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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

The Work Ahead

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April 26, 2005

Now that six comparatively quiet months have passed since the frenzied final week of the 2004 election, this seems an opportune moment to reflect on what we have learned from last November's election, as well as to take stock of how much might remain to be done to capitalize on the experience. Three independent developments last week - namely, the introduction of an election reform bill in the Ohio legislature, the announcement of an initiative campaign to amend the Ohio Constitution, and the abrupt resignation from the federal Election Assistance Commission of its former chairman - are emblematic of the fact that, while some hopeful progress is occurring, much work lies ahead. Otherwise, even the 2008 presidential election will be upon us before we have incorporated our lessons.

After the 2000 election, most states and the federal government made substantial adjustments in their election laws, largely with the hope of reducing the chances that another election would be as controversial as that year's presidential contest had been. Of course, that controversy reflected not only the fact that the outcome was incredibly close, but also the problematic nature of several components of Florida election law. Many states took a lesson from the Florida experience, and by 2004 had improved the mechanics of their voting systems and adopted clearer standards for resolving contested elections. A number of these reforms were facilitated by the Help America Vote Act, which Congress passed in 2002.

Notwithstanding these reforms, only the comfortable margins of victory in most 2004 races prevented a repeat of the 2000 debacle. Indeed, had the poll worker's prayer of "Lord, let this not be a close election" not been answered almost everywhere (with the dramatic exception of the Washington governor's race), any number of vexing legal issues could have arisen to cloud the 2004 outcome. Furthermore, the absence of greater competitiveness in most legislative races is itself a growing concern to the health of our democratic processes. Among other potential problems brought to light by the 2004 election were issues involving: voter registration and identification; the distribution of resources at polling places and the resulting lines at selected polls; the casting and counting of provisional and absentee ballots; mechanisms and timetables for challenging and recounting ballots; and partisan oversight of election systems. In the months since the November election, many of the EL@M Weekly Comments have addressed some facet of these issues.

In this light, the Ohio General Assembly's effort to address many of these issues during its current session therefore is commendable. While it is too early to predict the outcome of this effort, last week the House Elections and Ethics Committee began considering a substitute election reform bill (Sub. H.B. 3) that, if enacted, would represent real progress. Among other things, the bill would permit "no-fault" absentee voting, require that pre-election challenges to voter registration be resolved at least ten days prior to an election, eliminate partisan challengers at the polls on election day (while continuing to permit witnesses to observe the polls), clarify the standards for counting provisional ballots, and mandate that a presidential vote recount be completed six days before the Electoral College meets. While a number of other reforms could also be included, and the particular details of each reform will affect their ultimate value, these are all sensible refinements to current state election law. But it remains up to the Ohio General Assembly to fulfill the potential embodied in this bill.

Meanwhile, last week a private group here in Ohio announced that it would seek to place an initiative measure before the voters next fall containing a package of three constitutional amendments to reform Ohio's election law. If adopted, these amendments would (1) establish a bipartisan legislative redistricting commission, (2) transfer responsibility for administering elections from the Secretary of State to a nine-member state board of elections supervisors, and (3) revise Ohio's most recent campaign finance reform law by, among other things, reducing the maximum allowable contribution from $10,000 per person to $2,000 for contributions to statewide candidates and $1,000 for contributions to General Assembly candidates. The group is led by a former chairman of the Ohio Democratic Party, a former Republican justice of the state supreme court, the president of the Ohio Civil Service Employees Association, and a professor emeritus of political science at OSU. Their efforts mirror similar efforts underway in other states, and each of their proposed amendments are consistent with previous Weekly Comments in which I and others have similarly argued for redistricting reform (see my August 2004 comment and Dale Oesterle's March 2005 comment), for election administration reform (see my February 2005 comment), and for changes in Ohio's most recent campaign finance law (see Donald Tobin's December 2004 comment and Terri Enns' April 2005 comment). Now the question is whether the public will support these important improvements to our processes of democratic governance.

Accordingly, although both the initiative campaign and the Ohio General Assembly's attention to meaningful election reform are encouraging, as of yet they are each unfulfilled. Meanwhile, another development last week was deeply discouraging, serving as an additional reminder of the much unfinished work. Last Friday, Commissioner DeForest Soaries of the U.S. Election Assistance Commission, a Republican appointee whom the other commissioners had elected as the Commission's first chair, announced that he is resigning from the Commission effective this week. Congress created the Election Assistance Commission as part of the Help America Vote Act, and charged it with helping provide guidance concerning the administration of federal elections. Yet in announcing his resignation, Soaries explained to the Associated Press that neither Congress nor the executive branch have shown serious interest in election reform: "All four of us [commissioners] had to work without staff, without offices, without resources. I don't think our sense of personal obligation has been matched by a corresponding sense of commitment to real reform from the federal government."

Given the crucial role of the federal government in bringing uniformity to federal election processes, Congress's disinterest in the area is alarming. Many of the post-2000 state reforms were spurred in no small part by the Help America Vote Act, which Congress worked diligently to enact by 2002 in order to give states time to implement most of its reforms by 2004. Because a similar timetable is important to any pre-2008 reforms (indeed, even the 2002 Act in many respects came too late for states to be able to adopt its hoped-for reforms by 2004), Congress has not much more than another year before the next election cycle will begin to close the window of opportunity for states to reform their election practices until after the 2008 election. Unfortunately, the 109th Congress has yet to show much serious interest in election reform, and former Chairman Soaries' resignation is but one manifestation of this apparent indifference.

The clock is ticking.