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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

February, 2008

Below are postings from February, 2008. (See Archives | Recent Headlines)

Supreme Court Briefs Filed in Ohio Paper Ballot Case

Feb. 29 - Here are the briefs for the Secretary of State and Union County.

Interactive Election Law Map Update

Feb. 29 - EL@M has updated its interactive map feature, which allows the user to compare election law provisions across US states and click on each state for more info. The unverified ballot and provisional ballots with technical mistakes maps were updated.

Ohio Supreme Court Refuses to Stop Paper Ballots

Feb. 29 - The Ohio Supreme Court today refused Union County's request for a "writ of prohibition" relieving it of any duty to comply with the Secretary of State's order that the county allow voters the opportunity to cast paper ballots, rather than touchscreen ballots, upon request (case page). The court refused to consider other theories under which Union County claimed to be free of any duty to follow the Secretary's order, because it said that those claims should be decided by lower courts.

Union County officials sue Secretary in Ohio Supreme Court

Feb. 25 - The Union County Board of Commissioners along with a dissenting member of the Union County Board of Elections have brought suit against Secretary of State Jennifer Brunner in the Ohio Supreme Court claiming the Secretary has no authority to choose voting equipment for the county. The Ohio Supreme Court has entered a sua sponte order laying out an expedited timeline for the answer and briefs (case page).

Ohio's paper-ballot lawsuit dismissed for lack of standing

Feb. 19 - Franklin County Common Pleas Judge Eric Brown today dismissed for lack of standing the case brought by Union County commissioners against Ohio Secretary of State Jennifer Brunner over her directive ordering the county to provide a paper ballot option alongside touch-screens in the March 4 primary. Judge Brown felt the Union County Board of Elections was the appropriate party to bring such a suit. County officials are considering an appeal (case page).

TRO Lifted in Franklin County

Feb. 12 - Franklin County Common Pleas Judge Eric Brown yesterday (2/11) lifted the temporary restraining order against Ohio Secretary of State Jennifer Brunner that had been granted by the Union County Common Pleas Court on February 6 in Union County Board of Elections v. Brunner. Judge Brown voided the TRO because Brunner was not given an opportunity to argue against the order before it was issued. Further argument in the matter is scheduled for Wednesday (2/13).

50,000 L.A. Primary Votes Uncountable

Feb. 12 - Los Angeles County officials state that 50,000 votes cast by independent voters in the Presidential primary cannot be counted. Independent voters failed to mark the ballots properly because the design was confusing and poll workers did not explain how to properly fill out the ballots. However, officials claim that the lost votes do not affect the allocation of the delegates between the Democratic candidates.

Court Deregulates OH Third-Party Registration Groups

Feb. 12 - A federal trial court has enjoined laws that prohibit third-party registration workers from returning registration forms through intermediaries and requires workers to attend training programs and register with the state (case page).

Party Registration Confusion in Louisiana

Feb. 11 - The Obama campaign has alleged that some Democratic voters were mistakenly recorded as independents and denied the opportunity to vote in Louisiana's closed February 9 primary.

Unspecified Allegations of WA Irregularities

Feb. 11 - Huckabee's campaign has threatened litigation over the result of Washington's February 9 caucuses. However, the campaign has not specified exactly what irregularities it believes to have occurred.

Dems Agree on NM Provisonal Counting Rules

Feb. 8 - New Mexico's Democratic Presidential primary will be decided by some 17,000 provisional votes cast in that state, and the Democratic candidates have agreed upon the following rules for counting or rejecting each ballot. The rules seem generally in line with the rules that already existed under state law (see 1-12-25.3), but are arguably clearer. However, the rules leave open the question of whether a ballot can be counted when it is separated from its identifying paperwork and inseparably commingled with other unidentifiable ballots.

Confusion in MD re: Provisionals as DRE Alternative

Feb. 8 - Maryland officials have unfortunately instructed some poll workers to distribute provisional ballots to requesting voters as a DRE alternative. Now, just before the state's February 12 Presidential primary, the State Board of Elections says provisionals are not to be used this way, and has instructed locals to reject any such ballots.

Judge Says No OH Paper Ballots, But Case Removed

Feb. 7 - A Union County trial court issued a restraining order blocking SoS Brunner's directive that the county offer a paper alternative to touchscreen voting in the March 4 Presidential primary. However, the case was then transferred to Franklin County, and Brunner asked a Columbus federal court to dissolve the Union County order. Check back for further updates.

Scope of L.A. Ballot Problems Revealed

Feb. 7 - Apparently more than 94,000 Presidential primary ballots went uncounted in LA County due to a flawed ballot (see prior post). Officials are seeking permission to go back and try to count those ballots, but it now appears that that may be impossible (analysis).

Preliminary Injunction Denied in Cuyahoga County

Feb. 6 - The Columbus Dispatch is reporting that Judge Kathleen O’Malley denied the ACLU's Motion for a Preliminary Injunction yesterday afternoon (2/5) in ACLU of Ohio v. Brunner (disclosure). The Motion was an attempt to stop Cuyahoga County from switching from touch-screen voting machines to paper ballots counted at a central location in the March 4 primary. The ACLU has indicated that it still plans to seek a trial in this case on the issue of whether central counting of ballots is legal and constitutional.

