Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Latest Developments & Current Situation: An Assessment

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October 24, 2004

1. "Wrong Precinct" Problem Settled.
The Sixth Circuit ruling
that Ohio votes don't count unless cast in the correct precinct is important, not only because it settles the dispute for both Ohio and Michigan (states over which the Sixth Circuit has authority), but because it removes the conflict that existed over this issue with courts in Florida, Missouri, and Colorado. It is unlikely that further judicial conflict over this issue will develop either before or after November 2, although whichever side comes up short in the initial count on Election Night might try to press the point again in Iowa or Pennsylvania or elsewhere. Even if further fighting on this issue occurs, it is unlikely that any other appeals court would disagree with this Sixth Circuit ruling, therefore removing the need for the Supreme Court to address this particular issue.

2. Other HAVA questions remain unsettled.
Perhaps the most important element of the Sixth Circuit's decision is the one that has received the least attention so far: the 3-judge panel's unanimous determination that individual voters have the right to go to court to remedy violations of HAVA (the Help America Vote Act). The court simply determined that sending voters to the proper precinct, and refusing to count their ballots if they insist on casting them at the wrong precinct, is not a violation of HAVA. But if other alleged violations of HAVA occur in the voting process on November 2 – or in the counting of ballots that follows – the Sixth Circuit says that the courts are open for business to entertain those HAVA-based claims.

3. Will other courts agree that HAVA is enforceable by lawsuit?
That ruling – joined by two Reagan-appointed judges and specifically opposed by the U.S. Department of Justice – is likely to be an important factor in post-11/2 disputes, especially if the vote is close in Ohio and/or Michigan and those states remain critical to securing a victory the Electoral College. Likewise, it will be important to watch whether other appeals courts share the Sixth Circuit's view that HAVA violations are subject to remedy in lawsuits brought by individuals or groups of citizens. The issue is pending in Florida, where we expect a ruling as early as Monday, as well as in other swing states.

4. Does it violate HAVA to throw out provisional ballots if cast by citizens whose voter registration forms were incomplete and therefore were never added to the voter rolls?
This issue is now the most important one in its potential impact on the result of the presidential election. It is pending in the Florida case where the ruling is expected on Monday. It surely will arise in post-11/2 litigation in Ohio if the Election Night count there is close enough, as it easily could be. As indicated above, the Sixth Circuit's ruling invites such litigation, although it might occur in state court rather than federal court for reasons relating to Ohio's procedures for contesting election results. (Of course, there might even be simultaneous litigation of the same HAVA-based issue in both state and federal courts in Ohio.)

5. What does HAVA say on this "defective registration form" issue?
The statute's language specifically says that "[i]f an individual declares that such individual is a registered voter . . . but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote," then the individual gets to cast a provisional ballot. 42 U.S.C. § 15482(a) (emphasis added). The statute goes on to say that this provisional ballot "shall be counted as a vote . . . in accordance with State law" if the authorized state election officer "determines that the individual is eligible under State law to vote." Id. (a)(4) (emphasis added).

6. How will the courts likely interpret this HAVA language?
It seems most probable that judges will focus on the phrase "registered voter" in the first sentence of this HAVA provision and conclude that HAVA intended to protect registered voters who were inappropriately dropped from registration rolls due to mistakes made by state election officials, as occurred in Florida in 2000. Particularly with the several references to the ability of state law to make the determination whether an individual is eligible to vote under state law, judges are likely to rule that HAVA permits the states to say that individuals are not eligible to cast ballots that count unless they were properly registered under state law.

7. The possibility of a "heart-strings" HAVA-based argument.
However, there is sufficient ambiguity in HAVA's use of both "registered" and "eligible" to make the following argument: there is a distinction between registration and eligibility. As long as an individual thinks he or she is registered, even if not, but is easily determined to be eligible to vote – in other words, the individual could have filled out the registration form successfully but didn't – then HAVA should be understood (this argument goes) to mandate that provisional ballots cast by individuals in this category should be counted as valid votes.

a. Will judges accept the "heart-strings" argument?
This argument may have some intuitive appeal to some judges, since by definition we are talking now about individual citizens whose qualifications to participate in the franchise are not in dispute. This situation does not involve a fraud problem. These folks may show up on November 2 with plenty of ID – no doubt who they are, that they are citizens, over 18, and so forth – but they just didn't fill out their registration form properly. On the form, they left the box for their driver's license number blank, or failed to check a citizenship box (even though they signed their name attesting to this fact), etc. They did their civic duty of going to the polls on Election Day, and there are no defects in the provisional ballots they cast. As a nation, are we really going to throw out their ballots, simply because they messed up on their voter registration forms? One suspects that a certain amount of outrage might arise if this occurs.

