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Election Law @ Moritz

Free & Fair

Pennsylvania officials fear electoral flood tomorrow

Pennsylvania is appearing today as perhaps the state least prepared to handle the expected voter turnout tomorrow. The Philadelphia Inquirer is quoting the City Attorney as saying: "It's going to be, I think, extraordinarily crowded." This is on top of the mayor, as well as the governor, urging voters—when they can—to vote in the middle of the day, rather than in the morning or evening.

According to a separate report in the Pittsburgh Tribune-Review, an extra state judge has been assigned to handle anticipated litigation over long lines, and other polling places problems, that may arise there.

In light of this situation, one wonders whether the lawsuit that secured the use of emergency paper ballots in the event that 50% of machines become inoperable in a particular polling case will be invoked to permit the use of these paper ballots even if all the machines are operating. Pennsylvania lacks the "early voting" option that may work to ease the demand on the infrastructure elsewhere tomorrow.

Question: if a polling place has only 50% of the voting machines that it arguably should have to handle the level of anticipated turnout, is that the same for Fourteenth Amendment purposes under last week's ruling as a polling place that allocated the correct number of machines but 50% have become inoperable?

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

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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