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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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Tuesday, October 31
 
Editorial Note: Weekly Comments
Posted below is my Election Law @ Moritz weekly comment for today. From this point forward, I'm planning to double-post any weekly comments I write, both on this blog and on the front page of the EL@M site. My previous weekly comments, which haven't been included on the blog, may be found on this archive page.
 
Recount Redux?: What Might Happen in a Close Election
Voting technology issues continue to loom large in the 2006 election season. This is largely the result of the Help America Vote Act of 2002 (HAVA), which requires that new equipment be in place this year in states that accepted federal funds to get rid of their old punch-card and lever machines. HAVA also mandates that at least one disability-accessible unit be at each polling place in this year's elections. While HAVA was intended to remedy some of the problems that arose in the 2000 Florida recount, the equipment that's been put in place in a number of states raises new questions about what would happen if a close election led to another recount.

Security Concerns and the VVPAT

The introduction of new voting equipment has prompted security concerns on the part of some computer scientists, who argue that paperless electronic voting machines are susceptible to fraud and error. This has in turn led some advocates to demand that electronic voting machines produce a contemporaneous paper record, or "voter-verified paper audit trail" (VVPAT), which may be used in the event of a recount. According to electionline.org, 22 states have now enacted such laws, 17 of which use electronic voting equipment. In some of those states -- including Ohio -- the paper ballot is the official ballot of record as a matter of law. ORC 3506.18.

A problem that's not been given sufficient attention is how a recount would actually work with a VVPAT electronic voting system. In Ohio and most other places that have VVPAT electronic voting machines, the paper record is printed on a roll of paper tape adjacent to the touchscreen interface. That paper tape is behind a transparent screen, so that the voter can see but not touch it, as depicted here and here.

A closer examination of this type of VVPAT system reveals difficulties, both legal and practical, that could arise in the event of a recount. On the practical side, an in-depth study of the equipment used in Cuyahoga County, Ohio's May primary election showed that 10% of the VVPAT records were in some way compromised. Among the problems were blank VVPAT tapes, accordian-style crumpling, destroyed VVPATs, printing anomolies, and missing text. To be sure, there were many other problems found in Cuyahoga County's primary election, as itemized in today's story from Wired.com. Those include human errors that could result in the electronic records being compromised. The problems relating to the paper records are particularly troubling, however, because they could mean trouble in the event of a recount.

We don't know for sure whether the problems observed with the paper records in Cuyahoga County also exist in other places that are using VVPAT electronic voting machines. That's because no comparably detailed study has been done, in Ohio or elsewhere, to study the functioning of VVPATs in a real election. As Professor David Dill of Stanford puts it in the Wired.com story: "I suspect that Cuyahoga County may be below average (in terms of how well it ran its election), but if you lift up the rock and look at election administration across the country, you'll see the same thing elsewhere." If there are similar problems elsewhere, it will open up a new possibility for post-election litigation over recounts.

Ohio's Recount Law

Let's assume, for the moment, that the VVPAT problems witnessed in Cuyahoga County's primary are widespread. How might this play out in the event of a close election? To answer this question, it's necessary to take a closer look at state law. A statute passed by the Ohio state legislature in 2004 states:

For any recount of an election in which ballots are cast using a direct electronic voting machine with a voter verified paper audit trail, the voter verified paper audit trail shall serve as the official ballot to be recounted. ORC 3506.18(A)
This statute would seem to suggest that, if there's a recount, the paper record would trump the electronic record in the event of a discrepancy. This is complicated, however, by Standards for Voter Verified Paper Audit Trail that were issued by the office of the Secretary of State to implement the statute. These standards include "Design requirements" which provide that: "In the case of a difference between the electronic record and the paper record copy, the paper record copy shall govern, unless there is clear evidence that the paper record copy is inaccurate, incomplete or unreadable as defined in the system procedures."

On the face of it, there appears to be some tension, if not conflict, between the statute passed by the legislature and the standards promulgated by the Secretary of State. Although a statute is a higher source of law than administrative rules, courts are generally supposed to accord deference to rules promulgated by agencies like the Secretary of State's office. That deference isnt's warranted, however, if the agency's interpretation is "unreasonable or conflicts with a statute covering the same matter." State ex rel. Celebrezze v. National Lime & Stone Co., 68 Ohio St. 3d 377 (1994).

If there were a close election in Ohio that led to a recount, one of the questions that could emerge is whether the Secretary of State's standards are a reasonable interpretation of the statute or, alternatively, whether they conflict with the law passed by the legislature. Going back to the Cuyahoga County problem, this means that there could be a dispute over which records govern -- the electronic records or the paper ones -- in the event of an election in which the VVPAT records were compromised. One side might claim that the electronic records would govern in a recount, citing the Secretary of State's standards. The other side could respond that the VVPAT records should be treated as the official ballot of record, arguing that the Secretary of State's standards are inconsistent with the statute.

My point is not that electronic records are foolproof. Without proper procedural safeguards, they too are subject to fraud and error. But paper records aren't foolproof either. In making the paper record the official ballot, a new set of legal and practical problems has emerged.

Recounting a Close Election

Could the discrepancy between paper and electronic records really make a difference? In a close enough election, it might. If voting equipment and associated errors were randomly distributed throughout the state, then one would not expect it to matter whether paper or electronic ballot records govern in the event of a recount. Even if 10% of votes are thrown out, it wouldn't affect the election result so long as the errors are random -- that is, so long as they affected all candidates equally.

In reality, however, voting equipment isn't randomly distributed, at least in Ohio. To illustrate the point, I've created this spreadsheet, which shows the type of voting equipment used in each of the 88 Ohio counties, according to the Secretary of State's website.* The counties labelled "DRE" are ones using direct record electronic voting equipment that, under state law, must generate a VVPAT. It also shows the results of the 2004 presidential election, also taken from the Secretary of State's website, including which candidate (Bush or Kerry) received more votes in each of the counties. Overall, Bush won in Ohio by a margin of 118,601 votes, receiving 2,859,768 votes to Kerry's 2,741,167.

Using this data, I have attempted to measure how the use of VVPAT records as the official ballot might have affected the outcome, if the current equipment had been used in 2004. To do this, I determined the number of votes cast for Bush and Kerry in the 57 counties that are now using VVPAT electronic voting machines (as shown on the "DRE Stats" tab of the spreadsheet). It turns out that those counties, on the whole, tended to lean toward Kerry over Bush. Overall, the counties that are now using VVPAT electronic voting equipment cast 1,972,006 votes for Bush versus 2,021, 895 votes for Kerry.

Next, I attempted to measure the effect that equipment differences could have on the outcome, in the event of a recount where 10% of all the VVPAT records were unusable (as shown on the "-10%" tab of the spreadsheet). Assuming that these compromised paper records would furnish the official ballot of record, that would mean that 10% of the votes in the counties using an electronic VVPAT system would be lost. This figure is not precise, since some votes were also lost due to the punch-card card equipment that was used in most of those counties in 2004, but it at least furnishes an approximate baseline by which to measure the effect of compromised VVPAT records.

