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, March 31
Enforcing Election Reform
The light blogging this week is due to the fact that I've been travelling, on Wednesday appearing at a conference on the Help America Vote Act hosted by American University. The word on the street in Washington is that there's little appetite for amending HAVA in the present Congress. That's wise, as Congress would be well-advised to study how the voting technology and statewide registration database requirements that go into effect this year are working, before imposing new mandates.

A big question is what will happen in those places that aren't fully complying with HAVA's requirements. DOJ has entered into an agreement and has brought suit against New York. Will other non-complying states also be facting lawsuits? Also in question is how effective the Election Assistance Commission will be in exercising its responsibilities under HAVA and the National Voter Registration Act.

This week's electionline.org has a terrific story on the showdown in Arizona, in which Secretary of State Jan Brewer has refused to accept an interpretation of the NVRA's registration requirements provided by the EAC. As electionline.org notes, the NVRA is one of the rare areas over which the EAC does have regulatory authority. But it doesn't have independent enforcement authority, and it seems doubtful that the current DOJ will take action against a Republican Secretary of State. It's likely, however, that civil rights groups will take action against Secretary Brewer. What will DOJ do if that happens? It's anyone's guess.
Monday, March 27
Secure Voting: What To Do, What Not To Do
One of the major election reform stories of 2006 is the efforts of states to comply with HAVA's 2006 voting technology deadlines, including the implementation of accessible technology and the replacement of punch-card and lever voting machines. In a weekly comment a couple of weeks ago, I shared some views on the state of voting technology, including both how we got to the place where we are now and what should be done next. One of the major points I made is that there's a great deal of experimentation going on in the states now, and we should take the time to study the results of these experiments before imposing new federal mandates.

Among the states that is struggling to meet HAVA's voting technology deadlines is Pennsylvania, as discussed here. The Pittsburgh Post-Gazette reports that Dr. Michael Shamos will be testing Sequoia's electronic voting system for vulnerabilities. As one of the people who understands not just the technology but also how real-world elections actually work, he's in a good position to evaluate whether the voting technology that Pennsylvania counties are planning to use really is vulnerable. This is a positive step toward moving the state into compliance with HAVA.

On the other hand, Florida's Leon County has had some well-publicized problems in obtaining compliant technology, as discussed in this Washington Post story. The problems started when election supervisor Ion Sancho brought in a Finnish computer scientist to test a Diebold optical-scan voting system, under the auspices of the "Black Box" voting group. That led to reports that the Diebold system could be hacked, although the company compares the test done to "leaving your car unlocked, with the windows down and keys left in the ignition and then acting surprised when your car is stolen." In any event, it seems that now none of the big three voting machine vendors (Diebold, ES&S and Sequoia) want anything to do with Sancho and Leon County.

While I don't condone the companies' refusal to do business with Leon County, it was poor judgment for Sancho to work in conjunction with the Black Box voting folks in conducting a test. These are folks who have clearly demonstrated that they have an agenda -- showing that voting technology is unsafe -- and are not above sensationalism in promoting this agenda. Thus, it shouldn't come as a great surprise that voting machine vendors aren't too anxious to sell their wares to Leon. It would have been more prudent to have had someone like Dr. Shamos conduct such a test, and the results obtained would've had much more credibility.

One other interesting voting technology item: The Georgia house voted to approve a study of "voter verified paper audit trail" (VVPAT) technology in three counties in November's general election. While I've been skeptical about whether VVPAT technology will actually provide a workable and effective solution to the security problems associated with electronic voting, if one really wants to determine whether this technology will function as intended, this is the way to do it -- that is, by experimenting with it in a few counties and then evaluating the results, rather than rushing to deploy technology that's not been successfully used anywhere throughout a state. Yet that's exactly what's happening elsewhere ... and we can expect that there will be problems.
Wednesday, March 22
California Suit Over Diebold Machines
If it sounds like something you've heard before ... well, you probably have, though the latest case is a little different. Voting activists brought this petition in San Francisco Superior Court yesterday, challenging the certification of direct record electronic and optical scan systems made by Diebold, which are to be used in several counties in upcoming elections. The California Secretary of State as well as numerous county election officials are named as defendants. Reuters has this report, and Joe Hall this comment on the case.

