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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Thursday, June 29
 
Soaries Answers the Call
A few weeks ago, I posted these thoughts on a Rolling Stone interview with former Election Assistance Commission Chair, Reverend DeForest "Buster" Soaries, Jr. Further thoughts from Rev. Soaries on the state of election reform may be found here on the Brennan Center's site.

In the Rolling Stone interview, Soaries offered some candid thoughts as to the serious problems with our current system of election administration. After discussing those thoughts, I posed the question of what Soaries thought to be the solution, a point that was less than clear to me from the interview.

Yesterday, Rev. Soaries emailed me to say that he'd be "happy to say what the solution is if asked" but wasn't asked in the RS interview. So I asked. And here's how what he had to say:
1. We need a government funded prototype for electronic voting machines that guarantees security, reliability and accessibility.

2. We need a central resource for voters to locate polling places on election day.

3. We need weekend voting.

4. We need to recruit election workers the way we recruit jurors.

5. We need an apolitical discussion to address how the changes in America since the 18th century (size, mobility, diversity, media) impact the dynamics of states' rights in the area of voting.

6. We need mandatory standards that govern the conduct of elections.

7. We need professional training and certification for election administrators.

These reforms will require genuine commitment and leadership at the highest levels of government.

DBS
Thanks for taking the time to write, Rev. Soaries!
Tuesday, June 27
 
Brennan Center Report on Voting Technology
The Brennan Center today released a report assessing the threats to the most commonly used types of voting technology. Its report includes an analysis of direct record electronic (DRE) machines, both with and without a contemporaneous paper record, as well as paper-based optical scan voting systems. The bad news is that all three forms of voting technology are susceptible to fraud and manipulation, if appropriate procedures aren't in place. The good news is that the report finds that appropriate security protocols can significantly reduce those risks.

While I've only had a chance to review portions of the report, the approach it takes is a welcome one. It goes through in some detail potential scenarios by which attackers might attempt to manipulate election results with each type of system. This provides the sort of comparative perspective that's been missing from much of the advocacy efforts over voting technology. It also makes some helpful, practical suggestions. Among them is the implementation of parallel testing for electronic voting machines, which I've advocated for a long time.

Among the portions of the report that are likely to garner significant attention are those having to do with the utility of a contemporaneous paper record of electronically cast votes, the so-called "voter verified paper audit trail" (aka, VVPAT or VVPT). Those records will only provide an effective check against manipulation if there are automatic audits of a sufficent number of them. (It doesn't appear that the report contains specific recommendations as to what percentage need to be recounted as a routine matter to obtain a sufficient level of confidence in results -- a key piece of information -- but it's possible that I missed it.)

The efficicacy of those paper records also depends on whether voters actually check them. On this point, pages 65-67 of the report are of special interest -- the best analysis I've seen so far of how a sophisticated attacker might try to evade a VVPAT system. Briefly, that attack would involve having both the paper record and the electronic record mis-record the voter's intended choice. If the voter didn't notice, then both records would be accepted. If the voter did notice, then he or she could reject the paper record and vote again, and the second time around the correct choice would be displayed. Some of those who checked would presumably believe that they'd made the mistake.

The VVPAT system will only function as an effective check on such an attack if voters actually check the paper records. The report notes a study by Ted Selker and Sharon Cohen of MIT, finding that only 3 of 108 such "errors" were detected by voters using VVPAT systems. The Brennan Center report expresses skepticism that only 3% of voters would notice such an error in a gubernatorial race. They may be right about that, but the risks of such manipulation are probably greater in a down-ballot race where a fewer number of votes would have to be changed in order to change the result -- and as to which voters are probably less likely to check the contemporaneous paper record.

Moreover, if we hypothesize a sophisticated attacker with access to the software, it wouldn't be difficult to manipulate the print-outs in a way that would escape most voters' notice. Take, for example, the system used in Franklin County, which I described here. That system prints out each choice and change as its made. It allows voters to change their choices at the end of the voting process, in which case a notation would would be made on the paper tape. If I were attempting to mount an attack on such a machine, I'd program it to record a false change on the paper tape at the very end, after the voter has completed the voting process and presses the final "confirm" button. That change on the tape would appear right before the bar code and other items printed out at the end of each voter's ballot. Only the most diligent voter is likely to notice such a change. This doesn't appear to be something that the Brennan Center's report looked at, since it wasn't examining particular features of different VVPAT models actually in use.

I'm not suggesting that such an attack is likely. But if we hypothesize malicious attackers who are sophisticated enough to tamper with a DRE's software, the increased difficulty of "fooling" the VVPAT would seem to be minimal. And that's true even if we assume that a statistically significant number of paper records are automatically audited on a routine basis. All in all, this should be sobering for those who supposed that attaching a printer to DREs was the solution to the security issues that have been raised about this technology.
Monday, June 26
 
The Hyde Vote Suppression Bill
I've been in Washington, DC for the past few days and, on Thursday, attended a hearing of the House Administration Committee on H.R. 4844. Although somewhat lost in the last few days with the news that Voting Rights Act renewal has stalled (more on this to come), this is a very significant bill. Proposed by Rep. Henry Hyde (R-IL), the bill would make drastic changes to both the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) that would drastically alter -- and, in my view, undermine -- the way they presently function.

