Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Thursday, December 18
The Wrong Approach to Election Reform
The Ohio legislature yesterday approved a bill (SB 380) that would eliminate the window for early registration and absentee voting, among other things. Here's a snippet from my testimony in opposition to the bill last week, which draws upon the "Moneyball Approach to Election Reform" that I've advocated in the past:
In considering election reform proposals, it is vital that legislative bodies take a careful, studied, and deliberative approach, one that collects and considers all the relevant evidence and data from this state and other states on how existing election administration works and what if anything is likely to improve it. That has not been done in this case. What we have learned over the past eight years is that the worst way to do election reform is to rush through a bill with a party-line vote, without taking the time to collect data on existing practices and proposed reforms. Yet that, unfortunately, is precisely the faulty process that is being followed here. For this reason, I urge that the bill be rejected in its entirety.The bill now heads to the Governor.
(Disclosures: I was an attorney for plaintiffs and amici in litigation seeking to preserve the window for simultaneous registration and absentee voting. My wife works in the Governor's office, though not on election matters.)
Friday, November 7
On Monday, I identified four problem areas to watch out for on Election Day: 1) lines at the polls, 2) voting equipment, 3) voter registration lists, and 4) provisional and absentee ballots. While machine breakdowns and polling place lines got the lion's share public attention on Election Day, a closer look reveals that voter registration was the election administration issue of 2008. Looking forward, it is imperative that policymakers consider changes to voter registration that would eliminate unnecessary barriers to participation and reduce the need for provisional ballots. Expanding Election Day Registration would be a great place to start.
There are a couple of reasons for the special importance of voter registration this year. One is the massive influx of new voters. The other is a change in the law. The Help America Vote Act of 2002 (HAVA) required every state to implement a statewide voter registration list by 2006. Before that, most states maintained their voter registration lists at the local level. This was the first presidential election in which this major change to our voter registration system was in effect. And like any other change -- such as the implementation of new voting machines and provisional voting in 2004 -- it caused its share of problems.
Especially challenging was the implementation of HAVA's requirement that statewide registration databases be "matched" against information in motor vehicle and social security records. This particular requirement proved problematic, because HAVA provides little clear direction on how this matching is to be done or on what consequences should follow from a failed match. In addition, the process of matching registration records against other government lists turned out to be much more difficult than Congress imagined when it passed HAVA.
Registration matching became a focal point of controversy, partly because of the revelation that some ACORN canvassers had submitted phony voter registration forms rather than doing the work for which they were being paid. There is little evidence that this led to actual voter fraud -- Mickey Mouse's name may have appeared on registration forms, but he didn't show up to vote. Nevertheless, Republicans in Ohio and Wisconsin raised the specter of voter fraud in litigation brought to compel matching by state officials. [Disclosure: I joined voting and civil rights groups on amicus briefs opposing both lawsuits.]
A more pressing concern is that overly restrictive matching and purging practices will exclude eligible voters. As the Brennan Center has documented, data entry errors and other administrative problems can result in erroneous mismatches. Florida's "no match, no vote" policy is probably the worst example. Fortunately, most other states declined to penalize voters for administrative mistakes. In Ohio, more than 200,000 voters who registered this year -- more than one quarter -- did not match. In Wisconsin, four members of the six-person board that runs the state's elections had a mismatch. To remove these mismatched voters from the list or require them to cast provisional ballots would have created serious administrative problems, compounding lines at polling places and creating the risk of eligible citizens' votes being rejected.
Fortunately, Ohio and Wisconsin didn't remove "mismatched" voters from the rolls or make them cast provisional ballots, and the courts wisely declined to order any such relief. Unfortunately, there were still lots of registration problems that required many voters in some states to cast provisional ballots. A large number of provisional ballots is problematic not only because they can result in eligible voter's ballots not being counted, but because they can exacerbate the uncertainty surrounding a close election.
