consistent with a large body of academic literature that equates higher levels of civic participation to higher levels of education and income.
To take just one example, African American jurisdictions report a greater percentage of polling places with inadequate numbers of poll workers. Conversely, jurisdictions with higher income and education levels report a higher average number of poll workers.

The report also discusses disparities affecting places covered by section 203 of the Voting Rights Act, which applies to jurisdictions with a substantial number or percentage of non-English proficient residents:
Jurisdictions covered by the Section 203 of the Voting Rights Act tended to report more inactive voter registration, lower voter turnout, fewer returned absentee ballots, and much greater numbers of provisional ballots cast. These patterns were often similar to those found among predominantly Hispanic and predominantly non-Hispanic Native American jurisdictions. These findings appear to be consistent with voters within these jurisdictions having difficulty in navigating the electoral process in a language that is not their native tongue.
None of this should come as any great surprise. Rather, it provides further support for the intuitions that many of us has held. The report provides a starting point for examining whether there might be states that are in violation of current law, such as Section 2 of the Voting Rights Act which prohibits practices that result in the abridgement of the vote on account of race -- a test that requires a showing of discriminatory effects, but not intentional discrimination. Alternatively, it may be appropriate to revisit laws such as Section 203 of the Voting Rights Act, to determine whether they need to be strengthened in order to achieve their stated objective of equal access for linguistic minorities.
Tuesday, September 27
 
Election Day Survey Released
The Election Assistance Commission today released its 2004 Election Day Survey. The data were compiled by Kim Brace of Election Data Services, with Michael McDonald serving as statistical consultant. It's billed as "the largest and most comprehensive survey of voting and election administration practices ever conducted by a U.S. government organization." The subjects covered include voter registraiton, ballots counted, turnout, absentees, provisional ballots, overvotes and undervotes, voting equipment usage, and polling place operations.

Among the most notable findings is that only 1.02% of ballots cast in 2004 did not register a vote for president, the lowest in a post-World War II presidential election. Punch cards had the highest uncounted vote rate (1.60%) with optical scans at 1.12% and electronic voting machines just over 0.8%. Other findings set forth in the executive summary include:

- "[T]he reported total voter registration constituted 79.5 percent of the voting age population (all persons age 18 and older residing in the United States; VAP) or 86.0 percent of citizen voting age population (CVAP)."

- "73.5 percent of total ballots cast were reported to have been cast in a polling place on Election Day, 13.3 percent were reported to have been cast as an absentee ballot, 23.5 percent were reported to have been cast as an early vote, 1.2 percent were reported to have been cast as a provisional ballot, and the remaining 23.1 percent were cast in an unknown manner."

- "16,870,660 absentee ballots were requested, 14,851,332 were returned (88.7 percent), and nearly all, or 14,740,215 (96.9 percent), were counted. "

- "1,901,591 provisional ballots were reported to have been cast. Of those, 1,225,915 were reported counted (or 64.5 percent). Provisional ballots were used by 2.56 percent of the persons casting ballots on Election Day, which also amounted to 1.25 percent of all registered voters for the election. "

- "[M]ore than one quarter of the nation's election jurisdictions used paper ballots, but because of their small size, only 1.8 percent of the registered voters voted in this manner. Nearly 40 percent of the nation's registered voters used optical scan systems in 2004, and 25 percent used electronic systems. Another 12 percent utilized lever machines and nine percent were still voting with punch cards."

- "[T]here were at least 845,962 poll workers that worked at polling places on Election Day, which constituted almost one in 200 of the CVAP. There were an average of 5.7 poll workers per precinct and 7.9 per polling place. "

- "[T]here were at least 174,252 precincts and 113,754 polling places, for an average ratio of 1.45:1 polling places to precincts."

- Finally, on disability acces issues: "The most significant issue in this chapter is the overall lack of data. Only 26 of the 55 states and territories provided information on disability ...."

All of the above include only those jurisdictions which responded to the questions asked. It appears to be a comprehensive survey, well worth checking out.
Monday, September 26
 
Nonpartisan Election Administration
My colleague Ned Foley has this op-ed from today's Columbus Dispatch on the issue of partisanship in the administration of elections. This was the subject of a recent conference held at the Moritz College of Law, a webcast of which is now available here.

Because we are after all in Columbus, Professor Foley compares our present election system to a football game, in which one side's coaching staff also referees. This most recently because an issue in Ohio during the 2004 election, when Secretary of State Ken Blackwell was accused of making decisions to benefit his own party. Although Professor Foley favors nonpartisan election administration, he supports the proposed Reform Ohio Now amendment (Issue 5) that would create a bipartisan structure. Specifically, it would transfer the Secretary of State's election responsibilities to a bipartisan board, composed of four Democrats, four Republicans, and a ninth member appointed by unanimous vote of the state supreme court. It would also create a chief administrator chosen by the board to run things on a day-to-day basis.

I share Professor Foley's support for Issue 5. Although it may or may not be the best solution to the problem of partisanship in election administration, it's a definite improvement over the system in place in Ohio and most other states. And the truth is, we won't know for sure what the best way of administering election is, until states and local governments experiment with different structures -- and, critically, until social scientists and others take a careful look at how well those different structures work.

In related news, the Cincinnati Enquirer has this report on the campaign for and against Issue 5, and the other three Reform Ohio Now amendments. The battle is heating up, and will undoubtedly get much hotter in the weeks to come.
Saturday, September 24
 
The Last Word (for Now) on Carter-Baker
Responding to the torrent of criticism that greeted the release of their report on Monday, Jimmy Carter and James Baker offered this op-ed in Friday's New York Times. Also worth a look is this comment on the Carter-Baker Commission's report from Doug Chapin of electionline.org, who served as the Commission's research director.

