Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
VRA Renewal News
The Lawyer's Committee for Civil Rights Under Law has released this report by the National Commission on the Voting Rights Act. Chaired by Bill Lann Lee, the commission makes the evidentiary case for reauthorization of the provisions of the VRA that expire in August 2007. Foremost among them are Section 5's preclearance requirement and the language assistance requirements contained in Section 203.
The report includes findings from the testimony of more than 100 witnesses, taken during 10 days of hearings. It concludes that "efforts to suppress the minority vote, while not as systematic and pervasive of those in the pre-Act South, are still encountered in every election cycle throughout the country." It makes specific findings regarding voting discrimination against African Americans, Latinos, Native Americans, and Asian Americans.
In related news, USA Today had this story of voting discrimination against Vietnamese Americans in a small Alabama town. A candidate whose supporters challenged the eligibility of some 3000 voters is quoted as saying "we figured if they couldn't speak good English, they possibly weren't American citizens."
While Section 5 is almost certain to be reauthorized, there's some opposition to the language assistance provisions developing in the House. Fifty-five members of the House of Representatives have sent this letter to House Judiciary Chair James Sensenbrenner, opposing reauthorization of Section 203. They argue that Section 203 encourages "linguistic division" and that it's a waste of taxpayer money to provide and other language assistance to non-English proficient voters. Civil rights groups have released this response from James Tucker of Arizona State University.
Keystone (State) Cops?
For all the criticism that the State of Ohio's election system has received in recent years, quite properly in my view, our neighbor to the east may actually be in even worse shape. Pennsylvania is fast becoming a model of how not to do election reform.
For well over three years, the states have been aware of the 2006 deadlines for deadlines under the Help America Vote Act of 2002. Every state is required to have at least one accessible machine at each polling place by this year. Also, states that took federal money for the replacement of punch-card and lever voting machines have to have that transition complete by this year. (Actually, the original deadlines were 2004, but most states got extensions until 2006.) Somehow, Pennsylvania still hasn't managed to get its act together, and a state court ruling earlier this month, discussed here (Kuznik v. Westmoreland County), has only made things worse.
Most recently, the Department of Justice sent this letter to state officials, informing them that a lawsuit against the state for HAVA noncompliance has been authorized. The letter further states that many counties still aren't in compliance with HAVA's accessibility mandate, and notes that the state-court ruling in Kuznik would effectively preclude compliance. As DOJ correctly states: "Where there is a conflict between federal and state law, the State is bound to resolve such conflict in favor of compliance with federal law." This is hornbook constitutional law, which every first-year law student should know. DOJ's letter also notes that Pennsylvania accepted almost $23 million federal money to get rid of punch cards and lever machines, but has thus failed to fulfill the conditions attached to that money. To the extent that this equipment isn't replaced by the May 16 primary, the state will be obligated to pay that money back.
Meanwhile, the Pennsylvania legislature has passed a bill (HB 1318) that would make the state's election system worse, not better. The bill would require voters to produce identification in order to vote, despite the absence of any evidence of voters attempting to be someone they're not. Governor Rendell has, quite wisely, said he'll veto the bill. The AP has this story, and Governor Rendell's letter is here. Governor Rendell's letter explains his reasons for the veto, noting the recent decision on Georgia's ID bill:
Some proponents of the bill claim that no one is actually being denied the right to vote – that voters are merely being asked to comply with a simple requirement meant to reduce the instances of voter fraud. They point to the various acceptable forms of identification that are listed in the bill as support for their defense that the provision is not an attempt to suppress voter turnout. Regardless of how long the list of acceptable forms of identification is, there are people who may not be in a position to produce any of them; people who live in a household where the lease and utility bills are in someone else’s name, people in nursing homes, and those who may have been temporarily displaced from their residences, to name just a few. As federal judge Harold Murphy very eloquently stated in a recent case discussing a similar bill enacted in Georgia, “For those citizens, the character and magnitude of their injury – the loss of the right to vote – is undeniably demoralizing and extreme, as those citizens are likely to have no other realistic or effective means of protecting their rights.”Governor Rendell is right on target. So the bottom line is this: Instead of figuring out how to comply with federal mandates that would improve access to the ballot, the Pennsyvania legislature in its wisdom decided to enact a new barrier to voting to deal with a problem that doesn't exist.
