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
Wednesday, August 31
More Georgia ID Fallout
As noted here, the U.S. Department of Justice precleared Georgia's recently enacted ID law on Friday. Excerpts from DOJ's explanation of its decision are available here. It's a model of misdirection, avoiding the critical issue -- whether African Americans are less likely to lack photo ID than white voters -- and instead focusing on tangential facts such as that "[m]ore whites than blacks live in Georgia counties without a DDS office." It makes the apples-and-oranges argument that black turnout went up in the last election despite HAVA's ID requirement, disregarding the fact that HAVA doesn't require state-issued photo ID, but instead allows many other types of documents showing the voter's name and address. Thus, voters who don't have a driver's license can easily comply with HAVA. Not so with Georgia's new law.

Significantly, there's no evidence documenting that Georgia's new stringent photo ID requirement will prevent any fraud that wouldn't otherwise be prevented by HAVA's existing requirement. Moreover, as David Becker noted in this Washington Post op-ed, the Georgia law exempts absentee ballots from ID requirements even though that's the only place where there's been documented fraud in the state. That exposes the contention that this is an anti-fraud measure to be nothing more than a pretext.

The Georgia ID bill isn't really about curbing fraud. It's a disfranchisement strategy, plain and simple, and the people impeded from voting will disproportionately be racial minorities.

Already, county officials are struggling to implement the new law's mandate. As reported here, Gwinnett County will have to comply with the law in an election set for next Tuesday, absent some court order. A League of Women spokesperson calls the last-minute change in rules "completely unacceptable." The NAACP is saying that it will bring suit, as has occurred in at least two other states (Indiana and Arizona). They'll have a strong case, particularly if they can muster statistical evidence on who does and doesn't have the types of identification required by Georgia's law.
Tuesday, August 30
State Responds to Ohio Voting Complaint
On July 28, the League of Women Voters of Ohio and 15 individual voters filed this complaint in federal district court in Toledo. The complaint challenges "massive disenfranchisement and unreasonable dilution of the vote" arising from the mismanagement of the state's voting system. Yesterday, Ohio Secretary of State Ken Blackwell and Governor Bob Taft filed a motion to dismiss, which I've posted here.

Since my initial post on the complaint, I've had a chance to take a closer look at the League's complaint. I've also read Blackwell and Taft's motion to dismiss, filed by the office of state Attorney General Jim Petro. Here are some preliminary thoughts.

The complaint filed by the League does an exceptionally thorough job of describing an election system in disarray. It describes a litany of defects, from registration problems to the mishandling of provisional ballots to the failure to provide enough voting machines to the failure to accommodate people with disabilities. The complaint also tells the story of each of the named plaintiffs, all of whom have experienced significant difficulties in exercising their right to vote. It's hard to come away from the whole complaint believing that these individual stories are isolated incidents, rather than a pattern of what can most generously be described as massive mismanagement.

The strategy taken by Blackwell and Taft, in a nutshell, is to say that none of this is their fault. Defendants begin by asserting that the "Ohio election system once again proved itself to be fair and efficient." For those who have been paying close attention to the state's election troubles, this can only elicit a chuckle. Although I am not among those who believe that the 2004 presidential election was "stolen," it's very clear that the system did not function very fairly or efficiently -- and that, had the margin been a quarter or even half of what it was, an extended post-election fight would have been very likely. In any event, such disagreements with the facts alleged in a complaint don't justify a motion to dismiss it. As any first-year civil procedure student knows, the court is required to assume that the allegations in the complaint are true, on a motion to dismiss for failure to state a claim.

Most of Blackwell and Taft's motion is a sustained attempt to shift responsibility for the state's election problems to county election officials. This response, however, fundamentally misconceives the nature of the lawsuit. At the root of Plaintiffs' complaint is the idea that, without much better oversight of the elections process than state officials have provided to date, the voting rights violations they have suffered are inevitable and sure to continue. Put another way, the injuries that the individual voters have suffered are part of a systemic problem, a pattern and practice that can only be redressed through broad-based injunctive relief.

The fact that Defendants (or their attorneys) just don't seem to get it is most clearly evident in the response they provide to the problems experienced by each of the individual plaintiffs. To Darla Stenson, who was denied the vote because her name was omitted from the voting list, the Defendants' response is that the county board of elections has responsibility for voting lists. And to Dorothy Stewart, who's unable to stand for long periods of time due to arthritis and thus couldn't vote when she arrived at the polls to find a long line there, the Defendants say it's the counties' responsibility to accommodate disabled voters. Defendants' motion goes on like this, but you get the idea. Its long on finger-pointing -- namely, on asserting that it's all the counties' fault -- but awfully short on legal authority in support of their repeated assertion that the buck doesn't stop with them.