Although the presidential election wasn't close enough to bring provisional ballots into play, there are other still-unresolved contests that illuminate this problems. Most notable are close congressional races in Minnesota and Ohio. In Minnesota, the Democratic candidate for the U.S. Senate Al Franken currently trails Republican incumbent Norm Coleman by a razor-thin margin of just 237 votes out of over 2.8 million cast. In Ohio, Mary Jo Kilroy, the Democratic candidate for the 15th Congressional District, trails Republican Steve Stivers by 146 votes out of more than 260,000 cast (though the margin may be going up due to a just-detected tabulation error).
The vote totals in both these races can be expected to change before there become final -- but substantial swings are especially likely in Ohio. A major difference between these two states is in the use of provisional ballots. Ohio relies very heavily on them. There were over 27,000 cast in Franklin County alone, about half of which are probably in the 15th CD. As I explained in this comment, a large number of provisional ballots tends to increase the margin of litigation, casting uncertainty over the result and making disputes over the outcome more likely. There's a good chance that Kilroy and Stivers will wind up fighting over whether to cast provisional ballots, perhaps using litigation pending in federal court as the vehicle.
On the other hand, Minnesota has Election Day Registration. EDR not only increases turnout -- around 5-10%, according to most studies -- but also eliminates the need for provisional ballots. If a previously registered voter moves or has her name removed from the rolls, she can simply register (or re-register) at the polling place. Minnesota thus reported zero provisional ballots in 2006. Because there are no provisional ballots to fight over, EDR in Minnesota eliminates a major source of contention and potential litigation.
That's one of the reasons why my Moritz colleagues and I ranked Minnesota ranked first and Ohio last, in a study of five midwestern states completed last year. Expanding EDR to other states would help reduce the problems arising from failed matches, since voters could still re-register even if they have been removed from the rolls. While opponents complain that EDR increases the risk of fraud, a report by Lori Minnite found scant evidence of voter fraud in the states that have EDR. Past sessions of Congress have failed to enact legislation that would require EDR in all federal elections. Now is the time for the incoming Congress to reconsider such legislation.
Other possible registration reforms also warrant consideration. One possibility is to move toward a Canadian-style universal voter registration system. This system resulted in 93.1% of eligible citizens in Canada being registered. By contrast, just 67.6% of eligible citizens in the U.S. were registered as of 2006. Having government officials take affirmative responsibility for registration could reduce some of the problems that inevitably occur when private groups like ACORN are left to shoulder the burden of registering people not reached through other means.
Another option worth considering is moving responsibility for registration to the federal government. This might be combined with universal voter registration, as Rick Hasen suggests. A major problem with this reform is developing a federal institution that is competent to execute this responsibility. Given the problems that the U.S. Election Assistance Commission (EAC) has experienced, institutional reform is a necessary prerequisite to federalization of the registration rolls.
Reasonable minds can certainly disagree on what registration reforms are most worthy of adoption. What cannot reasonably be disputed is that this component of our democratic infrastructure is in need of further repairs. The fact that the 2008 presidential election didn't go into overtime shouldn't blind us to that reality.
Wednesday, November 5
What We Don't Know
We now know that Barack Obama will be the 44th President of the United States of America. In the enormity of this moment in American history, the gritty details of election administration, upon which my Moritz colleagues and I spend so much of our time, seem positively trivial. But when the morning comes and vote tallies are in from across the country, there will be evaluate how well the infrastructure of our democracy held up to the unprecedented demands placed upon it this election season.
There are, at this moment, reasons to believe that we have made progress in the last eight years. At the same time, there is clearly much work to be done. Foremost among the challenges that remain is improving our system of voter registration. We still do not know how many voters went to the polls today to find their names not on voter registration lists. Nor do we know how many provisional ballots were cast as the result of such problems. And we do not know how many of those provisional and absentee ballots will ultimately not be counted, due to faulty registration rolls or other errors.
As insignificant as such questions may seem at this moment, they are important. That is not only because the outcome of many congressional, state, and local races may hinge on them. It is also because the faith that people in this country and around the world have in our democracy depends upon our allowing all eligible citizens to vote and accurately counting their votes.
