Equal Vote

The Wrong Approach to Election Reform

noreply@blogger.com (Dan Tokaji) — Thu, 18 Dec 2008 17:20:00 +0000

The Ohio legislature yesterday approved a bill (SB 380) that would eliminate the window for early registration and absentee voting, among other things. Here's a snippet from my testimony in opposition to the bill last week, which draws upon the "Moneyball Approach to Election Reform" that I've advocated in the past:

In considering election reform proposals, it is vital that legislative bodies take a careful, studied, and deliberative approach, one that collects and considers all the relevant evidence and data from this state and other states on how existing election administration works and what if anything is likely to improve it. That has not been done in this case. What we have learned over the past eight years is that the worst way to do election reform is to rush through a bill with a party-line vote, without taking the time to collect data on existing practices and proposed reforms. Yet that, unfortunately, is precisely the faulty process that is being followed here. For this reason, I urge that the bill be rejected in its entirety.

The bill now heads to the Governor.

(Disclosures: I was an attorney for plaintiffs and amici in litigation seeking to preserve the window for simultaneous registration and absentee voting. My wife works in the Governor's office, though not on election matters.)

Reforming Registration

noreply@blogger.com (Dan Tokaji) — Fri, 07 Nov 2008 14:43:00 +0000

On Monday, I identified four problem areas to watch out for on Election Day: 1) lines at the polls, 2) voting equipment, 3) voter registration lists, and 4) provisional and absentee ballots. While machine breakdowns and polling place lines got the lion's share public attention on Election Day, a closer look reveals that voter registration was the election administration issue of 2008. Looking forward, it is imperative that policymakers consider changes to voter registration that would eliminate unnecessary barriers to participation and reduce the need for provisional ballots. Expanding Election Day Registration would be a great place to start.

There are a couple of reasons for the special importance of voter registration this year. One is the massive influx of new voters. The other is a change in the law. The Help America Vote Act of 2002 (HAVA) required every state to implement a statewide voter registration list by 2006. Before that, most states maintained their voter registration lists at the local level. This was the first presidential election in which this major change to our voter registration system was in effect. And like any other change -- such as the implementation of new voting machines and provisional voting in 2004 -- it caused its share of problems.

Especially challenging was the implementation of HAVA's requirement that statewide registration databases be "matched" against information in motor vehicle and social security records. This particular requirement proved problematic, because HAVA provides little clear direction on how this matching is to be done or on what consequences should follow from a failed match. In addition, the process of matching registration records against other government lists turned out to be much more difficult than Congress imagined when it passed HAVA.

Registration matching became a focal point of controversy, partly because of the revelation that some ACORN canvassers had submitted phony voter registration forms rather than doing the work for which they were being paid. There is little evidence that this led to actual voter fraud -- Mickey Mouse's name may have appeared on registration forms, but he didn't show up to vote. Nevertheless, Republicans in Ohio and Wisconsin raised the specter of voter fraud in litigation brought to compel matching by state officials. [Disclosure: I joined voting and civil rights groups on amicus briefs opposing both lawsuits.]

A more pressing concern is that overly restrictive matching and purging practices will exclude eligible voters. As the Brennan Center has documented, data entry errors and other administrative problems can result in erroneous mismatches. Florida's "no match, no vote" policy is probably the worst example. Fortunately, most other states declined to penalize voters for administrative mistakes. In Ohio, more than 200,000 voters who registered this year -- more than one quarter -- did not match. In Wisconsin, four members of the six-person board that runs the state's elections had a mismatch. To remove these mismatched voters from the list or require them to cast provisional ballots would have created serious administrative problems, compounding lines at polling places and creating the risk of eligible citizens' votes being rejected.

Fortunately, Ohio and Wisconsin didn't remove "mismatched" voters from the rolls or make them cast provisional ballots, and the courts wisely declined to order any such relief. Unfortunately, there were still lots of registration problems that required many voters in some states to cast provisional ballots. A large number of provisional ballots is problematic not only because they can result in eligible voter's ballots not being counted, but because they can exacerbate the uncertainty surrounding a close election.

Although the presidential election wasn't close enough to bring provisional ballots into play, there are other still-unresolved contests that illuminate this problems. Most notable are close congressional races in Minnesota and Ohio. In Minnesota, the Democratic candidate for the U.S. Senate Al Franken currently trails Republican incumbent Norm Coleman by a razor-thin margin of just 237 votes out of over 2.8 million cast. In Ohio, Mary Jo Kilroy, the Democratic candidate for the 15th Congressional District, trails Republican Steve Stivers by 146 votes out of more than 260,000 cast (though the margin may be going up due to a just-detected tabulation error).

The vote totals in both these races can be expected to change before there become final -- but substantial swings are especially likely in Ohio. A major difference between these two states is in the use of provisional ballots. Ohio relies very heavily on them. There were over 27,000 cast in Franklin County alone, about half of which are probably in the 15th CD. As I explained in this comment, a large number of provisional ballots tends to increase the margin of litigation, casting uncertainty over the result and making disputes over the outcome more likely. There's a good chance that Kilroy and Stivers will wind up fighting over whether to cast provisional ballots, perhaps using litigation pending in federal court as the vehicle.

On the other hand, Minnesota has Election Day Registration. EDR not only increases turnout -- around 5-10%, according to most studies -- but also eliminates the need for provisional ballots. If a previously registered voter moves or has her name removed from the rolls, she can simply register (or re-register) at the polling place. Minnesota thus reported zero provisional ballots in 2006. Because there are no provisional ballots to fight over, EDR in Minnesota eliminates a major source of contention and potential litigation.

That's one of the reasons why my Moritz colleagues and I ranked Minnesota ranked first and Ohio last, in a study of five midwestern states completed last year. Expanding EDR to other states would help reduce the problems arising from failed matches, since voters could still re-register even if they have been removed from the rolls. While opponents complain that EDR increases the risk of fraud, a report by Lori Minnite found scant evidence of voter fraud in the states that have EDR. Past sessions of Congress have failed to enact legislation that would require EDR in all federal elections. Now is the time for the incoming Congress to reconsider such legislation.

Other possible registration reforms also warrant consideration. One possibility is to move toward a Canadian-style universal voter registration system. This system resulted in 93.1% of eligible citizens in Canada being registered. By contrast, just 67.6% of eligible citizens in the U.S. were registered as of 2006. Having government officials take affirmative responsibility for registration could reduce some of the problems that inevitably occur when private groups like ACORN are left to shoulder the burden of registering people not reached through other means.

