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

Electoral Laments in Major and Minor Keys

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May 9, 2006

So many things can-and do-go wrong with the administration of elections that it is important to distinguish the serious problems from the relatively minor inconveniences.

Last week's primary elections in Ohio illustrate this point. The headline grabber was the week-long delay in announcing results in Cuyahoga County because machines purchased to read absentee ballots were unable to do so. It became necessary to count 15,000 absentee ballots by hand. (Just think if more Cleveland voters had really utilized their new ability to cast "no excuse" absentee ballots. Less than ten percent of the vote in this primary was by absentee ballots, but it might have been much higher.) The consequence was a colossal embarrassment for the county's Board of Elections and a huge frustration for the campaigns and members of the public waiting eagerly to know the results.

But so far there has been no allegation that this unfortunate and annoying delay has compromised the integrity of any of the Cuyahoga County elections. Accordingly, the problem should be classified as relatively minor.

To be sure, hand counting 15,000 ballots is likely to be significantly less accurate than counting these same ballots by machine-when, that is, the machines work properly. In this respect, the problem could convert from being merely inconvenient to jeopardizing the integrity of the results, a consequence of an entirely different order of magnitude. But right now we can laugh at, rather than weep over, the ineptitude that this malfunction revealed.

More serious of the mishaps in Cuyahoga County was the failure of twenty percent of polling places to open on time, and at least one to miss the entire morning before opening in the afternoon. Delays of this kind disenfranchise voters who, because of work and/or family schedules, are unable to return later in afternoon or evening. If these delays fall disproportionately on voters with particular demographic profiles-urban rather than suburban, lower-income rather than higher-income-as they are likely to do, then this disenfranchisement risks the serious structural defect of causing the less popular candidate to prevail. In other words, this disenfranchisement, in addition to being a violation of the voter's individual right, results in the undemocratic denial of majority rule.

Worse still was the loss of 70 memory cards that recorded the vote tallies from 200, or 14 percent, of the county's 1435 precincts. The misplacement of these memory cards, even if temporary, is a break in the "chain of custody," which would enable tampering with the results of the election. As of this morning, according to the Plain Dealer, as many as a dozen of these memory cards are still missing. What is perhaps even more remarkable, a full week after election day, the Board of Elections does not know how many of these memory cards remain unaccounted for: apparently, it may be as few as seven.

Maybe this time the loss of these vote tallies was only the result of gross negligence, but at some point incompetence slides into nefariousness, as when in 2004 several Cuyahoga County election officials allegedly decided to disregard the requirement that selection of sample precincts for an initial recount be random. This decision may have been motivated by a desire to save money or to avoid the time-consuming burden of a full recount of all the county's precincts. Even so, taking matters into their own hands in this way reflects an astounding failure of senior election officials to appreciate the reason for the requirement that the sampling be random: to avoid the recount being rigged.

It is understandable-and forgivable-that election officials will make mistakes. They are only human. And not all electoral mistakes threaten the integrity of the election itself.

But malfeasance is a very different problem than mere mistakes, and there arguably has been malfeasance in the administration of elections in Cuyahoga County, including this past week's lapses in the chain of custody over memory cards and the inability still to find at least seven, and up to twelve, of them. Malfeasance on the part of election officials, by its very nature, undermines confidence in the legitimacy of the elections: the system is inherently untrustworthy.

Primary '06 revealed, or perhaps confirmed, a "people problem" in the administration of elections in Cuyahoga County. Machines may have failed, but the fundamental structural defect was that election officials could not be trusted to do even the simple things they were supposed to do, like keep track of the ballots to be counted. Unless and until the leadership of the county's electoral system can instill among its officials a culture of responsibility, doubts will remain about the ability of the county to conduct elections that satisfy the basic standard of democratic legitimacy.


The Imperative of Redistricting Reform

Not all structural defects in the operation of democracy in Ohio concern the counting of votes. There is also the travesty that the geographic lines for determining the boundaries of legislative districts are drawn by one political party in order to maximize its ability to secure an unfair advantage over the opposing party. Democrats have done this when they have controlled the decennial redistricting process, as have Republicans most recently.

Now the Republicans have put forward a plan that would take this redistricting process away from the party in power and put it in the hands of an independent nonpartisan commission. Whether motivated by the fear that Democrats will be in control in 2011, or instead by a genuine desire to do what is right on behalf of Ohio's electorate, it does not matter. The plan is a good one, it deserves to be adopted, and if Democrats block it because they smell Republican blood in this fall's all-important elections, then these Ohio Democrats deserve every condemnation leveled against them.

The plan calls for the creation of a seven-member board, two members from each major party and the three remaining chosen by the unanimous agreement of these four. This composition ensures that the board will benefit from the "street smarts" of its partisan members, yet at the same time the balance of power will be held by a triumvirate of leading public figures who must be acceptable to both sides. (In casual conversation, I've suggested Dean Nancy Rogers of our own Moritz College of Law as an example of this sort of "esteemed neutral" who would win bipartisan support for appointment to this board.)

The plan also requires that this commission follow specified and public-spirited districting criteria, so that boundary lines are not manipulated to secure partisan advantage. News reports of the plan describe these criteria as giving equal weight to "competitiveness" as a factor along with traditional districting criteria like compactness and preservation of existing political boundaries (counties, municipalities, and so forth). But, by my reading of the plan, it permits consideration of competitiveness only after satisfaction of compactness and respect for political boundaries, and this feature is a salutary element.

The main problem with the redistricting proposal on the ballot in Ohio last November, as a result of the petition drive led by the group Reform Ohio Now, was that it elevated competitiveness as a priority above these other traditional districting criteria. The new plan sponsored by Rep. Kevin DeWine and other Republicans in the General Assembly appropriately considers competitiveness as a positive factor but only, in effect, as a tie-breaker among maps that score equally well in terms of compactness and preservation of political boundaries. This appropriate order of priorities will result in maps that make sense in terms of the localities being represented in the legislature. To the extent that the populaces of particular localities are closely divided between the two major political parties, the elections there will become more vigorously contested. Overall, democracy will be healthier, the structure of legislative representation more reflective of the people.

Adoption of this plan should be a no-brainer. It fixes a serious flaw in the current design of Ohio's democracy. To the extent that this plan meets resistance, it is because of the contemptible willingness of partisan politicians to sacrifice the public good for their short-term selfish advantage.

On this issue, if no other, now is the time for Ohio's politicians to rise above party interests and to exercise statesmanship and leadership for the benefit of the people as a whole. If they cannot do that here, then democracy in this state is seriously diseased-its maladies extend beyond an inability to count ballots properly to encompass an inability to give voters a meaningful choice of which legislative representatives to elect.