When the dust clears, there will be both the time and opportunity to study such questions. It is important that we do so, drawing on our own experience in the United States, as well as that of other democracies, from which we probably have more to learn than some of us have heretofore realized. But for now, I'm just thankful that this presidential election -- unlike the last two -- was actually decided on election night. So I'm going to get some sleep.
Thanks for listening.
Tuesday, November 4
Hearing in the Ohio Litigation
Following up this post from earlier today on the Election Day maneuvering that could become post-election litigation in Ohio, there's a hearing taking place this evening Judge Marbley in the NEOCH v. Brunner case Pending before him is a motion to consolidate Ohio Republican Party v. Brunner (pending before Judge Smith and amended today) with NEOCH. I'm informed that Judge Marbley has decided to grant the Ohio Democratic Party's motion to intervene and is considering whether to consolidate the two cases, both of which partly concern the state's handling of provisional ballots. I'd expect that, at the very least, Judge Marbley will take control of the ORP's challenge to Directive 2008-101, which was issued to resolve some of the issues in NEOCH. What's less clear is whether the other issues raised in the ORP's amended complaint today can neatly be severed from the ones that are already before Judge Marbley. More to come, no doubt, both here and on our front page.
Update: Judge Marbley has granted the motion to consolidate the two cases, with a written opinion expected to follow. This won't make a difference in the presidential race, but the questions raised regarding provisional voting and other questions could conceivably affect down-ballot contests.
A Matter of Perspective
In my last post, I expressed the view that today's election appears to have been a relatively smooth one. Perhaps it depends on where you're standing. Ben Smith reports here on the campaigns' dueling perspectives on today's election. He notes that the Obama camp's message is that "Everything is going fine," while the McCain camp's message is "It's a mess." The McCain-Palin's perspective is epitomized in this press release describing incidents in some of key swing states, including the alleged intimidation of voters by Black Panthers at a Philadelphia precinct.
What's especially interesting about these perspectives on this election is that it seems like the mirror image of 2004. Four years ago, it was Democrats and progressives who were yelling, screaming, and suing to stop alleged voting irregularities perpetrated by those like Ohio's then Secretary of State Blackwell. This year, Republicans and their allies are the ones complaining about unfairness in the administration of elections. For an example, check out this page caricaturing Ohio's current Secretary of State, Jennifer Brunner.
All this can change in a heartbeat, of course, in the event of a close race. But at the moment, the contrast -- as well as the similarity -- between this year's election and the one four years ago is striking.
The Calm Before the Storm?
It's a beautiful autumn day here in Columbus, Ohio. As I took a walk around the Statehouse during a blogging break this afternoon, the weather seemed to match the climate of today's election.
To be sure, this Election Day has seen its share of problems like lines at some polling places, voting machines not working properly, voters being denied provisional ballots if they don't have ID, and other scattered problems. And there has been some significant litigation activity in key swing states, including Indiana (registration), Ohio (provisional ballots), and Virginia (military ballots). But based on perusing news reports and talking to people here and across the country throughout the day, my general impression is that it's been a relatively smooth election.
All this should be qualified by noting that it's always perilous to judge an election successful while it's still going on. There's still lots that could go wrong. As I mentioned yesterday, some of the most serious problems that can happen during an election -- such as voters not showing up on registration lists -- tend to be less visible while voting is still going on, and won't come into play unless and until there's an unusually tight race on which the outcome hinges. That can certainly happen in a presidential race, as we saw in Florida eight years ago. It can also happen in down-ballot races like Washington's contested gubernatorial election four years ago.
If there's a similarly close election this year, then problems that are hidden from view at the moment will rapidly come into view. The most likely form that this will take this year is a fight over provisional ballots, absentee ballots, military ballots, and residual votes, as my colleague Ned Foley suggests in this post. In the event of a close race, presidential or otherwise, these are the potentially uncounted votes that will be vital to pay attention to.
