OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


Commentary

Administering the March 4 Primary in Ohio

It is widely believed that Ohio’s primary on March 4 will play a pivotal role in determining the Democratic candidate for President. If Obama wins the statewide popular vote, the pundits proclaim, his victory likely would propel him to similar success in Pennsylvania (on April 22), and the party’s “superdelegates”—who by all accounts will control the outcome of the party’s national convention in Denver—will fall in line. Conversely, if Clinton prevails in the Ohio primary’s popular vote, then she would be expected to do the same in Pennsylvania, and these two victories in states that will be major battlegrounds in the general election campaign will cause the superdelegates to favor her.

Consequently, the conduct of Ohio’s election officials in administering the primary vote is now important, not only as a “test run” of technologies and procedures to be used again in November, but also in its own right. While it is the prerogative of the Democratic Party to make what use of the Ohio primary vote as it wishes—including any significance the superdelegates may find in the results about the electability of these two candidates in the fall—it remains the responsibility of the state’s election officials to manage the casting and counting of primary ballots properly, so that its results are accurate.

Whether we care about the performance of Ohio’s election system for one or both of these reasons, what should we look for on March 4 to evaluate whether or not it worked satisfactorily?

Here are five things to keep an eye on. While this short list is inevitably incomplete—indeed, one important truth about election administration is the need to maintain flexibility given the good chance that something unexpected will occur—this is a reasonable set of priorities as we come within two weeks of the primary date.

1. Cuyahoga County. Ohio’s most populous county has been the source of its biggest electoral problems in recent years, including what was supposed to be an easily administered election just last November. But from officials who fudged a 2004 recount to save time and money, to precincts that were so poorly managed that over 10,000 ballots were cast by voters who never signed in, to misplaced vote tallies from 14% of precincts, to mutilated “paper trails” for a fifth of all votes—the list of recent failings is so long and so serious that major improvement in Cuyahoga County has been “job one” for Ohio’s new Secretary of State, Jennifer Brunner, who took office last year.

Brunner replaced the county’s Board of Elections and installed a new director. She has also forced the Board to change its voting technology for the March 4 primary, jettisoning its touchscreen machines in favor of a “central count” form of optical-scan equipment. Unlike optical scan ballots that are counted at the precinct, at least initially, “central count” optical-scan ballots will not be counted until they are delivered to the Board’s central offices. (Brunner has backed off her proposal that all Ohio counties move to this “central count” approach, but her insistence that Cuyahoga County do so remains in force, now that a federal court has refused to intervene on the issue.)

Some observers expect that the use of “central count” machines will delay the reporting of election results on the night of March 4. While that delay would be frustrating to the candidates and the media, as well as to citizens all around the country who would like to know the outcome of Ohio’s primary, any such delay is not necessarily cause for doubting the accuracy of the results that are eventually reported. Historically, late election returns from certain localities (think Chicago, 1960) raised suspicions that the delays were used to swing the race to the favored candidate. But I would imagine that any delay in counting Cuyahoga’s optical scan ballots once they have arrived at the Board’s central office would be innocent, representing a bottleneck on the flow of ballots through the machines. Moreover, I would assume that representatives of the candidates—and the media—will keep an eagle eye on the counting process as it occurs at the central office, given the intense interest in Cuyahoga’s vote.

I am more concerned, however, about the methods by which Cuyahoga’s ballots are moved from precinct to central office. One need not expect anything nefarious in order to be a bit worried. In the May 2006 primary, the county lost in transit from precinct to central office 75 electronic cartridges containing the votes from 14 percent of precincts. Unfortunately, it is not at all inconceivable that on March 4, for reasons solely of ineptitude or inadvertent mistake, ballots could go missing before they have a chance to be counted. Also, the Ohio General Assembly is poised today to pass a bill that will permit transit to the central office twice on primary day, to speed up the central counting, but thereby potentially increasing the chances of errors in transit.

