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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

November, 2008

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

6th Circuit issues important decision in League of Women Voters v. Brunner

Nov. 26 - The 6th Circuit issued an opinion in League of Women Voters v. Brunner (formerly "v. Blackwell") favoring Plaintiffs on Defendant's interlocutory appeal of the district court's decision not to dismiss the case.  It has been remanded to the district court.  The case cites many examples of voter hardship from the 2004 election and alleges systemic failure in Ohio's voting systems and failure by the Secretary of State and Governor to remedy the problems.  EL@M Director, Edward B. Foley, analyzes the decision here, discussing its importance and, in particular, its citation of Bush v. Gore as support for the validity of Plaintiffs' claims.

MN Canvassing Board rejects Franken's request to consider rejected absentees in the recount

Nov. 26 - The Minnesota State Canvassing Board met today and unanimously decided that rejected absentee ballots would not be reviewed during the ongoing administrative recount.  Both the Attorney General and the Secretary of State have said in the past that these are to be reviewed in the context of an election contest lawsuit.  See the Star Tribune report here.  The practice varies by state with some reviewing absentee ballots during recounts and other states doing the same as Minnesota.

Skaggs briefs due to Ohio Supreme Court by 10:00AM Monday

Nov. 25 - The Ohio Supreme Court is requiring the parties in Skaggs to get their briefs in by 10a.m. Monday.  Counting of the provisional ballots is enjoined until the Court makes its decision.

OH-15: Stivers leads by 594 votes

Nov. 25 - Steve Stivers now leads Mary Jo Kilroy by 594 votes since Madison Couty finalized its vote count.  Stivers gained more votes that Kilroy among provisional and absentee ballots there.  The race will be decided by the roughly 27,000 provisional ballots cast in Franklin County and perhaps by the small portion of them being challenged in State ex rel. Skaggs v. Brunner.  That case will be decided next week by the Ohio Supreme Court.  See the most recent Columbus Dispatch report here.

MN Senate Race: 11/25 Update

Nov. 25 - Coleman now leads Franken by 231 votes and his campaign has challenged 1,853 ballots.  The Franken campaign has challenged 1,773 ballots.  See the Star Tribune's report here

VA-5 candidate seeks recount

Nov. 25 - Virgil Goode is seeking a recount after his Democratic opponent, Tom Perriello, was certified the winner of the VA-5 House seat by 745 votes on Monday.  Candidates are allowed to request recounts when the original victory margin is less than 1%.  Perriello's margin is only .2%.  See the report here.

OH-15: Briefs have been filed in Skaggs 6th Circuit appeal

Nov. 25 - Plaintiff's reply brief was filed today in federal court.  We could see a decision as early as today from the 6th Circuit.  Today is the regular deadline for the counties to certify their vote totals to the Secretary of State but, Judge Marbley enjoined counting of the provisional ballots until Friday to allow time for the appeal.  See the Skaggs case page here.

6th Circuit Sends Case Back to Ohio Supremes

Nov. 25 - In a per curiam ruling issued today (11/25), the U.S. Court of Appeals for the 6th Circuit vacated the district court's order in Skaggs, concerning uncounted provisional ballots, and remanded the case to the Ohio Supreme Court.  The federal Court of Appeals determined that the complaint did not present a substantial federal question and that removal from the Ohio Supreme Court was not warranted.  See the Columbus Dispatch report here.

MN Senate Race: 11/24 Update

Nov. 24 - Coleman leads by 186 votes with 68% of the votes counted.  The Coleman campaign has challeged 1,024 ballots and the Franken campaign has challenged 986.  Both campaigns say the other is trying to influence the perception of the recount by making frivolous challenges to ballots to remove them from the vote tallies.  Consequently, it is difficult to predict which candidate is likely to be the winner once final decisions have been made on all of the ballots.  See coverage here.

What comes after the recount in Minnesota?

Nov. 24 - Minnesota Public Radio has this report that nicely summarizes what could happen after the recount. Here are the highlights:

-Losing candidate could contest the election on some grounds of irregularity

-Contest would be heard in St. Paul by a three-judge panel, appointed by the state's Supreme Court

-Candidate could ask for another recount within the election contest (the current recount is purely administrative)

-Governor Pawlenty could appoint a temporary Senator.  A special election would be held to fill the position.

-The U.S. Senate could decide by simple majority which candidate gets to join its ranks.

MN Senate Race: 11/23 Update

Nov. 23 - Coleman now leads Franken by 180 votes.  However, both campaigns are challenging more ballots than they were in the first days of the recount.  There are now almost 2,000 challenged ballots that must be decided by the board.  Recount workers say the work can be mind-numbing.  See the Star Tribune blog here.  One worker sometimes counts in French to stay alert.  She told Tribune writers when a counter at her table sneezed, instead of saying "Gesundheit", she said "Seventeen".  Click here to see all EL@M posts on the Minnesota Senate recount.

MN Senate Race: 11/21 Update

Nov. 21 - Franken now trails Coleman by 136 votes with 46% of the votes recounted.  Several Democratic-leaning counties have not yet been recounted so Franken's gains could expand at a greater rate when these are reported.  See coverage here.  The recount continues...

Skaggs Plaintiffs Appeal to 6th Circuit

Nov. 21 - As expected, the plaintiffs in Skaggs have appealed to the 6th Circuit.  The plaintiffs/apellants have filed their brief and an emergency motion for injunctive relief pending the appeal.   

Some Minnesota absentee voters learning of ballot rejection

Nov. 21 - The Franken campaign is seeking to have rejected absentee ballots reviewed by the State Canvassing Board. He won a case against Ramsey County officials granting him access to the names of voters whose ballots were rejected and why. The campaign has begun contacting these voters many of whom were not aware their ballot had been rejected. See the report here. Ramsey County officials rejected approximately 800 absentee ballots. One quarter of these were rejected because the person was not registered. Others were rejected for having no witness or no signature. Others were rejected because voters filled out materials incorrectly or were sent the wrong materials by election officials. One woman’s ballot was rejected because she did not indicate her reason for needing to vote absentee. One Coleman supporter knowingly voted twice; he was not surprised when his absentee ballot was rejected because he voted on election day. He said he wanted to be sure his vote would count. A Minneapolis college student attending school in Seattle has sued over the rejection of her absentee ballot. She voted absentee (for Franken) but received a letter Nov. 3 saying her ballot had been rejected because she wasn’t registered to vote. She had received a post card, dated Oct. 30, indicating she was registered. See the report here

Update - 1:09PM: This post orginally stated that Minnesotans must appear in person to take advantage of election day registration but there is actually a method available for mailing in a voter registration form with an absentee ballot.  MR 8210.0500.

Disputes in New York state senate race parallel those in OH-15 race

Nov. 21 - Control of the New York state senate rests on the outcome of a race that has come down to disputed ballots. The Democratic candidate trails the Republican candidate by about 500 votes. At issue are affidavit ballots, similar to provisional ballots, which voters who are registered elsewhere are required to use to attest to having moved into the district where they are now voting. In some cases, these paper affidavit ballots failed to include the voter’s prior address. In other cases, the voter neglected to check one of several boxes indicating a change of address. The ballots have been deemed ineligible by a Republican official who contributed to the campaign of the Republican candidate that her decision now favors. Others allege that ballots with such formal defects have always been counted in the past. One observer alleged that Republican observers were challenging ballots because of the voters’ Asian or Hispanic last names. Such disputed ballots will be reviewed by a judge at the end of counting.

OH-15: New Briefing Schedule Released

Nov. 21 - The  Sixth Circuit has issued a Briefing Schedule in the Skaggs case, which concerns the treatment of provisional ballots.  The original plaintiffs have appealed the District Court's order to count provisional ballots with lacking paperwork (missing signature, etc.).  The plaintiffs are ordered to file their appellate brief by November 24.

