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
Saturday, October 29
 
Ohio Gov Signs No-Fault Absentee Bill
Ohio Governor Bob Taft has signed a bill allowing voters to receive and vote mail-in absentee ballots, whether or not they have an excuse for not voting in person. The A.P. has this report on the bill (H.B. 234), and my prior thoughts on this bill may be found here. An important feature of this new law is that it requires voters to presents some form of identification -- although not necessarily photo identification -- in order to cast their votes. More specifically, it allows voters to provide the other forms of identifying information allowed by the Help America Vote Act (including such things as a utility bill and the last four digits of one's social security number) . The bill is therefore much less restrictive than photo ID bills recently enacted by Georgia and Indiana. While a substantial percentage of elderly, disabled, poor and minority voters lack state-issued photo ID, more people will have one of the alternative forms of identifying information allowed in Ohio.

As the Toledo Blade reported here, Democrats are asserting that the Republican-dominated state-legislature enacted this bill in order to take the wind out of the sales of Issue 2, a measure that's on the November 8 ballot. Like the legislation just signed by the Governor, Issue 2 would institute no-fault absentee absentee. But unlike the just-passed legislation, Issue 2 doesn't require voters to provide identifying information. Because Issue 2 is a constitutional amendment, its provisions would presumably control if there's a conflict between its requirements and those of the law passed by the state legislature.

My take: Is no-fault absentee a good idea? While I generally think that concerns about voting fraud are considerably overblown, mail-in voting fraud is the one area of our election system where it's genuinely difficult to police fraud. Put simply, not too many people go to the polls pretending to be someone they're not -- it's a high risk, low reward strategy. But there have in the past been some attempts to manipulate mail-in ballots, especially in smaller local elections.

It's therefore ironic that some of the same conservatives who have been railing against fraud in hopes of enacting an exclusionary ID requirement are now seeking to expand no-fault absentee voting. This anomoly was in fact one of the things that led a Georgia federal court to strike down that state's photo ID requirement for those who vote at the polls. In Ohio, the legislature has imposed a modest identification requirement, but it's not likely to do much good. That's because the problem with mail-in voting is that it allows someone other than the voter to see (or even vote) the voter's ballot. This gives rise to the possibility of vote-selling -- something that's just not possible with in-person voting -- and isn't mitigated by requiring voters to provide identifying information with their ballots. Also, there's some evidence that those who vote by mail make more mistakes, and are therefore less likely to have their votes counted than in-person voters. The new Ohio law's requirement will thus pose an impediment to voting, albeit a modest one, without appreciably enhancing ballot security.

The goal of making voting more convenient is a worthy one, but a much better way to go about achieving this objective is to institute in-person early voting. This would be allowed, but not required, by Issue 2. Such a measure would expand access without sacrificing integrity.
Thursday, October 27
 
11th Circuit Denies Stay in Georgia ID Case
The U.S. Court of Appeals for the Eleventh Circuit has denied a stay of a federal district court decision last week, which enjoined a voter ID law enacted by the Georgia legislature. That law, as described here, requires voters to show government-issued photo ID to vote at the polls. Voting rights advocates argued that such a requirement would impose a barrier to many voters, particularly people of color who are disproportionately likely to lack ID. The brief order from the Eleventh Circuit may be found here, and the district court's preliminary injunction order here. The Eleventh Circuit's order does grant the state defendants' motion for expedited review. Briefing is to be completed by the end of January 2006, and oral argument will then be scheduled.
Tuesday, October 25
 
Accurate and Secure Voting Systems
Commissioner Ray Martinez of the U.S. Election Assistance Commission has a comment in today's Roll Call on "How to Ensure Accurate, Secure Voting Systems." The comment discusses EAC's efforts to use the National Software Reference Library maintained by NIST, to serve as a repository for voting systems software. The basic idea is to require voting system vendors to deposit their software in the library upon completion of the certification process. A subscription is required to view the comment, but here's a snippet:
In the coming weeks, the EAC is expected to vote on a series of proposed final standards which, among other things, would require that all voting system software, including installation programs and third-party software, be deposited with the NSRL upon completion of a national voting system certification process, in which 41 states currently participate.

This means that a local election administrator will be able to verify that the operating software installed in the election management systems used in that local jurisdiction is exactly the same as the software for that particular system that was certified by an independent testing authority and deposited with the NSRL. Additionally, any irregular or suspicious files could be identified when a local election administrator utilizes the NSRL....

