Posted: October 17, 2008
ORP v. Brunner: What is at stake?
HAVA arguably requires states to compare information contained on incoming voter registration applications against information in state motor vehicles databases and the federal Social Security Administration database to confirm the accuracy of the personal information on the applications. The Ohio Secretary of State has been performing a confirmation process of this kind, but has not been sharing the information with local boards of election (or with the public) in the most accessible way. However, a recent TRO issued by an Ohio district court and upheld by the 6th Circuit would compel the Secretary to supply this information in an accessible form. The Secretary appealed and the case is now in front of Justice Stevens of the US Supreme Court.
What is really at stake? On a superficial level, not much. The case does not directly affect any substantive voting rights, only how information is shared. However, the case could indirectly affect substantive voting rights depending on how people use this information. Specifically, people can use a failed confirmation as some evidence to suggest that the registrant is not a qualified voter and is not entitled to vote. There is no black-letter law that would be binding in Ohio that supports the proposition that a failed confirmation is in itself sufficient to disqualify a voter (see here) but, perhaps together with other pieces of information, a failed confirmation might be enough to persuade election officials or a judge that a person is not qualified to vote. The law does not go into the details of how much evidence would be necessary to permit election officials or a judge to conclude that a voter is not qualified, but by omission seems to imply that these actors should rely upon common sense and their own best judgment. See, e.g., R.C. 3505.20, 3509.06, 3509.07.
The mismatch list could be used to attempt to disqualify votes in at least two ways. First, people could use the information to attempt to disqualify absentee ballots that have already been cast. At the discretion of the county Board of Elections, these ballots may be counted centrally or distributed to the precincts and counted there. R.C. 3509.06. If they are counted in the precincts, the poll workers who count the ballots will determine whether to challenge each ballot. Id. If the ballots are counted centrally, "special election judges" appointed in the same manner as poll workers will decide. Challenged absentee ballots should be rejected, among other reasons, when election officials find the voter's statement accompanying the ballot is "insufficient" or "the applicant is not a qualified elector in the precinct." R.C. 3509.07; 3509.05. If the poll workers decide to reject the ballot, they endorse it as "not counted" and put it off to the side with its accompanying paperwork, making it possible to go back and reconsider whether to count the ballot later. R.C. 3509.07. Although current black-letter law does not afford voters any notice or opportunity to be heard regarding the validity of their absentee ballot, Secretary Brunner has ordered these kinds of due process protections in other contexts and may order them to occur in this one.
The other thing that could happen is that the information could be used to challenge voters at the polls. Ohio law used to permit appointed challengers to make these kinds of challenges, but was recently amended to prohibit challengers. Nevertheless, regular poll workers are still able to challenge voters at the polls, and the Ohio Supreme Court has even hinted that it is improper for them to refrain from doing so when they subjectively believe something is amiss. Some of the poll workers in each Ohio precinct are required to be Republican (see here) and, although the Ohio Republican Party has stated that it will not directly challenge voters at the polls, that statement is not necessarily inconsistent with informally encouraging Republican poll workers to make such challenges. The upshot is that, if the mismatches cause poll workers to subjectively question the eligibility of a voter-- regardless of whether that questioning is reasonable-- we can expect at least a good handful of challenges on election day. Furthermore, if a majority of poll workers are not satisfied with the voter's response to these challenges, the voter may cast only a provisional ballot and attempt to cure any perceived deficiencies by providing information to the Board of Elections under R.C. 3505.181(B)(8). R.C. 3505.20. It is also possible, theoretically, that county Boards, after investigation, could identify certain voters in the poll book as having problematic registrations and order poll workers to require those voters to cast a provisional ballot. However, as stated earlier, a mismatch should not be enough to authorize this unless it causes the Board to conclude that the registration suffers from one of the underlying problems enumerated in Ohio law that require the casting of a provisional ballot. See R.C. 3505.181. A mere mismatch is not one of those enumerated grounds.
One positive note about all this is that, if the letter and spirit of the law are followed, no legitimate votes will be discarded. Rather, the ultimate consequence of all this litigation should just be to slow the process down so that society can take a closer look at these issues and deal with them in a way that has a greater likelihood of being accepted by the public. Officials will carefully sort through the provisional ballots cast by voters challenged at the polls, as well as the absentee ballots that remain in their identification envelopes, and make a fair and lawful determination of which ones to discard, if any. Then they will declare a winner and everyone will accept it. This is what should happen.
What will happen? Well, there is risk of strategic behavior on the part of both political parties that would probably reduce the likelihood that the ultimate result will be accepted. If Ohio is close for any important race, both parties can be expected to attempt to influence the disposition of the provisional and absentee ballots in accordance with narrow conceptions of self-interest that will do damage to the already low level of faith that some Ohio voters currently have in the elections system. Furthermore, because Ohio will probably be close, both parties might act in this selfish manner even before the election. For instance, Republicans might encourage poll workers to be overzealous in their challenges to voters at the polls. While this theoretically should not lead to the rejection of anyone's ballot, it could certainly lead to long waiting times that could discourage people from casting ballots in the first place. For their part, Democrats might, among other things, pressure election officials to begin removing absentee ballots from their identification envelopes at the earliest possible time (October 25) and mix them together so that it becomes a practical impossibility to identify problematic ballots and investigate them. In 2005, the Ohio Supreme Court suggested that premature opening of absentee ballot envelopes is harmless error unless there is some further suggestion of fraud or other impropriety. Harmon v. Baldwin, 107 Ohio St.3d 232, ¶ 32 (Ohio, 2005). While this tactic might increase the number of votes counted for Democrats, it might also cause Republicans to question the accuracy of the vote in the same way that some Ohio Democrats continue to question the result of 2004.