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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Monday, January 30
Provisional Ballots in Ohio
No, this isn't just a flashback to those days in early November 2004, when those of us here at Moritz were bleary-eyed from lack of sleep. There's actually some news on the subject, on two fronts. (Before you D's out there get too excited ... I hate to tell you this, but Kerry still lost.)

U.S. District Judge David Katz in Toledo has issued this memorandum opinion in White v. Blackwell. The case concerns whether voters who applied for, but claim not to have received or cast, absentee ballots have a right to cast provisional ballots. Relying on a directive from Secretary of State Ken Blackwell, the Lucas County Board of Elections has denied such voters provisional ballots. The case was originally brought on election day in November 2004, and Judge Katz issued a TRO against the Secretary and county board that same day. (More documents from the case are available here, and I discussed this case in a recent G.W. Law Review piece which may be found here.)

In its most recent order, the court rejects the argument that the case is moot, noting the uncontradicted evidence that the Secretary of State has promulgated -- and not retracted -- guidance that a provisional ballot should be denied to those who requested an absentee ballot. The court notes that Blackwell's office continued to provide the same guidance and form that prompted the original TRO, even after the November 2, 2004 election. In particular, the order cites an August 2005 special election for a congressional seat, in which the same forms were used. The court goes on to finds Blackwell's guidance to be in plain violation of HAVA when it comes to federal elections, a point that doesn't seem to be in serious dispute. It also finds Lucas County to be in violation of HAVA, despite their claim that "we were only following orders."

If the facts are indeed as stated in Judge Katz's opinion, it's hard to see what Blackwell's office could have been thinking. There's really no serious question about the underlying legal issue, namely that voters have a right to cast a provisional ballot if they certify that they're eligible and registered in the jurisdiction (though, as the court's order rightly notes, whether those provisional ballots are actually counted is a separate question). So why didn't the Secretary of State's office correct its guidance to counties? It's a mystery to me. To top it all off, the inexplicable actions of Blackwell's office have left the State of Ohio on the hook for attorney's fees which Judge Katz -- quite properly, in my view -- awards to plaintiffs.

In other Ohio provisional voting news ... the state's house and senate have reached agreement on a massive bill overhauling the state's election system. The bill is slated for a vote in both houses tomorrow, according to the Cleveland Plain-Dealer. Unfortunately, the bill as a whole will do more harm then good. Among its provisions are ones disallowing provisional ballots from being cast if they're cast in the "wrong precinct," and requiring voters to produce identification (although, thankfully, not state-issued photo ID) in order to have their votes counted. The bill also includes provisions providing that voters names be "marked" if mail is returned as undeliverable, and facing the prospect of non having their votes counted, as well as a provision allowing pollworkers to demand the production of papers from naturalized citizens whose eligibility is challenged. The latter provision, in particular, is a recipe for racial profiling at the polls. My testimony on a prior version of the bill, most all of which applies to the current version, is here, and the ID provision is specifically addressed here and here.

Even aside from the voting rights concerns associated with this bill, an almost certain consequence will be to increase the number of provisional ballots cast. That, in turn, will not only magnify the headaches that local election officials must deal with, but also increase the risk of post-election disputes and litigation.
Thursday, January 26
A Strange Take on Texas
AEI's website has this op-ed from Edward Blum, Roger Craig, and Abigail Thernstrom, on the Department of Justice's preclearance of the Tom DeLay-backed Texas re-redistricting plan. The op-ed, originally published in the National Review online, takes the position that DOJ's career staff were wrong to conclude that the plan was retrogressive with respect to African-American and Latino voting rights under section 5 of the VRA. It therefore concludes that the political appointees were correct to overrule them -- and says that the media missed the boat in suggesting otherwise. This view may not be correct, but it's also not that surprising; rather, it's pretty much what you'd expect from those on the right.

What's really strange is the punchline. Blum, Clegg & Thernstrom conclude from DOJ's actions with respect to Texas that section 5 of the VRA should be "scrapped" to prevent further "abuses." Huh? If you subscribe to the argument that the authors spend most of their article making, then the process actually worked as to Texas. Career staff made a detailed recommendation which, after due consideration, their political appointee bosses appropriately rejected. In other words, if we assume the authors' perspective on what happened with Texas to be correct, then this is a really bad example for the argument for letting the VRA expire.

