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, May 31
EAC Poll Worker Grants
One of the great needs identified after the 2000 presidential election was recruiting poll workers, and the Help America Vote Act of 2002 (HAVA) included provisions aimed at addressing this need. Now, the Election Assistance Commission (EAC) has issued this announcement of grants to recruit and train college students to act as poll workers. A total of $250,000 is available, with a ceiling of $20,000 per each individual award. The announcement indicates that the EAC anticipates making up to 30 grants. Unfortunately, the deadline is coming up very quickly: June 15, 2006. But it's a great opportunity for those interested in helping to make improvements in an area of election administration where they're much needed. Those eligible to apply include colleges, universities, nonprofit organizations, and "faith-based organizations."
Monday, May 29
Missouri's Photo ID Bill
Missouri appears poised to become the third state to require photo identification in order to have one's vote counted. According to this editorial from the Kansas City Star, Republican Governor Matt Blunt supports the bill passed by the state legislature (SB 1014), which would require that voters present government-issued photo ID at the polling place on election day as of 2008.

The bill narrowly passed in the state house, and then passed in the state senate after Republicans used a rare parliamentary move to cut off debate. Democratic Secretary of State Robin Carnahan has urged Governor Blunt to veto the bill, arguing that it will disenfranchise many voters. She estimates that some 170,000 Missouri voters don't have the required ID.

The operative language of the ID requirement may be found in section 115.427 of the bill. This language would replace the current requirements of Missouri law, which allow non-photo identification, with provisions requiring photo ID issued by the state or federal government. Student ID cards probably won't qualify, at least not after November 1, 2008. Although certain forms of ID -- including military ID -- are to be accepted regardless of whether they have an expiration date, that's not true of student ID. As reported in this story from the K.C. Star:
Wendy Noren, Democratic county clerk in Boone County, said that many of her voters -- students at the University of Missouri-Columbia -- could encounter problems in 2008. The bill would not allow IDs without expiration dates, which student IDs do not now have. Also, the bill would not allow out-of-state driver's licenses, often the only government-issued photo ID many students have, Noren said.

Noren said she thinks the photo ID requirement was unnecessary because voter fraud usually takes the form of voter intimidation, absentee ballot schemes or vote-buying. Though most voters might be able to meet the photo ID requirement, the few turned away at the polls could add up, she said.

"If it's only five per county, that could change the outcome of an election," Noren said.
Those lacking qualifying photo ID would still be allowed to cast provisional ballots, but as of November 2008 those ballots would only be counted if the required form of ID is presented by the end of the voting day. There's a provision of the bill exempting those who are "unable" to obtain photo ID due to a disability, because they a religious objection, or because they were born before 1941. The problem is that, although it may be very burdensome for such voters to obtain photo ID, it's not clear that all will be able to certify under penalty of perjury that they're "unable" to do so. Moreover, this doesn't address groups of voters for who obtaining a photo ID is burdensome for other reasons.

As with the photo ID bills previously enacted in Georgia and Indiana, it's difficult to avoid the conclusion that the imposition of such burdens is precisely the point of Missouri's photo ID bill. The bill will make voting more difficult for those likely to support the minority party's candidates, a move that is particularly hard to defend given the lack of evidence that fraud at the polling place is widespread. To put it more bluntly, disenfranchisement and not ballot security is the evident purpose behind this law. But given the one-party control of the executive and legislative branches of Missouri government, the only hope is that the courts will step in to stop this bill, as occured in Georgia.
Thursday, May 25
Shaw v. Reno Revisited
Following up on my response to a recent comment from Rick Pildes on the electionlaw listserv, I've posted a couple of documents from Justice Harry Blackmun's papers relating to the Shaw v. Reno decision -- and specifically, to Justice Souter's switched vote which, as Rick noted, is mentioned in my forthcoming book chapter, "The Story of Shaw v. Reno," to be published in Race Law Stories.

The first document contains Justice Blackmun's conference notes, showing that their were originally six votes to reverse (i.e., to side with the plaintiffs arguing that the North Carolina plan was an impermissible racial gerrymander). This is indicated by Justice Blackmun's notation "6-3 to -" at the bottom of the second page. Although Justice Blackmun's writing is difficult to decipher, it appears that Justice Souter thought that racial gerrymanders for a proper purpose were permissible, but was originally concerned that the case had been decided on a motion to dismiss. The other document is a June 25, 1993 memo from one of Justice Blackmun's clerks, indicating that Justice Souter had switched his vote and circulated a separate dissenting opinion.

Comments on the chapter or these documents -- especially from former Blackmun clerks who might be able to decipher his conference notes better than I have -- would be welcome.
Ohio Dems Kill Redisticting Proposal
The AP has this story on the maneuverings on the floor of the Ohio House today, regarding proposed constitutional amendments that would overhaul the state's redistricting system. A total of 60 votes were needed to pass the resolution, which was sponsored by Dayton-area Republican Kevin DeWine (HJR 13). The vote was 53-42 in favor of this proposal, which would have created a bipartisan seven-person commission.

After the vote on HJR 13, Rep. DeWine did something interesting and unexpected: He substituted a different plan that Democrats had supported last year. This can be seen as an attempt to call the Democrats' bluff. According to the AP, this proposal got 57 votes -- with all but one Democrat voting against it. Bluff called, it would seem.

For those who support redistricting reform, this is a disappointing development. The uncertainty surrounding the post-2010 composition of the redistricting commission, which I described here, makes this year the ideal time for changes. It's less likely, though not impossible, that the conditions for redistricting amendments will exist after this year's elections for the state offices, including Governor, which hold seats on the redistricting commission under the current state constitution.

