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.

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Recent News & Analysis

Below are the most recent News & Analysis posts on Improper Election Administration. See All News & Analysis on Improper Election Administration

1/1/09
A Visible Reason that Precludes a Victory Lap
[Read More]

12/26/08
MN Supreme Court rules against Coleman

The Minnesota Supreme Court denied Coleman the relief he was seeking regarding damaged originals and unmatched duplicates. The justices found that the state canvassing board did not act in error by denying such challenges and that the Coleman campaign's claim of double-counted ballots would be better resolved in a court hearing where evidence can be presented.  The order will make it very difficult for Coleman to overcome Franken's lead in the adminstrative recount.  The Coleman campaign plans to take the duplicate ballot issue to court which practically guarantees that the seat will go unfilled when the Senate resumes Jan. 6.  See the Star Tribune coverage here.  See the Court's order here on our case page. 

12/23/08
MN Supreme Court hears oral arguments over original/duplicate ballot issue

The Minnesota Supreme Court just heard oral arguments from the Coleman campaign and from respondents the Franken campaign, Hennepin County, the city of Minneapolis, and the Secretary of State. The suit was brought by Coleman who alleges that double-counting of votes may happen as a result of the state canvassing board’s decision to reject all challenges based on original/duplicate issues. The Coleman campaign alleges that during the recount, in 25 precincts, originals were counted when there was no corresponding duplicate ballot found. The Coleman campaign suggests that this took place because duplicate ballots came uncoupled from their originals or were not properly marked as duplicates.  Further, the campaign alleges these duplicates were counted in the recount in addition to the originals resulting in double-counting of some ballots. Comparing the number of voters with the number of ballots was apparently not part of the recount process so it is unclear to many whether the Coleman campaign’s assertion that this only happened in 25 precincts is correct. The Coleman campaign is asking the court to stop the state canvassing board from certifying the vote totals before the counties can amend their returns with corrections of any double-counting that may have taken place. The Franken campaign argues that having more originals than duplicates could have happened without double-counting. For example, it suggests that election judges could have set aside an original and never gotten around to creating the duplicate. The Franken campaign’s main argument is that there is a genuine issue of material fact—whether double-counting took place and where—that must be resolved in an election contest suit. The justices asked questions about what makes this situation different than the absentee ballot situation that the Court ruled on last week, i.e. why is this obvious error that must be corrected when the campaign argued last week that reviewing rejected absentee ballots was not a matter of obvious error. Coleman’s attorney said that this issue has to do with counting and recording ballots while reviewing rejected absentee ballots did not. The justices repeatedly asked Coleman's attorney what evidence the campaign has shown the Court to meet their burden of proof establishing their right to the requested relief and why this issue was not best left to an election contest suit. Coleman’s attorney responded that an election contest ought to be avoided when it can and cited Reynolds proposition that a voter can be disenfranchised by the inclusion of invalid votes in an election.

11/26/08
6th Circuit issues important decision in League of Women Voters v. Brunner

The 6th Circuit issued an opinion in League of Women Voters v. Brunner (formerly "v. Blackwell") favoring Plaintiffs on Defendant's interlocutory appeal of the district court's decision not to dismiss the case.  It has been remanded to the district court.  The case cites many examples of voter hardship from the 2004 election and alleges systemic failure in Ohio's voting systems and failure by the Secretary of State and Governor to remedy the problems.  EL@M Director, Edward B. Foley, analyzes the decision here, discussing its importance and, in particular, its citation of Bush v. Gore as support for the validity of Plaintiffs' claims.

11/10/08
Food table partly to blame for long lines at Missouri polling place

Many voters waited from 2 to 6 hours because there was not enough space at a St. Louis County polling place. Poll workers had set up a break area with a large table and chairs instead of using the limited space to set up all of the touch screen machines and paper ballot privacy stations that had been allocated to the precinct. Poll workers endure a very long day and surely need a place to have meals and take breaks. However, better management of the situation could have resulted in shorter waits for voters and lower incidence of voters leaving without voting (it is not known if any voters left this particular precinct without voting but that is the expectation when lines are very long). Late in the afternoon, the mayor of Velda City became aware that there were additional machines that could be used and offered other rooms in the building to accommodate them. They were set up at about 5:30 p.m. but waiting times remained long. [Read More]

Recent Commentary

Below are the most recent Commentaries on Improper Election Administration . See All Commentaries on Improper Election Administration

2/19/09
An Extra “Equal Protection” Thought: Local Policy or Local Mistakes?

