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, January 31
The Deceptive Practices and Voter Intimidation Bill
Senators Obama and Schumer today introduced a bill (S. 1975) designed to stop deceptive practices and the intimidation of voters. The NY Times has this story and this editorial supporting the bill.

The bill arises from concerns about false and misleading practices that have been reported in recent elections, targeted especially at African American, Latino, and Native American communities. Among the practices that have prompted concern are false information being disseminated about when to vote (e.g., Republicans voter on Tuesday, Democrats on Wednesday), and initimidation of immigrant voters. Another practice cited is a pamphlet with features of black Democrats, falsely indicating that they were supporting Republican candidates in the 2006 elections.

The bill would target practices which deceive voters about the "time, place, or manner" of conducting federal elections, or about qualifications for voting in federal elections. The prohibition on such practices would be enforceable both through criminal penalties (1 year imprisonment and a $100,000 fine) and through private lawsuits. In addition, the bill would allow the Department of Justice to investigate reports of deceptive acts concerning the time or date of elections and qualifications for voting.

Civil rights groups such as the Lawyers' Committee for Civil Rights and People for the American Way have chimed in to support the bill. Opponents are sure to argue that the bill infringes on First Amendment free speech rights, by imposing a prior restraint on speech. This is something that warrants careful consideration, even though there are strong countervailing interests in protecting the right to vote. It will be interesting to see whether this bill gets any traction.
Thursday, January 25
Convictions in Ohio Recount Tampering Case
Two Cuyahoga County election officials were convicted today on felony counts of negligent misconduct in connection with Ohio's 2004 presidential recount. The AP has this report.

The convictions stem from the recount that was requested not by the John Kerry, but by Green Party candidate David Cobb and Libertarian candidate Michael Badnarik. State law at the time allowed candidates to obtain a recount for only $10 a precinct, and these candidates asked for one statewide. At the time, Cuyahoga County, like most other counties in Ohio, was using "hanging chad" punch card voting equipment. Under a directive issued by former Secretary of State Ken Blackwell, 3% of randomly selected precincts were to be recounted manually. If the manual recount in those precincts matched the machine count, then the remaining 97% could be recounted by machine. If they didn't, then those ballots would have to be recounted by hand.

So what happened? According to prosecutors, and it appears the jury agreed, Cuyahoga County election officials fudged the recount by not selecting the 3% of precincts randomly. Instead, prior to the official manual recount, they did a pre-count to find precincts where the hand and machine counts would match.

Why would they do such a thing? Does this mean that the election really was stolen after all?


The prosecutor in the case didn't allege that the recount was rigged for political reasons. Rather, it appears that the officials did so in order to avoid having to manually recount over 600,000 punch card ballots. Had they really selected the 3% of ballots at random, it's likely that the hand and machine counts wouldn't have matched. Remember that Cuyahoga was using punch card ballots. An inherent problem with this equipment is that hanging chad can get pressed back into place when put through the machine. Sometimes, chad can actually come out during the recounting process. A truly random recount would likely have meant that all the ballots in Cuyahoga County would have to have been recounted. As I mentioned at the time the indictment came down, I wouldn't be surprised if the allegations are true. In fact, I suspect that officials in Ohio's other counties did the same thing.

To be clear, this isn't at all to excuse the conduct in which these officials engaged, or to deny that they deserve to have been convicted. Where the law prescribes a particular procedure, it's critically important that those procedures be followed -- even when it's certain that the outcome won't be affected. The failure to follow prescribed procedures will only contribute to public distrust of the integrity of our election system, something that nobody wants (except that small cadre of pundits who have made a career out of spinning conspiracy theories about stolen elections). The crimes of which these officials have now been convicted are therefore serious ones ... even though they didn't affect the outcome of the 2004 election.
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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