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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's Expanded Absentee Voting Rules: Some Thoughts on Their Impact

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October 3, 2006

Today, October 3, marks the first day of absentee voting in Ohio. While Ohio's new "no excuse" rules were in effect for the primary elections in May, the much higher turnout expected for the current general election season will be the first large-scale test of the impact of these new laws on the election system. With the Governor's office changing, several critical Congressional seats up for grabs, and the election of the entire Ohio House of Representatives as well as one half of the state Senate, turnout will no doubt be significantly higher than for the primary.

Permitting any eligible voter to vote by absentee ballot without requiring the voter to provide a reason has the potential to impact Ohio's elections process in a variety of ways. I anticipate changes in at least three main areas: campaign strategies, voter behavior, and election administration.

Changes in campaign strategies are already apparent. Rather than being able to wait until several weeks before the election, campaigns must appeal to an unknown percentage of the voters who will be casting their votes from now until Election Day. For example, in the Sunday edition of the Columbus Dispatch, supporters of one of the ballot initiatives printed a full page ad which included a special box urging "If you vote Absentee, vote YES on Issue 3." Full page ads have not ordinarily appeared this early in previous elections, especially not with a jingle targeted specifically at absentee voters. In the past, campaigns could predict both the percentage and the types of voters who would be using absentee ballots, based on the list of reasons that made a voter eligible to vote by absentee ballot. For the current election, and most likely several elections into the future, the campaigns will have to guess about who their early ads should target. Campaigns will have to learn which types of advertisement are most effective for persuading which types of voters, those who vote by absentee ballot and those who go to the polls on Election Day.

Get Out The Vote strategies will surely be impacted by the ability of any eligible voter to vote by absentee ballot. An example of this is today's planned rally at The Ohio State University with U.S. Senator John Kerry and others, with shuttles scheduled to take students to the Franklin County Board of Elections to request and cast absentee ballots. In order to plan how properly to deploy their Election Day ground troops, campaigns will have to analyze which demographic groups are likely early voters and which are likely to want to go to the polls.

In addition to the campaigns needing to adjust for the new environment, voters may also adjust their behavior. Those voters who do not feel they will be swayed by late-breaking information may be the group who votes by absentee ballot. Since such voters will not have the same information as those who vote on Election Day, one group of absentee voters may be those who are more committed to a particular party or candidate. Difficulties arise for such persons in situations such as the resignation late last week of Representative Mark Foley in Florida. An analogous situation in Ohio involving a candidate withdrawal after absentee ballots are returned could find those persons most committed to a particular candidate having their votes voided and not counted.

Another group of voters who may turn to absentee ballots are those with a distrust of electronic voting. The Governor of Maryland, following a disastrous primary in some Maryland precincts, has suggested that Maryland voters should vote by absentee ballot due to his concerns about the security of electronic voting. Absentee ballots provide a paper vote, which some voters feel is more secure than even an electronic system with a voter verified paper audit trail. Ohio counts absentee ballots by optical scan machines, so even absentee voters will have to trust electronic machines for some stage of their voting process.

A third group of people who may choose to vote by absentee ballot are those who wish to have Election Day free for election-related activities. While persons working as poll workers were among those previously eligible to vote by absentee ballot, the new system frees up Election Day for participants to assist with GOTV efforts, conduct exit polls, and engage in other more partisan activities that previously would need to be interrupted by going to the polls, which requires time both going to one's home precinct and then waiting in a line.

Election administration itself is impacted in significant ways by the expansion of absentee voting. Absentee ballots require various additional steps by both voters and election workers. For example, Ohio law now requires identification in order to vote, and that rule includes absentee voters. Absentee voters must now provide ID both at the time they request the ballot and when they return the completed ballot, both of which must also be checked by election workers. Election workers must note on the poll list that a voter requested an absentee ballot and must check not only the ballot but also the identification envelope for proper execution. Some of these additional requirements hold the potential for errors by voters, especially the identification requirements, which are new. Some of the errors in marking the ballots would not occur at the polling place, as electronic machines indicate some types of errors to voters before they complete the act of voting. Combined with the possibilities of errors by election workers, the increased number of absentee ballots risks an increased number of persons whose votes will not be counted.

Each absentee ballot requires treatment by hand at several steps of the counting process. Signatures need to be compared, envelopes opened, ballots counted, and poll books marked. Add that to the increased number of provisional ballots expected because of Ohio's plethora of circumstances for which a provisional ballot is required, and election results may be delayed. As of this writing, some county boards of elections have indicated that they are seeking to clarify with the Secretary of State's offices whether any of the steps required for verifying and counting absentee ballots may be completed before Election Day.

Administrative challenges caused by long lines at polling places during the 2004 presidential election provided the main impetus for passing the no excuse absentee rule. Obviously, the more voters who vote by absentee ballot, the fewer people who will be at the polls on Election Day. By reducing the number of people voting on Election Day, the increased use of absentee ballots has the potential to decrease errors by both voters and poll workers at the polling place, as the pressures of long lines increase the likelihood of errors.

The expansion of the number of voters eligible to vote by absentee ballots holds both promise and peril. Until the November election is completely counted, we will not know the full impact, both positive and negative, of this wider use of absentee ballots. Some claim that the process will raise costs and delay counts, as we wait for all absentee ballots to be read by optical scan machines after elections officials complete all of the signature and identification verification. Others, such as Friday's editorial in the Columbus Dispatch, argue that it will increase participation by being more convenient. Still others, such as Maryland's Governor Ehrlich, believe that absentee ballots are more reliable than electronic voting. In any case, this November will provide a first look at how the elections process in Ohio is impacted by the new, more open rules for absentee voting.

One of the intangible impacts of the increased use of absentee balloting is the spreading of voting from a single day to over a month. I have concerns about a subtle drop in the commitment to voting when there is no single day when all members of the community are encouraged to gather and cast their votes in person. Our current system makes this difficult and inconvenient in a number of ways, many of which would be alleviated, at least somewhat, by making Election Day a holiday. From the increased availability of persons to work the polls to the decreased need for people to vote before or after work, a holiday on Election Day could counter some of the issues that led to the expansion of absentee voting. It remains to be seen if broader use of absentee ballots ultimately reduces the percentage of people who vote due to the lack of a single, clear day when we all express our democratic choices, or if the convenience of casting ballots on our own schedule and in our homes increases voter participation.