In this scenario, both candidates would have lost votes -- but Kerry would have lost more. Bush would have wound up with 1,774,805 votes in the affected counties, while Kerry would have wound up with 1,819,715 votes. On a statewide basis, making compromised VVPAT records the official ballot of records would have made Bush's final margin of victory 123,590 votes rather than 118,601 votes. Bush would thus have picked up about 5,000 net votes.

My point here is not to suggest that we're on the brink of another election meltdown, but simply that compromised VVPAT records could make a difference in a close election. While a 5,000 vote swing in either direction wouldn't have been enough to affect the outcome of the 2004 Ohio presidential election, it could affect closer elections -- such as Florida's 2000 presidential election or Washington's 2004 gubernatorial election. What's ironic is that Democrats have, for the most part, been the ones pushing for laws to require the VVPAT and to make it the official ballot of record. The above analysis shows that, in Ohio, Democratic-leaning counties would stand to lose more votes than Republican-leaning counties, if VVPAT records are compromised.

The problems in implementing present-generation VVPAT systems should counsel hesitation in making paper the official record in the event of a recount. In the event of a close election, states that have chosen to make the VVPAT the official ballot of record -- as well as the advocates who supported such laws -- could be in for a rude surprise.

*Irene Mynatt of the EL@M team provided indispensible assistance in creating this spreadsheet, though any errors are the author's alone.
Monday, October 30
 
Sixth Circuit Stays Ohio TRO
Yesterday evening, a three-judge panel of the Sixth Circuit Court of Appeals issued this brief order staying most provisions of the temporary restraining order that U.S. District Judge Algenon Marbley issued on Thursday. The order upholds Judge Marbley's order that absentee ballots be preserved, but stays the TRO's provisions that absentee ballots be counted regardless of whether they include the correct identifying information. The Sixth Circuit says that it will issue an opinion explaining its ruling "shortly."

For reasons I explained here, I suspect the Sixth Circuit's order will create more disruption than it resolves. This is encapsulated nicely in the headline to this Cleveland Plain Dealer story: "Voter ID rules change a third time in four days." Especially problematic is figuring out what to do with absentee ballots that were cast during the period that the TRO was in effect. It would seem transparently unfair, and perhaps a violation of those voters' right to vote, not to count absentee ballots that complied with the terms of the court order then in effect. The Sixth Circuit's order doesn't address this question, but hopefully its opinion will.

At this point, what's essential is that the Sixth Circuit panel promptly issue an order or opinion explaining its ruling. This is absolutely vital to give election officials and voters marching orders, and to provide guidance for the parties and the district court for the preliminary injunction hearing set for Wednesday. The Sixth Circuit should issue such guidance by the close of business today, so as to allow Judge Marbley and the litigants to prepare for this hearing.

Update: The Sixth Circuit today released this amended version of the order staying the TRO. It reveals that the vote was 2-1, with Judge Tarnow (a federal district judge from Michigan sitting by designation) dissenting. Judge Tarnow's brief dissent states that he would have agreed with Judge Marbley's conclusion and assessment of the four factors for issuing preliminary injunctive relief.

As of 3:53 pm, there's still no opinion from the two-judge majority on the Sixth Circuit's website.
Saturday, October 28
 
Stay Application in Ohio ID Case
The Ohio Attorney General's office has filed this emergency motion for a stay in NEOCH v. Blackwell, the case in which Judge Marbley on Thursday issued a TRO against the identification requirements for absentee voters. Plaintiffs have been ordered to file a responsive brief by 5:00 pm today. Here are my initial reactions to the State's brief:

- The Attorney General has filed this brief against the wishes of his nominal client, Secretary of State Ken Blackwell, claiming "separate litigation authority" to defend the State of Ohio and its officers (p. 1, fn. 1). While I don't doubt that this is true, the party on whose behalf this brief is filed is not, precisely speaking, the State of Ohio or its General Assembly but rather the Secretary of State -- or even more precisely, the office of the Secretary of State, since this is an official capacity suit. This is effectively acknowledged in the State of Ohio's motion to intervene, also filed by the Attorney General's office and denied yesterday, which asserted that the interests of the State of Ohio (including the General Assembly which passed HB 3) differ from those of the Secretary of State. If that's true, then it seems odd for the Attorney General to be filing a stay application on behalf of the Secretary of State's office, which has a contrary position. It also seems to me (and on this point I emphasize "seems") that the Attorney General's office has a conflict between representing the interests of the Secretary of State on the one hand and the General Assembly on the other. Although the stay application asserts the Attorney General's authority to appeal the TRO "in the Secretary of State's name" (p. 9), apparently even against his wishes, the Attorney General cites no authority for this proposition.

- The Attorney General's brief relies heavily on the Supreme Court's ruling in Purcell v. Gonzalez and, specifically, on its statement that pre-election court orders "can result in voter confusion and consequent incentive to stay away from the polls" (quoted on p. 14). The key word here, however, is "can." The Court was undoubtedly right to say that pre-election court orders can result in confusion; but it did not say that such orders always create more confusion than they dispel. In this case, plaintiffs' main argument is that the new ID rules in Ohio have themselves generated considerable confusion, which the actions of the Secretary of State have failed to alleviate, resulting in different standards being applied from county to county.

- The Attorney General's brief disregard's Purcell's emphasis on deference to the discretion of the district court in weighing such competing harms. Even though the district court in Purcell didn't make factual findings until a month after its ruling, the Supreme Court still concluded: "It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court." What the Attorney General doesn't explain is why such deference isn't also owed here, both on the equities and on the merits, especially given the fact-specific nature of plaintiffs' claims.

- For similar reasons, the Attorney General's argument that plaintiffs sat on their hands for too long doesn't carry much force in this case. Although Judge Marbley found the ID provisions for absentee voters unconstitutional both on their face and as applied, the main problem upon which the TRO motion focused was the confusion and inequality attending application of these rules across the counties. The most significant example of this is the confusion for both voters and election officials, resulting from the fact that Ohio driver's licenses actually have two different numbers on them, as depicted here. A significant number of voters -- 5% according to Franklin County's election officials -- have included the larger "photo number" rather than the smaller "license number" on the driver's license, which will result in their ballots being rejected under the rule being applied in some (but allegedly not all) counties.

- The Attorney General correctly notes that voters who ask for an absentee ballot but don't receive it are allowed to cast a provisional ballot under Ohio law. ORC 3509.09. But this doesn't solve the dual number problem. That's because many voters who cast absentee voters without the "correct" number, according to their county's interpretation of the law, won't know that their absentee ballots haven't been counted.