Electronic Roundtable Starts Tomorrow
Starting tomorrow and continuing through the end of next week, Election Law at Moritz will be hosting an electronic roundtable on the two election cases to be argued before the Supreme Court next week. The Court will hear a case challenging Vermont's campaign finance law on Tuesday, February 28, and the Texas re-redistricting case on Wednesday, March 1. We've got a stellar group of election law experts assembled to discuss and debate the cases: Rick Hasen of Loyola Los Angeles, Dan Lowenstein of UCLA, Rick Pildes of NYU, Brad Smith of Capital, and my colleague Ned Foley, who offered this weekly comment on the cases last week. My colleague Steve Huefner and I will moderate. With Justice Alito hearing his first arguments this week, it's an opportune time consider these two cases and, more broadly, where the Roberts Court might be going -- as well as where it should go -- when it comes to the law of democracy.
More on Pennsylvania Voting Machine Decision
As I noted in my last post, number of states are at risk of violating the Help America Vote Act's 2006 deadlines for the installation of disability-accessible voting technology and the replacement of punch card and lever machines, for those that accepted federal funds to do so. On Monday, a state court judge in Westmoreland, Pennsylvania issued an order that there must be referenda to approve counties' purchase of new voting equipment -- even though the state had previously given the counties advice to the contrary. Reports on the decision may be found in the Daily Item, Times Leader, and Morning Call.
These reports indicate that Judge Dan Pellegrini's ruling has thrown local election officials in the Keystone State into a tizzy. Pennsylvania counties have to replace their lever voting machines by the May 16 primary election. If they fail to do so, the state would be obligated to pay back the money it received under HAVA, on the condition that it replace its lever and punch-card voting machines by 2006. (The original deadline was 2004 but Pennsylvania, like most other states, got a two year extension.) The trouble is, it's impossible at this point to get referenda on the ballot that would allow the equipment to be replaced by May. And suppose the referenda fail? Then what? The state is, as you'd expect, appealing the ruling.
I've not yet been able to get my hands on Judge Pellegrini's order, but the Daily Item quotes it as saying: "All that HAVA does require is that a compliant voting system be used for federal elections ... the physical impossibility [of replacing old equipment] was created by not placing before the public a referendum as required by state law." That may be so. But the failure to comply with state requirements doesn't excuse the state or counties from their obligation to comply with HAVA. Federal law trumps state law -- it's called the Supremacy Clause. Thus, the fact that counties didn't follow the referenda process, even assuming it was required, isn't a good excuse for violating the requirements of HAVA now.
At least one county (Lehigh) is reportedly planning to go ahead with the purchase of new equipment, saying that federal law takes precedence over state law. With the qualification that there may be something going on here that I don't understand, that position seems to me quite correct.
Between a Rock and a Hard Place
That's where a lot of election officials are finding themselves when it comes to voting equipment, thanks in part to the decision of several states to pass laws requiring electronic voting machines to generate a contemporaneous paper record (aka, voter-verified paper audit trail or VVPAT). The Denver Post has this story on the situation in Colorado, which mirrors that in several other states:
Counties across the state say disharmony between new state and federal voting laws has created a quagmire that has many scrambling for voting machines that are not yet certified or available.The problem, in a nutshell, is that the Help America Vote Act of 2002 requires states to have disability-accessible voting equipment in place, and to get rid of punch-card and lever machines if they accepted federal funds. Touchscreen voting equipment can satisfy this requirement by allowing people with visual impairments and some other disabilities to vote without assitance. But states that passed laws requiring a VVPAT are finding it difficult or impossible meet the disability-access requirement, given the lack of certified and proven technology.
"There is not a machine that complies with federal and state law that I can find right now," said Adams County Clerk and Recorder Carol Snyder. "I've got money to buy the equipment. ... I'm sitting there, holding this cash, and I can't buy anything because nothing is certified."
California's in a similar situation. As this story reports, some county election officials there are responding by asking that they be allowed to conduct their elections by mail, with vote centers set up to allow people with disabilities to vote on accessible technology. Election officials are apparently hoping that accessible voting equipment with the VVPAT will get certified before this year's primaries and that, even if they can't get enough machines for everyone, they can at least get enough to serve the (presumably few) voters with disabilities who show up at vote centers.
At least one Florida county also has HAVA compliance problems. According to this report, Leon County lost $564,421 in state funds due to its failure to have accessible voting equipment in place by the January deadline. The county's election supervisor Ion Sancho reportedly wants to use it on a hybrid electronic/optical scan system that's not been certified, and that may not comply with HAVA's disability access requirements. At least one of the county commissioners sounds a bit peeved at Sancho, writing in a memo: "While I offer no specific comment on Mr. Sancho's judgment or abilities at this time, I will note that he places Leon County in a difficult situation in failing to comply with federal and state statutes."
