Posted: April 15, 2008
Federal Court Extension of Polling Hours: Problem, Proposal, Example (Part 3)
This comment is the third and final installment in an analysis of the situations in which a federal court is—and is not—justified in extending polling hours on Election Day. Part One explained why it is an Equal Protection problem if a court orders an unqualified extension for all voters in some precincts but not others. Part Two developed a “working rule of equity” to identify the limited circumstances in which this kind of decree, despite its Equal Protection concerns, would be warranted. This final part applies the working rule to the federal court order that occurred in Cuyahoga County, Ohio in that state’s primary on March 4.
The federal court extension of polling hours on March 4 in Ohio’s primary is over and done. In some respects, it is not worth revisiting. There is certainly no utility in speculating about the motives of those who sought or granted the extension. (Indeed as far as I am concerned, the point has never been about the motives of those involved in this particular case. Rather, it is only about the precedent that this particular case sets for the general category of cases.) Yet there remains some value in analyzing the March 4 order to illustrate how the proposed working rule of equity, developed in Part Two of this 3-part commentary, would apply to a real-world concrete case. If we view the working rule of equity as a proposition of law that might be announced by a federal appellate court were it in a position to review the validity of a particular federal court order that extends polling hours, then the March 4 order is as good a case as any to show this appellate articulation of its new rule. It is certainly a fresh case and even though moot in the conventional sense, it fits within the mootness doctrine’s exception for cases “capable of repetition yet evading review.” Consequently, what follows is an application of the principles and propositions discussed in Part Two to the facts of the March 4 order.
Both Ohio’s Secretary of State and the local election board undertook an extraordinary amount of advanced preparation for the March 4 primary. While one might disagree with some of the decisions made, one cannot deny that they were conscientious in their planning efforts.
One aspect of the advanced planning might be singled out for critique. The Secretary of State did not offer sufficient guidance on what poll workers should do if precincts ran out of paper ballots. So much effort was devoted to considering how many paper ballots would be enough, trying to make sure that precincts did not run out, that officials slighted the need for contingency plans in the event they miscalculated.
An easy directive could have been issued to remind poll workers that in a ballot shortage emergency they could use the single voting machine available for disabled voters as an affirmative method of voting for anyone unable or unwilling to wait for a re-supply of paper ballots. Likewise, the directive could remind poll workers that provisional ballots also may be used in an emergency if they are the only form of ballots available for the voters who otherwise would leave without voting.
The Secretary regrettably, issued no such reminders. But then no one sued the Secretary for failing to do so. The Secretary was sued unsuccessfully in advance of March 4 over the decision to count paper ballots centrally rather then at precincts. But no one before the primary complained that the state was violating Equal Protection by having inadequate contingency plans in the event of a ballot shortage.
No actual disenfranchisement at specified precincts
Whether or not advanced planning can be faulted as inadequate, the good news is that no one was disenfranchised during regular hours at any of the 20 precincts that were the subject of the federal court extension. This good news, however, undercuts the propriety of the extension itself.
Only two of the 20 precincts ever ran out of ballots. These two precincts, both at the same polling location, lacked ballots only for a half-hour at most (according to election officials). Moreover, no one who had to wait this half-hour left without casting a ballot. As the Plain Dealer reported, “county elections officials and Secretary of State Jennifer Brunner said everybody who wanted a ballot got one.”
It turned out that within the same county, at two other precincts not subject to the court order, there were ballot shortages that caused at least one voter at each precinct to leave without casting a ballot. Even there, the wait time for new ballots was not especially long, 45 minutes at one of the two, and 30 minutes at the other. Therefore, the decision of the two voters not to wait, while regrettable, does not prove an unconstitutional deprivation of their voting rights. Furthermore, the fact that the federal court’s order to extend polling hours did not cover these precincts, where voters did leave in frustration, but covered only precincts where no voter suffered this injury, demonstrates the inequality of the selective extension. The two voters who left had no chance to return later, whereas in 20 precincts those who never went to the polls in the first place were given an extra chance.
Official response to situation
In addition to the extensive advanced planning they did, the Secretary of State and local officials were monitoring the possibility of ballot shortage throughout Election Day. They were working hard to resupply precincts that were running low. As they were approaching the end of the day, they made the judgment that it would be unnecessary (and counterproductive) to extend polling hours – in part because they well knew that anyone standing in line at closing time would be entitled to stay as long as necessary.
Their judgment was hardly based on a hostility to court-ordered extension of polling hours. On the contrary, earlier in the day the Secretary of State herself had secured a court-ordered extension of polling hours in Sandusky. The reason was that the printer used for printing extra ballots broke down, and precincts there were without ballots for several hours. Thus, the state’s chief elections officer was making reasoned judgments about what circumstances did, and did not, call for an extension of polling hours in issuing the extension for the 20 Cleveland precincts.