Election officials, of course, hope that it won't come to this. Hence the famous night-before-election prayer, "Please don't let it be close." Many voters are undoubtedly saying the same prayer right about now. We'll see whether it turns out that way.
Disability Access Issues
One of the underexamined issues of election administration is the nexus between voting rights and disability rights. The Americans with Disabilities Act requires that polling places be accessible to people with disabilities, while the Help America Vote Act mandates that accessible voting technology be provided at every polling place. But these legal requirements aren't always fully honored.
There have been a handful of stories today on the experience of voters with disabilities, which number some 20 million according to a recent report by Lisa Schur and Douglas Kruse of Rutgers. The NY Times blog reports here on confusion regarding the ballot-marking machines being used in N.Y. City to meet HAVA's requirement of one accessible voting machine per polling place. The Arizona Center for Disability Law has reportedly filed a lawsuit regarding one county's decision not to count ballots cast on accessible voting equipment until Tuesday morning. See also this report and this one on reported accessibility problems in Indiana.
For a summary of the requirements of federal voting laws when it comes to people with disabilities, take a look at this this presentation which I put together a while back. DOJ's website has more information here.
See this report on ballots in Shaker Heights, Ohio on which the presidential race was omitted. The report goes on to note relatively few problems in Ohio, an observation consistent with my impressions so far ... though we've got a way to go yet.
New Voter Registration Case in Indiana
As I've said many times this election season, voter registration is the issue of 2008. The latest evidence of this is a complaint and TRO motion brought by Project Vote on behalf ofvoters whose registrations were allegedly rejected because they were on an "old" form (Brown v. Rokita). A first-time voter whose registration was rejected on this ground, Drametra Brown, has sued Indiana's Secretary of State Todd Rokita and other election officials, seeking classwide relief. Brown alleges that the state law requiring the rejection these forms violates the National Voter Registration Act and Voting Rights Act, because the alleged defect in her registration isn't "material" to her eligibility. She further alleges that at least 130 registrations have been rejected on this ground in Marion County alone. This is another case that could become important, if the race in that state winds up being close.
See this report from the Louisville Courier-Journal, which includes the following anecdote:
The funniest report of the morning from a poll, he said, was a call received from Henderson County about an intoxicated voter."They wanted to know if he was allowed to vote," Fugate said. "State law does not prohibit it.... He is allowed to vote even though he may be intoxicated."
Jockeying for Position in Ohio
The Ohio Republican Party today filed an amended complaint in its case against Secretary of State Brunner (Ohio Republican Party v. Brunner). This is the same case that the ORP earlier used as a vehicle for its arguments regarding the window for early registration and absentee voting, observers at in-person absentee voting sites, and mismatched voter information. The ORP previously got court orders against Brunner's actions regarding observers and mismatches, only to have those orders reversed on appeal. [Disclosure: I joined amicus briefs on behalf of voting and civil rights groups supporting the Secretary of State's position and opposing that taken by the ORP on the window and matching issues.]
The new amended complaint in ORP is similar to its prior complaint, but appears to include new allegations regarding the discretion vested in county boards of election when it comes to counting votes. The apparent claim is that this discretion leads to the unequal treatment of voters from county to county. Presumably, this claim would rely in part on the Bush v. Gore decision, arguing that such inter-county disparities violate equal protection.
I suspect that the real purpose of this lawsuit is to serve as a placeholder, in the event that Ohio turns out to be close enough to litigate. The district judge assigned to the case, Judge Smith, is a Reagan appointee who has been quite sympathetic to the ORP's position in its prior motions. Thus, the ORP might well want to have post-election disputes steered toward his courtroom.
Now things get really interesting: I've just learned that the Secretary of State has countered by moving to have the ORP's case consolidated with an earlier pending case, Northeast Ohio Coalition for the Homeless v. Brunner (NEOCH). You can find the Secretry of State's motion here. The NEOCH case concerns Ohio's provisional voting and identification laws, and is pending before Judge Marbley, a Clinton appointee.
