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Election Law @ Moritz

Election Law @ Moritz


Commentary

A Visible Reason that Precludes a Victory Lap

I generally agree with much of what Doug Chapin says in matters of election administration and specifically agree with three points he makes in his contribution to Rick's cyber-roundtable on this topic:

  • first, it is important not to be overly alarmist about the prospects of the voting process in advance of Election Day, as some voter protection groups sometimes seem to be;
  • second, from initial appearances the process on November 4 generally went better than many expected, especially in states that lacked early voting;
  • and third, preliminary assessments of the voting process in this year's general election are necessarily incomplete, since provisional ballots have yet to be counted and other aspects of the process remain unfinished (a point I made in my own previous post in this series).

Nonetheless, despite these points of agreement, I differ with Doug on his assertion that the voting process is entitled to take a "victory lap" based the "successes" of this year.

Nor do I believe that it is necessary to invoke Heather Gerken's notion of an "invisible election" in order reject Doug's "victory lap" characterization. Heather may well be correct that an overabundance of problems went unreported. But one glaring defect did not, although it is not mentioned by Doug and somewhat downplayed by Heather.

This flaw is the unconscionably long lines that some voters were forced to endure on November 4. As I argued in my own earlier contribution to this dialogue, this is one patently indefensible practice that need not await a final gathering of evidence in order to be condemned as unacceptable--and thus it prevents a declaration of administrative success about November 4.

Heather refers to waits of "three hours of more," and of course the fact that it takes anyone three hours to cast a ballot on Election Day should be horrific enough. But three hours is mild in comparison to what the media reported.

A cursory LexisNexis search reveals the following news stories:

  • Lines four to five hours long in Maryland (NPR)
  • Up to five hours in Indiana (Nobelsville Ledger)
  • More than 5 hours in Detroit and Philadelphia (Stateline.org) [an article that quoted Doug on a different point]
  • Four and six hour waits in Missouri (St. Louis Dispatch)
  • Six and seven hour waits in Virginia (Virginian Pilot, Gannett News)
  • Seven hour waits in Pennsylvania (Philadelphia Inquirer)

But that is not all. Amazingly, there were multiple reports of voters in Pennsylvania waiting for eleven or eleven-and-one-half hours to cast their ballot on November 4! One report, from CNN about Upper Darby voters, was republished in an Australian newspaper. Two other separate reports, about precincts at "Allen High" and "Lincoln University... in Chester County," were published in Morning Call, an Allentown paper.

To be sure, these fiascos did not occur in every state or everywhere in a single state. But no voter should have to suffer such hardship on Election Day, especially in a state like Pennsylvania that lacks an early voting option.

The fact that voters this year were willing to withstand this injustice, in order exercise their democratic right to participate in this historic election, hardly excuses the administrative malfeasance perpetrated against them.

There could have been massive disenfranchisement, or civil unrest, if voters had lost their patience as they reasonably might have. The administrative system deserves no credit for their having been extraordinary in their willingness to wait.

Thus, if November 4 involved a victory in the operation of the democratic process, it was the voters' own victory in triumphing over the adversity imposed upon them by the system. But that is not the kind of victory that Doug appears to have in mind.

He suggests instead an administrative victory that the election officials are entitled to celebrate. I for one, however, do not think such official celebrations are in order when voters must wait five, six, seven--even eleven hours--to cast a ballot on the only day that the law permits them to do so.

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

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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. 

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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

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