[E]ven the most avid critics of electronic voting systems concede that the use of the NSRL in the election process is a practical step toward providing added security measures for electronic voting machines.
In contrast to some of the proposals that have received much more attention, this is a promising step forward. It provides a constructive way by which local election officials can actually verify that the software running on their voting systems is that which was approved. In the wake of the recent GAO report which raised concerns about the manner in which electronic voting is being implemented, Martinez and the EAC's actions are a welcome and constructive contribution to ongoing efforts to make the voting process more secure.
Monday, October 24
 
Tomorrow's Voting Rights Act Hearing
The third in a series of congressional hearings on the Voting Rights Act is scheduled to take place before the House Judiciary Committee tomorrow morning. An overview may be found here, and a press release from the committee here. Tomorrow's hearing will focus on the continuing importance of Section 5 of the VRA in deterring discriminatory voting practices. Among those testifying are Laughlin McDonald of the ACLU, Anita Earls of the University of North Carolina, Nina Perales of MALDEF, and Richard Engstrom of the University of New Orleans. All of these folks are people of enormous knowledge regarding the real-world, continuing impact of the VRA. Meanwhile, the Leadership Conference on Civil Rights has released this summary of testimony from earlier hearings, including historical background on the VRA's implementation.
Sunday, October 23
 
Voting Rights, in South Carolina and Elsewhere
On Friday, I attended a conference on the Voting Rights Act entitled The Promise of Voter Equality, graciously hosted by the University of South Carolina Law School. It was an excellent conference, featuring some lively exchanges on both the past and the future of the Voting Rights Act of 1965. Few would dispute that the VRA was enormously successful in dismantling barriers to participation, such as literacy tests that kept African Americans from voting throughout most of the South. Voter registration increased dramatically in South Carolina and other southern states within two years of the Act's passage. But the elimination of direct barriers to participation achieved only limited success in integrating state legislative bodies and Congress.

During the 1980's and 1990's, the U.S. Department of Justice exerted pressure on state legislatures to create majority-minority districts. This resulted in a substantial increase in the number of African Americans and Latinos elected to office. In 1992, for example, the State of North Carolina elected its first African Americans to Congress since the turn of the century, both from majority-black districts. These districts were almost immediately challenged by whites, who emphasized their "bizarre" shape and argued that their creation violated the "colorblindness" principle upon which the Supreme Court had relied in its cases striking down race-conscious affirmative action programs. In a series of cases starting with Shaw v. Reno (1993), the Court recognized a new type of claim, allowing white voters to challenge majority-minority districts if race was the "predominant factor" in their creation.

There are still those who believe that the "bizarre" shape of these majority-minority districts is more offensive than the fact that minorities were absent from state congressional delegations before those districts were drawn. Looking forward, it's far from clear that the gains that have been made in minority representation will continue, unless states are compelled to take race into consideration in drawing district lines. The racial polarization of the electorate remains an unfortunate fact of life -- many whites are still unwilling to vote for minority candidates. As long as that continues to be the case, the Voting Rights Act will continue to play a vital role in democratic politics.

The drawing of district boundaries is not the only area in which threats to political equality remain. Recent efforts to require government-issued photo ID also threaten to diminish minorities' political power, given that they are statistically less likely to possess drivers' licenses, the most common form of ID. This issue has recently come into the fore in Georgia and Indiana, which enacted ID laws despite the absence of evidence that they're needed to combat fraud. While ID proponents of course disavow any racist intent, race is a crucial part of the backdrop as I've described here and here. A district judge has preliminarily enjoined Georgia's law and, on Thursday, denied a stay, moving the battle to the Eleventh Circuit Court of Appeals. In my remarks at the South Carolina conference on Friday, I noted that the applicability of the Voting Rights Act to such election practices will be a crucial issue in months to come.

While in South Carolina, I made a point of visiting the state house, in front of which stands a monument to confederate soldiers who died in battle along with a confederate flag. This was the resolution of a long-running controversy which ended only a few years ago, over whether to remove the flag from the top of the statehouse. The display is a vivid reminder that, in South Carolina as throughout the country, race and politics remain intertwined.
Thursday, October 20
 
The Voting Rights Act, Yesterday, Today and Tomorrow
The House Judiciary Commitee had its second oversight hearing on the Voting Rights Act today in Washington. According to this press release, today's witnesses were Maryland Lt. Gov. Michael Steele, legendary voting rights attorney Armand Derfner, former DOJ attorney Gerry Herbert, and LULAC's Jose Garza. As I mentioned here, the first hearing on the VRA was on Tuesday.