Carter and Baker characterize their report as one that seeks to "bridge[] the gap" between Democrats and Republicans, and accuse some critics of "misrepresent[ing]" the report's suggestions. They devote most of their attention to the proposal that has drawn the most criticism, namely to require all voters to show "REAL ID" cards in order to have their votes counted. They acknowledge that the recently enacted Georgia requirement, which requires all voters to show photo ID, is "discriminatory," but claim that their own proposal is not. Under their proposal, all voters would have to show "REAL ID" cards, driver's licenses or alternative ID for nondrivers, issued by the state. Those who don't drive would have to obtain an equivalent photo ID from the state.

As noted by dissenting commissioner Professor Spencer Overton, this proposal is in one sense more restrictive than that of any state, since "even a valid U.S. passport or a U.S. military photo ID card" would be insufficient. Still, Carter and Baker attempt to defend their proposal on the ground that they propose to provide ID's free of charge and to persuade states to "finally assume the responsibility to seek out citizens to both register voters and provide them with free ID's that meet federal standards."

Doug Chapin, who served as Research Director for the Carter-Baker Commission, has a interesting comment in this week's electionline.org newsletter. Chapin's take is that there are actually two different questions here: 1) whether ID should be required, and 2) if we think ID is necessary, what's the best way to do it. He understands most critics to be addressing the first question, but the Carter-Baker report to be addressing the second.

My take: I'd like to read the Carter-Baker report not as advocating adoption of a photo ID requirement, but only as suggesting how ID requirements should be implemented if one thinks it's a good idea. But I can't square this interpretation with the report's language such as: "[T]he Commission recommends that states require voters to use the REAL ID card, which was mandated in a law signed by the President in May 2005." It doesn't say, for example, "if policymakers think voter ID should be required, then ..." Still, I think that Chapin's distinction between the two questions is a useful one.

The first question is whether we need a voter ID requirement at all -- or, more properly, a more stringent requirement than the modest one imposed by HAVA. As many commentators, including me, have noted, the Carter-Baker report doesn't make the case that this is a good idea. They don't, for example, analyze how common it is for people to show up to vote pretending to be someone they're not or do even a cost-benefit analysis of how many people would be impeded from voting for every fraudulent vote prevented by a stricter ID requirement. Imposing a photo ID requirement of any kind would have especially serious consequences for elderly, disabled, minority, and poor people. These are discussed at some length in the rebuttal by Professor Overton and the Brennan Center. In contrast, the Carter-Baker report is conspicuously short on evidence to support the position that the costs of requiring photo ID outweigh its benefits.

If the answer to the first question is no, we of course never get to the second question. But let's suppose that the only question that Carter-Baker meant to address is the second one: assuming arguendo that we need a stricter ID requirement, is "REAL ID" the best way to get there? Even if this is the only question, the Carter-Baker proposal is deeply problematic. It would essentially vest responsibility in the states for issuing the requiring voter ID.

As Overton and the Brennan Center point out, even if ID is provided free, obtaining the documents needed to get ID will take time and money. Carter and Baker attempt to soften this by saying that states should make "affirmative efforts" to reach out to those who lack photo ID. It says that Michigan created mobile offices to provide a range of services, including photo ID. But there's no evidence cited -- none at all -- on whether Michigan's attempt to provide photo ID to its citizens has been successful. Here as in other parts of its report, the Commission fails to back up its policy recommendations with evidence.

Moreover, there's an obvious problem with entrusting the only acceptable form of voter ID to the states alone. The chief election officials of some states will perceive it as contrary to their party's interests to register voters. While the commission recommends that states move to nonpartisan election administration -- a good idea -- it's not realistic to suppose that this transition will be complete by 2010 (and it's an open question whether any state will have nonpartisan election adminstration by then).

In a state where a disproportionate number of voters lacking ID are African American, a strongly Democratic-leaning demographic group, can we really expect a Republican Secretary of State to go out of his or her way to register them? The question answers itself, and it's hard to see how the federal government could effectively police state's efforts. What's more likely is that the state's chief election official will pay lip service to the requirement of "affirmative efforts."

Even if the chief election official is nonpartisan, legislatures aren't. What's to stop an unfavorably disposed legislature from shortchanging efforts to register new voters? The bottom line, then, is that this proposal would provide another way for partisans to rig the process to their party's advantage -- and to the voters' disadvantage.
Thursday, September 22
 
Automatic Voter Registration
Bob Fertik has this post on the Democrats.com website, reacting to the Carter-Baker report with a proposal of his own. Fertik notes that the Carter-Baker recommendation would lead to "Katrina Democracy" where those with cars (and thus with driver's licenses) could easily vote, while those without cars would have to obtain one in order to vote. Instead, he recommends registering each voter automatically using their Social Security account, but not their number, as the official registration record. It's an interesting idea, though there may be privacy concerns. But the general idea of moving closer to universal voter registration is worthy of exploration.
Wednesday, September 21
 
EAC Provisional Voting Advisory
The EAC has released this advisory (2005-006) regarding provisional voting and identification requirements. The advisory concludes that section 302 confers a right to receive and cast a provisional ballot, in the event that 1) the voter's name doesn't appear on the registration list or 2) the voter's eligibility is challenged.

According to the EAC, state voter ID requirements can't be used to bar voters from being allowed to vote provisionally. In particular, the EAC concludes that "if individuals who fail to meet Federal identification standards have the right to a provisional ballot, so must individuals who fail to meet similar state standards." It specifically mentions Arizona's Proposition 200, noting that the state can't enforce laws that "bar access to a provisional ballot." Under the EAC's advisory, state laws limiting access to provisional ballots would violate HAVA.

