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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

Primary Challenges

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April 25, 2006

As in numerous other states, this year's primary election in Ohio, which will occur next week, will be a test of several changes in elections procedures mandated at the federal and state level. Of particular concern are the changes that could affect the interactions between the voter and the poll worker and the voter and voting technology. Extensions permitted under the federal Help America Vote Act (HAVA) through January 1, 2006, have now expired, bringing some new federal overlays to voting procedures in Ohio and elsewhere. In addition, the Ohio General Assembly has recently passed two bills implicating election law: HB 3, which makes significant changes to numerous aspects of state election law, and HB 234, which permits any eligible voter to vote by absentee ballot. All of these changes present the possibility of confusion at the polling place on May 2.

One of HB 3's most controversial changes will require all voters to present ID at the polling place, although for most voters this requirement will not be in effect until after the May primary. Rather, beginning on June 1, Ohio will require ID similar to that which HAVA permits for voters who register by mail (in contrast to new mandates in Georgia and Indiana that limit acceptable ID to photo ID). Thus, in addition to a copy of current and valid photo ID, an Ohio voter may establish her identity by providing a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the elector's name and address.

While this ID requirement does not apply to most voters appearing at the polling place on May 2, a select few voters will be required to present ID at the primary election, and poll workers must be trained with exacting detail to be neither under- nor over-inclusive when demanding ID from voters.

In Ohio, only those persons who registered to vote by mail and did not provide either a driver's license number or the last for digits of the voter's Social Security number are required to provide identification at the polls for the May primary. This requirement is the same as HAVA's requirement for federal elections, and was in place for all voters voting for federal office in 2004, but is now being applied to voters voting for state offices and issues.

The change in Ohio's absentee voting law adopted in HB 234 could also implicate the interface between poll workers and voters. Persons who request an absentee ballot for the May 2 primary must provide with their applications and with the returned ballot one of the kinds of ID that will be required from all voters beginning on June 1. A person who requested an absentee ballot may, however, come to the polling place on Election Day and vote, whether or not the voter has mailed the absentee ballot back to the Board of Elections. The poll book should indicate that the person has requested an absentee ballot, but such persons will be permitted to vote a provisional ballot. The provisional ballot ID requirements in effect for the primary will not require that person to provide ID (unless the person registered by mail without providing the necessary ID). Interestingly, in most cases the absentee ballot is the ballot that would be counted, not the provisional ballot cast on the day of the election. This disparity between being required to provide ID for casting an absentee ballot and yet not being required to provide ID when voting a provisional ballot after casting an absentee ballot leaves ample room for confusion among poll workers and voters.

Throughout the country, changes in voting technology required by HAVA will take full effect for numerous primaries, and provide additional potential for difficulties. In Ohio, about half of the eighty-eight counties will be using new voting technology for the first time, and it is imperative that both poll workers and voters familiarize themselves with how to use the machines to vote. Voters need to take responsibility to learn which of the various types of machines will be used in their polling place and how to use them. Poll workers will need to be familiar enough with the machinery to be able to answer questions about their operation and to solve any technical problems arising on Election Day without compromising the secrecy of the ballot.

An additional change facing voters across the United States is the use of statewide registration lists mandated by HAVA. Once again, the proper training of poll workers is critical to avoid disenfranchising voters who are eligible to vote and appear at the polling place on Election Day.

Provisional ballots are the intended back-up for all disputes arising from ID requirements, registration list discrepancies, and other controversies, and poll workers must be familiar with how to use them. Fourteen different situations will result in use of provisional ballots in Ohio beginning on June 1, and the May primary presents an opportunity to test election officials' readiness to deal with provisional ballots before all of those new uses are in place. Of highest importance is how those provisional ballots are assessed after they are cast, and the intersection between new registration data bases, ID requirements, and the ability of election administrators to properly evaluate the validity of ballots cast provisionally will make the difference between which votes get counted and which don't.

The critical task is for all eligible voters to be able to cast their votes and have those votes be accurately counted. Ohio used over 49,000 poll workers in over 11,000 precincts during the presidential election in 2004. While the May 2006 primary will not require as many people to operate, it remains true that a large number of people will be working the polls on Election Day, and each of them must be able to apply the law accurately. Additionally, a sufficient number of people at each polling place must be able to properly handle whatever voting equipment is being used, and must understand how the statewide voter data base functions.

The upcoming primary only involves a small number of the changes required by HAVA, HB 3, and HB 234, but these changes affect what happens to votes on Election Day. Of highest concern should be that those eligible voters who appear at the polling place should be able to cast their votes and have them counted. New laws and technology should all function in the service of this goal, and both voters and poll workers should take responsibility to be prepared for the changes they will encounter on Election Day.