My own view is that they're wrong on both counts. I don't think the process worked very well in Texas. At the very least, the political appointees actions create a serious appearance problem. I also disagree that VRA preclearance should be scrapped entirely. That's because I think there is a whole lot of racial bias that can creep into the political process -- and would do so if we got rid of the backstop that preclearance provides. Much of this depends on the extent to which one believes that racism remains a problem in covered states and counties, especially in the South, or whether one believes that "Jim Crow is dead."

Personally, I think racism is still a major issue. Recent events in Georgia, which Blum et al don't mention, bring this to life in dramatic fashion. Last year, the state enacted a photo ID law despite the lack of any evidence of voters showing up at the polls pretending to be someone they're not. The civil rights community was resolutely opposed to this law, on the ground that it would disproportionately exclude groups who lack state-issued photo ID cards. As in Texas, DOJ precleared the change against the advice of career staff. Staff's inquiry found that one legislator supporting the bill said that black voters in her district only vote if paid to do so. A federal court thereafter found the law to impose an unconstitutional barrier to the right to vote. Undeterred by this setback, the first thing the Georgia legislature did upon reconvening this year was pass a new version of the ID bill, with all Democratic senators dissenting. Amazingly, the supporters of ID requirement still lack evidence of anyone impersonating registered voters, and thus a factual predicate for the bill. As noted here, black legislators in the state stayed away from the MLK Day celebrations, to protest the hypocrisy of passing an exclusionary voting practice one minute and purporting to celebrate Dr. King's legacy the next.

Georgia is a great example of why the goals of theVRA still remains vital. It's also an example of why DOJ can't be trusted to fairly administer its preclearance duties under section 5. So in this sense, at least, Blum & co have a point. The preclearance process is flawed -- just not exactly in the way that they suppose. The solution is not to scrap section 5 entirely, as they recommend, but to consider how the flaws can be repaired. I've suggested some possibilities here. Congress should consider these and others when it addresses VRA reauthorization this year.
Monday, January 23
Why Congress Should Reexamine Preclearance
Today's Washington Post has this report on allegations that the U.S. Department of Justice is misusing its voting rights enforcement powers for partisan political purposes. The concerns grow largely from DOJ's decisions to preclear electoral changes in Georgia and Texas, against the advice of career staff.

Predictably, Attorney General Gonzales and other DOJ spokespeople deny that the department's voting rights decisions have become politicized. But it's awfully difficult to maintain that position with a straight face, when DOJ precleared the Republican-backed Georgia ID proposal -- widely viewed as a disenfranchisement tactic by civil rights advocates -- the day after DOJ staff wrote a detailed memo explaining why the ID law would likely have a retrogressive impact on minority voting rights. This isn't the first time that DOJ has been accused of misusing its voting rights enforcement power for partisan purposes, but the allegations appear to have reached a new level of intensity of late.

The big question is what can be done. Congress will, in the coming year, be considering whether to reauthorize provisions of the Voting Rights Act that expire in 2007. Among them is section 5, which vests responsibility for preclearing proposed voting changes in DOJ. It's very likely that section 5 will be reauthorized. The bigger question is whether the preclearance process should be changed, to diminish the possibility of partisan politics trumping evenhanded enforcement of voting rights. I've suggested some possible changes to the preclearance process here, and there are undoubtedly others that might be considered. It may turn out that, after going through the possible changes, Congress ultimately determines that the status quo, whatever its flaws, is less problematic than any alternatives. But it's something that should at least be examined.

Whether Congress will in fact change the preclearance process, or even seriously consider it, is another matter. One way of minimizing the partisan implications of any change would be to have the changes become effective in 2009, since we don't know which party will hold the White House -- and therefore DOJ -- in that year. That may make Republicans more likely to consider possible changes to the preclearance process, despite their present claims that it's working just fine.
Friday, January 20
More HAVA (Non)Compliance News
Following up on yesterday's post regarding states' noncompliance with the Help America Vote Act, the Christian Science Monitor has this report on the tension between HAVA's voting system requirements -- including accessible voting equipment -- and state law requirements that electronic voting machines generate contemporaneous paper records, particularly in California.

