In the days leading up to the Nov. 4 elections, the tension in the fourth floor faculty offices at The Ohio State University Moritz College of Law continued to build. But the pressure was not about who would win, but rather: would the election run smoothly? Would polling places be able to handle the predicted record turnout, which included many first-time registrations and voters? Would a winner be declared?
“A lot of progress has been made in the last eight years,” said Dan Tokaji, associate director of Election Law @ Moritz and an associate professor of law. “Voting technology did a better job of accurately recording a voter’s intent than in 2000. States did a better job of handling provisional ballots and there were fewer disputes than in 2004. Congress passed the Help America Vote Act (HAVA) in 2002 and the first election after a big change in law usually equals problems. But it is normally smooth the next time, and that is exactly what happened in 2008. Yet states still had great difficulty in the area of voter registration which, not coincidentally, has been subject to new federal requirements since 2004.”
In the months (well, actually years) leading up to the election, the Election Law @ Moritz team spent thousands of hours compiling data, reviewing statutes, and analyzing previous decisions to prepare for Election Day. The result: one of the world’s most thorough and informative election law web site available. The team created more than 50 different maps comparing various election law statutes nationwide, catalogued every potential election administration problem, gathered a mountain of legal documents and court filings, and blogged and updated the site daily.
“In the months leading up to the election, there were lawsuits in Ohio regarding the five-day window, in Indiana and Georgia regarding voter identification and in multiple states regarding voter registration and early voting,” said Edward B. Foley, director of Election Law @ Moritz and the Robert M. Duncan/Jones Day Designated Professor of Law.
While, in general, the election of America’s 44th president did run smoothly, there were significant problems in some states and localities. “These problems were masked by Obama’s decisive victory, but the problems are lurking in the system in the event that the next presidential election is much closer,” Foley said. Specifically, Foley points to the 200,000 provisional ballots cast in Ohio, which would be the basis for a protracted battle if Obama’s bid for reelection in 2012 is similar to the Ford-Carter election of 1976, for example.
In addition, the citizens of Minnesota watched the inauguration occur, the stimulus package pass, and more than 1,000 new pieces of legislation be introduced from the sidelines as they waited for the courts to determine the winner of one of their senate seats.
Election ’08 – Lessons Learned
Minnesota’s experience this year, according to Foley, should ring at least two alarm bells for anyone concerned with assuring a smooth presidential election in 2012. First, the rate at which absentee ballots are rejected is alarmingly high in many states around the country, and as Minnesota shows their rejection can serve as the basis for extended litigation over which candidate won. Second, neither Congress nor the states have put in place a feasible timetable for resolving these kinds of disputes before the need to inaugurate a new president on Jan. 20.
“Just imagine if the Minnesota recount involved the presidency, and not just a Senate seat,” Foley said. “And it’s not just Minnesota that needs time to conduct recounts. No state can complete a proper recount in a close election by the deadline that Congress has given for the Electoral College to meet.”
Lesson One: Early Voting is Great, Except When It Is Not
More than a dozen states used early voting for the first time, expanded their early voting programs, or highly publicized their early voting options. And voters embraced it.
“More and more voters are choosing to vote at a place other than their polling place on Election Day,” Tokaji said. “This is convenient for voters and can reduce the pressure on polling places. But it is also a huge challenge because voters tend to make mistakes with these alternative voting methods and there is no poll worker helping them through the process. They mismark ballots, mail ballots late, forget to sign ballots, and forget to include or do not have the required identification.”
While early and absentee voting reduced lines on Election Day, in many places, including central Ohio, voters just exchanged long Election Day lines for a long line at early voting sites. In central Ohio, only one early voting site was open in the 30 days prior to the election and the wait was upwards of eight hours as the line twisted its way outside the building. Voters casting absentee by mail had a significant number of their ballots eventually rejected because of a problem with the ballot. For example, more than 35,000 absentee ballots in Colorado were in jeopardy of being disqualified because voters did not properly enclose a photocopy of the right form of identification.
“One of the issues with early voting is that it is not easy for the absentee voter to ensure their ballot was properly received, processed, and accepted,” Foley said. “There is no automatic notification that a ballot has been rejected, which could allow a voter a “do-over” on Election Day by recasting a proper ballot at their designated polling place.”
Lesson Two: Voter Registration Is Still a Weak Point in the System
Unlike previous years when the counting of ballots and long lines were the sticking point, the 2008 presidential election’s problems involved getting voters properly registered in the first place.