As the testimony on Thursday made clear, the bill is a product of the intense and increasingly polarized debate over immigration. Briefly, the bill would require applicants using the federal mail registration form to provide a photocopy of documents proving that they're citizens of the United States. In addition, HAVA's limited identification requirement would be amended to require all citizens to provide "current and valid photo identification" in order to vote. Election officials would be forbidden from accepting "any ballot," including even a provisional ballot, from those who lack photo ID. The bill would take effect in the November 2006 elections.

I know that the words "vote suppression," which I've used in the title to this post are strong ones, and I generally try to avoid inflammatory rhetoric. But I don't know how else to describe a bill that would require voters to produce documents that many of them don't have, in order to register or to vote. As Rep. Hyde has undoubtedly noticed, there's no one document that all citizens have to prove their citizenship. And according to a task force report produced for the Carter-Ford commission in 2001, approximately 6-10% of adults lack a state-issued driver's license. The Hyde Bill is actually worse than the Georgia photo ID bill enjoined by a court last year, in that it doesn't even make a token effort to provide voters with identification they lack.

Is Rep. Hyde's intent to suppress votes? That I don't know. During his testimony, he displayed an astounding ignorance of the consequences that his bill would have on the many people who don't have the documents his bill would require. He also could provide no estimate of how many noncitizens actually attempt to vote. In fact, none of those who testified in support of this bill provided any such estimate. The closest anyone came was the Harris County registrar, testifying in support of the bill, who said that of 1.9 million voters, a total of 35 foreign nationals attempted to register. Note that these are only alleged non-citizens who attempted to register, not those who tried to votes -- and some may have been people applying for citizenship with no intention of actually voting until they gained their citizenship. But even if we assume that all of them tried to vote, those 35 people amount to 0.0018% -- or one ineligible voter for every 54,285 eligible ones.

Whatever the intentions of Rep. Hyde or those who support his bill, there can be little doubt that the effect of this bill would be to suppress votes. From research done in Wisconsin, we know that voters of color -- particularly young black men -- are much less likely to possess photo ID. So are people with disabilities, elderly voters, and the poor generally. In one especially striking moment, a supporter of the bill testified it would be a good idea to "grandfather" in those already registered. An inadvertent slip, no doubt, but one that speaks volumes about what this bill would do.
Wednesday, June 21
 
Eleventh Circuit Upholds Touchscreen Voting
The Eleventh Circuit Court of Appeals issued this opinion today in Wexler v. Anderson. The plaintiffs in the case, including Rep. Robert Wexler (D-FL), challenged Florida's use of paperless touchscreen voting machines. The Eleventh Circuit rejected Wexler's claim that paperless touchscreens violate equal protection.

In my view, the Eleventh Circuit's analysis and conclusion are correct. The court aptly frames the "question of constitutional dimension" as follows: "Are voters in touchscreen counties less likely to cast an effective vote than voters in optical scan counties?" The answer to that question is Wexler was an emphatic "No." In fact, Rep. Wexler and his co-plaintiffs didn't even plead that touchscreen voters were "less likely to cast effective votes." Accordingly, the Eleventh Circuit declined to apply strict scrutiny -- properly in my view -- since plaintiffs failed to demonstrate a severe burden on the right to vote, but only a "reasonable, nondiscriminatory" election regulation.

Notably, the Eleventh Circuit distinguished the Sixth Circuit's opinion in Stewart v. Blackwell, discussed here and here. (Disclosure: I'm an attorney for the Stewart plaintiffs). The Sixth and Eleventh Circuits actually apply the same constitutional test, drawn from the equal protection cases from Reynolds v. Sims to Bush v. Gore. Where the two cases differ is in their facts. Unlike Wexler, the Stewart case did involve evidence that voters using a particular type of equipment (non-notice punch card and optical scan ballots) were less likely to cast effective notes. As the Eleventh Circuit notes, the Stewart plaintiffs had "evidence showing higher residual vote rates among voters using punch card equipment than among those using other types of equipment, including touchscreen voting machines." Strict constitutional scrutiny was therefore warranted in Stewart, but not in Wexler.

Right on target, if you ask me.
Tuesday, June 20
 
The Arizona NVRA Decision
Judge Roslyn Silver of the U.S. District Court for the District of Arizona issued this opinion and order yesterday, denying plaintiffs' motion for a temporary restraining order in Gonzalez v. State of Arizona. The case challenges Arizona's refusal to register voters who complete the so-called "federal form," prescribed by the National Voter Registration Act (NVRA) for mail registration, unless they provide proof of citizenship with that form. Arizona has taken this action pursuant to Proposition 200, which imposes new proof-of-citizenship requirements on those seeking to register and vote. I've previously discussed this issue here.