- The Attorney General also relies heavily on a directive that the Secretary of State issued on Thursday (2006-78), saying that the smaller number is the only proper number. This might be a satisfactory answer to plaintiffs' equal protection concerns, if this guidance had been provided in advance of any voters applying for or casting absentee ballots. Under those circumstances, both counties and voters could have been informed of the rules sufficiently in advance of the election. But in reality, many voters already cast absentee ballots before this directive was issued. The Secretary of State's late-issued guidance doesn't help those voters; it only makes things worse for them. Moreover, there will probably be a lot of absentee voters -- I daresay a majority -- who aren't closely following these proceedings won't be clear on which number to include, even after the issue is finally resolved.

- At one point in the Attorney General's brief, it refers to the competing harms from the implementation (or non-implementation) of the ID requirements "at the polls" (p. 15). But the ID requirements for voting at the polls on Election Day aren't affected by the TRO that Judge Marbley issued, which is limited to the ID requirements for absentee voting. The polling places rules will presumably be addressed at the preliminary injunction hearing set for next week. The Attorney General can't pre-emptively appeal a ruling on polling place ID that the district court hasn't made. This would deny the district court the discretion to weigh the evidence, including the competing harms that would arise from granting or denying an injunction, which the Purcell Court thought to be essential.

- Toward the end of the brief, the Attorney General asserts a willingness to "work[] with the court toward a consent TRO." I take this to be a recognition on the Attorney General's part that there are some serious problems -- particularly for absentee ballots who've already sent in their absentee ballots, for whom provisional voting probably won't do any good since they won't likely know that their votes have been rejected by Election Day. At the very least, any order from the Sixth Circuit reversing the TRO would have to protect those voters who cast absentee ballots without the proper number while the TRO is in effect. As I stated yesterday, any reversal of the TRO is almost certain to exacerbate the confusion, by requiring that different rules be applied to different absentee ballots, depending on when they were mailed. It's hard to see how any alternative TRO would have a lesser disruptive effect than the one Judge Marbley issued.
Friday, October 27
 
TRO & Appeal in Ohio ID Case
U.S. District Judge Algenon Marbley issued this temporary restraining order yesterday in Northeast Ohio Coalition for the Homeless v. Blackwell, challenging Ohio's voter identification rules. Also issued were this order requiring the Secretary of State to issue a directive to the county boards of elections by noon today, and this order that the court issued directly to the counties. In addition, the Secretary of State's office issued this directive yesterday, which purports to clarify some of the issues that have allegedly been generating different practices across Ohio counties.

The TRO is limited to absentee ballots and doesn't speak to the rules that will govern in-person voting on election day. Judge Marbley finds several provision of the absentee voting ID rules impermissibly vague and, on that ground, enjoins their enforcement. In particular, he makes reference to the terms "current," "other government document," "military identification," and "driver's license number." The court enjoins the ID requirements, as applied to both applications for absentee ballots and completed absentee ballots. County boards are directed to preserve absentee ballots in their present form.

What this means, at least for now, is that voters casting absentee ballots won't have to provide identifying information. According to this AP story, the State plans to appeal. It's hard to predict what the Sixth Circuit will do but, as I noted yesterday, Purcell should lead the court to defer to the district court's factual findings -- especially its exercise of discretion in balancing the competing harms.

As my colleague Ned Foley notes here, one of the questions that Judge Marbley's order raises is what would happen to absentee ballots cast without the identifying information in the event that the Sixth Circuit reverses, given that absentee voting is now going on. It would seem transparently unfair to discard absentee ballots that are cast without identifying information during the period that this order is in effect. Thus, any reversal of this order would have to include a provision that any those interim absentee ballots be counted. But that sort of order would obligate local boards to apply one rule for counting absentee ballots cast while the TRO is in effect, and another rule to those cast before and after that window. This would likely exacerbate confusion for both county boards and voters. It's therefore hard to see how the Sixth Circuit could reverse this order without altering the balance of equities and causing additional disruption.

A preliminary injunction hearing is set for this coming Wednesday, November 1, at 9:00 am. At that hearing, Judge Marbley will presumably rule on the plaintiffs' request for an injunction aginst the ID provisions for in-person voting on Election Day.

Update: Ohio's Attorney General Jim Petro has announced that he will appeal the TRO issued by Judge Marbley, over the objections of his nominal client Secretary of State Ken Blackwell. The Columbus Dispatch has this report. This isn't the first time this has happened. As noted here, Attorney General Petro refused to take the position favored by Blackwell in 2004, in one of the cases regarding challenges to voter eligibility.

The Dispatch report also quotes Franklin County elections director Matt Damschroder as saying that some 5,000 of the 100,000 absentee ballots received so far -- or about 5% -- have identification problems and won't be counted, if the TRO is lifted. That's a significant percentage and, if true, tends to support Judge Marbley's conclusion that the ID rules are creating a significant obstacle for Ohio voters.
Thursday, October 26
 
Today's Voter ID Hearing in Ohio
As noted here, the challenge to the implementation of Ohio's voter ID requirements filed earlier this week has been reassigned from Judge Gregory Frost to Judge Algenon Marbley. A hearing on plaintiffs' motion for a temporary restraining order in NEOCH v. Blackwell is scheduled for 2:30 this afternoon in Columbus. I've read the briefs filed by both sides on the TRO motion, and offer these thoughts.

As noted in my previous description of this case, the main claims in this case focus on discrepancies in the way that Ohio's identification requirements are being applied from county to county, as to both in-person and absentee voters. Plaintiffs' argue that this is problematic on both due process and equal protection grounds. In particular, they claim that the vagueness in the law that the Ohio legislature passed earlier this year (HB 3) has resulted in different interpretations of the law from county to county. They also claim that the inter-county inequalities in the application of voter ID rules violates equal protection.

To the extent that these claims are backed up with evidence, there's a strong argument that the discretion vested in county officials violates the Equal Protection Clause, for reasons similar to those upon which the Supreme Court relied in Bush v. Gore. In that case, the Court concluded that the different recount standards being applied from county to county -- and sometimes even within a single county -- resulted in the "uneven treatment" of voters. As the Court put it: "This is not a process with sufficient guarantees of equal treatment." The same can be said of what's alleged to be going on with Ohio's voter ID rules. Of course, the Court famously avoided saying how this principle would apply to future cases, noting that "the problem of equal protection in election processes generally presents many complexities." It nevertheless seems difficult to draw a principled distinction between the uneven treatment struck down in Bush and that alleged to be occurring in Ohio.

Interestingly, the State's opposition to the TRO does not deny the inter-county variations that plaintiffs allege, and makes no effort to draw any principled distinction between this case and Bush. Instead, the State relies on last Friday's opinion in Purcell v. Gonzalez to argue against last-minute injunctions to election rules. But Purcell does not establish a blanket bar to such injunctions. Instead, the Court recognized that late-issued injunctions can sometimes cause more problems than they solve.

While the Purcell opinion was not written with the care for which we'd hope, the Court seemed particularly troubled by the fact that the Ninth Circuit issued an injunction without any explanation of it's failure to defer to the district court's factual findings -- especially those relating to the balance of harms and public interest. This aspect would have no relevance, if Judge Marbley were to find that the disruption being caused by the new rules is greater than the disruption that would flow from an injunction. In fact, Purcell's reminder about deference to district judge's factual findings would counsel strongly against appellate reversal of any injunction issued with such findings supporting it.

