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

Will the Election System Function Properly This Year?

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September 5, 2006

There are a lot of important competitive races all around the country this year. Focusing on five midwestern states that border the Great Lakes - Ohio, Michigan, Wisconsin, Minnesota, and Illinois - there are Senate and/or gubernatorial races in all of them, most of which are currently projected to be close. These states also have U.S. House of Representative races worth watching.

Election Law @ Moritz has been fortunate to receive a grant from the Joyce Foundation to produce a book-length study of the laws in these five states that concern the voting administration process - what we are tentatively calling From Registration to Recounts. This study will not be complete until the summer of 2007. Meanwhile, for the immediate purpose of this fall's elections, we are asking whether voting administration laws of these states are currently equipped to handle problems that might arise in the context of a close vote in a major race.

To this end, we have identified 50 questions that we think are important to ask of each of these state's voting administration laws. Over the next few weeks, we will be posting on this website our best efforts to answer these questions. In many instances, the relevant law - whether found in statutes, administrative decrees, judicial decisions, or some combination thereof - is not straightforward but rather requires considerable analysis and interpretation. In a few instances, moreover, we have found that a state's laws seem not to provide any answer at all.

Credit for assembling these Questions & Answers goes to the new Website Editor of Election Law @ Moritz, Nathan Cemenska, and a team of research assistants who have been working throughout the summer on this project. Terri Enns has extensively assisted in the preparation and editing of these Questions & Answers. Steve Huefner and Dan Tokaji also have contributed to this project, and they will be especially involved in the larger Joyce study. (Steve is serving as its leader.)

We hope that our readers will find a wealth of useful information in these Questions & Answers, which address the points on which a state's legal system is most likely to be vulnerable in the event of a disputed close election. Consequently, as we begin to "roll out" these Questions & Answers over the next few weeks, it is worth taking a moment to contemplate the big picture about the vulnerabilities that might threaten our election systems.

The Big Picture (as it appears on Labor Day)

The strength of a state's electoral system depends upon much in addition to the state's election laws. The quality of the state's election technology is obviously important, as we have learned over the past few years. Likewise, the performance of the state's poll workers and other election officials is critical to a system's relative success or failure. Finally, the degree of the public's confidence in the state's election system is a key factor, as any problems that occur with the system's technology or personnel become magnified to the extent that the public distrusts the system.

All of these factors interrelate with a state's election laws, as well as with each other, to determine the state's overall ability to handle problems if an important race ends up with a very narrow (and potentially disputable) margin of victory. These interrelationships are a reason why our Election Law @ Moritz team believes that election systems need to be study holistically, from what we call an "ecological" perspective. (Like a biological ecosystem where changes in one part of the food chain can affect all the other parts, for example, developments that occur in one part of a state's electoral system can ripple through the system as a whole.) Nonetheless, for the purpose of this brief commentary, I will address only the legal dimension of a state's election system.

The potential vulnerabilities affecting a state's voting administration laws, as we examine them at the time of the traditional kickoff of the fall campaign season (although we must say that activities seemed to start a bit early this year), can be grouped into five categories:

Voter eligibility.This category, in turn, encompasses several significant subsets: maintenance of voter registration databases, enforcement of voter identification requirements, and the processing of provisional ballots. Each of these topics has been revolutionized in the wake of the Help America Vote Act (HAVA) and remains disturbingly unsettled despite attempts at clarification adopted by state legislatures.

Databases. Here the primary issue concerns the procedures, or lack thereof, for verifying registration information by matching it with other state-administered databases, like motor vehicle records. A lawsuit in the State of Washington challenging the new procedures adopted by that state's legislature in the aftermath of the disastrous 2004 gubernatorial election in that state, indicates the ongoing vulnerabilities that states have on this issue. The federal court in that case has enjoined the state's law requiring a match as a precondition for entry into the voter registration database.

Voter identification. Many readers of this website are already aware of the litigation over new voter identification laws adopted since 2004. Georgia's law has been enjoined, and cases are pending in Arizona, Indiana, and Missouri. But what could prove even more significant is litigation that might occur if voter identification rules are administered unevenly at the polls on election day. Given the complexity of these ID rules in some states, combined with the amateur status of most poll workers (who volunteer for a single day's work out of their sense of civic duty), even a well-designed plan to train these poll workers may not result in an evenhanded administration of these new ID rules. Consequently, litigation attacking allegedly discriminatory enforcement of these rules is not implausible.