Meanwhile, in Pennsylvania, more than half the counties need to upgrade their equipment to comply with HAVA's requirements. But according to this report, a state judge has ruled that voters need to approve the purchase of new equipment. This seems very strange to me, given that they're under a federal mandate. Apparently, the only choice that counties have will be to use paper ballots in the upcoming election -- unless it's reversed on appeal or there's a contrary federal judgment.
All and all, it's a lousy time to be an election official. And it's looking doubtful in a number of states that HAVA's requirement of accessible technology for disabled voters this year will be satisfied. Don't be surprised to see disabled voters going to court to protect their right to vote independently.
Ruling on Georgia ID Case
In a one-page order, the Eleventh Circuit Court of Appeals today sent the Georgia photo ID case back the federal district court. It did so at the request plaintiffs in the case, which include Common Cause and the League of Women Voters. The Eleventh Circuit's order says "this case is fully remanded for such further proceedings in light of the enactment of SB 84 on January 26, 2006." That's the new photo ID bill, discussed here, which was enacted after the old one was enjoined by the federal district court in October. At some point, the district court will presumably take up the question of whether the new ID bill, passed last month, has the same constitutional problems as the old one, although the court denied plaintiffs' request for a status conference to discuss the implications of the new law, saying that the request was "premature." That's presumably because the Department of Justice hasn't precleared Georgia's new ID law yet -- though there's not much doubt that it will do so despite the fact that the bill can be expected to have a disparate impact on African-American voters. The Eleventh Circuit's order expressly leaves it up to the district court to determine what, if any action to take pending DOJ's determination on preclearance, saying that that decision is "within the sound discretion of the able and experienced district court judge."
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.
Making Sense of Ohio's New ID Law
Last week, the Ohio legislature passed and the Governor signed a massive election bill (Sub HB 3), which significant changes in such areas as voter registration, provisional voting, challenges to voter eligibility, election contests, and the identification that voters must show at the polls. Unlike the laws that Georgia and Indiana have enacted, Ohio's law does not require government-issued photo identification. That's very good news for Ohio voters, since such photo ID laws impose a major burden on those who don't have photo ID -- a disproportionate number of which people have disabilities, are elderly, live in poverty, and are people of color.
The bad news is that, like many other features of Ohio's new law, the new requirements on ID and provisional ballots are very complicated. This will make implementation challenging, especially for the state's many poll workers, upon whom the functioning of the system depends. Most of these dedicated folks, I'd venture to guess, are not lawyers. Figuring out the detailed rules of how different voters are supposed to be treated, however, is something that almost requires a law degree -- indeed, I have one, have struggled with this bill for hours, and confess that I'm not completely sure I understand even the requirements on ID and provisionals.
Implementation will also be an enormous challenge for election officials and boards of elections, which will be charged, at the end of the day, with figuring out how to count all the additional provisional ballots that are likely to be cast. And if this law is actually followed, we can expect many more provisional ballots than in prior years. (I say "if" because I think that, given the complexity of the new rules, I think it's quite possible that some will throw up their hands when in doubt, and process voters and their ballots as they always have.) I make the prediction of more provisionals, because the new bill channels many voters who would previously have cast regular ballots into the provisional ballot pathway.
The ID requirement is one example of this. Here's my quick and probably oversimplified understanding of Ohio's new ID requirement, including the parts of the law having to do with the counting of provisionals for those who don't have the required ID when they come to the polls:
For those interested in checking my work, which I'd appreciate, the relevant provisions can be found at sections 3505.18 - 3505.183 of the new law.
1. Voters may cast a REGULAR (i.e., non-provisional) ballot if they show:
a. current and valid government-issued photo ID, or
b. a military ID with name and current address, or
c. a utility bill, bank statement, paycheck, government check, or other government document showing the voter's name and current addresss.
If you've got one of the above, you're golden -- and you should insist on casting a REGULAR ballot when you go to the polls. All others cast PROVISIONAL ballots.
2. For those who lack the required forms of ID when they come to the polls, here are the basic rules on whether their provisional ballots count:
a. Voters who know their social security number (SSN) can provide the last four numbers of it, in which case the provisionals should be counted (as far as I can tell, there's no matching required). If they don't know their SSN when they appear at the polls, they can provide the last four numbers within 10 days and have their provisional ballots counted.
b. Voters who possess one of the allowed forms of ID, but don't have it with them on election day must bring it in (or provide the last four digits of their SSN) within 10 days, to have their provisional ballots counted.
c. There's an affidavit exception for voters who have none of the required ID or SSN. That means they can cast a provisional ballot if they sign a statement under oath verifying their identity, address, eligibility, etc. And as I understand the law, those votes should be counted unless there's some discrepancy.
