Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Monday, January 15
The New Year in Election Law
Although later than I'd anticipated, I'm back blogging this week. Much has happened in my absence. Having had some much-needed time to recharge my batteries, it seems like a great time to recap briefly some of the election law developments in recent weeks and look ahead to what the new year may bring.

- The end of punch cards... The last of the cases challenging the use of punch cards came to the end last week, with the Sixth Circuit issuing this order vacating the district court's order in Stewart v. Blackwell with instructions to dismiss the case as moot. (Disclosure: I'm one of the attorneys for plaintiffs in this case.) Ohio was one of the last bastions of the "hanging chad" punch card, but finally got rid of them in 2006, leading Plaintiffs to concede mootness. The vacatur of the district court's order is actually good news for those who support a broad reading of the Equal Protection Clause -- and in particular Bush v. Gore -- to require electoral equality, since the district court opinion's treatment of the subject was abysmal. The Sixth Circuit's order confirms that this is a battle to be fought another day.

- ... but not debate over voting technology. Although punch cards are now retired most everywhere, the controversy over electronic voting technology is growing more intense. This controversy has been fueled by the NY Times' revelation that a company called Ciber couldn't document that it had performed the required security tests. According to Joe Hall, Ciber tested equipment used by 68.5% of the country's voters , This is a very disturbing allegation, which led the Election Assistance Commission to deny the company accreditation to conduct further tests. It's also triggered a response from Congress, with Senate Rules Committee Chair Dianne Feinstein issuing this press release and letter to the EAC demanding answers on why it failed to notify election officials on the problems with Ciber.

- ... including source code and ballot design. Meanwhile, there continues to be debate over the Florida 13th congressional district election, in which Republican Vern Buchanan defeated Democrat Christine Jennings by just 369 votes in the official count, with 18,412 electronic ballots in Sarasota County registering no vote. It's clear that something serious went wrong in Sarasota, and evidence so far leads me to agree with Matt Weil that the most likely cause was poor ballot design problem that led many voters to miss the race. Still, I think that the Florida trial court erred in issuing this order, refusing to give Jennings access to the source code that could have allowed a firm determination on whether there was a software problem. The court should have ordered the code disclosed, with an appropriate protective order to guard ES&S's asserted trade secrets. Without the code, it will be more difficult to convince skeptics that the real problem was bad ballot design rather than disenfranchising software.

- And speaking of disenfranchisment ... Voter ID laws remain very much in the news, with a divided Seventh Circuit having issued this opinion upholding Indiana's ID requirement in Crawford v. Marion County Board of Elections. I'm inclined to agree with Bob Bauer that Judge Posner's opinion is a flop, and with Rick Hasen's observation that his reasoning is sloppy. What it does suggest is that those hoping that the federal courts will protect the rights of poor, disabled, elderly, and minority voters may be in for a rude awakening. The most heated battles over voter ID are likely to lie in state legislatures like Kansas', in which a new photo ID law has been proposed, and in state courts like those in Missouri and Georgia which have not looked very kindly on these requirements.

- Let's not forget the legacy of Dr. King ... For all the academic debate over whether to reauthorize expiring provisions of the Voting Rights Act of 1965 in the past year, it is important not to forget the transformation of our country that Martin Luther King, Jr. and other advocates accomplished in getting this law passed. No civil rights law in had a greater impact, bringing into our democracy citizens who had been systematically disenfranchised through most of the country's history. Yet ironically, the VRA stories making news these days have to do with the DOJ using the act to allege reverse-discrimination against whites in Mississippi and the Texas case challenging the constitutionality of VRA preclearance.

- As we look toward the future. On Wednesday of this week, a conference on "The Future of Election and Ethics Reform in the States" will take place in Columbus, sponsored by Kent State University's Department of Political Science. This is an appropriate topic, since some of the most significant remaining barriers to participation -- and therefore some of the most important areas for reform -- lie in the area of election administration, and the conference will include some of the leading political scientists in the country on the subject. Moreover, as the title suggests, some of the most important election administration battles will likely be fought out in the states. It's also appropriate that the conference take place in Ohio, given the problems that occurred here two years ago and its likely centrality two years hence. It promises to be a great way of looking back ... and looking forward.

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