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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
Monday, November 27
Congress Turns to Election Administration
One of the things that may change with the new Democratic majorities in both houses of Congress is greater attention to the mechanics of elections. According to this report in the San Jose Mercury News, Senator Dianne Feinstein plans to focus on electronic voting and other election administration issues, in her new capacity heading the Rules and Administration Committee.

In one sense, this is a welcome development. Now is the perfect time for Congress to re-focus on the nuts and bolts of elections. The last of the core provisions of the Help America Vote Act of 2002 (HAVA) were implemented in this year's election season. Chief among those were the replacement of punch card and lever voting technology, for those states which accepted federal funds, and the implementation of disability accessible voting technology. Also in place this year, at least in most states, were new statewide registration databases mandated by HAVA. It is therefore quite appropriate that this Congress devote attention to studying how well these changes worked and what might be done prospectively to make our election system function better.

There is reason to be concerned, however, that this is not what the incoming congressional majority will actually do. In the past few years, the main election reform on which some on the Democratic side have been focused is the so-called "voter verified paper audit trail" (VVPAT). Mandating that electronic machines generate a VVPAT is frequently urged as a remedy for the security and transparency concerns with electronic voting. I've explained on many occasions, including here, why I don't think such legislation is wise.

Most recently, some electronic voting critics have seized upon the problems in Sarasota County to argue that a VVPAT should be required -- even though it's not at all clear that a VVPAT would have prevented the problems that emerged there. Relatively little research has been done on the functioning of electronic voting machines with a VVPAT in real elections. The research that does exist raises serious questions about whether mandating a VVPAT is really a workable and effective remedy for the real security issues that exist with electronic voting technology.

No one seriously denies that there are risks with electronic voting technology. The danger is mandating a particular solution before understanding the problem completely. As I noted here, it's pretty clear that something went seriously wrong in Sarasota County, and I'm among those who very much look forward to learning what that something -- or some things --were. But it's reported that Senator Feinstein was planning to roll out VVPAT legislation even before the Sarasota problem. If true, there's reason to worry that some in Congress aren't seriously interested in looking carefully into the problems in HAVA implementation, but rather in pushing through a pre-selected solution that may or may not make sense.

Congress should take a hard look at what went wrong in Sarasota County. Before moving to mandate the VVPAT or any other particular fix, it should also look carefully at how effectively they've functioned in places where they have been implemented, such as Cuyahoga County. Do voters actually check the VVPAT, for example, when it's provided on electronic voting machines? And is it practicable to hand-recount a sufficient number of paper records to ensure an adequate level of confidence? Congress should also examine the problems that have occurred in the implementation of HAVA throughout the country, including but not limited to those relating to voting technology.

Only after engaging in a careful process of diagnosis should Congress move to the task of prescribing remedies. This applies not only to voting technology, but also to voter registration, provisional voting, identification requirements, and all the other aspects of election administration that have undergone change in the last six years. It should also look carefully at the various agencies charged with administering elections, including the Election Assistance Commission (EAC), to determine whether there's a need for institutional reform. If Congress rushes to judgment on solutions before properly analyzing the problems, it could end up making things worse instead of better.
Tuesday, November 21
Another Worrisome EAC Nominee
After months of speculation, it was today confirmed that Senator Harry Reid has submitted the name of Denver City Councilwoman Rosemary Rodriguez to fill the Election Assistance Commission vacancy created by the departure of Ray Martinez. Her bio may be found here.

The EAC is charged, among other things, with overseeing the implementation of the Help America Vote Act (HAVA). By statute, it consists of two Democrats and two Republicans. Rodriguez, a Democrat, is the second nomination to the EAC in the past two months. The other was Caroline Hunter who, as I described here, was nominated by President Bush to fill the Republican vacancy created by the departure of Chairman Paul DeGregorio.

At the time of Hunter's nomination, I expressed concern that the EAC -- which until recently has managed to make its decisions by bipartisan concensus -- would become increasingly politicized along party lines. This concern was exacerbated by the nomination of Hunter, given her past work as an RNC lawyer and limited election administration experience.

