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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.

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Two Weeks Before Election Day, and Yet...

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October 19, 2004

The presidential election of 2000 served as a wake-up call that not all is well with the electoral system in the United States. In response, many states sought to improve their voting procedures, and Congress passed the Help America Vote Act of 2002 ("HAVA"). HAVA is intended to avoid a replay of some of those problems by creating a new federal agency to assist with election administration, by providing funds to states for updating equipment and improving election procedures, and by creating some minimum standards for states to follow. In response, each state was required to submit a state plan for implementing HAVA's requirements. Ohio's plan is dated June 16, 2003.

And yet, two weeks before a presidential election that is too close to call, in a state that is a key battleground state, the list of unresolved issues is distressingly long. The Secretary of State's expressed desire is to provide to "future generations" an electoral process that "ensures the integrity of their vote and provides them with an election system that is efficient and fair." ("Changing the Election Landscape in the State of Ohio," Ohio State Plan to Implement the Help America Vote Act of 2002, Cover letter from J. Kenneth Blackwell, Ohio Secretary of State). Hopefully, those "future generations" include those persons who will cast votes on November 2, 2004.

The list of unresolved issues in Ohio is staggering, ranging from initial registration issues, continuing through numerous unanswered questions about Election Day procedures, and including potential challenges to the process once the election has taken place. Given the length of time between the alarm bells sounded by the 2000 election and the upcoming 2004 election, many of these issues should have been resolved prior to now. And yet, only last week did a judge rule that federal votes on provisional ballots will be counted if cast in the correct county, not just the correct precinct (The Sandusky County Democratic Party v. J. Kenneth Blackwell, U.S. District Court Northern District of Ohio, 3:04-cv-07582). The suit was in response to a directive on provisional voting that the Secretary of State did not issue until September 16, 2004. Secretary Blackwell stated his intention to appeal the court's ruling, ensuring that election workers will not be able to be trained on the proper handling of provisional ballots until very near the election. In the 2000 election, Ohio voters cast over 100,000 provisional ballots, a number which, if similar in the 2004 election, could easily affect the outcome of the presidency.

In addition to provisional voting issues, questions remain about how to handle incomplete or incorrect voter registration forms, if and how persons will be notified that their registration forms were incomplete, how poll workers will accurately identify those persons who must show identification at the polls, how the specific group of voters who are required to provide identification at the polls will know that they need to bring such identification, how poll workers will know which "other government documents" will suffice as identification, and many other questions.

This list does not include any of the potential issues caused by Ohio's continued reliance on punch card ballots for over 70 percent of the state's voters. Nor does the list touch on potential intimidation issues, long lines that may inconvenience or discourage potential voters, or Ohio's provision for "challengers" from the political parties who may challenge at the polls the eligibility of a voter on grounds of age, residence, or citizenship.

Some of these problems could be solved by increased use of technology. HAVA requires a statewide voter registration list, but Ohio, while having once promised implementation by July, 2004, is not yet able to provide up-to-date registration information from all 88 counties. Such a list would provide voters with a single place to check for whether or not their registration was accepted and to locate their proper polling place. Additionally, poll workers would more easily be able to verify registration information and identify the proper polling location for each voter.

Certainly not all of the problems anticipated for Election Day could be solved by the use of technology. Indeed, not all of the problems that will arise have even been anticipated! However, those specific types of election problems that occurred in the 2000 election and that HAVA was passed to remedy should not be causing election officials and voter advocates to scramble two weeks before the upcoming election. Let us hope that on November 3, the day after the election, every eligible voter is satisfied that her vote was properly cast and will be duly counted and that the outcome of the election reflects the will of the majority of those who voted.