MN Senate: 11-20 Update...

Nov. 20 - Coleman's lead is now only 174 votes after 18% of Minnesota's ballots have been recounted by hand.  Faintly marked ballots combined with older optical scanners were likely the cause of some votes not being counted on the first try.  The campaigns have challenged 269 votes statewide, with Coleman observers disputing 146 ballots and Franken observers disputing 123.  The state canvassing board will review these ballots in December.  A Ramsay County court decided yesterday that the Franken campaign was entitled to data on voters whose absentee ballots were rejected and counties across the state are now expected to release such data.  It's not clear at this point where these rejected ballots will fit into the recount.  A Ramsay County official who was named in that lawsuit showed an ability to solve disputes between the campaign observer teams by brokering agreement on 12 of 13 challenged ballots at the end of yesterday's counting. 

Minnesota Senate race: Coleman up by 169 votes

Nov. 20 - Both candidates gained more votes today as recounting continued. Franken now trails by 169 votes according to this morning’s reports out of St. Louis and Ramsey counties. See the Star Tribune’s report here. There are 107 recount sites (counties and cities) and they are required to finish their work and report by Dec. 5 to the state canvassing board. The board will accept those reports and rule on disputed ballots beginning Dec. 16. Following its conclusions, litigation could postpone the final conclusion into 2009. See today’s AP report on the recount here.

EL@M Director, Edward B. Foley, publishes op-ed on Minnesota recounts

Nov. 20 - Professor Edward B. Foley, Director of Election Law @ Moritz, has published this editorial in The Star Tribune on recounts in Minnesota.  He describes the gubernatorial recount of 1962 and the cooperation between the candidates that led to a fair recount process that was accepted by the public.  He holds this up as an example to be followed in today's recount of the race between Al Franken and Norm Coleman for Senate.  Should the result of the current recount process not be perceived as fair and neutral by the campaigns and the public, Professor Foley recommends a similar process to that used in 1962 where a three-judge panel, two of whom would be chosen by the two campaigns and the last of whom would be chosen by the first two judges, would determine the outcome of the race.  A hypothetical exercise recently undertaken by EL@M, the Election Court, was based on this model of neutrality. 

Minnesota recount blog started by observers

Nov. 20 - A group of observers has started a recount blog to post their observations of the process.  See here.

MN Senate: Do-it-yourself recount and FAQ

Nov. 20 - Minnesota Public Radio has posted a tool here that allows users to look at a few of the challenged votes from the recount and decide whether the challenged vote should be counted and for whom.  (This is for education and entertainment purposes only.)  Users make their selections and are immediately shown other users' responses.  The MPR site also has a Recount FAQ posted here.

Judge in Skaggs rules that the challenged provisional ballots should be counted

Nov. 20 - Judge Marbley ruled today that all of the roughly 1,000 challenged provisional ballots should be counted despite alleged formal defects such as a ballot envelope lacking a printed name in addition to a voter signature.  Plaintiffs are planning an appeal to the 6th Circuit and are currently arguing before Judge Marbley to stay the decision while they appeal it.  More info will be posted as it becomes available.  See the Skaggs case page here and the Columbus Dispatch report on the decision here.  Stivers now has a 479-vote lead according to another Dispatch report.

Order in Skaggs stayed until Nov. 28 while 6th Circuit hears appeal

Nov. 20 - Judge Marbley has stayed his order until Nov. 28 to give the 6th Circuit time to hear and decide an appeal of his decision.  Provisional ballots will not be counted before Nov. 29 and 9 a.m.  View the order here on our case page.

MN Senate: 11/19/08 update

Nov. 19 - The Minnesota Senate recount has begun.  Yesterday, the State Canvassing Board determined the final original count (with Coleman ahead by 215 votes) but chose to delay decision on Franken's argument that the board should consider ordering rejected absentee ballots reexamined as part of the recount.  A Ramsey county court has scheduled a hearing today on whether the county must provide to the Franken campaign the names of absentee voters whose ballots were rejected.  The Board also did not rule on Franken's contention that the results submitted by some counties were unacceptable because the counties did not directly "eyeball" the paper records of vote totals printed by voting machines.  The Board plans to reconvene to rule on the disputed absentee ballots and certify the winner on December 16.

MN Voter Sues over Her Rejected Ballot

Nov. 19 - A Minneapolis voter who is attending college in Seattle has sued after receiving notification that her absentee ballot, cast for Franken, was rejected due to lack of registration.  She apparently had received a confirmation of her registration earlier, but it is possible that that registration was removed from the database after she failed to vote in Minnesota's September primary.  Moritz is obtaining documents.

OH-15: Federal judge expected to rule tomorrow

Nov. 19 - Judge Marbley is expected to rule tomorrow on the counting of provisional ballots.  Briefs from both sides are not yet available online.  According to a Gongwer Ohio report, Judge Marbley said in his court on Monday "from the court's perspective, the most important thing is enfranchisement."  Attorney for Secretary Brunner, Richard Coglianese acknowledged that the Franklin County provisional envelope instructs the voter to complete parts of the provisional ballot application but said, "What we really have, your honor, is conflicting mandatory duties.  The poll worker has the obligation to make sure the envelope is filled out properly."  Brunner has said the Franklin County provisional ballot envelope is different than the one used in other counties. 

CA-4: 29,000 Ballots Remain to be Counted

Nov. 19 - In California's 4th US Congressional District, where Tom McClintock (R) leads Charlie Brown (D) by 562 votes, 29,000 ballots remain to be counted, about 8,000 of them provisional.  After changes in state law, California no longer has automatic recounts, but any voter (including candidates) may obtain a recount by filing a proper request within 5 days of the election.  Cal.Elec.Code 15620.

Alaska Senate race: Begich defeats Stevens and a recount is unlikely

Nov. 19 - Senator Ted Stevens has been defeated by challenger Mark Begich in the Alaska Senate race by a margin of close to 1%.  State-funded automatic recounts are triggered by margins smaller than 0.5% but a candidate would have to request a recount and pay the approximate $15,000 cost were the margin larger.  The Alaska race has been closely watched for many reasons such as the length of Stevens' time in office and his criminal trial and conviction right before the election.  Alaska is also an interesting place because of its huge and challenging geography and the difficulties that can create in election administration. 

Franken Will Get Names of Absentee Voters

Nov. 19 - A Ramsey County (St. Paul) judge has ordered the county to produce to US Senate candidate Al Franken a list of the names and addresses of absentee voters whose ballots the county has rejected.  The Franken campaign has indicated in the past that it may use this information to approach voters and see whether they can get their ballots counted.  The Franken campaign intends to use the voters' cooperation as a means to persuade the State Canvassing Board to include rejected absentee ballots as part of the recount.  The Coleman campaign, which was not a party to the proceedings, stated that it will not approach voters in this way.  More info here.

Provisionals in OH-15 race will not be counted until Friday

Nov. 18 - Judge Marbley has requested both parties' briefs by Tuesday so he can rule Thursday afternoon on the processing of Franklin County's provisional ballots.  Judge Marbley kept the case in federal court this morning because it involves the interpretation of a pre-election order from the court on provisional ballots and because of equal protection concerns.  Franklin County uses a  different provisional ballot envelope than Madison and Union counties which may place the burden of properly completing the form on the voter rather than the poll worker.  Supporters of candidate Steve Stivers are suing to stop the counting of about 1000 provisional ballots because they lack either a printed name or signature or voter ID information on the provisional ballot envelope.  Plaintiffs allege that these data are required by Ohio law for a provisional ballot to be counted.  Secretary Brunner's position is that the onus was on the county's poll workers to make sure the ballot envelopes were completed correctly and that poll worker error must not work to invalidate an otherwise eligible voter's ballot.