Another option worth considering is moving responsibility for registration to the federal government. This might be combined with universal voter registration, as Rick Hasen suggests. A major problem with this reform is developing a federal institution that is competent to execute this responsibility. Given the problems that the U.S. Election Assistance Commission (EAC) has experienced, institutional reform is a necessary prerequisite to federalization of the registration rolls.

Reasonable minds can certainly disagree on what registration reforms are most worthy of adoption. What cannot reasonably be disputed is that this component of our democratic infrastructure is in need of further repairs. The fact that the 2008 presidential election didn't go into overtime shouldn't blind us to that reality.

What We Don't Know

noreply@blogger.com (Dan Tokaji) — Wed, 05 Nov 2008 05:50:00 +0000

We now know that Barack Obama will be the 44th President of the United States of America. In the enormity of this moment in American history, the gritty details of election administration, upon which my Moritz colleagues and I spend so much of our time, seem positively trivial. But when the morning comes and vote tallies are in from across the country, there will be evaluate how well the infrastructure of our democracy held up to the unprecedented demands placed upon it this election season.

There are, at this moment, reasons to believe that we have made progress in the last eight years. At the same time, there is clearly much work to be done. Foremost among the challenges that remain is improving our system of voter registration. We still do not know how many voters went to the polls today to find their names not on voter registration lists. Nor do we know how many provisional ballots were cast as the result of such problems. And we do not know how many of those provisional and absentee ballots will ultimately not be counted, due to faulty registration rolls or other errors.

As insignificant as such questions may seem at this moment, they are important. That is not only because the outcome of many congressional, state, and local races may hinge on them. It is also because the faith that people in this country and around the world have in our democracy depends upon our allowing all eligible citizens to vote and accurately counting their votes.

When the dust clears, there will be both the time and opportunity to study such questions. It is important that we do so, drawing on our own experience in the United States, as well as that of other democracies, from which we probably have more to learn than some of us have heretofore realized. But for now, I'm just thankful that this presidential election -- unlike the last two -- was actually decided on election night. So I'm going to get some sleep.

Thanks for listening.

Hearing in the Ohio Litigation

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 23:30:00 +0000

Following up this post from earlier today on the Election Day maneuvering that could become post-election litigation in Ohio, there's a hearing taking place this evening Judge Marbley in the NEOCH v. Brunner case Pending before him is a motion to consolidate Ohio Republican Party v. Brunner (pending before Judge Smith and amended today) with NEOCH. I'm informed that Judge Marbley has decided to grant the Ohio Democratic Party's motion to intervene and is considering whether to consolidate the two cases, both of which partly concern the state's handling of provisional ballots. I'd expect that, at the very least, Judge Marbley will take control of the ORP's challenge to Directive 2008-101, which was issued to resolve some of the issues in NEOCH. What's less clear is whether the other issues raised in the ORP's amended complaint today can neatly be severed from the ones that are already before Judge Marbley. More to come, no doubt, both here and on our front page.

Update: Judge Marbley has granted the motion to consolidate the two cases, with a written opinion expected to follow. This won't make a difference in the presidential race, but the questions raised regarding provisional voting and other questions could conceivably affect down-ballot contests.

A Matter of Perspective

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 22:15:00 +0000

In my last post, I expressed the view that today's election appears to have been a relatively smooth one. Perhaps it depends on where you're standing. Ben Smith reports here on the campaigns' dueling perspectives on today's election. He notes that the Obama camp's message is that "Everything is going fine," while the McCain camp's message is "It's a mess." The McCain-Palin's perspective is epitomized in this press release describing incidents in some of key swing states, including the alleged intimidation of voters by Black Panthers at a Philadelphia precinct.

What's especially interesting about these perspectives on this election is that it seems like the mirror image of 2004. Four years ago, it was Democrats and progressives who were yelling, screaming, and suing to stop alleged voting irregularities perpetrated by those like Ohio's then Secretary of State Blackwell. This year, Republicans and their allies are the ones complaining about unfairness in the administration of elections. For an example, check out this page caricaturing Ohio's current Secretary of State, Jennifer Brunner.

All this can change in a heartbeat, of course, in the event of a close race. But at the moment, the contrast -- as well as the similarity -- between this year's election and the one four years ago is striking.

The Calm Before the Storm?

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 21:49:00 +0000

It's a beautiful autumn day here in Columbus, Ohio. As I took a walk around the Statehouse during a blogging break this afternoon, the weather seemed to match the climate of today's election.

To be sure, this Election Day has seen its share of problems like lines at some polling places, voting machines not working properly, voters being denied provisional ballots if they don't have ID, and other scattered problems. And there has been some significant litigation activity in key swing states, including Indiana (registration), Ohio (provisional ballots), and Virginia (military ballots). But based on perusing news reports and talking to people here and across the country throughout the day, my general impression is that it's been a relatively smooth election.

All this should be qualified by noting that it's always perilous to judge an election successful while it's still going on. There's still lots that could go wrong. As I mentioned yesterday, some of the most serious problems that can happen during an election -- such as voters not showing up on registration lists -- tend to be less visible while voting is still going on, and won't come into play unless and until there's an unusually tight race on which the outcome hinges. That can certainly happen in a presidential race, as we saw in Florida eight years ago. It can also happen in down-ballot races like Washington's contested gubernatorial election four years ago.

If there's a similarly close election this year, then problems that are hidden from view at the moment will rapidly come into view. The most likely form that this will take this year is a fight over provisional ballots, absentee ballots, military ballots, and residual votes, as my colleague Ned Foley suggests in this post. In the event of a close race, presidential or otherwise, these are the potentially uncounted votes that will be vital to pay attention to.

Election officials, of course, hope that it won't come to this. Hence the famous night-before-election prayer, "Please don't let it be close." Many voters are undoubtedly saying the same prayer right about now. We'll see whether it turns out that way.

Disability Access Issues

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 20:02:00 +0000

One of the underexamined issues of election administration is the nexus between voting rights and disability rights. The Americans with Disabilities Act requires that polling places be accessible to people with disabilities, while the Help America Vote Act mandates that accessible voting technology be provided at every polling place. But these legal requirements aren't always fully honored.

