arrowSection 5.1 - Polling Place Rules

This topic is monitored by Moritz Law Professor Terri L. Enns

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Election Law and Civil Rights in 2004

Introduction

As the legal framework becomes more complex, the opportunities for malfeasance on election day escalate. Efforts to correct abuses and neglect of years past may unwittingly provide new means of disenfranchisement. Similar to the poll tax, literacy test, grandfather clauses, and physical intimidation and violence, there continue to be deceptive methods aimed at intimidating and suppressing the minority vote. Awareness of the legal issues affecting minority communities is essential. The story of voting rights illustrates the reality that commandments of law are not enough to protect the right to vote. Vigilance within each generation is called for to secure what has been won.

In the 2000 presidential election, 1.9 million Americans cast ballots that were rejected as being flawed and thus not counted. 1  About 1 million of them—half of the rejected ballots—were cast by African Americans although black voters make up only 12 percent of the electorate. 2  The U.S. Civil Rights Commission concluded that, of the 179,855 ballots invalidated by Florida officials, 53 percent were cast by black voters. In Florida, a black citizen was 10 times as likely to have a vote rejected as a white voter. 3  Civil Rights Commissioner Christopher Edley, recently appointed dean of Boalt Hall School of Law at UC Berkeley, took the Florida study nationwide. His team discovered the uncomfortable fact that Florida is typical of the nation. Philip Klinkner, the statistician working on the Edley investigations, concluded, "It appears that about half of all ballots spoiled in the U.S.A.—about 1 million votes—were cast by nonwhite voters." 4  Post-election legal machinery comes too late to count votes lost due to mistake or abuse. Prevention is the best form of protection.

Purging of Registration Lists and Minorities 5 

During the 2000 Presidential election there was mass confusion in Florida over which precincts voters belonged to, because the explosive population growth had led to the creation of new precincts and split up old ones, which voters had used for years. The latest census data shows that blacks and Latinos are far more likely than whites to move frequently and be impoverished. As a result they are less likely to know their correct precinct after a recent move. For these reasons, the disenfranchisement of Florida's voters fell most harshly on black voters who, statewide, based on country-level statistical estimates, were nearly 10 times more likely than nonblack voters to have their ballots rejected. 6  In Ohio,

  • If you have moved within the same precinct or changed your name, you have the right to vote at that same assigned polling place. 7 
  • If your name is not on the list of registered voters or you are a first time voter who registered by mail and you do not have identification and you did not include a copy of your identification with your application, you have the right to vote by provisional ballot. 8 
  • If you have moved within the same county or moved from one precinct to another and changed your name, you have the right to vote at the polling place in the precinct in which you currently live, at a site designated by the board of elections or by an absentee ballot. 9 
  • If you have moved to a different county, you have the right to vote at a site designated by the board of elections or by an absentee ballot if you are unable to appear in person. 10 

For more information, see

Vote Spoilage

Voters using more accurate electronic machines and who have courteous assistance and a helpful hand are much less likely to have their vote spoiled. In Ohio, if you make a mistake and "spoil" your paper ballot, you have the right to receive another ballot and vote. You cannot receive more than three ballots. 11 

Felony Disenfranchisement 12 

Nationwide, more than 4 million Americans, almost half of them black men, are unable to vote because of laws that bar felons, according to the Sentencing Project, a criminal justice research and advocacy group in Washington. 13  Except for Vermont and Maine, which allow incarcerated people to vote, every state has some voting restrictions for felons. Some laws, including Florida's, date to Reconstruction, and state rules for granting clemency vary widely. In Ohio, felons are automatically restored the right to vote upon release. If you are in jail you have the right to vote as long as you have not been convicted of a felony and if you have been released from prison for conviction of a felony, you have the right to vote after re-registering even while you are on probation or parole. 14  For ex felons outside of Ohio, they should check with their respective state or contact the local NAACP to find out what is required to register and to vote.