Such misdirection may turn out to be a winning strategy for Defendants. But in a sense, it vindicates the argument that the League of Women Voters is making: namely, that Defendants are shirking their responsibility of ensuring an adequate and equal voting system for all Ohio voters. As long as state officials continue to deny that it's their problem, the voting rights violations detailed in the League's complaint are likely to continue.

The "no mea culpa" from Secretary of State Blackwell is especially difficult to swallow -- he is after all the state's chief election official. An interesting twist on this case is that Blackwell will be running for Governor in 2006 with his lawyer (A.G. Petro) as his main opponent. It makes one wonder how much of the Defendants' motion comes from Blackwell's office and how much from Petro's. My guess is that it's mostly the handiwork of the A.G.'s office, but that's only a guess.

In any event, the big questions are 1) whether the court will ultimately agree that the Secretary of State and Governor bear responsibility under federal law for the litany of voting inequities that the League describes in its complaint, and 2) whether the court will be willing to issue the type of sweeping relief that would be required to repair these inequities. Persuading a court to order such system-wide relief -- even in the face of the pattern of civil rights violations that Plaintiffs allege -- is quite a tall order these days, given the Rehnquist Court's general hostility toward institutional reform litigation. But the Defendants' response actually helps make the case that such relief will be needed, if we are to see genuine improvements in Ohio's election system.
Monday, August 29
Confusion Over Lever Machines
Election officials in the Keystone State are sounding like keystone cops. There's disagreement in Pennsylvania over what exactly the Help America Vote Act requires when it comes to lever voting machines, according to this story.

Some county officials in the state are reluctant to get rid of their lever machines. But Pennsylvania state officials have told them that HAVA requires those machines to be replaced. On the other hand, Election Assistance Commission spokesperson Jeannie Layson says that there's nothing in HAVA saying that lever machines must go.

So who's right? Well, it turns out that they both are.

The EAC spokesperson is right that HAVA imposes no general mandate that states get rid of their lever voting machines or, for that matter, their punch cards. Most states, however, received money under section 102 of HAVA, entitled "Replacement of Punch Card or Lever Voting Machines." States receiving money under this provision are required to "ensure that all of the punch card voting systems or lever voting systems in the qualifying precincts" are eliminated by January 1, 2006. (The original deadline was November 2004, but most states got an extension.) States that fail to meet this requirement must pay back the money they received from the federal government, in proportion to the percentage of noncompliant precincts -- i.e., those that are still using punch cards or levers.

According to the EAC's 2004 annual report, Pennsylvania received almost $23 million in section 102 money from the federal government. That means that the state is obligated to ensure that all precincts within the state get rid of their lever machines. If they don't, the state will have to pay some of that money back.

In addition, HAVA requires that all machines used in the 2006 elections have a "manual audit capacity." This applies regardless of whether states took federal money. It specifies that this must be a "permanent paper record" (not to be confused with the contemporaneous paper record, or voter verified paper audit trail that some anti-electronic voting activists are insisting upon.) Pennsylvania. Department of State spokesman Brian McDonald says that the state has determined that lever machines don't meet this requirement, and I think he's probably right.

Finally, HAVA requires that every state have in place at least one disability accessible voting machine at each polling place. This requirement also applies, whether or not a state took HAVA funds. Under section 301 of HAVA, those accessible machines must provide the disabled voters with the "same opportunity for access and participation (including privacy and independence)" that able-bodied voters have. Right now, the only machines that meet this requirement are direct electronic voting machines.

So the bottom line is ... sorry Pennsylvania lever machine fans, but they've got to go.

Update: The Courier Times issued this cryptic correction to yesterday's story, stating "A headline in Monday's Courier Times was unclear. It is up to individual states to determine if lever voting machines meet federal election requirements." Not sure I understand this correction ... and it's not really true. States certainly have an obligation to comply with federal election requirements, but it's not just up to them to determine whether lever machines qualify. If the federal government determines that the machines used by Pennsylvania or any other state don't comply with HAVA, then it could take action against the offending state -- even if state or local officials believe their equipment to be in compliance. Reading between the lines, I suspect that the paper may not have correctly understood the comment made by the EAC's spokesperson.
Friday, August 26
DOJ Preclears Georgia's ID Law
It's a sad day for voting rights. The United States Department of Justice today precleared Georgia's photo ID law. As noted in this post, I was among five election law professors who submitted a letter to DOJ urging that the Georgia law be denied preclearance.

The AP has this report on the preclearance decision and the ACLU this response, calling the preclearance decision "highly partisan." The Director of the ACLU's Voting Rights Project Laughlin McDonald points out, correctly in my view, that the decision will make minority voters worse off since they're statistically more likely to lack ID.