There have been a handful of stories today on the experience of voters with disabilities, which number some 20 million according to a recent report by Lisa Schur and Douglas Kruse of Rutgers. The NY Times blog reports here on confusion regarding the ballot-marking machines being used in N.Y. City to meet HAVA's requirement of one accessible voting machine per polling place. The Arizona Center for Disability Law has reportedly filed a lawsuit regarding one county's decision not to count ballots cast on accessible voting equipment until Tuesday morning. See also this report and this one on reported accessibility problems in Indiana.

For a summary of the requirements of federal voting laws when it comes to people with disabilities, take a look at this this presentation which I put together a while back. DOJ's website has more information here.

Something Missing?

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 19:52:00 +0000

See this report on ballots in Shaker Heights, Ohio on which the presidential race was omitted. The report goes on to note relatively few problems in Ohio, an observation consistent with my impressions so far ... though we've got a way to go yet.

New Voter Registration Case in Indiana

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 19:22:00 +0000

As I've said many times this election season, voter registration is the issue of 2008. The latest evidence of this is a complaint and TRO motion brought by Project Vote on behalf ofvoters whose registrations were allegedly rejected because they were on an "old" form (Brown v. Rokita). A first-time voter whose registration was rejected on this ground, Drametra Brown, has sued Indiana's Secretary of State Todd Rokita and other election officials, seeking classwide relief. Brown alleges that the state law requiring the rejection these forms violates the National Voter Registration Act and Voting Rights Act, because the alleged defect in her registration isn't "material" to her eligibility. She further alleges that at least 130 registrations have been rejected on this ground in Marion County alone. This is another case that could become important, if the race in that state winds up being close.

V.W.I.

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 19:18:00 +0000

See this report from the Louisville Courier-Journal, which includes the following anecdote:

The funniest report of the morning from a poll, he said, was a call received from Henderson County about an intoxicated voter."They wanted to know if he was allowed to vote," Fugate said. "State law does not prohibit it.... He is allowed to vote even though he may be intoxicated."

Jockeying for Position in Ohio

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 17:22:00 +0000

The Ohio Republican Party today filed an amended complaint in its case against Secretary of State Brunner (Ohio Republican Party v. Brunner). This is the same case that the ORP earlier used as a vehicle for its arguments regarding the window for early registration and absentee voting, observers at in-person absentee voting sites, and mismatched voter information. The ORP previously got court orders against Brunner's actions regarding observers and mismatches, only to have those orders reversed on appeal. [Disclosure: I joined amicus briefs on behalf of voting and civil rights groups supporting the Secretary of State's position and opposing that taken by the ORP on the window and matching issues.]

The new amended complaint in ORP is similar to its prior complaint, but appears to include new allegations regarding the discretion vested in county boards of election when it comes to counting votes. The apparent claim is that this discretion leads to the unequal treatment of voters from county to county. Presumably, this claim would rely in part on the Bush v. Gore decision, arguing that such inter-county disparities violate equal protection.

I suspect that the real purpose of this lawsuit is to serve as a placeholder, in the event that Ohio turns out to be close enough to litigate. The district judge assigned to the case, Judge Smith, is a Reagan appointee who has been quite sympathetic to the ORP's position in its prior motions. Thus, the ORP might well want to have post-election disputes steered toward his courtroom.

Now things get really interesting: I've just learned that the Secretary of State has countered by moving to have the ORP's case consolidated with an earlier pending case, Northeast Ohio Coalition for the Homeless v. Brunner (NEOCH). You can find the Secretry of State's motion here. The NEOCH case concerns Ohio's provisional voting and identification laws, and is pending before Judge Marbley, a Clinton appointee.

The Secretary of State's motion to consolidate notes that one of the directives that the ORP now seeks to challenge through its case is Directive 2008-101. That directive was issued on October 24, to resolve some of the issues in the NEOCH case pertaining to the counting of provisional ballots -- see this order in NEOCH, adopting and annexing the directive. To the extent that the ORP seeks to challenge Directive 2008-101, as paragraph 35 of its complaint indicates, this is quite clearly part of the NEOCH case.

Early Voting Reform

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 13:59:00 +0000

Polling places have only been opened for a few hours in some states and haven't yet opened in others, but one area in which reform is needed is already quite clear: the process for in-person early voting. In states across the country that allow early voting, we've seen long lines, with voters sometimes waiting for several hours to vote. Among the states reported to have had such problems are California, Florida, and Ohio.

One of the big advantages of early voting is that it can take pressure off the polls on election day. And in-person early voting avoids the risk of fraud associated with mail voting, low though it may be. Instances of voter fraud are rare generally, but most documented instacnes are accomplished through mail-in absentee ballots than in-person voting. This makes intuitive sense, given that the risks of getting caught -- and of being criminally prosecuted -- are presumably higher if one actually shows up in person.

To the extent that states offer in-person early voting, as an increasing number have done over the years, policymakers should consider ways to reduce the lines we've seen in the past few days, in both swing and non-swing states. One of the barriers to such reform in Ohio is a state law prohibiting in-person early voting at more than one location in each county. This may not present a serious problem in smaller counties, where one early voting location may be enough. But it is a problem in larger counties like Cuyahoga (Cleveland area) and Franklin (Columbus), where hours-long lines have been reported. Eliminating such barriers to in-person voting is one of the big things that state legislators, and perhaps even Congress, should consider as we think about future election reforms.

Looking for Lines ...

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 04:56:00 +0000

Where can we expect long lines on Election Day? Given the large number of newly registered voters and the intense interest in this year's election, you may not have to look far.

If I had to guess, I'd put Virginia and Pennsylvania at the top of my list of states where polling places may be overwhelmed. That's not only because both are key swing states in the presidential race, but also because they're both states in which an excuse is required to vote early or absentee. (See this chart from the Early Voting Information Center for a summary of all states' absentee and early voting laws.) In other swing states like Colorado, Florida, and Ohio, voters have made extensive use of early and absentee voting, which may take some of the pressure off the polls on Election Day.

One would expect to see lines in both Virginia and Pennsylvania, given that they don't have no-excuse early and absentee voting. That's why the Virginia NAACP is signaling that it may go back to court if lines are long, after having been denied an injunction today. And it's why the Governor of Pennsylvania and Mayor of Philadelphia are urging people to vote between 9 am and 3 pm when turnout is expected to be lighter.

