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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

In Praise of Pre-Election Litigation

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September 19, 2006

The 2006 election season has already been a busy one in the courts. There have been lawsuits over voter ID requirements in four states, with courts in two of them issuing injunctions against the enforcement of newly enacted laws and one denying an injunction just last week. Another prominent subject of litigation is voter registration, with state requirements for nonpartisan registration efforts and state list maintenance practices being challenged in several states. There continues to be considerable judicial attention to voting technology as well, based on claims that existing equipment is vulnerable to fraud or that it fails adequately to accommodate people with disabilities.

The question of what role the courts, especially the federal courts, should play in the processes of democracy is a complex and hotly contested one. This comment argues that litigation is an essential means by which to protect voting rights, particularly those of minority groups, from being squelched by an overreaching majority. If brought soon enough, it may prevent problems from occurring and prevent post-election fights like we saw in Florida's 2000 election. Even when pre-election litigation is unsuccessful, it can play a vital role in clarifying the rules of the game for election officials, poll workers, and most importantly voters.

Looking Back to 2004

To understand the constructive role that pre-election litigation can play, it is helpful to look back to the 2004 election season, in which there was a great deal of litigation in the weeks and months leading up to the election. That was particularly true in Ohio. Among the subjects that were the subjects of litigation before the 2004 election season were voting equipment, voter registration, provisional voting, ID requirements, and challenges to voter eligibility. There were also lawsuits filed on or after Election Day seeking to remedy the long lines at the polls, to compel a recount, and to contest the election results.

On the whole, the lawsuits that were brought in Ohio's 2004 election played a constructive role. The litigation over provisional ballots (Sandusky County Democratic Party v. Blackwell) is a prime example. The Democratic Party and the League of Women Voters brought suit weeks before the November 2004 election, to challenge a rule issued by the Secretary of State's office providing that provisional ballots would not be counted if cast in the wrong precinct. The rule also required poll workers to deny a provisional ballot to a voter, based on their on-the-spot determination of whether the voter was eligible to vote in the precinct. The district court found the states' rule to be in conflict with the Help America Vote Act of 2002 ("HAVA") on both counts. The matter ultimately went up to the Sixth Circuit, which reversed the district court on the issue of whether wrong-precinct ballots should be counted but affirmed on voters' right to cast a provisional ballot, if they affirm that they are eligible and registered, even though a poll worker thinks otherwise.

Even though plaintiffs lost on the claim that received the most attention – that wrong-precinct provisional ballots should be counted – the lawsuit still had a beneficial effect. It clarified that voters had a right to receive and cast a provisional ballot if they affirm their eligibility, regardless of whether poll workers agreed. In addition, the publicity surrounding the rulings made the rules of the game clear to everyone, in advance of the election. This assured consistency, at least with respect to wrong-precinct ballots, in the counting of provisional votes by local election officials. It also made clear to voters that they had to be sure of going to the right polling place on Election Day, if they wanted their votes to be counted.

While there's no way of measuring with precision the educative function served by this court order, the high percentage of provisional ballots counted in Ohio's 2004 election (77.9% according to the Secretary of State's web site) suggests that there was some useful effect. Having court rulings on the rules for counting wrong-precinct provisional ballots, in Ohio and several other states, also had the effect of preempting post-election fights over this issue.

The Role of the Federal Courts

Though often overlooked, an important part of the Sixth Circuit's opinion in Sandusky County Democratic Party is its conclusion that voters have a right to bring suit in federal court, if state or local election officials violate rights protected by HAVA. Under a civil rights statute enacted during Reconstruction, people whose federal rights are violated under color of state law have a right to bring suit in federal court. This statute, codified in Title 42, section 1983 of the U.S. Code, is commonly known as "Section 1983." At the time of its enactment, it was designed to ensure that newly freed slaves would have access to the federal courts, where their rights were violated by state and local authorities.

Although we are a long way from Reconstruction, the purposes behind Section 1983 remain vital today, particularly when it comes to the voting process. Access to the federal courts is essential, to provide a relatively neutral and independent forum for resolving election disputes. While no one would pretend that federal judges are uniformly without partisan bias, they are more insulated from political pressures than other institutions of American government. That includes the state courts, in which judges are subject to election and retention elections – and in some states, judges run for election as the Republican or Democratic party candidate. Under these circumstances, it is unreasonable to expect that state judges will make decisions without regard to partisan consequences.

By contrast, federal judges have life tenure, which gives them a measure of independence and insulation from partisan politics that state courts don't always have. The independence that federal courts enjoy is especially vital when it comes to the protection of minority rights, including but not limited to racial minorities.

This Year's Voting Rights Docket

A number of pending cases concern election rules enacted by a state legislative majority which arguably infringe on minority voting rights. Foremost among them are the current battles over state laws that would restrict access to the ballot, to the disadvantage of certain groups.

Perhaps the most significant subject of litigation thus far has been the voter identification requirements which several states have enacted since 2004. In Georgia, the legislature passed a law requiring voters to present government-issued photo ID to have their votes counted. Common Cause and other citizen groups challenged the law, on the ground that it amounted to an unconstitutional poll tax, and a federal court agreed (Common Cause/Georgia v. Billups). The Georgia legislature enacted a modified version of the law earlier this year, which has been enjoined by both the federal court and a state court. A similar photo ID law was stopped by a state court in Missouri. On the other hand, courts have thus far allowed a photo ID law in Indiana and a non-photo ID law in Arizona to go into effect.

The issues presented by the photo ID cases are especially appropriate for judicial resolution. Plaintiffs in these cases allege that the laws passed by a majority of the state legislature have a disproportionate effect on certain groups of voters, including racial minorities, elderly voters, and poor voters. It is in such cases, where the voting rights of a minority are placed at risk by the majority, that judicial intervention is most appropriate.

Similar concerns attend the litigation over voter registration, now going on in a number of states. Federal courts in Florida and Ohio have enjoined rules restricting voter registration drives by nonpartisan organizations such as the League of Women Voters. There has also been a federal court order in the State of Washington, discussed here, concerning a requirement that voters be "matched" against Social Security or driver's license records before being registered (Washington Association of Churches v. Reed).

Voting technology also remains a hot litigation topic, as has been the case since 2001. Concerns regarding the security of electronic voting have previously prompted lawsuits in California, Maryland, and Florida, among other states. Another electronic voting lawsuit is pending in Colorado, according to this report, and a recent report on the security of Diebold voting machines by Princeton researchers will likely fuel these concerns. Meanwhile, disability rights groups in California have brought suit to challenge the accessibility of that state's voting equipment, arguing that it fails to provide the private and independent voting that HAVA mandated. There are serious risks in attempting to rush new equipment into use within weeks of an election. On the other hand, these cases could result in better procedures that will promote election integrity or improve disability access.

There's no telling how these lawsuits will ultimately be resolved. The key point is that pre-election litigation can play an essential role in protecting voting rights, particularly where a majority acts to limit or impede participation by a minority of citizens. If such lawsuits are brought and resolved sufficiently in advance of the election, they may ensure that the fundamental right to vote of all citizens is respected.

Even where pre-election litigation is unsuccessful, it may clarify the rules of play for all participants, including both voters and those responsible for making the election run smoothly. It is far better to resolve election disputes – especially those implicating the right to equal participation – well before Election Day than to clean up the mess afterwards.