This is consistent with the revised opinion letter that the U.S. Department of Justice recently issued, which I discussed here. Although DOJ had previously opined that voters lacking ID could be denied a provisional ballot, its most recently opinion letter correctly concludes that voters must be allowed to cast a provisional ballot whether or not they have state-required ID.

My take: This is an important ruling. DOJ and EAC are now on the same page, in concluding that a state may not deny a provisional ballot to voters who lack ID. Thus, to the extent that a state passes a law that would require voters to show ID in order to cast a provisional ballot, that law may not be implemented -- such a law conflicts with HAVA and, under the Supremacy Clause of the U.S. Constitution, should not be given effect.
Tuesday, September 20
 
Little Confidence in "Building Confidence"
The Carter-Baker Report "Building Confidence in U.S. Elections" has generated an enormous amount of attention since its release yesterday. My impression is that the response has been overwhelmingly critical, primarily as a result of its recommendation to require voters to show "REAL ID" if they wish to have their votes counted. Here's a summary of some of the opinion so far:

- Dissenting commission member Spencer Overton has explained his disagreement with the "REAL ID" proposal and has voiced his objections to the process that the commission followed -- including limiting published dissents to a paltry 250 words. Along with the Brennan Center for Justice, Professor Overton has written a lengthy rebuttal to the commission's recommendations on ID and felon voting.

- Voting rights and good government groups, including the League of Women Voters, ACLU, and the National Association of Latino Election Officials, have condemned the voter ID recommendation.

- Today's N.Y. Times includes an editorial entitled "Denying Access to the Ballot" which argues that "the commission led by James Baker III and former President Jimmy Carter has come up with a plan that is worse than no reform at all. "

- The Washington Post, while supporting some features of the report, asserts that the ID requirement would "do more harm than good."

- While supporting the commission's recommendation for nonpartisan election administration, Rick Hasen criticizes the ID requirement as likely to "increase the divide over the fairness of election administration in the U.S." In a Christian Science Monitor article, Prof. Hasen is quoted as saying that the commissioner "squandered their political capital."

- Thad Hall and Mike Alvarez also support the nonpartisan election administration recommendation, but are concerned about the ID proposal.

- Tova Wang of the Century Foundation argues that the commission report's recommendations are "bad fixes for the wrong problems."

- I've expressed my own opposition to what I take to be cornerstones of the Commission's recommendations -- voter ID and the voter verified paper audit trail -- in yesterday's blog post and today's weekly comment.

- There's even a new website, http://www.carterbaker.com/, devoted to criticism of the commission's' report.

This is just a sampling, but you get the idea.

The only enthusiastically positive response I've seen comes from inaptly named "American Center for Voting Rights." As I've previously discussed here, this group published a report in August that -- based mostly on unconfirmed news reports -- attempted to paint the picture that fraud is rampant in the black community. So it should come as no great surprise that ACVR is one of the few unqualified supporters of the report, calling it "a real step forward in the election reform debate." With friends like those . . .

It's most unfortunate that the commission found it necessary to include its recommendations on voter ID and the VVPAT. This was a major error in judgment. Some of the commission's other proposals -- foremost among them the ones on nonpartisan election administration -- have the potential to effect genuine improvements in our election system. At least for me, the potential damage that would result from the ID proposal made it necessary to point out the reasons why this recommendation is so deeply flawed. Had the "REAL ID" recommendation been left out of the report, many of us could have focused on those provisions of the commission's report that are more worthy of implementation. As it stands, the commission's recommendations, the good ones as well as the bad ones, may well be dead on arrival.
Monday, September 19
 
Civil Rights Groups Challenge Georgia ID Law
It's a busy day on the voter ID front. A consortium of civil rights groups brought suit today to challenge Georgia's House Bill 244, charging that the laws photo identification requirement is the "new poll tax." The complaint can be found here, and a press release announcing the lawsuit here.

Plaintiffs' claims are brought under the Fourteenth Amendment, the Twenty-Fourth Amendment (prohibiting the poll tax), Section 2 of the Voting Rights Act of 1965, the Civil Rights Act of 1964, and the Georgia Constitution. Foremost among their contentions are that the ID requirement has a disparate impact upon minority voters and upon voters of limited means. Plaintiffs assert that, of the 20 states that have some type of ID requirement "only two (Georgia and Indiana) require voters to present a photo ID as the sole method of identification in order to vote."

Named plaintiffs include Common Cause of Georgia, the NAACP, the League of Women Voters of Georgia, and individual voters. Attorneys for Plaintiffs include the ACLU, AARP, Lawyers' Committee for Civil Rights Under Law, Mexican American Legal Defense and Educational Fund (MALDEF) and the NAACP Legal Defense and Educational Fund. For you civil procedure buffs, the complaint is interesting in that it seeks certification of both a plaintiff and a defendant class, because voters throughout the state are affected by the ID requirement and because officials throughout the state are responsible for implementing it.
 
A Problematic Report from Carter and Baker
The Committee on Federal Election Reform (commonly known as the Carter-Baker Commission) this morning released its final report. Commission member Spencer Overton has posted a dissent at http://www.carterbakerdissent.com/.

The commission's report addresses a wide range of voting issues, including registration, technology, accessibility, and polling place operations. The report deserves careful scrutiny . . . and there's no better time to start than the present.* For the moment, I'll focus on the two recommendations that are likely to prove the most controversial:

1. That Congress should pass a law requiring that all voting machines produce a "voter-verifiable paper audit trail" (VVPAT). For electronic voting machines, this would require that they generate a contemporaneous paper record of the ballot, that the voter could see before casting his or her vote electronically.