The preclearance decision is particularly difficult to justify, given that there's precious little evidence that the voter ID law will do anything to curb fraud. On the other hand, it's not particularly surprising that DOJ has granted preclearance. As I noted in this post from July 12, it was doubtful from the beginning that the Bush Justice Department would apply the Voting Rights Act's retrogression standard faithfully.

Can we trust DOJ to adminster the Voting Rights Act with a blind eye to its partisan effects? I don't think so. As the VRA comes up for reauthorization, one of the changes that should seriously be considered is whether authority to preclear state-level election changes should be taken out of DOJ's hands, and placed in some type of body that would reduce the possibility of partisan manipulation.
Thursday, August 25
EAC Voting System Certification Plan
At its public meeting in Denver this week, the EAC adopted this interim plan for the testing and certification of voting systems. Government Computer News has this report. Under section 231 of HAVA, the EAC is required to "provide for the testing, certification, decertification, and recertification of voting system hardware and software by accredited laboratories." The interim plan provides for independent testing authorities that are already accredited by the National Association of State Election Directors (NASED) to be temporarily accredited by EAC, until such time as the National Voluntary Laboratory Accreditation Program program is up and running. That won't be for another 18 months or so. If I understand this correctly, the bottom line appears to be that the present system of ITA certification will effectively remain in place for a while, at least until spring 2007.
Wednesday, August 24
New Election Research Blog
Political scientists Michael Alvarez of Caltech and Thad Hall of University of Utah have started a new blog called "Election Updates." It can be found at http://electionupdates.caltech.edu/blog.html. The blog will fill a definite need, focusing on social science research on election issues. I've added a link to the right. Profs. Alvarez and Hall also have a new paper out entitled "The Next Big Challenge: Developing Electronic Data Transaction Standards for Election Administration," which may be found here. It's worth reading, like all of their work.
Monday, August 22
Native Americans and the Voting Rights Act
Among the most significant but less examined contemporary applications of the Voting Rights Act is in places where Native Americans claim that their voting strength has been diluted. On Friday, the ACLU announced that a federal district court had issued a final ruling which requires the redrawing of district lines to prevent the dilution of Native Americans' voting strength in South Dakota. The court's ruling in Bone Shirt v. Hazelton may be found here.

The court in that case had previously concluded that the state had violated both section 2 and section 5 of the Voting Rights Act. The latest order is in response to the state legislature's refusal to craft a remedial plan. Information about this and other recent VRA developments is available on the "Resources" page of the ACLU's recently created votingrights.org site.

Documenting voting discrimination against Native Americans, both historic and ongoing, will be essential in the coming fight over reauthorization -- perhaps most importantly, in building a record that will allow the Act to be upheld in the courts, in the judicial battle that is certain to follow the one in Congress.
Friday, August 19
MALDEF Responds to Arizona ID Proposal
Last week, Arizona's Secretary of State Jan Brewer announced a new plan to implement the state's Proposition 200, which requires voters to show identification when voting. I've now posted that proposal here.

As noted in this post, Secretary of State Brewer's plan would deny a provisional ballot to those who lack ID. More specifically, it would deny a provisional ballot who don't have either a government-issued photo ID or two approved forms of identification bearing the name and address of the voter. The only exception is for Native Americans, with respect to whom there are special provisions under the proposal. As I have explained here and here, this is flatly inconsistent with HAVA under which all voters must be given provisional ballots even if they don't have ID.

On Wednesday, the Mexican American Legal Defense and Educational Fund sent this letter to Arizona's Attorney General. MALDEF's letter points out that the Secretary of State's proposal is inconsistent with HAVA. They also make the case that the imposition of an ID requirement is the functional equivalent of a poll tax, violating the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.
Thursday, August 18
Law Prof Letter on Georgia ID Preclearance
Five law professors have submitted this letter to the Department of Justice, opposing the State of Georgia's pending request for preclearance of a new voter identification bill. The signatories to the letter are Adam Cox of University of Chicago, Heather Gerken of Harvard, Michael Kang of Emory, Spencer Overton of George Washington University, and me. I've previously discussed Georgia's ID law here and here.