One of the things we'll be monitoring at Election Central tomorrow is whether the anticipated lines in fact materialize in these or other states. If so, we'll be on the lookout for potential or actual litigation that may follow. If you encounter lines or other problems, you can report them to the nonpartisan election protection coalition at 866-OUR-VOTE or to CNN's Voter Hotline, which is logging different categories of complaints. The information there isn't exactly scientific, but may give us a sense of where the hotspots are.

A New Absentee Voting Directive in Ohio

noreply@blogger.com (Dan Tokaji) — Tue, 04 Nov 2008 03:13:00 +0000

On the eve of the election, Ohio Secretary of State Jennifer Brunner has issued a new directive, requiring counties to give would-be absentee voters notice if there's a problem that would prevent their absentee ballot from being counted. Directive 2008-109 may be found here. Last-minute directives can sometimes cause more problems than they solve but, in this case, some guidance was necessary ... though it may not be sufficient.

The directive appears designed to deal with what might be called the "Colker Problem," after my friend and colleague Ruth Colker who describes here the difficulty she experienced in getting her absentee ballot counted. Briefly, Franklin County initially didn't count her absentee ballot, because registration records listed her as having a date of birth than the one on her absentee voter envelope -- specifically, listing her year of birth as 1958 instead of 1956. Had she not checked the county's website before the election, only to find that her ballot hadn't been counted, it might have been rejected without her even knowing. Eventually, Professor Colker was able to persuade Franklin County that their records were wrong and get her vote counted.

Directive 2008-109's stated purpose is "to provide a uniform process by which absentee voters may be given notice that additional information is required to effectuate their vote on an absentee voter's ballot." It directs counties to notify voters of any deficiencies, and give them an opportunity to correct errors. Notice must be given no later than six days after Election Day (November 10). Absentee voters will then have until the tenth day after the election (November 14) to correct any errors or omissions.

This directive helps with one of the problems revealed by Professor Colker's story -- namely, the due process problem that would arise from rejecting an absentee voter's ballot without giving them notice and the opportunity to explain or correct the asserted error. But there are at least two other problems that still exist.

The first is that it leaves open the possibility that absentee ballots could be rejected as "insufficient," and therefore rejected under Ohio law (ORC 3509.07), for overly technical reasons. Professor Colker's ballot was rejected because the birthdate submitted with her absentee ballot didn't match the one in registration records. This may be a plausible reading of the statute, but it's hardly clear that this is required. It's also not clear from this provision how other discrepancies should be treated, such as:

- A discrepancy between the spelling of the voter's name in registration records and the information on the absentee ballot application or envelope (e.g., a voter's last name is listed as "Worzelbacher" in registration records but the absentee voter application or envelope reads "Wuerzelbacher")

- A discrepancy between the address in registration records and the address on the absentee voter application or envelope (e.g., 320 W. Broad St. instead of 302 W. Broad Street).

- A discrepancy between the driver's license number or social security number in registration records and that on the absentee voter application or envelope (e.g., 3543 instead of 3534)

To reject absentee ballots based on such trivial discrepancies would arguably violate Ohio law. In its recent decision requiring the Secretary of State to honor absentee ballot applications with a box that voters neglected to check, the Ohio Supreme Court cautioned against "unduly technical intepretations that imede the public policy favoring free, competitive elections." State ex rel. Myles v. Brunner (Oct. 2, 2008). [Disclosure: I joined a brief supporting relators' position and opposing that taken by the Secretary of State.] Interpreting Ohio law to demand an "exact match" -- with respect to address, date of birth social security number, driver's license number, or address -- might be viewed as just such an overly technical interpretation. Nothing in the directive requires that absentee ballots be rejected for such reasons, but it's not prohibited either.

The other problem is that the ambiguity of the statute -- and the failure, as far as I can tell, of the Secretary of State to issue definitive guidance on what makes an absentee ballot "insufficient" -- gives rise to a potential equal protection problem. Different counties might apply different rules in determining which absentee ballots should count. Some might count those ballots, for example, despite the existence of a trivial difference in the name of the voter as listed in registration records versus that on the absentee voting envelope, while others might not. Some might check the voter's date of birth, as listed on the envelope, against registration records while others might not. You get the idea.

At this point, I can't say for sure what counties' practices are, which is why I describe this is merely a "potential" equal protection problem. It's also hard to say whether this is an Ohio-specific problem or one that extends to other states -- but if I had to bet, I'd say that other states' rules for verifying and counting absentee ballots probably have similar vagueness and ambiguity. In in a close, contested election, this type of dispute over absentee ballots could well wind up in litigation.

Election 2008: Live Blogging and Issues to Watch

noreply@blogger.com (Dan Tokaji) — Mon, 03 Nov 2008 15:17:00 +0000

I've become a semi-retired blogger in recent months, partly because I'm on leave from Moritz this semester and visiting at Harvard Law School and partly because of my involvement in some of the this year's election litigation.* But I'll be in Columbus tomorrow, where Election Law @ Moritz will again be running an Election Central media center. This year, we'll be at COSI (the children's science museum), located right across the river from the Ohio Statehouse and right across the street from the Franklin County early & provisional voting center at Veteran's Memorial, from 6 am until the wee hours of Wednesday morning.

I'll be live-blogging on election administration news throughout the day right here, tomorrow from Election Central at COSI. Moritz faculty, staff, and students will also be tracking problems and litigation throughout the day on the front page of our site. Check out or news wire and information and analysis sections on that page for up-to-the-minute developments.

Here's my list (in no particular order) of four big questions I'll have my eye on tomorrow:

1. Will there be long lines at the polls? This is the question that everyone is wondering about, with massive turnout expected, particularly among African American and student voters. We'll see whether that turnout materializes. But we've already seen enormous early voting, both in person and by mail, which Michael McDonald of George Mason has been tracking here. Perhaps the heavy early voting in no-excuse absentee voting states like Colorado, Florida, and Ohio will take pressure off the polls on election day. On the other hand, the increase in early voting may presage an avalanche in Election Day turnout that will overwhelm polling places, especially in states like Pennsylvania that don't have no-excuse absentee voting. In the event that there are long lines at polling places -- especially in urban areas or near colleges -- look for lawsuits to extend polling place hours, such as the Ohio Democratic Party v. Blackwell case in 2004.