Meanwhile, in Florida, Leon County (Tallahassee area) is trying to figure out how to comply with HAVA's disability access mandate, according to Computerworld. Leon County, whose elections supervisor Ion Sancho has been among the few local elections officials openly critical of electronic voting, scrapped its plans to go with Diebold. It instead chose to use the ES&S Automark, a "hybrid" direct record electronic and optical scan system. It's debatable whether that system complies with HAVA's disability access mandate, because some voters with disabilities may not be able to use it independently. But now ES&S is declining to enter an agreement with Leon County. That could mean that the county will lose half a million dollars in federal funds, and face the prospect of private lawsuits from disabled voters under HAVA.

Counties that don't comply could also find themselves threatened with enforcement actions from the U.S. Department of Justice, as has already happened to New York. The letter from DOJ to the New York Attorney General, which says the state is dead last in HAVA compliance, may be found here. The letter says that N.Y. is "further behind ... than any other state in the country."
Thursday, January 19
Comply with HAVA, or Prepare to Be Sued
The nation's two largest states appear to have chosen the latter option.

In California, county registrars are becoming increasingly nervous about whether they'll be able to comply with HAVA's requirement that every polling place have at least one voting machine accessible to disabled voters in this year's election. The San Jose Mercury News has this report. The failure comply arises from the fact that the Diebold system that many counties intend to use hasn't been certified by the California Secretary of State, Bruce McPherson, who's quoted as saying: "If somebody should file a lawsuit against the county, ... this Secretary of State's Office is going to be foursquare behind them in defending that position.'' But I don't think either the county or the state would have to have a leg to stand on. HAVA is unambiguous in requiring that every state have accessible equipment in place by January 1, 2006 (actually, the original deadline was 2004 but California and most other states got an extension).

Not to say I told you so, but this is something I warned about many months ago -- see "A California Calamity in the Making" and "HAVA's Ticking Clock." California's impending failure to comply with HAVA is a direct result of the state's ill-advised decision to require a contemporaneous paper record, aka "voter verified paper audit trail" or "VVPAT," before there was any accessible system that generated such a record. In other words, this state-law requirement has impeded compliance with federal-law disability access requirements. As any first-year constitutional law student knows, where there's a conflict between state and federal law, the Supremacy Clause requires that state law yield. So if in fact California and its counties don't get new voting equipment in place by the 2006 primary, it's hard to see how they can do anything but throw themselves at the mercy of the court.

The second-largest state isn't in any better shape. As the Albany Times Union notes here, New York is at risk of being sued by the U.S. Department of Justice and losing some of its federal funds under HAVA. As in California, the main problem has to do with voting machines. In New York as in California, the transition to new equipment is impeded by a state law that doesn't make much sense. In New York, it's a state law requirement that voting machines be "full face" -- i.e., listed all at once on a single page. Modern electronic voting machines typically don't display all choices at once, but instead allow voters to scroll through the different races. New York's full face requirement is antiquated, and one wonders why the legislature hasn't repealed it.

Meanwhile, one of the country's smallest states, South Dakota, appears to be doing better. This story from the Rapid City Journal reports that the state is in compliance with another 2006 requirement of HAVA: that statewide registration databases be in place. But even in South Dakota, there's a hitch. HAVA requires that Social Security numbers (actually, the last four digits of the SSN) or driver's license numbers be "matched" with Social Security or motor vehicle records. The problem is that officials can't do a match of voters who've moved to South Dakota from other states, and still have their old state licenses. Those other states either can't or won't provide this information. So what's the state supposed to do? They're asking those drivers who still have out-of-state licenses for their SSNs. The trouble with that is that voters aren't required to have a SSN in order to vote. What the state should do, in my opinion, is to allow those folks to register and assign them a unique identifying number, as HAVA provides, even if that means that the number can't be "matched" with other agency records.
Monday, January 16
MLK and Voting Rights Today
It's Dr. Martin Luther King, Jr. Day, an occasion not only to celebrate the accomplishments of one man with a dream, but also to assess the challenges that we still face in achieving the ideals of equality in the realm of civil and political rights to which he dedicated his life. Among Dr. King's most significant and lasting achievements is his work in securing enactment of the Voting Rights Act of 1965, which opened up the franchise to countless people who were excluded from voting altogether throughout most of the 20th Century.