Our letter argues that Georgia has failed to meet its burden under Section 5 of the Voting Rights Act, to show that the recently enacted law is "nonretrogressive." It focuses particular attention on the elimination of the affidavit option for voters who lack ID. Under preexisting state law, voters without an approved form of identification could vote by executing a sworn affidavit stating that they are qualified to vote. Georgia's newly enacted law eliminates this option. Our letter urges that preclearance be denied, at least until Georgia produces information as to how many affidavit ballots were cast and, more specifically, how many were cast in predominantly minority precincts.
Charges Filed Against Taft for Golf Outings
Ohio's Governor Bob Taft has been charged with criminal misdemeanors, for failing to report free golf outings. The Ohio News Network has this report and the AP this one. Among those with whom Governor Taft golfed were now-infamous Ohio rare coin dealer Tom Noe, whose story I've summarized here and here. Charges were filed in Franklin County Municipal Court by the county prosecutor and Columbus city attorney. Governor Taft has acknowledged the omissions, but claims that they were inadvertent.

Update: Governor Taft today entered a no contest plea and received a $4000 fine, according to this report. He apologized afterwards, saying that the failure to report was unintentional. It's possible -- though it doesn't appear likely -- that Taft could face impeachment.

Update 2: Findlaw.com has the complaint against Taft here.
Wednesday, August 17
Unhappy Trails, from California to Ohio
California and Ohio were among the first states to enact legislation to pass legislation requiring that electronic voting machines generate a contemporaneous paper record (CPR), or "voter verified paper audit trail." Recent developments in both states provide additional evidence that these laws were very, very bad ideas.

The Dayton Daily News has this report on the plan of several Ohio counties to go with Diebold's CPR system, despite problems that California found to exist during recent testing, including printer jams on 10% of the machines tested. Diebold, for its part, claims that only 10 times out of 10,720 ballots cast. Both could of course be true (i.e., that printer jams occurred on 10 out of the 96 machines tested but, because multiple votes were cast on each machine, a printer-jam actually occurred only 10 occasions out of the 10,720 attempted votes -- or 0.1%). Still, it's cause for concern that several printers jammed in controlled tests.

Ohio's taking a risk by requiring electronic voting machines to have a contemporaneous paper record. As I'm quoted as saying in the article, this is an "unprecedented experiment" given that this equipment hasn't been used on so wide a scale in any other state. Note that my comment refers specifically to the use of this CPR system, rather than the use of paperless electronic voting systems generally -- which have been successfully deployed in numerous jurisdictions, provided access to many people with disabilities, and contributed to the estimated million votes saved in the 2004 elections.

Even aside from the question of whether CPR systems will be workable is the question of whether they'll be effective at preventing fraud and error. California provides new reasons for doubting that they will be. Secretary of State Bruce McPherson has opposed a requirement that the contemporaneous paper records be used in recounts, according to this report. The problem, according to McPherson, is that those records don't meet the legal definition of a ballot. Also, blind voters can't see and therefore can't verify it. Paper trail advocates argue that, if the paper records aren't recounted, they'll be useless -- and I agree with them for once. Unfortunately, these advocates latched on to the CPR as the solution, without thinking through whether it would actually function as intended or solve the asserted problem.

California and Ohio would both be better off getting rid of their CPR requirements entirely. There are other mechanisms by which to promote electronic voting security -- such as parallel testing, which California already does -- which are likely to be much more effective. Unfortunately, it doesn't appear that this is likely to happen. Although the CPR may be nothing more than a placebo for voters, it's one that some prominent legislators and a vocal minority of their constituents have committed themselves to. For this reason, further elaborated on here, Ohio, California and other states may have real problems complying with HAVA's 2006 deadlines for replacing punch cards and implementing accessible technology.

Unhappy trails, paved with good intentions . . .
Tuesday, August 16
NSF Funds Electronic Voting Research
A team of noted electronic voting critics has been awarded a $7.5 million grant from the National Science Foundation. The NSF's announcement is here, and the AP has this report. The team includes David Dill of Stanford, Doug Jones of the University of Iowa, and Avi Rubin of Johns Hopkins. The funded proposal goes under the name "A Center for Correct, Usable, Reliable, Accurate and Transparent Elections" (ACCURATE). More information is available on Joe Hall's Not Quite a Blog 2.0.
Monday, August 15
More on the Arizona ID Fight
Today's Arizona Capitol Times has this report on the latest regarding the implementation of Arizona's Proposition 200, which requires voters to present ID when they appear at the polls. Supporters of the measure are now threatening to go to court to make the Governor implement Proposition 200. They cite this letter from the U.S. Department of Justice regarding voter ID requirements. As I explained here, DOJ's letter asserts -- quite erroneously -- that a state could deny provisional ballots to those who lack ID, without violating the Help America Vote Act. In fact, HAVA sections 302 and 303 could hardly be clearer on this point. Remarkably, DOJ's letter didn't even mention the latter section.

