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, December 24
 
Happy Holidays!!
I'm on vacation, so blogging will be light (or nonexistent) for the next several days. Regular blogging will resume on January 9.
Friday, December 23
 
The Latest on Diebold
I'm back in California for the holidays, where there's recently been more trouble for Ohio-based voting machine vendor Diebold. On Tuesday, California Secretary of State Bruce McPherson issued this press release and letter announcing "significant security concerns" with Diebold memory cards that prevent the state from acting on the company's application for certification. CNET News has this report. The Secretary of State's letter to Diebold reveals that the memory cards in questions are used in both paper-based optical scan and electronic touchscreen voting systems. The Secretary of State's letter asks Diebold to submit the source code for testing by a federally approved independent testing authority ("ITA"), after which Diebold's application for state certification will be reconsidered.

This follows reports from Florida's Leon County, where a computer scientist was reportedly successful in tampering with Diebold memory cards. The AP has this report. What's difficult to assess is whether the conditions under which the Leon County test occurred replicated real-world conditions. Any system, after all, can be tampered with if proper procedures aren't in place -- with a paper-based system, for example, one can manipulate the results without a trace by replacing a stack of paper ballots with another stack marked with a different candidate. That's not to say that there aren't problems with Diebold's system. It is to say that we should treat reports that voting systems can be "hacked" with a grain of salt, unless and until we know that the conditions in which the tests were conducted are realistic. There's reason for questioning whether that's the case in Leon County, particularly given that well-known electronic voting critics were reportedly behind the test.

What is critical to the functioning of any system, paper-based or electronic, is that there be adequate procedures in place and transparency in the process from beginning to end. The California Secretary of State's demand the Diebold release its source code to testing authorities is thus a step in the right direction.

Whether or not there really are serious problems with Diebold's voting system, one likely consequence of all this is that it will be more difficult for some jurisdictions to meet federal deadlines for the replacement of old voting equipment. The Help America Vote Act requires that every polling place have at least one disability-accessible unit by 2006. In addition, those states that received HAVA funds for the replacement of punch-card and lever voting equipment have to replace these machines by 2006. In this week's newsletter, electionline.org projects that one-third of the states will miss one of HAVA's deadlines for voting system replacement. Assuming this happens, it will be interesting to see how the U.S. Department of Justice responds.
Monday, December 19
 
Two from Packard
Ed Packard, an always-thoughtful election official with the Alabama Secretary of State's office and the chair of the "League of Extraordinary Voters," has two recent commentaries of interest. Sunday's Birmingham News features this op-ed on the right to vote, and Ed's Election Administration blog has this post on the photo ID controversy. Here's a snippet from the latter:
It seems to me that the two sides ('pro-photo-ID,' 'anti-photo-ID,' if I may use such a simplistic typology) have similar goals -- ensuring that those who are eligible to vote may do so and those who are not eligible are prevented from doing so -- but they are talking past one another due to their respective focus on different aspects of the issue of election integrity....

The movement to require photo identification has not surfaced in a vacuum. Litigation, prosecution and anecdotal reports show that we should pay attention to the issue of voter fraud. We should be willing to make reasonable and justifiable adjustments to our elections process to address documented problems and to ensure that voter fraud does not undermine the integrity of that system.

Similarly, though, photo identification proposals come on the heals of policies that served a strong gatekeeper role, mechanisms that arbitrarily limited the population of people who could participate in self-governance: property ownernship requirements, poll taxes, literacy tests, minimum voting age of 21, unreasonable lengths of time on durational residency requirements, and the ban on women's suffrage....

The two sides of the photo identification debate should build a bridge between them so that whatever policies that are adopted are meaningful, fair and realistic; that they act in furtherance of representative democracy, not to place it in jeopardy by human error or human self-interest.
I certainly agree with Packard that access and integrity are both essential to the proper functioning of the democratic process, and I applaud his effort to find common ground in this contentious debate. What's doubtful, at least to my mind, is that the current push to require photo ID at the polls has anything to do with legitimate concerns about fraud.

It's true that there's evidence of some names on the rolls (like "Mickey Mouse") that don't belong there. But there's little or none that Mickey Mouse actually tried to vote. The most recent debunking of such fraud claims appears in this report by Michael McDonald and the Brennan Center, which tears to shreds recent allegations of illicit votes in New Jersey.

