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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Friday, February 23
 
NYU Symposium on Election Law
I'm headed to New York, for the NYU Annual Survey of American Law's 2007 Symposium, "The Uncertain Landscape of American Election Law: Where Does the Ballot Box Head from Here?" which takes place all day today. I'll be speaking on a panel in the afternoon on election administration, and there will be panels earlier in the day on campaign finance and redistricting. The full program may be found here. Admission is free and there's no pre-registration required. A great group of election law practitioners and scholars will be participating so, if you're in the New York area, please come by and introduce yourself.
Thursday, February 22
 
Voter ID and Turnout
Yesterday's N.Y. Times had this story on a study from researchers at Rutgers University's Eagleton Institute, prepared in conjunction with the Moritz College of Law. This follows a story earlier in the week in USA Today on the same study. (Disclosure: I'm part of the team that worked on this project.)

The exclusionary effect of some ID laws arises from the fact that a significant number of citizens don't have government-issued photo ID. Previous research suggests that some groups of voters -- including people of color, poor voters, and elderly voters -- are likely to be disproportionately affected, since they're less likely to have driver's licenses. There's been limited research so far, however, on exactly how ID requirements affect different groups of voters.

The study was prepared under a contract for the Election Assistance Commission (EAC), and Eagleton researchers presented findings at a public EAC meeting on February 8. As far as I can tell, however, the EAC hasn't yet publicly released the study, so I won't comment on its specific contents here, beyond what's been reported. Two of the Eagleton researchers did release a separate paper on the impact of voter ID in the fall, which I blogged on here.

It's important to remember that this research relies on 2004 data. That was before strict photo ID requirements were passed in Georgia, Indiana, and Missouri. Georgia's and Missouri's were both enjoined by state courts, but Indiana's took effect in the 2006 election season. The USA Today reports that Indiana's voter turnout increased in 2% of the 2006 election compared to the last mid-term election (2002). It would be wrong to conclude from this statistic that Indiana's ID law didn't affect turnout, since there are lots of other factors that can affect turnout. The real trick in this research is to try to isolate the effect of voter ID laws by controlling for those other factors, which is what the Eagleton researchers have attempted to do.

The USA Today report also groups Florida with Indiana as a state that has a photo ID requirement. While this is partly true, Florida's law is different in a significant respect from those which were enacted in Georgia, Indiana, and Missouri. It's true that Florida requires voters to show a photo ID in order to cast a regular ballot. But voters who don't have such an ID can still cast provisional ballots. Fla Stat. 101.043. As I read Florida's statute, those provisional ballots should be counted if the person was "registered and entitled to vote" and the signature given at the time of voting matches that on the voter's registration. Fla. Stat. 101.048. Florida's law is therefore significantly less restrictive than that which is in place in Indiana -- voters without ID can still vote and have their votes counted. One would therefore expect Florida's law to have a lesser impact on turnout.

We clearly need more empirical research on voter ID's impact. That includes more research on the the extent to which voter ID laws affect turnout. It also includes research on the extent to which there is voting fraud that would be prevented or detected by a photo ID law. My friend Spencer Overton effectively makes this point in his article on Voter Identification, forthcoming in the Michigan Law Review. Absent documentation that there's a significant amount of fraud that a photo ID requirement would stop, and that eligible voters won't be impeded from voting by such a requirement, it's a bad idea to pass laws like those enacted in Georgia, Indiana, and Missouri.
Wednesday, February 21
 
Joining the Election Law Casebook
A busy semester has left me with little time to blog, but I did want to note the announcement that I'll be joining Dan Lowenstein and Rick Hasen on the next edition of their Election Law casebook. It's an exciting opportunity, and I'm deeply honored to be joining them. As Rick blogged here, we'd welcome comments and suggestions for that edition, and are organizing a mini-listserv for that purpose -- please email us if you'd like to participate!
Tuesday, February 6
 
The Latest Version of the Holt Bill
Rep. Rush Holt (D-NJ) has introduced another version of his bill (H.R. 811) to require that all voting systems generate a "voter-verified" paper ballot. It would authorize $300 million for fisacal year 2007 to meet the new requirements. I've commented on the problems with this sort of requirement numerous times in the past, including here and here, and little would be gained by again replaying that debate. Suffice it to say that, whatever problems exist with electronic voting, it remains doubtful at best that attaching a printer will provide a workable and effective solution.

As with previous versions of the Holt bill, there are some good things here, most notably a provision clarifying that individuals may bring private lawsuits to enforce the technology and administration requirements of the Help America Vote Act (HAVA). Also, the bill would extend the authorization of the Election Assistance Commission (EAC). Other aspects of the bill, however, are cause for concern.

One is a provision that the paper records aren't just to be used to audit the accuracy of machines, but to "be used as the official ballots for purposes of any recount" of a federal election. This is asking for trouble, in my view, in places where the system used to comply with the bill is an electronic system with a paper printout. To take an oft-cited example, 10% of the paper records were compromised in Cuyahoga County's 2006 primary election. That may be an extreme example -- we don't really know since, as far as I can tell, no one's done any kind of systemic study of how often paper printouts are compromised elsewhere. But the reality is that, in any election, there are likely to be some printing problems, caused either by jams, other mechanical problems, or mistakes in loading the paper. It's thus possible that the electronic record may be more accurate than the paper record; yet under this bill, the paper record would control absent "clear and convincing" evidence, to be determined on a machine-by-machine basis.

I've previously noted the difficulties in actually counting the curled-up strips of thermal paper that contemporary DRE-with-VVPAT systems generate, but this is inviting a whole new set of problems and, most likely, post-election litigation. All of this might arguably be worthwhile if voters really checked the paper records ... but what little evidence is available indicates that they seldom do. As I've described here, it's difficult to do with contemporary systems even if one were so inclined.

Another problematic feature of the bill is the provision having to do with disability access. Voters with disabilities must be able to "privately and independently verify the content of the permanent paper ballot throught he conversion of the printed content into accessible media." How would this work for blind voters? You'd presumably have to have equipment capable of reading back what's on the paper record. The makers of the Automark say that it does this, but there appears to have been no independent assessment of how well it does so -- and no other equipment of which I'm aware that has this capacity. In addition, some disability advocates have raised questions about whether the Automark allows the private and independent voting that’s now required by federal law.

In any event, it's a really bad idea to require something as a matter of federal law that hasn't yet been tested, much less implemented or proven effective in a real-world election environment. This is especially problematic, given that it appears the effective date for this requirement -- as for the bill's other provisions -- is 2008. If I'm reading this right, it's borderline crazy to think that such a transition could get done by then, even if one thought that implementation of this new equipment were a good idea.

Despite these severe problems, I think it's very likely that some version of the Holt Bill will be passed in the House. That's simply because Democrats are now in control and paper trails have been a red meat -- or perhaps more properly, blue meat -- issue for them. Where things may get interesting is in the Senate, where the minority party has a greater power to influence the course of legislation. There have been rumblings that Republicans will demand some sort of voter ID bill to get their support for a paper trail. This is basically what the widely criticized Carter-Baker Report recommended, and I think it's a worst-of-both-worlds compromise. I suspect that Senate Democrats won't go for such a deal ... but who really knows?

[Note: I've edited the above post to add something on the Automark, to which some alert readers called my attention after my initial post.]

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Moritz College of Law The Ohio State University