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)
Wednesday, March 12
The Problems with All-Mail Elections
With the Clinton and Obama camps at odds over whether to seat Florida and Michigan delegates, the idea of holding an all-mail election has emerged as a possible solution. The New York Times reports today that Democratic Party officials are "close to completing a draft plan" for a mail-in primary in Florida that would take place in early June. Proponents of all-mail voting often cite Oregon's experience in support of their arguments. If they can do it, the argument goes, why can't we?
Given that Democratic Party rules set clear standards for having delegates recognized, which Florida and Michigan just as clearly failed to abide by, it seems obvious that the delegates selected through those states' prior primaries shouldn't be recognized. At the same time, there are reasons to be very cautious about exporting all-mail elections to these states, especially in a hotly contested and undeniably important race like this one. Here are a few of those reasons:
- Lack of experience. All-mail elections would be new to Florida. It's certainly true that some voters in Florida and other states already vote by mail, in the form of absentee ballots. But having everyone vote by mail is a major change that raises a different set of issues. In Oregon, the transition to all-mail elections was made gradually, over two decades as summarized in this timeline. Trying to implement all-mail voting on an extremely accelerated schedule would invite trouble. This is particularly true for a state like Florida, to put it mildly, doesn't exactly have a trouble-free history of election administration. With so much at stake, this isn't a great time to experiment.
- Security. The likelihood of fraud and other forms of electoral manipulation is frequently exaggerated. But to the extent foul play happens, it's most likely to occur with mail-in ballots. That's partly because the anonymity of the ballot is compromised, allowing people to buy and sell their votes in a way that's not possible with in-precinct voting, as Rick Hasen has pointed out. It's also because lots of things that can happen to a ballot between the time it's goes from election authorities to the voter and back again. Suppose some election insider has a list of "deadwood" on the rolls (i.e., people who've died or moved yet remain on the rolls) and is able to intercept those ballots before they get into the mail? Or suppose someone has a connection at the post office? This isn't to argue that these things often happen -- there's not much evidence of such fraud in Oregon, according to this report by Paul Gronke. But again, Oregon's got a long history of dealing with the problems with mail voting, and not much history of corruption. By contrast, there has been fraud with mail ballots in Florida, specifically in a Miami mayoral election in which absentee ballots were found at the home of a local political boss, as noted by Prof. Gronke (at p. 2).
- Voter mistakes. As we learned in Florida eight years ago, voters make lots of mistakes. Fortunately, the current generation of voting technology can reduce those mistakes, as I've discussed at length in this article. That includes not only electronic touchscreen voting systems, but also paper-based "notice" systems that are used at Florida's precincts. With such "notice" systems, commonly known as precinct-count optical scan, voters run their paper ballots through scanners at each polling place. Those scanners provide voters with notice and the opportunity to erroneous "overvotes" (making more choices than allowed). Such mistakes are more common than you might think, as documented in the media consortium study of ballots in Florida's 2000 election. That study found more than 40 overvotes per 1000 ballots with optical-scan paper ballots. The use of precinct-based notice technology reduced the number of errors to less than 3 per 1000. People voting by mail, of course, don't have access to notice technology and can thus be expected to cast more ballots that won't be counted. And this isn't even taking into consideration the other mistakes than can occur, like sending in the ballot late, failing to include adequate postage, not including adequate identifying information, or not signing in the right place. See this study by Mike Alvarez, Thad Hall, and Betsy Sinclair on the errors that voters make when voting by mail
- Skewing the electorate. To my mind, the most serious risk of all-mail elections is that it will distort participation to the disadvantage of certain demographic groups. Those who are most familiar with voting by mail are likely to have the highest levels of participation; others can be expected to have more trouble and thus lower levels of participation. This includes not only people who have moved or who are homeless, but also those who are illiterate or marginally literate, and therefore may have difficulty following written instructions on mail ballots. At the polling place, such people can of course rely on poll workers' assistance -- not so when they vote by mail.
Empirical research for Oregon provides some support for this concern. It's true that some studies have found a modest increase in overall turnout in Oregon, after many years of experience. But even in Oregon, that increase tends to occur disproportionately among those already most likely to participate, including those who are better educated and more affluent. As one researcher has put it, mail voting can have "perverse consequences" because it tends to "reinforce the demographic compositional bias of the electorate and may even heighten that bias." The end result could be an electorate that's even less representative of the general public than the existing one -- older, richer, and whiter.