Moreover, as a reader pointed out to me after this blog post on Purcell, the Arizona ID rules had actually been implemented in the September 12 primary election. It is not hard to see why confusion would result, when a state goes from one ID rule to another, and is then compelled to return to the prior rule under a court order. Whether or not one views such an order as restoring the status quo ante (a question recently debated on the Election Law Listserv), this sequence of events could well prove confusing to election officials, poll workers, and voters alike. By contrast, Ohio's new ID rules have not yet been implemented on a statewide basis. Accordingly, the disruption from an injunction is likely to be less than was involved in Arizona.

The State's TRO brief also points out that the voter ID rules at issue became effective back in June, yet plaintiffs waited until October to bring a challenge. This argument would carry considerable force ... if plaintiffs' claims were based on a facial challenge to the law. While there are parts of the complaint that read as though plaintiffs were challenging the HB 3 on its face, my reading of the complaint and TRO is that the predominant focus is on how the new ID rules are being applied. The inter-county discrepancies upon which plaintiffs principally focus did not arise on the law's effective date, but only when it became apparent that counties were applying these rules in significantly different ways.

Another argument made by the State -- one that is in tension with their argument that plaintiffs waited too long to file -- is that the claimed harms are "purely speculative." That is not true, however, if there really are significant inter-county variations in how the ID rules are being applied. In fact, plaintiffs assert that the harms have already begun to take place, given that many Ohioans have now cast absentee ballots that won't be counted under some counties interpretation of the new rules. The harm to voters is not speculative even if, as in Bush v. Gore, it's not possible to identify precisely which voters are subject to having their votes rejected. Although defendant's brief suggests the possibility of post-election litigation solving the problem, it's vastly preferable to clarify the rules in advance of the election, as I've argued here.

The State's brief thus fails to present strong arguments, either on the merits or on the equities, for denying a TRO. The difficult problem is figuring out whether there's some relief that can address plaintiffs' claims while minimizing disruption to the state's election system. Plaintiffs' proposed order doesn't yet appear on the court's electronic filing system, so I can't tell exactly what relief they're seeking. What would appear to make most sense is to return to the status quo ante, by allowing them to cast a ballot without ID, unless they'd be required to do so as a matter of prior (i.e., pre-HB 3) federal or state law.

Assuming that plaintiffs are found to have a strong case on the merits, it will ultimately be for the district court to determine whether it's possible to craft relief that will reduce confusion rather than exacerbating disruption. This will require a delicate sifting of the balance of equities by the district court. The lesson from Purcell should not be that injunctions should always be denied in these circumstances, but rather that appellate courts should generally defer to district courts' discretion in weighing these competing considerations.
Tuesday, October 24
 
Ohio Voter ID Lawsuit
The Northeast Ohio Coalition for the Homeless and Service Employees International Union Local 1199 today filed a lawsuit in U.S. District Court for the Southern District of Ohio (Northeast Ohio Coalition for the Homeless v. Blackwell). The AP has this report.

The complaint alleges that various parts of Ohio Substitute House Bill 3 (HB 3), enacted earlier this year, are "confusing, vague and impossible to apply." It further asserts that parts of this bill impose an "unequal and undue burden" on the right to vote. The complaint includes claims under the Equal Protection Clause and Due Process Clause of the U.S. Constitution, as well as the Civil Rights Act of 1964.

The main thrust of the lawsuit appears to be a challenge to inconsistencies in how HB 3 is being applied within different Ohio counties. In particular, plaintiffs identify several portions of the new law that, they allege, are being applied differently within different Ohio counties. Here are some of the inter-county disparities alleged:

- One acceptable form of identification is a "current" utility bill, bank statement, or other document. Plaintiffs allege that Ohio law doesn't define the term "current" and that different counties are applying different rules for ascertaining whether the documents presented are acceptable.

- That same provision also refers to "other government document[s]" that suffice to meet the identification requirement. Plaintiffs allege that county boards of election are applying different standards for determining what this term includes. For example, Cuyahoga County allegedly will accept any type of document from any U.S., city, state, or county government entity, while other counties only accept state or federal documents.

- Absentee voters aren't required to provide documentary ID, but may instead provide their driver's license number. The complaint notes that there are actually two different numbers on Ohio driver's licenses -- one larger number appearing over the driver's photo, and another smaller number buried on the left-hand side. Mahoning County is allegedly rejecting absentee ballots that have only the first number, while Cuyahoga will count those ballots.

- Under HB 3, military ID is an acceptable form of identification if it shows the voter's name and "current address." The complaint alleges that at least some military ID cards don't contain the holder's address. Mahoning and Trumbull Counties are allegedly rejecting military ID cards without the voter's current address, while Cuyahoga accepts them.

The complaint goes on to assert that the Secretary of State's office has failed to provide adequate guidance to county boards of elections, and that the guidance that has been issued has "cause[d] more rather than less confusion" on some issues. In addition, plaintiffs note the different identification requirements applicable to absentee and election-day voters. While absentee voters need only provide their driver's license or the last four digits of their Social Security number, election-day voters must present some form of documentary identification to cast a regular ballot.

One of the peculiarities of Ohio law noted in the complaint is its treatment of election-day voters who do not have documentary ID, but are willing to provide the last four digiits of their Social Security number. According to the complaint, the relevant provisions of HB 3 (Ohio Rev. Code sections 3505.18 and 3505.181) don't allow those voters to cast either a regular or a provisional ballot.

Another issue raised in the complaint is the lack of uniform standards and procedures for the counting of provisional ballots. HB 3 does say that boards of elections are supposed to examine their records in determining whether voters are eligible and registered to vote. According to plaintiffs, however, the law doesn't provide sufficient guidance on what records should be checked or on what procedures should be followed in assessing the qualifications of provisional voters.

As this summary reveals, the claims made in the complaint are extremely complex and fact-specific. There are a total of thirteen counts in the complaint, but the main legal bases for the claims are: (1) the Due Process Clause of the Fourteenth Amendment, (2) the Equal Protection Clause of the Fourteenth Amendment, (3) the Twenty-Fourth Amendment's prohibition on poll taxes; and (4) the Civil Rights Act of 1964.

Plaintiffs' motion for a temporary restraining order reveals that their equal protection argument rests in part on the Supreme Court's 2000 opinion in Bush v. Gore. In that case, the Court found that the lack of adequate standards for Florida's court-ordered recount violated the Equal Protection Clause. A part of the evidence in support of these claims was that different counties were applying different rules for determining which punch-card ballots should be counted. Citing Bush v. Gore, plaintiffs in NEOCH v. Blackwell argue that inter-county differences in the implementation of voter ID rules are comparable to the unequal treatment identified in Bush v. Gore.
Monday, October 23
 
The Supreme Court's Arizona Intervention
The U.S. Supreme Court on Friday issued this per curiam opinion in Purcell v. Gonzalez, vacating a Ninth Circuit panel's injunction against enforcement of Proposition 200. Linda Greenhouse of the N.Y. Times has this report and the AP this one. Among those offering some early analysis and commentary are Rick Hasen, Bob Bauer, Alex Keyssar, and my colleague Ned Foley.

