Author: Gillian Thomson

The Perils of Voting by Mail

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by Steven F. Huefner

Anecdotal evidence of fraudulent absentee ballot harvesting in North Carolina in last month’s midterm election already demonstrates the need for greater vigilance in how states conduct voting by mail, whether or not North Carolina ultimately must rerun the election for its 9th Congressional District.

Bladen County, North Carolina, provides the latest object lesson for anyone genuinely interested in improving American elections. Each day this past week brought a new revelation about apparent absentee ballot fraud there, fraud that appears increasingly likely to lead North Carolina authorities (or the U.S. House of Representatives) to call for a new election for the state’s 9th Congressional District. But whether or not that entire congressional race must be rerun, the story that has emerged from Bladen County already makes clear the need for all states to be vigilant in how they manage their absentee voting processes.

At issue in North Carolina is the reliability of vote totals showing the leading candidate ahead by just over 900 votes, in light of questions about whether those vote totals accurately reflect the votes of over 14,000 voters in the 9th Congressional District who requested absentee ballots, including more than 3,000 such voters whose absentee ballots were not returned. North Carolina officials justifiably have refused to certify the results of this race pending an investigation into a panoply of allegations about these absentee ballots, many concerning the activities of the Red Dome Group (a political consulting firm working for the leading candidate) and one of Red Dome’s operatives, L. McCrae Dowless Jr.

For multiple reasons, absentee voting outside the watchful eyes of election officials, often called voting by mail (in contrast to early voting that occurs in-person at a voting center), has long been the weak link in the reliability of our elections. Central to the North Carolina investigation now underway is the practice of “ballot harvesting,” in which a candidate’s or a party’s supporters round up as many voted absentee ballots as they can for hand delivery. Arguably, an innocent version of this practice exists, a practice not much different from traditional Election Day get-out-the-vote drives, in which the harvested ballots are all cast legitimately by eligible voters and returned to election officials for counting. But unfortunately, absentee ballot harvesting all too often devolves into electoral fraud, as every indication now suggests has occurred in Bladen County and perhaps elsewhere in the 9th Congressional District.

At least three distinct kinds of fraud can occur when political operatives “assist” in returning absentee ballots. First, those collecting the ballots can intentionally discard (or conveniently lose or misplace) any ballots they suspect or know (perhaps even by opening the ballot envelopes) have been cast in favor of the “wrong” candidate(s). Second, those collecting the ballots can open the ballot envelopes and change or alter whatever votes the voter originally recorded. Third, those collecting the ballots can collect unvoted ballots (or partially voted ballots) and complete the ballots themselves.

Although this third type of fraud may sometimes depend on the complicity (or negligence) of an absentee voter in possession of an incomplete absentee ballot, the first two types of ballot harvesting fraud can occur without any wrongdoing on the part of the absentee voter, other than being duped into turning the ballot over to a ballot harvester. Moreover, even the third type of fraud sometimes can occur without the complicity of an eligible voter, if the perpetrator is able to request absentee ballots on behalf of eligible voters without those voters’ knowledge and then control the locations to which the ballots are delivered.

Yet a fourth type of problem can arise if the person collecting the ballots improperly influences the voters’ choices in marking the ballots. Although improper influence in the marking or casting of an absentee ballot can occur not only with harvested ballots but also with any other absentee ballot cast outside the presence of election officials, including undue influence exerted by family members within the same household, the practice of ballot harvesting exposes whole groups of absentee voters to greater risks of such influence. Some may be reluctant to call this conduct “fraud,” but it too is an unlawful distortion of a fair voting process.

While it is still early to be sure of the extent or impact of the misconduct in last month’s North Carolina election, preliminary investigation suggests that perhaps all four of the above-described types of misconduct may have occurred in the 9th Congressional District. The leading candidate’s most recent campaign finance disclosure report (filed after the election) revealed that the candidate owes the Red Dome Group some $34,000 for the “door to door” activities of “early voting poll workers” – in other words, for ballot harvesting. Meanwhile, an increasing number of stories specifically about the activities of Mr. Dowless suggest that the actual harvesting activities in which he engaged were not of the pure get-out-the vote kind, but instead ran the gamut of the kinds of vote harvesting fraud described above.