AZ Confusion Increases Provisional Vote

Feb. 6 - Arizona independents who thought they could cast Democratic or Republican primary ballots have instead contributed to the pool of perhaps 100,000 provisional votes cast yesterday in the state. Though it will take some time to sort through the ballots, the ones cast by independents ultimately will not count.

Voters Left Off Rolls in NYC

Feb. 6 - New York City voters are reporting being left off the rolls at some polling places, and having to cast provisional ballots. The extent of the problem is unclear, as is its cause. New York only recently implemented its statewide voter registration database, a process that involved purging some records and could have suffered from technical glitches that might cause this type of problem.

Provisional Votes Will Decide NM

Feb. 6 - New Mexico election workers stayed up all night and still did not finish counting ballots for the Presidential primary. The latest reported vote differential is in the low 100's but thousands of provisionals remain to be counted.

Would-be Crossover Voters Denied Provisional Ballots

Feb. 6 - People across the country showed up to vote yesterday and found they were not eligible in the party primary of their choice. The problems were most notable in Arizona and New Jersey (analysis).

Few Second Ballots in NJ

Feb. 5 - Superior Court Judge Vincent Grasso ruled last week that registered voters who cast absentee primary ballots for presidential candidates who have since dropped out may submit new ballots. The AP is reporting that few New Jersey residents are taking advantage of the opportunity to cast a second ballot.

Hearing on Cuyahoga Machines Today

Feb. 5 - A federal court will hear the ACLU's challenge to Ohio's largest county's intended switch to optical scan balloting today. Click here for case page.

Delays in New Jersey Primary Voting

Feb. 5 - A New Jersey precinct turned away voters this morning when its two voting machines were not working. The precinct did not have any provisional ballots on hand for voters to use instead. Click here for story.

NY High Court Approves Touchscreens

Feb. 5 - New York's highest court has overturned the state election board's prior refusal to certify DRE machines produced by Liberty Voting Systems. Premier Election Solutions (formerly Diebold) is also filing suit to obtain certification for its machines.

Some NJ Polling Places Switch to Paper Ballots

Feb. 5 - It is being reported that some New Jersey polling places are switching to paper ballots due to a problem with electronic voting machines.

Election complaints being investigated in Illinois

Feb. 5 - It is being reported that the Kane County State Attorney's office has recieved a number of complaints of alleged election code violations. Complaints received include allegations about Hispanic voters being turned away in Elgin and signs within 100 feet of the polling place in Aurora. It has not been determined whether any violations of election law have actually occurred.

GA ID Checking Delays Voting

Feb. 5 - The requirement that poll workers check voters' ID's is apparently causing lines of up to 90 minutes in Georgia polling places.

Local Officials Sue Ohio SoS Over Paper Ballots

Feb. 5 - Union County election officials filed a lawsuit this morning claiming that Secretary Brunner does not have the authority to order paper ballots in the March 4 primary. Brunner wants officials statewide to stock polling places with a number of paper ballots equivalant to 10% of expected turnout.

Arizona Experiencing Confusion at Polls

Feb. 5 - The Arizona Republic reports voters being turned away from the polls or forced to vote provisional ballots. The extent of the problem is unclear. This story indicates that part of the cause could be voters who are registered with a party other than the one for which they would like to vote. A Maricopa County official stated that such voters may cast a provisional ballot, but it will not count.

Potential Rejection of CA Independent Votes

Feb. 5 - Flawed ballot design could result in the rejection of the votes of many L.A. County independent voters. Independent voters are given a special ballot with a bubble they have to fill in to indicate whether they intend the ballot to count in the Democratic or American Independent Party primary. If voters fail to fill in the bubble, their votes will not count, and some fear this will lead to disenfranchisement. The Obama camp has already threatened litigation (analysis).

EL@M Tracks Machine Decertification Nationwide

Feb. 4 - EL@M has summarized decertification and other machine-related issues in this chart. Check back for further updates.

EL@M Presents 5-State Post-Election Timeline

Feb. 3 - In time for Super Tuesday, EL@M presents the following 5-state timeline of ballot counting, recounts and election contests. The five states are New York, Illinois, California, New Jersey, and Georgia.

Court Upholds Expanded California Audits

Feb. 1 - A state appellate court has upheld a California Secretary of State administrative regulation that requires a hand-count of a random 10% of precincts when the margin of victory in a race is .05% or less. California law requires a 1% hand-count regardless of the margin of victory.

Cuyahoga Rents Central Count OS System

Feb. 1 - Ohio's most populous county will lease 15 ES&S optical scanners to count ballots centrally in the state's March 4 Presidential primary. The moves comes after the Ohio Secretary of State, citing security concerns, forced the county to abandon its existing touchscreen system.

California Voter Registrations Rejected

Feb. 1 - California election officials reportedly rejected thousands of recent voter registration applications. It is unclear whether this occurred because the registrations could not be verified against outside databases, or because officials simply failed to verify them.

New Jersey Voters Get Second Chance

Feb. 1 - In New Jersey, a state judge has ruled that individuals who cast absentee ballots for Rudy Giuliani, John Edwards, or other candidates who subsequently dropped out of the primary should get a second chance to vote for a candidate who has not dropped out.


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.

more commentary...

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.

more EL@M in the news...

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.

more info & analysis...