The A.P. reports that there may be a dozen or more hearings on whether to authorize key provisions of the VRA that expire in 2007. Laughlin McDonald of the ACLU Voting Rights Project comments that, while reauthorization is likely, the hearings provide a crucial opportunity to build the record that will be necessary if the reauthorized act is to be upheld against constitutional challenge.

Tomorrow, the University of South Carolina Law Review will be hosting a conference on the Voting Rights Act tomorrow, on The Promise of Voter Equality: Examining the Voting Rights Act at 40. See here for more information. Among the panelists are Laughlin McDonald, Loyola Law School's Rick Hasen, Debo Adegbile of the NAACP Legal Defense Fund, and Grant Hayden of Hofstra. I'll be appearing on a panel regarding obstacles to minority voter participation with Fordham's Terry Smith, where I'll be talking about voter ID laws and other ongoing issues in the administration of elections.
Wednesday, October 19
 
More on Georgia ID Decision
I've had a chance to read through U.S. District Judge Harold Murphy's 123-page order, which blocks the State of Georgia's recently enacted photo ID law (HB 244). That law required voters appearing at the polls to show government-issued photo ID, but allowed mail-in absentee voting without any such requirement. Georgia's one of only two states to require photo ID in order to vote. (The other is Indiana, whose recently enacted photo ID law is also being challenged.) Here are some of the highlights from Judge Murphy's opinion:

- The order relies heavily on the lack of evidence that voter fraud at the polling place is common. In fact, the evidence includes a statement from the state's chief election official, Secretary of State Cathy Cox, that she "cannot recall one documented case of voter fraud ... that specifically related to the impersonation of a registered voter at the polls." In other words, the only problem that the Georgia law purports to deal with is a non-problem. This supports the conclusion that the voter fraud arguments we've heard so much about are a pretext for disenfranchisement.

- Judge Murphy also notes that, at the time of enacting its new photo ID requirement, the state also raised the minimum fee for a five-year photo ID card from $10 to $20. That may not be much for most people, but is a lot for those on fixed or otherwise limited incomes. While the state says it will provide free ID cards to those who declare that they are "indigent," one can easily imagine that some would feel it embarrassing or insulting to their dignity to make such a declaration. Others don't believe themselves "indigent," while still needing to spend that $20 elsewhere -- say to pay for groceries for their children or pay the rent. In fact, the opinion notes that plaintiffs filed in evidence numerous declarations from such people.

- The opinion notes that there is some evidence of fraud with mail-in absentee ballots over the years. This is understandable, given that it's practically impossible to monitor who's actually completing absentee ballots, or to ensure that the privacy of the ballot (which protects against vote buying and selling) was preserved. By contrast, a voter who goes to a polling place pretending to be someone whom she's not is taking a big gamble -- it's a high risk, low reward strategy. The irony is that Georgia's law actually makes it easier to cast an absentee ballot, while imposing an ID requirement for in-person voting where fraud is much less likely.

- The court concludes that there's a substantial likelihood that the Georgia ID law imposes an undue burden on the right to vote, in violation of the Fourteenth Amendment to the U.S. Constitution. It finds that the laws isn't narrowly drawn to serve its purported justification of curbing fraud, and thus doesn't meet the strict scrutiny applicable to infringements on the right to vote. Alternatively, the court finds that the law probably isn't rationally related to the goal of curbing fraud, especially given Secretary of State Cox's testimony and the fact that the state has expanded absentee voting. If it were really serious about curbing fraud, that's the area where it would focus.

- The court also concludes that the Georgia ID law amounts to an impermissible poll tax, in violation of the Twenty-Fourth Amendment to the U.S. Constitution. While Georgia of course hasn't labeled its ID requirement a tax, the Court concludes that labels aren't dispositive. The fee for getting a photo ID card functions as a poll tax, by imposing a greater burden on those of lesser means.

- Interestingly, the court does not find their to be a probable violation of Section 2 of the Voting Rights Act of 1965, which prohibits practices that result in the denial of the vote on account of race. In 1982, this law was amended to impose a results test rather than an intent test. Judge Murphy finds the evidence that African Americans have lower incomes and are less likely to have a car insufficient. He leaves open the possibility, however, that this claim could be supported by additional evidence later. A recent study in Wisconsin, for example, showed that African Americans and Latinos in that state were much less likely to have drivers' licenses than other citizens. If the plaintiffs could come up with similar evidence with respect to Georgia, this would support their Section 2 claim.