This year’s ballot harvesting fraud in North Carolina is hardly the first time such problems have occurred. On the contrary, comparable absentee balloting abuses have been all too frequent, if not as high-profile. For instance, absentee ballot fraud resulted in a state court throwing out the results of a Miami mayoral contest in 1997, and an ostensibly above-board absentee ballot harvesting effort proved the undoing of the Detroit City Clerk in 2005.

Because of the various risks of absentee ballot harvesting, many states, including North Carolina, laudably have laws that prohibit or regulate the practice. In North Carolina, a statute already on the books provides that only a voter or a voter’s family member (or the U.S. Postal Service) may legally return a voted absentee ballot. Yet from the reports this week, apparently many North Carolina absentee voters are unaware of this anti-harvesting provision, while at least some North Carolina county election offices accept hand-delivered absentee ballots without regard to whether they have been returned in compliance with the anti-harvesting measure.

Other observers of elections also have recognized the problems of ballot harvesting. Earlier this year, a federal district court in Arizona upheld over a Democratic Party challenge a state statute adopted in 2016 to prohibit the practice. Meanwhile, the American Law Institute, in its just published volume Principles of the Law: Election Administration [for which I served as the Associate Reporter], has articulated the principle that anyone returning absentee ballots on behalf of another person must not be allowed to return more than two ballots per day. However, other states, as well as various advocacy groups, continue to defend or promote absentee ballot harvesting as a way to offer additional voting convenience and (arguably) to increase turnout.

But the North Carolina story makes clear that it behooves states to do more to promote the security of absentee voting by mail. For starters, reform advocates must recognize that the convenience of absentee voting comes with a cost. By contrast, in-person voting, whether on Election Day or beforehand, has none of the risks that the unfolding scandal in North Carolina has exposed. (Additionally, though unconnected to the problems of ballot harvesting, in-person voting also has much lower rates of lost votes or invalid ballots than does mail-in voting.)

Meanwhile, efforts to impose strict voter identification requirements ostensibly to secure voting against the hypothetical and seldom realized possibilities of in-person “voter fraud” do nothing to reduce the very real – and frequently realized – risks of absentee voting fraud, and if anything serve to misdirect attention away from where it is needed. Instead, measures necessary to promote the integrity of absentee voting include, among others, prohibitions on ballot harvesting, enforcement of these prohibitions through monitoring of the ballot return process, public education about the proper way to return a voted absentee ballot, and absentee ballot tracking tools for voters.

Indeed, absent public awareness of the hazards of ballot harvesting, the first form of ballot harvesting fraud – when operatives collect a batch of absentee ballots only to discard them – can be especially difficult to detect and prevent. So it also behooves each voter both to know that delivering a voted ballot to any intermediary is fraught with risk (and may be illegal, depending on the state), as well as to take advantage of whatever mechanisms election officials make available to track the status of an absentee ballot to make sure that the voter’s voted ballot has reached the election officials. But after witnessing what has happened this past election in Bladen County, no state should hesitate to make absentee ballot harvesting illegal, and to take steps to increase awareness and enforcement of this prohibition.

Counting Ballots Pursuant to Law is Not Stealing an Election

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by Steven F. Huefner

Our election systems are deliberately designed to require careful counting of many additional ballots for several days after unofficial results are announced on Election Night.

It has been less than 72 hours since polls closed on the 2018 congressional midterm elections, and for candidates and their supporters who do not yet know the outcome of close contests, patience – not unsubstantiated or false allegations of election rigging – MUST be the order of the day.

As any close observer of U.S. elections knows, once the polls close each state then conducts a carefully structured process of tallying the votes. Critically, as any close observer also knows, the Election Night “results” are not only unofficial, they are also still entirely preliminary and will almost inevitably change, perhaps considerably. With the dramatic rise in the use of mail-in absentee voting over the past decade, election officials increasingly must deal after Election Day with a significant volume of paper ballots that have arrived around Election Day (each state sets its own rules for when the ballots must arrive). Meanwhile, provisional ballots also require individual review and processing after Election Day. These post-election processes are not some mere afterthought; rather, they are critical components of determining the official election outcome, and they must be respected as essential to the overall integrity of the election.

