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

Weekly Comment

Let the Sunshine In

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September 28, 2004

Ohio Secretary of State Ken Blackwell has decided that a team of international election observers will not be permitted to watch the voting process on Election Day in this all-important battleground state, according to a Columbus Dispatch report last week. This decision is a big mistake. As it appears more and more likely that there will be controversy and confusion over the administration of the election on November 2, especially regarding the ID and provisional ballot rules that are new this year, it is imperative that the voting process be observed by neutral outsiders who do not have a stake in the outcome of the vote.

In making his decision, Blackwell relies on a provision of Ohio law (Rev. Code § 3501.35) that prohibits everyone except poll workers, voters, and certain partisan “challengers” and “witnesses” from entering polling places to watch what happens there. But Blackwell should invoke instead the separate provision of Ohio law (Rev. Code § 3505.21) that says that he, or local election boards, may designate additional observers to watch the counting of ballots. Although the distribution of ballots to be cast is distinct from the counting of them after they are cast, the count is inherently flawed if voters are denied a provisional ballot when they are entitled to receive one.

The spirit of the watch-the-counting law is to make sure that the process is transparent, so that no one can credibly claim that the election was stolen because the counting was hidden behind closed doors. The purpose of the no-entry-to-polling-places law is something else altogether: it is to prevent last-second campaigning as voters are about to step into the booth. It would be entirely consistent with this purpose to permit neutral observers to watch the administration of the new ID and provisional ballot rules, to see if voters get the ballots they are entitled to.

Moreover, the new ID and provisional ballot rules are the requirements of federal law, which necessarily takes precedence over conflicting state law. The best way to reconcile these new federal requirements with the existing provisions of state law is to say that the Secretary of State has the authority to designate neutral observers to watch how ballots are handed out to voters as well as how they are counted after they are cast. (The actual casting of votes, of course, should remain secret, behind the curtain of the voting booth.)

Also, Blackwell’s decision arguably intrudes onto foreign policy terrain that properly belongs to the federal government rather than the states. The United States government often sends or assists teams of international observers to monitor elections in other countries. Consequently, it is in our national interest to be receptive to international visitors who wish to observe our elections in the same way.

What is more, international observers are most likely to be truly nonpartisan, as they cannot vote in our elections and have no direct stake in the outcome. Ohio law specifically allows representatives of each political party to watch the voting process as “challengers,” who are entitled to claim that specific individuals are ineligible to vote. But having only partisan representatives watch the voting process invites dispute and uncertainty, as the party whose candidate loses has an incentive to cast doubt on the legitimacy of the process, and the winning party’s representatives are hardly credible when they counter that the process went smoothly. Having neutral observers is the best way for the public to know whether the administration of the election was fair.

Indeed, the public’s interest in knowing what happens at polling places on Election Day is so great that the right to monitor the process should be extended not only to a handful of international observers, but to the press, as well as to genuinely non-partisan groups that are forbidden from any partisan activities by federal tax law. If NBC News or The New York Times shows up at Ohio polling places to observe whether the new ID and provisional ballot rules work smoothly in this swing state, are election officials really going to call the police to kick them out? The thought seems preposterous.

But if there is any effort to exclude the press from polling places on Election Day, there should be an immediate First Amendment challenge in response. The interest of the entire electorate nationwide in knowing whether the presidential election in Ohio was fair and reliable must supersede the interest that Ohio has in preventing last-second campaigning at polling places. A 5-4 Supreme Court decision that upheld a narrower Tennessee law, which specifically prohibited campaigning within 100 feet of the polls, is no precedent for a prohibition against the press’s neutral observation of the voting process.

Likewise, there is no reason to keep out voting rights organizations that are inherently disqualified by federal tax law from partisan activities. Since they can’t engage in campaigning, they don’t present the concern that underlies the no-entry-to-polling-places law.

While Ohio undoubtedly has an interest in preventing so many observers that a polling place becomes an unruly circus, that interest can be satisfied by limiting the number of nonpartisan representatives at any single voting place. But the idea of excluding them altogether is misguided and sure to backfire. If neutral groups aren’t able to watch what happens at Ohio polling places this November, and if the initial count is close (as it is expected to be), then we are sure to hear reports that the process was unfair and improper in a myriad of ways. There will be no way to ascertain the accuracy of these charges, and the result of the election will be suspect, a circumstance that nobody can hope for.