By Terri L. Enns

On Monday, March 19, 2007, those who pay attention to such things were startled by the news that on the previous evening, Ohio’s new Secretary of State Jennifer Brunner had placed a call to each of the four members of the bipartisan Cuyahoga County Board of Elections asking them to resign by the end of the day Wednesday. The Secretary stated that her actions were necessary to restore voter confidence and to improve elections in the county, which has been plagued by a series of problems (several studies are linked here) during the past several elections. On Thursday afternoon, March 22, following the resignations of the two Democrats on the Board, the Secretary filed a complaint against the remaining two members, who are Republicans. A hearing is scheduled for Monday, April 2, at 9:00 am in Cuyahoga County and will be presided over by William Owen, First Assistant Prosecuting Attorney in Delaware County, on the Secretary’s behalf.

The Ohio Revised Code gives the Secretary of State considerable power over county boards of elections. The Secretary, in consultation with local party committees, appoints the members of each board, made up of two Republicans and two Democrats who each serve four year terms. ORC 3501.06. The Secretary of State “shall appoint” any qualified elector recommended by the nominee’s county executive committee unless the Secretary “has reason to believe that the elector would not be a competent member of such board.” ORC 3501.07. The Revised Code additionally permits the Secretary of State to “summarily remove or suspend any member of a board of elections … for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any willful violation of Title XXXV of the Revised Code [Elections], or for any other good and sufficient cause.” ORC 3501.16.

The Complaint lays out five main charges, the first four of which are labeled “Misfeasance and Nonfeasance,” and the last labeled as “Good and Sufficient Cause for Removal”:

Count 1: “Failure to Adopt Adequate Procedures for Election Recounts Resulting in the Felony Convictions of Two Board Members” (who were convicted and sentenced for negligent misconduct and failure to perform their duties related to a recount in the 2004 presidential election);

Count 2: “Failure to Manage Competently the Board’s Financial Affairs” (including underestimating financial needs and failing to properly administer some federal Help America Vote Act funds);

Count 3: “Failure to Ensure the Efficient Administration of Elections in 2004, 2005 and 2006” (including issues with ballot security and storage, poll book reconciliation, proof reading of ballots, poll worker assignment and training, and registration list management);

Count 4: “Failure to Ensure An Acceptable Level of Performance of Voting Equipment” (including failure to adequately test optical scan machines, which resulted in an expensive hand count of absentee ballots that delayed reporting of results in the May 2006 primary);

Count 5: “Administration of Elections in Cuyahoga County Has Resulted in a Lack of Public Confidence in the Integrity of the Election Process in Cuyahoga County.”

The charges contained in the complaint raise questions about who is best placed to oversee the functioning of those various layers that constitute Ohio’s election administration system. Each county board of elections is to “[m]ake and issue rules and instructions, not inconsistent with law or the rules, directives or advisories issued by the secretary of state, as it considers necessary for the guidance of election officers and voters; …” ORC 3501.11.

The “laws” with which the boards of elections’ rules must comply include constitutional, statutory, and case-made law at the federal and state levels, rules found in the Ohio Administrative Code, and Ohio Attorney General opinions. Additionally, the Secretary of State issues “directives and advisories to members of the boards as to the proper methods of conducting elections; [and p]repare[s] rules and instructions for the conduct of elections;” as well as provides the boards indexed copies of elections laws. ORC 3501.05. The boards of elections must then convey all of those rules and instructions to precinct level officers, who then guide individual poll workers as to the proper application of all of these layered requirements.

The burden for officials at each of these levels is to provide maximum clarity balanced with the proper amount of discretion left to local actors. Too much discretion leaves the state open to Bush v. Gore-type challenges based on disparate standards resulting in differing treatment of voters. Too little discretion risks election outcomes that may not reflect voter intent.

Clarity requires delineation of the entity responsible for oversight of the management of each step, and delineation not only of the consequences for failure to follow the rules, but also for failure to properly exercise those oversight roles. When the law is clear and a board of elections fails to follow it, certainly the blame is properly placed at the board’s feet. However, when the law is unclear or is in flux, as was the case in the final hours of the 2004 presidential election regarding challengers and their access to voters, or regarding identification requirements leading up to the 2006 elections, who should be held responsible? And more importantly, which entity has the authority to impose the required clarity? Lawmakers? The courts? The Secretary of State? Precinct officials?

When assessing the adequacy of Ohio’s current system, it may be useful to look at the complaint levied against the two remaining members of the Cuyahoga County Board of Elections and ask whether any of these charges could be levied against members of other local boards. A “yes” answer does not take away from the seriousness of the situation in Cuyahoga County, but rather should lead stakeholders at all levels to take stock of what changes need to be made on a systemic basis before the critical presidential election period of 2008. There is still time.

By Daniel P. Tokaji

The 2008 election season is already upon us. Each day’s news contains more stories about the candidates’ attempts to raise money and woo voters. In addition, bills have been introduced in Congress dealing with such diverse matters as voter intimidation, electronic voting security, and a democracy index to measure the health of state election systems.

If significant changes are to be made in time for next year’s election, it’s vital that implementation start soon. Among the most important reforms to consider is in-person early voting.

As we look forward to next year’s election, the prospect of long lines at polling places is one of the most serious issues that should be considered. Long lines may discourage or even prevent some voters from participating. These lines are especially worrisome if they are concentrated in certain areas — such as major urban centers, rural counties, or near college campuses — since that presents a greater likelihood of skewing the electorate than would be the case if such problems were distributed statewide.