b. The counterargument
On the other hand, we will hear the response that these would-be voters could have registered earlier and could have taken the initiative to check if they had successfully completed their forms so that their registrations would be valid. States have the right to insist that individuals be successfully registered as voters in order to be able to cast a ballot that counts in the election. HAVA did not intend to eliminate completely the idea of pre-election registration; it just meant to prevent voters from being deprived of their right to vote if, through no fault of their own, their valid registrations were somehow mishandled by election administrators.

c. The bottom line?
Given the fact that HAVA does use the word "eligible" as well as "registered" – and it is possible to argue that a voter is eligible under state law (Ohio's for example) even if never registered because of the voter's own error in completing the registration form – one cannot rule out the possibility that courts might accept this heart-strings argument. An examination of the deliberations in Congress, when both the House and Senate were considering the bill, might illuminate the legislature's own understanding of their handiwork on this specific point. In the meantime, however, it seems more likely that the reference to "registered voter" in HAVA means that Congress contemplated that states could insist that voters have complied with the state's voter registration laws in order to get the benefit of the new federally mandated provisional ballot procedures.

8. The risk of fraud & challenges to voter eligibility
Putting aside the category of incomplete voter registration forms where's there no dispute about identity and no risk of fraud, there does remain the problem that some registrations may be bogus. In Ohio alone, the Republican Party has filed challenges against approximately 35,000 new registration forms in 65 of the state's 88 counties. Although today's Columbus Dispatch reports that some of these pre-11/2 challenges may be defective (filed in the wrong precinct – there's that issue again), the Dispatch conducted its own examination of the state's voter registration rolls, which showed duplications or other irregularities affecting over 122,000 registrations.

It seems increasingly clear that a significant part of the story in this swing state will be the process by which Republicans challenge registrations and ballots for alleged fraud or other improprieties, with these challenges occurring during all three phases of the process: before Election Day, on Election Day at the polling places, and after Election Day as provisional ballots are examined to see if there is a match between the individual who cast the ballot and the individual on the registration rolls. Election Law @ Moritz is undertaking its own study of the legal issues relating to these challenges and will report its findings.

9. A lurking Bush v. Gore dispute?
One of the potential issues to look for is the possible applicability of the Bush v. Gore precedent to the procedures by which these challenges are handled. The Supreme Court's decision in Bush v. Gore rests on the proposition that it is unconstitutional to have election administrators in different counties, or even within the same county, apply the same general but very vague standard in different ways when deciding the validity of particular ballots. In 2000, this differential application of a vague standard concerned the examination of dimpled and punctured chads. In 2004, it may concern the examination of handwriting or other information on voter registration cards and provisional ballots. An initial look at the relevant Ohio statutes, including the one applicable to the 35,000 pre-11/2 challenges that the GOP recently filed (Ohio Revised Code § 3503.24), suggests that Ohio law may lack the kind of specificity necessary to avoid a potential Bush v. Gore problem.

10. Sizing Up the Situation
With the possibility of HAVA-related litigation and challenges to voter eligibility occurring in all ten swing states that Election Law @ Moritz is following (as well as Michigan, which some observers argue should be back in play as an eleventh swing state), how should one assess the chances that the outcome of the presidential election will depend upon who wins a lawsuit? In our own efforts to make this predictive judgment, we are relying on the following information and analysis.

For litigation to potentially make a difference, both the Electoral College count needs to be close and the count in the states that could swing the Electoral College one way or the other needs to be razor-thin. What's the chances of that happening, and in which states does that make litigation most likely to be outcome-determinative?

According to press reports, of the swing states in play, Bush is most likely to win Wisconsin, Nevada, and Colorado. (We're reading different reports about New Mexico.) Kerry, by contrast, is more likely to prevail in Pennsylvania, Minnesota, and New Hampshire. (If Michigan is really razor-thin on Election Night, doesn't that most likely mean that Bush's totals in enough states, including Ohio, are secure enough to make litigation irrelevant? In other words, if Michigan is that close, won't Ohio and enough other states be clearly in the Bush column, so that litigating about Michigan votes won't really matter?)

Therefore, at this point, it makes sense to keep the focus primarily on Florida and Ohio. They are the two states most likely to be so close in the initial Election Night count that fighting about ballots there might swing the Electoral College, even if the initial counts in other states are outside the "margin of litigation." Iowa is probably the next state to keep a close eye on, as the race there apparently is very tight and it, too, might make a difference in which way the Electoral College goes. Although it has been subject to less scrutiny than Florida and Ohio, and is generally thought to do relatively well in its election administration, it could have some of the same problems over provisional ballots as in these other two states.

Since New Mexico was even closer than Florida in 2000, it too deserves attention. And Colorado presents the special case where its initiative on moving to a proportionality system for its Electoral College votes, if adopted, will invite litigation that could make a difference. There still remains the long shot of an Electoral College 269-269 tie, which sends the race to the House of Representatives (although maybe without the need for any lawsuits on that point). And, of course, if the initial Election Night count ends up exceptionally close in all ten of these swing states, then there is the prospect of following litigation developments in all ten of them. Not a pleasant thought.