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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Monday, November 6
 
What to Watch Out For
Tomorrow's election day, and the Election Law @ Moritz team will continue to track breaking developments on the front page of our site. Just today in Ohio, there have been developments on lawsuits pertaining to polling place observers, the posting of election results, and backup paper ballots. There are likely to be further election law developments around the country tonight and tomorrow, which will be added to our front page as they happen.

Everyone's got their own list of states to watch in tomorrow's election, though it's always difficult to predict exactly where things will go wrong. Rather than try to do so, here's my list of the most significant types of problems to look out for tomorrow:

- Voting Machines: As in every election since 2000, this will continue to be a big issue. It looms especially large in this election, given that key Help America Vote Act (HAVA) deadlines for the replacement of old voting equipment and the installation of disability accessible systems take effect this year. We've already seen severe problems in implementing electronic voting technology, most conspicuously in Maryland and Cuyahoga County, Ohio. While there's reason to hope that these places will have made procedural improvements, the big lesson from these and other events is that human errors can cause major problems, whatever technology you're using. Inevitably, there will be some polling places that open late due to equipment problems or election officials' mistakes. It's also possible that there could be difficulties in the event of recounts in some places, for reasons I discussed here.

- Statewide Registration Lists: Though much less visible than voting machines, the states' systems for keeping registration lists could turn out to be as important. One of the requirements of HAVA is that each state should have in place a computerized statewide registration list. These databases are supposed to be coordinated with other agency databases. A number of states have had difficulty in getting their statewide registration lists operating on time. For those that have met the deadline, there are real questions about how accurate the lists will be. It's possible that some voters could show up at the polls and find their names have wrongly been struck from the lists, in which case they'd have to cast provisional ballots. This has been a relatively low-visibility issue, but is definitely something to keep an eye on.

- Voter ID Laws: A higher-visibility issue is the move toward laws requiring voters to present identification in order to have their votes counted. Missouri's and Georgia's laws requiring photo ID were enjoined by courts in those states, while Indiana's law has so far been upheld. Arizona's identification law, which provides an alternative to photo ID, will also be in effect, due to the U.S. Supreme Court's intervention. In Ohio, confusion over the implementation of a voter ID law passed in February resulted in a consent order just last week. While the impact of voter ID on turnout can't easily be ascertained right after an election, it's important to keep an eye on how well election officials, poll workers, and voters are able to comply with the new rules.

- Election Night Delays: Increased reliance on absentee and provisional ballots may lead to the results in key races not being known for sure on election night. The move toward absentee voting has gained steamed as the result of highly publicized problems with new technology in some places. But more absentee ballots could lead to election results coming in more slowly. Provisional ballots can also be expected to increase, to the extent that there are problems with state registration lists or with voters showing up at the polls without proper ID. The counting of provisional ballots can be expected to take even longer than the counting of absentee ballots, since it entails determination of whether voters are eligible and registered and whether they satisfied the sometimes-convulted ID rules in a state. It's therefore possible that a large number of absentee and provisional ballots could cause delays in calling close elections in key states.

It should be an interesting election day ... and night!

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