My initial reaction to the Court's decision is similar to that articulated by Bauer, who characterizes it as "careless," among other things. At the same time, I don't think that any of the courts involved handled the matter with the care for which we'd hope.

Let's start with the district court, which conducted a hearing on plaintiffs' preliminary injunction motion on August 30 and 31. So far so good ... this ought to have allowed plenty of time for an order to issue and for an orderly appellate process before the election. On September 11, the district court issued this brief order denying plaintiffs motion for a preliminary injunction against Proposition 200's identification requirements. But District Judge Roslyn O. Silver did not issue findings of fact and conclusions of law in support of her order at that time. Those didn't come until a month later -- and with less than a month before the election -- when Judge Silver issued this order on October 11.

By that time, the Ninth Circuit had already ruled on plaintiffs' "emergency" motion for an injunction, filed on September 29. On October 5, a two-judge panel issued this order granting the emergency motion, and enjoining Proposition 200's registration and identification requirements pending the election. Like the district court's original order denying an injunction, the Ninth Circuit's order doesn't explain its reasoning. It would have been preferable for the Ninth Circuit to have issued some explanation of its rationale, at least after the district court finally issued its findings and conclusions on October 11.

Thus, by the time the matter got up to the Supreme Court, the lower courts had already handled the litigation in a less-than-exemplary fashion. That doesn't necessarily mean it was necessary or appropriate for the Supreme Court to intervene. If it did choose to get involved, what the Court might have done is to send the case back to the Ninth Circuit, to either vacate its injunction or provide an explanation for that injunction in light of the district courts findings and conclusions. This would have been a properly restrained response under the circumstances.

Instead, the Court compounded the errors of the lower court, issuing a ruling that does more to confuse than to clarify, despite its invocation of the need for "clear guidance." The Court is certainly right to note that confidence in the integrity of elections is important. It is also right to say that any assessment of the constitutionality of voter ID rules requires consideration of both the state's interests in preventing voter fraud and the voter's interests in not being turned away or having their votes rejected.

Where the Court's reasoning gets sloppy is in saying that "[v]oters who fear that their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised." Is the Court really saying that a "fear" of widespread fraud -- even if unwarranted by the facts -- can justify the adoption of measures that result in the rejection of eligible voters' votes? Or that such fears can justify barriers to voting that aren't tailored to address whatever fraud does exist? It's hard to believe that could really be what the Court means, though those seeking to limit access to the vote are sure to tout this language in future cases.

The Court goes on to compare voting fraud to violations of the "one person, one vote" rule articulated in Reynolds v. Sims. This is a false and ill-considered comparison. In Reynolds, for example, the Court was faced with malapportioned legislative districts that gave some counties' votes a fraction the weight of others, by as much as a 41:1 margin. Contemporary allegations of voting fraud aren't remotely comparable to Reynolds or even to subsequent cases finding "one person, one vote" violations with smaller variances. That's true even if we assume levels of cheating far beyond anything proven. Suppose for example that there were 1000 fraudulent votes in an election consisting of 1,000,000 truly eligible voters. Even assuming this counterfactually high level of voting fraud, the weight of each eligible voter's vote would be "diluted" to a degree that is not just minuscule, but microscopic (1/1,001,000 versus its "proper" value of 1/1,000,000). This is not vote dilution in any real sense.

The Court is undoubtedly right to say that courts of appeal should give deference to the discretion of district courts, when it comes to weighing competing harms, and that there's no evidence that the Ninth Circuit did so. That's surely because there were no findings from the district court to review at the time the Ninth Circuit had to act on the emergency motion before it. Still, it would have been prudent for the Ninth Circuit to have issued an opinion after the district court finally got around to issuing its findings and conclusions.

Viewed in the most favorable light, the lesson from the Court's Arizona intervention is that lower courts should provide an explanation for their intervention in election disputes at the time that they make those decisions. It doesn't provide much useful guidance beyond that to the courts that will have to address the challenge to Arizona's law after the election, much less to other courts considering other ID pending cases. For that reason, there's reason to hope that the Court's opinion won't do much damage to the law in this area. That's about the best one can say of it.

Correction: Doug Johnson notes that the Proposition 200 voter ID rules were in effect for the September 12 primary. I've therefore deleted the reference to the Ninth Circuit's injunction preserving the status quo ante.
Wednesday, October 18
 
Voter ID, Indiana & Elsewhere
Voter ID continues to be a big issue this election season. The Seventh Circuit heard argument today in Indiana Democratic Party v. Rokita, the case challenging Indiana's voter identification law. Indiana is one of three states, along with Georgia and Missouri, that requires voters to present government-issued photo ID in order to have their votes counted. Plaintiffs lost in the district court, as noted here. Briefs and other papers in the case may be found here and a recording of today's argument is here.

No decision is expected before Election Day. See this report on the Indiana Law Blog for more background and this story for a description of the argument.

With voter ID cases pending in various states, the Election Law @ Moritz project has created this table to track pending litigation, which will be updated as events warrant. And Demos has released this short report on the move to enact stricter photo ID laws, as well as the litigation that has followed. There will undoubtedly be more news on this front before November 7.
Monday, October 16
 
Missouri Supreme Court Strikes Down Photo ID Law
Breaking news: The Missouri Supreme Court today issued this opinion upholding a lower court decision that struck down that state's voter identification law. The AP has this report.

The per curiam opinion relies on the Missouri Constitution's provisions protecting voting rights. Here's an excerpt from the opinion summary:
(1) The trial court properly held that SB 1014's photo ID requirement violates the equal protection clause of article I, section 2 of the state constitution. It also properly held that the photo ID requirement violates the right to vote as guaranteed by article I, section 25 of the state constitution, which provides more expansive and concrete protection to the right to vote than the federal constitution. In reaching these conclusions, this Court applies strict scrutiny analysis, in which any limitation on a fundamental right must serve compelling state interests and must be narrowly tailored to meet those interests. SB 1014's photo ID requirement fails to pass constitutional scrutiny because it creates a heavy burden on the fundamental right to vote and is not narrowly tailored to meet a compelling state interest.

(2) Many of the between 3 and 4 percent of Missourians who lack the requisite photo ID are eligible registered voters who, under the new law, will not be able to cast a regular ballot (or, after 2008 when the provisional ballot availability expires, any ballot at all) unless they obtain the requisite photo ID. Requiring these Missourians to obtain one of the limited types of photo ID approved by SB 1014 in order to vote is more than a de minimis (very small or trifling) burden on their constitutional right of suffrage.

