Elmendorf on Crawford on Harper
Chris Elmendorf offers this comment for EL@M, regarding last week's decision from the Supreme Court in Crawford v. Marion County Election Board. It's characteristically thoughtful, provocative, and well worth reading. (Disclosure: He and I co-authored an amicus brief to the Court on the case.)

Particularly interesting is Elmendorf's discussion of the lingering uncertainty over the level of scrutiny to be applied in cases challenging restrictions on participation. As I suggested in my initial post on Crawford last week, one of the most important aspects of the lead opinion is its treatment of the Court's landmark decision in Harper v. Virginia Board of Elections (1966), which struck down a $1.50 poll tax on the ground that it violated equal protection. Elmendorf has this to say about the discussion of Harper in Justice Stevens' lead opinion (joined by the Chief Justice and Justice Kennedy):

Much to my surprise, six Justices unequivocally affirmed that Burdick requires open-ended balancing, rather than a threshold classification of the challenged requirement as "severe" or "not severe." To emphasize this point, Justice Stevens's lead opinion read Harper v. Virginia Bd. of Elections, which held that Virginia may not require would-be voters to pay a $1.50 tax, as standing for the proposition that "[h]owever slight [a] burden on [voting] rights may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation." Slip op at 7. (I had treated Harper as the source of a special, per-se rule that express financial conditions on political participation are qualitatively "severe in kind" and thus subject to strict scrutiny, even if not practically burdensome.)

I think Elmendorf is right to say that the lead opinion requires some sort of weighing of interests in all cases involving restrictions on participation, and not just in those which impose "severe" restrictions -- more on this below. But I don't think it's the lead opinion renounces the idea that "severe" restrictions warrant strict scrutiny. Rather, the lead opinion in Crawford understands Harper as a case that did apply something like strict scrutiny. At the start of his discussion of Harper (slip op. at 5). Justice Stevens describes Harper as "[a]pplying a stricter standard" than rational basis. This is consistent with Harper itself, which said that laws burdening fundamental rights like voting must be "closely scrutinized and carefully confined."

Of course, Harper came before the development of the three-tiered approach to levels of scrutiny that we know today. And, of course, Justice Stevens has never been a fan of the Court's three-tiered approach. (See, e.g., his concurring opinion in Craig v. Boren (1976).) Still, I don't think Crawford should be read as discarding the idea that some restrictions on participation are sufficiently severe as to warrant strict scrutiny. Later in the same paragraph, Justice Stevens characterizes Harper as a case involving "invidious" discrimination. Even though there wasn't a showing of intentional discrimination, and even though the tax was "rational," according to Justice Stevens, "it was invidious because it was irrelevant to the voter's qualifications." This suggests that there's still a threshold test, which was met in Harper but not Crawford, for determining whether to apply strict scrutiny.

In the passage Elmendorf quotes, Justice Stevens goes on to say that "[h]owever slight [a] burden on [voting] rights may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation" (emphasis mine). But appearances can be deceiving. In Harper, the law was "invidious" despite its relatively benign appearance. After its discussion of Harper, the lead opinion reaffirms the approach in Anderson and Burdick, cases that articulated the severe burden standard, while recognizing that there's no "litmus test for measuring the severity of a burden that a state law imposes ...." (slip op. at 7).

What all this means, I think, is that there's a spectrum of burdens, and that the justification that the state must provide will vary accordingly; but it's not to deny that, at one end of the spectrum, the state will have to show that its law is narrowly tailored to a compelling interest. Most if not all of the justices seem to agree that some voting laws warrant strict scrutiny. Joined by Justices Alito and Thomas, Justice Scalia reads Harper -- properly in my view -- as a case applying "strict scrutin[y]" (although I think he's wrong to characterize the poll tax law as "nondiscriminatory"). And Justice Souter, joined by Justice Ginsburg, acknowledges that burden imposed by Indiana's voter ID law isn't severe, but then go on to explain why that burden shouldn't be ignored altogether.

It thus appears that a majority of the justices agree that even laws that don't impose a severe burden get something more than deferential rational basis review. This is something on which I hadn't really focused before reading Elmendorf's comment. It's a point on which the lead opinion and the Scalia group sharply disagree. Justice Scalia would adhere to a more rigid two-tiered framework, applying a "deferential" standard where a "severe" restriction is lacking (Scalia slip op. at 1-2). By contrast, both the lead opinion and the dissenters seem to think there's got to be some evidence justifying a burden on voting, even one that isn't "severe." See Souter slip op. at 7 ("Although making voters travel farther than what is convenient for most and possible for some does not amount to a 'severe' burden under Burdick, that is no reason to ignore the burden altogether.") ; Breyer slip op. at 1 (looking to whether the law's burden is disproportionate to its benefits).