The AP reports that, "Democrats saw [today's maneuverings] as a Republican tactic to blame them for the failure in election campaigns." That may be so. But to my mind, today's developments expose the disingenuousness of Ohio's Democrats, at least those in the House, when it comes to redistricting. They supported Issue 4 last year, when it appeared to serve their partisan interests, but now appear resolutely opposed to redistricting reform in any form, given their perceived opportunity to control the post-2010 process.
Wednesday, May 24
Missouri NVRA Enforcement Decision
A federal district judge in Missouri ruled yesterday that the Secretary of State can't be held responsible for local election officials' failure to comply with requirements of the National Voter Registration Act (NVRA). The AP has this report, and Judge Nanette Laughery's opinion granting partial summary judgment to the Secretary of State may be found here. The Justice Department brought suit against Secretary of State Robin Carnahan in November, seeking to hold her office responsible for counties' failure to remove ineligible voters as required by the NVRA, among other things. The ruling would appear to mean that Justice will have to go after counties individually, to the extent that they're violating the NVRA.
Guesting on the Election Law Blog
Rick Hasen is out of town for a couple of days, so today and tomorrow I'll be guest-blogging on his Election Law blog. Thanks to Rick for letting me fill in while he's gone! I'll try to include the latest election law developments that regular readers of Rick's blog, including me, have come to expect and rely upon -- so if there's something that you think should be included, please don't hesitate to email me. I expect that my posts there will mostly be of the shorter "news" type, rather than the longer "analysis" type that I usually feature here, but I'll cross-post any in the latter category. This is in addition to the lively ongoing blog conversation (blogversation?) regarding the renewal of the Voting Rights Act, which continues on Rick's blog.
Tuesday, May 23
EAC Advisory and Standards Board Meetings
I'm in Washington, D.C., for meetings of the Election Assistance Commission's Standards and Advisory Boards. Both bodies were created pursuant to the Help America Vote Act of 2002, to provide guidance with respect to the EAC's research and policymaking functions. The Standards Board consists of 110 state and local election officials, while the Board of Advisors consists of 37 members, many of them from state and local government. The agendas for the meetings today and tomorrow may be found here, and Mike Alvarez discusses the agenda items here on the Election Updates blog.

The meetings today and tomorrow focus on various research projects being funded by the EAC. Among the areas being studied are poll worker training, vote counting and recounting, voter fraud/voter intimidation, and provisional voting. (The provisional voting research is being done by the Eagleton Institute at Rutgers and the Moritz College of Law, and I'm part of the research team.) Draft and status reports on these projects were made available to advisory and standards board members and discussed at today's public meetings, so they should now be matters of public record.

The EAC is also working on some in-house projects that were discussed today, including the construction of a web-based legal clearinghouse, which will include both state and federal laws regarding election administration. Another project looks at the web portals operated by state and local election authorities that provide information to voters. One of the interesting findings reported today is that official websites containing sample ballots or candidate information tend to get a lot more traffic from voters.

For election administration aficianados -- or to use Doug Chapin's affectionate term, "election geeks" (a group I'm proud to be part of) -- these are exciting times. That's partly because we're now seeing some serious research being done on important topics that have up until now received relatively scant attention. It's also because the advisory and standards board meetings provide an opportunity for exchanges between the people who actually run elections and people who study them. During the course of today's meetings, there were several points at which local election officials offered astute observations on the research being conducted by political scientists and election law scholars. For all of the criticism of HAVA, this is one product that shows great promise.

I take this to be a sign that election administration is developing into its own distinct field of study. It is, to be sure, an interdisciplinary field, relying on the collective knowledge of election lawyers, social scientists, computer scientists, and election officials, among others. Exchanges like the ones today add to the knowledge of each of these groups and, I hope, will ultimately lead to better run elections.
Monday, May 22
McConnell's Voter ID Amendment
Senator Mitch McConnell (R-KY) has proposed an amendment (SA 4021) to the immigration bill, currently being considered by the U.S. Senate. McConnell's proposal would amend the Help America Vote Act of 2002 ("HAVA") to require that all voters show photo identification in order to vote. Specifically, anyone seeking to vote at the polls in any federal election would have to show a current and valid government-issued photo ID. Citizens lacking the requisite ID wouldn't even be allowed to cast a provisional ballot, as is the case under HAVA. No provision is made for any outreach to those lacking photo ID.

Ironically, the bill applies only to those who vote at the polling place, not to those casting mail-in absentee ballots would be exempt. That's ironic because it's with mail-in ballots, not in-person voting, that the greatest opportunity for and evidence of fraud exists. This is one of the big facts that the Georgia federal district court pointed out in enjoining that state's 2005 photo ID law in Common Cause/Georgia v. Billups on constitutional grounds.

While it's difficult to say with exactitude many citizens lack photo ID, the best estimate I've seen (from a paper written for the Carter-Ford Commission in 2001) is approximately 6-10%. That may not seem like a lot ... until one considers that it substantially exceeds the popular vote margin of victory in the last two presidential elections. Worse still, some demographic groups are less likely to have ID. A study of Wisconsin voters, the most thorough that I've seen from any state to date, found that only 22% of African American men aged 18-24 have photo ID. Voter ID laws thus don't burden all voters equally, since some are less likely to have it. And how many voters lacking government-issued photo ID will actually go to the time, trouble, and expense of getting photo ID in order to vote? Some will, to be sure, but a lot won't.

This, one suspects, is precisely the reason why this amendment is being proposed. The word "disenfranchisement" may be overused, but it accurately describes both the apparent intent and the predictable effect of Senator McConnell's proposal. Imposing barriers the act of voting, absent any evidence that they serve a useful purpose, is the very essence of disenfranchisement. This is a deliberately polarizing amendment, which it's difficult to imagine any Democrats or conscientious Republicans in the Senate signing on to. It would impose barriers to those citizens who lack ID, a disproportionate number of them elderly, disabled, minority, and poor voters. And it won't make a dent in those aspects of the system where there really is a serious threat of fraud.
Friday, May 19
What About Section 203?
Most of the scholarly debate over the expiring provisions of the Voting Rights Act has focused on Section 5's preclearance requirement. But in terms of promoting equality of participation, the language assistance provisions of the VRA are at least as important. The language assistance provisions, Sections 203 and 4(f)(4), will also expire in 2007, unless renewed. While perhaps less controversial among legal scholars than preclearance, the language assistance provisions have generated somewhat greater opposition in Congress. This post explores some of the policy and constitutional issues surrounding language assistance. These issues are particularly germane at the moment, because they are part of the reason for Senate Republicans trying to slow down the consideration of VRA reauthorization, according to this report.