2. That states require voters to show a government-issued photo identification card in order to vote. Under the proposal, voters would have to show a so-called "Real ID" in order for their votes to be counted, effective 2010.

The first recommendation is one that's mostly been urged by advocates on the left, concerned with the prospect of fraud by election officials or voting machine companies. The latter is one that advocates on the right have been arguing for, ostensibly based on the need to curb fraud by voters. The report seems to be an effort to split the baby between Democrats and Republicans on these two hot-button issues. While that's problematic in itself, one would at least expect that the report would contain a reasoned argument based on evidence in support of these two recommendations.

Unfortunately, that is not what the report provides. I'll start with the VVPAT recommendation. As I've explained before on several occasions, most recently here, it's questionable at best whether the VVPAT is a workable or effective solution to the security concerns surrounding electronic voting. Although several states have recently passed laws to require this device, the only place where it's been used on any significant scale is Nevada. So in determining whether the VVPAT is a reform worth enacting, a logical place to start would be by taking a careful, evidence-based look at how well Nevada's experiment with the VVPAT has worked.

What does the report actually say? I'll quote verbatim: "In 2004, DREs with voter-verifiable paper audit trails were used only in Nevada. They appear to have worked well." (Emphasis added.) The fact that something "appear[s] to have worked well" is self-evidently not a sufficient basis for recommending costly nationwide legislation to require it. A much higher showing should be required, before government invests the considerable time and money that would be required to implement this device nationwide.

But it gets worse. There's a footnote immediately after the two sentences that I've quoted above, which cites a single source: a paper by MIT's Ted Selker, one of the two co-directors of the Caltech-MIT voting technology project. But in fact, Prof. Selker's views are precisely contrary to those attributed to him in the Carter-Baker Commission report. He's consistenly raised problems with the VVPAT, including that voters are unlikely to actually check it.

After reading this portion of the Carter-Baker Commission report this morning, I called Prof. Selker and read back to him the portion of Carter-Baker's report quoted above. Selker confirmed that this is "not what the paper says" and in fact that he says "exactly the opposite" of what's attributed to him. Prof. Selker proceeded to say there's a "higher possibility of fraud with [paper-based] technologies than with electronic ones." For anyone who's been following the VVPAT debate, this should come as no surprise whatsoever. Prof. Selker has been one of the foremost critics of proposals to require a VVPAT, questioning whether voters will really check them and suggesting that the VVPAT may actually create more problems than it solves.

What's mystifying is how the Carter-Baker Commission could have so badly misstated Prof. Selker's views. A short phone call -- like the one I had with him this morning -- could have easily cleared things up.

The report's recommendation regarding the need for photo ID is also lacking in evidentiary support. One looks in vain for any evidence that voter fraud is a widespread problem. In fact, the report admits that there's "no evidence of extensive fraud in U.S. elections or of multiple voting." What there is evidence of is that certain demographic groups are much less likely to have a driver's license than others. For example, a recent report by John Pawasarat of the University of Wisconsin-Milwaukee finds that the elderly, the poor, Latinos, and African Americans are much less likely to have photo ID. Of black males 18-24, only 22% had a photo ID. It is clear that requiring a photo ID does not affect all voters equally -- instead, it poses a special barrier for groups who are less likely to drive.

That's not to say that there are no arguments at all that can be made in favor of some type of identification requirement, as there may be for requiring a voter verifiable audit trail. The problem is that the Carter-Baker Commission report fails to take account of the evidence on these hotly debated questions. Instead of providing us with fact-based argument, the Commission's report on these two question simply regurgitates the old arguments -- and, at least with respect to voting technology, misstates the evidence that does exist.

I'll have more on this tomorrow, in the Election Law @ Moritz Weekly Comment.

Update: Professor Overton and the Brennan Center for Justice have produced an extensive rebuttal to the Carter-Baker Commission's recommendations regarding voter identification, which is available here.

* A disclosure. I'm an academic advisor to the committee, though I had no role in preparing the report and was not privy to the commission's deliberations. My only role with respect to the report consisted of preparing a memorandum on disability access issues which may be found here.
Sunday, September 18
 
EAC's Lever Machine Opinion
The Election Assistance Commission's recent advisory opinion on lever machines and the Help America Vote Act has triggered questions about whether some jurisdictions will comply with the law's 2006 deadlines for upgrading their voting systems. That advisory opinion (2005-005) finds that lever machines have barriers that make HAVA compliance "difficult and unlikely."

While HAVA doesn't outlaw lever machines per se, it does mandate that voting systems generate a permanent paper record with a manual audit capacity (not to be confused with the contemporaneous paper record that some electronic voting skeptics demand). The EAC's opinion concludes that the summary of totals generated by exisiting lever machines don't do that. For this reason, as I explained in this post, those machines have got to go.

In my earlier post, I noted that the question whether to replace lever machines was resulting in some confusion in Pennsylvania. Now, it appears that Connecticut officials are uncertain as to how they'll comply. As reported in this AP story, Connecticut still has some 3,300 lever machines. Assuming those machines don't generate a permanent paper record, they must be replaced.

