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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

Ohio Considers Election Reform - Part II

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May 10, 2005

The Ohio legislature is presently considering a bill (Sub HB 3) that would make changes to various aspects of the state's election system. Last week's comment discussed the provisions of this bill concerning voter eligibility and provisional ballots. This week's comment addresses the areas of absentee voting, recounts and contests, and voter identification.

Absentee Voting

One area in which Sub HB 3 would liberalize voting rules is in absentee voting. Under current Ohio law, absentee voting is only allowed for those who meet one of certain specified qualifications – for example, service in the military, hospitalization, observance of a religious holiday, disability, or absence from the country. Sub HB 3 would eliminate these requirements, allowing anyone to vote by absentee ballot.

Absentee voting is one area in which liberalization doesn't make sense. Mail-in absentee voting is the part of our voting system where there's the greatest opportunity for fraud and other forms of mischief. That's because the anonymity and privacy of the ballot – crucial ingredients of the election system's integrity – are most easily compromised when voters cast absentee ballots. For example, if an absentee ballot is sent to a married couple, it would be possible for one spouse to vote the other's ballot, and then have him or her sign the outer envelope. The possibility for coercion – by spouses, caretakers, or even one's children – exists in a way that it does not in the privacy of the voting booth.

Worse still, no-fault absentee voting raises the possibility of vote-buying schemes. With in-precinct voting, fraud is rare. The privacy and anonymity of the ballot is, in our present system, a strong check on such schemes succeeding. If someone tries to pay me $10 to vote for a particular candidate, they can't verify whether I've actually done so if I've voted at a precinct, given the secrecy of the ballot.

Anonymity can't be protected in the same way with mail-in ballots. A would-be vote buyer can watch me vote and sign the envelope, and then pay me $10 for selecting certain candidates. That vote buyer can even deposit the absentee ballots in the mail himself. While this would violate state law, such schemes would be difficult to detect with a no-fault absentee system.

The motivations behind the proposed move to no-fault absentee voting are undoubtedly admirable. It is presumably designed to encourage voters to vote early, and thereby reduce the lengthy lines that many Ohioans faced on November 2, 2004.

There's a better way to accomplish this objective. Rather than adopting no-fault absentee voting by mail, Ohio should consider in-person early voting. With early voting, as with absentee voting, voters may make their choices prior to election day. The difference is that, with early voting, voters to make their choices in the secrecy of a voting booth, set up at a central location such as the county registrar's office or a public library. This safeguards the anonymity of the ballot in a way that mail-in voting does not.

Mail-in absentee voting will still be necessary for people who truly can't make it to the polls, such as people who are disabled, elderly, or serving overseas in the military. For all other voters, however, in-person early voting is a better way of expanding access while still protecting integrity.

Recounts and Contests

Sub HB 3 would also make significant changes to the statutes regarding recounts and contests. It would raise the base deposit for recount applications from $10 to $50 for each precinct in which a recount is requested. It would also provide for this amount to be adjusted in future years, to keep place with inflation as measured by the Consumer Price Index. While one might quibble with the exact dollar amount, it's reasonable for the state to increase the deposit for recounts and to provide that this amount should keep pace with inflation.

One of the biggest problems that Ohio would have faced in 2004, had the final vote tally been closer, is that the recount and contest process wouldn't have been completed in time for the “safe harbor” date – leading to the possibility of the election being thrown to either the Ohio legislature or to Congress. My colleague Peter Shane has thoroughly described this issue in this post , and I've discussed it in this blog entry. In a nutshell, the problem is that Ohio's present laws wouldn't allow for recounts and contests to be completed by the “safe harbor” date which, by federal statute, is 35 days after the election. In fact, it's very unlikely that this process could be completed by the date the Electoral College meets, which is 41 days after the election.

Included in Sub HB 3 are two provisions that seek to deal with this problem. One would require that “any recount of votes conducted ... for the election of presidential electors shall be completed not later than six days before the time fixed under federal law for the meeting of those presidential electors.” In other words, recounts must be completed by the “safe harbor” date. The other provision eliminates Ohio's contest process for all federal elections, including both presidential and congressional contests. Sub HB 3 provides that such contests shall “be conducted with the applicable provisions of federal law.”

It's not entirely clear what this is referring to, since there's not any analogous federal statute providing for contests. This may refer to the timetable for electoral ballot counting that my colleagues Prof. Shane and Prof. Steve Huefner have described. Yet federal law requires Congress to defer to the states, in cases where there's been a “final determination” of any election contests or controversies by the safe harbor date.

