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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, March 19
Ohio SOS Asks for Cuyahoga Board's Resignations
Ohio's new Secretary of State Jennifer Brunner has asked for the resignations of all four members of the Board of Elections in Cuyahoga County, the state's largest county which includes Cleveland. The Columbus Dispatch has this report and Secretary of State Brunner has issued this press release. This follows the conviction of two Cuyahoga County election officials in January, and the resignation of its embattled director of elections Michael Vu in February.

Those being asked to resign, according to Secretary Brunner's press release, are:

- Board Chair Robert Bennett, a Republican - term ending February 28, 2010
- Edward Coaxum, Jr., a Democrat - term ending February 28, 2010
- Sally Florkiewicz, a Republican - term ending February 28, 2008
- Loree Soggs, a Democrat - term ending February 28, 2008

The reasons given for the resignation requests include the "maximum 18-month prison sentences being handed down to two Cuyahoga County election workers last week for their roles in the 2004 Presidential recount, the tremendous problems that surfaced in the May 2006 primary that delayed even the unofficial vote count for 5 days, and the uncertain future of this board as another Presidential election looms on the near horizon."

What will happen if the board members don't resign? Ohio law (ORC 3501.16) allows the Secretary of State to remove board members for good and sufficient cause:
The secretary of state may summarily remove or suspend any member of a board of elections, or the director, deputy director, or any other employee of the board, for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any willful violation of Title XXXV [35] of the Revised Code, or for any other good and sufficient cause. Except as otherwise provided in section 3501.161 [3501.16.1] of the Revised Code, vacancies in the office of chairperson, director, or deputy director shall be filled in the same manner as original selections are made, from persons belonging to the same political party as that to which the outgoing officer belonged. If those vacancies cannot be filled in that manner, they shall be filled by the secretary of state.
Cuyahoga County's election system has undoubtedly had more than its share of problems, as documented in two lengthy reports -- available here and here -- issued after last year's primary election. Nevertheless, if the board's members refuse to resign and Brunner follows through by firing them, that decision is likely to provoke controversy. In 2005, former Secretary of State Ken Blackwell forced the resignations of members of the Board of Elections of Lucas County (Toledo area), as reported here and here. Blackwell was criticized in some quarters for forcing their ouster.

It's not clear that the members of Cuyahoga County's board will go so quietly. According to this post on the Cleveland Plain-Dealer's Politics Blog, the two Democrats on the board originally said that they'd step down but now "appear unwilling to do so" while the two Republicans plan to fight Brunner, who is a Democrat. One of the Republican members, Chair Bob Bennett, also happens to be Chairman of the Ohio Republican Party. According to the Plain-Dealer's blog, Bennett suggested to Brunner that he intends to litigate.

This could get very interesting. That's not only because it affects the conduct of elections in the largest county in what is likely to be a pivotal state in 2008. It's also because it raises critical institutional questions about election administration, including the role played by bipartisan boards of election and by chief election officials elected on a partisan basis. In the long run, such institutional issues -- including how election officials are selected and how they can be removed -- are among the most important facing our election sytem.
Tuesday, March 13
Early Voting in 2008
The 2008 election season is already upon us. Each day's news contains more stories about the candidates' attempts to raise money and woo voters. In addition, bills have been introduced in Congress dealing with such diverse matters as voter intimidation, electronic voting security, and a democracy index to measure the health of state election systems.

If significant changes are to be made in time for next year's election, it's vital that implementation start soon. Among the most important reforms to consider is in-person early voting.

As we look forward to next year's election, the prospect of long lines at polling places is one of the most serious issues that should be considered. Long lines may discourage or even prevent some voters from participating. These lines are especially worrisome if they are concentrated in certain areas -- such as major urban centers, rural counties, or near college campuses -- since that presents a greater likelihood of skewing the electorate than would be the case if such problems were distributed statewide.

Ohio was among the states that had extremely long lines, in some but not all parts of the state, in the 2004 presidential election. Because Ohio is very likely to again be a battleground state in 2008, it's worth paying special attention to its experience. Franklin County, where Columbus is located, had exceptionally long lines at some precincts. In Columbus, some voters reported waiting four to five hours. Another county that had problems was Knox County, home to Kenyon College, where some voters waited until the wee hours of the morning to cast their votes. This led a federal district court in Columbus to issue a temporary restraining order on election day, requiring that polls in these counties be kept open for voters waiting in line and that they be provided with some alternative way of voting.

Election-day court orders are sometimes necessary But the reality is that, by that time, it's usually too late to do much about long lines. Some voters will be discouraged from coming out if lines are too long, while others will have other obligations that prevent them from waiting for hours. It would be far better to think now about what can be done to take pressure off of our polling places on election day.

Unfortunately, there are reasons to be concerned that the problem of long lines may actually get worse. There were reports of long lines in some places, including Cuyahoga and Miami Counties in Ohio, in the 2006 mid-term elections. Though it's hard to know for sure, it appears very likely that turnout will again be high next year, at least in battleground states. Two other changes that have occurred in the last two years are also likely to increase pressure on the polls.

One change is the enactment in several states of laws requiring voters to identify themselves at the polls on election day. Although the Help America Vote Act of 2002 (HAVA) contained a voter ID requirement that took effect in 2004, this requirement applied only to a limited subset of voters, namely first-time voters who'd registered by mail. Since then, several states -- including Florida and Ohio -- have made changes to their laws to impose new identification requirements for all voters. It's possible that these changes could create or exacerbate bottlenecks. Some of these requirements, particularly those in Ohio, are very confusing. And in Florida, voters who don't have photo ID are obligated to cast provisional ballots. All of this can be expected to slow things down at the point voters check in.