There is no evidence that, in issuing the extension for the 20 Cleveland precincts, the federal judged considered the Secretary’s exercise of reasoned judgment. On the contrary, it appears from the face of the order that it was based on the one-sided contentions of the plaintiffs, without regard to the Secretary’s position. Yet this one-sidedness is inappropriate. Had the court considered the Secretary’s perspective, it would have realized that there was no constitutional predicate for its judicial intervention. Neither the Secretary nor the local officials had acted, either before or during Election Day, with the kind of irresponsibility that could cause a federal court to find a threat to federal constitutional rights in need of judicial protection.
The Mis-Match Between Remedy and Risk.
The above observations show why the March 4 order fails what is conventionally considered the “likelihood of success on the merits” prong of a federal court’s power to order emergency injunctive relief. But the order is equally troublesome when evaluated in accordance with the “balance of equities” prong of the analysis, especially as those equities are more specifically considered in light of the factors of the proposed working rule (developed in Part Two of this commentary).
To be sure, whenever a federal court is asked to extend polling hours, the need for a lightening quick decision does not give a judge the luxury of methodical deliberations. Perhaps in no other context is the aphorism “hindsight is 20-20” so especially apt. But it is precisely because there will be no time for reflection in November (or whenever the next request to extend polling hours arises) that it is worthwhile to review why the equities did not support the March 4 order.
First of all, there is no indication that the federal court considered whether a narrower form of remedy could sufficiently address the perceived problem. As discussed in Part Two, it may be possible to limit the extended hours to only those voters who suffered the denial of a ballot during normal hours, by requiring officials to make a notation next to the injured voter’s name in the poll book. An inquiry into the possibility of this more limited order is especially appropriate when, as on March 4, the claim is not that voters already have left polling places because of ballot shortages, but rather that supplies are running low and this problem is anticipated. In this context, it is particularly germane to ask whether the federal court can avert any potential disenfranchisement simply by making sure than any voter who needs to leave before casting a ballot can be permitted to return, without extending polling hours for anyone who never bothered to show up during the regularly scheduled time for voting.
Even more significant is the fact that the March 4 order was not requested until a half-hour before the polls were scheduled to close and was not filed by the court until a half-hour after they already had closed. Given the lateness of both the request and the order itself, it could not possibly have remedied any constitutional injury (or risk of one). Any ballot shortage that materialized after 7:00pm, when the request was submitted, would not have amounted to a constitutional violation, since only a half-hour remained before closing. Moreover, anyone waiting during that period for a resupply of ballots would have been permitted to remain in line past 7:30pm under state law, and thus no federal remedy was necessary to protect them. Thus, the federal order protected no one, while at the same time it inflicted an Equal Protection injury on anyone not living in those precincts that received an extension under the order. Far from being a remedy that reduced overall inequality among similarly situated voters, it increased inequality with no offsetting equalization. Under any conception of “balancing the equities,” the March 4 order made matters worse, not better.
Finally, the order was not one which competing candidates, if being reasonable, should feel obligated to accept as fair. It is always precarious to make this kind of argument, lest one be accused of partiality toward one side or the other. (As Director of Election Law @ Moritz, I require myself to remain unaffiliated with any candidate; and in preparing a commentary like this one, I strive insofar as possible to put aside whatever personal views I might have about the merits of competing candidacies.) Yet it seems that, whichever candidate benefited from the kind of order issued on March 4 (given the specific circumstances in which it was granted and given its applicability to only 20 specified precincts), the opposing candidate reasonably could object to its selectivity. Had the opposing candidate sought and obtained a similarly selective extension of polling hours, I would find the order equally problematic, and the first candidate would have been reasonable in objecting to it.
In short, why limit the unqualified extension of polling hours only to certain precincts demographically favorable to one candidate, especially when the threat or reality of ballot shortages was equally or more severe elsewhere? If the federal court is going to give some precincts an extra opportunity to vote, why not broaden that extra opportunity to similarly situated voters in other precincts?
One way to appreciate the acuteness of the fairness problem caused by the March 4 order is to imagine that it made the difference in the outcome of the election. Although apparently only five extra ballots were cast as a result of the extension, suppose more had been and that they ended up being more than the margin of victory. Someone might try to say, “Isn’t it good that we gave more voters an opportunity to participate?” But I would respond, “Isn’t it unfair—and undemocratic—that we didn’t give this same opportunity to other voters, living nearby but not in the same precincts, who also might have taken advantage of the added time?” Indeed, isn’t a victory indelibly tainted as undeserved if obtained as a result of giving some voters, but not others equally situated, an extra opportunity to cast the decisive ballots?
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