Connecticut's Secretary of the State Susan Bysiewicz asserts that this will come as a "surprise," and an unwelcome one at that, to local election officials. It's hard to understand why this should be surprising. HAVA was passed in 2002 and its language is straightforward on having a manual audit capacity. Section 301(a) provides, in pertinent part:
Requirements.--Each voting system used in an election for
Federal office shall meet the following requirements:...
(2) Audit capacity.--
(A) In general.--The voting system shall produce a record with an audit capacity for such system.
(B) Manual audit capacity.--
(i) The voting system shall produce a permanent paper record with a manual audit capacity for such system.
(ii) The voting system shall provide the voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced.
(iii) The paper record produced under subparagraph (A) shall be available as an official record for any recount conducted with respect toany election in which the system is used.
It looks as though Connecticut towns that are still using lever machines will have to develop a plan of action to replace them quickly. The alternative, should they fail to comply with HAVA, is to face the prospect of legal actions brought by the U.S. Department of Justice or individual voters. And Connecticut is not likely to be the only state that is at risk of missing HAVA's 2006 deadline. The next few months should be very interesting.
Thursday, September 15
 
Toward Nonpartisan Election Administration
With an Ohio court of appeals having rejected a challenge to the use of out-of-state signature gatherers, the Reform Ohio Now amendments are now set to appear on the state's November ballot. In other words ... it's on. The Dayton Daily News has this report on some of the opening salvos in what's sure to be a take-no-prisoners fight.

One of the RON measures, Issue 5, would take responsibilities over the conduct of elections away from the Secretary of State and place them in a bipartisan board of elections. The poster-boy of this campaign is sure to be Secretary of State Ken Blackwell, who was perceived as having been motivated by partisanship in some of his decisions surrounding the November 2004 election, most conspicuously his decision to require that provisional ballots be cast in precinct to be counted and his initial decision (later reversed) to require that registration forms be on 80-lb. heavy stock paper. On the other hand, some of the decisions that Blackwell made -- most notably his decision on October 29 to exclude all partisan challengers from polling places -- actually benefitted the Democrats' position. That decision, incidentally, didn't end up going into effect because the state's (also Republican) Attorney General Jim Petro refused to give up the fight.

It's unfortunate that the issue of nonpartisan election administration is being portrayed by some, including those in the major parties, as a Democratic-Republican fight. Whether or not one agrees that Blackwell acted in a partisan fashion during the last election, it's clear that the opportunity for partisan manipulation of election rules exists. How can a chief election official who's elected as a candidate of his party be expected to conduct herself or himself with a blind eye to the partisan implications of his or her decisions? In California, for example, the former Democratic Secretary of State Kevin Shelley was accused of misusing his office for partisan activities. And it's quite possible that the next Secretary of State in Ohio will be a Democrat. Thus, it's simply wrong to view this measure as a Democratic vs. Republican fight, even if some partisans see it that way.

Issue 5 would place responsibility for running elections in a board of nine people. Four would be appointed by the Governor, four by the other major party, and the last by unanimous vote of the state supreme court. Quite clearly, that ninth vote would hold considerable power -- you might call that person the board's Justice O'Connor.

Will this structure work? It certainly increases the likelihood that election responsibilities will be administered without regard to partisan implications. It also decreases the likelihood of those decisions being perceived as partisan in motivation. The risk is that it makes it more difficult to make decisions, particularly on short notice, resulting in paralysis. For example, there's a possibility that the board would have trouble agreeing on directives when new issues arise close to election day. On the other hand, the provision of Issue 5 under which the board would appoint a director of elections -- effectively a chief executive officer -- should mitigate this risk.

The bottom line: I think that Issue 5 is a reform worth supporting. We clearly have a problem with partisanship, probably in reality and certainly in appearance. And when it comes to elections, appearances do matter. It may not be the best imaginable solution, but the truth is we simply don't know what the best way of running elections at the state level is yet. We need to experiment, and Issue 5 is an experiment that might well work.
Tuesday, September 13
 
National Academies on Electronic Voting
The National Research Council of the National Academies has released a report entitled "Asking the Right Questions About Electronic Voting." The report is available here and the executive summary may be found here. The report is the product of the National Academies' Committee on a Framework for Understanding Voting co-chaired by Richard Celeste and Dick Thornburgh. It's quite lengthy, but it appears to be a careful and comprehensive evaluation of the difficult questions raised by electronic voting technology. Here's a summary from the report's conclusion:
The committee believes that electronic voting systems offer potential for voting and election management that is an improvement over what has thus far been avaialble. However, the realization of this potential requires a commitment to this path by the nation, the states, and the local jurisdictions that is not yet evident....

[T]his commitment must be understood as an ongoing effort that includes support for a new national research process, with research laboratoriesat the national, regional, or state levels; the implementation of research and development efforts to resolve the security and usability issues associated with existing and new election technologies; a lasting commitment to open and dynamic standards, testing, and certification efforts for election technologies; and ongoing efforts to educate election officials, poll workers, voters, and the general public about these new election technologies....

Moreover, judgments about the ultimate desirability and feasability of electronic voting systems should not be limited to the features and flaws of the systems demonstrated to date. Today's debate over electronic voting has been framed largely by the examination of electronic voting products available today....

The committee also belies that trusted election processes should be regarded as the gold standard of election administration, where a trusted election process is one that works, that can be shown to have worked after the election has been held, that can be shown to have not been manipulated and to have not led to a large number of mistaken or lost votes, and that can be shown to reflect the intent of the voters.
To its credit, the committee avoid getting sidetracked by the question of whether to require voter-verified paper audit trails, instead recognizing that this debate is part of a larger set of questions regarding security, accessibility, accuracy, and administrability. It does, however, make the salient point that the VVPAT debate "has been carried out in the absence of substantial empirical data about how a VVPAT would actually work in the context of direct recording electronic systems," highlighting the need to test arguments for and against its use. Michael Alvarez has more in this post on the Election Updates Blog that he and Thad Hall recently started.