In related news, I've posted this weekly comment on the Election Law @ Moritz site entitled "The Moneyball Approach to Election Reform." By that, I mean an approach that relies on empirical research and rigorous analysis, rather than anecdotes and seat-of-the-pants judgments. Unfortunately, most of the arguments for restrictive photo ID laws have been of the latter sort. Those arguments have glossed over the lack of evidence showing that fraud at the polling place is a significant problem, and have disregarded the disproportionate impact that photo ID laws will likely have on people of color, language minorities, disabled voters, elderly voter, and of course people of low income.

Thankfully, the district court's opinion looks behind the false assumptions that have motivated the push for voter ID. The Georgia case is almost certainly on its way up to the Eleventh Circuit Court of Appeals. Let's hope that court sees things the same way.
Tuesday, October 18
 
Federal Court Enjoins Georgia Voter ID Law
The United States District Court for the District of Georgia has issued a preliminary injunction against a Georgia state law, requiring voters to show government-issued photo ID in order to exercise the right to vote. The 123-page preliminary injunction order may be found here. The Court's order finds that there's a substantial likelihood that the ID law violates the right to vote under the Fourteenth Amendment to the U.S. Constitution. More to come ...
Monday, October 17
 
Guest Blogging at Blackprof.com
This week and next, I'll be guest blogging on blackprof.com, a site started by several prominent African American law professors. My first post may be found here. I'll be cross-posting here and there, to the extent that there are items that seem appropriate for both spaces.
Sunday, October 16
 
Voting Rights Act Hearings
On Tuesday, the House Judiciary Committee will hold the first of a series of hearings on the Voting Rights Act of 1965, key provisions of which expire in 2007. The expiring provisions include Section 5, which requires preclearance of changes in certain "covered" jurisdictions, and Section 203, which requires language assistance in jurisdictions with concentrations of non-English proficient voters. The committee's hearing schedule may be found here, and it appears that the hearing will be webcast. Committee Chair James Sensenbrenner, who is on record as supporting reauthorization, issued this press release last month about what the committee hopes to accomplish.

My take: With strong support from legislators on both sides of the aisle, it seems very likely that the VRA will be reauthorized. These hearings are nevertheless very important for at least two reasons. First, they give Congress the opportunity to examine whether there are ways in which the Act should be strengthened. One area of particular concern is the partisanship that appears to have infected certain aspects of the Department of Justice's decisionmaking, most recently its decisionmaking on the question of voter ID. One question Congress should examine is whether there are modifications to the preclearance process that might be made to remove or ameliorate the threat that the party in control of the White House -- and therefore the Justice Departmant -- will manipulate the process to its own advantage.

The second reason why these hearings are important is to make a record for the inevitable court challenge, in the event that the VRA is reauthorized. The Court's federalism decisions in the past few years suggest that it will be essential for Congress to establish a strong record demonstrating the continuing necessity of the Act. This record should include evidence that the Act remains necessary to prevent ongoing discrimination against racial and language minorities with respect to the right to vote.
Thursday, October 13
 
Ohio: No Fault Absentee ... If You've Got ID
A committee of the Ohio Senate has approved a bill that would liberalize absentee voting, while requiring voters to provide identifying information at the time they apply for their absentee ballots. The AP has this report and the bill (H.B. 234) may be found here. The Senate's State and Local Government and Veterans Affairs Committee recommended the bill by a 6-3 vote, over Democratic objections. If enacted, voters would no longer be required to provide an excuse -- such as disability, religious holiday, or incarceration -- to vote absentee. Voters would, however, be required to provide their drivers' license number, last four digits of their Social Security number, a photo ID, a utility bill, or some other document showing their name and address. In other words, all absentee voters would be required to show "HAVA ID" (i.e., the forms of identification allowed by HAVA). This goes beyond HAVA, which requires such identifying information only of first-time voters who registered by mail.

My take: The identification required by the Ohio bill is less onerous than that contained in recent laws enacted in Georgia and Indiana, which require that voters show photo identification in order to have their votes counted. At the same time, it's not at all clear that Ohio's proposed requirement will do much to decrease fraud. I do think that absentee voting is the part of our election system that's most susceptible to fraud. That's because it's the one place where the anonymity of the vote may be compromised. With mail-in absentee ballots, it's possible for someone to pay me to vote a certain way. This isn't possible with in-precinct voting, since the privacy of the voting booth prevents anyone else from verifying how I've voted -- thus making it practically impossible to buy and sell votes.