2. Will there be equipment problems? The short answer to this question is "Yes." In any big election, there are likely to be some places where electronic voting machines break down or polling places run out of paper ballots. One of the places to watch out for in tomorrow's election is Cuyahoga County, Ohio's largest which includes the City of Cleveland. That county will be using it's fourth voting system since 2004, having moved from punch cards, to touchscreen, to central-count optical scan, and now to precinct-count optical scan. The system they have now provides voters with notice and the opportunity to correct inadvertent overvotes, but there are risks with implementing a new system in a high-turnout election like this one. For jurisdictions that use touchscreen machines, we've again seen allegations of vote-flipping, in which the voter tries to vote for one candidate but the machine captures the vote as for another. This is another subject on litigation would not be surprising, particularly if it's looking close in a pivotal state.

3. Will registration errors lead to disfranchisement or fraud? Voter registration has been the big issue of the 2008 election, just as voting machines were the issue of 2000 and provisional ballots the issue of 2004. Those on the right are concerned that private groups like ACORN have registered lots of nonexistant voters who could conceivably vote on or before Election Day. Those on the left are concerned that overly stringent matching and purging practices in states like Florida could result in eligible voters being taken off the rolls. Voter registration is a critical issue to watch tomorrow -- probably more important than anything else, in terms of the total number of votes affected -- but it's something that too often slips through the cracks of media coverage. The reason, I suspect, is that registration problems aren't as visible as long lines or machine problems. Voters who believe that they're registered but find that their names aren't on the registration list have a right to receive a provisional ballot. If the voter is later determined eligible and registered to vote, then that ballot should be counted. But states vary dramatically, and there are sometimes differences even within states, in how provisional ballots are handled. This leads to the final question.

4. Will provisional or absentee ballots make a difference? In a close election, look out for disputes over provisional and absentee ballots. In fact, these are probably the biggest ways in which a candidate on the short end of a close election can hope to harvest more votes, thereby making up the difference and perhaps ultimately emerging victorious. That scenario isn't likely in this (or any other) year's presidential election, but there's a good chance that some down-ballot races will be close enough to be within the so-called "margin of litigation." In 2004, a protective lawsuit was filed on Election Day (Schering v. Blackwell), alleging inequalities in the way that provisional ballots were being handled from county to county in Ohio. That case was dropped after it became clear that provisional ballots weren't going to make a difference, but we can expect comparable litigation over provisional ballots in the event of a close race. We should also look out for disputes over the counting of the increased number of absentee ballots in a close election. My colleague Ruth Colker describes here the difficulties she had in getting her absentee ballot counted, after authorities initially refused to do so because the date of birth she provided when voting didn't match the erroneous one in registration records. If there's a widespread practice of requiring exact matching to count absentee ballots, then a lot of eligible voters could wind up having their ballots tossed.

This isn't intended to be a comprehensive list. If there's one thing that past elections have taught us, it's that we should expect the unexpected. Whether or not the presidential race turns out to be close, Election Day 2008 is certain to be an exciting one for those of us who care about election administration.

* Disclosure: I've served as an amicus or counsel for parties or amici in several of the cases that have been filed during this election season, including cases having to do with the early registration and voting windown, the handling of absentee ballot applications, and the matching of voter registration records. The full disclosures may be found here for active cases and here for archived ones.

What Happens When Voters Don't "Match"?

noreply@blogger.com (Dan Tokaji) — Sun, 20 Jul 2008 15:32:00 +0000

One of the big under-the-radar issues this election season has to do with the state registration databases required by the Help American Vote Act of 2002. Before HAVA, registration lists were often compiled and administered at the local level. HAVA now requires a statewide registration database. Section 203 of HAVA (42 USC 15483) also requires that states "match" information in the database against motor vehicle and social security records, to verify accuracy.

The problem is that there are all sorts of reasons why voters' names might not match, despite the fact that they've provided accurate information on their registration form. That can include data entry errors, transposition of first and last names, and the use of middle names and nicknames. It's not very clear from HAVA how the matching should be done, or what should happen if the information in the registration database doesn't match motor vehicle and social security records. As the Brennan Center has documented, a too-stringent matching procedure could result in the exclusion of eligible voters. According to the Brennan Center, which has litigated this issue in the states of Washington and Florida, matching in some states has failed 20-30% of the time.

This issue flared up in Wisconsin this past week, as summarized in this report from the Milwaukee Journal-Sentinel. Before HAVA, most Wisconsin municipalities didn't even have voter registration. Wisconsin is one of several states that has had difficulty getting its statewide registration database up and running properly, as described in the report From Registration to Recounts that my Moritz colleagues and I published last year.

Last week, Wisconsin's Government Accountability Board (which oversees election administration) considered a rule that would have required voters to cast a provisional ballot, absent a "complete match" of their name, date of birth, and driver's license or other identifying number, unless they provided proof of residence before or on election day. Those provisional ballots would be counted only for voters who provided documentation of their name and addresses by 4 pm the next day. The Brennan Center and I wrote this letter opposing the proposed rule on the ground that it would likely increase the number of provisional ballots and result in some eligible voters not having their votes counted.

On Wednesday, Wisconsin's board backed off the proposed rule change, given the uncertainty of how many false non-matches there would be. Instead of requiring voters to cast provisional ballots if there's no match, the board decided to see how many voters are affected by non-matches in the system. In my view, this was a wise decision.

What's unclear is many other states are going to implement the sort of matching procedure that Wisconsin considered but decided against. States that do so are likely to have a lot of provisional ballots, some of which won't be counted. That will certainly increase the margin of litigation, and could make the difference in close races.

Injunction for Libertarian Party of Ohio and Barr

noreply@blogger.com (Dan Tokaji) — Fri, 18 Jul 2008 14:19:00 +0000

U.S. District Judge Edmund Sargus, Jr. has issued this order, requiring that the Ohio Secretary of State place on the general election ballot the names of various Libertarian Party candidates, including Bob Barr. The order is based upon the Sixth Circuit's 2006 decision in Libertarian Party of Ohio v. Blackwell, which declared Ohio's ballot access statutes unconstitutional -- and the Ohio legislature's subsequent failure to enact constitutional ballot access requirements.

