By Steven F. Huefner, Daniel P. Tokaji, and Edward B. Foley
New Hampshire’s decision last week finally setting January 8, 2008, as the date for its presidential primary means that the country is barely a month away from the opening of the 2008 election season. With absentee voting to begin in just a few weeks, this is the perfect time to ask how well our election systems will withstand the pressures they will face in 2008.
For the past year and a half, Election Law @ Moritz has conducted a comprehensive study of the election systems of five key Midwestern states: Ohio, Michigan, Wisconsin, Minnesota, and Illinois. The results of this study, From Registration to Recounts, will be released in both hard copy and electronic formats on December 4, one week from today. The results provide both some encouraging signs and some persistent reasons for concern.
Among the positive features we discovered, perhaps most significant is the dedication to public service of the thousands of state and local election officials in these states. We had the opportunity to meet with a number of these officials in each of the states in our study, and were impressed with their professionalism and commitment. But they need our help.
All five states, like the rest of the nation, struggle with how best to register voters as a voting prerequisite. Minnesota and Wisconsin both have Election Day Registration, which works very well for them. Election Day Registration has repeatedly been found to increase voter turnout. Another important (though less commonly recognized) advantage is that it reduces reliance on provisional ballots, which have proven problematic in states like Ohio. Our study found no evidence that Election Day Registration increases fraud, the most common argument made against it.
For states that may be reluctant to emulate Minnesota and Wisconsin in their adoption of EDR, we identified some other innovative practices, with some of the same benefits. One of them is Michigan’s option of letting voters who claim to have registered to vote, but whose names nonetheless are not on the voter list, cast a type of provisional ballot. This ballot is commonly known as an “affidavit ballot” because the voters first sign an affidavit affirming that they attempted to register. These voters then complete a new registration application and cast a ballot that is marked with an identifying number, then counted with the regular ballots. This ballot is presumptively valid unless a post-election challenge is successfully brought in court to contest its validity.
A variation on this theme would be a system of “provisional Election Day Registration,” in which any voter who is not registered on Election Day would be allowed to cast a provisional ballot after completing a registration application. The provisional ballot would be counted once the voter’s registration application is reviewed and approved post-election. “Provisional EDR” would entail the disadvantages of HAVA-mandated provisional voting, which include inconsistent administration among localities and inevitable delays in certifying election results, but would embrace one important benefit of EDR as currently practiced in those states that have it: eligible citizens who make an effort to participate in democracy by going to the polls on Election Day would not be precluded from casting a valid ballot because they missed a previous registration deadline.
Another innovative practice was the approach that DuPage County, Illinois, took to determining which voters must cast a provisional ballot. Rather than leaving poll workers to sort through a complicated paper flow chart of contingencies and options, the county has developed an electronic flow chart of sorts. This tool guides the poll workers at each step, constraining the poll worker’s choices and prompting them to ask the appropriate questions, dramatically reducing the chances of error in processing voters.
Nevertheless, serious problems remain. Among the concerns we identified were: poll workers who were unaware of or unable to enforce regulations; partisan chief election officers issuing inconsistent or illogical rulings; arcane policies that prevented some voters from registering; inconsistencies in administering rules that resulted in voters receiving unequal treatment; and risks of significant election litigation that would challenge the ability of state courts to reach outcomes perceived as nonpartisan or neutral.
These persistent problems lead us to make several suggestions for legislative leaders, as well as state and local election officials. While some of these proposals will be difficult to implement in time to make a difference in the 2008 election, others could have an immediate impact. For instance, state election officials should do all they can between now and November 2008 to promote consistency among local administrators and poll workers. In addition, most states need to develop greater bipartisanship in matters of state-level election administration, something that the political parties could improve today if they found the will.
Similarly, a major concern is that elected state courts lack the neutrality and independence important for the successful resolution of a close election contest connected with some election system failure. In the next several months, states should be exploring alternative mechanisms and tribunals for resolving such contests. The Michigan Supreme Court’s 4-3 partisan split last week in upholding the state’s January 15 presidential primary – which mirrors the same court’s split last summer upholding the state’s voter identification statute – is emblematic of the difficulties of asking state courts to be the final arbiters of matters of election administration.
These are just some of the findings and conclusions in our study, the full details of which will be available here next week. We invite interested readers to read the report, and then to offer feedback about how we might continue to improve our election systems so as to promote the values of access, integrity, and finality.