The low incidence of fraud at the polling place makes sense, when you give it a little thought. Appearing at the polling place and pretending to be someone you're not is a high risk/low reward strategy for the individual voter. For one bound and determined to engage in fraud, mail-in absentee voting provides a much more promising avenue. The risk of detection is smaller with mail-in ballots, which also provide the opportunity for vote-buying and selling that doesn't exist with in-person voting. In particular, the secrecy of the voting booth prevents would be vote-buyers from verifying that the voter has in fact voted for the promised candidate. Not so with mail-in ballots. This isn't to say that fraud is common with mail-in ballots either, but the opportunity is there.

It's therefore ironic that two of the states that have recently taken steps to impose stricter ID requirements on voters at the polls -- Georgia and Ohio -- have also liberalized mail-in absentee voting. This makes no sense at all, if the real goal is to promote election integrity, a point that a federal district court in Georgia emphasized in putting a halt to that state's new ID law. While I'm hesitant to accuse anyone of vote suppression, it's hard to see what else could be motivating the push to impose new obstances to voters at the polling place when, with their other hand, legislators are making it easier to vote by mail. At the very least, it provides circumstantial evidence that the real goal of photo ID laws has little to do with fraud ... but quite a lot to do with denying equal access to the vote.
Thursday, December 15
 
Ohio Election Bill Stalled (for Now)
Ohio's House and Senate weren't able to reach agreement on a proposed election bill, which includes a controverial ID provision. That means that the bill won't be enacted before the holidays. See this report from the Toledo Blade, this one from the Cleveland Plain Dealer, and this one from the AP.

So what's the hang up? Legislators having pangs of conscience over the senselessness of the ID requirement they're proposing, on which the Cincinnati Enquirer editorializes? Could it be second thoughts about creating another hoop for voters to jump through, one that will also create major headaches for pollworkers, without making the voting process any more secure?

No such luck. The dispute isn't over the ID requirement, on which it appears the Republican leadership in both houses are in agreement. Rather it's over a proposal that would limit on campaign contributions that local government officials can solicit from their employees. Under the bill, local employees would've been limited to $200 per four year terms. The two houses will hammer out their differences at a joint conference committee in January.
Tuesday, December 13
 
Ohio Election Bill Clears Senate
An Ohio bill making major changes to the state's election system was approved by the state senate today. The AP has this report. The bill passed on a party-line vote, with all the Democrats and one Republican voting against it. The most significant change made by the bill is to impose an ID requirement, which I've discussed in EL@M's Weekly Comment. One significant change made to the bill today, after my comment was written, is that driver's licenses will be allowed as ID even if the voter has moved away from the address listed on the license. More background on the bill is available in this AP report.
Monday, December 12
 
The Texas Re-Redistricting Cases
The big news of the day is the Supreme Court's decision to hear four cases pertaining to the Texas mid-decade redistricting. The NYT has this report and the AP this one, with commentary from Rick Hasen here and from SCOTUS blog's Lyle Denniston here and here. The case stems from the 2003 Republican-backed redistricting, promoted by Tom DeLay. The Department of Justice's preclearance of these changes under Section 5 of the Voting Rights, over the objections of career staff, has recently been the subject of intense controversy, as noted here -- although DOJ's approval of the plan won't be before the Supreme Court, since its decisions to preclear aren't subject to judicial review.

A central issue in the case before the Supreme Court is whether it's unconstitutional for a state to redraw district boundaries in the middle of the decade, solely for the purpose of promoting one party's interest. Also at issue are claims by Latino voting rights advocates, including MALDEF and LULAC, that the plan impermissibly diluted minority voting strength, in violation of Section 2 of the Voting Rights Act.

How the Court will rule is difficult to predict, but there's some reason for optimism for opponents of the Texas plan. Last time the Supreme Court addressed the subject of partisan redistricting was in 2004, when it declined to invalidate Pennsylvania's plan despite allegations that the plan was drawn to promote Republicans' partisan interests. Four justices (Rehnquist, Scalia, Thomas and O'Connor) thought the case presented a nonjusticiable political question, that is, one that the federal courts should stay out of. Four others (Souter, Stevens, Ginsburg, and Breyer) thought political gerrymandering claims presented an equal protection issue, though these justices had three different views of what the test should be. The swing vote was, and presumably still is, Justice Kennedy, who believed that the case was appropriate for judicial resolution -- in other words, that it wasn't a "political question" that federal courts should stay out of -- but who declined to provide any legal standard for deciding these claims.

