Dan Tokaji's Blog
Professor Dan Tokaji
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

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Equal Vote
Friday, April 29
Indiana Photo ID Lawsuit
The Indiana Civil Liberties Union has brought suit to challenge that state's recently enacted law requiring voters to show photo identification. The complaint can be found here, and the Indianapolis Star has this story.

The lawsuit was brought in a state court in Marion County, on behalf of individual voters, the NAACP, and organizations representing senior, disabled, poor, and homeless voters. It raises claims under the Voting Rights Act, the Indiana Constitution, and the U.S. Constitution.

The complaint challenges Indiana's Senate Enrolled Act No. 483, which requires voters to show photo identification issued by the State of Indiana or the federal government, asserting that this requirement is a "de facto poll tax." Plaintiffs note the lack of evidentiary support for the proposition that identity fraud is widespread, or that existing measures are inadequate to deal with such fraud.

The act does provide that photo ID will be issued without charge by the Indiana Bureau of Motor Vehicles to those who don't have it. But as I've previously explained, requiring voters to stand in one line at the BMV for the privilege of possibly standing in another line once they go to vote effectively imposes a tax on the voters' time. It's a burden that many voters won't bear, which is presumably why the bill was passed on a straight party-line vote: Republican legislators are banking that Democrats are more likely to lack ID and won't go to the trouble of getting it.

My take: While posing as an anti-fraud measure, the Indiana bill is really a naked attempt to disenfranchise voters, and ought to be struck down under the Equal Protection Clause. The Supreme Court hasn't ruled on the constitutionality of such measures before, but the logic of Harper v. Virginia should apply. That case struck down Virginia's poll tax on the ground that it imposed a burden on poor voters. In much the same way, the Indiana bill imposes a special burden on particular groups of voters -- including seniors, people with disabilities, and those who are poor -- with precious little evidence that its strict photo ID requirement is needed to curb fraud.
Tuesday, April 26
What Lies Ahead for the EAC
There's been a fair amount of attention in recent days to the Election Assistance Commission (EAC), created by the Help America Vote Act to oversee and provide nonbinding guidance on election reform. The EAC consists of four commissioners, two of each major party.

Last week, the EAC's former Chair DeForest Soaries (one of the Republicans) resigned, citing a lack of support for the agency as one of the reasons for his decision. He noted that the commission was without offices for the first few months, complaining that the commissioners' "sense of personal obligation has been matched by a corresponding sense of commitment to real reform from the federal government."

Yesterday, the Wall Street Journal's John Fund published this column on Soaries' resignation and Hilary Clinton proposal's to give more authority to the EAC. Fund accuses Soaries of wanting to "expand his bureaucratic sandbox" and opposes expansion of the EAC's responsibilities. He also opines that the EAC presents a danger of "potential for partisan abuse."

Also yesterday, the League of Women Voters issued this statement criticizing the draft guidance that the EAC has provided thus far on statewide registration databases as being insufficient to protect voting rights. According to the League, the draft proposal isn't sufficient to prevent voters from erroneous purges and other administrative mistakes.

My take: Reasonable people can perhaps disagree on whether it makes sense to expand the EAC's responsibilities, but concerns about "partisan abuse" seem quite misplaced based on the EAC's actions to date. With two Democratic and two Republican appointees, this agency is unlikely to be taken over by one party. It's certainly possible that the bipartisan nature of the EAC could result in stalemates, but so far the commissioners have generally demonstrated a willingness to work cooperatively.

Fund is quite right to be worried about partisanship in the area of election administration . . . but he's looking in the wrong place. The real dangers of partisanship come from the U.S. Department of Justice, if its recent actions in the area of ID requirements are any indication. We'd be much better off giving a bipartisan agency like the EAC authority to issue regulations implementing HAVA than to leave the interpretation and enforcement of election laws to DOJ. There's no effective check on DOJ, an agency headed by a presidential appointee, exercising its authority in a partisan manner.

There may well be room for improvement in the EAC's draft guidelines on registration databases, as the League suggests, but it seems to me that there's no agency in a better position to provide neutral guidance. Congress needs to give it the resources needed to do its job properly.
Wednesday, April 20
Not Your Father's Justice Department
Earlier this month, Arizona Governor Janet Napolitano vetoed a proposed ID bill, saying it would violate federal law by preventing voters without photo ID from receiving provisional ballots. On Friday, the the Justice Department issued this letter to Arizona Secretary of State Jan Brewer. The letter, signed by Sheldon Bradshaw, a deputy assistant attorney general, opines that the Help America Vote Act doesn't prohibit a state from requiring voters to show photo ID before receiving a provisional ballot.