Rodriguez does have some election-related experience, as a former Denver clerk and recorder. Still, she's something of an unknown in the world of election administration -- or at least was until her name was circulated. Perhaps she will reveal herself to be a more impressive nominee than the information available so far leads me to believe. I hope the Senate will carefully scrutinize this nomination, as well as that of Ms. Hunter, during the confirmation process.
Tuesday, November 14
Court Order on Ohio's Provisional Ballots
U.S. District Judge Algenon Marbley today issued this Agreed Enforcement Order in the NEOCH v. Blackwell case. As described in this post, the order sets forth the requirements for counting provisional ballots in Ohio's 88 counties.

This is particularly important for two congressional races, for the 2nd and 15th district seats, that still remain undecided. The Democratic candidate trails in each of those races, but is hoping to make up ground through provisionals that are as yet uncounted. As I noted yesterday, the Democratic candidate in the 15th (Mary Jo Kilroy) actually has a better shot, albeit a long one, of catching up. Although she trails by more than 3,000 votes, there are a lot more uncounted provisional and absentee ballots in her district.

One of the most interesting aspects of the agreed-on order is that the Secretary of State's office acknowledges that some voters were wrongly required to cast a provisional ballot on election day, even though they complied with the ID requirements as clarified in the consent order issued a few days before the election. In particular, some voters with a driver's license containing an old address were required to cast a provisional ballot rather than a regular one. Under today's order, those provisional ballots are to be counted as though they were regular ballots.

Today's order also prescribes a process for determining whether provisional ballots will be counted. It includes an eight-factor test, set forth in the consent order, that boards of election are supposed to adhere to. Those factors include determining that the voter was qualified and registered, hadn't previously voted, and presented proper ID. For provisional ballots that are to be rejected, the order provides that partisan observers may make an objection before the board of elections votes on whether that ballot should be counted.

In general, the order appears to provide a reasonably generous standard and a fair process for counting provisional ballots. Most importantly, it gives the counties much needed guidance. Judge Marbley and the parties again deserve great credit for reaching agreement. I'm cautiously optimistic that the order will result in a vast majority of the provisional ballots cast by qualified Ohioans being counted.
Monday, November 13
We've Only Just Begun
Control of the House and the Senate may be resolved, but a number of elections remain unsettled. As though to prove my colleague Ned Foley prescient, there are -- depending on how you count -- up to 10 congressional races that still remain to be decided. The AP has this rundown, and you can find ongoing updates on Election Law @ Moritz's Recount Roundup. Here are three undecided races worth paying special attention to.

- The closest undecided congressional race is for Connecticut's 2nd District. At one point today, Democrat Joe Courtney's lead over Republican Rob Simmons was down to only 66 votes, after a math error was discovered in the Town of Lebanon. The difference is now reported to be back up to 109 votes, after an election worker in Lyme was found to have written down the wrong number and mistakenly giving 40 extra votes to Simmons. Recounts are still going on in other places and reportedly aren't due until Wednesday midnight, so it's possible that more errors could be discovered.

- In Florida's 13th District, which I discussed in yesterday's post, Republican Vern Buchanan leads Democrat Christine Jennings by 373 votes. What makes this race especially interesting is not just the closeness of the vote, but the fact that over 18,000 of the electronic ballots cast in Sarasota County showed no recorded vote in the race. As described by Moritz's Debra Milberg, recount and audit are now underway. A screen-by-screen depiction of the ballot design, posted by Joe Hall, provides a clue as to why that might be. The placement of the House race at the top of the second page, right after the U.S. Senate race and before the gubernatorial race, might have caused some voters to miss it -- or more properly, think that the candidates were for the prior office if they weren't looking carefully. It would have been possible for voters to catch the error on the first of the "summary ballot" pages (the 22nd screen shot), but some might not have been paying close attention, while others may not have thought it worth their time to go back and cast a vote for the race. Although some advocates have already seized on the high undervote rate to bolster their arguments for a "voter verified paper audit trail" (VVPAT), it's unlikely that this would have prevented the problem, if the ballot layout was indeed the main cause. Voters who didn't notice the omission on the screen almost certainly wouldn't have caught it on the paper printout -- especially given the evidence available so far, admittedly limited, suggesting that most people don't actually check contemporaneously printed paper records when they're provided.