My initial impression is that the court's interpretation of the NVRA is incorrect. In particular, I don't think the court's reasoning squarely confronts the strongest argument against what Arizona seeks to do under Proposition 200. The NVRA requires all states to "accept and use" the federal mail registration form, developed by the Election Assistance Commission (EAC). 42 U.S.C. 1973gg-4(a). (It used to be the Federal Election Commission, but the Help America Vote Act of 2002 (HAVA) transferred this responsibility to the EAC.)

There's no question that a state has the authority to develop and use its own form, within certain boundaries set by the NVRA. 42 U.S.C. 1973gg-4(b). But even if a state chooses to do so, it must still "accept and use" the federal form. The Arizona dispute, to my mind, really involves the meaning of the term "accept and use." In particular, the dispute hinges on whether "accept and use" means states must register voters who properly complete the federal form for mail registration -- or, alternatively, whether the state is allowed to demand additional information as a condition of registration.

In concluding that a state may condition registration on additional proof of eligibility not required by the federal form, the district court relies on another section of the NVRA, 42 U.S.C. 1973gg-7. Subsection (a) of that provision says that the EAC should develop the federal form, in consultation with states' chief election officers. Subsection (b) sets forth what the federal form is supposed to include, including an attestation that the voter meets eligibility requirements and a signature line under penalty of perjury.

It's at this point that, I think, the court's reasoning goes astray. The court interprets subsection (b) to allow the federal form to include other requests for information, in addition to what's specified in the statute. Let's assume that's so. Even if the court is right on this point, it's immaterial to this case, which isn't about what the federal form may or should include. It's instead about whether, given what the federal form does in fact say, a state may demand additional proof of eligibility on top of what the form calls for. Subsection (b) doesn't speak to that question.

If Arizona thinks that the federal form ought to be amended to allow it to demand proof of citizenship, that's a matter for it to take up with the EAC in the first instance, through the consultation process described in subsection (a). It would then be up to the EAC to determine whether the form should be amended to accommodate Arizona's concern, in light of 42 U.S.C. 1973gg-7 and any other relevant provisions of the NVRA. What Arizona's apparently attempted to do is to make an end-run around the consultation between the EAC and state election officials required by statute. In this respect, the court's order appears to bump up against the EAC's regulatory authority.

The court's reliance on subsection (b) of 42 U.S.C. 1973gg-7 is thus, in my view, a distraction from the real issue: whether the "accept and use" language allows states to demand additional information, beyond what the federal form requires. The court declines to look at legislative history, believing that the statute is clear in allowing the state to demand such additional information. I don't think that's so. If it were, then it would be easy for states to make an end-run around NVRA. They could, for example, refuse to accept the federal form unless registrants completed elaborate supplemental forms mandated by the state, or supplied proof of eligibility not possessed by many applicants (such as government-issued photo ID). Moreover, had the court examined the legislative history of the NVRA, it would have found that Congress actually rejected an amendment that would have permitted states to require "documentation relating to citizenship" of would-be registrants.

Perhaps I've missed something, but I don't see that the district court squarely addresses the clearest argument against Arizona's action. Bear in mind that I've not seen the briefs, so don't know exactly what was argued to the court. But the court's rationale for finding the statute unambiguous -- and therefore for avoiding the legislative history -- rests on a subsection of the NVRA that isn't, to my mind, germane to the question at hand.
Monday, June 19
 
Two New Briefs
Briefs were filed today in two significant voting rights cases pending before federal courts of appeals.

The first is the Plaintiffs' response to the petitions for rehearing in Stewart v. Blackwell. (Disclosure: I'm one of the attorneys for Plaintiffs in this case. I don't yet have the cover page, but will add it when I do.) This is the case in which the Sixth Circuit Court of Appeals held that Ohio's use of non-notice voting equipment violates the Equal Protection Clause, given the substantially greater likelihood that voters in counties using that equipment will have their votes rejected. There's also a claim of race discrimination under Section 2 of the Voting Rights Act, which the panel remanded. The Sixth Circuit panel's opinion is described here and available here, and the Defendants' petitions for rehearing may be found here.

The other case is Crawford v. Marion County Board of Elections/Indiana Democratic County v. Rokita, which is a challenge to Indiana's voter ID law. The district court rejected the Indiana Democratic Party and Indiana Civil Liberties Union's claims in this order. The IDP today filed this brief in support of their appeal in the Seventh Circuit.
Sunday, June 18
 
ACS Convention: Democracy and the Rule of Law
I've just returned from Washington, DC, from the annual convention of the American Constitution Society for Law and Policy (ACS). This year's theme was "Democracy and the Rule of Law," and the agenda is available here. As the title suggests, the convention involved considerable discussion of political equality issues, including those surrounding redistricting and election administration.

