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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

Blackwell's Mixed Record So Far

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October 5, 2004

Ohio Secretary of State Ken Blackwell has made a couple of major mistakes in connection with this year's election, for which he has been the subject of well-deserved criticism. First was the outrageous decision – since rescinded, thank goodness – to reject voter registration forms unless submitted on 80-pound paper. Second is the refusal to let international observers witness how pollworkers handle the process on Election Day, a decision criticized in this column last week and, to our knowledge, yet to be revoked.

But not all of Blackwell's decisions are improper. He rightly rejected the idea that first-time voters should be disqualified for failing to check a box indicating that they are U.S. citizens even when they had signed a statement to the same effect. (The Florida Secretary of State, by contrast, takes this hyper-technical and unnecessarily disenfranchising position.) Nor can Blackwell's refusal to put Ralph Nader on the ballot, whether or not ultimately vindicated in court, be condemned as an exercise of partisan maneuvering.

In addition, Blackwell has made a defensible decision not to permit voters who go to the wrong polling places to cast provisional ballots under the new federal Help America Vote Act (HAVA). As explained in a new entry to the e-Book on Election Law, an initial analysis of HAVA's legislative history tends, on balance, to support Blackwell on this issue. While one reasonably could argue that Blackwell should take a position on provisional voting that is more generous than the minimum required by HAVA, it is also reasonable to respond that too generous a policy on provisional voting could be counterproductive.

Election officials will need to quickly determine whether provisional ballots should be counted as valid votes, and this process becomes considerably more complicated if officials need to determine also which of the different races the ballot should be counted for. For example, provisional ballots submitted at the wrong precinct could be counted for all statewide races, but it would be necessary to sort out whether the ballots should count towards U.S. House of Representative races, state legislative races, and many local races and ballot initiatives. Confusion over this sorting-out process, especially given the need for speed, easily could cause errors in tabulating the number of valid provisional votes for the statewide races, including the presidential election. (Human error could fail to mark a ballot as eligible for the presidential race, even as it records the same ballot as eligible for another race.) Although one could make the judgment call the other way, it is plausible to believe it better to limit provisional voting to the single location that corresponds to the voter's current address, rather than opening it up to wherever the voter wishes to go.

This judgment, however, assumes that it is possible to determine definitively, and without difficulty, the correct polling location for each address in the state. Often, the reason that voters go to the wrong polling place is because of redistricting that has moved their address from one precinct to another. Confusion on Election Day about which precinct is the right one for particular voters can wreak havoc and result in disenfranchisement.

Blackwell purports to handle this problem by relying, in part, on a hotline which pollworkers can call to determine the correct precinct for each voter. But Election Day hotlines are notoriously dysfunctional, ringing busy all the time as they are inundated with calls. Instead, Blackwell should insist that pollworkers at each precinct have all the information they need to establish instantly and authoritatively the correct polling location for each address. This could be done, for example, by means of a laptop and CD-ROM containing a searchable database of all addresses of registered voters in the state, with the correct precinct listed for each address along with a "Mapquest"-type set of directions on how to get to the right polling place for that precinct.

Blackwell does say that local boards of elections must supply their pollworkers with accurate maps and street listings for all addresses within the particular precinct for that location. But Blackwell should go further and demand that the pollworkers have the maps and information necessary to send voters to their correct polling places – without having to rely on a hotline – if voters arrive at the wrong one. Moreover, during the time remaining before Election Day, Blackwell should do everything possible to make accessible, including through easily navigable procedures at his web site, information on how to determine the correct polling place for each address. (The media should assist this effort through public service announcements urging voters to verify their correct polling places with their local boards of election.)

This point leads to a broader one. As significant as the decisions that Blackwell already has made regarding this year's election, there will be many more in the days to come. As each occasion arises, Blackwell can substantially improve his overall record by making decisions that make sense in terms of the goals of an electoral process that is accessible to voters, accurate in its count, and open to inspection, so that it can be accepted as fair.