Posted: November 1, 2008

3 Things I'm Watching For

As I reflect over this last weekend before November 4, these are the three voting administration issues at the forefront of my mind:

1. Will Demand Exceed Supply?--especially in a "no early voting state" like Pennsylvania. To me, the most worrisome threat on the horizon from a national perspective is the potential that states won't be able to handle the volume of voters on Tuesday. If this happens, at a minimum we can expect to see a request for further federal court relief in Pennsylvania and Virginia (as is already occurring), and extension of polling hours (perhaps administratively, perhaps judicially--perhaps statewide, perhaps locally). Even worse, what if at the end of the day Tuesday, there is a sense in one or more battleground states that thousands of voters have been unable to cast ballots despite trying--waiting in line for several hours but eventually giving up because of child care and/or work responsibilities--and that these "missing ballots" might have made a difference in the outcome?  One really doesn't want to contemplate what, if any, remedy might be possible in that situation, so let's fervently hope it doesn't happen.  UPDATE: More reports today of the potential for this kind of problem in Pennsylvania.

2. Will the Number of Uncounted Ballots Significantly Exceed the Difference in Counted Ballots? Provisional ballots probably will remain the biggest sub-category of uncounted ballots that could hang over Tuesday night’s reports of who’s ahead in counted ballots, but it is not the only sub-category to look at. Here are two other sub-categories: (a) disputable absentee ballots; and (b) “residual” optical scan ballots for which the readers arguably failed to record the voter’s marking of the oval. Over the last 24 hours or so, reports from various battleground states (Colorado, Florida, Indiana, and Ohio) concerning significant numbers of absentee ballots that appear problematic—and therefore cannot automatically be counted—raise the possibility that this sub-category of uncounted ballots could become an important factor, in addition to provisional ballots, in obscuring the outcome on Tuesday night. Likewise, as the recent case from New Mexico reminds us, it is still possible to fight over “residual” optical scan ballots that the machines did not record as containing a vote. While the residual vote rate for optical scan ballots is lower than for the now-replaced punch card ballots, it is not zero, and it too potentially could become a factor. The comparison of the number of disputable uncounted ballots (in all sub-categories) to the difference between the candidates in the counted ballots is, perhaps, another way of invoking the 2004 question: is the margin of victory larger than the margin of litigation? But it helps me to focus on what the “margin of litigation” might consist of, and here I’m pointing out three distinct sub-categories of uncounted ballots that could be the basis of a dispute.

3. Will a Lack of "Paper Trail" Undermine the Outcome in Any Critical State? Probably not, but it's a vulnerability that's been known about for a while, which many states have addressed, but some (including Pennsylvania) have not.

Also, when it is comes to voting administration, it is always prudent to expect the unexpected.  Consequently, an additional non-specifc thing to watch for on Tuesday is how well a state or locality handles an unanticipated situation if one occurs.  Has the state or locality put in place some kind of nimble "rapid response" procedure that can prevent the unplanned-for event from becoming worse of a problem that it otherwise might be?

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