I appeared on a redistricting panel that also included two of the attorneys on the Texas case currently pending before the Supreme Court, Paul Smith and Nina Perales. That decision should be coming out shortly, possibly as soon as tomorrow. Another especially intersting panel focused on the issues surrounding the renewal of the Voting Rights Act. It included these thoughts from Bob Bauer on why Georgia v. Ashcroft shouldn't be reversed. On that subject, civil rights groups are staging a national call-in day tomorrow to urge renewal of the VRA tomorrow, even as some Senate Republicans are planning to unveil a proposal that would substantially alter the coverage formula, according to this report.

In the midst of the debates over VRA renewal, it's important to keep an eye on measures that would suppress voter registration or participation. On that subject, Project Vote has put together some helpful resources, including this briefing paper on state efforts to regulate and/or restrict voter registration drives. It also looks like there may be some efforts in the House to push through a nationwide requirement that voters prove their citizenship in order to register ... more on this to come if it looks like this is moving forward.
Wednesday, June 14
 
Accessible Democracy
I'm in Cleveland today, for a presentation to the Ohio Association of Elected Officials on the voting rights of people with disabilities. I thought it might be helpful, for election officials as well as voters with disabilities and their advocates, to post the PowerPoint slides from my presentation. They cover the voting system requirements of the Help America Vote Act of 2002, but focus mostly on polling place access requirements under the Americans with Disabilities Act of 1990. Also presenting was David Vottero, an architect with SchooleyCaldwell Associates whose presentation will be posted on their site.

In the course of my research for this presentation, I found a few places with helpful information on disability access issues surrounding voting. Foremost among them is the ADA Checklist for Polling Places published by the Department of Justice, as well as the ADA Accessibility Guidelines for Buildings and Facilities on which the checklist is largely based. Also instructive, though a bit dated, is a 2001 GAO report, Voters with Disabilities: Access to Polling Places and Alternative Voting Methods, which contains the most comprehensive assessment polling place access that I've seen.
Monday, June 12
 
DOJ Gets Injunction Against Alabama
The U.S. District Court for the Middle District of Alabama has issued a preliminary injunction against the State of Alabama and its Secretary of State Nancy Worley, for their failure to implement the Help America Vote Act's registration-related requirements. Ed Still has posted Judge W. Keith Watson's preliminary injunction order here, and the Department of Justice's complaint here. Alabama conceded that it was not in compliance with HAVA's requirements. The court's order requires that defendants come up with a plan for how they'll comply with HAVA's statewide registration list, database matching, voter identification, and registration application requirements by June 29. By my count, this makes Alabama the third state with respect to which DOJ has secured relief for HAVA violations, either by court order or agreement (the other two being New York and California), though it's possible there are others of which I'm not aware.
Saturday, June 10
 
More on Florida's Registration Rules
I've now had a chance to read the Brennan Center's motion for preliminary injunction in the case challenging Florida's new registration laws (League of Women Voters of Florida v. Cobb). As I mentioned in Tuesday's post, the Florida League maintains that this law forced them to shut down voter registration activities in Florida. A closer look at the brief reveals that it raises substantial questions about how voter registration is conducted and regulated.

According to the brief filed on behalf of the League of Women Voters and other plaintiffs, the law applies exclusively to non-party groups conducting registration drives. It imposes fines of $250 for registration applications submitted more than 10 days after they're collected, $500 files for ones submitted after the deadline, and $5000 for ones not submitted at all. According to the brief, there is strict liability -- meaning that there's no excuse that can avoid the fines, even where reasonable care was exercised or something beyond the control of the groups prevents the forms from being delivered. (As examples, the brief mentions acts of God like hurricanes, or the death of League members collecting forms.) However, the fines may be reduced if groups pre-register with the state and comply with quarterly reporting rules. Organizations and the individuals collecting registrations are jointly and severally liable.

The plaintiffs' argument rests mostly on the idea that it violates the First Amendment to treat party-affiliated voter registration efforts more favorably than voter registration by non-party groups. And on its face, the distinction drawn by Florida's law seems hard to defend. For example, the brief notes that the "Surfers Party of America" isn't subject to the same restrictions and fines to which the League would be subject, if it continued its voter registration efforts. One would expect that, if Florida's law is upheld, nonpartisan organizations like the League will curtail their registration drives, thus shifting the burden to the parties to conduct registration.

Florida will likely attempt to defend its law by arguing that non-party groups present a greater threat than the parties, in terms of failing to return registration forms. But it's hard to avoid the conclusion that partisan considerations played at least some role in this. Florida's legislature is dominated by Republicans and the state, of course, has a Republican governor. While there are certainly right-leaning groups that conduct voter registration drives, the general perception is that left-leaning groups -- like ACORN and the NAACP -- will be more severely affected.