I thus think it's right to point out, as Elmendorf does, that Crawford softens the two-tiered severe/nonsevere framework that some courts have read Anderson and Burdick to have created. It doesn't reject the idea that "severe" burdens get strict scrutiny, but less now hinges on this question. That's because even laws that don't impose severe burdens on voting should (according to six justices, by my count) get something more than deferential rational basis review.

All this admittedly requires some not inconsiderable between-the-lines reading of the various opinions in Crawford. As Elmendorf puts it, those opinions "do little to clarify how the courts ought to weigh the 'voting related interests' assertedly at stake in constitutional challenges to voting mechanics." Indeed, the case may well leave the law more confused than it found it. The Crawford opinions can, however, be read to support the proposition that the state isn't off the hook just because its law imposes a "nonsevere" burden on voter participation. That's certainly how I'd read them, were I a voting rights lawyer trying to challenge an election administration practice after Crawford. - posted by Dan Tokaji @ 10:53 AM

 
An Election Day Registration Bill
A bill has been introduced in the Senate that would require states to allow election day registration (EDR) in federal elections. The bill may be found here and co-sponsor Senator Russ Feingold's statement in support of the bill here.

EDR has been used in nine states some of them since the 1970s. We therefore have quite a bit of evidence on its efficacy. As detailed in our recent report From Registration to Recounts: The Election Ecosystems of Five Midwestern States, it's been very successful in those states, increasing participation without any evidence of an increase in voter fraud -- the main argument that's usually used against EDR. Minnesota and Wisconsin are particularly good examples of the positive effects of EDR, as documented in that report.

Social science research has consistently found an increase in turnout due to EDR, probably in the range of 5-10%, as documented in testimony that I offered to the House Adminstration Committee when it was considering another EDR bill late last year. Senator Feingold's statement in the support of the bill thus aptly cites this as an example of the "moneyball approach to election reform," which I discussed in this post. That's the idea that election reform ought to be based on solid empirical evidence rather than intuition and anecdote -- something that's too often been the case by reformers on both the left and the right.

Another benefit of EDR is that it reduces reliance on provisional ballots and, with it, the likelihood of post-election litigation over whether those ballots should be counted. As I stated in testimony on another EDR bill that was being considered by the House Administration committee late last year:

While the turnout benefits of EDR are widely recognized, another advantage has received virtually no attention: allowing EDR can almost entirely eliminate the need for provisional ballots. That is primarily due to the fact that voters whose registration forms are mishandled need not cast a provisional ballot in EDR states. Instead, they may simply register at the polls. Consider, for example, voters whose names do not appear on registration lists when they appear at the polling place for any of the following reasons:

-a third-party registration group soliciting voter registration inadvertently failed to return the form,

-a public agency that took the voter's registration application, such as a state motor vehicle office, failed to transmit that registration to the appropriate county election office, or

- the county election office made a data-entry error, say in the voter's home address, causing the voter's not to appear on the registration list for his or her polling place.

In each of these circumstances, the voter's name would not appear on the registration list for the proper polling place when he or she shows up to vote on Election Day. In a state without EDR, that voter would be relegated to the provisional voting process. In an EDR state, by contrast, the voter would be permitted to register and vote on Election Day, provided that he or she satisfied state requirements for confirming eligibility.

The data on provisional voting confirms that EDR states are much less reliant on provisional ballots than other states. In the 2004 election, for example, the EDR states of Maine, Wisconsin and Wyoming all had 0.05% or less of their registered voters cast provisional ballots.1 Maine had only 483 provisional ballots cast statewide, while Wisconsin had only 374, and Wyoming just 95.2 In Minnesota, there were zero provisional ballots cast in the 2004 presidential election. By contrast, almost 2% of Ohio's registered voters - a total of 157, 714 people - cast provisional ballots in 2004. Quite clearly, the much larger number of provisional ballots cast increases the likelihood of a close election turning into a disputed election. It is not difficult to imagine the nightmare scenario that would have emerged in Ohio in 2004, had the margin of victory been closer. The two candidates would have wound up arguing over whether provisional ballots should be counted in counties across the state, just as they argued over whether punch card ballots should be counted after Florida's 2000 election.