The lawsuit arises from the Secretary of State's certification of a precinct-count optical scan system (the AccuVote OS), as well as its touchscreen system (the Accuvote TSx). Unlike some of the others that have been filed, this case is not about paper trails. Both these systems generate paper records that the voter can see at the time of voting, the so-called "voter verified paper audit trail" or "VVPAT." The main claims instead have to do with whether the systems comply with state certification standards, as well as with whether the touchscreen system with the paper trail is truly accessible.

My take: Although the petition is well-crafted, and although it's hard for me to evaluate the claims regarding noncompliance with state certification requirements, I tend to agree with Hall's assessment that this case is probably "going nowhere." There are, however, a couple of interesting features of this case that struck me as I read through the petition:

- One of the key points that the petition makes is that the paper trail generated by the Diebold touchscreen machine isn't really suitable to be used in the event of a manual audit. The Diebold TSx prints onto thermal "toilet paper" rolls, which would be exceptionally difficult, expensive, and time-consuming to actually read. True enough. In fact, as I've many times stated, this is one of the big concerns with contemporary VVPAT technology generally -- and one of the big reasons I've consistently opposed laws to require this device, at least until it proves workable and effective. The petition also notes printer jams that the Diebold had in tests, another concern that I've had with the VVPAT.

- Another of the petition's key points is that the Diebold TSx doesn't really provide equal access for people with visual disabilities, because it doesn't provide a "read-back" of what's on the paper records. Instead, it provides those voters only with a "read-back" of the electronic vote record, which might not correspond to what's on the paper. Thus, contrary to what Calfornia's former secretary of state promised when he mandate a VVPAT back in 2003, the paper trail really isn't "accessible" to people with disabilities. I agree with this -- but don't think that there's any other DRE out there that can do better. This could mean that none of these systems are compliant with what the state has required.

Even though it will be an uphill battle, this case highlights some important issues. For those who thought that adding a VVPAT requirement would resolve the issues surrounding electronic voting, this is a rude awakening. In fact, the arguments made in this case support the conclusion that mandating the VVPAT will cause at least as many problems as it solves.

As for those who are tired of arguments over the VVPAT ... well, I am too (though sometimes I can't resist). But perhaps this case will at least call attention to the fact that paper is neither the beginning nor the end of the debate of the debate over voting security. To the extent that there really are vulnerabilities with Diebold's optical scan and touchscreen systems -- and the petition seems to make a strong case that there are -- we've got to come up with other ways of dealing with them.
Monday, March 20
Upcoming Events
Two forthcoming election administration conferences of note:

- Next Wednesday, March 29, the Center for Democracy and Election Management at American University will host a conference, Are U.S. Elections Getting Better or Worse? Is the Help America Vote Act Working? The conference will include sessions on registration, identification, provisional ballots, voting technology (on which I'm a presenter), and the Election Assistance.

- On April 6 & 7, the Policy Research Institute at Princeton will host "Making Every Vote Count: A Colloquium on Election Reform Legislation." The colloquium includes discussion of the Help America Vote Act, the Voting Rights Act, and the Bipartisan Campaign Finance Reform Act. Co-hosts are the Brennan Center for Justice at NYU and the Fels Institute at the University of Pennsylvania.

Mark your calendars!
Thursday, March 16
Arizona SOS: So Sue Me
That's not exactly how Arizona's Republican Secretary of State Jan Brewer responded to the Election Assistance Commission's opinion on the state's registration requirements ... but it's pretty close. In this letter to the EAC's Chair, Secretary Brewer takes issue with the EAC's conclusion that it violates federal law for the state to demand greater proof of eligibility requirements -- specifically, citizenship -- than is provided for by the federally approved form. Brewer labels the position of the bipartisan EAC "completely inconsistent, unlawful, and without merit," and says that she'll instruct counties to do exactly what the EAC says federal law forbids. The Arizona Daily Star has more on this showdown.

