Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Information and Analysis

Absentee ballots emerging as a trouble area nationwide

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October 31, 2008

It is becoming clear that the verification and counting of absentee ballots are emerging as top issues in this year’s historic election.  Absentee ballots are being used more this year because several states began allowing “no-fault” absentee voting, meaning any voter can vote early in-person or by mail without an excuse.  High interest in this presidential election and fear among voters of the long lines they saw in 2004 have also contributed to the vastly expanded use of absentee ballots.

As we enter the final weekend before the election, here are some of the reported problems we are seeing with absentee ballots:

OhioCuyahoga County: 2700 ballots rejected because of voter errors such as not sealing the inner envelope

OhioFranklin County: County website indicates confusing status reports for voters who have voted early in person causing voters to worry about whether their votes will be counted

FloridaPalm Beach County: Hundreds of voters’ absentee ballots being rejected for signatures not matching registration records and errors such as forgetting to sign their ballot and signing in the wrong place

Colorado:  Approximately 35,000 first-time voters’ mailed absentee ballots were rejected because voters did not include a copy of their ID with their ballot

Colorado: Sequoia fails to ship enough ballots to county causing voters to receive ballots late

(Update: 11/1/08) Indiana: GOP wins lawsuit to have challenged absentee ballots set aside and reviewed by bipartisan boards after the election instead of being opened and counted on election day

Absentee ballots provide a convenience for both voters and election officials.  Voters are understandably distressed that their ballots could be rejected because of unclear instructions or misunderstandings.  Critical to fair and effective administration of elections are clear rules on when to provide notice of errors and opportunity for voters to cure defects in their status or with their ballot.  Absentee ballot laws often do not provide for this notice and opportunity to cure before a ballot is rejected and, even though some officials may do this in practice, uniform standards often do not exist.  Until this year, this issue may not have received the attention it merits because the absentee voting option has not been used as heavily.  Voters should not face a greater risk that their vote will not count because they have chosen to vote by absentee ballot.  Hopefully, election officials will take note of arising problems and prepare to resolve them fairly and expeditiously.