Taylor Branch's third and final volume on America in the King years, entitled "At Canaan's Edge," tells the story of the VRA's enactment. Today's New Yorker has this book review. The first two volumes ("Parting the Waters" and "Pillar of Fire") were magnificent and this one is a must-read, particularly for those who care about voting rights. "At Canaan's Edge" details the years from 1965 through 1968, which included the march from Selma to Montgomery which was instrumental in passage of the VRA. The New Yorker review focuses on the collaboration between Dr. King and President Lyndon Johnson, leading up to passage of the VRA. Among the sources that Branch includes in his new book is tapes from the oval office during the LBJ administration, including ones of his converations with Dr. King. LBJ thought the VRA would be his greatest achievement, saying "It will do things that even that '64 [Civil Rights] Act couldn't do."

After its signing on August 6, 1965, the VRA had an almost immediate impact in opening up the voting booth to African Americans who had been prevented from voting -- often through brutal violence or threats of violence -- throughout the southern states. The first generation of VRA enforcement resulted in the dismantling of direct barriers to participation, such as literacy tests. But legislative bodies and congressional delegations still remained largely segregated, until the second generation of VRA enforcement. Critical to this effort was a focus on practices the had the effect of diluting minority voting strength, such as at-large election systems and districts gerrymandered to favor white incumbents. This led to an increasing number of people of color elected to office, especially in the 1980's and 1990's.

It would be nice to believe that we've resolved the issues of race and voting that the VRA was designed to deal with. Recent developments, however, suggest otherwise. There's no more glaring example than in the State of Georgia, Dr. King's home state. As the Atlanta Journal-Constitution reports here, the state's Black Legislative Caucus refused to attend Friday's commemoration of MLK Day, in protest of the Georgia legislature's recent re-enactment of a provision that would require all voters to show photo identification in order to vote. Among those who are less likely to have photo ID -- and thus would be more severely affected by this ultra-restrictive ID provision -- are African Americans, people with disabilities, elderly voters, and poor people generally.

Exclusionary practices like the ID bill are representative of the third generation of VRA enforcement. The proponents of the ID bill, of course, attempt to deny that it's a "racial issue." Of course, those who supported such exclusionary devices as the poll tax and literacy test said the same thing. It's no answer to assert that partisanship rather than race is the motivation for Georgia's bill. After all, the exclusionary practices that the VRA halted were also driven by a desire to protect white incumbents.

Among those who refused to attend Friday's MLK Day commemoration in Georgia was Rep. John Lewis, who was savagely beaten by the police as he led a march for voting rights in 1965. For Rep. Lewis and other black leaders, the hypocrisy of Georgia purporting to honor Dr. King while dishonoring his legacy through an exclusionary ID bill was simply too much to stomach. As Rep. Lewis put it, "I believe it was too great a contradiction to celebrate the legacy of Dr. King in one hour and pass the Georgia photo ID bill in the next."

Equally troubling are the actions of the U.S. Department of Justice with respect to measures that diminish minority voting strength. One of the most effective features of the VRA has been Section 5, which requires that electoral changes in covered jurisdictions be "precleared" by DOJ or a federal court. While the preclearance process has never been completely insulated from partisan politics, there's increasing evidence that DOJ has subordinated its responsibilities under the VRA to the interests of the Republican party. As I've discussed on several occasions, most recently here, DOJ has come under intense criticism for its decisions to preclear Georgia's prior version of its ID bill (subsequently enjoined by a federal court) and Tom DeLay's Texas redistricting plan (presently before the Supreme Court). In both cases, DOJ approved Republican-backed changes against the recommendations of career staff, who found that they would have a retrogressive impact on minority voting rights.

Celebrating Dr. King's legacy requires more than a mouthing of approval of his achievements, of the sort that we saw at the Georgia capitol on Friday. It requires recognition that the work of achieving equality, especially in the realm of democratic politics, is far from complete. Reauthorization of the VRA provisions set to expire in 2007 is a step toward that objective, but it is far from sufficient. We also need to consider how existing laws, such as Section 5 of the VRA, might be improved to eliminate or at least reduce the taint of partisanship that has become so distressingly apparent in recent months.
Thursday, January 12
Who's Dead Last in HAVA Compliance?
According to the Department of Justice, it's the State of New York. The NY Times has this report, which says that DOJ may bring a civil action to compel compliance with the voting system requirements of the Help America Vote Act:
The federal Justice Department has threatened to sue New York State over its failure to modernize its voting system, saying New York "is further behind" every other state in complying with new guidelines stemming from the 2000 presidential election dispute....