The other major change that can be expected to have an effect in 2008 is the implementation of new voting technology. Although HAVA required states receiving federal funds to have new equipment in place by 2006, some of those voting next year will be using that equipment for the first time.

More importantly, it's not clear counties purchased enough voting machines to accommodate all those who will be voting on election day. The fact that a polling place had enough voting machines in last year's election doesn't mean that there will be enough for next year's election, given that turnout will probably be higher. One solution to this problem, of course, would be to buy new machines. This may not be a practical solution, however, given the expense involved and the limited time available to get new equipment in place. And just yesterday, the AP reported that the voting system in Cuyahoga County, Ohio's most populous, is probably inadequate to handle the increased turnout expected next year.

It's therefore essential to think carefully about what can be done to relieve pressure on polling places on November 4, 2008. One possibility is to expand opportunities to cast absentee ballots before election day. Most states now allow no-excuse absentee voting, in which anyone can cast an absentee ballot by mail, regardless of whether they have a reason for not going to the polls on election day.

There are, however, some serious concerns surrounding expanded mail voting. Foremost among these is the possibility of fraud and coercion, which is generally easier to accomplish with mail ballots than in-person voting. In fact, most of the evidence of modern-day voter fraud -- anecdotal though it is -- concerns absentee voting. There's also the possibility that voters will be pressured by family members or caregivers to vote a particular way, especially in institutional settings. Mail ballots are also inaccessible to a significant number of disabled voters, including people with visual and manual dexterity impairments.

In addition, there are many ways in which voters can make mistakes in the absentee voter process, which result in their votes not being counted. One is by failing to comply with the application requirements for absentee voting, which are very complicated in some states. Here again, Ohio is an example, by virtue of it's intricate rules regarding voter ID, which caused serious problems for some absentee voters in 2006. Even if they succeed in applying for an absentee ballot, voters can make mistakes in casting and returning it. Without the benefit of "notice" technology available at polling places, voters may mistakenly cast overvotes or undervotes. In addition, they may make mistakes in returning their ballot -- like failing to include proper postage or required identification -- that can result in their votes not being counted. The fact that voters don't have an election official or poll worker to assist them may increase the risk of mistakes.

In-person early voting eliminates some of the inherent problems with mail voting. Typically, early voting takes place at a central location, such as a board of elections office or a local public library. Voters can appear at that location several days before the election in order to cast their votes. Unlike mail voting, election officials are available to assist voters who need help, either in complying with ID requirements or in understanding how to use the voting machine. In fact, local election authorities may be in a position to provide better assistance than is possible on election day, by having more knowledgeable paid staff rather than volunteer poll workers available for early voting. Voters also have the advantage of new technology that is accessible to people with disabilities, and provides all voters with notice and the opportunity to correct errors before they vote.

For all these reasons, in-person early voting is preferable to mail-in absentee voting, as a means by which to relieve election day pressure on the polls. This reform is included as part of the proposed Count Every Vote Act, section 352 of which would require that people be allowed to vote within the 15-day period before the election "in the same manner as voting is allowed on the date of such election." However, this bill also includes some provisions that are likely to prove controversial, such as felon re-enfranchisement, no-excuse absentee voting, and contemporaneous paper record requirements.

Accordingly, supporters of in-person early voting should consider breaking off the early voting requirement as a separate, stand-alone bill. This is a reform that should be appealing to those across the political spectrum, since it has the potential to expand access without imperiling the integrity of our electoral system.
Friday, March 2
Obama's Democracy Index Bill
Senator Barack Obama (D-IL) has instituted the "Voter Advocate and Democracy Index Act of 2007," designed to institute a system by which states' election systems could be measured. A release describing the bill may be found here and the text here courtesy of Rick Hasen.

The bill would create an Office of the Voter Advocate within the Election Assistance Commission (EAC). Among the responsibilities of this new office, as described in Sen. Obama's release, would be to measure:
- The amount of time spent by voters waiting in line;

- The number of voters incorrectly directed to the wrong polling places;

- The rate of voter ballots discarded or not counted along with an explanation;

- Provisional voting rates and the percentage of provisional votes cast but not counted;

- The number and description of election day complaints; and

- The rate of voting system malfunctions and the time required on average to get the systems back online
The bill draws on an idea by Professor Heather Gerken of the the Yale Law School, which appeared in the Legal Times. After my colleague Ned Foley wrote a weekly comment in response, Professor Gerken offered these further thoughts here on the EL@M site a few weeks ago.

The idea of creating a mechanism by which to measure the health of each state's election system is an excellent one. Despite all the attention devoted to election administration these days -- or maybe because of it -- it is sometimes difficult to tell where there are really serious problems, as opposed to partisans angling for position. Creating a sense of performance standards is a worthy enterprise, one that in the long run could make our election system function much better.

That said, it will undoubtedly be a major challenge to get a bill of this nature passed. There will almost certainly be resistance on the part of Republicans, at least to the way the bill is presently framed. Senator Obama's bill focuses on issues of access and, if the debate over HAVA a few years ago is any indication, Republicans are likely to be more interested in issues of "integrity" like combatting voter fraud. I'd also expect resistance from some election administrators, who are likely nervous about the possibility that their states will look bad.

Designing a fair and workable Democracy Index will also be a major undertaking. Still, it's a worthy enterprise, and I very much hope that some version of this bill is eventually enacted into law.

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Moritz College of Law The Ohio State University