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.

Free & Fair

ID Disparities & Post-Voting Review of Provisional or Absentee Ballots

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October 25, 2006

Let’s assume, as is being alleged, that Ohio’s new voter ID is being enforced differently in different counties within the state, or even by different officials within the same county, as is also alleged. Specifically, the allegations include: (1) different interpretations of “current” utility bill, (2) different views on whether “other government document” encompasses local as well as state or federal documents, (3) different understandings of whether driver’s licenses without current addresses are sufficient; (4) different views on whether a second number appearing on Ohio driver’s licenses qualifies for an absentee ballot; and (4) different views on whether military IDs without addresses are acceptable.

Let’s assume also that each of these discrepancies would violate state law or the federal Equal Protection Clause if it differentially disenfranchised some, but not all, similarly situated citizens. In other words, suppose one citizen gets to participate in the election of Ohio’s Governor and U.S Senator because the new ID law is enforced one way when she votes, while another citizen does not get to participate in the election because the same law is enforced the opposite way in his situation (which is identical to hers—they each present the exact same type of ID—except for the particular locality or administrator who happens to act as gatekeeper to the franchise). It sounds like a Bush v. Gore problem, as my colleague Dan Tokaji, has already noted.

Even assuming all this, it does not follow automatically that the federal judiciary should block enforcement of the new voter ID law before November 7, or even order the Secretary of State’s office to issue clarifying instructions to all the state’s counties. The reason is that many (perhaps most) poll workers and other elections officials have already received their training regarding the ID rules to enforce for this year’s general election and any further instructions might cause only further discrepancies in the administration of these ID rules, rather than achieving the clarifying uniformity that would be their objective.

More important, it is not obvious that disparities in the administration of voter ID rules, even if they occur, will have a disenfranchising effect on those voters subject to the more burdensome enforcement of these rules. The consequence of being subjected to an excessive ID requirement is the obligation to cast a provisional ballot. To be sure, a voter who is forced to cast a provisional ballot who shouldn’t have been required to do so is subject to the unfortunate burden of having to supply additional ID afterwards in order to make sure that the ballot gets counted. But if voters in this situation take this extra step, they won’t be disenfranchised despite the imposition of the differentially extra ID obligation.

Even more significant, should it turn out that some provisional voters are unable to supply the extra ID after casting their provisional ballots, it is not inevitable that their provisional ballots will not be counted. As long as those provisional ballots are cast and preserved, then post-election litigation over the differential enforcement of the ID requirement can result in the counting of the provisional ballots if it is adjudicated that their votes were subjected to improperly excessive ID requirements. While, like others, I am no fan of post-election litigation over whether particular provisional ballots should be counted, in this particular circumstances I tentatively suggest that this form of litigation might be preferable to a pre-election injunction that attempts to change the ID rules that local officials and poll workers enforce. The real risk here is that such a pre-election order will only increase the number of provisional ballots to fight over after November 7.

The claim is also made that the current differential enforcement of the ID law has a particularly severe disenfranchising effect on absentee voters, who do not have the opportunity to cast a provisional ballot or to supplement their ID submission if what they initially provide is deemed insufficient. The argument here seems to be that these absentee voters have lost their one and only opportunity to cast a countable ballot if they are subjected to a wrongfully excessive ID requirement.

But this argument seems incorrect—or at least not obviously true. Absentee ballots, like provisional ballots, record the vote preferences of those who cast them. As long as they are preserved, their eligibility for counting can be considered, and litigated, after November 7. Any absentee ballots that were initially set aside as uncountable for failure to supply adequate ID can subsequently be moved to the countable pile if a court later determines that the way in which the ID law was applied to those absentee ballots was unlawful or unconstitutional.

Again, I don’t like the idea of losing candidates attempting to search the pile of disqualified absentee ballots in the hope of finding enough to change the outcome of the election. Nor do I like the idea of courts ruling on such efforts in the post-election environment, given the inevitable suspicion that judges cannot avoid their own partisan preferences in these situations.

Nonetheless, we are already in the midst of the absentee/early voting process in Ohio, and thus any judicial order before November 7 concerning the enforcement of the ID law with respect to absentee voting will inevitably have an unequal effect: inapplicable to those absentee ballots cast before the order, applicable to those cast afterwards. This kind of inequality caused by the timing of election-related judicial relief is also reminiscent of Bush v. Gore.

Thus, perhaps the most important form of judicial relief that could issue before November 7 is an order reminding state and local officials of their legal obligation to preserve all ballots, including absentee and provisional ballots that are initially ruled ineligible for counting because of some registration or ID deficiency.

The above remarks are more tentative than I would wish them to be. But Purcell v. Gonzales and the commentary surrounding it has caused me, like others, to rethink the relationship of pre-election and post-election judicial intervention. As I examine the details of the allegations concerning differential enforcement of Ohio’s new ID law, which were brought before a federal court only yesterday, I am not at all sure that judicial intervention over the next thirteen days is preferable to judicial intervention afterwards—except to emphasis the need to let all voters, whether absentee or in-person, record their preferences on a ballot that can be evaluated for eligibility subsequently.

Perhaps, however, how the federal judiciary handles this pre-election litigation over the next several days will force me, and others, to rethink these matters even further.