The appearance of partisan bias is fueled by another law, HB 125, that the Florida legislature passed and Governor Jeb Bush just signed, as noted in the Miami Herald. (Thanks to Nate Persily for the pointer.) That NRA-backed law, which may be found here, requires voter registration applications to be displayed everywhere that hunting, fishing, and trapping licenses are sold. Those applying for such licenses must be asked whether they'd like to register, but those subagents aren't deemed third-party registration organizations under Florida law. There's certainly nothing wrong with a law making voter registration available to more voters. But making registration easier for this group of voters, while at the same time impeding non-party voter registration drives, suggests that the majority party in Florida is seeking to tilt the registration rules to its own advantage.
Thursday, June 8
 
Soaries Speaks -- And Boy Does He Ever!
The former chairman of the Election Assistance Commission ("EAC"), DeForest "Buster" Soaries, sat down for this interview with Rolling Stone magazine. The interview is eye-opening, and one might even say eye-popping, in what it reveals about how election reform is going, at least from the perspective of one of those charged with overseeing it.

In a nutshell, the answer is: not very well. Soaries -- who by the way is a Republican -- is blunt in his criticism of Congress and the White House for their lack of commitment to the improvement of election administration. Here are some highlights:

-On his time with the EAC, Soaries says: "It was probably the worst experience of my life. I found that there is very little interest in Washington for true election reform. That neither the White House nor either house of the Congress seems to be as committed to guaranteeing democratic participation in this country as we seem to be in other countries. It's an embarrassment that we don't have a broad enough consensus among political leaders that true reform should take place. I could count the members of Congress on one hand that took these issues seriously."

- When asked about whether there was any pressure from the White House seeking to politicize the EAC's work, Soaries replies: "The one time I got a call from the White House trying to invade this space, I pushed back, and they never called again. There were people in the White House who thought that because I was a Republican that I cared more than I did about Republican politics." He doesn't say what issue the White House called on.

- On the biggest problem with U.S. elections, Soaries describes a "very fledging group of election officials, who receive no training and operate on shoestring budgets" in one corner, and "political consultants whose job is to get their candidates elected" in the other. Not a recipe for success, according to Soaries, but rather one that results in an "embarrassment."

- When asked whether he was troubled by what happened in Ohio in 2004, Soaries replied: "Is a two-hour line appropriate or inappropriate? We don't have an answer to that question. What we say is that democracy means that you have the right to vote without intimidation and undue burdens. But if you stand in line for six hours, technically, today there is no document, no standard, no law that says that that's wrong." He continues, alluding to Ken Blackwell: "But the Secretary of State of Ohio has proven that you can get straight through an election by saying: We broke no law. You see the problem?" If I understand him correctly, Soaries' point is that existing election laws -- and least at the federal level -- don't do enough to stop voters from being subjected to considerable burdens, even ones that may have the effect of preventing them from voting entirely. Thus, election officials can plausibly claim not to be violating any law, even when the system operates in such a way as to impede access to eligible voters.

So what does he think the solution is? On this point, I take the Soaries interview to be less than clear. It is nevertheless very much worth reading and, to the extent one believes his account of the current state of election reform to be accurate, very dispiriting.
Tuesday, June 6
 
VR Issues in Florida & Ohio (Where Else?)
An emerging issue in election administration is the adoption of state laws that make it more difficult for non-party organizations to conduct voter registration. This development is a product of alleged problems during the 2004 election season with phony registration forms being turned in by some groups.

In Ohio, the League of Women Voters, Brennan Center, Common Cause and other groups are criticizing proposed rules that Secretary of State Blackwell's office has promulgated, to implement the state's recently passed omnibus election bill, House Bill 3. The Brennan Center's letter opposing the proposed rules is here, and the Columbus Dispatch and Cleveland Plain-Dealer have reports on yesterday's hearing.

In a nutshell, these groups allege that the proposed rules would force each individual registering voters to hand-deliver completed forms directly to the Secretary of State's office or county board of elections, on pain of criminal penalties. That means for example, that ten individuals working with a group conducting registration -- say ACORN or the League -- wouldn't be able to bring all their forms back to the group's office, and have one person return the forms collected by all ten. Instead, each of the ten would have to bring the registrations he or she collected. Also, the Secretary of State's rules would apparently foreclose the forms from being mailed back. They'd have to be hand-delivered directly by the individual who collected them.

The Plain-Dealer also reports on a lawsuit that the Brennan Center filed in Florida last month on behalf of the League, regarding that state's recently passed voter registration law (Fla. Laws 2005-277, Secs. 2 and 7) . See this press release. The law would impose a a $250 fine for each registration form submitted more than 10 days late, and a $500 fine if submitted after the deadline. If a form isn't submitted at all, the fine is $5,000. The Florida League says it was forced to cease all its registration efforts as a result of those rules -- given that its annual budget is only $80,000, a few mistakes could quickly put it out of business. Not a bad way of discouraging voter registration efforts, if that's your goal.
Monday, June 5
 
Spencer Overton's "Stealing Democracy"
I just received Spencer Overton's new book, Stealing Democracy: The New Politics of Voter Suppression, published by W.W. Norton & Company. Professor Overton teaches at George Washington University Law School. He's one of the leading scholars in the field of election law, his research focusing largely on protecting the democratic rights of people of color and language minorities. See this website for background on the book, including a list of resources for those interested in getting involved. The book may be purchased here on Amazon.com.