Moreover, the question of whether Proposition 200's ID requirements are consistent with HAVA is distinct from whether they are in compliance with the Voting Rights Act. Because Arizona is covered by Section 5 of the Voting Rights Act (see here), any changes must be precleared by the Department of Justice to make sure that they're not "retrogressive" -- i.e., that they don't make racial minorities worse off. That's an entirely separate question from whether the ID requirements of Proposition 200 comply with HAVA.

It's thus hard to see how the supporters of Proposition 200 could sue to enforce its requirements, when 1) the Secretary of State just disclosed her plan for implementing the ID requirement late last week, and 2) the changes have apparently not been precleared for compliance with the Voting Rights Act. Moreover, if the state were to enforce Proposition 200 in the manner that the Secretary of State has reportedly recommended -- that is, to deny provisional ballots to those without ID -- it would place itself in violation of HAVA.
Sunday, August 14
Arizona's Latest ID Plan
Arizona's Secretary of State Jan Brewer has announced a new proposal by which to implement the photo ID provisions of Proposition 200, enacted last year. The East Valley Tribune has this report. It will allow voters who show ID's with outdated addresses to cast provisional ballots, to be counted if they can be verified. The change is meant to answer the state Attorney General Terry Goddard's concern that some voters don't get new licenses when they move from one place to another. Goddard still hasn't signed off. If he does, then the Arizona ID proposal must still be approved by the U.S. Department of Justice -- which is now considering a similar ID requirement from the State of Georgia -- before going into effect.

Update: The Arizona Republic has this story with some further comments on Secretary of State Brewer's plan. The story reports that voters without ID won't be allowed to cast a ballot, apparently not even a provisional ballot. If that's true, then the Secretary of State's plan violates the Help America Vote Act, even aside from any Voting Rights Act violation. Accordingly, the Attorney General should refuse to sign off on it.
Friday, August 12
HAVA's Ticking Clock
Recent developments throughout the country provide genuine cause for concern over whether states will comply with the Help America Vote Act's voting system requirements. By 2006, every state is required to have one disability-accessible voting machine at each polling place. Those machines must provide people with disabilities, including blind voters, the same opportunity for privacy and independence as able-bodied voters. Right now, electronic voting machines are the only ones that meet this requirement. In addition, states that received money for the replacement of punch-card and lever voting machines must have new technology in place by 2006 -- the original deadline was 2004, but most states got waivers giving them an extra took years.

2006 may have seemed like plenty of time when HAVA was enacted in 2002, or even during the 2004 election season. But now, there's considerable uncertainty about whether many states will comply with these two voting system requirements. The main complication has been the decision of several states to require that electronic voting machines generate a contemporaneous paper record -- euphemistically known as the "voter verified paper audit trail." The USA Today reports here that 25 states have passed legislation to require a paper trail. I actually think that the number which have required a contemporaneous paper record is less than that. Still, this legislation has thrown a big monkeywrench into states' ability to comply with HAVA's mandates.

The problem is that generating a contemporaneous paper record isn't quite as simple as strapping a printer on to each voting machine. As noted in this UPI story, paper can cause problems of its own including paper jams and resulting lines for voters. In fact, when California recently tested Diebold's paper trail system -- one that many jurisdictions throughout the country are considering -- 10% of the printers jammed. And even if the printers work flawlessly, it's not at all clear that a paper copy will ensure electoral integrity, especially since relatively few voters appear to check the paper records.

The result of all this could be a real mess in the 2006 elections. The State of Mississippi has decided to go with Diebold's paper-trail system, despite the problems in the California test. Meanwhile, Alabama's electronic voting machine panel is deadlocked, according to this report. In Ohio, the only currently certified electronic system that meets the state's paper trail requirement is Diebold's. It's possible that another system, one made by ES&S, may be certified by the state's September deadline for choosing a voting machine (see this report from the Akron Beacon-Journal). Still, that gives counties only two choices for complying with HAVA's mandate, and not much time to get new equipment in place by the 2006 elections.

It's quite possible that many jurisdictions won't have replaced their punch cards by 2006. If that happens, then some states could be required to give some of the money that they've received for voting machine replacement back to the U.S. government. And voters with disabilities (or perhaps, dare to dream, the U.S. Department of Justice) might bring suit against jurisdictions that aren't providing accessible technology at each polling place, as required by HAVA. Only time will tell, but it now appears likely that at least some jurisdictions will be in violation of one or both of HAVA's principal voting system requirements when the 2006 elections roll around.
Wednesday, August 10
Reform Ohio Now (or Not)
A group called Reform Ohio Now is seeking to put three initiatives on the November 8, 2005 ballot that would make major changes to the admnistration of elections, drawing of district lines, and campaign finance regulation. An overview and the text of the amendments may be found here. Among the leaders of the group is Ohio State University political scientist, Prof. Herb Asher.