“Voter registration is a major unresolved issue,” Tokaji said. “There is a massive influx of new voters and a major new federal law. The matching feature of HAVA is very challenging for some states and some states are still not in compliance.”
The majority of lawsuits in the 2008 election revolve around the issue of voter registration. Almost every point in the process was susceptible to criticism. Several private groups, including the Association of Community Organizations for Reform Now (ACORN) and Citizen Action, came under fire in multiple states, including the key swing states of Ohio, Indiana, and Pennsylvania, for reportedly falsifying voter registrations to meet quotas set for employees.
“While we saw vigorous attacks on ACORN and other groups, the cases brought against them weren’t successful,” Tokaji said. “The fact that there’s inaccurate or incomplete information on a registration card doesn’t mean that there’s been voting fraud. While a large number of inaccuracies can bog down the system, it has not been proven to lead to ineligible people voting.”
Perhaps more problematic were several states’ problems with the matching provisions of HAVA. The HAVA matching standard requires states to check voter registrations with another state database, such as a driver’s license database. But the law was unclear how this should be done and many states, including Ohio, had difficulty getting different computer networks to communicate and account for differences in how data is entered and stored. For example, accounting for suffixes, middle names and initials, name changes, and maiden names, as well as street names and abbreviations can cause a registration to be designated as invalid.
In addition, there was also concern about voter registration database purges. Guidelines called for voters who had not voted in the past two federal elections to be automatically deleted. Under this rule, an Ohio voter who did not vote in the 2006 senate race and did not vote in the 2004 presidential race because of long lines, would automatically be deleted. In Colorado, this rule led to more than 30,000 voters being initially deleted, but a judge later restored those names to the voter registration lists in the state. Florida also saw litigation, challenging its alleged “no match, no vote” policy.
“Some things to look at include expanding Election Day registration, which is used in nine states and is a safety net for voters because they can correct wrong information the day of,” Tokaji said. “In addition, a universal system of registration is used in Canada and other countries and switches the burden from the voter to the government.”
Lesson Three: Provisional Ballot Clarification Is Needed
Under HAVA, the provisional ballot was created to ensure that voters who went to the polls on Election Day had a way of formally indicating their selections if they incurred problems and were not eligible to cast an actual ballot. Provisional ballots are used when a voter does not bring proper identification to the voting precinct, goes to the wrong voting precinct on Election Day, or incurs some other problem. Many states, including Ohio, give voters a specific timetable to prove they were in fact eligible to vote.
“A provisional ballot says ‘this is a ballot with a potential problem’,” Foley said. “After Election Day, these ballots must be sorted and verified. Legally, they cause huge problems as sides argue about whether they should be counted. In 2008, provisional ballots weren’t an issue in the presidential election just because the margin of victory was significant. They still remain the red herring of our election system.”
In Ohio, 5.08 percent of the ballots cast on Election Day at the polls were provisional ballots, up from 3.16 percent in 2004. Statewide, about 80 percent of the provisional ballots cast were eventually deemed eligible and were counted, up from 78.4 percent in 2004. Had Ohio’s electoral votes counted on the outcome of these 200,000 or so provisional ballots, America would have again waited weeks to find out the winner of the presidential election.
Lesson Four: Partisanship Still Remains
In close elections, both parties have learned that understanding the rules and minutia of election administration and using those laws to their advantage can swing the results of an election.
“There still are issues of partisanship in election administration,” Tokaji said. “There are partisan secretaries of states overseeing elections in some states and partisan local election officials. It creates questions about whether an election is being handled in an even-handed and fair manner. We need to examine a more nonpartisan structure.”
Almost all of the pre-election litigation had the flavor of partisanship. In Ohio, the Republican Party filed suit against the Democratic secretary of state over voter registration; in Colorado, Democrats sued the Republican secretary of state over purges to voter registration rolls; and in Florida, Democrats sued Republicans to attempt to prevent alleged “frivolous” polling place challenges that lead to provisional ballots being cast.
“We have seen the inevitable problem whenever a state’s chief elections officer, charged with implementing the voting rules, is an elected partisan official. This problem is structural, and it exists whether the officer is an elected Democrat or an elected Republican,” Foley said. “The problem merely may be one of appearances, rather than reality, but that is enough in the elections business. The dynamic now exists in which the other political party attempts to undermine the credibility and legitimacy of the state’s chief elections officer, so that it can win back the position. Nonetheless, there will be no truly successful reform of the voting process unless and until our nation figures out a way to rid itself of this structural defect in our system.”