And although I’m no conspiracy theorist, I would like some greater assurance that no hanky-panky can occur in the handling of uncounted ballots while en route to HQ. Ohio often touts its inherently bipartisan structure of election administration at the precinct and county levels. Democratic and Republican pollworkers are supposed to watch each other as they jointly transfer custody of the ballots to county-level officials, who also are equally Democratic and Republican. But there is no guarantee that both Obama and Clinton are represented among pollworkers. If (as is commonly thought) Republicans would prefer Clinton to be the Democratic candidate, then it is theoretically possible—unlikely to be sure, but still possible—that Clinton-supporting pollworkers would combine with Republican pollworkers to “lose” a few Obama ballots while trucking them downtown for counting. It would be great if the media and “election protection” folks—assuming they are trustworthy (how does the public know?)—has the capacity to monitor the delivery of ballots from every precinct in the county, but that’s asking a lot. It would have been better if Brunner had ordered an initial scan of the ballots at each precinct, so that there would be an electronic record to match against the central count. While I don’t suspect anything untoward to actually occur on March 4, it will be interesting to see if there arise any allegations of irregularities in ballot-handling procedures.

More likely to occur are conventional problems in managing polling places. Some precincts are bound to open a little late, either because some poll workers don’t show up on time—or at all. One thing to watch for is whether such occurrences trigger calls to extend voting hours in the evening. In November 2006, Democrats convinced a federal judge to extend voting hours based on relatively modest problems of this type. At the time, Republicans believed it was a tactic designed to facilitate efforts to boost Democratic turnout. In the battle between Obama and Clinton for Ohio, it is conceivable that one side or the other might think it advantageous to keep the polls open for a couple of extra hours and thus might try to use any delays that occur in the morning as a basis for obtaining a court order for extra voting in the evening. (Any ballots cast after the regularly scheduled closing time must be provisional, according to the federal Help America Vote Act, and if such a court order occurs, it will be worthwhile to check to see if the court complies with this statutory rule.)

2. Disenfranchisement through Under-Capacity. The main memory from 2004 in Ohio is the inordinate length of lines in many polling places around the state, not just Cuyahoga County. Excessively long lines have again been a problem in this primary season, as state after state has failed to plan adequately for the high turnout caused by the excitement and competitiveness of the Democratic presidential race. Although there has been no systematic quantification of the problem, many news reports describe voters who, after waiting, have left the polling place without being able to cast a ballot (either regular or provisional). In some instances, it has been because the polling place itself has run out of ballots to cast, waiting on workers from headquarters to deliver a new supply. In any event, the electoral infrastructure in these states has been ill-equipped to handle a healthy public demand for its services.

The same problem could occur again in Ohio, echoing what happened in 2004. Then, especially in Franklin County, it was too few voting machines. This year, it could be too few poll workers, or least ones sufficiently trained to keep the lines moving quickly.

If there are reports of Ohio voters giving up in frustration because of lines over an hour in length, it is possible that the state could see renewed litigation over the issue. The object of the litigation would not necessarily be to change the result of the primary itself, but to seek a judicial remedy that would prevent similar disenfranchisement from occurring in November. There need not even be the filing of new lawsuits. The still-pending case filed by the League of Women Voters could become the vehicle for pursuing the matter.

3. Polling Place Confusion and Inequalities. Ohio has its own set of issues concerning the availability of paper ballots for the primary. As of this writing, it is still unclear whether Secretary Brunner will be permitted to enforce her planned requirement that counties using touchscreen machines must give voters the option of a paper ballot alternative. A state judge is considering one county's request for an injunction that would block Brunner’s directive. [UPDATE: After the initial posting of this comment, the state court dismissed the county's case.]

If Brunner’s “paper alternative” requirement does remain in force, some predict that the affected counties will run out of these paper ballots. That occurrence would not necessarily be disenfranchising, since voters still could use the touchscreen machines in these counties. But the turmoil at polling places, when voters ask for paper ballots but are told they cannot have them, may have collateral consequences, including increased delays.

