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EL@M: States need to evaluate election systems prior to next election

August 2, 2011 | Faculty

When voters across America head to the polls on November 6, 2012 to cast their ballots in the next major federal election, will the system be ready to handle the influx of new voter registrations, new voting laws, increased absentee and early voting, and recounts and challenges that follow close races? Researchers at The Ohio State University Election Law @ Moritz program recently conducted an in-depth analysis of the election administration systems in five key battleground states and concluded more work needs to be done to insure election systems promote access, integrity, and finality.

“We choose to review these five states – Minnesota, Illinois, Ohio, Wisconsin and Michigan – because we believe they are representative of election administration across the country, and the lessons learned and challenges faced here can be an example for other states,” Steven Huefner, one of the authors of the study, said. “There have been a huge number of new election laws since Bush v. Gore in 2000, but most states still have substantial room for improvement. Anytime there is a close election, it puts additional stress on an already vulnerable system.”

The study is a follow-up to a similar study entitled From Registration to Recounts conducted by the researchers in 2007.

“Since 2007, we have seen a significant increase in convenience voting – absentee or early voting. In Illinois, for example, almost 20 percent of ballots were not cast at the polls on election day,” Huefner said. “On a positive note, much of the litigation surrounding voting technology and electronic voting equipment has been settled.”

As discussed in its earlier study, the researchers concluded that each state should review exactly who has final authority over the administration of elections. Several states, including Ohio and Michigan, give election administration authority to elected, partisan officials, most commonly the Secretary of State. According to the study, this can seriously jeopardize the perception of fairness in the case of controversial decisions or close races.

“An independent board is the gold standard for election administration at the state level,” Huefner said. “Wisconsin recently created an election board comprised of retired members of the Wisconsin judiciary, all of whom have a reputation for integrity and nonpartisanship. This is what we would like to see in other states.”

The election recount and challenges surrounding the 2008 Minnesota senate race between incumbent Norm Coleman and Al Franken was the most significant election issue faced by administrators since the initial study. The researchers used the facts of the Minnesota senate recount as a hypothetical to evaluate how other states would handle a similar close election.

“The Minnesota Secretary of State, the State Canvassing Board, local election officials, recount volunteers, the three-judge panel, the media, and the Minnesota Supreme Court worked together as a team to resolve the dispute in a professional way that was relatively insulated from partisan bias,” Huefner said. “That said, I think everyone would agree that the process took too long – Minnesota was without representation in the Senate for almost six months – and we make recommendations to prevent this extended timeline in the future.”

“Unfortunately, we cannot say that other states would handle such a close race and recount as well as Minnesota,” Huefner said. “A recount like Coleman v. Franken in Ohio would generate a many accusations of partisanship, whether founded or not. And, the public also would be more likely to view the outcome as unfair.” In addition, the researchers point out that in Ohio and Illinois, candidates for federal office are not allowed to contest an election or request a recount.

The researchers also reviewed elements of the Help America Vote Act of 2002, which requires states to verify information on incoming voter registration applications against information contained in government databases.

“While we have seen multiple lawsuits surrounding HAVA’s matching requirements in the past three years, none have been determined on the merits of the law and we still do not know exactly what is required by the states under HAVA,” Huefner said. “There is a lot of confusion and inconsistent application surrounding HAVA.”

The study makes several key recommendations for election systems across the country:

1) States should structure election laws to check the partisanship of the administrative entities and should develop impartial electoral institutions, including a political culture, that promote fair partisan competition. The researchers proclaimed Wisconsin’s new electoral board the “gold standard” in election administration, but also suggested a strong political culture such as that found in Minnesota is important.

2) Each state must guarantee all candidates reasonable access to recounts and election contest proceedings. In some states, candidates for federal office cannot even request a recount, leaving the finality of a close race in question.

3) Adopt a clear state law that tells courts exactly what to do when confronted with the commingled ballots dilemma. Previous courts have taken a haphazard approach to addressing commingled ballots. A set of predetermined rules would clarify procedures and improve the integrity and perceived fairness of an election.

4) Ensure state statutes create a clear division of labor between recount officials and the courts. There is often confusion on the part of election officials and the courts about whether and under what circumstances recount officials should reconsider decisions made on election night to discount certain ballots.

5) Administrators should try to anticipate very close contests, and take special care in close contests for statewide and other high-profile races. When margins are expected to be close, the significance of each part of the process is magnified. Tiny errors and inconsistencies, even when they do not affect the true result of an election, can consume months and months of time.

6) Each state should have a “finality plan” or set of laws designed to conclude elections disputes by a firm deadline, or otherwise install a provisional winner. Legislatures in each state need to require election contest courts to conclude election contests by a firm deadline.

7) Each state should clarify the consequences of a HAVA non-match and specify precisely how mismatch data can be used. It is unclear whether a mismatch between the information provided in a voter registration and that contained in an existing database disqualifies a voter, begins an investigation of the voter’s qualification, or requires some other action.

8) Each state should analyze its HAVA matching program in conjunction with its absentee balloting programs. Many states are struggling with how to handle absentee ballots that are received from voters who have a HAVA mismatch on their registration. States must develop instructions and policies to clarify to these voters what needs to be done in order for their vote to count.

9) States should reexamine increasingly antiquated rules and practices that presume traditional in-person voting is the only option for most voters. Despite the significant increase in convenience voting, many states have not updated their instructions, policies, and practices to account for this new voting trend. Ohio, for example, disregarded over 27,000 absentee ballots in 2008, certainly enough to make a difference in a close election.

“Post-election cases have shown time and again that laws and procedures that may seem clear at first become less clear when they are tested by recounts and litigation,” Huefner said. “Rather than waiting for electoral disaster to strike, states need to think ahead and “war game” their systems against a broad range of potential scenarios. States can now look at the 2000 Florida presidential contest, the 2004 Washington gubernatorial contest, and the 2008 Minnesota senate race as hypotheticals.”

The study was conducted with the financial support of The Joyce Foundation. The full analysis and recommendations are available in the book From Registration to Recounts Revisited: Developments in the Election Ecosystems of Five Midwestern States. To read the book, visit the Election Law @ Moritz website.