Greater participation in our democracy is thus only one of the benefits of EDR. Adopting EDR can virtually eliminate the need for provisional ballots and, with it, a potential source of contestation and litigation over close elections.... Put more simply, EDR promotes the value of finality as well as access, and does so without sacrificing electoral integrity.

For these reasons, I hope Congress will give serious consideration to this bill. - posted by Dan Tokaji @ 9:46 AM

 
Crawford: It Could Have Been Worse
That's about the best that can be said about yesterday's opinions in Crawford v. Marion County Election Board. Following the precedent set by LULAC v. Perry and Randall v. Sorrell in 2006, the Court issued a splintered decision in an important constitutional election law case. The lack of a majority opinion, and the narrowness of Justice Stevens' lead opinion (joined only by the Chief Justice and Justice Kennedy), will probably limit the harm done by the Court's decision to uphold what is probably the strictest and most exclusionary voter ID law in the country.

One couldn't realistically expect much better from the current Court. In a variety of areas -- most notably abortion and racial integration of public schools -- the Roberts Court has taken a dramatic turn to the right. While nominally adhering to past decisions, the Court has in fact eviscerated precedent, something that Justice Scalia in last year's Wisconsin Right to Life v. FEC referred to as "faux judicial restraint." What almost certainly prevented the Court from doing similar damage in Crawford is the fact that, in something of a surprise, Justice Stevens was part of a majority of justices voting to uphold Indiana's restrictive law, which requires government-issued photo ID in order to vote at a polling place and have that vote counted.

Justice Stevens' lead opinion, to its credit, starts with the precedent most at risk in Crawford: the Court's 1966 opinion in Harper v. Virginia Board of Elections which struck down Virginia's $1.50 poll tax. In that case, the Court applied what Crawford properly characterizes as a "stricter standard" than rational basis to a law that imposing a voting condition that would disproportionately exclude poor people. As I set forth in this recent comment in the University of Pennsylvania Law Review's online supplement, Harper ought to be the starting point for evaluating claims that an election practice disproportionately excludes a particular group from participating in elections.

In Crawford, the lead opinion declines to apply a comparably strict standard, despite the fact that Indiana's law seems comparably designed to exclude poor voters, not to mention those who are elderly, disabled, students, and racial minorities. It's certainly true that the evidence of disparate impact on these and other groups was pretty thin in the case. But the same could be said of Harper, which didn't rest on empirical research that a poll tax would have a disparate impact on poor voters. If anything, Indiana voters' empirical case was stronger.

So what distinguishes Crawford from Harper? The lead opinion's answer seems to be this: "Although the state's justification for the [poll] tax was rational, it was invidious because it was irrelevant to the voter's qualifications." The problem here is that the same can be said for Indiana's law, given the utter lack of evidence showing that the state has any problem whatsoever with voters going to the polls pretending to be someone they're not -- which the lead opinion admits to be the only problem that the state's ID law could possibly remedy. Even if one looks beyond Indiana's borders the evidence of in-person voting fraud is exceedingly scant, as a careful reading of the lead opinion (especially footnotes 11 & 12) makes clear. The evidence of fraud that exists is mostly with absentee ballots, a problem to which a polling place ID requirement is irrelevant, as the lead opinion admits.

The lead opinion goes on to weigh the burdens on the voter against the state's asserted interest, concluding that Indiana's law doesn't impose "substantial burdens." It's here that I have my most serious disagreement with its reasoning. Its analysis focuses on the individual voter, reasoning that, even for poor voters, there are ways of complying with Indiana's law. But this really misses the point of the law -- both from a judicial perspective and almost certainly from the perspective of those who enacted it.

It's probably true that, for most individual voters, the burdens imposed by the law are surmountable. Even a voter who doesn't drive can purchase a birth certificate and then take a bus trip to the BMV to get a photo ID card. But the focus on the individual voter overlooks the systemic impact of such a photo ID requirement. Some voters will surely go through the hoops required to get photo ID. But others won't wait in a line at the BMV to get photo ID, only to wait in another in order to vote. The legislators in Indiana who voted for the law, almost all Republicans, surely know this -- a cynic might say that the disparate burden on likely Democratic voters is exactly why they voted as they did.

In short, the focus on the individual voter misses the likely systemic impact of the law upon certain groups, in this case poor, disabled, minority, elderly, and student voters. The question upon which the Court should have focused is whether Indiana's law would have a skewing effect on the electorate, as Chris Elmendorf and I argued in our amicus brief.

