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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

Absentee ballots emerging as a trouble area nationwide

It is becoming clear that the verification and counting of absentee ballots are emerging as top issues in this year’s historic election.  Absentee ballots are being used more this year because several states began allowing “no-fault” absentee voting, meaning any voter can vote early in-person or by mail without an excuse.  High interest in this presidential election and fear among voters of the long lines they saw in 2004 have also contributed to the vastly expanded use of absentee ballots.

As we enter the final weekend before the election, here are some of the reported problems we are seeing with absentee ballots:

OhioCuyahoga County: 2700 ballots rejected because of voter errors such as not sealing the inner envelope

OhioFranklin County: County website indicates confusing status reports for voters who have voted early in person causing voters to worry about whether their votes will be counted

FloridaPalm Beach County: Hundreds of voters’ absentee ballots being rejected for signatures not matching registration records and errors such as forgetting to sign their ballot and signing in the wrong place

Colorado:  Approximately 35,000 first-time voters’ mailed absentee ballots were rejected because voters did not include a copy of their ID with their ballot

Colorado: Sequoia fails to ship enough ballots to county causing voters to receive ballots late

(Update: 11/1/08) Indiana: GOP wins lawsuit to have challenged absentee ballots set aside and reviewed by bipartisan boards after the election instead of being opened and counted on election day

Absentee ballots provide a convenience for both voters and election officials.  Voters are understandably distressed that their ballots could be rejected because of unclear instructions or misunderstandings.  Critical to fair and effective administration of elections are clear rules on when to provide notice of errors and opportunity for voters to cure defects in their status or with their ballot.  Absentee ballot laws often do not provide for this notice and opportunity to cure before a ballot is rejected and, even though some officials may do this in practice, uniform standards often do not exist.  Until this year, this issue may not have received the attention it merits because the absentee voting option has not been used as heavily.  Voters should not face a greater risk that their vote will not count because they have chosen to vote by absentee ballot.  Hopefully, election officials will take note of arising problems and prepare to resolve them fairly and expeditiously. 


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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