I Experienced Poll Worker Error [Updated]


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on November 4, 2014, 8:15 am

I voted this morning at my neighborhood polling place.  No line, small but steady flow of voters.  In other words, routine conditions for poll workers.

In the space of my brief visit, my own interaction with the poll workers produced two errors on their part.  I write this not to disparage them.  In fact, afterwards, I praised both for doing their civic duty.  Their mistakes were entirely innocent and human, and show just how vulernable the voting process is to routine good-faith human error.

The first mistake occurred at the check-in table where a youthful poll worker asked me to sign the poll book.  (He was participating in Youth at the Booth, or something like that moniker, and that's a wonderful way to get teens involved with democracy.)  He pointed to the line for me to sign in the poll book.  Except it wasn't the line next to my name and the photocopy of my signature.  Instead, it accidently was the line below.  If I had signed that line, I would have created a serious problem if that eligible voter later today had showed up to cast a ballot.  In fact, something like this problem may be what happened during early voting in New Mexico.

This particular error could have been worse, if I had wished to take advantage of it.  I happen to know that the line right below mine in the pollbook was my adult son, who is away in college and wouldn't be voting at the polls today.  (I'm not sure he even cast an absentee ballot, but that's another matter.)  I could have tried to forge his signature on the line the poll worker told me to sign, and then this evening before the polls close come back and vote in my own name.  A risky move perhaps, if the same poll worker was doing the check-in at the same table.  And of course it would have been just one vote.  For what it's worth, I didn't even think of the possibility in the moment, only after I was driving to work.  What can say, I don't have a quick enough mind for voter fraud?  And of course a stricter voter ID law wouldn't have made a difference: I presented my valid photo driver's license, and still was given the opportunity to sign someone else's name.  I'm not saying such mistakes have the capacity to swing an election, but a mistake it was, creating a potential vulnerability.

The second mistake was arguably worse, presenting the risk of disenfranchising the voter (in this case, me).  A new poll worker took the "eligible to vote" slip I received at the check-in table after signing my own name (having pointed out the first mistake to the youngster who was very apologetic).  The new poll worker took me to a DRE touchscreen machine, which she activated.  The first screen to appear showed three or four precincts--all the ones that were voting in the same polliing location (a synagogue).  The poll worker accidently pressed the icon for the wrong precinct.  I happened to catch it, because I know my precinct.  But if I hadn't, I would have been forced to vote a provisional ballot.  Ohio law invalidates wrong-precinct provisional ballots, and it used to apply this rule even in the case of mult-precinct polling locations, like where I was.  The federal court of appeals for the Sixth Circuit in 2012 held that in this context, such invalidation caused by poll worker error would be unconstitutional.  Presumably, compliance with that new rule would have protected my own ballot this year (except for any particular precinct-level matter, like a local liquor rule).  But what if similar innocent mistakes affect voters in states not governed by the Sixth Circuit?

The particular poll worker was not elderly.  She did not make a mistake reading addresses, thereby "assigning" me to the wrong precinct.  Her mistake was just a slip of a finger.  Do we ever want an innocent slip of a poll worker's finger to cause the disenfranchisement of an otherwise eligible voter, who has turned out at the polls to participate in the great exercise of popular sovereignty in a democracy?

 

UPDATE: An astute reader alerted me that, in describing the second poll worker error that I encountered, I made a mistake of my own.  As a consequence of the poll worker tapping the touchscreen icon for the wrong precinct, I would not have been required to cast a provisional ballot.  Instead, I would have cast a "wrong precinct" regular ballot.  It would have counted without detection, in which case I would have been permitted to vote on precinct-specific matters for which I might have been ineligible (like the aforementioned local liquor rule), as well as deprived of any precinct-specific matters for my own precinct.  

The fact that a poll worker would have inadvertently let me vote a regular wrong-precinct ballot in this way underscores the question why a voter should ever be disenfranchised by a similar wrong-precinct poll worker error.  One wrong-precinct ballot would count when caused by a slip of the poll worker's finger at a touchscreen machine, as I experienced, while another wrong-precinct ballot would not count under state law if the poll worker error was misreading the voter's address (more like the first error I experienced).  If both ballots have the exact same wrong-precinct flaw, should they not receive the same treatment under Equal Protection (which, again, is what the Sixth Circuit requires, and hopefully will become a uniform national standard).

 

---

Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

Back to top

To Commentary

Back to Election Law


Disclaimer

Election Law at Moritz is nonpartisan and does not endorse, support, or oppose any candidate, campaign, or party. Opinions expressed by individuals associated with Election Law at Moritz, either on this web site or in connection with conferences or other activities undertaken by the program, represent solely the views of the individuals offering the opinions and not the program itself. Election Law at Moritz institutionally does not represent any clients or participate in any litigation. Individuals affiliated with the program may in their own personal capacity participate in campaign or election activity, or engage in pro bono representation of clients other than partisan candidates or organizations.