Although these processes occur as part of every election, they understandably do not attract much attention when the unofficial results reported on Election Night are not close. But for election officials, it is a routine part of their duties after every election to undertake the laborious and thoroughgoing canvassing processes now occurring everywhere, not just in states like Florida, Georgia, and Arizona (where some high-profile races are quite close or essentially even). In every election, these processes need to occur in ways that promote public trust, and election officials must be required to adhere to the law that governs these processes. (The American Law Institute has just published an extensive set of legal principles and related commentary designed to promote the fair resolution of disputed elections, developed after several years of collaborative work with a team of expert advisers, in which my Moritz colleague Ned Foley and I also participated as the project’s “Reporters.”) Correspondingly, candidates and the general public should be able to insist that election officials perform these duties properly.

Thus, it is beyond unseemly – indeed, it is downright destructive of public trust in our elections, and fundamentally inconsistent with the health of our representative democracy – for candidates to assert or imply that the reason that Election Night results have been changing in the past few days is because election officials have engaged in some sort of irregular or unlawful conduct to manipulate the results. For anyone who cares about democratic institutions, the responsible position is to let the counting proceed according to state law, and then if necessary to take advantage of recount, audit, and contest processes to ascertain whether any defects occurred in these processes.

We can revisit for future elections whether our system has come to rely too heavily on counting ballots days after Election Night. But that is a policy question for a later date, and all ballots cast in this year’s elections must be scrupulously counted according to the laws established for this year’s elections. Leaders of both parties, with the support of all concerned citizens, ought to condemn any effort to undermine this essential stage of the electoral process.

Trump Campaign’s Nevada Lawsuit Also Raises Potential Federal Law Issue

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By Steven F. Huefner

The allegations in the Trump Campaign’s Nevada Lawsuit raise an important issue of federal law.

Late yesterday, the Trump for President Campaign filed a lawsuit in a Nevada state court alleging that one early voting site in Clark County, Nevada, had violated state law when it extended its early voting hours beyond the hours previously announced and publicized, when state law required that this announcement and publication occur in advance of the election. The suit requested that the Nevada Secretary of State secure the voting machines used at the site and not count the votes on those machines until any potential that allegedly unlawful votes on those machines might affect the outcome had been resolved.

Earlier today, the local trial court denied the requested relief, at least partly on the basis that the Trump campaign had not exhausted its administrative remedies with the Nevada Secretary of State. The issues raised in the complaint may not go away so easily, however, so let’s take a closer look at the complaint’s allegations (with the crucial caveat that the defendant, the Clark County Registrar of Voters, has not filed an answer to the complaint, and could well controvert or deny many of the critical allegations).

For present purposes, the critical allegations of the complaint are that: (1) Clark County had previously set 8 p.m. as the end of early voting hours on Friday November 4 at the Cardenas Market early voting location; (2) in the afternoon of November 4, the election officials operating the Cardenas Market early voting location announced that the Clark County Registrar had directed them to keep the early voting location open until 10 p.m.; and (3) a number of voters arrived at the Cardenas Market early voting location after 8 p.m., all of whom were allowed to vote.

As for the legal landscape, the complaint recites that Nevada law provides that one week before early voting begins, the county clerk in each county shall publish the hours of early voting at each early voting location in the county. Clark County (the Nevada county with the largest population, home to Las Vegas) has numerous early voting locations, and the hours are not the same at every location. Clark County’s posted hours apparently did recite that the early voting hours at Cardenas Market would close at 8 p.m. on November 4.

The complaint alleges only a violation of state law. Under state law, it may (or may not) be a complicated question of whether the county clerk or the county register of voters has lawful administrative authority to make adjustments to their published early voting hours, even (or especially) once early voting is underway. But the allegations also could give rise to an essential issue of federal law.