The most important language assistance requirement is Section 203. That provision requires language assistance for non-English proficient citizens, in places with a significant number or percentage of them and above-average illiteracy rates. States or political subdivisions (typically counties) are covered, if 1) more than 10,000 citizens or more than 5% of the population are members of a single language minority group, and 2) the illiteracy rate of language minorities is above the national illiteracy rate. A list of covered jurisdictions may be found here.

The other significant language assistance provision is Section 4(f)(4), which covers jurisdictions where a language minority group was over 5% of the voting-age population, materials were provided only in English, and less than half of the population was registered to vote in 1972. Jurisdictions covered by section 4(f)(4) must also meet the preclearance requirement of Section 5. The issues surrounding this requirement mirror those in the larger debate over preclearance on which this exchange has focused, so I'll mainly address Section 203 here.

Covered jurisdictions must "provide[] registration or voting notices, forms, instructions, assistance, or other materials of information relating to the electoral process, including ballots, ... in the language of the applicable minority group as well as in the English language." Both written materials and oral assistance should be provided to covered groups, which include Asian American, Hispanic American, Native American, and Alaskan Native citizens. Almost 300 jurisdictions are covered by Section 203's language assistance requirements.

Perhaps the reason that language assistance has gotten less attention than preclearance, at least from legal scholars, because the case for its renewal is relatively straightforward. Assistance to citizens who are not yet fluent in English, the argument goes, is essential to ensure equal access to the vote. These provisions are thus vital to ensuring equality of participation. By contrast, most of the issues surrounding Section 5 preclearance in recent years don't have to do with participation (i.e., the ability to vote and have one's votes counted), but rather with issues of representation -- most notably, with how voting districts are drawn, and what's necessary to ensure that minority groups' collective interests are adequately represented in legislative bodies.

While there is considerable disagreement over what's necessary to ensure equality of representation, and over what role the Justice Department should play in policing that norm, it's harder to disagree with the principle of equal and informed participation. In fact, Congress recently reaffirmed this principle when it enacted the Help America Vote Act of 2002 (HAVA). Section 301 of HAVA mandates that voting systems provide alternative language accessibility, specifically referencing Section 203's language assistance requirements.

The arguments for renewing Section 203 are, to my mind, compelling. These requirements are very important to language minority communities. To take one example, a 2004 exit poll of approximately 11,000 Asian American voters found that almost one-third of them needed some assistance. The percentage needing assistance was even higher for new voters. There are, to be sure, costs on covered jurisdictions to comply with Section 203, but those costs are well worth bearing in order to ensure that citizens who aren't yet proficient in English are able to participate and make informed choices. There's a reasonable argument that the federal government should at least partly subsidize local jurisdictions' costs, but the basic idea of providing help to non-English proficient citizens is hard to argue with. That's particularly true, given the complex initiatives and referenda that regularly appear on the ballots of many states. It's difficult enough to understand most of these ballot measures when they're written in one's native language, let alone in a second language.

A bit more difficult, at least to my mind, is determining the constitutional theory under which Congress has the power to require state and local government to provide language assistance. It's true that, in Katzenbach v. Morgan (1966), the Court upheld a VRA provision suspending literacy tests for those educated in American schools where their classroom language wasn't English. But as Rick Hasen and others have observed, the Court's new federalism cases have sharply limited Congress' authority to enforce civil rights, requiring that federal laws be "congruent and proportional" to the constitutional violations they purport to redress.

The conventional justification for the VRA's key provisions is that they're designed to redress intentional discrimination against minority voters. This justification makes sense when it comes to Section 2 and Section 5 of the VRA. Even though these provisions both incorporate effects-based tests that go beyond what the Constitution requires, those tests can be defended on the ground that they're needed as a prophylactic against intentional discrimination. I think the prophylaxis argument is bit more difficult with respect to Section 203. There undoubtedly has been -- and continues to be -- a great deal of intentional discrimination against language minorities. But is it a congruent and proportional remedy to require all jurisdictions with substantial non-English proficient citizen populations and low literacy to provide affirmative language assistance?

An alternative justification is that Section 203 is needed to remedy intentional discrimination outside the voting process. Disparities in the educational opportunities offered to language minority groups, this argument goes, makes it necessary to accommodate citizens who aren't proficient in English at the polls. The evidence of unequal educational opportunities is undoubtedly strong. The problem is showing that these inequalities stem from intentional discrimination against language minorities. If they don't, then there's no constitutional violation, and it's therefore hard to argue that Section 203 is congruent and proportional under the new federalism cases.

To be clear, I think that both of these "intentional discrimination" arguments for Section 203 are quite plausible, and it's certainly possible that the Court will accept one or both. The arguments are strengthened by the Court's decision in Tennessee v. Lane (2004) which suggests that Congress has broader latitude under the congruence and proportionality test, when it comes to fundamental rights like voting. But it's not crystal clear that requiring language assistance can be justified under Congress' authority to remedy intentional discrimination.

This leads me to sketch out a third possible ground for upholding Section 203: that Congress need not demonstrate intentional discrimination based on race or ethnicity, when acting to promote rights of participation or access, as opposed to representation. The Court has sometimes found constitutional violations based on a denial of equal access, even where no intentional discrimination is proven. One example is Harper v. Virginia (1966) striking down Virginia's poll tax, a case where race discrimination was surely in the background but wasn't the basis for the Court's decision. Another is Bush v. Gore (2000), in which the Court found disparate standards for vote-counting unconstitutional, even without evidence of intentional discrimination (much less intentional race discrimination). On the other hand, intentional race discrimination is required to prevail on a qualitative vote dilution claim, under Mobile v. Bolden (1980).

My point is not to argue that there's a constitutional right to language assistance at the polls. It is, instead, that rights of participation ought to be treated differently from rights of representation -- or, put another way, that vote denial is different from vote dilution. (I flesh out this claim in my forthcoming piece, The New Vote Denial.) The Court hasn't precisely defined the limits of equal protection when it comes to claims of participation/vote denial. In fact, in Bush v. Gore, the Court took great pains to emphasize that the boundaries of equal protection are fuzzy in this area: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Where the Court hasn't yet defined the contours of constitutional rights, as is the general case with respect to access claims, it would be more than a little unreasonable to apply the congruence and proportionality test with the stringency that the Court has adopted in other areas. This suggests a third basis for upholding Section 203: that Congress should have more room to operate when it seeks to promote equality of participation.