One possibility is that Justice Kennedy has made up his mind as to what the standard for partisan gerrymandering claims should be. Another is that he hasn't, but thinks the Texas re-redistricting was so egregious that it can't be allowed to stand, even if the Court isn't able to agree on a legal standard for judging these cases generally. Or maybe Justice Kennedy is ready to give up, and declare partisan gerrymandering claims to be nonjusticiable. Or perhaps the new Chief Justice, unlike his predecessor, believes these cases to be justiciable. Another possibility is that it's still uncertain whether anyone can come up with a legal standard on which five justices can agree -- but there are at least four who are willing to give it a try.

The bottom line is ... who knows? But this could well turn out to be a blockbuster case.
Saturday, December 10
 
Should VRA Preclearance Be Changed?
The latest word from inside the U.S. Department of Justice is that career staff are now being barred even from making recommendations on major cases under the Voting Rights Act. The Washington Post has this story and the Dallas Morning News this one, with Rick Hasen offering these thoughts. This follows reports that staff recommendations against Republican-backed election changes in Texas and Georgia were disregarded by political appointees, who decided to grant preclearance under Section 5 of the VRA in both cases. (See here for my earlier thoughts on this.)

If these reports are true, this is an alarming development providing added reason for doubting that DOJ's exercise of the preclearance power can be trusted. The concern is that DOJ will continue to preclear plans that benefit the party in control of the White House, even though they may have a negative impact on the voting rights of racial minorities. As it stands, there's no judicial check upon such abuses of DOJ's power. Investigating these reports and assessing whether the preclearance process needs to be modified should be top priorities for Congress as it considers the reauthorization of expiring provisions of the VRA in the coming year.

If it's determined that the present preclearance process is broken -- or at least that it's functioning is less than optimal -- what should be done to fix it? At least three options have been suggested.

One possibility, which I previously mentioned here, is to allow opponents of preclearance to challenge DOJ's preclearance decision in court. The advantage of this approach is that federal courts may be less likely to bow to partisan political considerations than DOJ's political appointees. A disadvantage is that litigation is time-consuming and expensive for everyone involved, including DOJ, affected states, disgruntled voters, and the courts.

Another possibility is to move authority over preclearance from DOJ to some sort of nonpartisan or bipartisan agency. I suggested one such scheme here, and Morgan Kousser of Caltech has proposed transferring DOJ's responsibilities to a new "super election agency" (including the FEC, EAC, and DOJ). Such approaches are worth considering, though designing an entity that can fulfill its responsibilities without regard to partisan politics would undoubtedly be a challenge.

A third possibility, suggested by Heather Gerken of Harvard, is to adopt "opt-in strategy that allows community and legislative leaders to negotiate the best deal possible for racial minorities but places a bargaining chip in their pockets--a chance to demand that the Act's traditional constraints apply when bargaining breaks down. " Instead of submitting changes for preclearance, covered states and counties would provide notice of planned changes. If community groups objected, there would be a negotiation process, with the chance to go to DOJ or to court if the process breaks down. An intriguing idea, though I've heard some grumbling among civil rights advocates that they're not in a position to do the type of monitoring that this system would demand.

My purpose here is not to advocate or oppose the adoption of any one of these changes. It is instead to encourage a long, hard look at whether Section of the VRA, in its present form, is functioning as intended. There will be a strong push by some to retain the status quo, though that may not be the best solution, particularly for people of color whose interests are -- at least arguably -- not adequately served by the present system.
Wednesday, December 7
 
A Damning Commentary on DOJ
Findlaw.com has this must-read commentary by Mark Posner of American University, regarding the recent revelations on the U.S. Department of Justice's administration of the Voting Rights Act. Posner is a former attorney in the DOJ's Civil Rights Division, who supervised reviews under Section 5 of the VRA from the mid-1980's through 1995.