The Secretary of State's motion to consolidate notes that one of the directives that the ORP now seeks to challenge through its case is Directive 2008-101. That directive was issued on October 24, to resolve some of the issues in the NEOCH case pertaining to the counting of provisional ballots -- see this order in NEOCH, adopting and annexing the directive. To the extent that the ORP seeks to challenge Directive 2008-101, as paragraph 35 of its complaint indicates, this is quite clearly part of the NEOCH case.
Early Voting Reform
Polling places have only been opened for a few hours in some states and haven't yet opened in others, but one area in which reform is needed is already quite clear: the process for in-person early voting. In states across the country that allow early voting, we've seen long lines, with voters sometimes waiting for several hours to vote. Among the states reported to have had such problems are California, Florida, and Ohio.
One of the big advantages of early voting is that it can take pressure off the polls on election day. And in-person early voting avoids the risk of fraud associated with mail voting, low though it may be. Instances of voter fraud are rare generally, but most documented instacnes are accomplished through mail-in absentee ballots than in-person voting. This makes intuitive sense, given that the risks of getting caught -- and of being criminally prosecuted -- are presumably higher if one actually shows up in person.
To the extent that states offer in-person early voting, as an increasing number have done over the years, policymakers should consider ways to reduce the lines we've seen in the past few days, in both swing and non-swing states. One of the barriers to such reform in Ohio is a state law prohibiting in-person early voting at more than one location in each county. This may not present a serious problem in smaller counties, where one early voting location may be enough. But it is a problem in larger counties like Cuyahoga (Cleveland area) and Franklin (Columbus), where hours-long lines have been reported. Eliminating such barriers to in-person voting is one of the big things that state legislators, and perhaps even Congress, should consider as we think about future election reforms.
Monday, November 3
Looking for Lines ...
Where can we expect long lines on Election Day? Given the large number of newly registered voters and the intense interest in this year's election, you may not have to look far.
If I had to guess, I'd put Virginia and Pennsylvania at the top of my list of states where polling places may be overwhelmed. That's not only because both are key swing states in the presidential race, but also because they're both states in which an excuse is required to vote early or absentee. (See this chart from the Early Voting Information Center for a summary of all states' absentee and early voting laws.) In other swing states like Colorado, Florida, and Ohio, voters have made extensive use of early and absentee voting, which may take some of the pressure off the polls on Election Day.
One would expect to see lines in both Virginia and Pennsylvania, given that they don't have no-excuse early and absentee voting. That's why the Virginia NAACP is signaling that it may go back to court if lines are long, after having been denied an injunction today. And it's why the Governor of Pennsylvania and Mayor of Philadelphia are urging people to vote between 9 am and 3 pm when turnout is expected to be lighter.
One of the things we'll be monitoring at Election Central tomorrow is whether the anticipated lines in fact materialize in these or other states. If so, we'll be on the lookout for potential or actual litigation that may follow. If you encounter lines or other problems, you can report them to the nonpartisan election protection coalition at 866-OUR-VOTE or to CNN's Voter Hotline, which is logging different categories of complaints. The information there isn't exactly scientific, but may give us a sense of where the hotspots are.
A New Absentee Voting Directive in Ohio
On the eve of the election, Ohio Secretary of State Jennifer Brunner has issued a new directive, requiring counties to give would-be absentee voters notice if there's a problem that would prevent their absentee ballot from being counted. Directive 2008-109 may be found here. Last-minute directives can sometimes cause more problems than they solve but, in this case, some guidance was necessary ... though it may not be sufficient.
The directive appears designed to deal with what might be called the "Colker Problem," after my friend and colleague Ruth Colker who describes here the difficulty she experienced in getting her absentee ballot counted. Briefly, Franklin County initially didn't count her absentee ballot, because registration records listed her as having a date of birth than the one on her absentee voter envelope -- specifically, listing her year of birth as 1958 instead of 1956. Had she not checked the county's website before the election, only to find that her ballot hadn't been counted, it might have been rejected without her even knowing. Eventually, Professor Colker was able to persuade Franklin County that their records were wrong and get her vote counted.