Even if one believes that all-mail voting works well in a smaller and relatively homogeneous state like Oregon, there's reason to be very cautious about exporting it to larger, more heterogeneous states. These concerns are especially acute in states such as Florida and Michigan, parts of which are covered by Section 5 of the Voting Rights Act. That means that any change to their election rules -- including an all-mail primary election -- would have to be precleared by the U.S. Department of Justice or the U.S. District Court in Washington, D.C. If the use of all-mail voting would have a retrogressive effect, making racial minorities worse off than they were before, then the change couldn't be made.
There's a reasonable argument that preclearance should be denied, on the ground that an all-mail election will have a negative impact on the participation of minority voters. But even if preclearance is granted, mail voting could still have a disproportionate impact on participation by some groups of voters. And that, of course, would cloud the legitimacy of Florida's election -- and perhaps the selection of our next President. As Yogi Berra (or John Fogerty) might put it, it's like deja vu all over again. If there's going to be a re-vote in Florida, it should be conducted at precincts rather than by mail.
Tuesday, March 11
The AP has this report on the Ohio Supreme Court's decision rejecting Ohio Secretary of State Jennifer Brunner's request that she be shielded from the deposition in a case regarding a Summit County Board of Elections member whom she refused to reappoint. This follows yesterday's story in the Columbus Dispatch, reporting on allegations that Brunner has retaliated against those who disagree with her by effecting their removal from office. The deputy chair of the Ohio Republican Party, Kevin DeWine, complains that Brunner is "injecting a culture of fear and intimidation" into county boards of elections. See here for more of DeWine's accusations.
This is a particularly significant issue to watch in Ohio, given the allegations of partisanship surrounding Brunner's Republican predecessor, Ken Blackwell. I've previously discussed concerns regarding Brunner's possible role in ousting the Matt Damschroder from his position as Franklin County's elections director. If Brunner is in fact using her power vindictively, to retaliate against local election officials who disagree with her, it can be expected to furthe erode public confidence in the state's administration of elections.
Sunday, March 9
Pay Attention to Provisionals
That's one piece of advice I'd give to both election officials and candidates this election season. This lesson emerged during the 2004 election, when the large number of provisional ballots cast in Ohio delayed the decision to call the state -- and thus the presidential race -- for President Bush. In Ohio's 2004 election, provisional ballots amounted to 2.8% of those cast, and an even higher percentage of the state's voters cast provisional ballots in 2006.
A large number of provisional ballots can indicate problems in a state's registration system. Also, to the extent a state relies heavily on provisional ballots, it's likely that some voters will be disenfranchised. Moreover, county-to-county discrepancies in the way provisional ballots are verified can alter the result of a close election -- and possibly lead to equal protection concerns.
To illustrate the impact of provisional ballots, I've been trying to find out the number and percentage of provisional ballots cast in Tuesday's primaries. So far, the Ohio Secretary of State's website doesn't appear to have this information. (As I mentioned Wednesday, it's important that this information be released as soon as possible.)
I have learned that a large number of provisional ballots were cast in Franklin County (Columbus area) on Tuesday. The total reported turnout was 299,688, but I'm told that there are approximately 20,000 additional provisional ballots that have yet to be verified or counted. If that's correct, it means that around 6.25% of Franklin County voters cast a provisional ballot. That's a lot.
A large number of provisional ballots could have consequences for the allocation of delegates, as I explained Thursday. Although the statewide result in Ohio's Democratic primary wasn't that close, a relatively small change within a couple of districts ould alter the delegate allocation. Take the 1st Congressional District (Cincinnati area), in which Senator Obama has 66,342 votes to Senator Clinton's 40,112. If Obama were to pick up a little over 500 votes, he'd gain a delegate and she'd lose one. What I don't yet know is how many outstanding provisional ballots there are in the two counties within CD 1 (Hamilton and Butler). If the percentage of provisional ballots is comparable to that in Franklin County, it's quite possible that the delegate allocation could change. The same goes for the counties within CD 17 (Summit, Portage, Trumball and Mahoning), where Senator Clinton could net-gain two delegates with a couple hundred more votes.