New York is behind all other states and territories in deciding how to spend its share of $2.3 billion in federal aid to modernize voting machines and other elections technology. So far the state has received $220 million to replace its 20,000 aging voting machines, train local election officials to use the new machines, and create the voter database. The money is unspent and collecting interest, officials say.
The story further reports that DOJ has authorized a lawsuit against New York, but is hoping to negotiate a settlement first, as it recently did with California.
Tuesday, January 10
More Georgia ID Shenanigans
The Georgia legislature is at it again. This year's legislative session began with a new effort by Georgia's Republicans to push through a requirement that voters present photo identification. The AP has this report, which notes that the new ID proposal was sprung at the hearing of a legislative committee on Monday -- which proceeded to pass it on a 7-4 vote, apparently on party lines. Here's an excerpt from the AP report:
Joe Beasley, the southern regional director of the Rainbow PUSH/Coalition, denounced it as "another scheme to suppress voting." .... Before the vote, he approached the table where lawmakers sat and glared at Rep. Sue Burmeister, the Augusta Republican who was quoted in a Justice Department memo saying that blacks in her district typically vote only if they're paid. "I'm one Negro that votes without being paid," Beasley said.
The new bill follows a federal district court order that enjoined Georgia's prior ID law, on the ground that it denied equal protection and would amount to a poll tax. Under the new proposal, an ID would be provided free of charge to those who don't have one. But this is still a solution in search of a problem. There's no evidence that voters appearing at the polling place pretending to be someone they're not is a real problem. What's become very clear -- particularly given the majority party's rush to get this through committee -- is that the real objective of the ID proposal is not to protect electoral integrity at all, but to impose barriers on those seeking to exercise their right to vote.
Monday, January 9
A Happy New Year (Except for Election Officials)
I'm back in Columbus and back to the blog after a restful vacation. There's a lot to catch up on, not the least of which is the hearings on Judge Alito's nomination to the Supreme Court and the impact that he would have on voting rights if confirmed.

Today, however, I'd like to focus on a critical subject that's gotten a lot less attention: the deadlines for compliance with the Help America Vote Act of 2002. There were actually two important deadlines that expired on January 1, 2006. The first was the deadline for having statewide registration databases in place, under section 303 of HAVA. The original deadline was actually January 1, 2004, but most states got a two-year extension. The second deadline was for meeting the voting system requirements in section 301, the most significant of which is having at least one unit at each polling place accessible to people with disabilities. In addition, those states which received federal funds for the replacement of punch-card and lever voting machines have to replace those systems by the first federal election in 2006.

According to this report from the Sacramento Bee, there are 21 states that aren't in compliance with the deadline for accessible voting technology. And the AP reports that at least 11 states were likely to miss the registration database deadline. As electionline.org notes in its "The List" for 2006, one of the big fears among election officials is what the Department of Justice of do to enforce HAVA. Already, DOJ has entered into an agreement with one state (California) that wasn't ready to meet HAVA's deadlines. That agreement states:
There was a lack of adequate planning and action by the prior leadership of the Office of the [California Secretary of State] before January 2005 in the development and implementation of a statewide voter registration list that would comply with Section 303(a) of HAVA. There were also disruptive circumstances in the operations of the Office of the Secretary of State, including the resignation of the previous Secretary of State [Kevin Shelley, who resigned amid allegations that he'd misused HAVA funds for partisan purposes] on February 2, 2005 and the subsequent appointment and legislative confirmation on March 30, 2005 of the current Secretary. The actions of the prior leadership of the Office of the Secretary placed the State in imminent danger of not having a HAVA-compliant statewide voter registration system in place by the January 1, 2006 deadline for compliance with Section 303(a), and have made it impossible for the State to meet the requirements by January 1, 2006 in the optimum manner desired by the State.
It goes on to set forth an interim plan for compliance, the gist of which is that the 58 counties' registration lists will be merged into the "CalVoter" database. Counties will continue to keep data on their own systems, which is to be uploaded on a regular basis. Among the other states that aren't in compliance with HAVA is New York, and it's reported that DOJ is also negotiating with that state, though it appears that California's the only one so far with a formal agreement.

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