The Help America Vote Act of 2002 includes a provision that requires the use of provisional ballots when polls are kept open beyond their announced closing time. The provision reads as follows:

Any individual who votes in an election for Federal office as a result of a Federal or State court order or any other order extending the time established for closing the polls by a State law in effect 10 days before the date of that election may only vote in that election by casting a provisional ballot under subsection (a) of this section. Any such ballot cast under the preceding sentence shall be separated and held apart from other provisional ballots cast by those not affected by the order.

It is not clear, either from this HAVA provision itself or from subsequent judicial interpretations of it, whether it applies only to Election Day voting, or also applies to early voting. If this HAVA provision applies to early voting, and if the allegations of the Trump campaign’s complaint are true, then it would appear that voters who were not in line at the Cardenas Market early voting location as of 8 p.m. on November 4 but were allowed to vote that evening should have been, but were not, required to cast a provisional ballot.

To be clear, this conclusion depends both on (1) the legal determination that the HAVA provision applies to adjustments to early voting hours, and (2) the factual determination that the early voting hours in fact were extended. The factual issue is beyond the scope of this analysis, but the legal issue of the HAVA provision’s scope merits brief comment. There are powerful arguments that although HAVA may be ambiguous on the point, its provisional voting requirements should apply to early voting as well as Election Day voting. These arguments mean that the Trump campaign could yet have a colorable federal law claim arising out its allegations.

The most common judicial or administrative extensions of voting hours occur on Election Day because of unanticipated problems that prevent some voters from taking advantage of the previously published voting hours. But because any such extension might advantage one candidate or party over another, a last-minute decision to alter voting hours ought to be subject to careful subsequent judicial review to ensure that it was a proper response to a genuine problem. Use of provisional ballots permits meaningful review, because in the event that the extension is determined to have been inappropriate, the affected ballots can be excluded from the certified results.

Extensions of voting hours may be less common in the early voting context, because the types of unanticipated problems that trigger such extensions in Election Day voting will be less likely to leave voters without recourse, because they can still vote on another day. And conversely, voters who are enabled to vote through an extension of early voting might also have readily been able to vote another day had the early voting hours not been extended. Nevertheless, any change to pre-announced voting hours, whether for early voting or Election Day voting, should be subject to subsequent review to ensure it was an appropriate change.

One difficulty arises, however, in applying the HAVA provisional voting requirement to extensions of early voting hours. When the extension instead involves Election Day voting, if subsequent review determines that those provisional votes should not be counted because the extension was inappropriate, then the affected voters are in no worse position than they would have been in had the extension never been ordered. In either case, they are not able to have their voting preferences incorporated in the election results. But when at issue are provisional ballots cast during a period of early voting, if those provisional ballots are subsequently determined ineligible for inclusion, the affected voters are excluded from the election when they might well have yet had an opportunity to participate had they not been required to cast a provisional ballot. That is, had the voting hours not been extended, presumably some of the voters would have returned on another day of early voting or on Election Day. So unless, at the time that they are casting a provisional ballot during the extended hours of early voting they are told that the only way to ensure that they can participate in the election is to return and cast a regular ballot, these voters are in a worse position through the application of the HAVA provisional voting requirement to an extension of early voting. And it might even be that if these voters return on a subsequent voting day in order to ensure they cast a valid ballot, they might be required to cast a provisional ballot yet again, for the very different reason that election records reflect that they have already voted. Sorting out these categories of provisional balloting would introduce additional opportunities for administrative error.

The result is that determining the applicability of the HAVA requirement to early voting may be a complex though important question. It is surely a question that could tie up the resolution of a close Nevada race in court for weeks, unless the factual allegations in the complaint filed yesterday can be clearly rebutted.

Intimidation, Speech, and the Vote: Some Key States’ Laws

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By Daniel P. Tokaji

There’s been a flurry of concern over voter intimidation over the several days, and with good reason. Donald Trump’s repeated and totally unsubstantiated claims that the election will be rigged could prompt some supporters to take matters into their own hands. There are, however, both federal and state laws protecting voters from intimidation. This post includes a summary of some of the swing states’ statutes and decisions governing activities around polling places.