- In Ohio's 15th District, Republican Deborah Pryce leads Democrat Mary Jo Kilroy by 3,536 votes. This isn't the closest outstanding congressional election. In fact, it's not even the closest one in Ohio -- in the 2nd, Republican Jean Schmidt leads Democrat Victoria Wulsin by 2,323 votes. What makes the 15th District race interesting is the large number of provisional ballots in Franklin County, where Columbus and The Ohio State University are located. According to this AP report, there are approximately 18,000 provisional and absentee ballots in Franklin County that still remain to be counted. (The 2nd District race, by contrast, is reported to have only about 4,700 uncounted ballots.) Kilroy is hoping that many of the uncounted votes in the 15th belong to students who cast provisional ballots, because they were deemed not to satisfy the state's new ID rules. The AP notes that counting of Franklin County's ballots will start on Sunday, the day later than permitted. The reason? In addition to giving election workers a much-deserved day off, it will allow them to watch Saturday's game between the #1 ranked Ohio State Buckeyes and the team from that school up north (#2).

Say what you will about us Ohioans and our elections, but we at least have our priorities in order.
Sunday, November 12
Something Strange in Sarasota
Although last week's elections generally appear to have proceeded more smoothly than anticipated, some troubling issues have emerged in Sarasota County, Florida. As summarized in EL@M posts here and here, there were over 18,000 "undervotes" -- that is, ballots for which no choice was recorded -- from that county, in the race to succeed Katherine Harris as the congressperson for Florida's CD 13. This is particularly troubling since Democrat Christine Jennings trails Republican Vern Buchanan by fewer than 400 votes.

The number of undervotes in Sarasota County amount to approximately 13% of the total votes cast, according to this report. While there are always some voters who intentionally abstain from certain races, this level of undervoting is suspiciously high, particularly since surrounding counties had an undervote rate less than 3% in the same contest, according to this report. If in fact the level of undervoting had been comparable in Sarasota County -- and assuming that those undervoters would have voted the way that other voters did -- Jennings would likely have prevailed.

The anomolous result in Sarasota County has immediately triggered a new wave of suspicion regarding electronic voting technology. The county uses an electronic voting system manufactured by ES&S, the "iVotronic." But as Rick Hasen points out in this New York Times op-ed from yesterday: "[T]his reaction to the bugs and glitches shows that Americans have not learned the right lesson from 2000: the problem is not with the technology of running our elections but rather with the people running them." Professor Hasen is right to focus on the human dimension of election administration. I'd add that adherence to proper procedures is also essential to a smooth-running election system.

Opponents of electronic voting will undoubtedly use this incident to support their argument that paper balloting is more reliable. Some may attempt to use the situation in Sarasota County to fuel their arguments to require a "voter-verified paper audit trail" (VVPAT), something that I've consistently opposed. To this point, there's only one election of which I'm aware in which electronic votes were lost that could have been preserved had their been a VVPAT: the 2004 election in Carteret County, North Carolina in which 4530 votes weren't recorded. It's possible that this could be the second (though we don't know yet). Of course, this pales in comparison to the hundreds of thousands of votes that were routinely lost with the old "non-notice" punch-card and optical-scan systems in each election cycle. Still, incidents like those in Carteret County and Sarasota County are extremely serious and warrant careful scrutiny.

Fortunately, that appears to be what's happening. A recount of the election, along with an audit of Sarasota County's system, is scheduled to begin Monday. That audit will reportedly include parallel testing of the voting equipment -- a procedure that, in my opinion, should be done routinely in every election. There are a number of possible explanations for the high number of undervotes. One is the configuration of the ballot, which some voters have complained made it difficult to notice the race. Another possibility, and a far more serious one, is that voters actually made a selection for the race but that the machines for whatever reason failed to record them.