Directive 2008-109's stated purpose is "to provide a uniform process by which absentee voters may be given notice that additional information is required to effectuate their vote on an absentee voter's ballot." It directs counties to notify voters of any deficiencies, and give them an opportunity to correct errors. Notice must be given no later than six days after Election Day (November 10). Absentee voters will then have until the tenth day after the election (November 14) to correct any errors or omissions.
This directive helps with one of the problems revealed by Professor Colker's story -- namely, the due process problem that would arise from rejecting an absentee voter's ballot without giving them notice and the opportunity to explain or correct the asserted error. But there are at least two other problems that still exist.
The first is that it leaves open the possibility that absentee ballots could be rejected as "insufficient," and therefore rejected under Ohio law (ORC 3509.07), for overly technical reasons. Professor Colker's ballot was rejected because the birthdate submitted with her absentee ballot didn't match the one in registration records. This may be a plausible reading of the statute, but it's hardly clear that this is required. It's also not clear from this provision how other discrepancies should be treated, such as:
- A discrepancy between the spelling of the voter's name in registration records and the information on the absentee ballot application or envelope (e.g., a voter's last name is listed as "Worzelbacher" in registration records but the absentee voter application or envelope reads "Wuerzelbacher")
- A discrepancy between the address in registration records and the address on the absentee voter application or envelope (e.g., 320 W. Broad St. instead of 302 W. Broad Street).
- A discrepancy between the driver's license number or social security number in registration records and that on the absentee voter application or envelope (e.g., 3543 instead of 3534)
To reject absentee ballots based on such trivial discrepancies would arguably violate Ohio law. In its recent decision requiring the Secretary of State to honor absentee ballot applications with a box that voters neglected to check, the Ohio Supreme Court cautioned against "unduly technical intepretations that imede the public policy favoring free, competitive elections." State ex rel. Myles v. Brunner (Oct. 2, 2008). [Disclosure: I joined a brief supporting relators' position and opposing that taken by the Secretary of State.] Interpreting Ohio law to demand an "exact match" -- with respect to address, date of birth social security number, driver's license number, or address -- might be viewed as just such an overly technical interpretation. Nothing in the directive requires that absentee ballots be rejected for such reasons, but it's not prohibited either.
The other problem is that the ambiguity of the statute -- and the failure, as far as I can tell, of the Secretary of State to issue definitive guidance on what makes an absentee ballot "insufficient" -- gives rise to a potential equal protection problem. Different counties might apply different rules in determining which absentee ballots should count. Some might count those ballots, for example, despite the existence of a trivial difference in the name of the voter as listed in registration records versus that on the absentee voting envelope, while others might not. Some might check the voter's date of birth, as listed on the envelope, against registration records while others might not. You get the idea.
At this point, I can't say for sure what counties' practices are, which is why I describe this is merely a "potential" equal protection problem. It's also hard to say whether this is an Ohio-specific problem or one that extends to other states -- but if I had to bet, I'd say that other states' rules for verifying and counting absentee ballots probably have similar vagueness and ambiguity. In in a close, contested election, this type of dispute over absentee ballots could well wind up in litigation.
Election 2008: Live Blogging and Issues to Watch
I've become a semi-retired blogger in recent months, partly because I'm on leave from Moritz this semester and visiting at Harvard Law School and partly because of my involvement in some of the this year's election litigation.* But I'll be in Columbus tomorrow, where Election Law @ Moritz will again be running an Election Central media center. This year, we'll be at COSI (the children's science museum), located right across the river from the Ohio Statehouse and right across the street from the Franklin County early & provisional voting center at Veteran's Memorial, from 6 am until the wee hours of Wednesday morning.
I'll be live-blogging on election administration news throughout the day right here, tomorrow from Election Central at COSI. Moritz faculty, staff, and students will also be tracking problems and litigation throughout the day on the front page of our site. Check out or news wire and information and analysis sections on that page for up-to-the-minute developments.