Ohio and Texas make a nice contrast, for purposes of demostrating how provisional ballots can throw election results into doubt. According to the latest information available on Green Papers' Texas page, Texas has four districts in which a relatively small shift in vote totals could change the allocation of delegates as between Senators Clinton and Obama. Senator Obama could gain delegates by picking up a votes in state senatorial districts 3, 15 and 19, while Senator Clinton could gain delegates by picking up votes in district 26. But this is less likely in Texas than in Ohio. Texas' Secretary of State reports only 9,744 provisional ballots statewide, meaning that less than 0.08% of the states voters voted provisionally. Given the small number of provisional ballots outstanding, the delegate allocation in Texas is less likely to change (though other factors, such as uncounted absentee ballots or residual votes could still alter vote totals).
It's quite possible that even more voters could be casting provisional ballots in this year's elections, as compared to 2004. That's true for at least a couple of reasons. First, the Help America Vote Act of 2002 (HAVA) required each state to have a statewide registration database in place by 2006. The idea is to make registration systems more accurate, but there probably will be -- and indeed have been -- problems with the new state registration lists that result in some voters' names wrongly being omitted from the rolls. Second, a number of states have imposed stricter ID requirements since 2004, including potential swing states like Ohio, Arizona, and Missouri (the last of whose photo ID requirement was struck down by the state supreme court). This can also be expected to cause more provisional ballots, some of which won't be counted.
As we look forward to the general election, states with large numbers of provisional ballots would be well advised to examine the reasons why. They should also take steps to ensure that provisional ballots cast by eligible voters are counted. It bears emphasis that the process for counting provisional ballots invariably involves some discretion, which means that it gives something for candidates to fight over. This isn't to say that this will happen in the primary but, looking forward to the general election, a large number of provisional ballots provides reason for concern -- both in terms of making sure that all eligible voters have their votes counted, and in terms of reducing the likelihood of post-election disputes over the result.
Thursday, March 6
Uncounted Ballots & Ohio's Delegate Math
Yeterday, I raised some questions regarding as-yet-uncounted ballots in Ohio -- specifically, the number of provisional, residual, and absentee ballots that aren't included in the official vote totals. In this post, I discuss how these ballots could actually affect the result of yesterday's election, despite the clear margin by which Senator Clinton won the statewide popular vote.
Of Ohio's 141 pledged delegates, 92 are to be assigned based on the vote within congressional districts, as set forth here on the Green Papers site. You can find a map of Ohio CD's here. [Update 3/7/08: Green Papers' Ohio page has now been updated to include the most recent vote totals.] Current unofficial votes totals for each district can be found here on the Ohio Secretary of State's site. CNN's current estimate is that Clinton will net 10 delegates from Ohio.
Based on the latest district-by-district vote totals, I find two congressional districts in which a realistic change from the unofficial results could affect the allocation of delegates.
- CD 1 (Cincinnati area, 4 delegates). Senator Obama has 62.32% of the votes cast for qualifying candidates (i.e., himself and Senator Clinton). If he were to get over 62.50%, he'd get 3 and she would get 1; if not, they split them 2-2. For Obama, picking up a third delegate would require an additional 512 votes.
- CD 17 (7 delegates, northeastern Ohio). Senator Clinton currently has 64.24% of the votes cast for qualifying candidates. If she can pick up enough votes to get to 64.29%, she'd get 5 to his 2; if she stays below this threshold, she gets 4 to his 3. For Clinton to pick up a fifth delegate would require an additional 242 votes.
Each of these scenarios would result in a net change of two delegates, since one candidate would be gaining a delegate and the other losing a delegate. Note that both scenarios assume that the other candidate wouldn't pick up any additional delegates, which isn't realistic; but if the candidate could pick up enough votes relative to his or her opponent, it's possible. What this means is that changes in vote totals might affect delegate allocation in Ohio, particularly when provisional ballots are counted. It's also possible that a recount of paper ballots cast in optical-scan counties could result in additional votes being counted. Could we even see litigation over one or both of these districts, say over the counting of provisional ballots or the recounting of residual votes? I doubt it, since it's probably not worth the resources it would take to litigate such an issue for a two-delegate swing, but in the current environment I suppose you never know.
Interestingly, in the district where the two candidates are running closest -- my own district, CD 15, where Senator Clinton currently has 55,070 votes to Senator Obama's 54,544 -- who "wins" is inconsequential. That's because this district has 4 allotted delegates, which they'll split down the middle.
[Note: If you come across any errors in the above post -- particularly a mathematical error, which is quite possible since my algebra is a bit rusty -- I'd be grateful for your calling them to my attention.]
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.]