12/9/08
If the Minnesota Recount Involved a Presidential Race…

Happy Safe Harbor Day. No, it’s not to celebrate measures to secure seaports against terrorist threats, although that’s certainly a worthwhile goal.

Instead, it’s the day that Congress has set for states to resolve all controversies concerning the counting of votes for President, if the states wish their resolution to be binding when Congress meets to declare officially the election’s winner.

Eight years ago, it was the day that the U.S. Supreme Court ended the Florida recount in Bush v. Gore. Under the Electoral Count Act of 1887, which Congress passed in the wake of the disputed Hayes-Tilden election of 1876, Safe Harbor Day is always the fifth Tuesday after Election Day, and six days before the Electoral College meets in each state.

11/26/08
New Bush v. Gore Precedent

A unanimous 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has released an important opinion in a case I’ve been watching closely for several years. This new precedent could have major implications going forward.  Arguably, it is now the most significant appellate court reliance on Bush v. Gore.

11/10/08
Voting next time—and in 2020

[Please note: This comment originally appeared on Rick Hasen's Election Law Blog as part of his Fixing Election Administration series.]

Election reform should embrace a long-term perspective and include non-partisan administration of the voting process. Meanwhile, eliminating unconscionably long lines at the polls is a short-term imperative, as is the need for more data on which to base long-term reform.

It is too soon after the casting of ballots this year for any definitive pronouncements on exactly what reforms the new Congress should adopt in order to improve the voting process. Many of these ballots still remain to be counted. Although there already are calls for legislation that would revamp voter registration, for example, we are likely to learn much more over the next month about the way voter registration actually worked in 2008.

11/3/08
Pennsylvania officials fear electoral flood tomorrow

Pennsylvania is appearing today as perhaps the state least prepared to handle the expected voter turnout tomorrow. The Philadelphia Inquirer is quoting the City Attorney as saying: "It's going to be, I think, extraordinarily crowded." This is on top of the mayor, as well as the governor, urging voters—when they can—to vote in the middle of the day, rather than in the morning or evening. According to a separate report in the Pittsburgh Tribune-Review, an extra state judge has been assigned to handle anticipated litigation over long lines, and other polling places problems, that may arise there. In light of this situation, one wonders whether the lawsuit that secured the use of emergency paper ballots in the event that 50% of machines become inoperable in a particular polling case will be invoked to permit the use of these paper ballots even if all the machines are operating. Pennsylvania lacks the "early voting" option that may work to ease the demand on the infrastructure elsewhere tomorrow. Question: if a polling place has only 50% of the voting machines that it arguably should have to handle the level of anticipated turnout, is that the same for Fourteenth Amendment purposes under last week's ruling as a polling place that allocated the correct number of machines but 50% have become inoperable?

Recent News Stories

Below are the most recent News Stories on Improper Election Administration. See All News Stories on Improper Election Administration

10/1/09
Common Cause sues over voting machine delay

Advocacy group Common Cause is suing Secretary of State Tre Hargett over his refusal to immediately implement a state law requiring paper trails for voting machines in time for next year's elections.

10/1/09
Common Cause sues Tennessee over paper ballot law

The citizen-advocacy group Common Cause Tennessee filed a lawsuit in Davidson County Chancery Court on Thursday seeking to compel the state to deploy paper ballots and to have scan voting systems in use statewide by the November 2010 elections.

2/8/09
Candidates allege top elections officials had conflicts of interest in 2008 vote

Was it fair for Bryan C. Williams, deputy director of the Summit County Board of Elections, to support an opponent of state Rep. Brian G. Williams in last year's election? Or was it fair for Board of Elections Director Marijean Donofrio to serve while her husband, Summit County Fiscal Officer John A. Donofrio, was seeking re-election?Ohio Secretary of State Jennifer Brunner is being asked to answer those questions, after the Summit County Board of Elections on Feb. 2 voted to refer two complaints alleging conflict of interest to her.

2/3/09
Elections board will ask Brunner to resolve dispute

The Summit County Board of Elections voted Monday to ask Ohio Secretary of State Jennifer Brunner to determine whether political activity by two elections officials was proper.

1/17/09
Hillsborough Finds Uncounted Ballots

In a bizarre postscript to the problem-plagued Nov. 4 election, Hillsborough County officials said Friday they have discovered 440 uncounted ballots more than two months after the official results were submitted to the state for certification.

Current Litigation

Below are the Active Cases on Improper Election Administration . See All Current and Archived Cases on Improper Election Administration