Ohio was among the states that had extremely long lines, in some but not all parts of the state, in the 2004 presidential election. Because Ohio is very likely to again be a battleground state in 2008, it’s worth paying special attention to its experience. Franklin County, where Columbus is located, had exceptionally long lines at some precincts. In Columbus, some voters reported waiting four to five hours. Another county that had problems was Knox County, home to Kenyon College, where some voters waited until the wee hours of the morning to cast their votes. This led a federal district court in Columbus to issue a temporary restraining order on election day, requiring that polls in these counties be kept open for voters waiting in line and that they be provided with some alternative way of voting.

Election-day court orders are sometimes necessary But the reality is that, by that time, it’s usually too late to do much about long lines. Some voters will be discouraged from coming out if lines are too long, while others will have other obligations that prevent them from waiting for hours. It would be far better to think now about what can be done to take pressure off of our polling places on election day.

Unfortunately, there are reasons to be concerned that the problem of long lines may actually get worse. There were reports of long lines in some places, including Cuyahoga and Miami Counties in Ohio, in the 2006 mid-term elections. Though it’s hard to know for sure, it appears very likely that turnout will again be high next year, at least in battleground states. Two other changes that have occurred in the last two years are also likely to increase pressure on the polls.

One change is the enactment in several states of laws requiring voters to identify themselves at the polls on election day. Although the Help America Vote Act of 2002 (HAVA) contained a voter ID requirement that took effect in 2004, this requirement applied only to a limited subset of voters, namely first-time voters who’d registered by mail. Since then, several states — including Florida and Ohio — have made changes to their laws to impose new identification requirements for all voters. It’s possible that these changes could create or exacerbate bottlenecks. Some of these requirements, particularly those in Ohio, are very confusing. And in Florida, voters who don’t have photo ID are obligated to cast provisional ballots. All of this can be expected to slow things down at the point voters check in.

The other major change that can be expected to have an effect in 2008 is the implementation of new voting technology. Although HAVA required states receiving federal funds to have new equipment in place by 2006, some of those voting next year will be using that equipment for the first time.

More importantly, it’s not clear counties purchased enough voting machines to accommodate all those who will be voting on election day. The fact that a polling place had enough voting machines in last year’s election doesn’t mean that there will be enough for next year’s election, given that turnout will probably be higher. One solution to this problem, of course, would be to buy new machines. This may not be a practical solution, however, given the expense involved and the limited time available to get new equipment in place. And just yesterday, the AP reported that the voting system in Cuyahoga County, Ohio’s most populous, is probably inadequate to handle the increased turnout expected next year.

It’s therefore essential to think carefully about what can be done to relieve pressure on polling places on November 4, 2008. One possibility is to expand opportunities to cast absentee ballots before election day. Most states now allow no-excuse absentee voting, in which anyone can cast an absentee ballot by mail, regardless of whether they have a reason for not going to the polls on election day.

There are, however, some serious concerns surrounding expanded mail voting. Foremost among these is the possibility of fraud and coercion, which is generally easier to accomplish with mail ballots than in-person voting. In fact, most of the evidence of modern-day voter fraud — anecdotal though it is — concerns absentee voting. There’s also the possibility that voters will be pressured by family members or caregivers to vote a particular way, especially in institutional settings. Mail ballots are also inaccessible to a significant number of disabled voters, including people with visual and manual dexterity impairments.

In addition, there are many ways in which voters can make mistakes in the absentee voter process, which result in their votes not being counted. One is by failing to comply with the application requirements for absentee voting, which are very complicated in some states. Here again, Ohio is an example, by virtue of it’s intricate rules regarding voter ID, which caused serious problems for some absentee voters in 2006. Even if they succeed in applying for an absentee ballot, voters can make mistakes in casting and returning it. Without the benefit of “notice” technology available at polling places, voters may mistakenly cast overvotes or undervotes. In addition, they may make mistakes in returning their ballot — like failing to include proper postage or required identification — that can result in their votes not being counted. The fact that voters don’t have an election official or poll worker to assist them may increase the risk of mistakes.

In-person early voting eliminates some of the inherent problems with mail voting. Typically, early voting takes place at a central location, such as a board of elections office or a local public library. Voters can appear at that location several days before the election in order to cast their votes. Unlike mail voting, election officials are available to assist voters who need help, either in complying with ID requirements or in understanding how to use the voting machine. In fact, local election authorities may be in a position to provide better assistance than is possible on election day, by having more knowledgeable paid staff rather than volunteer poll workers available for early voting. Voters also have the advantage of new technology that is accessible to people with disabilities, and provides all voters with notice and the opportunity to correct errors before they vote.

For all these reasons, in-person early voting is preferable to mail-in absentee voting, as a means by which to relieve election day pressure on the polls. This reform is included as part of the proposed Count Every Vote Act, section 352 of which would require that people be allowed to vote within the 15-day period before the election “in the same manner as voting is allowed on the date of such election.” However, this bill also includes some provisions that are likely to prove controversial, such as felon re-enfranchisement, no-excuse absentee voting, and contemporaneous paper record requirements.

Accordingly, supporters of in-person early voting should consider breaking off the early voting requirement as a separate, stand-alone bill. This is a reform that should be appealing to those across the political spectrum, since it has the potential to expand access without imperiling the integrity of our electoral system.