Absentee voting is therefore vulnerable to fraud in a way that in-precinct voting isn't. The problem is that an ID requirement won't do anything to stop this form of fraud with mail-in ballots. Someone can still obtain an absentee ballot, and then receive payment in order to cast his or her vote a certain way. Does this often happen? Probably not. The point is not that fraud is common, but that the Ohio bill isn't properly targeted at the risks that do exist with absentee voting.

Rather than going to no-fault absentee -- with or without an ID requirement -- the state would be much better off going to in-person early voting. This makes voting more convenient for those who can't or don't want to appear at the polls on election day. At the same time, because the ballot remains secret, it avoids the risk of fraud inherent in mail-in absentee voting. A side-benefit is that it helps prevent unintentional undervotes and other mistakes, which tend to be more common with mail-in voting. True, in-person early voting is more expensive than mail-in absentee voting. But isn't it worth it to promote a system that, in the words of HAVA's co-sponsor, makes it easier to vote and harder to cheat?
Wednesday, October 12
 
Georgia's ID Law in Federal Court
Voting rights advocates challenging Georgia's new photo ID requirement were in federal court today in Rome, Georgia. U.S. District Judge Harold Murphy heard arguments on the motion for a preliminary injunction filed by Common Cause, NAACP, the League of Women Voters and other groups who seek to enjoin the law mandating that voters show photo identification in order to have their votes counted. Plaintiffs' briefs in support of their motion may be found here. Georgia Secretary of State Cathy Cox opposes the ID law, even though she's the official responsible for enforcing it, on the ground that it's unnecessary and would disproportionately harm poor people.

In related news, the U.S. Department of Justice is taking an aggressive position in support of Georgia's ID law. DOJ has issued this letter to Senator Chris Bond explaining its reasons for preclearing the law, which reads like an argument for voter ID rather than an objective analysis of the legality of Georgia's law. More on this to come soon ...
Monday, October 10
 
Schwarzenegger Signs Paper Recount Bill
California Governor Arnold Schwarzenegger signed a bill requiring that contemporaneously generated paper records of electronic votes be used in automatic manual recounts of 1% of ballots. Local election officials say it will be time-consuming and onerous to count the strips of thermal paper generated by the printers attached to electronic voting machines. In Nevada, it took about four minutes per each ballot. Unfortunately, California won't get much bang for its buck out of this law. As I explained here, a recount of just 1% of ballots will provide little reason for confidence that the results haven't been altered. California's mistake is to assume that the mechanisms used for auditing with paper-based systems will be effective when it comes to electronic technology.
Saturday, October 8
 
Electionline on Recounts
Electionline.org has released this report on recounts. Entitled "Recounts: From Punch Cards to Paper Trails," it places particular emphasis on the rules regarding voter-verifiable paper audit trails in those states that require them. Here's a summary from electionline.org's press release:
A new report finds that while 25 states will require the use of paper trails in time for the 2008 presidential election, so far only 14 states currently plan to use them as the official record in a recount of votes. How or if they would be used in recounts -- and how difficult that process might be -- are questions many states still need to answer....

"It would appear that more and more states are making the decision to require the use of voter-verifiable paper audit trails (VVPATs) with their electronic voting machines. But what they will do with them, aside from putting voters' minds at ease, is likely to be the subject of sharp debate in the immediate future," said Doug Chapin, electionline.org's director....

Among the other findings in the report:

- The most publicized instances of contested elections have been in the courts -- the Bush v. Gore decision in the 2000 election and the 2004 gubernatorial recount in Washington are perhaps the best known recent examples. Recounts, however, are far more common in local races and most states have established rules to avoid such legal battles.

- States vary in their "triggers" that initiate ballot recounts. In 39 states, losing candidates can request recounts, largely at their own expense. In 25 of those, a recount can be undertaken regardless of the margin of votes while in 14, the difference must be within a certain margin of votes.

- Sixteen states have rules that require an automatic recount of votes if contests fall within a prescribed margin.

- Four states -- California, New York, West Virginia and Kentucky -- recount a small percentage of ballots from randomly-chosen precincts to test the accuracy of the vote.

