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Election Law @ Moritz

Election Law @ Moritz


Commentary

The Potential Election Administration Challenges of Super Tuesday 2008

As many have observed in the run-up to today’s presidential primary elections in 24 states, American politics has never before seen anything quite like this season’s “Super Tuesday.” Equally true but less observed is that America’s election systems also have never gone through anything like today’s quasi-national primaries. In an era when our election processes are under more scrutiny than ever, the prospects that some election problem will affect the outcome of the races is compounded by the number of simultaneous primaries, given the competitiveness of the contests.

In particular, the closeness of the contests, perhaps especially on the Democratic side, means that what may matter most is not the ordinary election night momentum typically gained from the unofficial results, so crucial in a series of smaller primary elections that are staged sequentially throughout the spring of an election year, but the actual delegate count as subsequently determined by the official results days later, perhaps influenced by recounts or contests in races that were close or infected with errors. Furthermore, the fact that in some states delegates are not awarded winner-take-all to the statewide victor, but are apportioned or are awarded by intra-state districts, means that election administration issues could affect delegate allocations even in states with a clear winner, if the precise tally nonetheless is in dispute, or if some individual districts are close. Accordingly, today’s sheer number of primaries not only has complicated the candidates’ political strategizing about where and how to campaign, it also has created increased possibilities for post-election wrangling over the outcomes.

If, after today’s contests, the leading candidates’ number of accumulated delegates remains (or appears to remain) close, the candidates may be expected to pursue any plausible basis for picking up more delegates. The implication is that political strategists and election lawyers for each candidate must examine today’s election proceedings and outcomes with a fine-tooth comb, preparing to challenge any aspect of a state race that could alter the delegate count. This exhaustive attention to the conduct of presidential primaries is likely unprecedented. In this environment, the prospect that problems may materialize is heightened by the fact that turnout is expected to be unusually high, and that many states are rushing new election systems and processes into use today, while also conducting their elections at an earlier date in the election cycle than usual.

Although it is possible that today’s voting could go off without any major hitches, a number of election administration problems also could arise. Here are five kinds of issues to watch for:

1. States less prepared for earlier Election Day. In recent elections, some jurisdictions have failed to prepare fully for Election Day, causing polls to open late, poll workers to struggle operating new voting equipment, and shortages of official ballots. Similar problems are possible today. Election Day preparedness is especially a concern in states that advanced the date of their primary elections - Alaska, Arizona, California, Colorado, Connecticut, Georgia, Idaho (Democrats), Illinois, Massachusetts, Minnesota, New Jersey, New York, and Tennessee. In particular, several Super Tuesday states have reported difficulties in recruiting poll workers. Newly recruited poll workers must be given extensive training in the use of machines, registration procedures, provisional ballots and other election procedures.

2. Confusion about primary election rules. The fact that today’s voting occurs in the form of primaries or caucuses increases the prospects of a problem. The political parties determine many of the rules that shape the nominating process, and these rules could lead to both confusion and delay. In particular, the rules on who can participate in a given primary vary across the states, with some states holding completely closed elections in which only registered party members can vote, others holding completely open elections in which any voter may participate, others using a modified open election that is somewhere between open and closed primaries, and still others employing caucuses. If a state has selected a closed or modified open election, registration deadlines were likely weeks ago. In some states, voters may be excluded from the polls because they did not properly register for a closed election. Confusion on this type of issue may lead to claims of unlawful disenfranchisement, and resolving these issues may take several days or weeks.

3. New laws and equipment. The Help America Vote Act of 2002 required states to change certain election administration procedures in exchange for federal funding. Although most of HAVA’s requirements were supposed to be met by 2006, many states in fact are still in the process of fully complying with the law’s equipment, training, and registration system requirements. In addition, some states have gone beyond the HAVA provisions and passed additional election related legislation, much of it in just the past year, including several voter identification laws. These new systems create additional pressures on election workers and their training programs. Finally, the secretaries of state of California and Colorado have recently decertified their states’ voting equipment, forcing election administrators in their states to scramble to create paper ballots and find equipment to read those ballots.

4. Treatment of absentee and provisional ballots. The treatment of absentee and provisional ballots is of special concern in close elections. As noted above, a primary election may be close in a specific jurisdiction even if it is not close statewide. This may cause many “little battles” for delegates in states with proportional delegate allocation. HAVA contains provisions directly related to the treatment of provisional ballots, and the precedent of Bush v. Gore suggests that absentee and provisional ballots should be treated consistently across all voting jurisdictions in a state. Lack of equal treatment could easily give rise to a legal challenge. For instance, last week’s ruling by a New Jersey judge that voters who previously cast an absentee ballot may revote if their original vote was for a candidate who now has dropped out of the race could lead to a Bush v. Gore challenge because the ruling does not appear to apply statewide. Furthermore, this ruling also could cause administrative difficulties or raise privacy concerns to the extent that administrative officials cannot determine who is eligible to revote without first opening their original ballots.

5. Delegate allocation questions. Even before today, disputes have already emerged over the stripping of delegates from those states that advanced their primary dates in defiance of national party rules. After today, the candidates and parties should have a better sense of exactly how important these missing delegates are to the race. But after today, delegate allocation questions could crop up in any number of places, provided the cumulative count of delegates committed to each candidate remains close. As a result, state recount and contest rules could become critical, not only at the state level, but also at the individual district level. The source of delegate allocation questions also could be heavily influenced by arcane internal party rules previously little noticed by the public generally, which in turn could give rise to interesting but complicated issues about the limits of state courts to resolve political party convention delegate controversies.

Accordingly, the outcome of today’s contests has the potential to herald a new era of post-election controversy.

Steven F. Huefner has wide-ranging election law experience and interests, including the specific areas of contested elections, term limits in state legislative elections, military and overseas voting, legislative redistricting, and poll worker responsibility and training. Prior to joining the faculty at Moritz, Professor Huefner spent five years in the U.S. Senate's Office of Legal Counsel, where his responsibilities included advising the U.S. Senate in matters of contested Senate elections, as well as assisting in the 1999 presidential impeachment trial. View Complete Profile

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