(3) The United States Supreme Court has held that wealth or payment of money should have no relation to the free exercise of the right to vote. Harper v. Va. Bd. of Elections, 383 U.S. 663, 668 (1966). There can be no lesser requirement under Missouri law. The fact that Missouri has waived the costs normally charged for a non-driver's license does not make the license free because, as the evidence showed, Missourians without certified copies of the documentation needed for the license still must expend sums of money to obtain the license. Specific Missouri voters testified that to acquire the requisite photo ID, at the very least they will have to incur the costs associated with birth certificates, which in Missouri costs $15. The evidence also showed that, if a person requires documentation beyond a birth certificate, the costs are greater.... The trial court correctly concluded that the photo ID provisions of SB 1014 represent a heavy and substantial burden on Missourians' free exercise of their right to vote.

(4) While Missouri has a compelling state interest in preserving the integrity of the election process and preventing voter fraud, the trial court properly found that the evidence presented negates the claim that the photo ID requirement is narrowly tailored to accomplish that purpose. The parties acknowledge that the photo ID requirement can only prevent impersonation of a registered voter and will not affect absentee ballot fraud or registration fraud. There was no evidence of any voter impersonation fraud in Missouri since the general assembly enacted the previous version of section 115.427, which was passed in 2002 in response to the federal Help America Vote Act and allowed voters to present many more and different types of identification in order to vote. While Missouri also has an interest in combating perceptions of voter fraud, where the fundamental rights to vote of Missouri citizens are at stake, more than mere perception is required for their abridgment. The identification requirement does not address any perception of voter fraud with precision, nor is it necessary to solve any existing voter fraud problems. This requirement, therefore, fails to pass constitutional scrutiny and cannot stand.
One justice (Judge Stephen Limbaugh) dissents on the ground that the parts of the law that take effect now are constitutional and that the challenge to those that take effect in later years aren't yet ripe.
Friday, October 13
 
Analysis of Voting Problems in 10 States
The Leadership Conference on Civil Rights, Common Cause, and The Century Fund yesterday released this report entitled "Voting in 2006: Have We Solved the Problems of 2004?" It examines changes since 2004 in ten states: Pennsylvania, Ohio, Missouri, Michigan, Florida, Wisconsin, Minnesota, Washington, Georgia and Arizona.

According to a press release, the report finds that "most problems exposed in the 2004 election remain unresolved, and some have been exacerbated and threaten to mar the mid-term elections in just four weeks." Among its findings are:

- Although voter registration rules and requirements was identified as one of the biggest barriers to voting, some states have made it MORE, not less difficult to register to vote.

- New voter identification laws in half the states studied present major new barriers to voting.

- Despite the considerable problem in 2004 of phony flyers and phone calls, only Missouri has taken aggressive steps toward halting these practices. Bills are pending in three states - Pennsylvania, Ohio and Minnesota.

- Partisan pre-election and Election Day challenges to voting eligibility was a major source of controversy and possible voter suppression in 2004. Minnesota and Washington should be commended for taking steps to address this. Ohio also has passed legislation to address this issue, but certain provisions of this law are being challenged by voting rights groups. Most of the states studied have not taken sufficient measures to rein in this deplorable practice and existing laws are vague enough to be abused again.

- Despite the widespread problems with long lines and insufficient and inequitably distributed voting machines in 2004, most states continue to have extremely vague and decentralized standards for voting machine distribution. Long lines threaten to be a problem again.

Coverage of the report includes this AP story, and this one from the Columbus Dispatch which focuses on the report's findings regarding Ohio.
Wednesday, October 11
 
USA Today Releases Voter Fraud Report
Today's news brings a significant development in the ongoing access-versus-integrity election debate. USA Today has this story on a previously unreleased status report prepared for the U.S. Election Assistance Commission (EAC) in May, which finds relatively little evidence of fraud at polling places. USA Today has made the report itself available online here, and has a sidebar on voter registration restrictions that may prevent people from participating in this year's elections.

The status report concerns research by consultants Tova Wang of the Century Foundation and Job Serebrov, an Arkansas attorney, under contract with the EAC. It finds that: "There is widespread but not unanimous agreement that there is little polling-place fraud, or at least much less than is claimed, including voter impersonation, 'dead' voters, non-citizen voting and felon voters." In fact, the only apparent dissenter from this view is a representative of the recently formed "American Center for Voting Rights" (ACVR), a group led by the former national election counsel to the Bush-Cheney 2004 campaign. As I've previously discussed here, ACVR has made it its business to pump up allegations of voting fraud in an effort to urge passage of exclusionary voter ID rules.

While finding little evidence of polling-place fraud, the status report states that there is "virtually universal agreement" that absentee voting is the area in which fraud poses the most serious problem. This makes sense, since mail-in ballots allow for the anonymity of the ballot to be compromised. This makes it possible to engage in vote-buying, for example, that is practically impossible with voting at the polling place given the privacy of the ballot. As a former Department of Justice official puts it: "Fraud at the polling place is generally difficult to pull off.... It takes a lot of planning and a lot of coordination."

The status report contains some discussion of voter intimidation. It finds that the abuse of challenger laws appears to be the biggest concern. It also finds some evidence of "outright intimidation and suppression," especially in Native American communities. In attempting to investigate why the DOJ has brought fewer intimidation cases in recent years, the report cites a DOJ official as saying that fewer such cases are warranted nowadays, noting that race-based problems are now comparatively rare.

What's not entirely clear from the USA Today story is why the EAC didn't release this report itself. The EAC's chairman Paul DeGregorio is quoted as saying: "There was a division of opinion here.... We've seen places where fraud does occur." This is undoubtedly true, but it is hardly a reason for not releasing new information tending to show that polling-place fraud is pretty rare. This information has obvious significance for the ongoing debate over laws that would require voters to show photo ID at the polls. Whether or not one agrees with the status report's findings, such information ought to be part of the public debate.
Tuesday, October 10
 
The Brennan Center on Disability Access
The Brennan Center today released this chapter from its report "The Machinery of Democracy: Voting System Security, Accessibility, Usability, and Cost." A press release announcing the report is here, which describes it as follows:

The report is the final product of the first comprehensive, empirical analysis of electronic voting systems in the United States. It comes after nearly two years of study with many of the nation's leading academics, election officials, economists, and security, usability and accessibility experts.

Up until this point, there has been surprisingly little empirical study of voting systems in the areas of security, accessibility, usability, and cost. The result is that jurisdictions make purchasing decisions and adopt laws and procedures that have little to do with their overall goals.

The Brennan Center analysis finds that there is not yet any perfect voting system or set of procedures. One system might be more affordable, but less accessible to members of the disabled community; certain election procedures might make the systems easier to use, but they compromise security.

The report examines direct record electronic machines (both with and without "voter verified" paper trails), precinct-count optical scan ballots, "hybrid" ballot-marking devices, mail ballots, and telephonic voting. Relying mainly on the analyses of a group of consulting experts, it finds that -- while no system is perfect -- computer-based systems generally accommodate people with disabilities better than paper-based systems. Included with the report are prior Brennan Center analyses of voting system security(which I discussed here) and usability. They've also got a cost calculator for different voting systems.

