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
Thursday, April 26
Voter Fraud and the EAC
The last few weeks have seen some very important developments in the ongoing debate over voter fraud. Just today, there's news that exacerbates concern about the role of the federal government in suppressing important information on this debate.

The most recent flurry of attention began with New York Times stories earlier this month, available here and here. The first story concerned actions of the Election Assistance Commission (EAC), which significantly "revised" a report on voter fraud and intimidation prepared by two election experts, one from either side of the political spectrum (more on this below). The original expert report found widespread but not unanimous agreement that there's little voting fraud; the EAC's revised version made it appear that there's greater doubt over the prevalence of fraud.* The second report concerned the meager results of the Bush Justice Department's crackdown on voter fraud in the past few years, something that suggests that claims of voter fraud made by Karl Rove and others (see this video) are considerably overblown. McClatchy News had this report last week, which thoroughly examines the Justice Department's voter fraud initiatives, and its connection to the debate over voter ID.

The most recent news is this statement from Tova Wang of The Century Foundation, one of the co-authors of the EAC-commissioned report on voter fraud. Ms. Wang's statement calls for "an end to the censorship" by the EAC. It's worth quoting in full:
Over the last few weeks, there has been a developing controversy in the press and in the Congress over a report on voter fraud and voter intimidation I co-authored for the Election Assistance Commission ("EAC"). It has been my desire to participate in this discussion and share my experience as a researcher, expert and co-author of the report. Unfortunately, the EAC has barred me from speaking. Early last week, through my attorney, I sent a letter to the Commission requesting that they release me from this gag order. Despite repeated follow-up, the EAC has failed to respond to this simple request. In the meantime, not only can I not speak to the press or public -- it is unclear under the terms of my contract with the EAC whether I can even answer questions from members of Congress.

My co-author and I submitted our report in July 2006; the EAC finally released its version of the report in December 2006. As numerous press reports indicate, the conclusions that we found in our research and included in our report were revised by the EAC, without explanation or discussion with me, my co-author or the general public. From the beginning of the project to this moment, my co-author and I have been bound in our contracts with the EAC to silence regarding our work, subject to law suits and civil liability if we violate the EAC-imposed gag order. Moreover, from July to December, no member of the EAC Commission or staff contacted me or my co-author to raise any concerns about the substance of our research. Indeed, after I learned that the EAC was revising our report before its public release, I contacted the EAC, and they refused to discuss with me the revisions, or the reasons such revisions were necessary.

Stifling discussion and debate over this report and the critical issues it addresses is contrary to the mission and goals of the EAC and to the goal of ensuring honest and fair elections in this country. Commissioner Hillman stated in her defense of the EAC's actions that the EAC seeks to "ensure improvements in the administration of federal elections so that all eligible voters will be able to vote and have that vote recorded and counted accurately." I share this aspiration. But I believe that the best way to achieve that end is not by suppressing or stifling debate and discussion, but by engaging in a thoughtful process of research and dialogue that ultimately arrives at the truth about the problems our voting system currently confronts.
Ms. Wang's statement raises profound concerns about the role of the EAC and, more broadly, the federal government when it comes to hot-button issues like voter fraud. The EAC is supposed to serve as a sort of clearinghouse for research on important election administration issues. It is structured as a bipartisan agency, with two Republicans and two Democrats, but requires a majority to take any action -- including, it would seem, the release of research it's commissioned. I've previously expressed concern, here and here, about the EAC's two newest commissioners. My worry was that, instead of working to promote a better-functioning election system, they'd see their role as promoting the interests of their party. The latest developments magnify these concerns.

All of this raises major questions about the role of the federal government when it comes to election administration. I must confess that I started out as someone with high hopes for the EAC, believing that it could serve a useful role in promoting better election administration. And I still believe that some of the things that the EAC has done some good things in its first few years, including its 2004 Election Day Survey and its opinion letter last year on Arizona's registration requirements. The latest developments cannot help but make one wonder, however, whether the EAC as presently structured can serve its intended function adequately.

At the same time, leaving election administration to the states isn't a very palatable option. We've seen serious questions about partisan manipulation of elections by elected secretaries of state in the last two presidential election cycles. State efforts to impose new barriers to participation -- most notably the stringent ID requirements enacted in Georgia, Indiana, Missouri, and Arizona -- also raise serious doubts about whether election administration can be left to the states. As Rick Hasen suggests here, this is an area where the courts should step in to protect voters' rights, though I'm not particularly sanguine about the prospects for salutary intervention by the Supreme Court in this area for reasons explained here.

In sum, the voter fraud debate highlights serious problem of institutional responsibility over election administration. It concerns not only what role the federal, state, and local governments should play in administering elections, but also the proper divisions of authority among branches at each level. It's a tough problem, one that I don't presently have an answer to.

* Disclosure: I was part of a research team, led by the Eagleton Institute of Rutgers University, that prepared separate reports for the EAC on provisional voting and voter ID.
Thursday, April 5
Four on Bush v. Gore
The applicability of the Equal Protection Clause to matters of election administration is receiving renewed scholarly attention. My colleague Ned Foley has posted this paper, entitled "The Future of Bush v. Gore." Prof. Foley develops a taxonomy of post-Bush equal protection claims, and considers the prospects for future intervention by the Court. Dan Lowenstein responds to Prof. Foley's paper in this paper, entitled "The Meaning of Bush v. Gore." Rick Hasen has just posted this draft, entitled "The Untimely Death of Bush v. Gore." Prof. Hasen argues that the promise of Bush v. Gore and the election reforms that followed remains unrealized, due to failings on the part of the courts as well as legislative and administrative actors.

Finally, I've got a draft paper entitled "Leave It to the Lower Courts: On Judicial Intervention in Election Administration," which is to be published in the same Ohio State Law Journal symposium issue of which Profs. Foley's and Lowenstein's papers will be part. I take a somewhat rosier view than Prof. Hasen of the lower court litigation that followed Bush v. Gore, arguing that it has a salutary impact on election administration. At the same time I'm very wary of Supreme Court intervention, particularly given its intervention in Purcell v. Arizona, the Arizona voter ID case of which I, like Prof. Hasen, am critical.

The applicability of the Equal Protection Clause to matters of election administration is almost certain to remain a focus of attention between now and the 2008 election. Just today, the Seventh Circuit issued this order denying rehearing in Crawford v. Marion County Board of Elections, in which a divided court had upheld Indiana's voter identification law. Four Seventh Circuit judges joined a dissent from the full court's decision not to rehear the case en banc. Judge Posner's opinion for the panel majority is an unimpressive piece of work, as I discuss in my paper (at pages 28-29). Still, I hope that this case won't wind up before the Supreme Court, as I'm concerned that this could do greater damage to the equal protection law in this area.

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Moritz College of Law The Ohio State University