Maybe all this is a lot of worrying over very little. As Nate Persily has suggested, it's likely that Justice Kennedy will be the swing vote on the renewed VRA's constitutionality, and he may already know what he's going to do. Moreover, the federalism burdens imposed by Section 203 are less severe than those imposed by Section 5. On the other hand, Section 203's connection to intentional race discrimination seems somewhat more attenuated than Section 5's. Thus, when Congress reauthorizes Section 203 -- as I hope and expect it will -- it should make sure to consider alternative theories for upholding it in the court challenge that can be expected to follow.
Wednesday, May 17
The New Ohio Redistricting Proposal
Last year, a plan to establish an independent redistricting commission in Ohio was resoundingly defeated at the polls, with only about 30% of voters supporting it. That measure (Issue 4) was supported by Reform Ohio Now and most Democrats, but opposed by Republicans, who currently dominate the state's redistricting commission. Issue 4 would have created a new, bipartisan commission to handle redistricting, subject to a formula that placed heavy emphasis on creating competitive districts, as described here.

Now the shoe's on the other foot. This year, the Republicans are supporting redistricting reform, and Democrats are opposing it. Republicans in the state assembly have introduced a new proposal to create a state apportionment commission and to change the rules for how districts are drawn. In a nutshell, the new commission would be composed of seven members. The two major parties would each have two appointees (one appointed by the house speaker, one by the house minority leader, one by the senate president, and one by the senate minority leader), and those four commissioners would then have to agree on the other three. A supermajority of five members -- including at least one member of each party -- would be required to adopt a plan.

Because it would amend the state's constitution, the new proposal requires approval of three-fifths of each house. It would then have to go before the Ohio electorate, and sponsors are hoping to get it on the November ballot. Stories on the amendment have appeared in the Columbus Dispatch, Cleveland Plain Dealer, and Toledo Blade. There was a hearing before a state house committee today, at which my colleague Ned Foley testified in support of the plan, and election consultant Dave Becker testified against it.

The idea here is a good one: at the "center" of the commission would be three people upon whom representatives of both parties agree. That would enhance the likelihood that the commission as a whole will draw lines that are fair, rather than ones that serve the interests of one party or the other. By contrast, under Ohio's current system, each party has one appointee on the five-person commission; the other three are the governor, auditor, and secretary of state. As it happens, all three of those constitutional officers are currently Republicans, so Republicans currently dominate the commission.

So why would Republicans support redistricting reform? One reason is that, at the time they opposed Issue 4, some Republicans stated publicly that the process was in need of reform, and they're now making good on their promise to come back with a reasonable proposal. That's the explanation given by Rep. Kevin DeWine, who's sponsoring the new proposal.

A more realpolitik explanation is that Republicans are worried that they'll no longer control the commission by the time the next round of redistricting rolls around, after the 2010 elections. All three of the offices mentioned above are up for grabs, and the conventional wisdom is that Democrats have a good chance at capturing two of three. If they do so, and can hold those offices four years from now, then they'll control the post-2010 redistricting process.

Of course, that's a lot of "if's." The uncertainty surrounding what will happen, both this year and in 2010, makes this a golden opportunity for real redistricting reform in Ohio -- in fact, probably the best opportunity that will exist in the next decade. After this November's elections, the parties will have a much better sense of where they stand. If Republicans keep at least two of the three state offices with a seat on the commission, they won't be inclined to deal; if the Democrats get two of the three, they probably won't be inclined to deal either. The uncertainty of both parties' present situation would appear to present an ideal situation for bipartisan agreement.

Unfortunately, it's not at all clear that this will happen. House Democrats are strenuously opposing the Republicans' reform proposal. Their own self-interest is almost certainly a big part of their motivation for doing so -- more specifically, their confidence (perhaps overconfidence) that they'll be in control of the redistricting process in 2010.

Nevertheless, there are at least two significant concerns about the current proposal on the Democratic side that may be legitimate. The first is that the proposal would place heavy emphasis on compactness and conformity with exisiting county and municipal boundries, making competitiveness a second-order priority. This is in contrast to Issue 4, which put a priority on competitiveness. Democrats may be concerned that these requirements will have the effect of packing their voters, helping Republicans in the aggregate.

The second concern is that, in the event the new seven-member panel can't reach agreement, line-drawing could wind up in the hands of the state supreme court, which is dominated by Republican judges. This would give Republicans an advantage in any negotiations between Republican- and Democratic-leaning commissioners -- remember that a plan has to be approved by a supermajority of the commission, including at least one commissioner from each party. Having a friendly court to fall back on, in the event the commission stalemates, would give Republicans a significant bargaining advantage on the commission. On the other hand, it's possible that the matter could wind up in federal court in the event of a stalemate, which wouldn't so clearly favor Republican interests. Thinking ahead, it's quite possible that we could see a race to the courthouse, in the event that there's no supermajority for any one plan.

My own tentative view of the proposal is that it's an improvement over the status quo ... but it could be better. Personally, I'd like to see a proposal that places greater emphasis on competitive districts, as did Issue 4, and less on preserving traditional jurisdictional boundaries. I hope that Republicans and Democrats will sit down to hammer out an agreement that can achieve broad agreement across the aisle. This will probably be necessary, if the amendment is to succeed at the polls in November. One of the lessons from last year is that, without bipartisan support, it's easy for one party or the other to muck up the issues sufficiently to convince voters to vote "no." Given the uncertainty as to who will control the commission (as currently constituted) in 2010, reaching a bipartisan consensus would be in the interests of both major parties.

Update: I've written this letter to the office of Representative DeWine, recommending amendments to his proposal -- including ones to deal with the two issues identified above. While one might quibble over details, incorporating amendments along these lines would, in my opinion, address any legitimate concerns the Democrats might have.
Monday, May 15
Diebold: Not the Usual Suspecters
In recent weeks, election officials in three states (California, Iowa, and Pennsylvania) have instituted procedures to guard against what has been described as a major security flaw in Diebold's electronic voting system. The A.P. has this report.

