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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

Federal Courts Should Not Run State Elections

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October 4, 2005

The voting problems of the 2000 and 2004 presidential elections have led many to question the validity of elections in the world's leading democracy, and reform efforts are underway across the country. But one court case in Ohio raises the specter of federal court oversight of the election process, an undemocratic and inappropriate means of fixing the problems with the nation's election system.

Ohio, the scene of so much controversy during the election last November, is now host to what may become the biggest election case since Bush v. Gore . Brought by the League of Women Voters against Secretary of State Kenneth Blackwell, this lawsuit would put Chief Judge James Carr of the federal court in Toledo in charge of election administration in Ohio.

Claiming Ohio's election machinery to be dysfunctional, the League asks Judge Carr to order Blackwell to adopt rules concerning all aspects of running an election: the handling of voter registration forms and absentee ballot requests, the purchasing and deployment of voting machines, the hiring and training of poll workers, the development of voter education materials and polling place information, and much more.

The League also wants Judge Carr to require Blackwell to adopt two procedural systems designed to monitor this new electoral machinery: first, an auditing process whereby counties report their compliance with these rules; and second, a remedial process whereby voters can seek redress if wronged by the system. Moreover, leaving no doubt that the League seeks comprehensive court supervision of the state's electoral apparatus, the lawsuit includes the catch-all request that Judge Carr order Blackwell to do whatever else necessary to "ensure that each county within Ohio conducts efficient, just and fair conduct of elections."

The League's claims are based on the U.S. Constitution. Essentially, the League argues that the Constitution's "equal protection" and "due process" clauses guarantee all American citizens the right that their states operate properly functioning election systems. If successful, the case could be replicated in any other state where election administration is allegedly as deficient as Ohio's.

Although the spotlight shone on Ohio last fall because of its importance to the presidential race, Ohio's ability to handle a close election is generally thought by election experts to be about average among the states. Wisconsin , for example, easily could have caught all the attention: Kerry beat Bush there by under 12,000, and thus if Kerry had beaten Bush in Ohio , the nation's eyes would have turned to the alleged double voting and other irregularities that federal and local prosecutors in Milwaukee are currently investigating.

And witness Washington's problems during that state's gubernatorial election last fall. Those defects, which included mishandled provisional ballots, received less national attention than they deserved: had they affected the presidential election, they could not have been resolved in time. Governor Christine Gregoire's victory was not certified until Dec. 30 - 17 days after the Electoral College was required by Congress to meet to decide the presidency.

Therefore, League of Women Voters v. Blackwell could set the precedent that all matters of election administration in every state are subject to ongoing federal court supervision.

The lawyers for the League clearly understand the national implications of this case. They've brought in some of the nation's leading civil rights organizations and leading law firms - from San Francisco to New York - to present their claims.

Blackwell is asking Judge Carr to dismiss the case as legally unsound, even if all its factual allegations of Ohio's electoral incompetence are true. Judge Carr is expected to rule soon on this request. Whichever way he rules, this case eventually will go to the federal appeals court in Cincinnati, with intervention by the U.S. Supreme Court ultimately necessary should the League prevail.

Although no one could oppose a well-run election system for Ohio, or any other state, it is quite another matter for the federal courts to invoke "equal protection" and "due process" as sufficient authority for assuming responsibility for making sure a state's electoral machinery works properly. These majestic generalities give federal judges no guidance on what specific measures are needed to make an election system work properly.

Even election experts disagree on these details. Take the issue of voter ID, for example. Lately, we have seen sharp public debate among experts on what kind of voter ID regime is necessary to protect the integrity of the electoral process against potential fraud. The League itself opposes the kind of photo ID system proposed recently by the Carter-Baker commission on election reform. But if a federal judge has the authority to order state officials to do whatever is necessary to guarantee the "efficient, just and fair conduct of elections" in the state, as the League's lawsuit asserts, then the federal court can order these officials to adopt the Carter-Baker Commission's photo ID recommendation.

Furthermore, well-run elections cost money. The League's suit would require Ohio to spend substantially more money for poll workers. While the state should invest more in its own democracy, that fiscal decision should come from the state's own elected representatives, not from the unelected federal judiciary. We can remember previous efforts from civil rights lawyers to get the federal courts to order increased state spending on schools, hospitals, prisons, and other public programs. The legacy of that litigation is that the hard choices of taxing and spending must be made by Congress or the states themselves. The federal courts properly lack the power of the purse.

Thus, the federal courts are not the place to fix the problem of poorly run elections. Instead, the solution must come from Congress or state legislatures or, if these representative bodies won't act, the right of citizens to put initiatives directly on the ballot. The initiative process already has been invoked in Ohio , where the voters this November will pass judgment on four different proposals designed to improve the state's electoral process.

Self-correcting democracy instead of court-ordered democracy: the choice is obvious.

Let the League loses its lawsuit in the wake of election reforms demanded by the voters themselves. The citizens of each state can address the problems facing their own election systems without the tutelage of federal courts.