Secretary Brunner has also ordered that all provisional ballots be cast on paper rather than machine. If any precinct ran out of provisional ballots, that would be a serious problem. Would the pollworkers then permit the provisional voter to cast a ballot on a machine, including the one that presumably is available for disabled voters? Or would the pollworkers deny the voter the right to cast any ballot at all, in direct contravention to HAVA’s requirement that no one wishing to cast a provisional ballot be deprived of the opportunity to do so? If some precincts handled this problem one way, while others did another, this disparity in treatment of similarly situated voters would be grounds for an Equal Protection challenge. Since similar Equal Protection claims are already pending in the League of Women Voters’ lawsuit, these new ones simply could be added to that case.

It seems unlikely that either Clinton or Obama would themselves go to court to contest the denial of provisional ballots to voters entitled to them—because the margin of victory would have to be so extraordinarily close for these ballots to make a difference, and any candidate risks losing votes in upcoming primaries if the public frowns upon a “sore loser” contest over the Ohio outcome. But reports that Ohio voters in some localities were unable to cast provisional ballots would not sit easily with voting rights groups and would likely be pursued aggressively before November.

4. High Rates of Provisional Voting. We should look at provisional voting in Ohio on March 4 not only to see if anyone is denied the opportunity, but also to see how many voters are forced to cast provisional rather than regular ballots. Ohio had among the nation’s highest rates of provisional voting in the 2004 and 2006 general elections. Indeed, Ohio was one of the few states to increase its rate of provisional voting from 2004 to 2006, rising from 2.7% of all ballots cast to 3.1%.

Moreover, some counties in Ohio had rates of provisional voting significantly above the statewide average. For example, Franklin County (where Columbus, the state capital, is) had a provisional voting rate in 2006 of 5.1%. These provisional ballots were a factor in the recount of the closely fought congressional race for Ohio’s 15th district between incumbent Deborah Pryce and challenger Mary Jo Kilroy. A similarly high, or even higher, volume of provisional ballots conceivably could be a factor in the awarding of delegates between Clinton and Obama.

Other states in this primary season have experienced unusually high rates of provisional voting. It appears that most of the increase has been caused by questions about a voter’s eligibility to receive a Democratic ballot if the voter isn’t registered as a Democrat. Some Ohio voters could experience similar questioning. Although voters who are not already registered as a Democrat are entitled to switch registration in the primary, Ohio law permits pollworkers to challenge a voter’s sincerity in switching. The challenged voter then must sign a statement “under penalty of election falsification” that he or she “supports the principles” of the Democratic Party. (Ohio Revised Code § 3513.20.) It seems unlikely that this provision of Ohio law will be enforced aggressively, but in some localities it may cause an increase in Ohio’s already high rate of provisional voting—since the pollworkers can require any challenged voter to vote provisionally (and any voter who refuses to sign the specified statement must do so). Furthermore, any discrepancies in the enforcement of this provision from one precinct to the next would provide further fodder for the League of Women Voters’ omnibus Equal Protection challenge to the administration of Ohio’s election laws.

5. Irregularities in Absentee Voting. In order to reduce the risk (and significance) of problems at polling places on March 4, election officials in Ohio are aggressively urging citizens to take advantage of “no excuse” absentee voting. All signs indicate that voters are heeding this message. While the effect may be to reduce demand for ballots at polling places on March 4, thereby avoiding disenfranchisement due to under-capacity, one wonders whether the state is trading one set of risks for another. Absentee voting is more susceptible to abusive practices, like organized inducements to vote for a certain candidate. The media should be on the lookout for any whiff of improprieties associated with absentee voting.

* * * * * * * * * * *

One, of course, hopes that no significant problems occur in connection with Ohio’s primary. If the state—and especially Cuyahoga County—make it through unblemished, that accomplishment would be itself a major story. It would also bode well for November.

Someday election administration will return to being a non-issue for the public. The interest in the topic since 2000 and Bush v. Gore will have subsided, as voting procedures and practices become stabilized. That day has not yet arrived, but with any luck a successful March 4 primary will move us closer—or at least will not set us back any further.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

more commentary...

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.

more EL@M in the news...

Info & Analysis

U.S. Supreme Court strikes down aggregate campaign contribution cap

The U.S. Supreme Court issued its opinion today in McCutcheon v. FEC, striking down aggregate limits on political campaign contributions but leaving in place limits on contributions to individual candidates.

more info & analysis...