Here again, it's fair to point out that plaintiffs' lawyers put together a pretty weak case. And the Court does point this out, in declining to strike down Indiana's law on its face: "[O]n the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." Ironically, though not uncommonly, the weakness of plaintiffs' evidence helps avoid some really bad law.

This leaves the door open to challenges to other election administration laws, where plaintiffs are able to put together a stronger evidentiary case than did the Crawford plaintiffs' lawyers. It's not clear from the lead opinion how much stronger that evidence would have to be to be in order to support a facial challenge -- but from a voting rights perspective, that lack of clarity is almost certainly a blessing. In fact, the Court even leaves the door open to an as-applied challenge to Indiana's law, by someone presenting stronger evidence of a burden.

While Crawford doesn't close the door on facial challenges to election laws, it does continue the Court's inching toward as-applied challenges in these cases, also evident in its recent decision in Washington State Grange. This is a troubling trend, at least when it comes to election administration cases like this one. The reason is that it will often be difficult to know the precise impact of a particular practice on individual voters before an election. It may be difficult for plaintiffs to establish standing before an election to challenge rules pertaining to ID, registration list maintenance, provisional ballots, or polling place operations, since no particular voter can say for sure that she'll be impeded from voting due to that practice.

What this means is that great weight will end up being placed on the back end of the election process, particularly on the post-election mechanisms for resolving disputes. It will put particular pressure on a state's provisional voting system, where a lot of these questions are likely to be worked out. A voter who doesn't have ID, for example, should still be allowed to cast a provisional ballot. It will be left for the parties and candidates, in the event of a close election, to fight things out afterward. We've seen before what can happen when problems are shunted to the back end of the process. Was 2000 really that long ago?

On this point, I am somewhat surprised to find myself in partial agreement with Justice Scalia. Joined by Justices Thomas and Alito, Justice Scalia rejects the focus on "individual impacts" in ascertaining the burden imposed by a law. Here, I'm with him. The main focus should be on the systemic impact of a law.

At this point, Justice Scalia and I would go in opposite directions. He would uphold virtually all laws alleged to systemically exclude certain classes of voters, at least where they don't affect a suspect class. He relegates Harper to his cryptic footnote *, which acknowledges that it "strictly scrutinized" Virginia's poll tax law. Justice Scalia then says that "we have never held that legislatures must calibrate all election laws, even those totally unrelated to money, for their impacts on poor voters ...." I'm not quite sure that I understand what this means. Perhaps Justice Scalia means to sweep Harper into the dustbin of history, or at least confine it to its facts. If he means to suggest that Indiana's law (unlike the poll tax) is really "unrelated to money" -- well, that's a pretty hard one to swallow, even on the relatively meager record in this case.

This brings me to an important lesson for voting rights lawyers who lose in lower courts: Think long and hard before seeking Supreme Court review. That's true even when you've got a poorly reasoned lower court opinion like the one Judge Posner authored for the Seventh Circuit in Crawford (see this post by Bob Bauer). In retrospect, it was a major error in judgment for plaintiffs' lawyers to seek cert in this case. This isn't just Monday-morning quarterbacking. Most of the civil rights community knew that taking this case up to the Supreme Court was a bad idea, given its present composition.

It's also clear that the Supreme Court should not have granted the cert petition in this case. The more prudent course would have been to let the issue percolate in the lower courts and, perhaps even more important, to let the empirical research on the impact of voter ID develop further before taking up the issue. Again, this isn't just Monday-morning quarterbacking. As I said in an article published last year: "Instead of granting certiorari in Crawford, the Court should have awaited a case presenting a more fully developed record that included empirical research on the harms and benefits of voter identification." Perhaps the most conservative justices on the Court (i.e., Justices Scalia, Thomas, and Alito) were hoping for a decision that would give states carte blanche on voter ID laws, but fortunately that's not what this set of opinions does. Instead, Crawford accentuates the lack of coherence in the Court's jurisprudence when it comes to election law.

But, as I say, it could have been worse. - posted by Dan Tokaji @ 6:53 AM

 
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. - posted by Dan Tokaji @ 11:40 AM

 
Blackwell Redux?
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. - posted by Dan Tokaji @ 10:40 AM

 
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. - posted by Dan Tokaji @ 2:06 PM

 
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.] - posted by Dan Tokaji @ 12:29 PM