The report is essential reading not just for those who care about disability rights but for anyone with an interest in the continuing development of voting technology. As I argued in an article published last year, voting technology must serve a number of values, including security, transparency, and equality. Included within the value of equality is accessibility of the voting system for all voters, including people with a variety of disabilities. One of the things that's become increasingly apparent since 2000 is that no existing system of voting technology is perfect, when it comes to all of these values. If we are to converse constructively about how to improve our existing voting technology, we must take account of all of them and attempt to measure how well existing technologies do in serving each value.

Assessing how well existing systems serve these multiple values is, as I understand it, an important part of the Brennan Center's ongoing work on voting technology. There will undoubtedly be some disagreements on some of the specifics of their latest analysis. What we shouldn't lose sight of, however, is their recognition of the need for an honest discussion regarding the tradeoffs among the multiple objectives that we expect our election system to serve. This discussion has to include election officials, computer scientiests, social scientists, vendors, and lawyers.

The Brennan Center report makes abundantly clear that the transformation of voting technology is still a work in progress. As I've discussed here, this is the year in which HAVA's deadlines regarding accessibile equipment and the replacement of punch cards take effect. But 2006 is not really the end-point. As long as technology continues to improve -- and it will -- there should be a sustained commitment on the part of federal, state, and local government to developing and implementing better voting systems. It will be vital to consider what administrative and institutional arrangements will best protect the voting rights of all citizens (including those with disabilities) in the present, while allowing for the experimentation with new technologies that will be necessary in the future.

Update: Since my original post, it's been brought to my attention that the analysis of disability access is just one part of the Brennan Center's larger report on voting technology. My comments above focus on the accessibility chapter, and I've edited the post slightly in an attempt to make this clear.
Monday, October 9
 
Commentary on Voter ID
Yesterday's New York Times featured this commentary from Adam Cohen on the voter ID bill sponsored by Henry Hyde (H.R. 4844), which the House recently passed, and other vote suppression efforts. Here's an excerpt:
The House of Representatives struck a major blow against democracy last month. It passed a bill that would deny the vote to anyone who shows up at the polls without a government-issued photo ID. The bill's requirements are so onerous and inflexible that they could prevent millions of eligible voters without driver's licenses -- who are disproportionately poor, minority or elderly -- from casting a ballot.

With that vote Congress joined a growing number of states that are erecting new barriers to voting. Republican-dominated legislatures and election officials have adopted absurdly difficult registration rules. They have removed eligible voters from the rolls with Katherine Harris-style purges, and required voters to buy ID cards to vote, a modern form of poll tax....

The voter ID laws that have been enacted recently have been set up not to verify voters' identities, but to stop certain groups from voting. Georgia's law -- whose sponsor was quoted in a Justice Department memo as saying that if blacks in her district "are not paid to vote, they don't go to the polls" -- required people to pay for voter ID cards, until the courts held that to be an illegal poll tax. When it took effect there was not a single office in Atlanta where the cards were for sale.

The current wave of laws began after 2000, when the presidency was decided by just 537 votes. With today's closely divided electorate, there is more strategic value than ever in disenfranchising people who fall into groups likely to support the other party. To a disheartening degree, this new wave is supported almost entirely by Republicans and opposed only by Democrats.

The opposition should be bipartisan. Disenfranchisement undermines not only American democracy, but also the whole idea of America, by illegitimately excluding some people from their rightful place in it.
Cohen also touches on other vote suppression measures, attempting to put them in historical context. More commentary critical of current vote suppression efforts may be found in Sunday's Boston Globe and today's Louisiana Weekly. Both liken the current wave of voter ID proposals to a poll tax, an apt comparison given the likelihood that they will disproportionately affect certain groups of voters, including racial minorities.

None of this is to deny that there is some fraud in our present system, although there's a tendency in some quarters to exaggerate the evidence that exists. The evidence of fraud that does exist is anecdotal, and mostly involves accustations of fraud with mail-in absentee ballots. A case in point is evidence from Alabama, discussed in this story and this editorial from Sunday's Montgomery Advertiser. For one interested in perpetrating voting fraud, it makes much more sense to do so by mail-in ballots than by actually showing up at the polls pretending to be someone else -- a high-risk, low-reward strategy by any measure. And mail-in ballots provide the only real opportunity in our system for buying and selling votes, something that's impossible with in-person ballots given the privacy of the voting booth.

There's precious little evidence of voters going to the polls pretending to be someone they're not, the ostensible justification for requiring voters to show photo ID. This is the great irony of the voter ID debate. Some states (including Georgia and Ohio) have made it easier to vote by mail, while at the same time making it harder to vote in person by requiring voters to show ID that some don't have. If one were really serious about curbing fraud or promoting access, one would incline toward the opposite approach.
Friday, October 6
 
Ninth Circuit Blocks Arizona Registration & ID Law
The Ninth Circuit Court of Appeals yesterday issued this order, granting an emergency motion to stop Arizona's registration and identification requirements from going into effect. The AP has this report. The case is Gonzalez v. Arizona, lower court filings in which may be found here. A district judge had previously issued an order rejecting voters' request to stop these requirements from taking effect.

The Ninth Circuit panel says its order will remain in effect pending disposition of the case on the merits. That presumably means that the order will remain in effect through the November 2006 elections, unless the Ninth Circuit takes the case en banc to reverse it or the Supreme Court intervenes.

Arizona's deadline for registering to vote is 29 days before the election, according to the EAC's website. By my calculation, that gives Arizonans not yet registered only until this coming Monday, October 9. An interesting question (raised by Michael McDonald of George Mason who's sitting next to me as I blog at the MIT conference) is what will happen to those registration forms that were previously rejected due to failure to comply with the now-enjoined rules.
Thursday, October 5
 
Caltech/MIT Conference on Registration & Identification
I'm in Cambridge today for a conference on voter registration and identification hosted by the Caltech/MIT Voting Project. The agenda may be found here. As I mentioned in this weekly comment voter registration and voter ID are turning out to be major issues this election season, with litigation having been filed in several states.

This week's conference includes many of the top election officials, political scientists, and other experts in the field of election administration. I'll be speaking tomorrow about the issues raised in the voter ID litigation in Georgia, Missouri, Indiana, and Arizona, all states that have enacted identification requirements that go beyond what federal law requires.

Caltech's Michael Alvarez is live-blogging from the conference on the Election Updates blog, and has posts here and here on today's proceedings. I'm told that video will be posted on the conference website.
Wednesday, October 4
 
Court Order for Naturalized Citizen Voters
At a hearing in Cleveland this afternoon, U.S. District Judge Christopher Boyko granted a permanent injunction against an Ohio statute that required naturalized citizens to produce a certificate of naturalization at the polls if their eligibility to vote is challenged. The AP has this report and the order from Judge Boyko is here. The case is Boustani v. Blackwell, which I've previously discussed in this post. (Disclosure: I'm one of the attorneys for the plaintiffs in this case).