In contrast to some other recent works with variants of the word "steal" in their title (see Friday's post), Professor Overton's book isn't about the theft of any particular election. Its main focus is, instead, on how seemingly neutral practices operate to diminish the political influence of many voters. Here's an excerpt from the website's description:
While politicians spew shallow sound bites that describe a "free" American people who govern themselves by selecting their representatives, in reality politicians from both parties maintain control by selecting particular voters. Incumbent politicians maintain thousands of election practices and bureaucratic hurdles that determine who votes and how votes are counted -- such as the location of election district boundaries, long lines at urban polling places, and English-only ballots. Spencer Overton uses real-life stories to show how these seemingly insignificant practices channel political power and determine policies on war, schools, clean air, and other issues that shape our lives.
I've read most chapters of the book in draft form, and recommend it highly. Professor Overton does an especially nice job of boiling down complex voting rights issues in a way that's likely to be understandable to readers who aren't experts in the field, without sacrificing accuracy and without ducking hard questions. I especially appreciate the fact that the book tackles issues of access to the ballot -- such as voter ID and felon disenfranchisement, which I collectively refer to under the rubric "The New Vote Denial" -- in addition to questions of representation and vote dilution. I'm looking forward to reading the final version of Stealing Democracy, and hope that it finds a wide audience.
Friday, June 2
 
Back to Ohio: The Rolling Stone Piece
Robert F. Kennedy, Jr. has published this article in Rolling Stone, entitled "Was the 2004 Election Stolen?" It's a long article but, for those anxious to get to the bottom line, his answer to the title's question is an emphatic "yes."

Kennedy's treatment of his subject differs from most "stolen election" arguments we've heard since 2004, in that it's much more comprehensively researched -- including over 200 footnotes that would make a law professor proud. While there's not a whole lot of new information here, Kennedy does a nice job of explaining and cataloguing the numerous problems that did in fact occur in Ohio's 2004 election. For reasons explained below, I don't think he makes a persuasive case that the election was "stolen" (i.e., that Kerry really won). The article is nevertheless useful in exposing how shoddy election administration practices can result in lost votes, and how some recently enacted laws will make things worse rather than better.

Real Problems

Let me start with the aspects of Kennedy's article that I liked. The article extensively describes the various impediments to voting that occurred in Ohio's 2004 election. And there were a lot of problems in that election, some probably driven by the desire to suppress votes and others by plain incompetence. To summarize some of the most significant problems that Kennedy describes:

- As in most other states, Ohio's chief election official is elected on a partisan basis. This inevitably creates the risk that the official will discharge his or her duties in a partisan fashion, and there's evidence to support the conclusion that Secretary of State Ken Blackwell did just that in 2004. Foremost among the decisions that might reasonably be questioned are his order not to count provisional ballots cast in the wrong precinct, and the order (later rescinded) to require that registration forms be on 80-lb. paper weight.

- In the weeks preceding the 2004 election, the Republican Party mounted an extensive effort to challenge voters' eligibility. According to Kennedy, the GOP sent letters to over 200,000 newly registered voters, and later sought to have more than 35,000 voters taken off registration lists when the letters were returned, a practice known as "caging." These pre-election challenges were ultimately stopped by a federal district court, properly so in my opinion.

- The punch-card voting systems that were used by over 70% of voters in Ohio's 2004 election resulted in the loss of tens of thousands of votes. Overall, there were around 95,000 votes on which no vote for President was recorded, the majority of those cast by punch card. Other voters used non-notice optical scan systems, which are also prone to error. Kennedy estimates (based partly on my work) that 66,000 votes were lost due to unreliable voting equipment. This seems to me a reasonable estimate if we include the votes lost due to non-notice punch-card and optical scan systems.

- There were inexcusably lines at many polling places in Ohio, including those in Franklin County and Knox County. Kennedy reports that some voters near Kenyon College had to wait for eleven hours before voting. He also finds that the reported problems with long lines were concentrated in urban areas with high minority populations, and the mostly anecdotal evidence that I've seen suggests that this is probably accurate. A DNC-sponsored survey found that 3% of voters, which would be over 174,000, left the polls without casting ballots due to long lines. (Interestingly, the percentage who left and didn't come back was about the same 3% for both black and white voters.) While it's difficult to measure with any degree of precision how many votes were lost due to long lines, this undoubtedly was a serious problem that discouraged some people from voting.