The case raises an intriguing question regarding the authority of the state executive branch to make ballot access rules, given Article II, Section 1's requirement (discussed in the Bush v. Gore concurrence but not decided by the majority opinion) that "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors." Ohio's Secretary of State Jennifer Brunner issued a directive to fill in the gap left by the legislature. Relying on the Bush concurrence and McPherson v. Blacker(1892), which said that Article II "leaves it to the legislature exclusively" (emphasis added) to define the method of appointing electors, Judge Sargus concludes that the Constitution "provide[s] for no role on the part of the executive branch of state government as to the election of President ...." He comes to the same conclusion with regard the Article I, Section 4's requirement that the time, place and manner of holding congressional elections "be prescribed in each State by the Legislature thereof."

Judge Sargus acknowledges that there is a dearth of precedent on these questions. Could this be the case in which the Supreme Court issues some definitive guidance on the relative authority of the state legislative and executive branches to make rules for presidential and congressional elections? (I briefly discussed this issue at the end of my 2005 article Early Returns on Election Reform.) In my view, it would be far better for the Court to do so in a pre-election case like this one, than to wait for the issue to reemerge in a post-election case like Bush v. Gore.

Did Obama Break His Promise?

noreply@blogger.com (Dan Tokaji) — Fri, 20 Jun 2008 16:34:00 +0000

There's been a great deal of criticism of Senator Barack Obama's announcement yesterday that he would opt out of the public financing system for the general election, some of it summarized here on Rick Hasen's blog. Some argue that Obama went back on his word by electing not to accept public financing, and the restrictions on private contributions, that come with it. Less attention has been devoted to what Obama actually said in response to a questionnaire in which this commitment is said to have been made.

First a disclosure and a disclaimer: I helped draft some of the questions in the Midwest Democracy Network's questionnaire that provoked this controversy, though not the ones having to do with public financing. Election Law @ Moritz received funding from the Joyce Foundation, which also supports the Midwest Democracy Network, for our From Registration to Recounts report last year. That said, the views expressed here are solely my own, not those of the Midwest Democracy Network or any of its constituent organizations, and I don't claim any special authority to interpret Obama's response by virtue of my work on other parts of the questionnaire.

The Midwest Democracy Network questionnaire was sent to all the presidential candidates from both major parties in the fall of 2007, but only Obama and John Edwards chose to respond. After the possibility of Senator Obama refusing to accept public financing first became an issue in February 2008, the Midwest Democracy Network again contacted the other candidates -- including Senator John McCain -- and urged them to respond. None did.

The question on presidential public financing asked: "If you are nominated for President in 2008 and your major opponents agree to forgo private funding in the general election campaign, will you participate in the presidential public financing system?" Here's Obama's full response:

Yes. I have been a long-time advocate for public financing of campaigns combined with free television and radio time as a way to reduce the influence of moneyed special interests. I introduced public financing legislation in the Illinois State Senate, and am the only 2008 candidate to have sponsored Senator Russ Feingold's (D-WI) bill to reform the presidential public financing system. In February 2007, I proposed a novel way to preserve the strength of the public financing system in the 2008 election. My plan requires both major party candidates to agree on a fundraising truce, return excess money from donors, and stay within the public financing system for the general election. My proposal followed announcements by some presidential candidates that they would forgo public financing so they could raise unlimited funds in the general election. The Federal Election Commission ruled the proposal legal, and Senator John McCain (R-AZ) has already pledged to accept this fundraising pledge. If I am the Democratic nominee, I will aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election. (Emphasis added.)

Obama did answer the question with a "Yes," but proceeded to provide what can be understood as a qualification. The "novel" proposal of February 2007 to which Obama refers is presumably the one set forth in this letter from Obama's lawyers to the Federal Election Commission. That letter asked the FEC for an opinion on whether Obama could raise funds for the general election, while leaving the door open to accepting public financing in the general election: "Senator [Obama] would not, if the law allows, rule out the possibility of a publicly funded campaign if both major parties' nominees decide, or even agree on this course. Should both major party nominees elect to receive public funding, this would preserve the public financing system, now in danger of collapse, and facilitate the conduct of campaigns freed from any dependence on private fundraising."

The FEC concluded that Obama could solicit and receive funds for the general election without losing eligibility for public funding, so long as he complied with certain conditions. But of course, the February 2007 letter from Obama's lawyer didn't commit him to accepting public financing. It was, if anything, his response to the Midwest Democracy Network's questionnaire that did so.

Whether Obama broke his promise depends on what was meant by the italicized statement in the above block quote, specifically by the statement that he would "aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election." Did he simply mean that he would accept public financing and the limits that come with it if the Republican nominee did so (as McCain has now done)? Or was some further agreement contemplated? Obama's questionnaire response is susceptible to either interpretation.

Later on, in this USA Today op-ed, Obama adopted the latter approach, saying that he wanted a "meaningful agreement" in which the candidates would "commit to discouraging cheating by their supporters; to refusing fundraising help to outside groups; and to limiting their own parties to legal forms of involvement." The key point here is the refusal of help from "outside groups," which presumably includes 527 organizations like Swiftboat Veterans and POWs for Truth and the Moveon.org Voter Fund. Candidates can't prevent campaign-related speech by such groups, but they can discourage it and encourage their supporters not to fund such speech.

Obama's questionnaire response can plausibly be read to make his agreement to public financing contingent upon the candidates reaching some sort of agreement along these lines. The McCain campaign might argue that, if this is really what Obama meant, he should have been clearer in his response to the Midwest Democracy Network questionnaire. But given that McCain failed to respond at all to that questionnaire -- even after being given a second opportunity to do so in February 2008, after this story originally made news -- he's in a poor position to complain. We should, after all, encourage candidates to respond to questionnaires like this one. It seems only fair to give those who do respond the benefit of the doubt, particularly when his or her opponent failed to do so.

If Obama's response is understood in this more generous light, the next question is whether he did in fact "aggressively pursue an agreement" with McCain. On this question, there's a factual dispute. Obama's lawyer Bob Bauer maintains that he discussed this issue for approximately 45 minutes with McCain's lawyer Trevor Potter, on June 6. According to Bauer, "it became clear to me, and I reported to the campaign, that there really wasn't a basis for further discussion," given the McCain campaign's unwillingness to rein in 527 spending. Potter has a different recollection, denying that their was any negotiation. What is clear is that, a few days after their meeting, McCain said that he "can't be a referee" for 527 attacks on his opponent, thus giving Obama an opening to opt out.