What's most interesting about Brewer's letter is that she doesn't provide any reasons for believing that the EAC got the law wrong; she just asserts it. In its March 6 letter to Brewer, analyzed here, the EAC relied on the National Voter Registration Act ("NVRA") which provides that states "shall accept and use the mail voter registration application prescribed by the U.S. Election Assistance Commission." That federal form, in turn, sets the applicable proof requirements. The EAC's letter concluded that states aren't at liberty to impose more onerous requirements. Unfortunately, that's just what Arizona has sought to do through its enforcement of Proposition 200.

Nothing in Brewer's letter provides any rejoinder to the substance of the EAC's legal analysis. She notes that the U.S. Department of Justice "pre-cleared" Arizona's Proposition 200. But as I noted here, and as Brewer must surely be aware, DOJ's preclearance review is limited to whether the proposed change complies with Section 5 of the Voting Rights Act, not the NVRA or any other federal law. It's true that DOJ hasn't yet taken any enforcement action against Arizona, but that doesn't mean that the state is compliant with the law. The DOJ doesn't enforce in every single case where there's a violation, and there's no pressing need for it to do so under the NVRA, especially given that private enforcement actions are allowed. Moreover, does anyone seriously believe that the current Republican-controlled DOJ would take action against a stringent, Republican-backed state registration rule? Let's get real. It's doubtful that DOJ would lift a finger to uphold the NVRA in these circumstances, even in the face of a clear violation, given the partisanship apparent in its recent decisionmaking including on Arizona's Prop 200. (See also Georgia's ID law.)

What that means is that it will be up to some intrepid Arizona voters to enforce the requirements of the NVRA. In effect, Brewer's nose-thumbing at the EAC is an invitation to a private enforcement lawsuit. Under the NVRA,42 USC 1973gg-9(b), aggrieved persons may bring suit against the responsible state official -- and recover attorney's fees if they prevail. I'd be surprised if some civil rights organization didn't take Secretary Brewer to federal court.
Monday, March 13
More on Arizona Registration Issue
The Arizona Secretary of State is bristling at the Election Assistance Commission's opinion letter from last Monday, which I previously discussed here. That letter concluded that the state may not impose stricter proof requirements at the registration stage than those provided for by the federally approved form under the National Voter Registration Act ("NVRA"). To the extent that Arizona's Proposition 200, passed by voters in 2004, purports to require additional proof of eligibility, the EAC concluded that those state-imposed requirements must give way to federal law.

According to this story in the Arizona Daily Star, Arizona Secretary of State Jan Brewer has labelled the EAC's ruling "outlandish." It's not clear whether there's any legal basis for her opinion or, alternatively, whether she simply dislikes the EAC's conclusion. Brewer is reported as saying: "It seems pretty clear.... It's the law in Arizona." But this of course doesn't answer the EAC's point -- which seems to me incontrovertible -- that federal law trumps state law here.

Similarly beside the point is the remark of a Proposition 200 supporter, who is reported to have stated: "I'm pretty confident that if the Department of Justice has cleared it, there is no issue." Wrong again. Whether or not one believes that DOJ is a trustworthy opinion-giver on voting rights issues (more on that here), the scope of DOJ's preclearance review was limited to whether Proposition 200 complies with Section 5 of the Voting Rights Act. The fact that DOJ precleared Proposition 200 thus tells us nothing about whether it complies with the NVRA or, for that matter, any other provisions of the VRA or other federal laws.
Friday, March 10
Harvard Law Review on Voting & Democracy
The current issue of the Harvard Law Review has a six-part "Developments in the Law" piece on Voting and Democracy that is very much worth reading. It includes analysis of recent developments in judicial elections, voter ID, election contests, redistricting, voting in times of crisis, and election administration.