While I emphasize that this is an oversimplification, the bottom line for voters is that no one should be discouraged from showing up to the vote because of the ID requirement. Those that don't have a driver's license can show a utility bill or other document -- basically those that were allowed under HAVA for first-time voters who registered by mail. And those who don't have any of those documents can still cast a provisional ballot, which should be counted, either by providing the last four numbers of their SSN or if they don't have that, by signing an affidavit. So in theory, no one should be denied their vote because they lack ID. What worries me is that some poll workers won't understand the rules, or that there won't be fair or equal treatment of provisional ballots across the state.
(P.S. If anyone thinks I've gotten any of this wrong, please email me.)
Correction: After my last post, a couple of readers called my attention to section 3501.01 of the new law, which provides:
(AA) "Photo identification" means a document that meets each of the following requirements:What that means, contrary to what I previously thought, is that employee or student ID's probably won't work. The only way they'd suffice is if they show the voter's current address and were issued by the U.S. or Ohio government. I've therefore corrected my prior post to specify that the photo ID must be issued by the government.
(1) It shows the name of the individual to whom it was issued, which shall conform to the name in the poll list or signature pollbook.
(2) It shows the current address of the individual to whom it was issued, which shall conform to the address in the poll list or signature pollbook, except for a driver's license or a state identification card issued under section 4507.50 of the Revised Code, which may show either the current or former address of the individual to whom it was issued, regardless of whether that address conforms to the address in the poll list or signature pollbook.
(3) It shows a photograph of the individual to whom it was issued.
(4) It includes an expiration date that has not passed.
(5) It was issued by the government of the United States or this state.
If I were a student activist at a state university in Ohio, I'd think about lobbying my school to include addresses on student ID cards so they fall within the scope of the law (assuming they don't already, which I suspect is probably the case).
Thanks for the correction!
Ohio's Election Bill Signed Into Law
Governor Bob Taft has signed Sub H.B. 3, a massive bill overhauling the state's election system. The Columbus Dispatch has this report, and the AP this one. The state's house and senate approved the bill yesterday largely along party lines, with Republicans supporting it and Democrats opposing it.
Good government and civil rights groups such as NAACP, Common Cause, and the League of Women Voters also opposed the bill because it imposes new barriers to voting such as an identification requirement (contained in section 3505.18 of the new bill). Though not as onerous as ID laws recently enacted in Georgia and Indiana, Ohio's new identification law will undoubtedly prove problematic some voters -- especially those without utility bills or other documents showing their curent address and their name -- and a headache for poll workers.
A provision that has attracted less attention, but may also prove problematic, eliminates state-law contests of federal elections -- including for President, U.S. Senate, and U.S. House (3515.08). A losing candidate for these offices thus may no longer challenge the election under the contest provisions available to candidates state and local office. The new law instead provides that contests in federal races "shall be conducted in accordance with the applicable provisions of federal law." The trouble is, there aren't any federal law contest provisions, at least not any that allow for a judicial remedy.
To take an example of how this might come up, suppose that a candidate who narrowly loses a congressional race alleges that ballot-stuffing in her opponent's favor swung the election. Let's further suppose that the candidate is able to come up with affidavits from poll workers who witnessed the ballot stuffing, or even from those who did the stuffing admitting to their malfeasance. What recourse would the "losing" candidate have? She could still request a recount, but that won't do any good, since it will simply result in the recounting of the fraudulent ballots along with the valid ones. If the wrongdoing rises to the level of a federal constitutional violation -- say a denial of the fundamental right to vote or of equal protection -- then she might be able to bring a federal suit for violation of federal rights under color of state law (for you lawyers out there, that's a section 1983 suit). But most incidents of simple election fraud probably wouldn't rise to the level of a constitutional violation.
It thus appears unlikely that the losing candidate would have any judicial recourse. She could try taking her case to the U.S. House, which is ultimately the "Judge of the Elections, Returns, and Qualifications of it own Members" under Article I, Section 5 of the Constitution. But it's not clear what, if anything, the House would do -- and at any rate, a partisan political body is hardly a neutral forum for the resolution of such claims, and is not well-suited to hear and evaluate the relevant evidence in an election contest. Moreover, if the alleged fraud occurred in a federal primary election, it doesn't seem that there's anything the House could do. In effect, there would be no "jurisdiction" in the House over a primary election dispute. (Credit goes to my colleague Steve Huefner for noticing this.)
This is just one of the many legal issues that are likely to arise with respect to Ohio's newly passed election law in coming months and years. Though it may not be good for local election officials, poll workers, and voters, the new law will likely be a boon for lawyers and law professors. For better or for worse, and mostly for worse I fear, election law in Ohio continues to be a growth industry.