So did Obama fail to keep his word? It depends on what one thinks his words on the questionnaire meant, as well as on what words were exchanged between the candidates' lawyers. One might criticize Obama for failing to "aggressively" pursue an agreement with McCain. One might also point to Obama's statement during one of the debates with Senator Clinton, that he would "sit down with John McCain and make sure that we have a system that works for everybody." It's apparently undisputed that Obama and McCain didn't personally sit down to discuss the issue, though their lawyers did. But if one believes Bauer's account, it seems clear that such efforts would have been futile, particularly in light of McCain's later statement on 527 spending.

Finally, one might complain that this is all a very lawyerly, a point I cheerfully concede, and to which I would reply: A lawyerly question deserves a lawyerly answer.

Are We Condemned to Repeat It?

noreply@blogger.com (Dan Tokaji) — Tue, 03 Jun 2008 13:27:00 +0000

It's election year in Ohio, likely to be pivotal in the presidential contest. Everyone expects a close race. Yet there's great concern about whether the state's election infrastructure can hold up to the pressure that will be upon it. Of special concern is the voting equipment to be used, particularly in the state's largest and most diverse county. Another worry is provisional ballots, upon which the state increasingly relies for registration problems, voters who lack proper ID, and those who've moved. If the election is close enough, the two major parties could wind up fighting over which provisional ballots should count. The spectre of litigation thus hangs heavy over the state. To top it all off, there have been repeated accusations of partisanship by Ohio's chief election official, the Secretary of State, from the opposing party.

Any of this sound familiar?

When the nation's attention focuses more intently on battleground states later this year, many will no doubt scratch their heads and wonder what the State of Ohio has been up to since 2004. In reality, there have been plenty of changes, some of them for the better. But many of the same issues remain. This comment discusses three big ones: voting equipment, provisional ballots, and allegations of partisanship. It remembers the past while looking ahead to the future, in light of some brand new information from the March primary.

Voting Equipment

This is one area in which there have been significant improvements since 2004, when most voters throughout the state still used "hanging chad" punch card voting systems. The result was that tens of thousands of ballots didn't register a vote for President. Elsewhere in the country, voters used newer voting equipment that provided voters with notice and an opportunity to correct errors. Such "notice" voting equipment combined, with better procedures, saved about one million votes that would otherwise have been lost in 2004.

By 2006, Ohio counties had finally switched to notice voting technology, of either the electronic touchscreen or precinct-count optical scan variety. Both types of systems allow voters to check for overvotes, and thus reduce the number of uncounted votes. The bad news is that Cuyahoga County, the state's biggest county which includes Cleveland, had well-documented problems implementing the Diebold touchscreen system it decided to buy. Among the problems was that somewhere around 20% of the paper records generated by the system were damaged or unreadable, something that's especially problematic given that Ohio law makes paper the official ballot of record.

As a result, Cuyahoga County switched again, using a non-notice optical scan ballot system in the March 2008 primary. The ACLU sued, arguing that votes would predictably be lost due to the switch, but a federal district judge declined to order the county to use a notice system so close to election day. (Disclosure: I consulted with the ACLU on that case.)

The result was that Cuyahoga County used a non-notice system in the March primary. So how did things go? At first glance, it didn't look so bad. The county initially reported 818 overvotes at the time of its unofficial count. (This page now seems to have been removed from the Secretary of State's website.) That's more than any other county but one, but still relatively low when you consider the total turnout of 436,609 in that county.

Some brand new information explains the suspiciously low number of overvotes initially reported. The earlier figure didn't include ballots that would have been overvotes, but had been "remade" so as to avoid being rejected by tabulating equipment. The practice of remaking, as the name suggests, involves marking a new ballot that replicates what election officials believe to be the voter's intended choices, when a ballot is mismarked. Until today, there wasn't publicly available information on how many ballots had been "remade" but I've just received information from the Cuyahoga Board of Elections that that there were really over 4000 overvotes:

During the Unofficial Count, the M650 Optical Scan units were programmed to accept and count overvotes, alllowing all ballots to scan through the machines without stopping. A total of 4,117 overvotes were recorded within the 406,450 votes counted in the Unofficial Canvass, equaling 1.01% of the total votes cast.
... All ballots containing overvotes were examined by a BOE Management Team to determine whether the voter clearly intended to vote for a single candidate. Of the 4,117 overvotes, it was determined that 1,240 contained a clear indication of the voter's intent. Those ballots were remade ..., reducing the overvote total to 2,877

The translation is that there were a lot more overvotes than the county originally reported (though "406,450 votes" should, I think, be "406,450 ballots," making the percentage smaller than reported). The number of overvotes was reduced from 4,117 by remaking ballots, in accordance with what the board's management team deemed the "clear indication of the voter's intent."

Does anyone remember Palm Beach County?

There are of course good reasons why election officials might want to remake ballots, but it introduces an element of subjectivity into the process. In the event of a close election, one could easily imagine litigation over whether and how to remake those ballots, analogous to those which took place in Florida over whether and how to count punch card ballots in 2000.

At the time of the ACLU lawsuit earlier this year, Cuyahoga County had expressed its intent to use a notice system -- probably precinct-count optical scan ballots -- in the November 2008 election, but has since decided that it would prefer to stay with it's non-notice, central-count system. But an Ohio statute passed earlier this year (SB 286) forbids counties from using central count systems after the March 2008 primary. Sec. 3506.21(D)(1). There's also a reasonable argument that remaking ballots to avoid overvotes violates Sec. 3506.21(B)(3) of that law, which provides:

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 Cuyahoga or other counties continue the practice of remaking ballots before feeding them into the scanner, we could expect an argument that this practice violates Ohio law.

The bottom line is that Cuyahoga County will have to switch to a notice-based system, probably precinct-count optical scan, unless the Ohio legislature changes the law. At this point, it looks like there won't be any such change. In my view this is a good thing, since precinct-count optical scan systems provide voters with notice of overvotes and therefore reduce errors. It also avoids the legally problematic practice of remaking ballots, which also increases the risk of post-election litigation over the result. But it will mean that Cuyahoga County will have a lot of work to do, getting a new system up and running in less than six months.

