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Commentary

Will the Voting Rules Affect Which Candidate Wins?

One of the concerns voiced lately, on oped pages and elsewhere, is whether changes in voting rules might determine the outcome of this year’s presidential election. Will Pennsylvania’s new voter ID law cause Romney to win that state, when he otherwise would not? Likewise, will cutbacks in early voting in both Florida and Ohio deliver those swing states to Romney, when he could not have won them otherwise? Underlying such questions is a fear that a victory may lack legitimacy if it is attributable to a change in the voting rules.

But we need to be careful about exactly what we might mean by a potentially delegitimizing rule-change. Not every alteration of voting rules is capable of having this kind of deleterious effect. To take an obvious example, suppose a state for budgetary reasons decides to cut back from five full weeks of early voting, including Saturdays and Sundays, to only four full weeks—thus keeping Saturdays and Sundays intact during these four weeks. No one would think this change potentially delegitimizing since there still would be ample opportunities to take advantage of early voting. Consequently, no one would view this rule change as potentially outcome-determinative, the reason for one candidate winning rather than the other.

In other words, if we worry that a change in the voting rules might actually be outcome-determinative, it is because we are concerned the change may contravene the basic democratic premise that there be an adequate opportunity for every eligible citizen to cast a ballot that will count. If this premise holds true, then the decision of an eligible citizen not to vote is a voluntary one. If the premise still holds true even though there is a change in the details of the voting rules, then the decision not to vote remains voluntary. In this situation, the rule change is not disenfranchising, and the outcome of the election is not affected by the rule change. The result of the election, whatever it might be, is “authentic,” meaning it genuinely reflects the will of the electorate—including those who chose not to cast a ballot—because despite the rule change every eligible citizen still had an adequate opportunity to cast a ballot that would count.

Thus, it is only when a change in the voting rules would negate this adequate opportunity that the rule change is potentially outcome-determinative. But if this is indeed the circumstance, then we have great reason to worry because the predicate assumption of a democracy would no longer obtain. Absent an adequate opportunity to cast a ballot that will count, no one can be assured that the result of the election is authentic in reflecting the genuine will of the eligible citizens, all of whom should have had an adequate opportunity.

In light of this basic democratic standard, is there reason to be concerned that rule changes applicable to this year’s election (and much in the news these days) will have the effect of depriving any eligible voters of an adequate opportunity to cast a ballot that will count?

Here’s where this week’s federal court decision in Florida v. United States is so important. The three-judge court essentially ruled that Florida could not prove that its changes to the state’s early voting rules would not have this kind of effect. Instead, according to the court (at page 60), the evidence indicated that Florida’s rule change “would impose a sufficiently material burden to cause some reasonable minority voters not to vote.” More specifically, the court declared (at page 62) that the state’s changes in early voting rules “would lead to substantially increased lines, overcrowding, and confusion at the polls, which would in turn discourage some reasonable minority voters from wanting to cast their ballots.”

A skeptic might question whether the specific rule change before the court in that case—reducing early voting from 96 to 48 hours, while shifting some of the weekend hours to add 6 hours of Sunday voting—would in fact cause eligible minority citizens who want to participate in the election to lack an adequate opportunity to do so (especially if one factors in the availability of “no excuse” absentee voting in Florida). But the applicable legal standard under section 5 of the Voting Rights Act requires Florida to prove that the rule change does not, in the words of the court (at page 39), “impose a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise.” The burden of proof, in other words, was on Florida, and the state could not meet its burden.

Consequently, Florida v. United States is a key case to watch, if one is concerned whether changes in voting rules might be outcome-determinative this year. Recent news suggests that the state may acquiesce in the decision, thereby guaranteeing enough early voting hours to satisfy the court that minority voters have an adequate opportunity to participate in the election. But what if the state appeals the case to the U.S. Supreme Court? Is there a risk that the Supreme Court would let Florida make a rule change that might deprive minority voters of an adequate opportunity to participate in the election (since the state was unable to prove otherwise)? Or would the Supreme Court need to reject the factual premise of the lower court’s decision—that Florida failed to meet its burden of proof—in order to let the rule change take effect?

Ohio is another presidential swing state that has changed its rules on the days and hours for early voting. Unlike Florida, however, Ohio is not subject to section 5 of the Voting Rights Act (because Ohio does not have the same legacy of racially discriminatory voting laws that some counties in Florida have). Therefore, with respect to Ohio’s rule changes, the burden of proof runs the other way: to invalidate Ohio’s changes under section 2 of the Voting Rights Act (which applies to all states) it would be necessary to prove that the changes in fact deny minority voters an adequate opportunity to cast a ballot that will count. I have previously expressed my view that Ohio law, as it currently stands, is unduly stingy in refusing to provide any weekend hours of early voting. But I’m not prepared, based on what I know at the moment, to go so far as to say that this stinginess results in a situation where minority voters in Ohio who wish to participate in the election lack an adequate opportunity to do so. Still, if there were evidence demonstrating that minority voters in Ohio truly need some weekend hours of early voting in order to have an adequate opportunity of participating in the election, then Ohio’s change in early voting rules would fall into the disturbing category of being potentially outcome-determinative and thus undermining of democracy.