My take: While I've had a limited opportunity to read this report, my initial reaction is that it takes an unusually constructive approach to the issues raised by electronic voting technology. Particularly valuable is its emphasis on taking a long view, on empirically testing proposed solutions, and on commiting substantial resources to promoting improvements in voting systems on an ongoing basis. As I argue in my recent article "The Paperless Chase: Electronic Voting and Democratic Values," the project of improving voting systems is not one that will end this year, next year, or by the next presidential election. It is instead an ongoing process to which we as a nation must be prepared to commit resources beyond the three-fiscal-year horizon set forth in HAVA. The challenge is in figuring how to promote improvements in voting technology, while at the same time safeguarding basic democratic values such as accuracy, security, transparency, and equal access.
Monday, September 12
 
The Roberts Hearings
Today was the first day of hearings before the Senate Judiciary Committee on whether to confirm John Roberts as Chief Justice of the United States Supreme Court. The New York Times has this report and this transcript. In his opening statement, Judge Roberts unsurprisingly sought to portray himself as a believer in judicial restraint, quipping that judges are like umpires and "Nobody ever went to a ballgame to see the umpire."

But what exactly does judicial restraint mean? Does it mean that he will avoid seeking to act as a "super-legislature"? Will he shy away from the aggressive scrutiny of congressionally enacted civil rights laws that has characterized the Rehnquist Court? These are questions that have particular salience in the area of democratic equality, given that key provisions of the Voting Rights Act are set to expire in 2007. If these portions of the Act are reauthorized, will the Supreme Court uphold them, or invalidate them on the ground that Congress has exceeded its powers?

This is the set of questions upon which Senate Judiciary Committee Chair Arlen Specter (R-PA) honed in during his opening statement. Here's a sample:
I'm very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the court. I am concerned about what I bluntly say is the denigration by the court of congressional authority.

When the Supreme Court of the United States struck down a portion of the legislation to protect women against violence, the court did so because of our, quote, method of reasoning, close quote. And the dissent noted that that had carried the implication -- the implication of judicial competence. And the inverse of that is congressional incompetence. And after 25 years in this body and on fact-finding, and there was an extensive record made in the case in the legislation to protect women against violence, the court simply disregarded that....

The Americans with Disabilities Act had a very extensive record. But when the case came up in 2001, Garrett, a woman who had breast cancer, the Supreme Court said that the section of the act was unconstitutional.
In my view, Senator Specter is right on target in focusing attention on this area. The biggest question on his mind, as well as mine and many others', is where Judge Roberts stands on these pivotal questions.

It is no mere speculation that these matters will be before the Roberts Court very soon. Congressional authority to provide remedies for civil rights violations is the central issue in the consolidated cases of Goodman v. Georgia and United States v. Georgia, which call into question a key portion of the Americans with Disabilities Act (Title II). At issue is the extent of Congress' power to prohibit discrimination by public entities, specifically the State of Georgia's prison system. While those cases don't directly involve voting, they have clear implications for political equality. That's not only because Title II of the ADA covers voting discrimination against people with disabilities, but also because the Court's ruling in this Georgia cases could provide an important signal on whether it will uphold a renewed Voting Rights Act.

Don't expect Judge Roberts to answer specific questions on how he'd rule on the Georgia cases. In my view, it's legitimate for him to decline to say how he'll rule in a specific case. But he does have a responsibility to explain the approach that he'll take in evaluating civil rights laws passed by Congress. Will he embrace the activist position endorsed by his predecessor, supporting the Court's acting as a "super-legislature" when it comes to civil rights laws passed by Congress? Or will he truly follow the philosophy of judicial restraint to which he purports to subscribe, by upholding such laws?
Friday, September 9
 
Arizona AG Signs Off on ID Changes
The Arizona Attorney General has signed off on the Secretary of State's latest plan for implementing Proposition 200's ID requirement. Under the plan, which I've previously discussed here, voters who lack the required ID would be allowed to cast a provisional ballot but it won't be counted unless the voter comes back with ID. The Arizona Republic has this report. The Arizona AG's letter states that the proposal will be submitted to the U.S. Department of Justice for expedited preclearance, which will probably be forthcoming.
Thursday, September 8
 
Independent Election Administration Conference
Tomorrow and Friday, Election Law @ Moritz will be hosting a conference on "Independent Election Administration: Who Counts the Votes and Who Draws the Lines." The schedule can be found here. The confirmed participants include:
Richard Briffault, Joseph P. Chamberlain Professor of Legislation, Columbia Law School
Adam B. Cox, Assistant Professor of Law, University of Chicago
Christopher Elmendorf, Acting Professor of Law, University of California, Davis
Edward B. (Ned) Foley, Robert M. Duncan/Jones Day Designated Professor of Law, The Ohio State University
Heather K. Gerken, Professor of Law, Harvard University
Richard L. Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles
Steven Huefner, Associate Professor of Law, The Ohio State University
Samuel Issacharoff, Harold R. Medina Professor in Procedural Jurisprudence, Columbia University
Ellen D. Katz, Professor of Law, University of Michigan
David Kimball, Associate Professor of Political Science, University of Missouri-St. Louis
Daniel Hays Lowenstein, Professor of Law, University of California, Los Angeles
Ray Martinez III, Commissioner, U.S. Election Assistance Commission
Kay J. Maxwell, President, League of Women Voters
Spencer A. Overton, Associate Professor of Law, George Washington University
Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University
Daniel Tokaji, Assistant Professor of Law, The Ohio State University
Commssioner Martinez will be presenting the keynote at noon tomorrow.
Wednesday, September 7
 
More RFP from the EAC
The Election Assistance Commission today released three more requests for proposals for election-related research. The first one (#05-05) addresses best practices for poll worker recruitment, retention, and training, and the second (#05-06) the recruitment, retention and training of college poll workers. The last one (#05-07), which doesn't appear to be posted on the EAC's website yet, is for the development of best practices on vote count and recount procedures. All three have deadlines of this coming Monday (!), September 12, so if you're interested ... better start writing that proposal.
 