This appears to be more than the usual hypervenilating by electronic voting skeptics. The strongest evidence of this are the concerns expressed by computer scientist Michael Shamos of Carnegie-Mellon, one of the most level-headed experts on electronic voting technology. Dr. Shamos says of the latest discovery, "It's a big deal. It's a very big deal." He continues: "The good part is it's very easy to fix. You have to repair it. You can't just do nothing.... It's not just like leaving the key to your door under the mat. It's like leaving the key dangling from a string from the door." Dr. Shamos is further quoted as describing it as the "most severe security flaw ever discovered in a voting system." The flaw is a "backdoor" that was apparently put there deliberately, to allow election officials to update software more easily. It was discovered by Harry Hursti, working with Black Box Voting, and is described in greater detail in this report.

Other jurisdictions using the system would be well-advised to take similar precautions.

Update: In response to my post, Joe Hall has these thoughts on whether the Diebold problem is accurately termed a "backdoor." This follows his earlier post summarizing the problem.
Thursday, May 11
American Prospect Debate on Mail Voting
The American Prospect website has published this exchange on vote by mail, following up on a series of comments on the subject that recently appeared in the magazine. I'm one of the participants in the online exchange, along with Curtis Gans, Tova Wang, Stuart Comstock-Gay, Phil Keisling, and Adam Smith. I was asked to focus on the interplay between vote by mail and new voting technology now in place. My principal comment notes that, with an all-mail system, voters wouldn't have access to the new voting technology available at most polling places, which contributed to the 1 million votes saved in 2004. (Incidentally, I didn't choose the title given to my comment: "Don't Give Up on HAVA." The one I would have used is "Should Everyone Have to Vote by Mail?) Other participants focused on the risks of fraud and coercion associated with mail voting, as well as its disputed impact on voter turnout. The debate is heated, perhaps a bit overheated at times, but I think it captures the main arguments for and against all-mail voting.
Wednesday, May 10
Guest Blogging on "Election Law"
Rick Hasen has graciously invited me to participate in a discussion of the renewal of the Voting Rights Act on his Election Law blog. The other participants will be Guy-Uriel Charles of the University of Minnesota, Heather Gerken of Harvard (soon to be Yale), Pam Karlan of Stanford, Nate Persily of Penn, and Rick Pildes of NYU. I'll be cross-posting my contributions here, and my first one is below, but readers should check out Professor Hasen's blog for the other participants' comments.
Two Perspectives on the Voting Rights Act
I'd first like to thank Professor Hasen for giving me the opportunity to guest-blog on the renewal of the portions of the Voting Rights Act of 1965 (VRA) that expire in 2007. His consistently impressive and tireless work on the Election Law blog was a big part of my inspiration for starting my own Equal Vote blog over two years ago. I'm particularly honored to be participating in a forum that includes such a distinguished group of scholars, from each of whose work I've learned a great deal.

Among the most striking aspects of the discussions of VRA renewal over the past several months is the significant divide that appears to exist between the civil rights and scholarly communities over Section 5 of the VRA. (The language assistance provisions of the VRA contained in Section 203 are also up for renewal, but I'll leave them aside for now.) Section 5 requires certain covered jurisdictions to obtain "preclearance" of electoral changes before they go into effect, from either the U.S. Department of Justice or the U.S. District Court in Washington, DC. Preclearance should be denied if the proposed changes are "retrogressive" -- in a nutshell, if they have the purpose or effect of making racial minorities worse off than they were before.

The divide between civil rights lawyers and election law scholars is evident in Tuesday's testimony before the Senate Judiciary Committee, which Professor Hasen summarized here. Broadly speaking, the civil rights community would preserve Section 5 in its present form, while reversing two decisions that they believe to have weakened the effectiveness of the preclearance process: Georgia v. Ashcroft and Reno v. Bossier Parish II. This would be accomplished by the current version of the bill, and the justification for these changes is ably articulated in the testimony of Laughlin MacDonald of the ACLU and Ted Shaw of the NAACP Legal Defense Fund. Civil rights groups have been reluctant to put other election issues -- such election reforms in areas like provisional voting and voter identification -- into play during the VRA debate.

On the other hand, there is considerable skepticism in among prominent legal scholars over whether Section 5 should be renewed in its present form. Most everyone agrees that Section 5's preclearance requirements have been extraordinarily effective in promoting equality of participation and representation by racial minorities. But a number of commentators, including other guest-bloggers in this forum, have questioned whether Section 5 is well-suited to accomplish these goals in the years to come. Another concern is whether the Supreme Court will uphold the unusual burdens that Section 5 places upon state and local governments, given its "new federalism" cases that sharply limit congressional power to enforce civil rights. These concerns are cogently summarized the testimony of Professor Issacharoff and Professor Hasen. While there is hardly the consensus among legal scholars that exists within the civil rights community, there is considerable sentiment for the view that Section 5 ought to be amended.

What's especially remarkable about this divide is that these civil rights lawyers and legal scholars share most of the same ends. Both want to preserve the gains that minority voters have made as a result of Section 5 and other provisions of the VRA. Both want to make sure that the VRA remains effective in stopping new practices that would deny or dilute minority voting strength. And both want to insulate a renewed VRA against constitutional attack, in the near-certain event that Section 5 is reauthorized in some form.

As a legal scholar who was an ACLU lawyer for eight years before entering the academy, I must confess to feeling as though I have a foot in each camp. On one hand, I understand the reluctance of the civil rights community to alter a statute that has, for the most part, served the interests of minority voters extraordinarily well for decades. Without preclearance, there is a real danger that new impediments to equal participation and representation will arise in some parts of the country, especially at the local level. On the other hand, I'm very concerned about whether the preclearance process in its present form will continue to be an effective check on practices that deny or dilute minority votes -- particularly given the increasing evidence of partisanship in the Justice Department, which I've discussed here and here. I'm also worried about whether the current Supreme Court will find a renewed Section 5 to be a "congruent and proportional" remedy for constitutional violations, as the Court's new federalism cases require.