A Grain of Salt

There are other aspects of Kennedy's report that would be very disturbing if true, but appear to rest on somewhat weaker evidence. For example:

- Kennedy describes a group of Republican operatives known as the "Mighty Texas Strike Force" which allegedly "us[ed] pay phones to make intimidating calls to likely voters." Kennedy's source for this allegation is a report produced Democrats on the House Judiciary Committee in January 2005, entitled "Preserving Democracy: What Went Wrong in Ohio," also known as the Conyers Report, which quotes a statement made by an unidentified hotel worker. While this allegation is what we lawyers would call hearsay -- actually, it's triple-hearsay, since the Conyers Report was relying on a statement made at a hearing by someone other than the hotel worker -- if true it's obviously very troubling.

- The Greater Cleveland Voter Registration Coalition (GVREC) found that about 16,000 voters in that area were disenfranchised by data-entry errors on the part of election officials in Cuyahoga County, and another 15,000 votes were denied due to trivial omissions on registration cards. If extrapolated to the whole state, this would mean 72,000 or so votes denied. There undoubtedly were data-entry errors, but as GVREC candidly acknowledged, this was a "ballpark" estimate. I think it's on the high side, since those voters wrongly omitted from registration lists should still have been permitted to cast provisional ballots. And as summarized here, there were only 158,642 provisional ballots cast, of which 123,548 (78%) were counted -- meaning that just over 35,000 people cast provisional ballots that didn't end up being counted. Now, it's possible that some voters were wrongly denied a provisional ballot, but those should be captured in the 3% survey figure noted above.

To summarize: There's no doubt that some votes were lost due to faulty voting technology (let's say 66,000). There were also likely some voters whose provisional ballots weren't counted due to registration errors (the most that this could possibly be is 35,000). Add to that voters who report leaving the polls without casting a ballot (174,000, generously estimated), and you've still only got a total of 275,000 lost votes-- and keep in mind that this is indulging very optimistic assumptions in Kerry's favor. If my algebra is right, Kerry would still have had to pick up about 196,500 of those lost votes, or over 71%, in order to tie Bush, given the 118,000 margin of victory. Perhaps not beyond the realm of possibility, but not very likely.

Hard to Swallow

This brings me to the aspects of Kennedy's report of which I'm most dubious. To conclude that the election was probably "stolen," Kennedy has to rely on the discrepancy between exit polls and the reported results. I've previously expressed my doubts about this line of reasoning here, but Kennedy's report relies on something new: a forthcoming book by Steve Freeman & Joel Bleifuss, entitled Was the 2004 Presidential Election Stolen? Exit Polls, Election Fraud, and the Official Count. (According to Kennedy's footnote, this book is coming out next month and it's listed on Amazon.com.)

While it's hard to evaluate a claim based on a source that isn't yet available, I remain very skeptical of the argument that exit poll discrepancy prove widespread election fraud. As an initial matter, it's worth noting that Mystery Pollster Mark Blumenthal, a reliable source on matters of exit polling, has argued that Freeman's prior work exaggerated the significance of the "errors" within Ohio and the other states in which such discrepancies existed. Blumenthal has collected his prior posts on the exit polls surrounding the 2004 election, all of which are enlightening for those interested in learning more about the subject, here.

The biggest problem with relying on exit polls to "prove" widespread election fraud is that it there's no plausible explanation of how such fraud could actually occur. The discrepancies existed not just in one but in many counties, each of which is administered by its own bipartisan board of elections, as Kennedy notes. These counties used a variety of different types of voting equipment, including punch card, optical scan, and direct record electronic systems manufactured and sold by different vendors. To believe that the exit polls prove election fraud, you have to believe that a group of people somehow managed to orchestrate the manipulation of results in not just one but in many counties, all of which run their own elections. Moreover, because the exit poll discrepancy existed in 30 states, according to Kennedy, you have to believe that there was widespread ballot stuffing and/or ballot snuffing across state lines, in hundreds of counties using various different types of equipment, many of which have chief election officials who are either nonpartisan, bipartisan, or Democrats. No plausible explanation has been offered as to how one could pull off such an extensive conspiracy -- and it is a conspiracy theory -- without detection.

Even if we take Kennedy's characterization of Freeman & Bleifuss' finding at face value, it doesn't eliminate the most plausible explanation for the reported result/exit poll discrepancy, which Blumenthal has discussed here and here, and which I noted here. That's the possibility that Bush voters actually avoided those conducting the exit polls, or even lied about whom they voted for, given that those voters might have assumed that a "college student approaching with a clipboard" was a Kerry supporter, as Blumenthal puts it. Kennedy's basis for rejecting this possibility is that: "In Bush strongholds, Freeman and the other researchers found that fifty-six percent of voters completed the exit survey -- compared to only fifty-three percent in Kerry strongholds" (citing Freeman & Bleifuss' forthcoming book). Even if this is true, however, it doesn't tell us who those voters completing the exit survey in Bush strongholds were -- or more precisely, whom they supported. More specifically, it doesn't eliminate the possibility that Kerry voters in Bush strongholds were more likely to speak with interviewers than were Bush voters in those strongholds.