Of DOJ's actions with respect to the Tom Delay-engineered redistricting plan in Texas, Posner writes, "there is strong objective evidence that politics prevailed over the requirements of the Voting Rights Act." Posner characterizes the preclearance process as generally having worked very well in the past, under both Democratic and Republican administrations. On the other hand, with respect to the Texas plan, the political appointees at Justice overruled the unanimous conclusion of career staff that the plan would harm minority voters. Based on DOJ's deviation from past practice, Posner concludes: "based on what we know today, the evidence points to a single conclusion: the Justice Department did not serve the interests of minority citizens in this case, but, instead, served the political interests of the Republican Party."

My take: This one speaks for itself. Nothing I could possibly say could shed light on the problems at DOJ half as well as Posner's commentary does.
Monday, December 5
 
Tomorrow in Ohio: Litigation and Legislation
Tomorrow morning, the Sixth Circuit will be hearing argument in Stewart v. Blackwell, a case challenging the continuing use of "hanging chad" punch card machines in Ohio -- yup, we've still got 'em, believe it or not. I'll be arguing the case on behalf of plaintiffs-appellants. Information on the case, including court papers may be found here, on the ACLU of Ohio's website.

Also tomorrow, the Ohio Senate Rules Committee will be considering a bill (HB 3) that makes significant changes to the state's election laws. Among the changes is to impose a requirement that voters provide either a photo ID or one of the documents allowed to verify name and address under HAVA, such as a utility bill. As an alternative, the bill allows voters to provide the last four digits of their Social Security number or to sign an affidavit verifying their identity, in which case they may cast a provisional ballot. More on the proposed bill can be found in this AP story and a summary of the recent changes is here.
Sunday, December 4
 
More Concern About Justice
On Friday, the Washington Post reported on another leaked memo from the U.S. Department of Justice, this one concerning a controversial 2003 redistricting plan drawn by Texas Republicans. The 73-page memo concludes that the redistricting plan violated Section 5 of the Voting Rights Act, but the Department nevertheless precleared the plan. The release of this memo heightens concerns arising from the preclearance of Georgia's recently enacted voter ID law, also over staff objections, that the Department is placing partisan politics above the protection of minority rights.

Speaking of which, Senators Barack Obama (D-IL) and Christopher Dodd (D-CT) have written this letter to Attorney General Alberto Gonzales, expressing "serious concerns" regarding the decision to preclear Georgia's ID law. Their concerns arise from the fact that Justice precleared Georgia's plan the day after the staff's thoughtful memo explaining why it shouldn't be precleared.

Although the Dodd-Obama letter was apparently written before release of the Texas memo, the Senators say they're concerned that the Georgia ID preclearance appears to be the "latest example of trend within DOJ in which political appointees have ignored the decisions and recommendations of career attorneys in voting rights cases." This follows a letter to Gonzales from Senator Arlen Specter, which also raised concerns about lax civil rights enforcement by Justice.

Stay tuned. More's sure to come on this.

Update: Senators Leahy, Obama, Dodd, Kennedy and Representative John Lewis sent a new letter to AG Gonzales on December 5, regarding both the Texas and the Georgia preclearance decisions. The letter may be found here and a press release from Sen. Kennedy's office here.
Saturday, December 3
 
Ohio Equal Voting Case Survives
U.S. District Judge James Carr has denied a motion to dismiss a lawsuit filed by the League of Women Voters of Ohio and others, challenging the State of Ohio's administration of its voting system under the Fourteenth Amendment. The order, filed yesterday, may be found here. The League's lawsuit arises from problems with registration, the handling of provisional and absentee ballots, disability access, and the allocation of voting machines in Ohio, which they claim are of longstanding duration.

The most important aspect of Judge Carr's ruling is his conclusion that the League and other plaintiffs have stated claims under the Equal Protection Clause, based on the alleged disparate treatment of voters in different counties. He properly recognizes that the state "misconstrues the complaint" in asserting that voters should try to resolve their problems with local election officials (a point I made here in an earlier post, which contains a more detailed description of the case). The whole point is that voters across jurisdictions have been afforded unequal treatment, resulting in a "crazy-quilt" of different rules and processes.

The court also allows plaintiffs' due process claim to proceed, on the theory that Secretary of State Blackwell and Governor Taft may be liable for the "systemic failure to train." It specifically rejects the arguments that Taft and Blackwell aren't proper defendants, that plaintiffs lack standing, that their claims are precluded by the judgments in prior lawsuits, and that the case should be transferred to another court.

