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)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Sunday, March 2
Ohio's Primary: What Will Go Wrong?
With polls showing the Ohio Democratic primary race neck and neck, and with victory in the state likely pivotal to the survival of the Clinton campaign, this question of what might go wrong in Ohio's election is again on many people's minds. Election administration was of course the subject of much discussion here in 2004. As I described in this article, there was litigation in Ohio on a number of subjects including voting machines, provisional ballots, registration rules, voter ID, challenges to eligibility, lines at the polls, recounts, and contests.
Although we've now got a new new Secretary of State -- Democrat Jennifer Brunner, who replaced Republican Ken Blackwell -- election administration remains fraught with controversy in the Buckeye State. In this post, I highlight the current state of play in Ohio, including what we can expect for Tuesday's primary.
Though not quite the lighting rod that her predecessor was, Secretary of State Brunner has endured plenty of criticism, as the Cleveland Plain Dealer's blog notes here. Much of it arose from the Secretary of State's EVEREST report which recommended a statewide move to central-count optical scan. See here for my previous thoughts on this report.
The main problem with central-count optical scan systems is that they don't provide voters with notice and the opportunity to correct errors, therefore resulting in more uncounted ballots than other available technology. That's because central-count optical scan systems don't allow voters to check for "overvotes" (inadvertently marking more choices than is allowed for a particular contest), something that was a problem in Florida counties using this equipment in 2000. In sum, central-count ballots result in more voter mistakes, which in turn result in more ballots not registering a valid vote, commonly known as "residual votes."
Fortunately, it looks like a statewide transition to central-count optical scan ballots won't happen anytime soon. The Ohio legislature has enacted and the Governor now signed a bill (SB 286) that prohibits central tabulation for those counties using optical-scan systems. But that provision has a sort of grandfather clause for boards of election that voted prior to February 1, 2008 to use central-count tabulation at the March 4 primary. ORC 3505.25(B).
That clause allows Ohio's largest county, Cuyahoga (Cleveland area), to go ahead with its decision to use a central-count optical scan system in the coming election. This decision was prompted by problems with its Diebold touchscreen system in prior elections. Last month, a federal district court rejected the ACLU's challenge to Cuyahoga County's decision to use non-notice optical scan equipment in this election. (Disclosure: I'm on the ACLU of Ohio's board and consulted with plaintiffs' counsel on this case.)
The upshot is that we can expect Cuyahoga County to have an unusually high number of residual votes, especially overvotes, in Tuesday's primary. This is especially true given another new provision in the just-signed SB 286, which provides that:
If automatic tabulating equipment detects that more marks were made on an optical scan ballot for a particular office, question, or issue than the number of selections that a voter is allowed by law to make for that office, question, or issue, the voter's ballot shall be invalidated for that office, question, or issue.If I understand this provision correctly, this means that a ballot with marks in two places on the presidential line won't be counted, even if the voter's choice could be deciphered in a hand recount. Suppose, for example, that a voter marked the oval by Barack Obama's name, then had a change of heart and crossed it out, to then place a mark by Hillary Clinton's name writing in the margin "I wish to vote for Clinton." As I read the new statute, that ballot wouldn't be counted, despite the seeming clarity of the voter's notation. Smudges and stray marks could also result in voters being disenfranchised, as Joe Hall observes here.
Voters using central-count optical scan systems can thus be expected to cast a large number of ballots for which no vote can be counted. How many will do this? My rough estimate, based on past experience, is that we can expect at least 1% of central-count optical scan ballots to have such problems. And these problems won't be confined to Cuyahoga County. As a result of a directive issued by Secretary of State Brunner, and thus far upheld by state courts, voters in counties using touchscreen voting machines are entitled to ask for a paper ballot. Voters using those ballots won't have access to precinct-count technology that would allow them to check for errors such as overvotes. Because most voters are likely to be using touchscreen machines, we can expect a smaller number of residual votes in those counties. Still, there will be enough that it could affect the result in a close election.
Will it be enough to affect the outcome? It's not probable, but certainly possible. That's especially true given that 92 of Ohio's 141 pledged Democratic delegates are selected on district basis. See here for a list of how many delegates each of Ohio's congressional districts has. It's quite possible that we could have enough residual votes to make a difference in one or more districts, even if the statewide race isn't within the margin of error. I've previously noted the possibility on such "small-ball" disputes here, and Cuyahoga County is among the places in which they're most likely, given its use of central-count optical scan ballots and the high number of residual votes that can be expected as a result.
Another County watch is Franklin (Columbus area), in which the Director of the Board of Elections, Matt Damschroder, has been replaced just two days before the primary. The Columbus Dispatch has this story, reporting that the board has replaced Damschroder, a Republican, with Democrat Dennis White. Although Damschroder will reportedly remain on as a consultant through the end of the year, the last-minute decision to replace him cannot help but arouse concern about the administration of elections in the state's largest city.
It appears that Secretary of State Brunner is behind the decision to oust Damschroder. Damschroder has been a leader among county election officials in criticizing some of Brunner's decisions, and was subpoenaed to testify in support of the ACLU's lawsuit challenging Cuyahoga County's decision. If in fact Brunner has moved to remove Damschroder because of his testimony in the ACLU case, as this story suggests, that would be a terrible abuse of the Secretary of State's authority -- one that would give justification to Republican complaints about her, comparable to Democrats' justifiable complaints about Blackwell in 2004.
Still another potential area of trouble in 2008, as in 2004, is Ohio's heavy reliance on provisional ballots. In fact, an even higher of Ohioans cast provisional ballots in 2006 than in 2004. As my colleague Ned Foley and Tova Wang note here, provisional ballots have the potential to create inconsistencies among counties and uncertainty about the result. This risk is heightened by Ohio's confusing voter ID requirement and difficulties with its state registration database, which are probable contributing causes to the large number of provisional ballots in the state.
The bottom line: The more things change, the more they stay the same. Despite all the changes that Ohio has seen since 2004, we can still expect lots of residual votes and lots of provisional ballots in Tuesday's primary. These could very well make a difference in a close race ... which means that we may not know who got the most votes or, more importantly, the most delegates until well after Election Day. We can also expect lots of questions to be raised about the manner in which Ohio's elections are being run, including partisanship on the part of the state's chief election official. That's especially true if the race is tight enough to shine a spotlight on the persistent problems in the administration of the state's elections.