Further details on felony disenfranchisement

HAVA

In October of 2002 President Bush signed the Help America Vote Act (HAVA). Although HAVA was created as a remedy to many of the problems (punch card voting machines, limited disability access, and inaccurate voter registration lists) encountered in the 2000 presidential election, HAVA has created inflexible requirements that disproportionately affect minorities. Imposing strict requirements (only certain types of photo identification will be accepted), exacerbated if officials implementing these requirements use a hostile or unfriendly tone, HAVA instills hesitation in Latino and new citizen immigrants from participating in the American Democratic process. An ACLU lawsuit notes that, blacks and Latinos are less likely to have photo identification or to know their correct precinct after a recent move. "I know elderly people here who have never driven a car in their entire lives," commented Norma Jean Sawyer, wife of the plaintiff in the lawsuit. "They don't have photo ID. You tell them ID is required and give them no options and they will not vote." 15 

Multilingual Voting Instructions

Federal law requires ballots to be printed in two languages in any county in which voting-age citizens with English-language deficiencies make up at least 5 percent of the population. The Department of Justice is currently investigating possible violations of the federal Voting Rights Act, under which several Florida counties are mandated to provide bilingual assistance because of a repeated history of discriminating against immigrant voters. "The failure to provide proper language support resulted in widespread voter disenfranchisement of possibly several thousand Spanish-speaking voters in central Florida," the commission concluded. 16 

Conclusion

While the physical and psychological barriers to voting may still occur, there are efforts being made to protect everyone's right to participate in the democratic process. Many of these barriers, intended or not, have a disproportional impact in depressing the vote of racial and language minorities. But it should be emphasized, these are barriers and not a bar. With some knowledge and persistence, there is a much greater chance for minorities to participate. This is important not just for the minority communities but also for the legitimacy of our democracy.

[Posted: September 21, 2004]

Notes

1. Greg Palast, 1 Million Black Votes Didn't Count in the 2000 Presidential Election
It's Not Too Hard To Get Your Vote Lost -- If Some Politicians Want It To Be Lost
, The San Francisco Chronicle, (June 20, 2004), at http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/06/20/ING2976LG61.DTL

2. Id.

3. GREG PALAST, THE BEST DEMOCRACY MONEY CAN BUY, 37 (2002). Florida's Gadsden County has the highest percentage of black voters in the state—and the highest spoilage rate. One in 8 votes cast there in 2000 was never counted. Many voters wrote in "Al Gore." Optical reading machines rejected these because "Al" is a "stray mark." By contrast, in neighboring Tallahassee, the capital, vote spoilage was nearly zip; every vote counted. In Tallahassee's white-majority county, voters placed their ballots directly into optical scanners. If they added a stray mark, they received another ballot with instructions to correct it.

4. Greg Palast, 1 Million Black Votes Didn't Count in the 2000 Presidential Election
It's Not Too Hard To Get Your Vote Lost -- If Some Politicians Want It To Be Lost
, The San Francisco Chronicle, (June 20, 2004), at http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/06/20/ING2976LG61.DTL

5. See http://moritzlaw.osu.edu/electionlaw/eligibility_rules01.html for an overview of the legal framework.

6. U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, June 2001, executive summary.

7. § 3503.16 (B)(1)

8. § 3503.16 (C)

9. §§ 3503.16 (B)(2), (G)

10. §§ 3503.16 (C), (G)

11. § 3505.23

12. See http://moritzlaw.osu.edu/electionlaw/eligibility_felon.html

13. See http://www.sentencingproject.org/issues_03.cfm

14. §§ 2961.01, 3503.21

15. American Civil Liberties Union, ACLU of Florida Challenges Discriminatory Voting Act, (2001), at http://www.aclu.org/VotingRights/VotingRights.cfm?ID=10297&c=32

16. U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, (2002), at http://www.usccr.gov/pubs/vote2000/report/ch9.htm