Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Will the Expansion of Absentee Voting Yield an Increase in Abuse?

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March 28, 2006

Today is the first day of Ohio's new "no-fault" absentee voting. After the debacle of 2004, when many Ohioans stood in line at the polls for over two hours, the clamor arose for letting citizens vote from home, simply because it is more convenient to do so. The General Assembly heard the public's message loud and clear and, accordingly, last fall enacted a law that did away with the requirement of having to provide one of several specific reasons in order to receive an absentee ballot.

Let's hope that the reform works as intended, that it makes it easier to vote, thereby either increasing "turnout" (I guess we need to call it "participation rate" now) or at least reducing the time and burden for those who choose to exercise the democratic right and responsibility of casting a ballot.

Let's hope, too, that there are no adverse consequences associated with this greater convenience. In particular, we must hope that increased absentee voting does not cause increased voter fraud. And we certainly must hope that any increased fraud that might occur does not throw into doubt the results of more elections, with voters losing even more confidence in the legitimacy of their electoral system even as it becomes more convenient.

We can hope, but it would be naïve to expect that the consequences of this "reform" will be all positive.

The problem with absentee ballots is that they are not necessarily secret. Anyone can be "invited" to watch or assist a voter to fill one out, sitting at the kitchen table. In politics, with this possibility comes the temptation to exploit it for the benefit of one's campaign.

If anyone doubts this truth, one need only look at the record of reported cases that detail this form of abuse. Here's three, all taken from 2004. They are merely representative of countless more.

First, from Illinois, is Qualkinbush v. Skubisz. These two candidates were running for mayor of Calumet City. Skubisz received 24 votes more than Qualkinbush, 2542 to 2518, but it turned out that 38 absentee voters received improper assistance from one of Skubisz's campaign operatives, Michael Kaszak. As the court described the evidence, "Kaszak admitted taking absentee ballot applications to voters, helping fill them out, placing applications in envelopes, providing stamps to voters, and mailing applications." After providing this assistance at the application stage of the process,

"Kaszak then left his telephone number on a 'receipt' with the voters. When a voter called [after the absentee ballot arrived,] Kaszak returned to the voter's home."

Kaszak then provided a second, crucial form of assistance: "Kaszak admitted instructing voters on how to vote, punching ballots for voters, placing ballots in envelopes, filling out certifications, and mailing ballots." The court further found "that, even when Kaszak only provided instruction to a voter, he could nonetheless watch the voter and see for whom he or she had voted." This "oversight" from Kaszak intimidated some voters and, in any event, presented an unacceptable risk of "undue pressure."

Because of Kaszak's improper conduct, the court invalidated 38 absentee ballots, deducted them from Skubisz's total, and, with the consequence that Skubisz now had fewer votes than Qualkinbush, ordered that Qualkinbush be certified the winner and installed as mayor.

Next, moving eastward to Indiana, is Pabey v. Pastrick. These two candidates were running in the Democratic primary for mayor of East Chicago. Pastrick received 278 votes more than Pabey, 4,083 to 3,805, but there was evidence that Pastrick's supporters had engaged systematically in a scheme to influence absentee voters improperly. This scheme included "providing compensation and/or creating the expectation of compensation to induce voters to cast their ballot via the absentee process." In addition, "various Pastrick supporters [told those who had applied for absentee ballots] to contact that Pastrick supporter when the applicant received his or her absentee ballot." Once contacted, the Pastrick supporter went to the absentee voter's home and "though not authorized by law to do so, 'assist[ed]' the voter in completing the ballot."

This scheme to manipulate the absentee voting process was so deliberate and coordinated that the Indiana Supreme Court invalidated Pastrick's victory and ordered a new election, even though Pabey could not prove that there were over 278 absentee ballots that had been tainted in this way.

Finally, in Ohio itself, is State v. Jackson. In this case, John Jackson, a Republican member of the Cuyahoga County Board of Election, was indicted on charges of improperly filling out absentee ballots contrary to the wishes of the voters themselves. According to the indictment, Jackson went to a Cleveland nursing home to assist physically infirm residents. Although accompanied by a Democratic member of the elections board, Jackson allegedly was marking absentee ballots for George W. Bush, even though the voters wanted to vote for the Democratic presidential candidate. One resident, for example, wanted to vote a straight Democratic ticket, but her ballot was marked for Bush anyway.

Jackson tried to get the indictment dismissed on the ground that the ballots, to preserve their secrecy, could not be used as evidence against him. The Ohio Supreme Court unanimously rejected this argument, with the court's opinion observing that protecting ballot secrecy does not shield the wrongdoer from criminal prosecution. Quoting an early Louisiana decision that reached the same result, the Ohio justices said that because ballot secrecy is designed to thwart election fraud, to examine evidence of ballot tampering "for the purpose of punishing those who may have committed a fraud in the election, is not to go counter to that policy but strictly in line with it."

These three cases vividly demonstrate the problems that can occur with absentee voting.

Perhaps Ohio will be successful in avoiding more problems of this sort even as it expands significantly the use of absentee voting.

But if it turns out that there is an increased incidence of absentee ballot abuse, with the collateral consequence that more election results are challenged as invalid because of such abuse, it cannot be said that these problems were unexpected.