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Election Law @ Moritz

Election Law @ Moritz


Commentary

More on Connecticut Registration List Issues [Updated]

Many reports have been coming in about voting difficulties this morning in Connecticut, including both ballot shortages at some polling places, and a complete lack of the list of registered voters at others. Although we are still short on complete facts about these problems, it's not too early to worry about their potential impact on a close race. The gubernatorial contest is the most closely watched, and has the potential to be a nail-biter.

 

The spokesperson for the Connecticut Secretary of State is reported to have said, quite aptly: "I don't know how many polling places were affected. [Having the voter lists ready] really, really must be done before the election.... This is Election 101." He then also said: "Once we get this situation under control, our next goal after election day is to investigate what happened and hold accountable those who are responsible."

 

Unfortunately, that skips over the fact that in the event the problems affected more voters than the apparent margin of victory in a race that is too close to call, these morning difficulties could have an immediate impact on the way in which the race plays out. By midmorning, many were contemplating the possibility of extending voting hours this evening to accommodate voters who abandoned their efforts to vote this morning because of long delays triggered by the absent poll books. [Update: by midday, the Democratic Party had filed suit  to extend voting hours.] If hours are extended, federal law will require that voters casting their ballots in the extended period cast a provisional ballot, to permit courts to sort out after the fact whether the extended hours were appropriate, and whether to count the votes cast during that time. 

 

Meanwhile, voters who, in lieu of signing the poll book, instead signed blank sheets of paper this morning to obtain a ballot, will be scrutinized to determine if they in fact were eligible to vote. Though discrepancies here are not likely to be many, they will pose a much more difficult problem if the voters in question were given regular ballots rather than provisional ballots. If so, these ballots given to these voters this morning will already have been counted, and will not be easily subtractable from the tallies. (The reporting so far has not been specific on this point, but certainly suggests that these voters were allowed to vote regular ballots. Provisional ballots also should have been readily available and offered to any voter for whom a regular ballot was not available or for whom other problems impeded their ability to vote, as Ned Foley and Josh Douglas pointed out in a NYTimes Op Ed today. None of the Connecticut reporting so far has indicated that provisionals were deployed in this way as a remedy for the morning problems.)

 

These are just a few quick reactions to the preliminary reports of the Connecticut difficulties. At the end of day (literally and figuratively), it may be that the problems are of insufficient magnitude to affect the outcome of any of the races on today's ballot. In that case, the spokesperson is right that there will be time enough to determine responsibility and take steps to prevent this in the future. But that hope ignores the possibility, slim but real, that problems like these can make determining the outcomes a mess.

Steven F. Huefner has wide-ranging election law experience and interests, including the specific areas of contested elections, term limits in state legislative elections, military and overseas voting, legislative redistricting, and poll worker responsibility and training. Prior to joining the faculty at Moritz, Professor Huefner spent five years in the U.S. Senate's Office of Legal Counsel, where his responsibilities included advising the U.S. Senate in matters of contested Senate elections, as well as assisting in the 1999 presidential impeachment trial. View Complete Profile

Commentary

Edward B. Foley

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A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.

 

"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 


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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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