Brunner ordered to accomodate disabled voters in correcting deficiencies with their absentee ballots

Nov. 18 - Secretary Brunner has been ordered to accomodate disabled absentee voters who are unable to make the trip to their county board to correct any defect with their absentee ballot.  Voters have until the close of business Friday, November 21, 2008 to request accomodation which would involve election officials traveling to voters' homes. The court order applies to all 88 county boards of elections in Ohio.

VA UOCAVA Suit: McCain Kicked, DOJ Joins

Nov. 18 - Yesterday, a federal judge dismissed McCain-Palin 2008 on standing grounds from the ongoing suit to extend the deadline for returning UOCAVA ballots.  However, the judge also allowed the DOJ into the suit to pursue the claim.  The suit could affect the disposition of some 200 late-returned UOCAVA ballots that were cast in the tight US House race between Tom Perriello (D) and Virgil Goode (R).

MN Senate: 11/18 Update

Nov. 18 - Minnesota's State Canvassing Board meets today to certify the official results of the election.  The Franken campaign has made arguments for the Board to consider reexamining various absentee ballots around the state that have been rejected, but the state Attorney General recently issued an opinion that says that issue is more properly considered by the courts.  A "tripartisan" group composed of various Minnesota officials and ex-officials made these recommendations for actual physical conduct of the recount that should begin tomorrow.

Rivals in two House races both attend congressional orientation

Nov. 18 - With litigation pending, the official count not yet certified, and a likely automatic recount not yet begun, Steve Stivers and Mary Jo Kilroy agree that they should both be at the congressional orientiation for freshman members this week.  Both say that voters in the 15th district should not be harmed by the lengthy process of determining which of them will eventually win the congressional seat.  Similarly, Charlie Brown and Tom McClintock, currently separated by about 1,000 votes in CA-4, will both attend as well according to this Politicker report.  Fortunately, most of the candidates in as-yet-undecided races have taken this approach on how to proceed while we wait for results.  The exception has been the Minnesota Senate race in which partisan accusations have been lobbed back and forth between the candidates. 

MN Board Hearing Arguments Now

Nov. 18 - The Minnesota State Canvassing Board has approved Coleman's lead of 206 votes (though this figure can still be modifed after audit records are examined) and is now hearing arguments from the candidates.  The Franken campaign is arguing that the results from many counties cannot be certified because officials did not personally review the paper tapes that are printed out of each voting machine for results, but instead relied on results compiled by state computer systems.  The Franken campaign denies charges from Coleman that by making this argument the campaign is trying to delay or stop the recount.

MN Senate: 11-17 Update

Nov. 17 - The campaigns are lining up volunteers to help observe Wednesday's recount, and the Franken campaign has begun to contact absentee voters whose ballots have been rejected to see whether the campaign can get those ballots counted. Click "Read More" for a full digest.

Federal judge keeps Ohio provisional ballot case

Nov. 17 - Federal judge Algenon Marbley decided today to keep State of Ohio ex rel. Skaggs v. Brunner in federal court, apparently agreeing with Secretary Brunner that the issues presented in the case are intertwined with the issues ruled on by the court just before the election in NEOCH v. Blackwell.  In NEOCH, the court adopted Secretary Brunner's directive 2008-101 on the processing of provisional ballots as an order of the court.  A subsequent directive issued Oct. 28, 2008-103, reiterated the court's order that poll worker error may not invalidate a provisional ballot.  Specifically the court said that poll worker error including "failure of a poll worker to sign a provisional ballot" and "failure to comply with duties mandated by R.C. 3505.181, which governs the procedure for casting a provisional ballot" should not cause an eligible elector's ballot to be rejected.  At issue in Skaggs is whether the lack of a voter's name and signature on the ballot envelope should be cause for rejecting a provisional ballot.  The ballots under consideration could determine the outcome of the OH-15 House race.  Judge Marbley is holding a hearing today on whether to issue a temporary order delaying the counting of provisional ballots in Franklin County.

Plaintiff in Skaggs also has confusing absentee ballot status

Nov. 17 - EL@M posted an item before the election about problems with absentee ballots such as voters making technical mistakes that may have caused their ballots to be rejected.  Constitutional law professor and EL@M fellow, Ruth Colker, wrote here about her experience with absentee voting and a technical mistake that almost caused her ballot to be rejected.  When she noticed the status of her absentee ballot was "mailed", not "received", she spent hours trying to find out what the problem was and eventually was assured her ballot would count.  Interestingly, plaintiff Kyle Fannin in State of Ohio ex rel. Skaggs v. Brunner, a lawsuit seeking to exclude provisional ballots if their envelopes are not filled out in a certain way, also has an absentee ballot status of "mailed" instead of "received".  It is possible the website is not up to date and it is not clear if all absentee ballots with such a status have or had a deficiency, but in Professor Colker's case, the ballot envelope was deemed deficient.  Voters had until Nov. 14 to clear up any problems with their absentee ballots according to Directive 2008-109.

Minnesota Registration Rolls Questioned

Nov. 17 - A third-party group called Minnesota Majority, founded by former Minnesota Secretary of State Mary Kiffmeyer (R), has filed a complaint with the US Department of Justice alleging that Minnesota's registration rolls suffer from a "number of irregularities," including bad addresses, dead voters and changes in address for 13 voters over 100 years of age.  The group is against Minnesota's current same-day registration system, and claims that the complaint is unrelated to the current Minnesota US Senate recount.

Waiting for result in federal court hearing on OH-15 provisional ballots

Nov. 15 - Steve Stivers leads by 393 votes accordig to Friday's Gongwer news (this is a subscription service).  The campaign claims that he picked up 244 votes in Union County after the first unofficial county report and that these are not included in the Secretary of State's current unofficial numbers which put the difference at 149.

Judge Marbley scheduled a hearing for today at 9 a.m. on whether to consolidate the Skaggs case with NEOCH v. Blackwell, a case about the counting of provisional ballots that was consolidated before the election with Ohio Republican Party v. Brunner.  Secretary Brunner alleges that all of the cases revolve around the single issue of processing and counting of provisional ballots.  Secretary Brunner argues that she gave clear instruction on how to handle these ballots including the instruction that poll worker error should not invalidate a provisional ballot.  Plaintiffs argue that Ohio law requires certain information on the provisional ballot envelope for the ballot to be deemed eligible for counting.  The outcome of this case could have a big impact on how provisional ballots are treated in the state from now on.  EL@M will post the result of the hearing as soon as it is available. 

One thing that is not clear from the court filings is whether any of the provisional ballots challenged in this suit were cast by voters who were erroneously forced to vote provisionally because of a code mistakenly printed by the county in the poll books.  The deputy director of the board told local TV news the day after the election that all of these ballots would be counted.  See this Nov. 5 post.

Coleman's lead down to 200 votes as counties perform audits before the recount

Nov. 15 - Vote tallies have fluctuated as counties have performed audits since their first unofficial reports on election night. Franken now trails Coleman by 200 votes.  Both candidates have gained and lost votes during this process.  See all posts on the Minnesota Senate race here.

Ritchie "Budges" on Absentee Ballots

Nov. 15 - Minnestoa Secretary of State Mark Ritchie Friday appeared to change his position on whether the 5-member state canvassing board of which he is a part would hear arguments from the Franken campaign that the board should re-examine rejected absentee ballots to determine whether to count them.  Ritchie had previously indicated that the board would not even consider rejected absentee ballots, but now says that the board will at least "listen" to Franken's arguments.  The Coleman campaign responded by criticising Ritchie for changing his position in a way that is likely to benefit a fellow Democrat.  Coleman also objected to a statement made by the Secretary's Elections Director that the names and addresses of absentee voters whose votes had been rejected were public information.  Franken is currently trying to get that information, potentially for the purpose of personally contacting the affected voters and seeing whether he can get their votes counted.