The first of the three amendments, which so far has received most of the attention, would institute an independent system of drawing legislative districts. It would create a five-person independent redistricting commission, which would be required to draw district boundaries in a manner that would maximize competitiveness. The second amendment would create a state board of elections supervision, which would exercise many of the functions now the responsibility of the Secretary of State. It would also institute early voting. The third amendment would impose limits on contributions to candidates for the legislature and for executive office, including $2000 limits on contributions to candidates for statewide office.

On Tuesday, Reform Ohio Now turned in petitions with 520,789 signatures, according to the Dayton Daily News. This is over 200,000 more than the number required to get on the ballots. But already, the Republican Party -- which controls both houses of the state legislature, and therefore doesn't want to change the current redistricting system -- is kicking in to high gear its efforts to kill the initiatives. The AP reports that the State Supreme Court dismissed a lawsuit trying to keep the initiatives on the ballot, but this is sure to be only the first round in the legal skirmishing over the measures.
Tuesday, August 9
Should the VRA Be Strengthened?
In the wake of the Voting Rights Act's 40th birthday, one of the questions that will surely be asked is whether there are aspects of the Act that should be changed. On Monday, Attorney General Alberto Gonzales emphatically declared the Administration's support for the VRA before at an ABA meeting, saying that "this Administration looks forward to working with Congress on the reauthorization of this important legislation." While this alone doesn't mean that the expiring sections of the VRA will be reauthorized before their 2007 expiration, it does provide considerable reason for optimism among voting rights advocates.

The Administration's declared support for the VRA renewal provides the opportunity to ask whether there are parts of the Act that should be amended or strengthened, as took place in 1982. Cassandra Butts of the Center for American Progress argues here that Congress should amend the VRA to reverse two Supreme Court cases giving the Act a limiting interpretation. One of those cases is Reno v. Bossier Parish School Board (2000), which made it more difficult to show discriminatory intent under Section 5 of the VRA. The other is Georgia v. Ashcroft (2001), under which a redistricting plan may be deemed "nonretrogressive" in its impact, and therefore compliant with Section 5, even if it reduces the number of "safe" minority districts.

One of the things to take into consideration, in determining whether such strengthening amendments should be adopted, is the impact on the court fight that is sure to follow reauthorization of the VRA. That's especially true given the likely ascension of Judge Roberts to the Supreme Court. As Rick Hasen pointed out in this L.A. Times op-ed, Roberts' memos as a young attorney in the Reagan Administration indicated a hostility toward the strengthening amendments to the VRA that were ultimately adopted in 1982. Would a Supreme Court with Roberts on it be more likely to hold Section 5 unconstitutional, if the Act were amended to reverse Reno v. Bossier or Georgia v. Ashcroft?

I hope that the answer to this question is no ... but it may not be. The post-O'Connor Court might well think that the VRA (if amended to reverse prior interpretations) violates the requirement that civil rights statutes be "congruent" and "proportional" to the constitutional harm. That doesn't mean that the VRA should simply be renewed as is. It does mean that voting rights advocates should carefully balance the benefits from a stronger VRA against risks of it being held unconstitutional, in deciding whether to press for amendments of the type that Butts advocates.
Monday, August 8
Fraud and the Georgia ID Bus
With a request for preclearance of its recently enacted voter ID requirement now pending before the Justice Department, the State of Georgia is putting a bus on the road to issue identification cards to low income residents. The Atlanta-Journal Constitution has this report (subscription required). The president of the Georgia Association of Black Elected Officials calls the bus a "public relations gimmick." The AARP is also opposed to the law, estimating that over 150,000 seniors in the state lack photo ID.