Eleven states require manual audits of VVPATs. Audits test the accuracy of electronic voting machines by comparing paper totals to digitized machine totals, but do not change the outcome of elections. The most recent audit in Nevada found a 100 percent match between paper and machine totals, but only after teams took as long as four minutes to count accurately a single ballot on a paper audit trail.
The report also features a summary of state recount laws. One of my research assistants and I prepared a table summarizing the states' laws several months ago, available here.

My take: One of the things to keep in mind is that the reasons for conducting recounts differ, depending upon the type of system used. With a paper-based system such as punch cards or optical scans, recounts may be necessary in deciphering ambiguously marked ballots in accordance with state law. This is something that a machine count may not be effective in doing. In addition, they can be useful in verifying that tabulating machines are counting accurately. This is what was done in Ohio after the last election, when a certain percentage of ballots were recounted by hand, and the totals compared to those generated by the machine count. If the two match, it's a strong indication that the tabulators are working properly.

On the other hand, the reasons for conducting a recount are different with a direct record electronic system. The concern is no longer with ambiguously marked ballots, which aren't an issue with this type of equipment. Instead, the main reason for a recount of the paper ballot copies generated by the VVPAT is to make sure that the machine is accurately recording the electronically voted ballots -- for example, that the machines aren't displaying the intended choice to the voter (say Kerry) on the review screen that comes up at the end of the voting process, while internally recording another (say Bush). With the VVPAT, the theory goes, at least some voters will actually check the paper record. On that theory, if there's a discrepancy between the paper ballot totals and the electronic totals, the paper total should be the one that counts.

There are a couple of problems with this. One is that the little research that exists suggests that many voters won't actually check the VVPAT records. See here for my prior post on research that Ted Selker of MIT has done on this.

The other problem is that, if only a small percentage of paper records (say 1 or 2% of ballots) are recounted, it's not likely that errors will be detected, at least for local and regional races. As an example, Andy Neff ran the numbers for a California congressional race. He found that if 10% of the votes were changed -- more than enough to alter the result in a reasonably close race -- then a 1% recount has only about 40% chance of catching it. While I'm no statistical expert, and thus can't confirm the accuracy of Neff's calulations, I've yet to see anything that shows them to be wrong. If he's right, or at least in the ballpark, it means that a 1% recount of VVPATs will be of limited effectiveness in catching malicious software that might turn an election. And this is aside from mechanical problems such as paper jams, and from the logistical problems of counting all those strips of paper.

Of course, there's always the possibility of a candidate or voter requesting a full manual recount, at least in those states that allow it. But those are rare and expensive. Moreover, if we hypothesize a clever hacker able to insert malicious software without detection, there might be no reason for suspicion on the losing candidate's part, and thus no reason to call for a full-scale manual recount.

My point here is that the introduction of electronic voting equipment requires that we rethink the means adopted to promote and verify the accuracy of results. A 1% or 2% recount may be effective in verifying the accuracy of tabulating equipment with paper-based systems, but probably won't do much good to ensure the accuracy of elections conducted with electronic equipment, even if there's a VVPAT.
Thursday, October 6
 
NIST Voting Systems Workshop
The National Institute of Standards and Technology will be hosting a workshop on Threats to Voting Systems in Gaithersburg, Maryland tomorrow. The agenda may be found here. This workshop promises to be an excellent opportunity to focus on the risks inherent in the use of different types of voting technology, including electronic voting machines, electronic voting machines with contemporaneous paper records (aka, VVPATs), precinct-count optical scan, and ballot-marking devices. I'm on my way to Maryland now, and probably won't be blogging again until Sunday or Monday.

On the advocacy side, the Center for Policy Alternatives, Demos and Common Cause will be hosting an election reform conference for state legislators in Columbus on Friday and Saturday.
Tuesday, October 4
 
ACCURATE Comments on EAC Voting System Guidelines
A Center for Correct, Usable, Reliable, Auditable and Transparent Elections (ACCURATE) has submitted these comments in response to the Election Assistance Commission's Voluntary Voting System Guidelines. This group consists of several prominent computer scientists, including David Dill and Avi Rubin, and recently was awarded a major grant from the National Science Foundation. Here's a summary from the introduction to ACCURATE's comments:
Voting systems must ensure security, privacy, transparency, usability, accessibility and equality. Through the 2005 Voluntary Voting System Guidelines (the Guidelines) the Election Assistance Commission is responsible for translating these diverse values into specifications and requirements that reliably instill these values in voting systems. As past elections and past standards amply illustrate, the distillation of these broad core democratic values into workable voting system requirements that can be effectively evaluated is a complicated, continuous process. To accomplish this task there must be (1) consensus on the meaning of the values listed above, (2) a concerted effort to determine how the Guidelines will drive system design to align with these values, and (3) a sophisticated understanding of how to assess compliance with these requirements and, in a broader sense, of whether the requirements ultimately further the values that inspired them....

