Posted: January 3, 2008

EL@M Announces New Interactive Map Feature

Scholars have paid more attention to the law of election administration since 2000, but in many ways the field remains undeveloped. For instance, the last book that attempted a comprehensive overview of the voting laws of all then-existing states was McCrary on Elections, a treatise first published in 1897. Needless to say, a lot has changed since then and we need to take a fresh look not only at “hot” issues like voter ID, but also at less talked-about but equally important issues such as funding and administrative structures.

Toward that end, EL@M today presents a series of eight interactive United States maps that allow the user to compare various election law provisions across states using a color coding system. The maps can be divided into two groups of four. The first group compares across 50 states the players in any post-election controversy for President: Recount officials, trial courts, chief election administrators, and state supreme courts (the players for non-Presidential controversies are often different). The second four maps will compare across 25 priority states the rules that different jurisdictions use to decide contests based on four different scenarios: Unverified ballots, polling place problems, provisional ballot mistakes and fraudulent absentee ballots (only selected states with January caucuses or primaries are included in the current installment). Additional maps will be produced in the near future, including an installment on February 1 that will expand the existing “scenarios” maps to include selected states with February primaries.

The project merely attempts to describe the law without developing any conclusions, but nevertheless some preliminary observations are possible. One is that many of the decision-makers in our election system are openly affiliated with political parties in a way that makes them vulnerable to accusations of partisanship. For instance, Republicans have more than a one-vote majority on the Supreme Courts of California, Texas, Alabama, Ohio and Michigan, meaning that in these states a Democratic voting bloc could not prevail even if one Republican justice crossed party lines. Democrats have this type of majority in Florida, Nevada, New Mexico, Louisiana, West Virginia, and Maryland.

Another observation is that black-letter law has no answers for many types of questions that might arise in a post-election dispute. For instance, in Minnesota, Arizona, Rhode Island, New York and Nebraska, it is unclear what court would function as a trial court in a Presidential election contest, or sometimes whether such a contest would be allowed at all. Things become even murkier when looking at how a court would handle a specific election-related problem, such as voter error in filling out provisional ballot paperwork. These laws simply have not been interpreted or revised enough to give much guidance in any but the most foreseeable circumstances. In an election contest, this vacuum may leave courts no option but to fashion their own rules as best they can, again leaving the court vulnerable to accusations of partisanship.

EL@M will continue to publish more maps as research continues. While the addition of a particular map may be helpful, we hope that cumulatively they will add up to more than the sum of their parts. We also hope to find more ways to make cross-state comparison easier and more informative. Please visit our site for future updates.