This morning's Cleveland Plain Dealer had this editorial on the case, entitled "Accenting Discrimination." Here's an excerpt:
One of the most stunningly backwards laws this state has passed in recent memory is to be contested in federal court today. It's an overtly discriminatory law that supporters claim would reduce voter fraud, but in actuality would at least harass -- and at worst disenfranchise -- naturalized American citizens.

Ohio voters must show proof of identity in order to vote in November's general election. But naturalized citizens face a much greater burden: If a poll worker asks, they must produce their citizenship papers. Those who cannot do so on the spot will vote by provisional ballot and must bring their citizenship papers to the Board of Elections within 10 days for that ballot to count....

[S]ince the case isn't likely to be resolved by Election Day, [plaintiffs are] asking today for an injunction to keep it from being enforced this November. Judge Christopher A. Boyko should give it to them.
Secretary of State Ken Blackwell agreed, as set forth in this Plain Dealer report noting that Blackwell's lawyers filed papers saying that he didn't oppose the issuance of a preliminary injunction. The Secretary of State's hearing brief is here and his proposed directive is here.

At today's hearing, Judge Boyko ordered an injunction issued against the portion of the statute that treats naturalized citizens differently from native-born citizens, for purposes of challenges to their eligibility. He concluded that the law discriminates based on national origin with respect to the fundamental right to vote, thus warranting the most stringent constitutional scrutiny. In so doing, Judge Boyko spoke eloquently about the dangers of "profiling" at the polling place, observing that naturalized citizens shouldn't be treated as "second-class" Americans when it comes to the fundamental right to vote.

Though I'm obviously biased, I think Judge Boyko's observations were right on target. And for all the criticism that Secretary of State Blackwell received for his actions during the 2004 election, he deserves credit for doing the right thing in this case.
Tuesday, October 3
 
A Report on Ohio's Democracy
Ohio Citizen Action has posted on its website a new report entitled Reforming Ohio's Democracy: What's Wrong, What We Can Do to Fix It. I'm one of the co-authors of this report, along with Herb Asher of The Ohio State University Department of Political Science, Ann Henkener and Peg Rosenfield of the League of Women Voters of Ohio, and Catherine Turcer of Ohio Citizen Action.

The report endeavors to take a wide-ranging look at problems in Ohio's political process, from election administration to redistricting to campaign finance. It also includes some policy proposals. Here's an excerpt from the report's Introduction and Executive Summary:
There can be little doubt that Ohio's democracy faces enormous challenges as the year 2006 draws to a close. Its "pay to play" political culture has been the subject of nationwide attention. Campaign cash has been playing a significant role in policymaking and in appointments made to public office. The most recent focal point of this problem was the "Noe coin scandal" involving a rare coin dealer whose lavish campaign contributions were rewarded not only with appointments to public office but also with a lucrative investment contract. In the area of redistricting, the state has an unfortunate tradition of carving districts to benefit the party that happens to control the process at any one time. However, both Democrats and Republicans have resisted reform at various times. The sometimes vicious campaigns for judicial elections, along with the enormous sums required to mount a campaign, have contributed to a loss of faith in the judiciary. There are also systemic problems with the state's system of election administration, which came to the fore in the 2004 election season. Foremost among these is the fact that elections are run by partisan officials with a direct stake in their outcome....

The purpose of this report is to provide a broad-ranging overview of the problems that have emerged in recent years with Ohio's democratic process and to propose some measures that could improve matters. We do not purport to provide an in-depth analysis of the various issues addressed. That would take several hundred pages to accomplish adequately. Nor does this report contain any new empirical or legal research on the challenges facing Ohio's democracy. Finally, it is not our purpose here to lay blame on any political party or individuals for the development of these problems. What we do attempt to do is to summarize the challenges that Ohio democracy faces in 2006, and to suggest how we Ohioans might collectively confront those challenges.

The report consists of seven major parts. First, to provide context, we offer a brief historical overview of Ohio's political culture. Second, we discuss the state's redistricting process, which has allowed the dominant party to gerrymander district lines to advance its own incumbents' interests, contributing to the polarization of legislative bodies. Third, we survey the state's system of election administration, including the rules governing registration and voting, as well as the need for nonpartisanship on the part of those charged with running the state's system. Fourth, we examine the state's system of campaign finance, tracing the enormous role that money has played in shaping policy and discussing the pay-to-play system for which the state has now become infamous. Fifth, we address the ethical violations that have plagued Ohio government in recent years, including the inadequate enforcement of currently existing ethics rules. Sixth, we describe the issues that have emerged in Ohio's judicial elections, including the infusion of money into the process by entities with a direct interest in the outcome of cases decided in the courts. Seventh and finally, we discuss the weaknesses in the state's public open records and open meeting laws, which have contributed to a lack of transparency.
Monday, October 2
 
Improving Election Practices for November 7th
There's considerable anxiety attending the new requirements of federal law that are in effect for this year's election system. Foremost among the changes in effect this year, due to the Help America Vote Act (HAVA) are new voting technology and statewide registration databases.

Senator Chris Dodd (D-CT), one of the principal co-sponsors of HAVA, has probably been the leading voice for election reform in the Senate. Last week, he placed this statement in the Congressional Record, calling attention to some of the things that the Election Assistance Commission (EAC) is doing by way of preparation for this year's general election. Here's an excerpt from Senator Dodd's statement:
The Election Assistance Commission has recently released four documents that serve as an overview on good election administration practices in preparation for the November 7 Federal elections. States are making the final push to implement the new election administration requirements enacted in HAVA which must be in place by November. As with any new Federal requirements, it is anticipated that there may be problems with new technologies, administrative failures, or human error. In light of some of the challenges faced by election officials in primaries over the last few weeks, these best practices guidelines are both timely and instructive for those who are responsible for conducting our Federal elections this fall.
Senator Dodd goes on to discuss the four documents, which may be found here on the EAC's website. The first, a Quick Start Management Guide for New Voting Systems, covers planning and managment for those jurisdictions using new equipment. The second is a Quick Start Management Guide for Poll Workers, with suggestions on the recruiting, training, and retention of qualified poll workers. The third is a Quick Start Management Guide for Voting System Security, covering ways of dealing with flaws in voting security. The final one is a Quick Start Management Guide for Ballot Preparation/Printing and Pre-Election Testing, with procedural recommendations on how to test various components of an election system in advance.

These documents are especially valuable, given the concerns that have been swirling around due the Princeton report on Diebold's election system, recent election troubles in Maryland, and trouble with the equipment used in Cuyahoga County, Ohio, just to name a few. As un-sexy as the EAC's suggestions may seem -- except to election geeks like me! -- they will hopefully provide practical means by which to promote better-run elections next month.

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Moritz College of Law The Ohio State University