HB's proposed reforms of the recount and contest process appears well-intentioned, but probably won't solve the timing problem. Saying that the recount must conclude by the safe harbor date is a good idea – but that by itself doesn't mean it will happen. The big question is whether there will be enough time, under Ohio law, to complete the recount process and any attendant litigation within 35 days after the presidential election.

Sub HB 3 would amend state law to provide that election boards shall complete their canvass within 21 days after the election. (There's no set date under current law.) A recount may be requested within five days of when the Secretary of State “declare[s]” the election results. RC 3515.02. Even assuming that the Secretary of State declares the election on the earliest possible date, 21 days after the election – and it's not clear that this will actually happen – that would only leave two weeks before the safe harbor date, for recounts and any attendant litigation to be completed.

In the event that the recount is completed by this date, the elimination of the contest process would appear to prevent the election from being contested on any other basis. Under present Ohio law, an election may be contested where irregularities in the election affected enough votes to change or make uncertain the results. There may be cases in which such irregularities occur, but wouldn't be resolved by a recount. Some examples include cases where 1) ineligible voters were found to have voted improperly, 2) provisional ballots were erroneously mixed in with regular ballots and counted, or 3) voters were improperly prevented from voting. If such problems occurred in a presidential election, Sub HB 3 would seem to prevent any remedy – so long as any disputes over the state's recount were completed by the safe harbor date. In the worst-case scenario, this could mean the wrong person sitting in the Oval Office, even though we know that grievous mistakes were made during the course of an election.

How one feels about the elimination of contests may well depend on how one balances the competing values of finality and accuracy. Those who favor finality may welcome such a change, even if it increases the possibility of the “wrong person” being elected President in some future election. On the other hand, those who favor accuracy above all else may balk at such a solution, even if the chances of such a nightmare scenario developing are remote.

Identification Requirements

The Help America Vote Act of 2002 is the first federal law to impose an identification requirement on voters. In particular, HAVA requires voters who registered by mail to present documentation of their identity and address the first time they appear at the polls, unless they provided identifying information with their registration. The law does not apply to those who registered in person. In addition, HAVA doesn't require photo ID. Those who don't have a driver's license, for example, can show a utility bill or government document that includes their name and address.

Bills introduced in Ohio and some other states would go significantly further, imposing a strict photo identification requirement on all voters. SB 36, for example, would extend the ID requirement would extend to those who registered in person, and not just those who registered by mail. In addition, it would require photographic proof of identification. Thus, voters who lack a driver's license would have to obtain some form of photo ID, or lose their right to vote.

The debate over voter ID has by far been the most bitterly partisan fight witnessed since the 2004 election. Republicans argue that it's needed to combat fraud, while Democrats contend that it's a device by which to disenfranchise the most vulnerable voters.

One of the most striking features of the debate has been the factual vacuum in which it's conducted. What is absent is any solid evidence of how many fraudulent votes would actually be stopped by an ID requirement like that embodied in SB 36. We don't know, for example, how many voters actually show up at the polls pretending to be someone they're not – much less how many fraudulent votes would be prevented by imposition of an ID requirement.

Supporters of a strict photo ID requirement have yet to make a credible case that it's warranted. It is essential to keep in mind that, for the individual voter, voting fraud is a high risk/low reward strategy. Voters must sign in at the polls to make sure that their signatures match their registration forms. A voter who pretends to be someone else risks prosecution if he or she is caught, and the state should aggressively prosecute those who engage in such fraud. On the other hand, the rewards for the individual who engages in fraud are meager. The anonymity of the ballot – the fact that outsiders can't confirm who someone voted for at the polls – makes it very difficult to mount any successful scheme of widespread fraud, without bearing an enormous risk. Moreover, there's been no showing that HAVA's existing identification requirements are inadequate.

What we do know is that imposition of an ID requirement would impose a severe burden on many voters, particularly those of low income. One study showed that 6 to 10 percent of voters lack any form of state ID. Seniors, disabled voters, and poor voters are more likely to lack ID.

If the State of Ohio is really serious about combating fraud, imposing an ID requirement is precisely the wrong way to go about it. It will impede access while doing little to promote integrity. Instead, the state should enforce existing law, cracking down on those who actually engage in fraud. It should also maintain limits on “no fault” mail-in absentee voting – the place in the system that's most vulnerable to foul play.

The Bottom Line

Some of the changes contained in the current version of Sub HB 3 are commendable. The limits on partisan challengers and the requirement that recounts conclude by the “safe harbor” date are particularly worthy of inclusion. But it would be a bad idea for the legislature to act too hastily in enacting the bill as a whole. Some of Sub HB 3's provisions could do more harm than good in future elections. The legislature would be well advised to err on the side of doing election reform right, rather than doing it quickly.