Judge Carr's order does dismiss plaintiff's claim challenging the state's registration list under the Help America Vote Act. The order reasons that this statewide list need not be implemented until January 1, 2006. (See this post for more on HAVA's deadline.) In effect, Judge Carr finds that the HAVA claim isn't yet "ripe," although he doesn't actually use this term.

My take: On the whole, I think Judge Carr's order is right on target. He properly recognizes that the state has attempted to avoid the main thrust of plaintiffs' complaint: that the Governor's and Secretary of State's office have abdicated their responsibility to assure equal treatment of voters throughout the state. If indeed the evidence shows such lack of uniformity, then it should be found to violate equal protection under Bush v. Gore and other cases that require equal treatment for voters in different jurisdictions within a state. This doesn't necessarily mean that plaintiffs will win. It does mean that their complaint should be allowed to proceed.

My only disagreement with the court's order concerns the HAVA claim. While it's true that HAVA's state registration list deadline is January 1, 2006, that date is almost upon it. Therefore, if plaintiffs' allegations are assumed true -- as they should be at this stage -- then a violation of HAVA is "imminent." This is sufficient to make their claim ripe, and to give the plaintiffs' standing to challenge the impending violation. This is a small point, however, since the order as I read it would leave the League free to amend its complaint less than a month from now, after HAVA's deadline has passed.
Thursday, December 1
 
Will HAVA's 2006 Deadlines Be Met?
One of the most significant changes required by the Help America Vote Act is to require that every state have in place a statewide voter registration list. This list must be computerized and contain the name and registration information of every registered voter in the state. Because registration lists have until now mostly been maintained at the county or township level, this represents a huge change. The lists -- or statewide registration databases as they're sometimes called -- were supposed to be in place by January 1, 2004, but most states got extensions until January 1, 2006. The hope is that states will do a better job of maintaining these lists, and can track voters when they move from place to place. It may also cut down on fraud, by preventing people from voting in more than one jurisdiction (although there's little evidence that this is a frequent occurrence).

What's not clear is whether this statewide database deadline, now less than one month away. According to this story from Colorado, that state won't have its database in place as required by HAVA. State officials have abandoned a $10 million contract with Accenture, the company that was supposed to create the system, because it wasn't able to get the database up and running in time. The article reports that Colorado will have to start from scratch. Secretary of State Gigi Dennis says that 17 other states will likely miss the 2006 deadline as well. The U.S Attorney General has the authority to enforce this requirement, but it's uncertain what if anything the Justice Department will do if states fail to comply with the deadline.

Another looming deadline concerns the replacement of outdated voting technology. Contrary to popular belief, HAVA doesn't actuall mandate the elimination of unreliable systems such as punch card voting machines. Instead, Title I of HAVA created a financial incentive for states to get rid of punch card and lever machines, by providing "buy-out" funds on condition that these systems be replaced by the first federal election after January 1, 2006 (the original deadline was 2004, but most states got an extension on this one as well). The penalty for failing to meet the deadline is that states must pay back the money they received in proportion to the percentage of precincts within the state that don't convert in time. In other words, if 10% of a state's qualifying precincts fail to replace their punch card or lever machines, then the state will have to give 10% of its Title I money back to the federal government.

While HAVA doesn't mandate the elimination of punch card voting systems, it does require that each state provide at least one disability-accessible voting system at each polling place by January 1, 2006. This deadline isn't tied to the receipt of federal monies, but applies to all voting jurisdictions. According to this Sacramento Bee story, as many as 58 counties in California are at risk of missing this deadline, due to delays in the certification of the required technology. This is a direct result of California's ill-advised decision to require that all election systems generate a contemporaneous paper record -- the so-called "voter verified paper audit trail" or VVPAT -- which has complicated efforts to comply with HAVA's accessibility mandate. In California, only one electronic system is certified that even arguably meets both requirements, but voters with disabilities argue (correctly in my view) that it doesn't afford them the privacy that HAVA mandates. Other states that have adopted VVPAT laws may well be facing a similar predicament.

In short, it's looking more and more likely that the answer to the question posed above is "no," at least in many states.

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Moritz College of Law The Ohio State University