At this point, we simply don't know for sure what caused the high number of undervotes in Sarasota County's congressional election. As important as it is to determine the winner of CD 13 promptly, it's far more important to figure out what exactly happened, so that similar glitches (if that's in fact what it was) can be prevented. Any proposed reforms should of course await the results of the audit and recount to start this week, but one thing is already certain: sound election administration depends on people and procedures, not just machines.
Wednesday, November 8
Undecided Elections in Ohio
Although the big U.S. Senate contests in Montana and Virginia appear closer to resolution, there are still some House races up in the air. Two of them are in Ohio, the 2nd and 15th congressional districts. As shown here, Democrat Victoria Wulsin trails incumbent Republican Jean Schmidt by 2865 votes in the 2nd district race, while Democrat Mary Jo Kilroy trails incumbent Republican Deborah Pryce by 3536 votes in the 15th, as of this writing.

One of the intriguing possibilities to consider is how a post-election fight over the election results would play out, given some of the changes that I noted in Monday's post. Three of these changes could turn out to be particularly significant: (1) the increased number of absentee ballots, arising in part from fears of long lines and new technology; (2) the increased number of provisional ballots, arising from confusion among voters and poll workers over the new voter ID requirements; and (3) the "voter verified paper audit trail" (VVPAT) printouts on touchscreen voting equipment now used in many Ohio counties.

The situation in Ohio's 15th provides an example of how these changes might come into play. Most of the voters in this district reside in Franklin County, where Columbus is located, with portions of the district in two smaller counties (Union and Madison). I'm told that there were a very large number of absentee ballots cast in Franklin County before Tuesday's election. Most of those have now been counted, but there were still around 20,000 late-arriving absentee ballots that hadn't been counted as of this afternoon. In addition, there are around 20,000 provisional ballots that hadn't yet been verified or counted -- up from under 15,000 provisional ballots in Franklin County's 2004 general election. Many of these can't be verified or counted for at least 10 days after the election, the time allowed for voters to bring in ID or other documents that they didn't present at the polls.

It would be difficult for Kilroy to make up the 3536 votes by which she reportedly trails Pryce for the 15th district seat, but it's not beyond the realm of possibility, as some back-of-the-envelope estimates reveal. Roughly half of Franklin County voters reside in the 15th district. Assuming that about half of the outstanding provisional and absentee ballots in Franklin County come from that district, there would be about 10,000 absentee ballots and 10,000 provisionals that could still be counted in the 15th district race. Not all the provisionals will ultimately be counted, since some voters will be found unqualified, but the 2004 election suggests that about 80% (in the neighborhood 8,000) will be qualified.

Assuming that there are around 18,000 absentee and provisional ballots that will ultimately be counted in Franklin County, Kilroy would have to pick up almost 11,000 of them to catch Pryce. That's unlikely, but we may not know for sure for several days given the length of time it will take to validate and count provisional ballots. (I'm leaving out the other two smaller counties, but it will be difficult for Kilroy to pick up votes given that these lean Republican. Thus, it's fair to assume that the best she can hope to do there is to break even on any uncounted provisionals and absentees.)

If the 15th district race were to tighten up after all the absentee and provisional ballots are counted, a recount of the vote is possible. This is an especially interesting prospect, given that it would provide the opportunity for the first large-scale recount of which I'm aware, in a district using electronic voting machines with the VVPAT. As I noted in this post, the VVPAT is the official ballot of record in Ohio elections. When Cuyhoga County's electronic VVPAT system made by Diebold was studied after the May primary, a lot of problems were found, including crumpled, torn, and otherwise compromised paper records. Franklin County uses a different type of electronic VVPAT system, made by ES&S, so it may not have the same sort of problems found. But there have been some reports of printer jams and other technical difficulties in yesterday's election.