The Arizona Republic has this story, which addresses the political backdrop. As in other states, Republicans have been pressing for the ID requirement while Democrats have opposed it. The Governor's legal counsel disagrees with the Bradshaw's opinion, asserting that DOJ has misinterpreted HAVA. According to the Republic:
The fact that the Justice letter was written by Bradshaw and not the head of the Civil Rights Division or the department's chief of the Voting Section could raise questions about partisan political maneuvering. According to a federal government Web site, Bradshaw was not even employed at DOJ at the time he wrote to Brewer. His letter is dated April 15, but a news release announced his hire as chief counsel for the Food and Drug Administration "effective April 1."
My take: When I first read the story about this a few days ago, I couldn't believe that DOJ's opinion letter actually said what it was reported to have said. Well, having now seen the letter ... I'm afraid it did.

DOJ didn't just get the law wrong; it's interpretation of HAVA simply isn't a plausible one. DOJ's opinion letter purports to interpret HAVA's section 302, which requires that voters receive provisional ballots if their names don't appear on the registration list. Specifically, the law requires that such voters be allowed to cast a provisional ballots if they execute an affirmation that they are (1) registered in the jurisdiction where they desire to vote, and (2) eligible to vote in that election. 42 U.S.C. 15482(a)(2).

That language is clear enough on its face to demonstrate that the problem with Justice's interpretation. Voters must be allowed to cast a provisional ballot if they sign the affirmation, whether or not election officials think they're eligible. In fact, the law specifically provides that a voter be permitted to cast a provisional ballot even if "an election official asserts that the individual is not eligible to vote." Determining whether those provisional ballots should be counted is another matter -- that's to be determined in accordance with eligibility requirements prescribed by state law. What's unambiguous is the requirement that voters be allowed to cast a provisional ballot if they sign the affirmation, whether or not they have ID.

It gets even worse for DOJ. There's another provision of HAVA, not even mentioned in Bradshaw's letter for DOJ, that even more clearly demonstrates the problem with his opinion letter. Section 303(b) of HAVA requires that a voter who's subject to the law's ID requirement but doesn't have it be allowed to cast a provisional ballot. 42 USC 15483(b)(2)(B)(i). If a voter who lacks HAVA-mandated ID must still be allowed to cast a provisional ballot, then a voter who's not even required by HAVA to show ID surely must be allowed to do so.

Such sloppy work by DOJ can only fuel the impression that its interpretation of election laws is being influenced by partisan political considerations.
Tuesday, April 19
The Carter-Ford Commission and Voting Technology
Four years ago, former Presidents Jimmy Carter and Gerald Ford co-chaired an election reform, some of whose recommendations were ultimately enacted as the Help America Vote Act. Carter has now teamed up with another prominent Republican, former Secretary of State James Baker, to chair another commission, which had its first meeting in D.C. yesterday. Bloomberg has this report, and the agenda from yesterday's meeting can be found here.

Among the subjects upon which yesterday's hearing focused is the continuing debate over the security of electronic voting technology, featuring two of the most prominent players: David Dill of Stanford and Jim Dickson of the American Association of People with Disabilities. The arguments by now are familiar. Dill contends that electronic voting is lacking in transparency, while Dickson argues that electronic voting is necessary to provide access to voters with disabilities.

It's unclear what the commission can productively say about HAVA's voting systems mandate, however, given the fast approaching deadline for improving technology. In particular, by 2006, there must be at least one disability-accessible voting machine at each polling place. Also, states that received money for the buy-out of punch card and lever voting machines must replace that equipment by 2006. The commission's website says that it plans to take at least six months to complete its work. By that time, it will be too late to make any meaningful recommendations on this point, given that states and counties should by then have made all the critical decisions about what technology to implement for 2006. In fact, if election officials really want to do this right, they should already be pretty far down the road toward conversion.

It follows that, in the area of voting technology, the commission's work should focus on the long term rather than the short term. Technology will continue to evolve over time, and it's vital that our legal regime be adaptable enough to allow for those changes. The tricky part is determining how to promote more accessible technology, while at the same time ensuring the needed security and transparency. At this point, I'm skeptical about whether new federal legislation is the best means by which to accomplish these goals.