There’s been a flurry of concern over voter intimidation over the several days, and with good reason. The Democratic Party brought suit in key states to try to stop allegedly intimidating tactics by the Trump campaign and its allies.  Although a federal district judge in Ohio issued a temporary restraining order, a conservative panel of the Sixth Circuit quickly stepped in to block that order and the Supreme Court today declined to intervene.  The DNC also tried to enforce a decades-long consent decree restricting “ballot security” activities by the RNC.  A federal court in New Jersey found some evidence of a potential violation in Nevada but not enough to issue relief.

Although these look like defeats for the Democrats, they may have partly won by losing. The possibility of judicial intervention should cause the RNC and Trump campaign to avoid anything that smacks of intimidation.  Trump ally Roger Stone, for example, has declared under oath that “Stop the Steal” volunteers have been warned to avoid intimidation.   The RNC is likely to be especially cautious, as it faces the prospect of the DNC v. RNC consent decree being extended if it is found to have engaged in prohibited ballot security activities.

That’s not to say that there’s no risk of voter intimidation tomorrow. In fact, the risks are greater than in previous presidential elections.   What worries me most isn’t what happens inside the polling place, but what happens outside. Trump’s repeated – and totally unsubstantiated – claims that the election is rigged could prompt some supporters to take matters into their own hands.  Even if the Trump campaign and RNC avoid intimidation, we can’t assume that Trump supporters will be so restrained.

Suppose, for example, that ordinary citizens stand guard outside a polling place looking for people who they suspect aren’t citizens.  Violence is possible but more likely, and more insidious, is that their mere presence might discourage eligible citizens who just want to avoid any sign of trouble. The risk of vigilante justice is thus substantial, even if the Trump campaign and Republican Party avoid any impropriety.

There are both federal and state laws designed to protect voters from intimidation. The Voting Rights Act prohibits voter intimidation, even by private parties.  And in Burson v. Freeman, the Supreme Court upheld a state law restricting election-related speech within 100 feet of polling places, in order to protect the right to vote.   Many states have chosen to adopt such restrictions on speech around polling places. That said, those who wish to engage in election observation, electioneering, exit polling, or other forms of speech near polling places have the right to do that, so long as they comply with applicable state rules and avoid true threats.

To clarify what’s permissible and what’s not, I asked my research assistant to compile a summary of some of the swing states’ statutes and decisions governing activities around polling places, which appears at the end of this post. This table shows that several swing states have 100-foot zones like that approved in Burson.  Some allow these activities closer to the polls and one (Iowa) restricts speech 300 feet from a polling place entrance.

For those concerned about the prospect of intimidation in tomorrow’s election, the most important message is this: The right to vote is sacred.  People marched, suffered, and died to make sure that all of us are able to vote.  Don’t let anyone intimidate you from exercising that right.

Voter Intimidation Statutes and Case Law

Compiled by Katy Shanahan, Moritz College of Law, J.D. Expected 2017

Colorado            

C.R.S.A. § 1-13-714: No person shall do any electioneering on the day of any election, or during the time when voting is permitted for any election, within any polling location or in any public street or room or in any public manner within one hundred feet of any building in which a polling location is located, as publicly posted by the designated election official.

Florida

F.S.A. § 102.031(4)(a): No person, political committee, or other group or organization may solicit voters inside the polling place or within 100 feet of the entrance to any polling place, a polling room where the polling place is also a polling room, an early voting site, or an office of the supervisor of elections where vote-by-mail ballots are requested and printed on demand for the convenience of electors who appear in person to request them.

