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
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
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- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Wednesday, March 5
Lingering Questions in Ohio
You may have heard the joke about the pre-election prayer of election officials: "Please don't let it be close." Last night, the prayers of Ohio's election officials were answered ... at least for the statewide popular vote. The margin of victory in last night's Democratic presidential primary was sufficiently large that election administration problems -- like the ones I anticipated here and here -- didn't affect the overall outcome. But there are still some unanswered questions. I raise and discuss some of them below and, in a separate post tomorrow, will talk about how these could affect the allocation of delegates.
Senator Clinton's day-after margin of victory in Ohio (228,000+ votes) is much too large to have been significantly affected by election administration problems, however serious. There is a temptation to pronounce an election a "success" when there's no doubt about who won. And we should surely be grateful for the difficult and mostly thankless job that election officials do. At the same time, in this as in any other election, it's important to take a careful look at the evidence before drawing conclusions about how well the election went. That's especially true in Ohio, if we view yesterday's election as a trial run for what's likely to be a competitive and pivotal general election eight months from now.
Taking that perspective, there are some big questions as to which more information is needed, in order to evaluate how well the state's election system is working. Though my focus here is on Ohio, these questions also worth pondering with respect to other states' primaries too.
- How many provisional ballots were cast, statewide and in each county? And how many will be counted?
One of the things that has the potential to result in a post-election fight is the counting of provisional ballots. As I mentioned yesterday, Ohio relies very heavily on provisional ballots -- for voters who move, don't have proper ID, and don't appear on registration lists, among other things. These are not just a big headache for voters and election officials, who have to go through thousands of them. In a close election, we could very likely see disputes over whether and how to count provisionals.
In addition to problems anticipated in yesterday's post, I've heard anecdotes that some voters had to cast a provisional ballot because they were marked as having asked for an absentee ballot. At least some of these voters, it appears, had mistakenly responded to a mailing from the Board of Elections informing them that they could vote absentee. By returning this card -- and presumably being sent an absentee ballot -- the voters had their names marked on the registration list.
I suspect that there we have a large number of provisional ballots in Ohio that have yet to be verified and counted. It will be important to ascertain those numbers on a county-by-county basis, along with the reasons why those voters were required to cast provisional ballots rather than regular ones. And of course, it will be important to track how many of those were counted for each county, as was done in 2004.
- How many residual votes were there, statewide and in each of the counties? And were there more residual votes among those using paper ballots without error notification?
In every election, there are some voters who cast regular ballots that wind up not being counted. The term "residual votes" is used to refer to combined undervotes (a ballot that doesn't register a choice) and overvotes (a ballot that registers more than the allowed number of choices). These are particularly common when voters use voting technology that doesn't give them notice and the opportunity to correct errors. There are both paper-based and electronic systems that have the capacity to provide such notice, but voters in Cuyahoga County (Cleveland area) weren't using such technology. We should therefore expect a larger number of residual votes in Cuyahoga County. In addition, there may be more residual votes among voters in touchscreen counties who asked to vote by paper ballot, as a directive from the Secretary of State allows.
How many residual votes were there, in Cuyahoga and elsewhere? As far as I can tell, the unofficial results on the Ohio Secretary of State's website don't yet include the number of residual votes. Ideally, we'd see this information broken down by undervotes (some of which may be intentional) and overvotes (which are almost never intentional).
The evidence that I can find provides some reason for concern that some voters may not have had their votes counted, at least not yet. For example, according to the Secretary of State's website, voter turnout in Cuyahoga County was 406,450 (41.73%). But adding up this afternoon's totals from Cuyahoga County's website, I get 388,959 votes so far counted for the Republican and Democratic presidential candidates. If my math is right, that leaves a gap between turnout and counted votes of 17,491 votes, or 4.3% of total turnout.
There are of course perfectly legitimate reasons why some ballots don't show up in the vote totals. Some are probably independents who voted an "issues only" ballot with no presidential candidates. Others may be people who intentionally abstained. Still others may be voters who cast provisional ballots that have yet to be verified, and won't be for several days. (I can't tell for sure if voters casting provisional ballots are included in the county-by-county turnout figures, but would assume they are. [Update 3/7/08: I'm told that provisional ballots aren't included in the unofficial turnout numbers, at least for some counties. If that's true statewide, it means that any gaps between turnout and presidential votes counted aren't due to provisional ballots.]) Finally, it's possible that some of this gap uncounted ballots, where the voter intended to make a choice but failed to. More information is needed to draw any conclusions.
- How many people asked for absentee ballots? How many were returned? And of those returned, how many were and weren't counted?
A number of Ohio counties made a concerted effort to encourage voters to vote before election day, either through mail-in absentee ballots or through in-person early voting. Especially for those who requested mail-in absentee ballots, it would be useful to find out how many were returned to county boards of elections. I noted above the confusion among at least some voters, who inadvertently requested an absentee ballot and wound up having to cast a provisional ballots. Also, it would be useful to know how many absentee ballots were disqualified -- for example, because they failed to include appropriate identifying information or because their ballots arrived at the board of elections too late.
The Secretary of State's office should collect and release county-by-county information on provisional ballots, residual votes, and absentee ballots as expeditiously as possible. These aren't just academic points. They're vital assessing future changes, such as the proposed switch to optical-scan voting and the procedures used for voting.
There's also a more pressing reason for answering these questions: Despite the significant statewide margin yesterday, they could affect the allocation of delegates. More on this tomorrow.
[Note: If you come across any errors in the above post -- particularly a mathematical error, which is quite possible -- I'd be grateful for your calling them to my attention.]