Provisional voting. Nor is it farfetched to imagine that we may see litigation over unequal treatment of similarly situated provisional ballots. Indeed, inconsistency in the handling of provisional ballots would likely be related to unevenness in the enforcement of ID requirements. In Ohio, for example, there are now 14 different categories of provisional ballots depending upon the type of ID a voter presents at the polls. It seems overly optimistic to expect that poll workers, when confronted with the task of administering this new categorization scheme while the lines of voters waiting to cast their ballots grows increasingly longer, will be able to enforce the law as the legislature intended. While the legislature may have tried in good faith to specify in advance what to do in all the various circumstances that might arise on election day, the resulting complexity seems a recipe for litigation over how different officials improvised in different ways when they couldn't figure out how to follow the new law in the heat of the moment.

Poll worker errors and other election official misconduct. The possibility of poll worker errors or other administrative mistakes exists not just with respect to the rules concerning voter eligibility. Even more potentially significant is the risk of poll worker error concerning the custody of ballots or vote counting records. The loss of 70 computerized memory cards representing the results from 14 percent of precincts in the May primary election in Cuyahoga County earlier this year, which was only one of many major breakdowns in that county's electoral system during the May primary, illustrates that this scenario is, unfortunately, not unrealistic. The relevant legal question is how the state's law would resolve a dispute concerning such mishandled ballots or vote totals in the event that the outcome of an important race turns on the resolution of this dispute.

Voting technology breakdowns. Likewise, if problems arise with the functioning of voting machines, how will the state's law handle those problems? One particular issue that has emerged as potentially troublesome is the discrepancy that may occur between a machine's electronic record of the ballots cast on that machine and the manual counting of the paper record of these votes. Even if the paper record actually corresponds identically to the electronic records, errors in the manual tallying of the paper records may produce an apparent discrepancy. This situation also appears to have occurred in the context of the May primary in Cuyahoga County. Although Ohio law makes the manual count of the paper records the official result, one can be confident that litigation will ensue if there is a discrepancy that is larger than the margin of victory in a significant race. The likelihood of this litigation being successful increases, moreover, to the extent that the paper records have been mutilated and therefore illegible, as occurred with approximately 10 percent of them in the Cuyahoga County primary.

Absentee/early voting. Although one hopes it goes smoothly, absentee voting presents the greatest risk of fraud, as the folks in the trenches of election administration well know. Now that absentee voting has been liberalized, the risk of fraud is significantly greater. A close election in which evidence of absentee ballot fraud exists will present a challenge to a state's legal system: under what circumstances will the result of an important election be invalidated based on evidence of absentee ballot fraud?

Post-election disputes. As is already apparent, the most important part of a state's law of voting administration concerns the rules and procedures for resolving disputes that may arise in the aftermath of a close election. If a state's law permits these disputes to be resolved in court, what burdens of proof and other evidentiary standards apply? It is quite remarkable how uncertain the law of many states is concerning these procedural issues, yet that is the situation revealed by the litigation over the 2004 gubernatorial election in Washington, as well as examination of the comparable rules in other states. The sad truth is that, if there is post-election litigation this year over which candidate wins a gubernatorial race, it is likely that the court would be required to decide not just the result of the election itself, but what rules govern this judicial determination. Yet a partisan battle over ambiguities in existing election laws, when conducted in the context of a post-election fight to control the governor's mansion, will exacerbate the public's distrust of the state's electoral system.

* * * * *

Perhaps, as a society, we will come to develop "litigation fatigue" in the context of elections. But, at least for the foreseeable future, I doubt it. Candidates, political parties, and other interest groups increasingly see the strategic advantage of filing lawsuits in order to influence the electoral process in ways favorable to their positions. And courts remain willing to enjoin election laws and administrative practices that they see as unlawful and unfair. This year already confirms this truth, and we are only at beginning of the traditional fall campaign season. We are likely to see more lawsuits as we progress into September and October, and should November bring the combustible combination of problems and close results, then we surely will see the particular frenzy of post-election contests over those narrow outcomes. If the electoral systems in our states prove less ready to handle these contests than they should be, perhaps these systems can do a better job preparing for 2008 than they did for 2006.