I've noted here the potential perils, both legal and practical, that could arise in a recount of VVPAT records. Notwithstanding these concerns, and the headaches for election officials associated with a recount, it would in a sense be much better to go through a "trial run" recount with VVPATs in this year's election, rather than face the prospect of conducting the first such recount in a razor-thin presidential race in 2008. A recount in one of this year's VVPAT elections, like the one in the 15th district, would likely hold lessons that would prove valuable down the road. Not that one ever hopes for a recount but, in this case, it could be useful.
Tuesday, November 7
Coming Down to Virginia?
It's now looking as though control of the U.S. Senate may hinge on the outcome in the Commonwealth of Virginia, where Democratic challenger Jim Webb currently holds a narrow lead over the Republican incumbent, Senator George Allen. Reuters has this report and the AP this one. Rick Hasen has written this post laying out a possible recount scenario in Virginia.

Virginia's recount statute provides:
When there is between any candidate apparently nominated or elected and any candidate apparently defeated a difference of not more than one percent of the total vote cast for the two such candidates as determined by the State Board or the electoral board, the defeated candidate may appeal from the determination of the State Board or the electoral board for a recount of the vote.... Va. Code 24.2-800.
It appears that the margin will be comfortably within 1%, putting aside provisional ballots for the moment. A recount could well happen if the margin ends up being less than a few thousand votes. But as set forth in this table, most Virginia jurisdictions use some sort of direct record electronic (DRE) voting technology. There's no "voter verified paper audit trail" requirement in Virginia, as noted by electionline.org. The recount statute provides that, for DRE voting systems:
[T]he recount officials shall open the envelopes with the printouts and read the results from the printouts. If the printout is not clear, or on the request of the court, the recount officials shall rerun the printout from the machine or examine the counters as appropriate. Va. Code 24.2-802.
This makes it unlikely, though not impossible, that the recount will result in a substantial shift in votes.

Now the wild card: I can't tell as of this writing whether there are a sizeable number of provisional ballots in Virginia. Under Virginia law, the process for determining whether provisional ballots should be counted could go on for a week:
The electoral board shall meet on the day following the election and determine whether each person having submitted such a provisional vote was entitled to do so as a qualified voter in the precinct in which he offered the provisional vote. If the board is unable to determine the validity of all the provisional ballots offered in the election ...., the meeting shall stand adjourned from day to day, not to exceed seven calendar days from the date of the election, until the board has determined the validity of all provisional ballots offered in the election. Va. Code 24.2-643
Even though provisional ballots are generally assumed to tilt toward Democratic candidates ... you never know, especially if it turns out that there were an unusual number of registration issues in Republican-leaning districts.
Monday, November 6
What to Watch Out For
Tomorrow's election day, and the Election Law @ Moritz team will continue to track breaking developments on the front page of our site. Just today in Ohio, there have been developments on lawsuits pertaining to polling place observers, the posting of election results, and backup paper ballots. There are likely to be further election law developments around the country tonight and tomorrow, which will be added to our front page as they happen.

Everyone's got their own list of states to watch in tomorrow's election, though it's always difficult to predict exactly where things will go wrong. Rather than try to do so, here's my list of the most significant types of problems to look out for tomorrow:

- Voting Machines: As in every election since 2000, this will continue to be a big issue. It looms especially large in this election, given that key Help America Vote Act (HAVA) deadlines for the replacement of old voting equipment and the installation of disability accessible systems take effect this year. We've already seen severe problems in implementing electronic voting technology, most conspicuously in Maryland and Cuyahoga County, Ohio. While there's reason to hope that these places will have made procedural improvements, the big lesson from these and other events is that human errors can cause major problems, whatever technology you're using. Inevitably, there will be some polling places that open late due to equipment problems or election officials' mistakes. It's also possible that there could be difficulties in the event of recounts in some places, for reasons I discussed here.

- Statewide Registration Lists: Though much less visible than voting machines, the states' systems for keeping registration lists could turn out to be as important. One of the requirements of HAVA is that each state should have in place a computerized statewide registration list. These databases are supposed to be coordinated with other agency databases. A number of states have had difficulty in getting their statewide registration lists operating on time. For those that have met the deadline, there are real questions about how accurate the lists will be. It's possible that some voters could show up at the polls and find their names have wrongly been struck from the lists, in which case they'd have to cast provisional ballots. This has been a relatively low-visibility issue, but is definitely something to keep an eye on.