Kennedy also rests on the fact that in twelve sparsely populated counties, a Democratic candidate for chief justice of the state supreme court, Ellen Connally, drew more votes than Kerry. Following the Conyers report, he questions how a "gay-friendly black judge roundly rejected in Democratic precincts" could have gotten more votes than Kerry in those counties. Sounds like a hard question ... until you consider that many voters probably didn't know that she was gay-friendly, black, or even a Democrat. Although I'm an Ohio voter, and was following the 2004 election pretty closely, I must confess that I didn't know she was "gay-friendly" or black until reading Kennedy's article. These down-ballot contests simply don't receive a lot of media attention (which is one of the big problems with electing judges in the first place, but that's a different subject). I did know that Connally was a Democrat, but other voters might not even have known that. Although judicial candidates in Ohio are typically endorsed by the parties, the offices are nominally nonpartisan and, under Ohio law, "[n]o name or designation of any political party" is supposed to appear by judicial candidates' names on the ballot. So inferring election fraud in 12 counties based on Connally's vote total is, in my view, quite a stretch.

What to Make of All This?

After reading Kennedy's account, my overall reaction is similar to that which he quotes Senator John Kerry as having:
Can I draw a conclusion that [the Republicans] played tough games and clearly had an intent to reduce the level of our vote? Yes, absolutely. Can I tell you to a certainty that it made the difference in the election? I can't. There's no way to do that. If I could have done that, then obviously I would have found some legal recourse.
As I said shortly after the November 2004 election, and still believe today, I don't think that Kerry won Ohio's election. And as I've said in a law review article that Kennedy cites at several points in his story, I think that Kerry made the right call by not contesting the result in court. The 118,601 votes by which Bush took Ohio in 2004 is several orders of magnitude greater than the 537 votes by which he took Florida in 2000. It's perfectly reasonable to believe that the latter result was erroneous, but it strains credulity to believe the same about the former result.

The most important question we now face, however, is not whether Kerry really won. It is instead what ought to be done about the very real and serious problems that emerged in Ohio and other states in 2004, which Kennedy exhaustively documents, for the most part quite accurately.

Unfortunately, some of the measures being implemented in the states would do little or nothing to improve elections. One of them is the so-called "voter verifiable paper trail" (VVPAT) that's part of the "Count Every Vote Act" that Kennedy mentions. If there's anything that should be clear from Ohio's 2004 election, in which the substantial majority voted with punch card and optical scan ballots, it's that paper doesn't guarantee election integrity or public confidence in the results. Whatever type of system is used for voting, the key to election integrity is trustworthy procedures -- maybe less sexy that the VVPAT, but likely to be much more effective. Unfortunately, there were many aspects of Ohio's 2004 election, including the recount, in which such procedures don't appear to have been observed. That can only damage public confidence in the results.

Even more damaging are the measures being proposed in some states to impede access to the vote. Kennedy properly notes that the restrictive voter ID laws recently enacted in Georgia and Indiana are tailored to suppress voter turnout. Unfortunately, there's a well-orchestrated campaign to pass these vote suppression measures in other states, which I've previously described here. The State of Missouri's legislature recently enacted a similar law, and others seem likely to follow, absent a groundswell of opposition.

It's perfectly reasonable to look back at the 2004 election and try to learn from the mistakes that were made. I'm therefore not one who believes that those distressed by the 2004 result should simply "get over it." But arguing over who really won shouldn't distract us from issues like voter ID and felon disenfranchisement, where the present fight over vote suppression really lies.
Thursday, June 1
 
More on Missouri's Voter ID Bill
Following up on Tuesday's post, there's more news on Missouri's soon-to-be-law requiring photo ID to vote. Secretary of State Robin Carnahan has asked Governor Matt Blunt to call a special legislative session so that the legislature can fund the bill. Those costs include providing ID to the roughly 170,000 voters who don't have it. Governor Blunt has refused. The St. Louis Post Dispatch has this report, and Carnahan's letter to Blunt may be found here.

Carnhan's letter states that: "Failure to [provide adequate funding], or making only a halfhearted effort, not only jeopardizes the integrity of our elections, but also puts the constitutional voting rights of up to 170,000 legitimate Missouri voters -- primarily seniors, disabled and poor -- at risk. Secretary Carnhan's letter estimates the funding needed to provide ID to voters at $2 million, which sounds very conservative to me. This is in addition to other costs associated with the bill.

Governor Blunt's refusal to call a special legislative session to provide funding shouldn't come as a great surprise. It confirms that the portions of the bill calling for free ID to those who lack it are window dressing for what is, in purpose and effect, a disenfranchisement bill.

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Moritz College of Law The Ohio State University