What's particularly noteworthy about this collection is that it includes considerable discussion of the mechanics of elections -- so-called "nuts and bolts" issues -- alongside areas such as redistricting and campaign regulation as to which there's a more well-developed literature. Two parts that I thought to be especially well-done were those having to do with Voter Identification Laws and Election Administration: Judicial Review and Remedial Deterrence. These are both subjects on which there's not been a great deal of legal scholarship, and the Developments piece does a balanced and thorough job of analyzing the issues raised.

In related news, the George Washington Law Review recently published my article "Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act," 73 Geo. Wash. L. Rev. 1206 (2005). It may be found here. The article surveys the legal fights over such issues as registration, provisional voting, voter ID, and challenges to voter eligibility surrounding Ohio's 2004 election and, more broadly, considers the proper role of courts in policing the administration of elections.
Tuesday, March 7
EAC on Arizona Registration Requirements
There's some important news having to do with voter registration. The United States Election Assistance Commission ("EAC") has provided this opinion letter to the Arizona Secretary of State's office, concerning that state's proof-of-citizenship requirements under Proposition 200. In brief, the letter concludes that the state's efforts to require additional proof of citizenship, beyond what is required in the "federal form," contravenes the National Voter Registration Act of 1993 (also known as the NVRA or "Motor Voter"). See here and here for my prior thoughts on other aspects of Proposition 200.

Under the NVRA, states are obliged to use and accept the Federal Mail Voter Registration Form, or "federal form" for short, which may be found here. Authority over the content of this form now lies with the EAC, which was entrusted with this responsibility by the Help America Vote Act ("HAVA").

The problem in Arizona arose because, under Proposition 200, the state sought to impose new and additional registration requirements on voters in federal elections. Specifically, voters were to present either a driver's license number or some other alternative proof of citizenship, such as a birth certificate, passport, certificate of naturalization, or other documents. Notably, Proposition 200 did not change the qualifications for voting, but rather the proof that voters would be obliged to show in order to prove that they satisfy those qualifications and thus to register. This alteration in the manner of conducting registration, the EAC concludes, is preempted by the NVRA, which entrusts the federal government with authority to determine the manner in which registration for federal elections takes place:
The state may not mandate additional registration procedures that condition the acceptance of the Federal Form.... Any Federal Registration Form that has been properly and completely filled-out by a qualified applicant and timely received by an election official must be accepted in full satisfaction of registration requirements.
Note that this speaks only to what may be required in order to register, not to the requirements that a state may impose upon voters at the polls -- such as the presentation of ID -- in order to vote and have their votes counted.

Congress' power to give the federal government authority over the ground rules for conducting registration in federal elections is well-settled law. After the NVRA's enactment, that authority was upheld by conservative panels of the Seventh and Ninth Circuits, as well as other lower courts. (Disclosure: I was one of the attorneys in the Ninth Circuit case.) This is nevertheless an important opinion. It clarifies that, while the states have authority to set qualifications for voting, the manner in which the registration process is conducted must still comply with federal law.
Sunday, March 5
Pennsylvania Voting Machine Decision
The Pennsylvania Supreme Court issued a one-page order last week, reversing an order from Commonwealth Court Judge Dan Pellegrini that had stopped county election officials from purchasing new voting equipment, because of the failure to put the issue before the voters. This ruling had created serious problems for the state's election officials, as discussed here and here. The Pennsylvania Supreme Court's brief order provides no explanation of its reasoning, saying that an opinion will follow.