Rather than attempting to resolve this disagreement, it's probably most useful to identify some of the major issues dividing advocates and scholars, along with the major arguments for and against making changes.

- The Preclearance Process. Given the dangers of partisan manipulation that exist with the Justice Department's authority to grant or deny preclearance, Congress should seriously consider changes to Section 5's process. I've discussed some of the possible changes here. Among them is one that Professor Gerken has suggested: adopting an "opt-in" approach that would diminish the role of the Justice Department, and replace it with a process designed to encourage negotiation between community groups and covered states and counties. Civil rights groups are worried that they don't have the resources to monitor changes as well as the Justice Department does. As I've discussed in this forthcoming article, I think Professor Gerken's idea is a worthy one, so long as those groups are provided with attorney's fees that they'd need to engage in effective monitoring. I also think Congress should consider creating a new agency for state-level changes, and making decisions to grant preclearance reviewable in federal court.

- The Preclearance Standard. Civil rights groups would like to amend Section 5 to reverse the decision in Georgia v. Ashcroft, which upheld a redistricting plan that reduced the number of "safe" minority seats while supposedly creating new minority "influence" districts. Those groups have a point, in noting that the standard for determining when a plan is "retrogressive" is murkier as the result of this case, thus compromising Section 5's administrability. However, as Professor Hasen's testimony points out, reversing Georgia v. Ashcroft entirely would increase the likelihood of the Court throwing out Section 5 on the ground that it isn't "congruent and proportional" to remedying constitutional violations.

- Coverage and Bailout. Section 5's geographic scope is limited. It originally targeted southern states, and was subsequently expanded to other places with low registration or turnout and barriers to access. Civil rights advocates point out, correctly in my view, that there are parts of the country -- especially in the South and in Indian country -- where racial minorities are more likely to face barriers to equal representation, especially at the local level. But as Professor Issacharoff's testimony noted, most of Section 5's coverage is based on turnout statistics that are now over four decades old. For this reason, there are strong arguments for revisiting the coverage formula to focus on localities rather than whole states, and for making it easier for covered jurisdictions to "bail out" of coverage. It would also strengthen the case for Section 5's constitutionality, were Congress to take a serious look at the feasability of changing the coverage formula and conditions for bailout.

- Beyond Race-Specific Remedies. Some of the most significant voting rights controversies in recent years are not likely to be redressed by a renewed Section 5. Since the 2000 election, the "nuts and bolts" of election administration have attracted unprecedented attention. Professor Pildes thus argues in this forthcoming essay that there are limits to the race-specific approach embodied in Section 5, and that Congress should consider "national, uniform laws to protect the right to vote as such," along the lines of the Help America Vote Act of 2002 (HAVA). But civil rights groups are reluctant to re-open the debate over election reform in the context of VRA renewal. In the current Congress, it's quite possible that introducing these issues could backfire, resulting in laws that actually impede voting rights -- like a more stringent, nationwide photo ID requirement that would have a disparate impact on minority voters. At the same time, Professor Pildes is undoubtedly right that race-specific remedies will probably not be sufficient to protect equal access to the ballot in years to come.

The other participants in this forum will undoubtedly address these and other possible amendments with greater depth and sophistication than I've done here. Each of them raises difficult questions and, as the above comments suggest, my own views are not completely settled. The key point is that Congress should, at the very least, give serious and thoughtful consideration to the above modifications before it renews Section 5. Doing so will not only result in a more efficacious VRA, but will also increase the likelihood of it being upheld in the courts.
Tuesday, May 9
Cuyahoga County's Election Woes
Since last Tuesday's election in Ohio, there has been considerable media attention to problems in Cuyahoga County, the state's largest county which encompasses the city of Cleveland. These problems are summarized this AP story and this one from the Cleveland Plain Dealer.

The problem that's received the most attention is a problem with the equipment used to count 15,000 absentee ballots. Although there have been some headlines misleadingly suggesting that "electronic" voting machines were responsible, the biggest problem was not with the "touchscreen" direct record electronic (DRE) machines used for in-precinct voting, but rather in counting the optical-scan paper ballots used for absentee voting. There were some problems in implementing DRE equipment as well -- namely, poll workers somehow lost some 70 computer memory cards containing voting records. Fortunately, election officials in Cuyahoga were able to retrieve the results from the flash memory cards in the DRE units. Both the DRE machines used for in-precinct voting and the optical-scan system used for counting absentee ballots are made by Diebold. County officials and the company are blaming each other for the problems that occurred.

For those who believed that solving voting equipment problems was as simple as requiring a paper trail, Cuyahoga County's experience must come as a rude awakening. Ohio was one of the first states to require a "voter verifiable paper audit trail," or VVPAT, which means that electronic voting machines must generate a contemporaneous paper record of electronically cast votes. I've blogged on the shortcomings of the present generation of VVPAT technology many times, most recently here in describing a comparable system from another vendor, used in Franklin County's election. Yet the most significant problem that Cuyahoga County experienced occurred with a paper-based optical scan system.

It's certainly easy to exaggerate these problems. There are much worse things in the world than late results, foremost among them losing thousands of votes in each election cycle -- a disproportionate number of them those of racial minorities -- as the county's old punch-card machines routinely did. When the dust clears, it's almost certain to reveal that the county's new technology saved many votes that would have been lost with the old system. Still, the implementation problems in last Tuesday's election warrant investigation, so that they're not repeated.

Investigations are in fact commencing on what exactly happened in Cuyahoga County. That's as it should be. Too often, judgments about voting technology have been made based on sensationalistic headlines rather than careful research and analysis. The Cuyahoga County election board is launching an investigation, as the Plain Dealer reports here. And the office of Ohio Secretary of State is also going to investigate, a step that the AP reports is attracting criticism from the state Democratic Party. According to state Democratic Party Chairman Chris Redfern, Secretary Blackwell -- a Republican running for Governor -- has a "conflict of interest." The Secretary of State's office responded by saying that this was "a silly request."