Wanna Build a Legal Resources Clearinghouse?
Well, if that subject heading intrigues you, this may be your lucky day. The Election Assistance Commission has issued a request for proposals to research and build a "legal resources clearinghouse" covering election administration. This is being done pursuant to section 202 of the Help America Vote Act, which requires the EAC to serve as a national clearinghouse for information on the conduct of federal elections. The EAC's goal is to provide a central respository for information regarding the election laws of the states and territories. That includes constitutional, statutory, and regulatory provisions, as well as decisional law, on both HAVA and the National Voter Registration Act (aka, "Motor Voter"). The goal is to have all of this information available via the web -- you might call it one-stop shopping for election administration laws. It's a major undertaking, and obviously an important one. Proposals are due on September 13, 2005.
Tuesday, September 6
 
Arizona's Plan B
In the wake of the U.S. Department of Justice's correction of its earlier guidance on HAVA's provisional ballot requirements, Arizona's Secretary of State Jan Brewer has come up with a new plan for implementing Proposition 200, which was approved by voters in November 2004. Under this proposed plan, voters who appear at the polls without identification would be entitled to receive a provisional ballot. That ballot would be counted, however, only if identification is presented by the Friday following the election. The plan states, in pertinent part:
If the elector does not provide identification as required by A.R.S. §16-579(A), the elector shall be issued a provisional ballot. The provisional ballot envelope shall indicate that the elector did not provide identification. The poll worker shall notify the elector that he or she must provide identification as required by A.R.S. § 16-579(A) to the county recorder in the elector's county of residence for receipt by 5:00 p.m. on the Friday following the election in order for the provisional ballot to be processed and counted.
While this new proposal may comply with HAVA's requirement that voters be allowed to cast a provisional ballot whether or not they have ID, it's questionable whether it complies with Arizona law. The Mexican American Legal Defense and Educational Fund today sent this response to Arizona's Attorney General. MALDEF argues that the Secretary of State lacks the authority to rewrite Proposition 200.

Is that what the Secretary of State has done? While Brewer purports to be giving effect to the "intent" of the voters who enacted Proposition 200, a reading of that initiative's text suggests that MALDEF is correct. Proposition 200 provides that "before receiving his ballot," each voter must "present one form of identification that bears the name, address and photograph of the elector or two different forms of identification that bear the name and address of the elector." Trouble is, that requirement is flatly in conflict with HAVA, which entitles voters to receive and cast a provisional ballot whether or not identification is provided.

It may be that Arizona voters would enact something along the lines of what the Secretary of State is proposing, if given the opportunity to do so. But that's not what the electorate did. Instead, they passed something that, on its face, is in conflict with federal law. Why Proposition 200's drafters wrote the initiative in this way is puzzling -- one can only surmise that they didn't read HAVA's key provisions ahead of time.
Sunday, September 4
 
The Unrestrained Rehnquist Court
Chief Justice William Rehnquist died yesterday at the age of 80 in his home in Arlington, Virginia. There can be no question that his impact on American law has been enormous, rivalling that of any justice since Chief Justice John Marshall. His tenure was marked by an emphasis on avoiding interference with state power, limiting judicial protection for individual rights, and curbing federal power, particularly that of Congress.

Among the most curious aspects of the response to Chief Justice Rehnquist's death is the assertion that "judicial restraint" was a hallmark of his jurisprudence. To the extent this this refers to an unwillingness to use federal power to stop inequalities perpetrated by state and local government, this characterization has considerable truth to it. For example, the Chief was a longtime opponent of efforts by the federal judiciary to integrate public schools -- stretching back to his days as a law clerk to Justice Jackson. In the Brown v. Board of Education litigation, Rehnquist wrote an infamous memorandum supporting the "separate but equal" doctrine. For many years after he ascended to the Court, he opposed the federal courts' continuing efforts to desgregate public schools. If judicial restraint refers to an unwillingness to use federal courts' power to achieve racial integration, then this is a fair characterization of his philosophy.

In another sense, however, the jurisprudence championed by Chief Justice Rehnquist was the antithesis of judicial restraint. Although L.A. Times quotes the Chief's statement that the Court ought not be a "roving commission to second-guess Congress," in reality the Rehnquist Court was unabashed in second-guessing Congress, particularly with respect to civil rights legislation. In a line of cases starting with City of Boerne v. Flores, the Court struck down (at least in part) a number of laws passed by Congress to protect civil rights, including the Religious Freedom Restoration Act, the Americans with Disabilities Act, and the Violence Against Women Act. The basis for all these rulings was that Congress exceeded its power to protect civil rights under the Fourteenth Amendment to the U.S. Constitution. And the Chief was a leading force -- arguably the leading force -- in this line of cases.

This is not the only area in which the Rehnquist Court's jurisprudence has been the opposite of "restrained." Another characteristic of Chief Justice Rehnquist's jurisprudence has been its active interference with state efforts to remedy racial inequalities. The Chief was a vehement opponent of state and local affirmative action programs, consistently voting to strike those programs down as unconstitutional in decisions starting with Regents v. Bakke and ending with split decisions in the University of Michigan affirmative action cases (Grutter and Gratz). He also championed a line of cases, starting with 1993's Shaw v Reno, that limited the state's power to protect voting rights by creating majority-minority districts.

It's therefore misleading at best to characterize Chief Justice Rehnquist's philosophy as one of "judicial restraint." In fact, his philosophy led to unprecedented judicial "second-guessing" of federal civil rights statutes and of race-conscious policies designed to promote racial equality.