Update: The written testimony of panelists is available here. Although I've not read all the panelists' remarks yet, the comments of Henry Brady, Jim Dickson, and Rick Hasen are especially insightful and worth a look.
Thursday, April 14
Ohio: Electronic Voting Back On
It looks like electronic voting machines may be used in Ohio after all. Secretary of State Ken Blackwell issued a new directive, which reversed course by allowing counties to choose electronic voting systems, with certain conditions. The Cleveland Plain-Dealer has this report.

Ohio has been one of the last bastions of the "hanging chad" punch card ballot, with about 70% using that system in 2004. Back in January, Blackwell issued a directive that required counties to adopt precinct-count optical scan ballots. That decision was ostensibly based on the higher up-front costs of electronic voting technology. The State Attorney General's office later said that Blackwell was without the authority to issue that directive. Blackwell's January directive also raised consternation among some local election officials who preferred Direct Record Electronic ("DRE") voting machines to optical scan ballots.

A complicating factor is the requirements imposed by the Help America Vote Act. Because Ohio accepted federal funds under HAVA's Title I, it must replace its punch card and lever voting machines by the first federal elections in 2006. In addition, under Title III, it must have at least one voting unit accessible to people with disabilities in place by 2006. At present, electronic voting machines are the only certified systems that are accessible.

Now, with the 2006 deadline for elimination of punch cards fast approaching, Blackwell has again reversed course with a new directive. Directive 2005-07, issued April 14, would allow counties to choose a certified DRE system, if it has the contemporaneous paper record (aka, "voter verified paper audit trail" or "VVPAT") mandated by an Ohio law passed last year.

A cover letter to the memorandum explains that:
On January 12, 2005, Secretary Blackwell issued Directive 2005-1, announcing that paper-based precinct count optical scan (PCOS) voting systems would be offered to county boards of elections as the state's primary voting system. Based on the information in our possession at the time, it was apparent that deployment of PCOS voting systems was the only means then available that would have provided Ohioans with a uniform statewide voting system for future elections that was also in compliance with federal and state law and could be purchased within our existing budget.
The memorandum also explains why the Secretary of State changed his mind. It notes that there's one electronic system, manufactured by Diebold, that meets the VVPAT requirement, with two additional VVPAT systems (made by ES&S and Hart Intercivic) seeking certification. In addition, the memo states that negotiations with vendors have lowered the costs of these "DRE/VVPAT" systems -- one of Blackwell's original justifications for mandating precinct-count optical scans in January.

Under the new directive, Ohio counties have until May 24, 2005 to choose a new voting system. A DRE chosen must not only meet the VVPAT requirement, but be approved by a federal Independent Testing Agency, the Ohio Board of Voting Machine Examiners and Compuware, by May 13, 2005.

The decision is a major victory for some counties, including Franklin (Columbus area) and Cuyahoga (Cleveland area), which had gone to court to stop Blackwell's earlier directive. They're among the counties that would prefer to use electronic voting technology. This is an understandable preference on the counties' part, given the likely complications that would ensue if counties are required to have two different types of voting equipment at each polling place -- an electronic system for disabled voters and a precinct-count optical scan system for everyone else. In addition, electronic voting is a more sensible choice for counties that have substantial non-English speaking populations.

As things stand now, it looks like those counties will now be able to go to electronic voting, though their only choice may be the DRE/VVPAT system made by Diebold. For those of us who've been following the electronic voting wars in Ohio and elsewhere, there's considerable irony here. Diebold has long been the whipping boy of electronic voting critics. Some of those critics have insisted on the VVPAT, arguing that it's the only way to ensure security -- an argument that I think to be wrong. In any event, it now appears that the likely consequence of the VVPAT advocates' work will be to deliver Ohio's new voting machine business to none other than (yup, you guessed it) Diebold.

In my view, this is preferable to what would have occurred had Blackwell's January directive remained in effect -- namely, that they would have been left with no choice but to use precinct-count optical scan technology. It would be nice, however, if counties had some choice among electronic voting systems. That's particularly true given that, as far as I can tell, the Diebold DRE/VVPAT system has yet to be used in any real election.
Wednesday, April 13
My Views on the ID Controversy
Can be found here. The news of the day on the voter ID front is that the Indiana Senate has approved a voter identification requirement that the Governor says he'll sign. Some say that this would be the strictest ID requirement in the nation, because it requires government-issued photo ID:
People without identification could still cast a provisional ballot on Election Day, but the ballot would only be counted if voters present the required ID to their county election board by the Monday after the vote.
The bill was enacted along partisan lines, with Republicans supporting it and Democrats opposing it on the ground that it will disenfranchise those without ID -- including a disproportionate number of minority and elderly voters.