I'm with Blackwell on this one. As long as he's the state's chief election official, he bears responsibility for the state's election system. It's not only within his power to investigate voting problems in Cuyahoga and other places; it's also his responsibility to do so. If Democrats don't like the results of that investigation, or the people who are appointed to conduct it, then they're free to criticize it -- as they surely will, given that this is an election year. Better still, they can conduct their own investigation.

It's certainly true that there is a conflict of interest in having a partisan, elected politician serving as the state's chief election official -- and, as it happens, running for Governor this year. But that conflict of interest is built into the state's system, which Ohio shares with most states, of electing secretaries of state (or other chief election officials) in partisan contests. As long as we have partisan chief election officials, they will have an incentive to discharge their duties in a way that is to their party's advantage, and perhaps even their own. The solution to this problem is not to bar Blackwell from exercising his responsibilities as Secretary of State. Rather, it's to eliminate the temptation for partisan manipulation of elections, by moving toward nonpartisan election administration.
Monday, May 8
Petitions for Rehearing in Ohio Voting Machine Case
On Friday, the defendants in the Ohio punch-card voting case filed petitions asking for en banc rehearing. As discussed here, the Sixth Circuit issued an opinion on April 21, concluding that the state's use of non-notice punch-card and optical-scan voting systems violates the Equal Protection Clause of the U.S. Constitution. This claim arises from the inter-county disparities in the percentage of votes counted, due to the use of these voting systems. The Court also sent plaintiffs' claim of race discrimination under Section 2 of the Voting Rights Act back to the district court for further proceedings. Because I'm one of the attorneys in the case, I'll refrain from commenting on the defendants' petitions for rehearing, but have posted the separate petitions for rehearing from Secretary of State Blackwell, Hamilton, Montgomery and Summit Counties, and Sandusky County.

Update: Rick Hasen noticed that the links to the last two briefs weren't working, and I've now corrected them.
Wednesday, May 3
Pildes on Voting Rights Act Renewal
Leaders of both parties introduced legislation yesterday to renew the portions of the Voting Rights Act of 1965 now scheduled to expire in August 2007. The A.P. has this report. Foremost among the expiring provisions is Section 5, which requires that certain covered jurisdictions obtain preclearance of electoral changes, either from the U.S. Department of Justice or a federal court, before they may go into effect. The bill introduced yesterday would for the most part preserve VRA preclearance in its present form.

While it seems very likely that Section 5 will be reauthorized, the forthcoming debate provides a rare opportunity to assess whether there are modifications that would better protect voting rights. Rick Pildes addresses this question in this essay, entitled "The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote," which was presented at the Howard Law Journal's Branton symposium in the fall. Here's an excerpt from Prof. Pildes' abstract:
Congress is now considering whether to renew the Voting Rights Act. Though critical issues concerning American democracy are at stake, and the renewal process is the moment at which the nation should focus on voting rights, there is no constituency, inside Congress or outside, to raise the serious policy issues that should be addressed. Instead, Congress appears to prefer to renew the relevant provisions largely in their current from, as quietly as possible, while avoiding all the hard questions inevitably present. Doing so not only abdicates policymaking responsibility, it increases the likelihood that the Supreme Court will later find the renewed Act to be unconstitutional.

This essay raises the questions that Congress should address. There are two distinct models for national legislation to protect voting rights. The model of the VRA selectively targets certain areas of the country (9 states, several counties and towns), for a unique form of unusually intensive federal oversight.... The alternative is reflected in laws that post-date the Voting Rights Act, such as the Help America Vote Act and the National Moter Voter Registration Act. This essay suggests that this alternative model -- national, uniform laws to protect the right to vote as such -- is better suited to the problems of voting rights today than the model of Section 5 of the Voting Rights Act, which was well designed for the era in which it was created but is less well suited to the problems of today.
My own, more modest suggestions for Section 5 are available in this article, also for Howard's Branton Symposium, entitled "If It's Broke, Fix It: Improving Voting Rights Act Preclearance." I completely agree with the legislators and civil rights groups as to "the importance of ensuring that the hard-won voting rights of minorities are not eroded." But I also think it's important to take a hard look at how well the preclearance process, in its present form, is serving this end. I therefore share with Prof. Pildes the hope that there will be a serious and robust congressional consideration of preclearance, and whether there are ways in which the existing regime might be altered to more effectively protect voting rights. Such a debate is important not only to ensure the efficacy of the legislation that emerges, but also to protect a renewed VRA from the constitutional attack that is certain to follow.
Tuesday, May 2
Voting with the VVPAT
I've been writing about the "paper trail" debate for a long time, but today was the first time that I had the opportunity to vote on an electronic voting system with a contemporaneous paper record (aka, "voter verified paper audit trail" or "VVPAT") in a real election. This is the result of a law that the Ohio legislature passed in 2004, amid concerns regarding electronic voting security. Here are my impressions on using that system.

Franklin County, Ohio -- the county in which Columbus is located -- is using the "ES&S iVotronic with Real-Time Audit Log" for the first time in today's primary election. It's a touchscreen direct record electronic, or "DRE," system that prints out the voter's choices on a strip of paper as they're made. That's the VVPAT ... more on this shortly. Before this election, Franklin County used an early model "full face" DRE, in which voters made their choices by pressing on a touchpad rather than a touchscreen. Though this may sound like a minor change, the user interface was actually much different. More information on Franklin County's new system can be found here, including a nifty video on how the voting process works using this machine.

One of the first things I noticed when walking into the room this morning is that the way in which the machines were place in the room had the potential to compromise privacy. On each side of the room, there was a row of machines set up -- three on one side and two on the other. (See my rough schematic drawing to the left, "Actual Set-Up -- the smiley face shows where I voted.) The machines were placed so that, if two machines in the same row were in use, the voter at one machine would be facing the back of the voter in front of him, as both voted. This could allow the voter in back, or a voter passing through the aisle between the two rows, to see the choices o of the voter in front. This is a problem, however, that could be very easily fixed, by placing the machines so that the wall is behind each voter as he or she votes. (See Figure B, "Alternative Set-Up.") There would be no way that others could view a voter's choices under such a configuration.