In related news, the Pittsburgh Tribune-Review has this column on the American Center for Voting Rights' "study" of voting fraud, which I discussed here last week. Dimitri Vassilaros notes that ACVR spokesman Jim Dyke was communications director for the RNC and, as I mentioned last week, ACVR's counsel Thor Hearne was National Election Counsel to Bush-Cheney 2004. Vassilaros calls the ACVR's report an example of "blatant partisanship under the guise of objectivity." I agree. At least the DNC had the decency to release its report under the party's name -- and to include some original research in it, rather than recycling mostly unconfirmed and cherry-picked news stories to support its call for voter ID, as the ACVR has done.
Saturday, August 6
The Voting Rights Act at 40
President Lyndon B. Johnson signed the Voting Rights Act 40 years ago today. The ACLU has launched this website on the VRA's expiring provisions. Among the many news articles from today's papers commemorating the Act's birthday are this one from the Atlanta Journal-Constitution, which addresses the current controversy over whether key provisions of the VRA should be reauthorized before they expire in 2007. Most notable among these is Section 5, which requires that certain jurisdictions -- including most Southern states -- obtain "preclearance" of any changes to their election procedures. The article discusses Georgia's currently pending request to have its new photo ID bill precleared, despite the fact that the bill would likely have a disparate impact on African American voters. Also worth a look is this story from the San Francisco Chronicle, which considers the impact of the VRA's language assistance provisions, also set to expire in 2007, and this one from Newhouse News on a possible strengthening amendment to reverse the holding of Georgia v. Ashcroft.
Thursday, August 4
The League and Statewide Registration Lists
The League of Women Voters today released this report entitled "Next Steps on Election Reform." The report is a product of a forum that the League hosted in March of this year. It recaps problems that emerged in the 2004 election describes what ought to be done to improve things in the future. The four "key steps" summarized in this press release are:
-A new focus on service,
-Research and development, and
-New federal resources and commitment
In addition to addressing such familiar problems as provisional voting, registration, and technology, the League's report addresses the "next big issue" of statewide registration databases, which HAVA mandates be in place by the 2006 elections. It notes that there's little agreement on how an effective registration database should function, something that's quite worrying given the short time left for implementation.

The report quotes EAC Vice-Chair Paul DeGregorio as saying that he'd keep those concerns in mind when developing the Commission's guidance on this HAVA requirement. On that subject, the final version of the EAC guidelines, which I mentioned in this post, is now available here. These guidelines interpret HAVA as requiring that the state officials must be able to control access to data, and that local officials be able to have access to it. It recommends that the state list be synched with local databases at least once every 24 hours.

Under HAVA, the statewide lists must be coordinated with driver's license and social security databases. One of the big concerns is that voters will wrongly be excluded from registration lists due to transcription problems or other minor errors. The guidelines recommend that states avoid "inflexible" matching rules that would have the tendency to exclude eligible voters. Where the information doesn't match, the EAC recommends that voters be given notice and the opportunity to explain or correct the apparent discrepancy.

My take: Statewide registration databases are indeed the next big issue to watch out for in 2006. I'm very concerned that a significant numbers of voters will show up at the polls and find that their names aren't on the lists, due to problems in matching their data against motor vehicle or social security records. The effect could be to put additional strain on the provisional voting system, since voters whose names don't appear on the lists must be given provisional ballots -- which must in turn be counted if their eligibility can later be verified. And more provisional ballots mean a greater likelihood of post-election disputes over the outcome.
Wednesday, August 3
Vote Suppression, Fraud, and Photo ID
Since the 2004 election, there's been considerable attention devoted to election practices that served as obstacles to voting. That attention has focused on such problems as unreliable voting equipment, restrictive rules for counting provisional ballots, photo ID laws, and barriers to registration like Secretary of State Ken Blackwell's now-infamous directive requiring that registration forms be on heavy-stock "80 pound" paper weight. The DNC has issued a lengthy report documenting the problems encountered by voters in Ohio, which found that minorities and other Democratic-leaning groups were especially hard hit.

It was inevitable, then, that right-leaning advocacy groups would strike back with their own take on Election 2004. And so they have with this report entitled "Vote Fraud, Intimidation & Suppression in the 2004 Presidential Election." The report has been put out by a group calling itself the "American Center for Voting Rights Legislative Fund," a group led by Mark P. "Thor" Hearne who was National Election Counsel to Bush-Cheney 2004.

This a group that clearly has an agenda, the centerpiece of which is the imposition of a government-issued photo ID requirements that would impose disproportionate barriers to elderly, disabled, minority, and poor voters. Accordingly, the report it has issued -- drawn mainly from media reports from the 2004 election -- attempts to create the impression that fraud is rampant.

The report places particular emphasis on allegations of wrongdoing in black communities such as those in East St. Louis, Detroit, Milwaukee, Philadelphia, Cleveland, and Alabama's Black Belt. The report also highlights allegations against those with African-American sounding names like "Sowande Ajumoke Omudunde," focuses on "fraudulent and suspicious" registrations supposedly submitted by the NAACP, and retells the oft-repeated a story of a registration with the name "Jive F. Turkey, Sr." being submitted in Ohio -- though there's little or no evidence that he or any of the other "fictional" voters like Dick Tracy actually attempted to vote in the state.

When one looks carefully at the collected stories that form the bulk of ACVR's report, it quickly becomes apparent that there's much less there than meets the eye. Take the State of Wisconsin, for example, which has been the site of one of the most heated battles over whether to require photo ID for voting. The report alleges 200 cases of felons improperly voting in Milwaukee, something that a photo ID law wouldn't do anything about -- there's no prohibition. after all, on ex-felons having a driver's license. The report further alleges that there were 100 instances of double-voting, which includes people voting twice, voting under fictitious names, and voting in the name of dead people. What's remarkable is that in a city with a voting-age population of over 425,000 people, the documented instances of fraud are so small, even according to those intent on portraying fraud as a huge problem.