Here's my list (in no particular order) of four big questions I'll have my eye on tomorrow:
1. Will there be long lines at the polls? This is the question that everyone is wondering about, with massive turnout expected, particularly among African American and student voters. We'll see whether that turnout materializes. But we've already seen enormous early voting, both in person and by mail, which Michael McDonald of George Mason has been tracking here. Perhaps the heavy early voting in no-excuse absentee voting states like Colorado, Florida, and Ohio will take pressure off the polls on election day. On the other hand, the increase in early voting may presage an avalanche in Election Day turnout that will overwhelm polling places, especially in states like Pennsylvania that don't have no-excuse absentee voting. In the event that there are long lines at polling places -- especially in urban areas or near colleges -- look for lawsuits to extend polling place hours, such as the Ohio Democratic Party v. Blackwell case in 2004.
2. Will there be equipment problems? The short answer to this question is "Yes." In any big election, there are likely to be some places where electronic voting machines break down or polling places run out of paper ballots. One of the places to watch out for in tomorrow's election is Cuyahoga County, Ohio's largest which includes the City of Cleveland. That county will be using it's fourth voting system since 2004, having moved from punch cards, to touchscreen, to central-count optical scan, and now to precinct-count optical scan. The system they have now provides voters with notice and the opportunity to correct inadvertent overvotes, but there are risks with implementing a new system in a high-turnout election like this one. For jurisdictions that use touchscreen machines, we've again seen allegations of vote-flipping, in which the voter tries to vote for one candidate but the machine captures the vote as for another. This is another subject on litigation would not be surprising, particularly if it's looking close in a pivotal state.
3. Will registration errors lead to disfranchisement or fraud? Voter registration has been the big issue of the 2008 election, just as voting machines were the issue of 2000 and provisional ballots the issue of 2004. Those on the right are concerned that private groups like ACORN have registered lots of nonexistant voters who could conceivably vote on or before Election Day. Those on the left are concerned that overly stringent matching and purging practices in states like Florida could result in eligible voters being taken off the rolls. Voter registration is a critical issue to watch tomorrow -- probably more important than anything else, in terms of the total number of votes affected -- but it's something that too often slips through the cracks of media coverage. The reason, I suspect, is that registration problems aren't as visible as long lines or machine problems. Voters who believe that they're registered but find that their names aren't on the registration list have a right to receive a provisional ballot. If the voter is later determined eligible and registered to vote, then that ballot should be counted. But states vary dramatically, and there are sometimes differences even within states, in how provisional ballots are handled. This leads to the final question.
4. Will provisional or absentee ballots make a difference? In a close election, look out for disputes over provisional and absentee ballots. In fact, these are probably the biggest ways in which a candidate on the short end of a close election can hope to harvest more votes, thereby making up the difference and perhaps ultimately emerging victorious. That scenario isn't likely in this (or any other) year's presidential election, but there's a good chance that some down-ballot races will be close enough to be within the so-called "margin of litigation." In 2004, a protective lawsuit was filed on Election Day (Schering v. Blackwell), alleging inequalities in the way that provisional ballots were being handled from county to county in Ohio. That case was dropped after it became clear that provisional ballots weren't going to make a difference, but we can expect comparable litigation over provisional ballots in the event of a close race. We should also look out for disputes over the counting of the increased number of absentee ballots in a close election. My colleague Ruth Colker describes here the difficulties she had in getting her absentee ballot counted, after authorities initially refused to do so because the date of birth she provided when voting didn't match the erroneous one in registration records. If there's a widespread practice of requiring exact matching to count absentee ballots, then a lot of eligible voters could wind up having their ballots tossed.
This isn't intended to be a comprehensive list. If there's one thing that past elections have taught us, it's that we should expect the unexpected. Whether or not the presidential race turns out to be close, Election Day 2008 is certain to be an exciting one for those of us who care about election administration.
* Disclosure: I've served as an amicus or counsel for parties or amici in several of the cases that have been filed during this election season, including cases having to do with the early registration and voting windown, the handling of absentee ballot applications, and the matching of voter registration records. The full disclosures may be found here for active cases and here for archived ones.