These two strands of jurisprudence will likely converge in the very near future. One of the matters that is very likely to come before the Court in coming terms is the constitutionality of the Voting Rights Act. Portions of the VRA expire in 2007, but will likely be renewed by Congress. If that happens, the post-Rehnquist Court is almost certain to be faced with the question whether Congress has exceeded its power in renewing the VRA. Judicial restraint would counsel in favor of upholding the Act. But the decidedly unrestrained philosophy of Chief Justice Rehnquist would push the Court in the opposite direction.

It's uncertain what will happen next. There's already considerable speculation that the White House will pick John Roberts, whose confirmation hearings are scheduled to start next week, to fill Chief Justice Rehnquist's spot. This would require the President to find someone else to fill the slot being vacated by Justice O'Connor. Whoever the nominee is, it will be essential for Congress to inquire into his or her views on"judicial restraint," especially when it comes to legislation protecting the right to vote and other civil rights.
Thursday, September 1
 
DOJ "Clarifies" Position on ID & Provisionals
The U.S. Department of Justice today issued this letter to Arizona's Secretary of State Jan Brewer, regarding provisional ballots for voters who lack identification. The letter explains the Help America Vote Act's requirements regarding the casting and counting of provisional ballots. Although the letter's stated purpose is "to clarify" the Department's position, in reality this letter retracts the position that Justice Department took in an April 15, 2005 letter to Secretary Brewer, which I discussed in this post ("Not Your Father's Justice Department").

A bit of background may be helpful. The correpondence concerns the State of Arizona's implementation of Proposition 200, which includes identification requirements for voters that are stricter than those applicable under HAVA. On April 5, 2005, Secretary of State Brewer wrote to request advice on how HAVA's requirements should be interpreted. In its April 15 response, the Justice Department opined -- quite clearly in error -- that states could deny provisional ballots to voters lacking ID, without running afoul of HAVA.

Today's letter makes clear that the DOJ's April 15 opinion letter was incorrect, and that voters are entitled to receive and to cast a provisional ballot, even if they lack ID. The new letter states that "HAVA requires State to allow voters who meet certain specified conditions the opportunity to cast a provisional ballot." Specifically, voters who execute a written affirmation that they are registered and eligible to vote are entitled to cast a provisional ballot.

What this means in practical terms for the State of Arizona is that its proposed plan for implementing Proposition 200, under which provisional ballots would not be issued to voters lacking ID, does not comply with HAVA. As I discussed here, here, and here -- and as even the Justice Department now concedes -- it violates HAVA to deny those voters a provisional ballot. (Tova Wang has more on the Arizona law in this commentary.)

While DOJ deserves some credit for correcting itself, its latest letter still falls short in one significant respect. In particular, the letter suggests that states may do indirectly what HAVA plainly prohibits them from doing directly. DOJ accurately states that HAVA draws a distinction between who must be allowed to cast a provisional ballot and which provisional ballots should be counted. And they're certainly correct that HAVA gives states more latitude when it comes to counting than it does with distributing provisional ballots. In particular, HAVA provides that the determination of which provisional ballots to count should be made in accordance with state law on who is "eligible."

Where DOJ goes wrong, in my opinion, is in suggesting that the state's vote-counting discretion is unlimited. For example, DOJ says that "if an individual who casts a provisional ballot does not comply with a State's identification requirement, the State is under no obligation to count the ballot." The implication is that the state could adopt a rule that it will not count any provisional ballots cast by those who come to the polls without ID. In other words, you have a right to cast a provisional ballot but it's an empty right because it won't be counted . . . "Gotcha!" The only cases that DOJ cites for this proposition are ones from Ohio, Florida, and Missouri, which address whether provisional ballots must be counted if cast in the "wrong precinct." This is obviously a different issue from whether a state may reject all the provisional ballots of those who lack ID.

On this point, it's important to pay special attention to a section of HAVA that DOJ's latest letter buries in a footnote (#1). Its section entitled "fail safe voting" specifically provides that those voters who appear at the polls without the identification required by HAVA must be allowed to cast a provisional ballot. 42 USC 15483(b)(2)(B). Congress couldn't have meant to require that states provide all those voters with provisional ballots, while at the same time allowing states to count none of their ballots. To do so would be truly perverse -- the equivalent of giving voters dummy ballots that have no chance of being counted. And if this is true for those voters who don't meet HAVA's relatively lenient ID requirements, it should be doubly true for voters who are subjected to more stringent ID laws passed by the states.

What states can do is to enact rules that will provide a reasonable means of establishing whether the voter who comes to the polls without required ID is in fact "eligible." One way of doing this is the means upon which the State of Ohio settled in the past election. Voters subject to HAVA's ID requirement who came to the polls without ID were allowed to orally provide their driver's license number or the last four digits of their social security number, either when they vote or by the time the polls closed. The provisional ballots were then to be counted if that information was subsequently verified. With the statewide registration databases that must be in place by 2006, it should be a relatively easy matter to ascertain whether that information "matches" what's in the state's system, and to count those provisional ballots.

Bottom line: It's a very good news that DOJ has corrected the erroneous interpretation of HAVA that it offered back in April. This means that the State of Arizona will have to retool its plan for implementing Proposition 200 . . . and may well call into question whether that proposition violates federal law on its face. On the other hand, to the extent that DOJ's latest letter means to suggest that states may discard all the provisional ballots of those who come to the polls without ID, it's still not offering a reading of the statute that's consistent with HAVA's "fail-safe voting" procedure.

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Moritz College of Law The Ohio State University