My take: For the reasons explained in my comment, I think the bill violates the Equal Protection Clause of the U.S. Constitution. Expect a legal challenge if, as expected, Republican Governor Mitch Daniels signs the bill.
Monday, April 11
Overton on Voter ID
Voter identification remains the hot topic, with legislatures in Arizona, Georgia, Indiana, Ohio and Wisconsin among those having considered or enacted a photo ID requirment in the past few weeks. Spencer Overton of the George Washington University Law School has published this op-ed on voter identification requirements. Prof. Overton argues that ID advocates fail to consider the structural impediments that this requirement would impose. He also notes the absence of evidence that an ID requirement would have much of an impact on voting fraud. I agree and will have my own take on this subject in the next day or two.
Wednesday, April 6
Fights Over HAVA Implementation
By the first federal election in 2006, states and counties throughout the country will have to comply with three of the Help America Vote Act's core mandates. The first is the requirement that statewide registration databases be in place. Up until now, county election officials have maintained voting lists in most states. This is one of the key components of our highly decentralized election system. HAVA's idea is that statewide registration databases will improve accuracy and prevent duplication of names. Implementation of these databases, however, has triggered tension between state and local authorities, as the AP reports here. Some local officials don't want to give up control over their lists.

The second mandate of HAVA, for those states that received money under Title I of HAVA, is the replacement of punch card and lever voting machines. The big question is what to replace them with, something that's been the source of considerable disagreement in Ohio and other states. Some local election officials, particularly those in larger counties, would prefer electronic voting equipment. Others are concerned with the security risks associated with electronic voting and prefer precinct-count optical scan systems.

The third mandate of HAVA is that each polling place must have at least one disability accessible voting unit by 2006. This requirement applies to all state and local entities, whether or not they received Title I money. This likely will require at least one electronic voting unit in each polling place, since those appear to be the only certified systems that are accessible to people with disabilities. There are two "hybrid" voting systems seeking certification, as electionline.org reports here. These systems have an accessible interface like an electronic voting unit, but print out a paper ballot that can be fed into an optical scanner. Some disability rights advocates assert that the "hybrid" system doesn't comply with HAVA because voters with visual or manual dexterity impairments will need assistance -- and thereby be denied privacy -- in taking the ballot from the printer and inserting it in the scanner. Also, election officials will likely be reluctant to move to "hybrid" systems given that they've not been used on any significant scale in any real election.

Where does this leave us? There's a lot of work to be done by 2006, and not much time to do it. The conflicts between state and local election officials, while perhaps inevitable to some extent, certainly won't help. I don't envy the difficult job that election administrators, both state and local, have ahead of them.
Monday, April 4
Still More ID News
Who says Democrats are the only ones who care about election reform? The hot topic of the moment continues to be bills to require a photo ID, on which there's been movement in several states during the past few days, advanced mostly by Republicans:

- In Iowa, the state house has approved a bill that would require voters to show a photo ID when voting. It passed 51-48 along party lines, as the Des Moines register reports here. The bill would also close polling places one hour earlier.

- In Wisconsin, Democratic Governor Jim Doyle has proposed a series of election reforms which doesn't include an ID requirement, as reported here. His bill does include measures designed to prevent ineligible felons from voting and to add more and better poll workers. But the absence of an ID requirement has the Republican Assembly Speaker squawking, as reported here.

- In Arizona, Democratic Governor Janet Napolitano vetoed a bill passed by the Republican-dominated legislature, which would require voters to show ID before getting a ballot. The A.P. has this report. Gov. Napolitano stated that the requirement would conflict with HAVA, which requires that voters subject to its ID requirement be given a provisional ballot, when they arrive at the polls without it. Democrats are concerned that the bill would throw roadblocks in the way of those who lack ID, including some elderly, Latino, and native American voters who lack ID. You think?

For a summary of existing ID laws, see this nifty chart from electionline.org.

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Moritz College of Law The Ohio State University