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
Sunday, July 20
What Happens When Voters Don't "Match"?
One of the big under-the-radar issues this election season has to do with the state registration databases required by the Help American Vote Act of 2002. Before HAVA, registration lists were often compiled and administered at the local level. HAVA now requires a statewide registration database. Section 203 of HAVA (42 USC 15483) also requires that states "match" information in the database against motor vehicle and social security records, to verify accuracy.

The problem is that there are all sorts of reasons why voters' names might not match, despite the fact that they've provided accurate information on their registration form. That can include data entry errors, transposition of first and last names, and the use of middle names and nicknames. It's not very clear from HAVA how the matching should be done, or what should happen if the information in the registration database doesn't match motor vehicle and social security records. As the Brennan Center has documented, a too-stringent matching procedure could result in the exclusion of eligible voters. According to the Brennan Center, which has litigated this issue in the states of Washington and Florida, matching in some states has failed 20-30% of the time.

This issue flared up in Wisconsin this past week, as summarized in this report from the Milwaukee Journal-Sentinel. Before HAVA, most Wisconsin municipalities didn't even have voter registration. Wisconsin is one of several states that has had difficulty getting its statewide registration database up and running properly, as described in the report From Registration to Recounts that my Moritz colleagues and I published last year.

Last week, Wisconsin's Government Accountability Board (which oversees election administration) considered a rule that would have required voters to cast a provisional ballot, absent a "complete match" of their name, date of birth, and driver's license or other identifying number, unless they provided proof of residence before or on election day. Those provisional ballots would be counted only for voters who provided documentation of their name and addresses by 4 pm the next day. The Brennan Center and I wrote this letter opposing the proposed rule on the ground that it would likely increase the number of provisional ballots and result in some eligible voters not having their votes counted.

On Wednesday, Wisconsin's board backed off the proposed rule change, given the uncertainty of how many false non-matches there would be. Instead of requiring voters to cast provisional ballots if there's no match, the board decided to see how many voters are affected by non-matches in the system. In my view, this was a wise decision.

What's unclear is many other states are going to implement the sort of matching procedure that Wisconsin considered but decided against. States that do so are likely to have a lot of provisional ballots, some of which won't be counted. That will certainly increase the margin of litigation, and could make the difference in close races.
Friday, July 18
Injunction for Libertarian Party of Ohio and Barr
U.S. District Judge Edmund Sargus, Jr. has issued this order, requiring that the Ohio Secretary of State place on the general election ballot the names of various Libertarian Party candidates, including Bob Barr. The order is based upon the Sixth Circuit's 2006 decision in Libertarian Party of Ohio v. Blackwell, which declared Ohio's ballot access statutes unconstitutional -- and the Ohio legislature's subsequent failure to enact constitutional ballot access requirements.

The case raises an intriguing question regarding the authority of the state executive branch to make ballot access rules, given Article II, Section 1's requirement (discussed in the Bush v. Gore concurrence but not decided by the majority opinion) that "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors." Ohio's Secretary of State Jennifer Brunner issued a directive to fill in the gap left by the legislature. Relying on the Bush concurrence and McPherson v. Blacker(1892), which said that Article II "leaves it to the legislature exclusively" (emphasis added) to define the method of appointing electors, Judge Sargus concludes that the Constitution "provide[s] for no role on the part of the executive branch of state government as to the election of President ...." He comes to the same conclusion with regard the Article I, Section 4's requirement that the time, place and manner of holding congressional elections "be prescribed in each State by the Legislature thereof."

Judge Sargus acknowledges that there is a dearth of precedent on these questions. Could this be the case in which the Supreme Court issues some definitive guidance on the relative authority of the state legislative and executive branches to make rules for presidential and congressional elections? (I briefly discussed this issue at the end of my 2005 article Early Returns on Election Reform.) In my view, it would be far better for the Court to do so in a pre-election case like this one, than to wait for the issue to reemerge in a post-election case like Bush v. Gore.

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Moritz College of Law The Ohio State University