ACCURATE's comments provide several levels of advice and direction to the EAC. In section II, we identify fundamental problems with the process that the EAC has set forth for certifying and evaluating voting systems, and suggest solutions to those problems. First, we call for increased transparency throughout the EAC's processes and the certification and testing process. Second, we call for a reorientation of the VVSG away from its current overwhelming focus on functional testing to discipline-specific approaches to certification and evaluation. Third, we call for a systems approach to voting system certification and evaluation which importantly includes capturing, learning from, and responding to experiences with voting systems at the polling place. Fourth, we recommend that the EAC develop a more nimble and timely approach to updating the VVSG and requiring voting system compliance with new guidelines.
I've sometimes disagreed with members of this group in the past, most notably on the subject of whether to require that electronic machines generate a contemporaneous paper record, or "voter-verifiable paper audit trail" (VVPAT). But for those interested in electronic voting, the comments are worth reading for the constructive approach to the challenges and opportunities offered by electronic voting. I especially appreciate the fact that, rather than focusing only on security and transparency, they incorporate other values -- equality, accessibility, and usability -- into their analysis. Particularly deserving of attention are their recommendations regarding transparency in certification, source code transparency, consideration of field data, continual updating of standards, interoperability, and attention to usability issues. Whether or not these recommendations are adopted as part of the voluntary voting system guidelines, they're important things to consider for the future.
Monday, October 3
 
A Surprising Choice
To the surprise of most observers, including me, President Bush announced White House counsel Harriet Miers as his choice to succeed retiring Supreme Court justice Sandra Day O'Connor. The N.Y. Times has this profile. Many think Miers to be an odd choice, given that she's never served as a judge and has only two years experience in elected office, on the Dallas City Council. Her principal distinctions appear to be having been the first woman partner at a major Texas law firm and the first woman president of the State Bar of Texas -- no small accomplishments, to be sure, but not ones that would seem to prepare one for the type of work she'd do on the U.S. Supreme Court.

Because she would be replacing Justice O'Connor, the swing vote on so many critical issues, Ms. Miers nomination is in a sense of even more importance than that of Chief Justice Roberts, who was replacing the reliably conservative Chief Justice Rehnquist. One evident advantage of the Miers nomination, from the White House's perspective, is that it gives the Democrats a small target. As with now-Chief Justice Roberts, there appears to be relatively little in her record to attack. The other side of that coin is that conservatives hoping for someone to shore up the right wing of the Court don't know quite what to make of Ms. Miers.

The first-day reaction to Miers has thus been decidedly mixed. Senate minority leader Harry Reid, who apparently suggested her as a potential nominee, praised Ms. Miers effusively. On the other hand, conservatives were split. David Frum is "disappointed, depressed, and demoralized," worrying that "there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left." Fred Barnes, on the other hand, says that during talks over judicial nominations "it became clear to Bush that she had exactly the philosophy of judicial restraint he favors and that she wouldn't 'grow' as a justice and turn into a swing vote or a liberal." (Interesting, by the way, that some conservatives' opposition to evolution applies even to judicial nominations.)

What do we know about Ms. Miers' views on election law and voting rights issues? Well, about as much as we know about her views on anything else: practically nothing. But for critics of incumbent gerrymandering, there's a small bit of encouraging news coming from her days on the Dallas city council. The A.P. reports that:
Miers criticized colleagues who wanted to keep their old districts. Some colleagues thought Miers' attacks on the status quo and the power of incumbents were well-intentioned but naive.
Ms. Miers confirmation hearings should be interesting. Not because she'll reveal anything about her views (she won't). And not because there's much doubt over the outcome (she'll be confirmed, absent some unexpected revelation). The hearings will be interesting -- much more so than the Roberts hearings, I expect -- because Ms. Miers will face a greater challenge than did then-Judge Roberts in gracefully not answering questions that Senators ask. Roberts had argued before the Supreme Court 39 times, and was thus extremely well-versed in the complex constitutional matters that are the bread and butter of the Court's work. This made it easy to demonstrate facility with the law in response to questions, without disclosing anything about his own views. He also had a sense of humor, probably also honed during his years as an appellate advocate, which he used to take the edge off what would otherwise have been tense moments in the hearing.