Case Law

Florida statute creating “No Approach Zone” within 100 feet of the entrance to polling place on election days did not violate First Amendment, as it was applied to ban political action committee and civil rights organization from engaging in exit solicitation about non-ballot issue of amendment to city charter that would create citizen oversight panel for city’s police department; while application infringed to some extent on plaintiffs’ right to engage in political speech, the restriction was necessary and narrowly tailored to protect compelling interests in protecting voters from confusion and undue influence and preserving integrity of the election process.  Citizens for Police Accountability Political Committee v. Browning, C.A.11 (Fla.)2009, 572 F.3d 1213

Subsection (3) of this section forbidding soliciting or attempting to solicit any opinion for any purpose within 150 feet of polling place on election day was overbroad and facially invalid.  Florida Committee for Liability Reform v. McMillan, M.D.Fla.1988, 682 F.Supp. 1536

 Iowa    

I.C.A. § 39A.4(1)(a)(1): Loitering, congregating, electioneering, posting signs, treating voters, or soliciting votes, during the receiving of the ballots, either on the premises of a polling place or within three hundred feet of an outside door of a building affording access to a room where the polls are held, or of an outside door of a building affording access to a hallway, corridor, stairway, or other means of reaching the room where the polls are held. This subparagraph does not apply to the posting of signs on private property not a polling place, except that the placement of a sign that is more than ninety square inches in size on a motor vehicle, trailer, or semitrailer, or its attachment to a motor vehicle, trailer, or semitrailer parked on public property within three hundred feet of a polling place is prohibited.

Ohio

Ohio Rev. Code Ann. § 3501.30(A)(4): Two or more small flags of the United States approximately fifteen inches in length along the top, which shall be placed at a distance of one hundred feet from the polling place on the thoroughfares or walkways leading to the polling place, to mark the distance within which persons other than election officials, observers, police officers, and electors waiting to mark, marking, or casting their ballots shall not loiter, congregate, or engage in any kind of election campaigning.

Case Law

Secretary of State could not ban exit polling near polling entrances by oral directive. American Broadcasting Co., Inc. v. Blackwell (479 F.Supp.2d 719, 722+, S.D.Ohio)

The state using a portion of private property for Election Day does not equate to an intent to open up the entire property to public discourse. Petition circulators were not deprived of their First Amendment free speech rights when they were ordered to move from public sidewalk to position beyond 100 feet from polling place pursuant to state statute creating “campaign-free zone”; decision to exclude circulators from parking lots and walkways leading to polling places was reasonable and viewpoint-neutral. United Food and Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738

North Carolina

N.C.G.S.A. § 163-166.4(a): No person or group of persons shall hinder access, harass others, distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election-related activity in the voting place or in a buffer zone which shall be prescribed by the county board of elections around the voting place. In determining the dimensions of that buffer zone for each voting place, the county board of elections shall, where practical, set the limit at 50 feet from the door of entrance to the voting place, measured when that door is closed, but in no event shall it set the limit at more than 50 feet or at less than 25 feet.

Case Law

Amendment of North Carolina statute extending prohibition against electioneering from 50 feet within voting place to 500 feet in 6 counties was a change in “standard, practice, or procedure with respect to voting,” within Voting Rights Act and was unenforceable in 4 of the counties which were covered by the Act for failure to obtain prior approval of United States District Court for the District of Columbia or to submit amendment to Attorney General of United States. Clayton v. North Carolina State Bd. of Elections, 1970, 317 F.Supp. 915

Pennsylvania

25 P.S. § 3060(c); (d): No person, when within the polling place, shall electioneer or solicit votes for any political party, political body or candidate, nor shall any written or printed matter be posted p within the said room, except as required by this act. All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers, when permitted by the provisions of this act, must remain at least ten (10) feet distant from the polling place during the progress of the voting.

Case Law

Pennsylvania statute creating a ten-foot buffer zone between voter and polling place operated as a content-neutral regulation of general application governing the physical location of those seeking to observe or influence polling activities and protected an individual’s right to cast a ballot in an election free from the taint of intimidation and fraud, and therefore did not violate newspaper’s First Amendment free speech and press rights; newspaper did not, as a member of the press, enjoy a special constitutional right of access to polling places.  PG Pub. Co. v. Aichele, W.D.Pa.2012, 902 F.Supp.2d 724

A candidate is not entitled to be present in a polling place during the time polls are open except for the purpose of casting his own ballot, and county boards of elections are within their legal authority when they instruct election officers to such effect, notwithstanding §§ 3506, 3507 of this title, since presence of candidates in polling places is not affirmatively authorized by Election Code.  In re General Election to be Held in City and County of Philadelphia, 75 A.2d 812, 366 Pa. 6, Sup.1950

Virginia

Va. Code Ann. § 24.2-604(A): During the times the polls are open and ballots are being counted, it shall be unlawful for any person (i) to loiter or congregate within 40 feet of any entrance of any polling place; (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote; or (iii) to hinder or delay a qualified voter in entering or leaving a polling place.