Tuesday, March 4
Don't Call Ohio Too Soon
That's my advice to the news media tonight, in the event of a close Democratic primary. As returns start to come in from Ohio this evening, we should keep in mind circumstances that will probably result in more outstanding ballots on Election Night than in other states, and maybe even more than is typical for Ohio. If that's true, a margin that appears insurmountable on paper -- even with all precincts nominally reported -- may actually be smaller than it appears.
Here are the big things that might cause there to be a large number of yet-to-be-counted ballots than usual on election night:
- Provisional Ballots. Ohio heavily relies on provisional ballots, which are used for people who've moved, who don't have required ID, and whose names don't appear on the registration list when they go to vote, among other things. Most of us probably remember the delay in calling the 2004 election, when Bush led Kerry by some 136,000 votes with approximately 158,000 provisional ballots left to be verified and counted. When these ballots were eventually counted, they cut Bush's margin by about 18,000 votes. In November 2006, an even higher percentage of Ohio voters cast provisional ballots, over 3%. In light of Ohio's new ID rules, still not completely familiar to many voters, and potential problems with its statewide registration list, we can expect lots of provisionals today as well. Voters have 10 days after the election to bring in their information, and it will be a while after that before we know how many of the provisionals will be counted and who they're cast for.
- Residual Votes. These are ballots that don't register a valid vote, at least when they're run through automatic tabulators. They include undervotes (a ballot that doesn't register a choice) and overvotes (a ballot that registers more than the allowed number of choices). Both can sometimes result from ambiguous marks with paper-based voting systems, but some of the undervotes may be recoverable through a manual recount. Under Ohio law, a ballot on which a voter circles the candidates name or makes a mark with an instrument that can't be recognized by tabulating equiment should eventually be counted. As I explained in Sunday's post, we can expect a significant number of residual votes in Ohio today, because a large number of voters will be voting with central-count optical scan equipment that doesn't allow voters to check for mistakes before casting their votes. Cuyahoga County will be especially hard hit, but other counties will also be affected given that voters in touchscreen counties are allowed to vote a paper ballot on request. If the race winds up being tight, it will be important to know how many residual votes there are -- especially in the Cleveland area.
- Absentee Ballots. Even with all election-day precincts reporting, it's possible that there will still be some absentee ballots not counted. Ohio has no-excuse absentee voting, and there have been reports of large numbers of absentee ballots this year. Ohio counties were permitted to start tabulating absentee ballots on Saturday, but it's not clear how many have actually been counted across the states 88 counties.
- Lines at the Polls. Under Ohio law, voters are entitled to cast ballots if they're waiting in line at the time polls close, 7:30 pm. We've already seen some long lines before election day for early voting at county boards of elections. Although I don't expect the long lines that we saw in 2004, it's possible some voters won't actually cast their ballots -- much less have them tabulated -- for a while after polls officially close.
There are other things that could prevent us from quickly knowing the outcome in Ohio. Another possibility is delays in transporting or counting optical-scan ballots, especially in Cuyahoga County, which my colleague Ned Foley alluded to here. There could be some administrative problems in Franklin County (Columbus area), given the personnel shake-up on the eve of today's election. And we've already today got word of flooding in one Ohio county (Jefferson) that has closed polling places, which will probably result in more provisional ballots and delays in counting all the votes. See this complaint filed by the Secretary of State.
So what margin can be considered safe? That depends. The media of course have other tools at their disposal besides the official count, most notably exit polls, when they call races. But if those are within or close to the margin of error, there's reason to be careful.
If the official tally is within a few ten-thousand votes -- say less than 20,000 -- it's quite possible that the popular vote result might be affected by yet-to-be-counted provisional, residual, and absentee ballots. On the other hand, if the margin is over 100,000 with all precincts reporting, that's unlikely to change. If it's in between, we'd have to look not only at how many ballots are out there yet to be counted, but also at where those voters are to make a reliable assessment of who "won" the popular vote.
This isn't even taking into consideration the difficulties that may arise in determining how many delegates each candidate got. As in other states, most of the state's pledged delegates are apportioned by congressional district. This means that the candidate who got more popular votes may not be the real "winner" in the all-important race for delegates, something that will be difficult to gauge with precision tonight. Given how many of the state's votes won't be counted tonight, it may take a while to get a clear handle on how many of Ohio's delegates each candidate will get -- and perhaps on who really "won" the election.
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.