Election Law @ Moritz


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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

Election Reform: The Process Matters

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March 1, 2005

The Ohio General Assembly is to be commended for identifying election reform as one of its top priorities for its 126th Regular Session. Like many other states, the Ohio General Assembly must bring several key areas of its laws into compliance with the Help America Vote Act of 2002 (HAVA), and additionally hopes to clean up some areas of state election law. Named among the top seven proposals for this session, companion bills House Bill 3 and Senate Bill 3 have begun the committee hearing process in their respective chambers to address these matters.

Election administration relies on players at every level of government, creating a highly complex system. In its statement entitled "Administering Elections in a Nonpartisan Manner," (February 7, 2005), the National Association of Secretaries of State has neatly summarized the complex web of entities responsible for election administration: "We are bound to uphold the election laws that are passed by our state legislatures and by Congress; [w]e must abide by the related rulings of our state and federal courts; [a]nd we are required to work with thousands of local officials to administer elections." Rules are made and implemented at the federal, state, and local levels, by both professionals and volunteers. Some of the administrators are involved in the election process full time, while others are intermittent players. Whenever one level of administrator makes a decision, the effects are felt both up and down the federal-state-local ladder.

Ohio 's bills, as currently drafted, may not be the form most conducive for full discussion of the issues at each level. The bills include changes mandated by HAVA with little room for divergence, changes mandated by HAVA that leave some discretion to the states, and other reforms that arise purely from state law. The HAVA mandates must be enacted before January 1, 2006. Policy discussions behind those mandates have taken place at the federal level, and Ohio state and local administrators have no choice but to adhere to these federal requirements and enact the changes or the state may face federal sanctions. Including those federal mandates in the bills may confuse the policy discussions and may function as a sort of blackmail, requiring members to support other more parochial reforms that need not move on the same time table. For instance, while HAVA imposes specific identification requirements for first-time voters who register by mail, the bills adopt additional identification requirements as a purely state-level policy matter. Committee discussion of identification requirements must carefully parse those requirements that are part of HAVA and those requirements that are proposed by the majority leadership in Ohio. Additionally, a separate identification requirements bill is also being heard in the Senate, further complicating matters.

Another possible barrier to full discussion of the issues is the hearing process itself in the Senate. Although S.B. 3 was introduced by the chair of the Senate State, Local Government, and Veterans Affairs Committee, the bill is being heard in the Rules Committee. This unusual procedure is the first time in recent years that the Rules Committee is hearing testimony on a substantive bill, instead of the committee's usual role of determining the calendar for upcoming sessions. Senate President Bill Harris (R-Ashland) stated, "I want to control the bill. Period." (Gongwer News Service, Volume #74, Report #16, Article #02-Tuesday, January 25, 2005.) While the Rules Committee assignment has the efficiency advantage of including the leadership of both parties, what is lost is the knowledge of and experience with election law held by members of the State, Local Government, and Veterans Affairs Committee and their staff. Additionally, the Rules Committee has no regularly scheduled meeting time for the purpose of taking testimony, unlike other standing committees with predictable meeting times, making it more difficult for concerned parties to provide input.

A third concern about the process of hearing these bills is based on the earlier observation raised about the multi-layered administration of elections. While the General Assembly is considering the companion bills, election-related events are taking place outside the Statehouse. The federal Elections Assistance Commission, established by HAVA to administer election reform, recently held hearings on February 23 here at the Moritz College of Law, as part the Commission's study of the successes and failures of provisional balloting, one subject of the current Ohio legislation. Additionally, legislators from counties currently using touch screen voting devices may attempt to change current state law to relax Ohio 's paper trail requirement for such machines, a law which led Ohio Secretary of State Ken Blackwell to mandate optical scan voting for all counties in Ohio. At the same time, the courts may become involved in voting issues as the Secretary of State's edict requiring counties to purchase optical scan machines has been challenged and the Ohio Attorney General has opined that the Secretary of State lacks the authority to impose such a requirement. Both of these issues-provisional ballots and optical scan voting-are included in the bill and yet legislative decisions may be overcome by events at the local and federal levels.

Ohio is typical in the complexity of its election administration and in its need to reform election laws to comply with HAVA's requirements and to deal with inefficiencies and inconsistencies uncovered by the 2004 presidential election. Each state facing issues of reform should be aware of the complex and multi-layered administration of election laws and should ensure that no procedural roadblocks prevent the thorough and seamless reform of election laws.