One might wonder why the burden of proof on this crucial question of democratic legitimacy should be different in Florida and Ohio. When viewed through the lens of the upcoming presidential election, both swing states seem equally important, and the issue of potential minority disenfranchisement is equally troublesome if it were to occur in either state. Either in the Florida case, or another, the Supreme Court soon will have to confront the constitutional question of whether Congress, in the enforcement provisions of the Voting Rights Act, can continue to differentiate between states based on their history of past discrimination. Without delving deeply into the merits of that momentous constitutional question here, I note only that the juxtaposition of the early voting changes in both Florida and Ohio vividly illustrates what is at stake with regard to that constitutional question. One can argue that Florida should continue to bear a burden of proof inapplicable to Ohio precisely because it was part of the Old South that oppressed African-Americans for so long. But one can also argue, conversely, that in 2012 the rights of minority voters to participate in the presidential election should be protected in both Florida and Ohio to the same extent, and that it would be anomalous at this point that Ohio’s African-Americans lack a statutory safeguard that Florida’s African-Americans have.

There is another Ohio case to watch closely if one is concerned that the particular voting rules in place might be outcome-determinative, and thus undermining of democracy, in the presidential election. The case is SEIU v. Husted and it concerns the rules for counting provisional ballots affected by poll worker error. Ohio has a serious problem insofar as a relatively large number of voters are given provisional ballots for precincts other than the one in which they reside. In the November 2008 general election, statewide 14,335 ballots of otherwise eligible voters were disqualified for this reason. Of these 14,355, we don’t know precisely how many were attributable to poll worker error, but we can surmise that most of them were. There are few reported instances in which voters go to the wrong polling location, are properly told by poll workers that they need to go elsewhere in order to cast a ballot that will count, but insist on casting an uncountable provisional ballot anyway. Instead, based on the evidence in Hunter v. Hamilton County Board of Elections, the more likely situation is that the voter shows up at the correct polling location, but for budgetary reasons several precincts share the same polling location, and the poll workers give the voter a provisional ballot for the wrong precinct instead of giving the voter a regular ballot for the correct precinct.

As a result of a 2011 decision of the Ohio Supreme Court, Ohio law takes the unreasonably draconian position that even in this situation, where the poll workers are obviously at fault, the provisional ballot must be discarded and thus the eligible voter must be disenfranchised as a consequence of the poll worker error. SEIU v. Husted is a lawsuit claiming that, by taking this position, Ohio law violates the Fourteenth Amendment. If that lawsuit fails, we confront the possibility that the presidential election may turn on Ohio’s rejection of 10,000 or more ballots cast by valid voters, who went to their correct polling locations but who were mistakenly given the wrong ballot by the poll workers there. I do not think that is a situation that the nation will find to be tolerable, because it is not one in which these voters were given an adequate opportunity to cast a ballot that counts. In this situation, these voters did what they were supposed to: they exercised their civic duty and went to the polls on Election Day. They were entitled to vote and yet they were disenfranchised by the poll workers there. It is a situation that does not satisfy the basic precept of a democracy: if this disenfranchisement of these valid voters provides the winning margin in the presidential election, the outcome is not the authentic choice of the eligible electorate who turned out to vote.

Based on media attention, there is currently great concern that Pennsylvania’s new voter ID law will affect the result of the presidential election in that state. But, as indicated by this week’s ruling in the case challenging that law, it should be possible for every valid voter in Pennsylvania to cast a ballot that counts, even if the voter is unable to obtain the required ID. No one, in other words, should be wrongly disenfranchised by the Pennsylvania law, and if there remains a risk that this law denies some voters an adequate opportunity to cast a ballot that counts, then further litigation—either in state or federal court—remains possible to make sure that the law does not have this disenfranchising effect.

The Ohio law of provisional voting, however, presents another story. That law, as interpreted by the state’s supreme court, truly could disenfranchise enough valid voters to tip the balance of the presidential election. Therefore, for those concerned that the rules might determine the winner—and thus risk delegitimizing the result—the SIEU v. Husted challenge to Ohio’s provisional voting rules should be high on the list of cases to track, together with Florida v. U.S.

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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