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Election Law @ Moritz

Election Law @ Moritz


EL@M Publishes Major New Research

The 2000 presidential contest was a disaster and, since then, disturbing election problems have occurred in Ohio, Colorado, Florida and elsewhere. Will the 2008 presidential election be similarly flawed, or will it go smoothly? To help answer this question, Election Law @ Moritz researched dozens of election law issues over 17 states, categorized the approach of each state, and plugged them into a series of interactive maps and charts.

The project features an interactive web chart and database that allows the user to perform side-by-side comparisons of 44 critical legal questions across 17 key states. The project also allows the user to access the same information in a more visual way be viewing 44 interactive US maps that are color coded to faciliate analysis and discussion. Finally, the project includes an interactive map that allows the user to see our analysis of the states most likely to experience election-related litigation prior to November. All of these maps and charts allow the user to see more detailed factual and legal research, including citations, by clicking through to the heart of our database. The executive summary of the project may be found here.

The states were chosen based on our analysis of whether they might be critical to the result of the presidential election. We divided the issues up into ten groups: Institutional arrangements, voter registration/statewide database, challenges to voter eligibility, provisional voting, early and absentee voting, voting technology, polling place operations, ballot security, emergency preparedness, and post-election processes (counting, recounting and post-election lawsuits).

Here are the key conclusions of our research in each of these areas:

  • Institutional arrangements. Most states could do more to improve the quality and extensiveness of the training required of local election administrators. Many states should also look at the entity that is responsible for counting provisional ballots and consider whether that entity should not include some more representation from the minority political party. The party affiliations of local election officials are easy to determine in some states, and difficult to determine in others. On average, more election administration problems seem to have occurred in states where it is easy to identify political affiliation.
  • Voter registration/statewide database. The federal Help America Vote Act asks that states make some attempt to match the personal information contained on incoming voter registration applications against information contained in external government databases. However, the language of HAVA is vague, and in most cases there is no black-letter state law to clarify the rules. In the absence of any clear guidance, administrations have simply created their own rules, most of which are not contained in any publicly available document. Fortunately, the current practice in many states allows most voters to cast a regular ballot at the polls, even if officials were unable to match their information.
  • Provisional voting. There is no one standard for determining whether a provisional ballot counts, but a host of standards, each of which only applies in certain situations. The most generic standard applies when the voter's name is not on the precinct roster, in which case the ballot will generally count if the voter is registered and eligible. This standard does not vary much across states. However, there is a great degree of interstate variance on the issue of whether officials should count provisional ballots that are cast in the wrong precinct, and also on the issue of whether officials should count provisional ballots when the voter failed to present ID at the polls.
  • Voting technology. Most of the 17 states that will be important to the 2008 presidential result use optical scan technology predominately or exclusively. However, Colorado, Indiana, North Carolina, Nevada, Ohio, Pennsylvania and Virginia use significant numbers of touchscreen voting machines. Colorado, Indiana, Pennsylvania and Virginia do not require touchscreens to be equipped with a paper trail.
  • Polling place operations. The required amount of poll worker training varies widely and, in some states, it is not required at all. States could do more to make their training programs more frequent and more robust.
  • Ballot security. Various states require different forms of ID at the polls, but that is not the real issue. The real issue is the legal consequence of failure to present ID. We found that only Colorado, Missouri and Indiana require physical ID of all voters, force voters without ID to cast a provisional ballot, and refuse to count provisional ballots unless the voter later returns with some form of ID. In the rest of the states, most voters without ID should nevertheless be able to cast a ballot that will count without post-voting follow-up from the voter.
  • Emergency preparedness. Most states have little or no law telling officials what to do if there is a violent natural disaster or other emergency that interferes with the conduct of an election. While this does not mean that officials are not prepared for such occurrences-- they are free to develop their own voluntary preparations-- it does mean that courts would have a very difficult time trying to decide a lawsuit by a candidate who claimed he or she would have won the election but for a disaster that interfered with voting. States should do more to develop clearer rules in this area, to avoid putting a court in the position of having to make up its own rules on an ad hoc basis. Many states also have little or no policy telling officials or the courts what to do in case of a ballot shortage or touchscreen malfunction that interrupts voting.
  • Post-election processes. The deadlines for approving official results and other post-election processes in many states are late enough that there is a risk of bumping up against the federal safeharbor deadline that protects states from having their choice of president disregarded. In 2000, the US Supreme Court used this risk as a justification for ending further attempts at obtaining an accurate vote count in Florida. However, there is not necessarily any reason for concern in this area, because officials do not generally take all of the time they are legally permitted to approve official results. The true danger is that a few states are still relying on a vague "intent of the voter" standard to determine whether a ballot with nonstandard markings should count. This is similar to the standard that caused the delays and confusion in 2000.

The executive summary includes a more detailed discussion of these and other issues. We hope that you will find it interesting, accurate and, most of all, useful. We also intend to provide further updates to the maps and charts in the future, to ensure that this project remains useful.

We would like to thank the dozens of state and local election administrators and other elections experts across the country who provided important information that was necessary to complete this project. Please let us know what you think of our project or whether there is any way you see that we can improve upon our work (you can send an email to me at cemenska.1@osu.edu). We would also like to thank the JEHT Foundation, which funded this project. Finally, we would like to thank the numerous people from within Election Law @ Moritz and the Moritz community who helped conceive of, obtain funding for, and execute this project.


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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