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Election Law @ Moritz

Election Law @ Moritz


Ohio Paper Ballots Done Right

For better or for worse, several hundred thousand Ohio voters will be casting centrally counted paper ballots in tomorrow’s election. This includes almost all of the votes of Cuyahoga County (with about 1 million registered voters), where the Secretary of State forced the Board of Elections to abandon its prior touchscreen voting system. However, it also includes ballots cast in other counties by those who ask poll workers for a paper ballot, an option the Secretary of State has mandated for March 4 and, apparently, all future elections. Finally, it includes mailed absentee ballots cast by the remainder of Ohio’s 7.8 million registered voters, 10 to 20% of whom are expected to choose this method of voting under Ohio’s relatively new no-fault absentee rules. My colleagues have already explained how centrally counted ballots suffer from a lack of error correction and risks of ballot shortages and ballots lost or damaged in transit to central counting; I am not going to reiterate those explanations here. Instead, let’s look at some other issues with the system, and a remedy for a concern already raised.

The first issue is bad ballot design. While bad ballot design is possible with DRE and precinct-count OS systems, those systems are capable of catching any under- or overvotes that result from the design. Central-count systems are not, but at least administrators in a central-count system can try to use good ballot design as a sort of poor man’s error correction. Fortunately, Ohio does have some fairly detailed regulations concerning the design of ballots, but those regulations apply only to Presidential ballots. §3505.10. The regulations that apply to other types of ballots are less detailed and arguably do nothing to prevent the design of butterfly ballots, caterpillar ballots or other types of ballots that history has shown to be confusing to voters. §§3505.03, 3505.08. Furthermore, all of these regulations date back to the punchcard days and were apparently not good enough even then, since the ballots of Cuyahoga County were alleged to be substantially confusing in the 2004 vote for President. Some Cuyahoga County absentee ballot voters confused over layout, AP Alert – Political, October 20, 2004. In contrast, since 2000 the Florida Secretary of State has promulgated detailed ballot design regulations for each specific model and brand of modern voting machine certified for use in the state. 1 FL ADC 1S-2.032. These regulations include images of sample ballots for each type of device that can be used as templates (the Ohio SoS also issues a ballot template, but it is not machine-specific). Given the elevated importance of ballot design in a central-count ballot, it is probably advisable to go beyond even this level of control by creating an officer or office of individuals dedicated solely to assisting locals with ballot design issues.

One mistake Ohio has not made is to allow optical scan voting to occur without providing some basic definition of what constitutes a vote. Voters are supposed to fully blacken the oval so scanners can read their ballots, but if they don’t, most other types of marks will suffice. Circling the name of the candidate, the oval next to the candidate’s name, or placing an “x,” check mark, or other “recognizable” mark in the oval will count as a vote. §3506.21. The statute also empowers the Secretary of State to create more detailed regulations in this area, though she has not done so. But even without those clarifications, the statute should eliminate the vast majority of marks from dispute, which is probably enough.

A third area to look at is, assuming that ballot shortages do occur, how should poll workers respond? In tomorrow’s election, many Ohio counties will have both DRE and optical scan ballots in the polling place, allowing would-be OS voters to simply cast a DRE ballot in the event of a shortage. However, the situation is trickier in the case of provisional ballots. The Secretary of State has ordered that provisional votes be cast on paper, and some poll workers might interpret this to prohibit DRE provisional voting even when paper provisional ballots have run out. It also is not clear whether or how many DRE machines have even been configured to accept provisional votes. Clearly, some kind of backup plan is in order. A common response is to contact the local authorities to request more ballots, but this is problematic for obvious reasons. How long do voters have to wait, and how many of them will leave in frustration, until the replacement ballots arrive? Another unsatisfactory response is for poll workers to allow voters to “just” cast ballots on scrap paper. The disorder involved in such a procedure could lead to all kinds of problems—illegible votes, security concerns, failure to vote for certain offices, longer lines while voters gather around a template to fabricate their own ballots, etc.—not to mention the reasonable fear any such voters might feel that their ballots will not count. Instead, the best approach is probably to authorize two poll workers of opposite parties to drive to the nearest Kinko’s and photocopy a number of ballots sufficient to meet demand. This procedure was used with some success in Michigan counties that ran out of ballots in 2006. While not perfect, it is certainly better than the alternatives and provides voters with the closest analogue to the experience they should have had.

I’m sure there are other issues that need to be addressed, but the good news is that recent changes might focus enough attention on these issues to get us to dust off our statutes and decide how they should be optimized for modern-day voting. Some of the assumptions that went into the law as it stands may no longer apply, and in other areas new assumptions need to be made. Only by picking apart the regulations line by line can we achieve the kind of overhaul called for by the transitions in our voting system.


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.

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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

Wisconsin Supreme Court Upholds Voter ID Law

In two opinions issued today, the Wisconsin Supreme Court upheld the state's voter ID law against challenges that the law violated the Wisconsin Constitution. The court issued an opinion in League of Women Voters of Wisconsin v. Walker and also an opinion in Milwaukee Branch of the NAACP v. Walker.

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