Having reviewed the trial court's ruling, my guess is that the basis for reversal is that the Supreme Court believed that this order would prevent county election officials from complying with HAVA's voting system standards. And if that's the basis for the Supreme Court's ruling, I think that they're correct to reverse the lower court. Under HAVA, states must have in place systems that meet certain standards -- including disability access and a manual audit trail -- by the first federal election in 2006, which in Pennsylvania will take place on May 16, 2006. It's hard to see how Pennsylvania counties could have complied with these requirements, if the lower court's ruling had been allowed to stand.
Thursday, March 2
Justice Sues New York
The United States Department of Justice has brought suit against the New York State Board of Elections, challenging the state's failure to comply with the Help America Vote Act's 2006 deadlines. The complaint may be found here, and the N.Y. Times has this report. This is the first lawsuit that DOJ has filed to compel compliance with these requriements, although it entered into a memorandum of agreement with California over that state's failure to comply in October of last year.

DOJ alleges that New York has failed to comply with HAVA's 2006 requirements with respect to both voting systems (Section 301) and statewide registration lists (Section 303). One of the voting systems requirements with which New York is allegedly out of compliance is that every polling place have at least one unit accessible to people with disabilities. In fact, DOJ alleges that the state board of elections hasn't approved any system that's compliant with HAVA's requirements. As for the statewide registration list, the complaint alleges that the state hasn't taken adequate steps to meet HAVA's requirements, including entering into an agreement with the Social Security Administration to "match" its data against information in statewide registration lists (specifically, the last four digits of voters' social security numbers).

In addition, as a condition on $49 million in federal funds that New York received, it obligated itself to replace punch-card and lever voting equipment in time for the first federal election in 2006. Though this isn't included as a cause of action, the complaint notes that New York is at risk of having to pay back this money.

One of the things to keep an eye on the fine print on what sort of "matching" is required, and the circumstances under which voters' names are removed from the list. While DOJ is right to take action against New York, in my opinion, there's reason to be concerned that DOJ may use its enforcement authority to compel database maintence practices that exceed what HAVA requires, and could result in barriers to the vote -- for example, in people being erroneously struck from registration lists on the ground that there are duplicate registrations or that their information couldn't be "matched" due to a transcription error.

The Brennan Center has recently issued a report on database matching, which highlights the need for attention to this area. According to that report, some states are rejecting registration applications that can't be matched against motor vehicle or social security records, even though data entry errors may be responsible for discrepancies. It's especially important to keep a close eye on the present DOJ's use of its HAVA enforcement power, given its dubious record of enforcing voting rights laws in an apparently partisan manner, which I've discussed here and here.
Wednesday, March 1
Race and the Texas Re-Redistricting
The Supreme Court will hear argument today on the State of Texas' mid-decade redistricting plan, backed by Tom DeLay. This case, along with the Vermont campaign finance case argued yesterday, are the subject of the electronic roundtable taking place on the Election Law @ Moritz website this week.

Most of the attention has focused on whether there are any limits upon redistricting designed to increase the power of one major party, or partisan gerrymandering. But there are also issues of racial equality presented in this case. One of the claims made is that the Texas re-redistricting plan diluted minority voting strength, in violation of Section 2 of the Voting Rights Act. In particular, the plaintiffs claim that the plan takes away districts effectively controlled by African American and Latino voters.

The other race claim is that the bizarre shape of one of the majority-Latino districts created by the plan violates the Shaw v. Reno racial gerrymandering doctrine. The Shaw decision allowed white voters to challenge an oddly shaped district in North Carolina, that was drawn in order to allow black voters to elect a candidate of their choice. In this case, plaintiffs are challenging an oddly shaped majority-Latino district, that was drawn to compensate for the elimination of a Latino district elsewhere in the state.

This argument appears in the brief for appellants in Jackson v. Perry, one of the four consolidated cases to be heard today. MALDEF's brief making the Section 2 argument on behalf of Latino voters may be found here. It will be interesting to see how the Court reacts to these arguments.

Update: It sounds like the Supreme Court spent more time questioning on the race claims than on the partisan gerrymandering claim -- which seems likely to fail -- during oral argument today. My colleague Ned Foley has this report from the Court, and Bob Bauer this one.

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