Lesson Five: A Final Arbitrator of Disputes Must Be Clarified
As was witnessed in the Minnesota senate race, sometimes the result of an election depends on the outcome of the smallest number of challenged ballots. When the results depend on a handful of ballots, the question becomes: who makes the final determination?
“At some point in our nation’s future, there will be another incredibly close presidential election, when the winner of the Electoral College depends on the outcome in a single state and the result in that single state depends upon the resolution over a dispute over the counting of ballots for presidential electors there,” Foley wrote in a blog posting. “When that occurs, all the reform of the voting process will not matter — including the institutional reform of nonpartisan chief election officers in each state — unless Congress has also reformed the institutional mechanism for resolving this kind of dispute over presidential ballots.”
This past fall, Foley proposed the idea of creating a nonpartisan, specialized election court to be the final arbitrator of election disputes in the country. A simulated adjudication of this specialized court was held in Washington, D.C., in conjunction with the AEI-Brookings Election Reform Project and the Georgetown University Law Center. Under the proposal, a three-judge panel including one Republican, one Democrat, and a third person selected and agreed upon by the first two, would act as the final arbitrator.
“In the aftermath of Bush v. Gore, it is unclear whether as a practical matter the institution that will resolve a future dispute over presidential ballots will be the U.S. Supreme Court again or, instead, Congress according to the arcane and imperfect procedures of the Electoral Count Act, which was adopted in the wake of the crisis of 1876,” Foley said. “This institutional uncertainty is unsettling — and undesirable. It is the result of the 12th Amendment failing to specify what should happen when this kind of dispute arises, a defect noted presciently by Joseph Story in the 1830s but we have yet to rectify. While it might not seem the most pressing reform given the odds each year against another meltdown scenario, as a nation we have suffered considerably the two times that this deficiency has mattered: 1876 and 2000. It would be preferable that, whenever this kind of situation happens again, we have already taken the steps to be better equipped with a clear and fair method of resolving this kind of dispute.”
Lesson Six: More Work Is Needed
While the spotlight did not fall on election administration this year as brightly as it has in the past two presidential elections, that does not necessarily mean the system is fixed and optimal.
“What I would like to see is a decade-long agenda for fixing our election system. I call this agenda ‘2020 Democracy: Developing and Implementing a Vision for our Nation’s Voting Process,’” Foley said. “Consider it a gift to the children born in 2000, that year of the hanging chad. For the first presidential election in which these first-born citizens of the 21st century can vote, we will bequeath to them a truly state-of-the-art electoral process. If the nation could actually achieve that objective, it would be worth waiting for; and if the 111th Congress sets in motion the process that yields this result, it will deserve the historical credit.”
Among Foley’s top concerns for the short-term is the length of time it takes some voters to cast their ballots.
“It is truly unconscionable the amount of time that many voters, particularly African-Americans, needed to wait in line this past election in order to cast their ballots,” Foley said. “On Election Day, there were reports of voters in several states — including Missouri, Pennsylvania, and Virginia — waiting five, six, or seven hours to vote. There was even one CNN report of a Pennsylvania voter waiting 11 hours. Missouri’s secretary of state has expressed the fear that some voters were unable to withstand the excessively long lines in that state, and since the presidential election in Missouri was undecided after Election Day, it is conceivable that disenfranchisement caused by the inordinate waiting times could have ended up being decisive on which candidate won that state. But voting should not be such an ordeal. Congress should set a national standard that no voter should have to wait more than one hour to cast a ballot and then work with states on ways to implement this standard.
A change from Election Day to Election Week, at least for presidential elections, would seem a sensible place to start. This move would differ from ’early voting,’ as currently practiced in many states, where only one location is available for voting in each county prior to Election Day. This year we saw five-hour and longer lines at these single ‘early voting’ locations. The different concept of Election Week, by contrast, would consist of multiple ‘voting centers’ dispersed throughout a county, which would be open 12 hours per day, for seven days. Surely, voters could find a time within their busy schedules to visit one of these vote centers and cast a ballot without having to wait more than one hour. It would be more expensive than our current practice, but this year demonstrates that there is a constitutionally minimum level of expenditure necessary in order to prevent voters from having to suffer unreasonably long lines at polling places. Bottom line on this point: certainly by 2012, when the United States next votes for president, Congress should have put in place a solution to the long-line problem we saw this year.”
Tags: Daniel Tokaji, Edward Foley