OH-15: Ruling expected 8:30 a.m. Monday on provisional ballot case

Nov. 15 - Judge Marbley will decide Monday morning whether he has jurisdiction over the Skaggs case.  If he decides that his court has jurisdiction, he will hear arguments from both sides on Monday on whether to issue a temporary order to halt counting of provisional ballots in Franklin County.  If not, the case will be remanded to the Ohio Supreme Court.  No action is currently being taken with the provisional ballots while the county awaits Judge Marbley's decision.  See all posts related to the OH-15 House race here.

MN Senate: 11/14 Update

Nov. 14 - Minnesota Secretary of State Mark Ritchie's office is preparing local election officials for the Senate recount as a supplement to the already extensive training materials that have been posted on the Secretary's website for some time.  The Secretary's Elections Director stressed that workers need to listen to the concerns of the campaigns while staying in control of the process, especially when it comes to processing challenged ballots.  Ballots can be challenged only for cause.

Brunner wants to consolidate latest lawsuit by Stivers supporters with NEOCH v. Blackwell

Nov. 14 - Ohio Secretary of State Jennifer Brunner today (11/14) removed Skaggs v. Brunner, filed yesterday (11/13) in the Ohio Supreme Court, to the U.S. District Court for the Southern District of Ohio.  Having removed the case to federal court, Secretary Brunner has filed a motion to consolidate the case with two existing federal court cases, NEOCH v. Blackwell and Ohio Republican Party v. Brunner (NEOCH and Ohio Republican Party were themselves consolidated on 11/6).   She claims that the Skaggs case, brought by two voters who are supporters of Steve Stivers in the OH-15 race, is based upon legal and factual issues that are "identical" to the issues presented in the other pending federal cases.  See the EL@M case page for additional information and court documents.

Hearing scheduled in McCain-Palin case over military ballots in Virginia

Nov. 14 - A hearing has been scheduled for Nov. 17 in the case filed by the McCain campaign before last week's election seeking to allow late-arriving military absentee ballots to be counted.  See the case page here

Plaintiffs in Skaggs, hoping for remand, ask Ohio Supreme Court for TRO

Nov. 14 - Plainitffs in State of Ohio ex rel. Skaggs v. Brunner seek injunctive relief from the Ohio Supreme Court to prevent the opening of provisional ballot envelopes and co-mingling of ballots.  Such removal of the ID envelopes and co-mingling would make the ballots irretrievable in the event of a subsequent court ruling that some of the ballots are ineligible for counting.  The case has been removed to federal court but Plaintiffs are acting now in case Judge Marbley of the U.S. district court remands the case to state court at a 9 a.m. hearing tomorrow morning.

Begich leads Stevens by 814 votes in Alaska Senate race

Nov. 13 - Challenger Begich is ahead by 814 votes in the race against Ted Stevens.  Out of 495,731 registered voters in Alaska, 282,996 cast ballots including 278,837 votes in the Begich/Stevens race according to this report from the Alaska Division of Elections.  It is not entirely clear whether more ballots remain to be counted.  This Nov. 10 memo from state officials said that most of the outstanding ballots would be counted on Nov. 12.  But the division's homepage has an entry indicating that the vote count is complete.  Update (9:51 AM EST): Roughly 40,000 more ballots remain to be counted according to this report from The Anchorage Daily News. 

MN Senate: 11/13 Update

Nov. 13 - State canvassing board appointed--  Minnesota Secretary of State Mark Ritchie yesterday filled the four remaining positions on the state canvassing board (Ritchie himself is the first member). The canvassing board certifies the official results of all statewide races and supervises statewide recounts. The board members include Eric Magnuson and G. Barry Anderson, two state Supreme Court justices with Republican ties. The other members are Edward Cleary, a Ventura-appointed trial court judge, and Kathleen Gearin, a trial court judge of unknown political affiliation. Ritchie asked Magnuson and Gearin to appoint the board members, and they appointed themselves and the remaining two judges. The Coleman campaign seemed fine with the appointments, but the Franken campaign said that Magnuson and Anderson were "partisan republicans" and tried to associate them with Governor Pawlenty who, the campaign said, had "spread false claims of foul play in an effort to besmirch our state's good reputation...." Gearin previously rejected a request by Coleman to prevent from being counted until further examination 32 absentee ballots allegedly found in an election official's car.

Tight Races Update

Nov. 13 - Here is an updated chart of the country's tightest races.  The Alaska Senate race flipped to Begich (D), although more ballots remain to be counted (see here).  The numbers in the Alaska and California house races have changed significantly, and the vote count in the Missouri Presidential race changed slightly.

MN: Franken Sues for Lists of Absentee Voters

Nov. 13 - The Franken campaign has sued Ramsey County (St. Paul) to obtain a list of all voters who had cast absentee ballots that were not counted.  Both Ramsey and Hennepin (Minneapolis) Counties had refused to give the Franken campaign such lists, but at this point it appears only Ramsey has been sued.  This article suggests that, if they obtain access to this information, both parties might begin personally contacting voters to attempt to get their votes counted.  A trial court judge has already denied a request from the Franken campaign to force Hennepin officials to count 461 absentee ballots that had been set aside and not counted due to allegedly non-matching signatures.  Note that Secretary Ritchie has previously indicated that the state canvassing board would not reconsider rejected absentee ballots as part of the impending recount.  Moritz is obtaining documents.  Update:  The new Franken suit comes after officials found that the ballot signature of a nursing home resident who had had a stroke did not match the signature officials had on file.  The woman says the stroke made it difficult for her to sign her name the same way she had in the past.  The cited article explains that some counties have complied with Franken's request for the names of absentee voters, and Franken hopes the lawsuit in Ramsey County will, if successful, cause other counties to follow suit.

MN Senate race - those 32 ballots were not left in a car for days

Nov. 13 - Cindy Reichert, Minneapolis Elections Director, explains in this report what really happened with the 32 absentee ballots that were allegedly left in a car for several days.  The story has been repeated in many media outlets and was mentioned on this site as well, though the story that we cited also mentioned that the Coleman campaign had accepted assurances from officials that the ballots had always been secure.  Apparently, the ballots were only in a car to be delivered to precincts on election night, a standard practice in many states that count paper ballots, including absentees, in-precinct.  Some of the precincts closed before drivers, election judges acting in accordance with state law, arrived with the absentee ballot deliveries.  The ballots were driven back to a city facility and kept secure until they were counted several days later.  Minnesota's ballot security and chain of custody procedures are being closely watched in this Senate race. 

OH-15: First lawsuit challenging provisional ballots in close House race

Nov. 13 - Supporters of Steve Stivers have sued in the Ohio Supreme Court to have provisional ballots thrown out in his race against Mary Jo Kilroy if they contain the voter's signature but not the voter's printed name.  They allege that both are required for the ballot to be eligible for counting. [Read the Complaint].  See here for a 2006 analysis of Ohio's provisional ballot statute.  See the EL@M case page for more information and additional court documents.   

Editor's note: This post originally stated that Stivers himself was suing to throw out the ballots. Plaintiffs are actually two voters.

MN Senate Race: 11/12 Update

Nov. 12 - Minnesota Secretary of State Mark Ritchie, by statute a member of the state canvassing board that will certify the official results of the Coleman-Franken US Senate race, will appoint the four other members of the board today. Here's more news.