Provisional Ballots

Provisional ballots are required by the Help America Vote Act of 2002 (HAVA), for voters who arrive at their polling place to find their names not on the rolls or who don't have required identification. In 2004, attention focused on the question of whether provisional ballots should be counted if cast in the wrong precinct. Ohio's then-Secretary of State, Republican Ken Blackwell, said no. This led to litigation by the Democratic Party and voting rights groups, in which Blackwell's position prevailed. A subsequent study by a Cleveland advocacy group found that, of 11,600 provisional ballots rejected for this reason in 2006, 32% were actually at the right polling place but the wrong precinct. (Many polling places in Ohio have multiple precincts voting at them.)

Just after the election, in the early morning hours of November 3, 2004, it looked like Ohio's provisional ballots might determine the outcome of the race between President Bush and Senator Kerry. Bush led by 136,484 votes in Ohio, with what turned out to be 155,000 provisional ballots left to be verified and counted. At the end of the day, when those provisional ballots were counted, President Bush's margin of victors shrunk by around 18,000 votes to 118,601.

Provisional ballots can make the difference between victory and defeat in a close race. Several states were closer than Ohio in 2004, including swing states of Iowa, New Mexico, and Wisconsin. In all these states, the margin of victory was less than the roughly 18,000 votes that Kerry "made up" through provisional ballots in 2004. Provisional ballots thus provide fertile ground for post-election disputes -- it's one of the main ways that someone on the losing end can make up ground. It follows that heavy reliance on provisional ballots increases the "margin of litigation," within which election results can be disputed and litigated after the fact.

Now here's the really troubling part: It looks like Ohio's reliance on provisional ballots is actually increasing, rather than decreasing. In our report last year on the election systems of five midwestern states, my colleagues Steve Huefner, Ned Foley, and I found that the percentage of Ohio voters casting provisional ballots increased between the 2004 and 2006 general elections, going from 2.77% to 3.09% of total ballots cast (see Chapter 3, p. 32).

In the 2008 primary, the percentage of provisional ballots was higher still. According to recent data from the Secretary of State's office, there were 123,432 provisional ballots, out of 3,603,523 overall. That means that 3.43% of Ohioans voted provisionally in this year's primary. Once those provisionals were counted, Senator Obama picked up two delegates from Ohio's March 4 primary, a possibility I'd noted here and here.

It's hard to say for sure why this is happening, since there are a number of reasons voters cast a provisional ballot. It could be that there are problems with the new statewide registration database required by HAVA, resulting in many voters' names not being on the rolls when they appear at the polls. It could be that voters and/or pollworkers are unfamiliar with Ohio's rather confusing identification requirements, enacted for the 2006 election. It could be that a lot of voters have moved from one precinct to another between elections and are casting provisional ballots at their new polling place, as state law allows. What we know is that more provisional ballots increases the risk of post-election litigation.

Allegations of Partisanship

In 2004, Democrats harshly criticized Secretary of State Blackwell, for what they perceived to be partisan decisions. Foremost among them was the decision not to count provisional ballots cast in the wrong precinct, and to require that voter registration applications be on heavy-stock "80 pound" paper to be accepted (the latter order was ultimately rescinded).

In 2006, Ohio elected a Democrat, Jennifer Brunner, to the Secretary of State's office. She too has proven controversial, most notably with the recommendations contained in her office's EVEREST report late last year, which included some drastic, ill-considered, and impractical recommendations -- including a return to central-count voting systems. She's also come under fire for her efforts to remove local voting officials who've criticized her, a point on which I've expressed concern. Republicans accuse her of a "Culture of Intimidation, Bullying."

The truth is that there's plenty of blame to go around, when it comes to the problems in Ohio's election system. Brunner has done some good things, like commissioning research on the security of all Ohio voting systems and clarifying state rules on voter ID. But she's also made some bad decisions, which have damaged her credibility with the legislature, the media, and the public. And like any other elected official, she's probably motivated to some extent by the interests of her party.

At the same time, Republicans are partly responsible for many of the problems with the state's election system, particularly their enactment of massive changes in the state's election laws in 2006, many of them confusing and otherwise problematic. In addition, they're no doubt motivated by the hope of capturing the Secretary of State's office in 2010, which brings with it not only control of the state's election system but -- probably even more significant, from the parties' perspective -- what could well be the pivotal vote on Ohio's reapportionment board, which will redraw state legislative districts after the next census. This partly explains the heated rhetoric flying between Brunner and the GOP.

From Katherine Harris to Kevin Shelley to Ken Blackwell to Jennifer Brunner, it's become abundantly clear that partisanship in the administration of elections is a recurring subject of controversy that won't go away by itself. It's important to look beyond personalities, and recognize that there's an institutional problem with having a state's chief election official chosen through partisan elections -- as a sizeable majority of states still do. It's not just that the umpire has a stake in the game; he or she is actually a player in that game -- however much election officials may talk about not "wear[ing] a jersey of one of the teams." This is a structural problem that demands structural reform. One good model is Wisconsin's Government Accountability Board, discussed here.

Of course, we won't see such institutional reform between now and November 4, 2008. Nor are we likely to see major changes in the voting equipment that's used. What we can do is focus on procedures that will ensure voting system integrity, consistent implementation of voter ID and provisional voting rules, and poll worker recruitment and training. And for those of you wondering what you can do, volunteering as a poll worker or in election protection efforts (like this one) is a great place to start.

So come see us in Ohio this fall. It's sure to be a lively election season. Again.

Elmendorf on Crawford on Harper

noreply@blogger.com (Dan Tokaji) — Tue, 06 May 2008 14:53:00 +0000

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.

An Election Day Registration Bill

noreply@blogger.com (Dan Tokaji) — Fri, 02 May 2008 13:46:00 +0000

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.

Crawford: It Could Have Been Worse

noreply@blogger.com (Dan Tokaji) — Tue, 29 Apr 2008 10:53:00 +0000

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.

The Problems with All-Mail Elections

noreply@blogger.com (Dan Tokaji) — Wed, 12 Mar 2008 15:40:00 +0000

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.

Blackwell Redux?

noreply@blogger.com (Dan Tokaji) — Tue, 11 Mar 2008 14:40:00 +0000

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.

Pay Attention to Provisionals

noreply@blogger.com (Dan Tokaji) — Sun, 09 Mar 2008 18:06:00 +0000

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.