Actually voting on the iVotronic was quite interesting. After I gave my party affiliation to a pollworker at the check-in table, I was given a slip of paper indicating what ballot I should be given. I then gave that slip to another poll worker, who in turn inserted a card into a slot in the touchscreen unit that activated my ballot. The first screen displayed included three-step instructions on how to vote using the new machine. There were also some instructions printed on the left-hand privacy shield of the machine, which seemed more detailed -- although I could be mistaken, I don't think those instructions mentioned how to "verify" one's choices using the VVPAT.

There's a yellow button marked "next" at the bottom of each screen, which the voter can touch to advance to the next screen. There's also a "back" button that can be used to return to a prior screen. In this election, for which I think there were around 15 contests, all of them could be shown on two screens.

After reviewing the instructions on the touchscreen, I advanced to the first screen, which included the "top-of-the-ticket" contests such as Governor, Attorney General, and U.S. Senator. The voter makes a choice for each contest by touching a box immediately to the left of the candidates name. That causes a check-mark to appear in the box, indicating that a choice has been made. This was relatively straightforward and intuitive. If a voter changes his or her mind, the vote for one candidate can be changed by touching the box by that person's name a second time to cancel that choice. If a voter tries pressing by another candidate's name without de-selecting the first candidate chosen for a given race, the machine won't allow it -- it notifies you on the screen that you can't select more than one candidate for a race, or "overvote," without first de-selecting the prior candidate chosen.

Each time the voter touches inside one of the boxes on the screen, that choice is printed on a reel-to-reel strip of paper immediately to the left of the screen and inside the voting booth. That strip of paper is behind a transparent screen, so the voter can see but not touch it. This is necessary in order to preserve the integrity of the audit trail. If the voter cancels a prior choice that is also recorded, as would be the selection of a new candidate. The paper strips also indicates if a voter attempts to "overvote," as I did. The choices are displayed in pretty small typeface -- I'm not very tall, about 5'8" in heels -- but it was difficult for me to read the print out without bending over.

After each selection (or de-selection) is made, there's about an inch separating that selection from the next one printed on the paper audit record. Only a few voter selections are visible through the transparent screen at any one time. What that means is that the voter must actually check the strip of paper each time he or she makes a selection on the touchscreen, in order to ensure that the print-out matches the voter's intended choices. For example, for a ballot with twenty total contests on it, the voter would have to look back and forth between the touchscreen and the print-out that many times. Needless to say, this would get tiresome very quickly and I doubt many voters will do it.

One of the questions I asked the poll workers is whether there's a way to "scroll back" on the print-out and review all of one's choices at the completion of the voting process. The poll workers confirmed that there's no way of doing this.

After making all of one's choices, there's a "review" button that the voter can press. That caused the ES&S iVotronic to pull up summary screens through which I could "check my work," making sure that the votes recorded matched my intended choices. The system also allows one the opportunity to correct mistakes, by touching the desired contest and re-voting that race. I had deliberately "mis-voted" one item on the ballot, in order to test the review and correction process. Changing votes through the review process was, I thought, straightforward and easy. The machine displays the contest, and allows the voter to correct his or her choices in the manner described above, and then press the "review" button to go back to the review screen.

When a voter makes a change, the printed audit log will display the cancellation of each prior vote and each new choice as made. What struck me as a I was voting is how enormously difficult it would be to actually go through and recount these curled up strips of paper. That's particularly true, given that a correction for a particular race won't necessarily appear immediately below the prior choice for that race. For example, if I voted for one candidate for Governor, and then changed my choice once getting to the review screen at the end, my initial choice would appear at the top of the paper print-out, and my correction at the bottom. I feel very sorry for the poor election officials who would have to actually go through and decipher these print-outs in the event of a manual recount. It would be extremely time-consuing and laborious, making Florida's 2000 "hanging chad" controversy look like a picnic. Don't get me wrong. There's no question that touchscreen machines are a major improvement over the punch card, in terms of accurately recording voter choices and preventing mistaken overvotes and undervotes. But the audit trail would be a major pain to decipher.

One thing that I found a little confusing was the need to actually press buttons twice at the end of the process, before finalizing one's vote. After the last summary screen, there's a button on the screen that is pressed to "cast your ballot now." But even after that, there's another screen that comes up which is necessary to "confirm" the casting of one's ballot. This requires either pressing a big green confirmation button on the touchscreen, or pressing a flashing red light immediately above the touchscreen. I can easily imagining voters thinking they've completed voting, without going throught the final "confirmation" step. This is a problem the Columbus Dispatch discussed in this story yesterday.

When voting today, I waited several seconds before pressing the final confirmation button, in order to ask a poll worker a question. Interestingly, the machine started making a noise when I did so, alerting poll workers that someone had failed to confirm. They very politely and professionally explained that I had to confirm in order to finish. But when I then tried to press the big green "confirm" button on the screen, it wouldn't allow me to do so. Fortunately, I was able to press the flashing red light at the top of the screen, which confirmed my choices and resulted in my vote being recorded.

After confirming my ballot, the print-out scrolled upward and what appeared to be a bar code was generated. This scrolling would prevent a subsequent voter from seeing my choices. However, if someone had access to the paper print-out as well as a list of which voters voted on which machines, it would be theoretically possible to figure out which votes are associated with whcih voters -- thus compromising voter privacy. I say this is "theoretically possible" since I think it's unlikely to happen in a large urban precinct like the one in which I voted. In fact, I'm not sure that poll workers keep track of which voters used which machines. But it might be possible if there were a smaller precinct that had only one machine in use, or if poll workers did track which voters used which machine.

In short, I found the iVotronic touchscreen to be straightforward and user-friendly. Checking the contemporaneous paper print-out was another matter. This would be difficult for all but the most meticulous voters, and ones with good eyesight or the willingness to repeatedly bend over. Also troubling is the difficulty that would inevitably be entailed in recounting the strips of paper that would be generated by this device. Put more simply, my experience suggests that the so-called "voter verified paper audit trail" leaves much to be desired in terms of both verifiability and auditability, at least in this incarnation.

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Moritz College of Law The Ohio State University