OH-15: Vote difference either 393 or 149

Nov. 12 - In a Dispatch article on Nov. 7, journalist Barbara Carmen has the vote difference at almost 400 votes after learning of memory cards that had accidentally been counted twice. However, in a story from today, Nov. 12, she sets the vote difference at 149 like many other news outlets who are likely taking this number from the initial count reported on the Secretary of State website. In a Dispatch blog post yesterday, Nov. 11, reporter James Nash had the vote difference at 393. A local blogger tried to figure out the correct vote count as of right now but the Franklin County Board of Elections would not comment. Franklin County voters have until 8 p.m. Friday, Nov. 14 to correct deficiencies with their absentee or provisional ballots and the ballots will be counted Saturday Nov. 15. See report here.


New TX Lawsuit re: Provisionals

Nov. 12 - Representatives of the Texas Democratic Party have sued a Houston election official in federal court for allegedly discounting provisional ballots illegally, delaying counting, and denying observers access to the process.  Two judicial races hang in the balance.  [Read the ComplaintApplication for Injunctive Relief].  See EL@M case page for more information and court documents.   

Tight Races Update

Nov. 12 - Here is an updated chart of the closest races across the US.  The numbers in the Missouri presidential race and the Ohio and California house races have changed.

MN Senate Race: 11/11 Update

Nov. 11 - There is not much news today on the Minnesota Senate race, as counties completed and certified their counts yesterday.  Coleman's lead remains at 204.  However, counties are now conducing post-election audits of their vote totals that aim to check the accuracy of the voting equipment, although they are designed so that they will usually not change the result of an election.  Also, here is some information identifying where Franken has picked up his extra votes.  The actual recount begins next week.  Both parties have agreed on some chain of custody rules that they would like to see followed and asked the Secretary of State to issue an order making them enforceable (see more info here and here, q. 37).

'08 Tight Races

Nov. 11 - Here is a chart of important races across the country that are close.  It also includes provisional voting and automatic recount information to permit a quick estimation of the probability of a recount.  We will continue to update this chart on a daily basis.

MN Senate Race: 11/10 Update

Nov. 10 - MN Senate Race:  11/10 Update. The latest vote count in the Minnesota US Senate race between Norm Coleman and Al Franken puts Coleman ahead by only 204 votes, down from the initial count of 725.  These results should be certified at the local level today, although the final certification will not occur until next week.  Here is more news concerning the race.

Food table partly to blame for long lines at Missouri polling place

Nov. 10 - Many voters waited from 2 to 6 hours because there was not enough space at a St. Louis County polling place. Poll workers had set up a break area with a large table and chairs instead of using the limited space to set up all of the touch screen machines and paper ballot privacy stations that had been allocated to the precinct. Poll workers endure a very long day and surely need a place to have meals and take breaks. However, better management of the situation could have resulted in shorter waits for voters and lower incidence of voters leaving without voting (it is not known if any voters left this particular precinct without voting but that is the expectation when lines are very long). Late in the afternoon, the mayor of Velda City became aware that there were additional machines that could be used and offered other rooms in the building to accommodate them. They were set up at about 5:30 p.m. but waiting times remained long.

GA Ballots Thrown Out on Citizenship Grounds

Nov. 10 - A number of Georgia provisional ballots were discounted after officials were unable to verify the citizenship status of the voters who cast them.  Before the election, a federal judge ordered that individuals be required to cast these provisional ballots when the statewide voter registration database indicated, based on a matching program with the state motor vehicles database and other databases, that they were not yet citizens (see case page here).

WI AG Appeals Matching Lawsuit

Nov. 10 - Wisconsin Attorney General J.B. Van Hollen, as promised, has filed an appeal of his lawsuit demanding that the state's chief election authority go back and perform database matches to confirm the personal information of voters who submitted voter registration applications before the state's database matching programs went online.  Moritz is obtaining documents (see case page here).

Ballot chain of custody an issue in Minnesota Senate race

Nov. 10 - This weekend, Coleman was denied a request to exclude 32 ballots that had been kept in an election worker's car for several days.  He has since accepted the assurances of the city of Minneapolis officials that the ballots were never unaccounted for.  Additionally, the campaigns are negotiating "neutral standards for ballot security" but, it is not clear what affect any agreement between the candidates will have on election officials' actions during the counting and recounting of ballots. 

Minnesota county declines to reconsider rejected absentees; may review in the recount

Nov. 10 - Hennepin County, Minnesota's largest, rejected 461 absentee ballots during the normal validation and counting process.  County officials cited signature mismatches and registration defects.  Franken's lawyer asked the county to reconsider and the county declined.  County canvassing board members did say that the ballots could be "dealt with" during the recount.  Absentee ballots are proving to be an area of dispute in several states as defective registration issues have bled over into the validation process for absentees.  In a race this close, as yet uncounted ballots, such as rejected absentees, overvotes, and undervotes, will receive very close scrutiny.   

OH-15: No change and no numbers on outstanding ballots in the district

Nov. 10 - As the processing of the remaining absentee ballots and all of the provisional ballots continues in the 15th district, there appears to be nothing to do but wait.  Stivers still leads by only 393 votes.  Franklin County has the most uncounted ballots of the three counties in the district with 27,306 provisional and 27,235 absentee outstanding according to a secretary of state report.  It is not clear from any source, however, how many of these ballots are from the 15th district.  Franklin County's website only reports on categories of ballots that have already been counted.  Notably, the county reports 210 overvotes and 16,837 undervotes which may get a second look during a recount.  Union County and Madison County are wholly within the 15th district.  Madison has 674 provisional ballots and 240 absentee ballots outstanding.  Union has 720 provisional ballots and 326 absentee ballots outstanding.

First Lawsuit over Minnesota U.S. Senate Result

Nov. 8 - AP reports that a state judge has rejected, for lack of jurisdiction, Republican incumbent Coleman's effort to disqualify absentee ballots for failing to be secured in sealed containers.

Minnesota SoS aims to end recount by Dec. 19

Nov. 7 - Minnesota Public Radio (MPR) has posted the Secretary of State Mark Ritchie' s press release containing his plans for the upcoming recount.  MPR also has set up a helpful page of all its stories relating to the recount.  Meanwhile, AP has conducted an analysis of ballots for which no vote in the Senate race was recorded, and candidate Coleman finds some of the adjustments in the vote tallies to be suspicious.

OH-15: Some votes counted twice; corrected numbers increase Stivers lead

Nov. 7 - In the OH-15 congressional district, numbers are changing as Franklin County heads toward its official count.  Some memory cards were initially read twice.  Correcting that error increased Steve Stivers' lead by several hundred votes meaning the final tally will be closer than anyone thought once the remaining absentee ballots and all of the provisional ballots are counted.  A last-minute directive from Secretary Brunner before the election ordered counties to notify absentee voters of any errors with their ballot and to allow in-person correction at the Board office through Nov. 14.

MN Senate race: County error gave Franken 100 fewer votes than he received

Nov. 7 - Coleman now leads Franken by 236 votes.  One precinct had accidentally reported 24 votes for Franken instead of 124.  It is typical to discover errors like this between the unofficial count and the official count.  The vote difference is now .011%, well below the .5% margin that triggers an automatic recount.

Virginia military absentee ballots case update

Nov. 7 - EL@M is watching for action in McCain-Palin 2008 v. Cunningham, a case in which the McCain campaign sought to require Virginia election officials to accept late absentee ballots from military voters.  The federal judge hearing the case rejected a case brought by the NAACP before the election asking to extend voting hours in Virgina because he did not think it was the court's place to decide such a matter.  Defendant's brief was due yesterday and plaintiff's reply is due today.  An election day order required the state board of elections to have local officials retain military ballots and data about their issuance and arrival.  EL@M will post updates to the case page

Alaska Senate race outcome will not be known until Nov. 14

Nov. 7 - The outcome of the Alaska Senate race between Stevens and Begich will not be known until Nov. 14 at the earliest.  Alaska law provides that absentee ballots must be postmarked by election day and received by the 10th day after the election which is Nov. 14 this year.  AS 15.20.081.  In addition to these, early in-person and provisional ballots also remain uncounted for a total of about 70,000 outstanding ballots.