- Voter ID Laws: A higher-visibility issue is the move toward laws requiring voters to present identification in order to have their votes counted. Missouri's and Georgia's laws requiring photo ID were enjoined by courts in those states, while Indiana's law has so far been upheld. Arizona's identification law, which provides an alternative to photo ID, will also be in effect, due to the U.S. Supreme Court's intervention. In Ohio, confusion over the implementation of a voter ID law passed in February resulted in a consent order just last week. While the impact of voter ID on turnout can't easily be ascertained right after an election, it's important to keep an eye on how well election officials, poll workers, and voters are able to comply with the new rules.

- Election Night Delays: Increased reliance on absentee and provisional ballots may lead to the results in key races not being known for sure on election night. The move toward absentee voting has gained steamed as the result of highly publicized problems with new technology in some places. But more absentee ballots could lead to election results coming in more slowly. Provisional ballots can also be expected to increase, to the extent that there are problems with state registration lists or with voters showing up at the polls without proper ID. The counting of provisional ballots can be expected to take even longer than the counting of absentee ballots, since it entails determination of whether voters are eligible and registered and whether they satisfied the sometimes-convulted ID rules in a state. It's therefore possible that a large number of absentee and provisional ballots could cause delays in calling close elections in key states.

It should be an interesting election day ... and night!
Wednesday, November 1
Consent Order in Ohio Voter ID Case
As the Ohio News Network reports here, a consent order has been entered in the litigation challenging the implementation of the state's voter identification requirements. The consent order signed late tonight appears to resolve the rather convoluted ID issues that have emerged in Ohio during the past several days.

Such a settlement was desperately needed, after an order and subsequent opinion from the Sixth Circuit that left considerable confusion over what ID would and wouldn't be acceptable in the state's November 7 election. The Sixth Circuit stayed a TRO issued by U.S. District Judge Marbley, which had stopped the ID rules from being applied to absentee voters. The Columbus Dispatch reported here on the frustration that election officials were experiencing after the Sixth Circuit's action.

One of the big issues left up in the air after the Sixth Circuit's ruling was what would happen to absentee ballots cast without identifying information under the protection of the TRO. As the Sixth Circuit's opinion noted, these absentee voters have due process and equal protection rights. In fact, voters may well have believed (or even been instructed) that they were allowed to vote absentee ballots without identifying information even after the TRO was stayed by the Sixth Circuit, since the Secretary of State's directive (2006-79) implementing the TRO's requirements doesn't appear to have been lifted.

The consent order appears to resolve the absentee ballot ID issue, at least for this election. It provides that absentee ballots are to be counted "if that ballot has the voter's name, address, date of birth, and signature," even if they don't include a driver's license number, last four digits of the the Social Security number, or other forms of identifying information. This is, in my opinion, a fair resolution of the issue since it will protect voters who didn't provide the form of ID required by the statute -- including those who were understandably confused by the rules or who cast absentee ballots while the TRO was in effect. At the same time, it provides a relatively straightforward rule for county election officials to follow.

The consent order also deals with the ID that voters will have to show at the polls on election day. It provides, among other things, that utility bills, bank statements, and other forms of non-photo documentary ID are "current" if dated one year or less from the date presented to the county board. (Those documents must have the voter's current address on them.) Voters who don't have or are unable to provide one of the specified forms of photo or non-photo ID may provide their Social Security number and cast a provisional ballot, which should be counted if they're determined qualified and registered.

Another important provision of the consent order has to do with military ID. The problem here is that Ohio's law allows military ID only if it contains the voter's current address, but many (if not most) military IDs don't have an address on them. Under the consent order, voters with military ID that doesn't show their current address, but does have their Social Security number, may provide the last four digits of that number. They will be allowed to cast provisional ballots that should be counted, if they're qualified and registered.

There's more to the consent order, but what's most important is that the plaintiffs and Ohio officials have arrived at an agreement that should resolve most if not all of the confusion attending the implemention of the state's ID requirements in this election. The parties and Judge Marbley deserve credit for making this happen.

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Moritz College of Law The Ohio State University