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
Tuesday, February 7
Equal Vote is Two !!
As of today, I've now been blogging for two years, first at equalvote.blogspot.com and since December 2004 here at the Election Law @ Moritz site. The blog started off focusing mainly on voting equipment issues, and gradually expanded into other areas of election administration. Over the past year, I've further expanded the blog to address issues relating to the Voting Rights Act and its enforcement. The blog has also changed in its orientation, focusing less on the day's news items and more on analysis of and commentary on voting rights related issues.

Fortuitously, there's been a lot going on in the areas of this blog's focus in just the past few days. That gives me the opportunity to take stock of where we are, and to discuss some of the big issues that I plan to keep my eye on in months to come:

- HAVA Compliance (or Not): 2006 is a big year for election reform, since it's the deadline for getting rid of punch card and lever voting machines, for implementing accessible voting machines at each polling place, and perhaps most important of all for getting statewide registration lists in place. Electionline.org has just released its annual report on the state of election reform, "What's Changed, What Hasn't Changed, and Why," and Reuters this story summarizing it. The report notes that many states are behind the 8-ball, or worse, in terms of HAVA compliance. Also worth looking at is the Election Assistance Commission's 2005 annual report. Among the interesting tidbits in this report is a summary of the EAC's efforts to audit states' use of HAVA funds (pp. 18-19). Among the developments to keep an eye on in the coming year is whether and how the EAC will cooperate with the Department of Justice to enforce HAVA's requirements, including its 2006 deadlines.

- Voter ID Laws: The Republican Party has made a major push since the 2004 election season to enact laws requiring voters to produce identification when they appear at the polls. Two states (Georgia and Indiana) have required that voters show government-issued photo identification to have their votes counted. Georgia's 2005 law was enjoined, but the state legislature has since enacted a new one; litigation on Indiana's law is still pending. Ohio enacted a new ID law just last month. As discussed here, it doesn't require photo ID but will likely result in a lot more provisional ballots -- and a lot more headaches for local election officials. And according to this report, Missouri is among the states in which a battle over photo ID is brewing. The photo ID controversy is representative of the growing nexus between issues of election reform and the Voting Rights Act. Expect more legislation and litigation in the coming year.

- Voting Technology: The machines used to cast and count votes remain a hot topic, as they have been since 2000. Election Data Services has just released a new study on what type of technology is used for voting across the country. It finds that optical scan voting systems will be used by the largest number of voters, 69 million, as opposed to 66 million who will use electronic voting machines. Meanwhile, voting technology sage Roy Saltman -- who warned us all about the dangers of punch cards long before it was hip to do so, and has a new book on the history of voting equipment -- is the subject of this terrific interview on the site of the Nieman Foundation at Harvard. Saltman explains why the contemporaneous paper record, or "voter-verified paper audit trail," isn't the magic bullet that some people hoped it would be. There's no question, however, that insistence on this would-be fix has slowed down the elimination of unreliable systems like punch cards. (In related news, the AP reports that Diebold's CEO is considering getting rid of the company's electronic voting unit.) On the positive side, the EAC's annual report notes that the dropoff or "residual vote rate" was lower in the 2004 presidential election than in any other since World War II. What's to come? My guess would be more of the same: continuing debate over electronic voting security, glitches as new equipment is put in place, states missing deadlines for meeting disabled people's technology needs ... and more votes actually being counted as intended, when new technology is actually implemented.

- Voting Rights Act Reauthorization: Key provisions of the Voting Rights Act of 1965 will expire in August 2007. Foremost among the expiring provisions are Section 5, which requires that certain state and local jurisdictions "preclear" election changes before they can take effect, and Section 203, which requires that states and counties with significant numbers of non-English proficient voters provide materials in voters' native languages. It's likely that Section 5 will be reauthorized; the fate of Section 203 is a little less clear, as there appears to be some anti-immigrant sentiment in the House that will lead some to oppose it. What's much clear is whether there will be any significant amendments to the preclearance standard or process. Civil rights groups would like to give some greater bit to the legal standard. There are also serious questions about whether the Department of Justice can be trusted to exercise the enormous and effectively unreviewable power that it has under Section 5 to grant preclearance -- questions that have most recently been brought to the fore by DOJ's controversial decisions to preclear Tom DeLay's Texas re-redistricting and Georgia's ID bill. Should the preclearance process be changed? I think it's something Congress should seriously consider.

Lastly, thanks to all of you for reading. And thanks to some of you for occasionally writing with your thoughts, encouragement, or (as with my last post) corrections. I appreciate it, and am excited to be starting my third year of bloggery.

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Moritz College of Law The Ohio State University