OH-15 depends on provisional & other uncounted ballots

Nov. 6 - According to this Dispatch report, the Republican candidate's lead in ballots counted so far has narrowed to 146.  In addition to an unknown number of provisional and absentee ballots that remain to be counted, there are also an estimated 5000 absentee ballots with problems that voters are entitled to fix by Nov. 14.  Meanwhile, a separate Dispatch article discusses the possibility that as many as 35,000 Franklin County voters may have been erroneously required to cast provisional rather than regular ballots.  A large part of Franklin County lies within the 15th congressional district, so that these ballots potentially could affect its outcome.  Also, a legal dispute over the procedures for counting provisional and other questionable ballots is pending in federal district court, as a result of a consolidation Tuesday of two separate lawsuits:  NEOCH v. Blackwell and ORP v. Brunner.  It took weeks to resolve the 2006 election over this congressional district, and the fight this year may be similarly protracted--although the initial margin of victory is ten times smaller this year than last time.

MN: Allegations that Coleman staffer was translating at polls and advising voters to vote for Coleman

Nov. 6 - A paid Coleman staffer is alleged to have told Somali voters to vote for Norm Coleman.  The Coleman campaign says the person did nothing wrong and was not acting in his capacity as a Coleman staffer on election day.  A Somali orgnaization reports that it also received complaints that translators were advocating voting for Franken.  Issues arose as well in Colorado on Tuesday when fewer vote centers than expected had Spanish translators available to help voters in Weld County.  Language barriers continue to be a problem where improvement has been attempted but more attention is needed to develop a successful solution.

Close races update - NC goes for Obama, OR Senate race called, 55,000 votes to be counted in Alaska Senate race

Nov. 6 - The AP has called the North Carolina race for Obama after determining there are not enough provisional ballots or other uncounted ballots remaining for McCain to close the gap.

Merkley has unseated incumbent Smith in the Oregon Senate race.

55,000 votes remain to be counted in the Alaska Senate race between Stevens and Begich.

The vote gap is narrowing between Franken and Coleman in Minnesota's Senate race and OH-15's House race between Stivers and Kilroy. 

A run-off election has been scheduled in Georgia for the Senate race between Chambliss and Martin.

MN Senate race vote difference down to 236 votes

Nov. 6 - The counting continues and the frequently-changing vote difference is down to 236 votes with Coleman leading Franken, according to this report.  An automatic recount will take place and, depending on the outcome of that, litigation could follow.

Significant Unresolved Elections

Nov. 5 - Election Law @ Moritz, as it did two years ago with its Recount Roundup feature, will monitor developments this year concerning noteworthy elections that remain "too close to call."  Today, we are already looking into the U.S. Senate race in Minnesota, as our Director Edward Foley discusses in some preliminary observations.  We will similarly investigate the U.S. Senate races in Oregon and Alaska, as well as the few states (including North Carolina) whose Electoral College votes remain unresolved.  We will post information and analysis on these unresolved elections as circumstances warrant.

OH-15 congressional race too close to call; may be related to Franklin County poll book mistake

Nov. 5 - Steve Stivers is currently leading Mary Jo Kilroy by 321 votes in the OH-15 congressional race according to data on the Franklin County Board of Elections website. Several radio stations this morning stated that Stivers had won the race 48% to 44%. This was likely based on numbers reported earlier today on the Secretary of State’s website which have since been updated with the correct Franklin County numbers. Several types of ballots remain uncounted that may affect this race: 1) mail-in absentee ballots that are still being received (these had to be post-marked by Monday), 2) paper ballots cast on election day by voters who chose this option over the touchscreen machines, and 3) provisional ballots which require additional verification before they are counted. Franklin County is much larger than Union and Madison counties and therefore probably has more uncounted ballots. Deputy Director Matt Damschroeder said today that some voters were mistakenly flagged with codes of “3” and “prov” in the poll books. These codes instruct poll workers to have these voters cast provisional ballots because of defects in their registration status. At some point in the day, having realized the mistake, the Board sent an automated call to all poll workers instructing them to allow these “notation 3” voters to cast regular ballots. Damschroeder also said these voters’ provisional ballots will be counted.  Read the most recent update here from The Columbus Dispatch.


Senate race in MN: the recount process

Nov. 5 - Everybody is talking about the possibility of a recount and/or election contest occurring in the close Minnesota US Senate race between Norm Coleman (R) and Al Franken (D). Coleman and Franken are separated by approximately 500 votes as of 5:45 p.m. today. Here’s how the recount process would work...

Georgia poll workers not giving out provisional ballots unless voters have ID

Nov. 4 - One Atlanta precinct lost all voting machines and ran out of printed ballots and paper provisional ballot.  Poll workers at a College Park precinct were not giving out provisional ballots to voters who did not have a government ID.  Election Protection is working with government officials to resolve the situation.

Still No Word on VA NAACP Appeal

Nov. 4 - As of 4:00 pm, there are no news stories on whether there has been an appeal of a Virginia District Court's denial of an NAACP request to extend polling hours and order paper ballots in the polls.  The court docket also shows no filing of an appeal, though other, minor filings have occured today in the case.

Emergency paper ballots used because of broken NJ machines

Nov. 4 - Broken machines in Willingboro, New Jersey, have led to disruptions in voting. Voters at Pennypacker Park Elemenary School have been given emergency paper ballots as a mechanic works on the machines.

Order Issued in VA Military Ballot Case

Nov. 4 - A temporary restraining order has been issued by Judge Williams on the McCain UOCAVA case.  Under this order, all absentee ballots received after 7 p.m. will be retained by local election officials with appropriate documentation.  Both sides are given an opportunity to respond to this order and a  hearing will be held on November 10th.  Judge Williams is preserving the option of accepting late military ballots until a hearing can be held on this matter on November 10th. There is no final decision in this case at this time.

New map launched to track extension of polling hours

Nov. 4 - See this map for info on states where polling hours have been extended.  We will be updating it all through the evening.

So far, North Carolina has extended hours and Election Protection is considering suing Virginia officials to extend hours if the State Board of Elections does not act on its own to extend them.

No New News on Indiana Voter Registration Suit

Nov. 4 - No new filings have occurred in Brown v. Rokita, a case attempting to force Indiana election officials to process voter registrations that were submitted on obsolete forms.  Officials have claimed that the law prohibits them from processing registrations that are submitted on old forms that were issued by the state for prior elections.

Conflicting reports in Ohio

Nov. 4 - Election Protection is reporting several problems in Cuyahoga County (Cleveland) and Franklin County (Columbus).  After voting from same address for years, some voters have suddenly disappeared from the list at poll. Other voters received a voter registration card/notice of registration and precinct, as recently as this fall and yet are not on the poll registry. Voters have also reported that they are on the statewide database but not on the poll registry.

The Cleveland Plain Dealer quoted the director of Cuyahoga County board of elections as having "no major issues whatsoever." The Columbus Dispatch reports heavy turnout but 'brisk and orderly' voting.

Federal observers sent to Georgia to monitor controversy over college student registrations

Nov. 4 - Election Protection is working in Bleckley County, Georgia to ensure that students at Middle Georgia College are able to vote today after voting officials apparently extended, then suddenly withdrew, a deadline that would have ensured students were registered in time to use a regular ballot.

The controversy stems from a registration drive by the Obama campaign at the college, where 90% of the students are African-American. About 500 students were registered prior to the deadline, but the registrar then sent a letter to 370 of the students asking for proof of residence within three days. Most of these students did not even receive the letter until after that deadline had passed.

MO: Potential Disenfranchisement of Voters Who Have Moved

Nov. 4 - Election Protection is reporting that certain voters who had recently moved were promised, then later denied, a hearing to determine their eligibility to vote.