Ms. Miers' principal experience is not as a Supreme Court advocate but as counsel to corporate clients. This sort of work presents its own challenges, but they are of a sort that's markedly different from what she'll face during her confirmation hearings. While undoubtedly very smart, she won't likely be as conversant with the difficult constitutional issues that she'll be grilled on during her hearing. How effective will she be in responding to questions without disclosing anything about her real views and judicial philosophy? I'm anxious to find out.
Saturday, October 1
 
UDC Election Reform Symposium
Yesterday, the University of District Columbia Law School hosted a symposium entitled Election Reform: Voting Rights in the New Millenium. The symposium brought together voting rights advocates, public officials, and academics. Some of the highlights included:

- A morning panel of voting rights advocates on the future of the Voting Rights Act of 1965. Much of the conversation focused on the prospects for renewal of the provisions that are set to expire in 2007, most notably the language assistance provisions and the requirements that certain jurisdictions "preclear" changes with the Department of Justice. One of the big open questions is whether preclearance is an effective remedy for practices that disproportionately disadvantage minorities. A case in point is Georgia's recently enacted photo ID requirement, a law that even James Baker acknowledges to be "discriminatory," as noted here. Yet Georgia's ID requirement was still precleared by the Bush II Justice Department. Notwithstanding such actions, the general consensus of the voting rights advocates seemed to be that improvement on the existing preclearance process is unlikely.

- I appeared on another panel in the morning, which focused on challenges to existing mechanisms of voting, including not only machines but our system of administering elections generally. That panel included Jonah Greenbaum of the Lawyers' Committee for Civil Rights, which has a lawsuit currently pending in an Ohio federal court that challenges systemic disparities in the state's voting system in such areas as registration, disability access, and provisional voting. I spoke in support of a research-driven approach to election reform, one that rests on empirical evidence and rigorous analysis, as opposed to the seat-of-the-pants approach that has characterized the debate over both voter ID and electronic voting -- and is exemplified by the widely criticized Carter-Baker Commisison report. More on this to come soon ...

- Representatives Tom Davis (R-VA) and Eleanor Holmes Norton (D-DC) spoke at lunch in support of equal voting rights for citizens of Washington, D.C., who presently have no voting representation in the House. (Ms. Holmes is a nonvoting delegate.) Representative Davis is advancing a bill that would create a congressional seat in D.C. (which would almost certainly elect a Democrat) in exchange for the mid-district creation of another seat in Utah (which would almost certainly elect a Republican) based on that state's significant population growth since the post-2000 decennial redistricting.

- The afternoon featured an intriguing panel on election reform. That panel included Tova Wang of The Century Foundation, which released a report on election reform entitled Balancing Access and Integrity in the summer. That report focused on changes that states should make to improve the administration of elections, working within HAVA's mandates. The panel also included Bob Pastor, the Executive Director of the Carter-Baker Commission. Much of the discussion focused on voter identification requirements, including the Carter-Baker Commission's controversial recommendation that all voters be required to show a state-issued "REAL ID" card in order to have their votes counted. Ms. Wang discussed the evidence that this requirement would disproportionately disadvantage minority, poor, elderly, and disabled voters -- and the lack of evidence that it's needed to combat fraud.

- Professor Spencer Overton of George Washington University's Law School delivered the closing address. As noted yesterday, Professor Overton was a dissenting member of the Carter-Baker Commission -- but, in contrast to the Commission, has backed up his position with evidence. He also focused on the harmful effects of voter identification laws on people of color.

If yesterday's conference was any guide, there appears to be little enthusiasm for moving forward with changes to federal election law in the near future. While the Democrats have put forward several bills, none of them are likely to go anywhere. There's been some talk of passing a stricter photo identification requirement, but voting rights groups are resolutely opposed to any such requriement. If anything, the overwhelmingly negative response to the Carter-Baker Commission's report appears to have set back the movement to require that all voters show photo identification -- though perhaps this is just wishful thinking on my part. In any event, it seems likely that when it comes to election reform, the most significant changes between now and 2008 are likely to take place at the state level.

Thanks to UDC and its law review for a thought-provoking conference.

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Moritz College of Law The Ohio State University