What's especially noxious about the proposal to require photo ID is that it wouldn't affect all citizens equally. A recent study by John Pawasarat of the University of Wisconsin-Milwaukee finds certain groups -- including the elderly, the poor, Latinos, and African Americans -- are much less likely to have photo ID. While over 80% of Wisconsin adults have a valid drivers' license, only 45% of African American men and 51% of African American women do. The disparity is even more striking for black males 18-24, only 22% of whom have a photo ID.

Even if we put this racial disparity aside, the statistics from Wisconsin show that approximately 800,000 voting age adults don't have a driver's license. How many of those non-drivers are likely to wait in one line at their local DMV, only so they can go wait in another line to vote, even if it's provided free of charge? Let's assume, quite optimistically, that half will do so and do a simple cost-benefit analysis. There are 87,300 adults in Milwaukee without a vehicle in their household. That means that in hopes of preventing those 100 "documented" instances of double-voting in Milwaukee, we're going to pass a law that serves as a barrier to the around 43,650 people. Impeding access to 436 people for every alleged fraudulent vote you prevent isn't a particularly favorable result, if you ask me -- especially when you take into account the disparate impact of such a requirement when it comes to race, age, income.

The authors of the ACVR report would surely deny allegations of intentional racism ("what, us, racist?"), and it's not my purpose to label any particular individual or organization racist. But the clear impression that ACVR is seeking to create with its report is that voter fraud has run amok in black communities, and that photo ID laws are the way to fix the problem. It's a sadly ironic way to celebrate the 40th Anniversary of the Voting Rights Act, which is coming up this week.

We should remember that, at the turn of the 20th Century, allegations of "good government" were used by white Democrats in a remarkably successful strategy to suppress the black vote. The result of those very successful efforts was to impose barriers like the literacy test, which excluded African Americans from voting throughout the South for the better part of the century, until after the Voting Rights Act of 1965. If you go back and read some of the documents from the late 1800's and early 1900's, as I've recently been doing, the similarity to the sort of arguments being advanced now in support of photo ID laws is frightening. It is beyond unfortunate to see the same sort of tactics, albeit dressed up in more respectable garb, being employed at the start of the 21st Century.
Tuesday, August 2
California Deep-Sixes Diebold

The State of California has rejected Diebold's TSx, because of a 10% failure rate in state testing, leaving local election officials scrambling to come up with an alternative in time for the 2006 elections. The Oakland Tribune has this report. California is among the states that have mandated that electronic voting machines generate a contemporaneous paper record (aka, "voter verified paper audit trail"). One of the chief problems with Diebold's machine is -- yup, you guessed it -- paper jams.

In fact, the story report, there's no system certified in the state that generates a contemporaneous paper record and is disability-accessible. This puts California counties in a pickle, given HAVA's 2006 deadline for installing accessible voting equipment. Right now, the only systems that comply with HAVA's accessibility requirements are electronic systems. But no certified electronic system complies with the state's paper trail law.

Unless things change quickly, then, counties may be stuck between the Scylla of violating HAVA's acessibility requirement and the Charybdis of violating the state's contemporaneous paper record requirement. If that's the case, and there's a real conflict between violating federal law and violating state law, then state law will have to give. In other words, accessible voting machines have to be provided for disabled voters, even if they don't generate the contemporaneous paper record required by California law.

Update: According to this follow-up story, the problems with Diebold's TSx-with-attached-printer were even worse than originally reported. In California's test of 96 machines, almost one-third reportedly had some sort of problem. Ten machines had a total of 11 printer jams -- further evidence that imposition of the contemporaneous paper record require is likely to do more harm than good.

Another Update: Joe Hall has these thoughts on recent Diebold news coming out of California and Florida, in his "Not Quite a Blog 2.0." Joe and I don't always agree on voting tech matters, but he's always thoughtful. He reports that Diebold has threatened to protect its "proprietary interests," speculating that the company might be seeking to prevent Diebold equipment from being used with a"hybrid" system like the Automark, which allows visually and manually impaired persons to print out a ballot that can be read by an optical-scan machine. My own opinion is that this won't help California counties, even if it could be done, because I don't think that hybrid systems such as the Automark comply with HAVA' s requirement that voters with disabilities be provided with equal access, including independence and privacy. (Note: This update was corrected in response to clarification from Joe Hall about what he thinks Florida counties might consider doing.)

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Moritz College of Law The Ohio State University