GMU email hoax email tracked

Nov. 4 - George Mason University is now working with the FBI to identify who sent a forged e-mail to 35,000 students, faculty, staff indicating that Election Day would be rescheduled for November 5th.  “Chris Lundberg, chief technology officer at wiredforchange.com, confirmed that the hoax e-mail was routed through its servers to GMU from a computer located in Germany.”  See here.

New Suit in Philadelphia

Nov. 4 - It is being reported that the Philadephia Branch of the NAACP is filing a lawsuit against Philadelphia County, seeking a ruling requiring election officials to count emergency paper ballots cast today at the close of the polls.  Election officials have stated that they do not plan to count these emergency ballots until later in the week.  EL@M will provide additional information as it becomes available. 

Extended polling hours in Illinois

Nov. 4 - Three polling areas in Cook County will remain open an hour past the scheduled 7 p.m. closing time.  The polling places opened late because election judges did not show up. 

Group Wants Extension for PA Absentee Ballots

Nov. 4 - The Committee of Seventy, an election-watchdog group, asked Pennsylvania election officials yesterday (11/3) to provide an eight-day extension for voters to submit absentee ballots.  The group says that they have received more than 100 complaints from voters who have applied for absentee ballots but did not receive them in time to mark them and send them back to election officials.  Pennsylvania Secretary of the Commonwealth, Pedro Cortes, has said that he lacks the authority to grant the request absent a court order.   

Franklin County Board of Elections Chairman sends text message to officials to clarify voter identification rule

Nov. 4 - Franklin County Board of Elections sent a "blast" (mass text message) to the cell phones of all presiding judges to clarify the rule regarding driver's license with voter's old addresses.  After hearing complaints this morning that some voters were wrongly being asked to vote provisionally,  Chairman Bill Anthony reminded election judges that if voters have a valid driver's license and their address in the book at the polling place is correct, the voters should receive a standard ballot. That remains true even if the driver's licenses show an old address.  

Judge Denies Philly Vote Counting Suit

Nov. 4 - A Philadelphia judge has denied a request by voter rights groups who wanted to force city election officials to count emergency paper ballots after the close of polls today.  The city has said that it proceed with its plans to count all of the paper ballots beginning on Friday. 

CO Common Cause Says Voting OK

Nov. 4 - According to this report, the executive director of Colorado Common Cause says that voting in the state went fine.  However, she did say that some counties had issued a great number of provisional ballots.  In 2006, Colorado had one of the higher provisional voting rates in the nation.

Breaking News: Federal District Court Grants Motion to Consolidate ORP v. Brunner with NEOCH Case.

Nov. 4 - This evening, federal district court judge Algenon Marbley has granted Ohio Secretary of State Jennifer Brunner’s motion to consolidate the case of Ohio Republican Party v. Brunner (ORP), filed last month and amended this morning, with the case of Northeast Ohio Coalition for the Homeless v. Blackwell (NEOCH), filed two years ago. In an oral ruling from the bench, Judge Marbley noted that the as yet unresolved claims in each case seek uniformity in the processes for counting ballots, and that the two cases share common claims of vote dilution and violations of the equal protection clause. A written opinion is expected to follow.

Despite Local Problems, PA Officials Say Voting Was Generally OK

Nov. 4 - Despite some very long lines and a some complaints, election officials said that today's voting went relatively well in Pennsylvania.  The Philadelphia district attorney's office, which responds to election-related complaints, reported far fewer phone calls than during the 2004 presidential election.   

Election Law @ Moritz signing off

Nov. 4 - Indiana’s presidential race has only a 4,000 vote margin currently with 88% of precincts reporting.  It’s too early to know how many absentee and provisional ballots remain uncounted.  EL@M will be monitoring this race in the next day or two.  North Carolina presidential and gubernatorial races are similarly close and we will be watching these in the next couple of days.  Polling hours were extended in at least one North Carolina county.  Missouri’s presidential race is very close as well and the outcome subject to change depending on the outstanding uncounted votes. 

Voting in Florida seems to have gone relatively smoothly, perhaps because 49% of voters had already cast their ballots before polls opened today.  

There are close senate races in Minnesota and Louisiana.  Louisiana’s election in particular might experience some trouble as part of the continuing fallout from Katrina and its displaced electorate. 

Check back for more updates tomorrow. 

Long Lines in VA and PA

Nov. 4 - As many observers expected, long lines are piling up in Virginia and Pennsylvania.  However, it remains to be seen whether the lines are so long that they would substantially impair individuals' ability to vote.

Ohio SoS issues new directive on counting absentee ballots

Nov. 4 - Secretary of State Brunner issued a directive requiring counties to notify voters of deficiencies in their absentee ballot ID envelope.  Voters must be notified by Nov. 10 and allowed 10 days to come into the board office and correct the deficiency.  Election Law @ Moritz fellow Ruth Colker just resolved an issue with her absentee ballot in Franklin County.  Read her account here.  This directive will require notification to other voters in her position.  Dan Takaji has blogged about the directive at Equal Vote.

Paper Ballots Issued in Richmond

Nov. 4 - CNN is reporting that polling places in Richmond have issued paper ballots to voters after voting machines were malfunctioning.

New Voter Suit in Indiana

Nov. 4 - A new lawsuit in Indiana was filed yesterday (11/4) challenging a decision by the Marion County Board of Elections to reject voter registrations that were submitted on "old forms" and allegedly did not contain currently required information.  [Read the Complaint].  See EL@M case page for more information and court documents.

North Carolina NAACP plans to file voter intimidation charges.

Nov. 4 - The president of the North Carolina NAACP said his group plans to file federal and state voter intimidation and suppression charges against a man in North Carolina who displayed a coffin at a polling place with candidate references on it.  See news report here.

Hearing Today in VA Military Ballot Suit

Nov. 4 - A hearing has been set for today (11/4) at 1:30pm on plaintiffs' Motion for Temporary Restraining Order in McCain-Palin 2008 v. Cunningham.  The plaintiffs are trying to force the Virginia Board of Elections to count late-arriving military ballots.  See EL@M case page for more information and court documents. 

Republicans Ejected from Polls

Nov. 4 - The Philadelphia Inquirer is reporting that Republicans have been ejected from six polling places in Philadelphia.  It is unclear from the stories whether the ejected individuals were poll workers or merely observers.  It is also unclear who ejected them.  The story indicates that a "Democrat judge of elections" ejected them, which probably means one of the local trial court judges who under Pennsylvania law assume duty for resolving election day legal disputes.  However, the story could also be referring to actual poll workers, who are sometimes referred to as election judges.

Ohio GOP Amends Absentee Ballot Suit

Nov. 4 - The Ohio Republican Party has amended its lawsuit against Ohio Secretary of State Jennifer Brunner today in federal court in Columbus.  The amended complaint claims that Ohio Secretary of State Brunner has not done enough to ensure that provisional ballots are counted uniformly, and also includes a new claim of "vote dilution" based on facts previously alleged.  See EL@M case page for more information and court documents. 

Ohio voter challenged at polls for multiple reasons

Nov. 4 - A Columbus, Ohio voter showed up to vote and was told his registration had been challenged.  He was given three possible reasons for the challenge: 1) that a mailing sent to him was returned as undeliverable, 2) that he signed the registration form outside the box on the form or 3) that his address on his Ohio driver's license didn't match the address on his registration form.  Ohio's voter ID law does not require that an Ohio driver's license contain the voter's current address. The vote was able to cast a regular ballot, but only after going home to retrieve a form of identification with his current address. 

Voting in VA, NJ Reportedly Okay

Nov. 4 - The Philadelphia Inquirer reports that voting, though not perfect, is proceeding normally.

How is Voting Going Nationwide?

Nov. 4 - NPR has produced this helpful map.