Sunday, July 20
What Happens When Voters Don't "Match"?
One of the big under-the-radar issues this election season has to do with the state registration databases required by the Help American Vote Act of 2002. Before HAVA, registration lists were often compiled and administered at the local level. HAVA now requires a statewide registration database. Section 203 of HAVA (42 USC 15483) also requires that states "match" information in the database against motor vehicle and social security records, to verify accuracy.
The problem is that there are all sorts of reasons why voters' names might not match, despite the fact that they've provided accurate information on their registration form. That can include data entry errors, transposition of first and last names, and the use of middle names and nicknames. It's not very clear from HAVA how the matching should be done, or what should happen if the information in the registration database doesn't match motor vehicle and social security records. As the Brennan Center has documented, a too-stringent matching procedure could result in the exclusion of eligible voters. According to the Brennan Center, which has litigated this issue in the states of Washington and Florida, matching in some states has failed 20-30% of the time.
This issue flared up in Wisconsin this past week, as summarized in this report from the Milwaukee Journal-Sentinel. Before HAVA, most Wisconsin municipalities didn't even have voter registration. Wisconsin is one of several states that has had difficulty getting its statewide registration database up and running properly, as described in the report From Registration to Recounts that my Moritz colleagues and I published last year.
Last week, Wisconsin's Government Accountability Board (which oversees election administration) considered a rule that would have required voters to cast a provisional ballot, absent a "complete match" of their name, date of birth, and driver's license or other identifying number, unless they provided proof of residence before or on election day. Those provisional ballots would be counted only for voters who provided documentation of their name and addresses by 4 pm the next day. The Brennan Center and I wrote this letter opposing the proposed rule on the ground that it would likely increase the number of provisional ballots and result in some eligible voters not having their votes counted.
On Wednesday, Wisconsin's board backed off the proposed rule change, given the uncertainty of how many false non-matches there would be. Instead of requiring voters to cast provisional ballots if there's no match, the board decided to see how many voters are affected by non-matches in the system. In my view, this was a wise decision.
What's unclear is many other states are going to implement the sort of matching procedure that Wisconsin considered but decided against. States that do so are likely to have a lot of provisional ballots, some of which won't be counted. That will certainly increase the margin of litigation, and could make the difference in close races.
Friday, July 18
Injunction for Libertarian Party of Ohio and Barr
U.S. District Judge Edmund Sargus, Jr. has issued this order, requiring that the Ohio Secretary of State place on the general election ballot the names of various Libertarian Party candidates, including Bob Barr. The order is based upon the Sixth Circuit's 2006 decision in Libertarian Party of Ohio v. Blackwell, which declared Ohio's ballot access statutes unconstitutional -- and the Ohio legislature's subsequent failure to enact constitutional ballot access requirements.
The case raises an intriguing question regarding the authority of the state executive branch to make ballot access rules, given Article II, Section 1's requirement (discussed in the Bush v. Gore concurrence but not decided by the majority opinion) that "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors." Ohio's Secretary of State Jennifer Brunner issued a directive to fill in the gap left by the legislature. Relying on the Bush concurrence and McPherson v. Blacker(1892), which said that Article II "leaves it to the legislature exclusively" (emphasis added) to define the method of appointing electors, Judge Sargus concludes that the Constitution "provide[s] for no role on the part of the executive branch of state government as to the election of President ...." He comes to the same conclusion with regard the Article I, Section 4's requirement that the time, place and manner of holding congressional elections "be prescribed in each State by the Legislature thereof."
Judge Sargus acknowledges that there is a dearth of precedent on these questions. Could this be the case in which the Supreme Court issues some definitive guidance on the relative authority of the state legislative and executive branches to make rules for presidential and congressional elections? (I briefly discussed this issue at the end of my 2005 article Early Returns on Election Reform.) In my view, it would be far better for the Court to do so in a pre-election case like this one, than to wait for the issue to reemerge in a post-election case like Bush v. Gore.