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Election Law @ Moritz

Election Law @ Moritz


Commentary

Imperfect Remedies for Election Problems

With polls in some states already closed or soon to close, it is fair to say that Election Day 2014 has gone off without many major polling place problems. In part, we can thank the fact that this is a "midterm" election, which lacks the substantially larger turnout of a presidential election that creates significant additional stress on polling place operations. That said, a number of small glitches still have occurred around the country throughout the day (not surprising, really, given the over a hundred thousand polling places throughout the country, staffed by volunteers). These problems have primarily included equipment malfunctions and incomplete polling place preparations, and though they have been fairly localized, they still have the potential to effect close races.

 

In response to these problems, courts in at least three states have in the last few hours ordered some polling places to remain open beyond their scheduled closing times. In Georgia, it is a 15-minute extension in one polling location. In Connecticut, it is a thirty-minute extension in two polling locations. In Illinois, it is a 60-minute extension in five polling places. While admirable in their attempt to remedy problems early in the day, these voting extensions ought to remind us of how imperfect our voting processes are.

 

We hold elections in order to allow each eligible citizen to have an equal voice in their government. We structure them with advance notice and various procedural requirements designed to provide for a smooth and fair administration of the election, intended to enfranchise all voters who wish to vote. But when a particular voter is prevented or dissuaded from voting because a polling place opens 15 minutes late, or because an unanticipated line develops when polling books are not ready for use, it presumably does little to assist that particular voter to offer additional minutes of voting time in the evening. (Voters in-line at the designated time for polling places to close already are allowed to stay and vote.)

 

Instead, it is by far preferable to allow voters experiencing a problem to cast a provisional ballot at the moment they are experiencing the problem. As my election law colleagues Ned Foley and Josh Douglas noted in a New York Times Op-Ed today, in any federal election, federal law requires poll workers to offer provisional ballots to any voter who wants to vote but is unable to vote a regular ballot. Meanwhile, a separate provision of federal law also now requires that any voter who votes as a result of a court order that extends the scheduled voting hours must also vote a provisional ballot.

 

A provisional ballot cast as a result of an extension is likely more vulnerable to being excluded from the count, if in a subsequent judicial contest a reviewing court determines the extension was unwarranted. A provisional ballot cast during regular voting hours because a poll book was not available, or regular ballots were in short supply, or lines to use regular equipment were too long, presumably will be counted once election officials can verify the voter's eligibility.

 

Thus, as the evening draws on and a few polling sites remain open beyond their scheduled close this evening, it bears noting the imperfection of this remedy. Although extending polling place hours may sometimes be a warranted response to Election Day problems, we are far better off, first, by doing all we can to prepare for Election Day, and second, by taking better advantage of provisional ballots.   

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

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