Most Voting Going Smoothly

Nov. 4 - According to CQ Politics, most voting is going smoothly, including in Pennsylvania and Virginia.

Brunner Tries to Consolidate Provisional Ballot Cases

Nov. 4 - Ohio Secretary of State has filed a motion to consolidate the Ohio Republican Party's provisional ballot suit with NEOCH v. Blackwell, another suit concerning provisionals that had previously been brought by a group advocating for the rights of homeless persons.  Like the earlier suit that was resolved by this consent order, the Republican's suit claims that that provisional ballot rules are unacceptably vague.

Soggy Ballots in VA, NC

Nov. 4 - The rainy weather on the East Coast is making an electoral "splash." According to a number of reports, optical scanners on voting machines in a several North Carolina and Virginia polling precincts are having a difficult time processing soggy ballots. In some instances, the moist ballots are jamming up the machines altogether. Apparently, rainwater from voters' clothing has been dripping onto ballots while voters are casting their votes. Officials from the affected areas have stated that all wet ballots will be set aside and counted upon drying. There are reports that paper towels are being used to mop up the rain-soaked ballots while local election officials are working fast to ensure the speedy repair of jammed voting machines.

Colorado Spanish-speaking voters protest the lack of bilingual pollworkers at vote centers

Nov. 4 - Spanish-speaking voters are protesting today over too few bilingual poll workers at voting centers in Weld County Colorado.  The voters allege that of the 11 vote centers in the city, only 2 are staffed with bilingual poll workers and both require a vehicle to reach them.  County officials assured non-profit groups before the election that 5 of the vote centers would be staffed with bilingual workers. 

New York college students not in pollbooks and not given affidavit ballots

Nov. 4 - Students at SUNY Albany are showing up to vote and finding they are not in the pollbooks. Poll workers are apparently asking them to call the baord fo elections instead fo letting them cast affidavit ballots.  Students are having trouble getting through to the election board to clear up their registration status.  See the report here.

GOP Lawsuit in New Hampshire

Nov. 4 - It is being reported that the New Hampshire Republican State Committee is filing a lawsuit against the New Hampshire Secretary of State, William Gardner, claiming that Republican election observers are being kept away from new registration tables. EL@M will provide updates as additional information becomes available.  UPDATE: The lawsuit was filed before noon today and arguments were made in front of Hillsborough County Superior Court Gillian Abramson.

Conflicting Reports on VA, PA

Nov. 4 - Conflicting reports keep issuing from Virginia and Pennsylvania, where voting may or may not be going well.  On the one hand, Election Protection claims that there are major problems that could disenfranchise thousands of voters in each state.  On the other hand, other reports say that nothing is occurring beyond the ordinary garden-variety polling place snafus.

VA Polling Extension/Paper Ballot Hearing Today

Nov. 3 - Today a federal judge will hear the NAACP's suit against Virginia election officials to extend polling hours and provide for paper ballots in the polling place.  Check back for more updates.

Dan Tokaji Blogging Tomorrow

Nov. 3 - Moritz Associate Director Daniel Tokaji will be blogging today and tomorrow here.  You can also access his blog on the right side of our front page.

Columbus, Ohio elections board did not extend early voting hours this weekend

Nov. 3 - Elections board members in Franklin County, where Columbus sits, were unable to extend voting hours at the county's early vote center because they lacked a quorum.  See the Dispatch story here.  Republican board members Michael E. Colley and Douglas J. Preisse did not attend two meetings this weekend where extending hours would have been discussed.  Voting hours were 1 p.m. to 5 p.m. on Sunday and voters were still in line at 8 p.m.

Virginia to Voters: Bring Chairs & Umbrellas

Nov. 3 - According to this report from the Washington Post, "State officials are asking voters to bring folding chairs and umbrellas to the polls Tuesday."  Meanwhile, Virginia's election officials await the result of today's federal-court hearing in Viriginia NAACP v. Kaine.

Sequoia failed to deliver 18,000 absentee ballots to Colorado

Nov. 3 - Sequoia insisted to Denver County officials that it had shipped all of the absentee ballots the county ordered, but county officials recently discovered that the company failed to ship 18,000 ballots.  See the Wired news story here.  At least one voter did not receive his ballot, after twice requesting one, until it was too late to cast it.  The man had already left town by the time the ballot arrived at his house. 

BMV's experiencing system disruptions today

Nov. 3 - BMV’s across the country may be experiencing a badly timed system disruption today which will prevent people from obtaining state ID’s or driver’s licenses. Because of a problem with the National Drivers Registry, Ohio BMV computers are currently offline after an earlier disruption lasting from 10:30 a.m. until 1:00 p.m. An employee with the Ohio BMV said they are working on the problem but there is no estimated time of completion. In Ohio, voters can bring ID such as a government document with their name and address to the polls to vote but, other states, such as Indiana, require a photo ID issued by the state or federal government to vote.

McCain Sues in VA to Count Late Military Votes

Nov. 3 - The McCain campaign has sued in Virginia to force the state to count military votes that arrive after election day.  The campaign wants these ballots to count so long as they are received by officials no later than November 14.  Moritz is obtaining documents. [Read the Complaint].  See the EL@M case page for more information and additional documents. 

Litigation Status Report

Nov. 3 - Much has stayed the same since our last Litigation Status Report (Friday, October 31), with three exceptions. First, the NAACP has renewed efforts in Virginia to extend voting hours and obtain paper ballots at polling places. Second, McCain has sued in Virginia to count late-arriving military ballots. Third, the Wisconsin Attorney General announced he will not appeal until after the election the suit that he brought against the state’s chief election authority to force it to match the information on incoming voter registration applications. Most remaining cases are still awaiting hearing.

Indiana court bars challenges based on foreclosures and evictions

Nov. 3 - An Indiana court today issued an order barring challenges based on foreclosure and eviction notices.  A Republican official had indicated a possible intention to make voters on foreclosure lists vote provisionally.  See the news story here.  This case is similar to one brought in Michigan last month.  In that case, the two parties agreed not to use foreclosure lists for challenges.

VA Judge Says No Extensions, Paper Ballots

Nov. 3 - A federal judge in Virginia has rejected an NAACP request to extend tomorrow's voting hours and order paper ballots in the polling place.

Florida Challenge Suit Resolved

Nov. 3 - Florida Dems' suit against the state GOP to protect voters from election day challenges petered out today, after Republican leaders signed sworn affidavits that they had no intention on initiating mass challenges of voters to whom the post office was unable to deliver campaign mailings.

Indiana SCt Permits Absentees to be Challenged

Nov. 3 - The Indiana Supreme Court has upheld a lower court preliminary injunction that prevents Marion County (Indianapolis) election officials from commingling absentee ballots before they can be challenged.  The Supreme Court will now hear the case on its merits.

Virginia NAACP says it's ready to go back to court

Nov. 3 - After losing its request for relief this afternoon, according to this report in the Washington Post, the Virginia NAACP announced that it is prepared to go back to court tomorrow (Election Day) if lines at the polls are too long.  Presumably, it would renew its request, made previously in its pending case, for the court to order emergency back-up paper ballots and/or an extension of polling hours.  Presumably, this statement means that the NAACP has decided not to attempt any appeal of today's ruling in the Fourth Circuit.

Colorado Secretary of State ordered again to stop purging voters

Nov. 1 - Colorado Secretary of State  Mike Coffman has been ordered once more to stop purging voters.  On Wednesday, the Secretary was ordered to restore voters to the rolls but he removed more voters after that order.  Wednesday's settlement requires the purged voters to still cast a provisional ballot but, those ballots will enjoy a presumption of validity, and may only be discounted by clear and convincing evidence of ineligibility.  See Major Pending Cases case page here, Lawsuit Tracker page here.


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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