Wisconsin

Wis. Stat. § 12.03(2)(b)(1), (d); (4): No person may engage in electioneering during polling hours on any public property on election day within 100 feet of an entrance to a building containing a polling place. This subsection does not apply to the placement of any material on the bumper of a motor vehicle that is parked or operated at a place and time where electioneering is prohibited under this subsection. In this section, “electioneering” means any activity which is intended to influence voting at an election.

Case Law

Wisconsin statute prohibiting electioneering within 500 feet of election place on election day unconstitutionally infringed on free speech rights of homeowners living across the street from official polling place;  although state had compelling interest in maintaining integrity of election process and in keeping voters free from intimidation and harassment, statute was not narrowly tailored to achieve such interest. Calchera v. Procarione, E.D.Wis.1992, 805 F.Supp. 716.

 

The Perils of Allowing Absentee Ballot Harvesting

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by Steven F. Huefner

[With UPDATE after Supreme Court stay.] Today’s Ninth Circuit en banc decision in Feldman v. Arizona Secretary of State’s Office misses the mark.

UPDATE: The post below was written Friday evening, November 4, 2016. This morning, Saturday November 5, 2016, the U.S. Supreme Court, in a brief unsigned order without any noted dissent, stayed the injunction that the Ninth Circuit had issued yesterday. The result is that the Arizona prohibition on absentee ballot harvesting by third-party organizations is back in effect through Election Day.

As the original post below suggested, this is a sound result, given the legitimate reasons for Arizona to have adopted the measure. Of course, today’s Supreme Court ruling may have little to do with the merits of the challenge to the Arizona law, and everything to do with the Purcell principle against last-minute changes to otherwise stable election processes. But regardless of the factors that may have influenced today’s apparently unanimous disposition, what is most gratifying about it is to see the judiciary resolve a question of election administration, fraught as the question may be with potential partisan effects, without the Court itself dividing along ideological lines. This salutary feature adds immeasurably to the stability and strength of democratic processes, in terms of both perception and reality, and therefore deserves as much emulation as possible at all levels of our courts in resolving other election law questions.

ORIGINAL POST: Earlier today, a closely divided en banc panel of the United States Court of Appeals for the Ninth Circuit issued an order enjoining Arizona from enforcing a new law prohibiting the “harvesting” of absentee ballots. The decision was almost immediately appealed to Justice Kennedy (the member of the U.S. Supreme Court designated as the Circuit Justice over the Ninth Circuit), and he has called for a response by 9:00 a.m. tomorrow. At issue are a number of important questions concerning two independent areas of election administration. One set of questions, which this post will not address further, involves the Purcell principle, or the circumstances under which it is appropriate for courts to intervene in established election procedures when the election is imminent.

The other set of questions involves the substance of the Arizona law itself, and what procedures and limits are appropriate for securing a state’s absentee voting regime. Until this election, Arizona law had allowed third-party groups to collect voted absentee ballots from absentee voters, and to return these voted ballots by hand in bundles and boxes to the appropriate election officials for processing and counting. These third-party groups engaged in this absentee ballot “harvesting,” at least in part, in order to assist voters for whom returning their voted ballots would otherwise involve some genuine burden. For instance, as the complaint alleged in the case before the Ninth Circuit today, some Arizona absentee voters who live on one of several American Indian Reservations in the state not only are a substantial distance from the local election office, making it difficult for them to drop off their ballots in person, but also do not have reliable home mail delivery or easy access to the U.S. Postal Service. Private ballot harvesters provide a service for these voters.

But there is a potential nefarious side to absentee ballot harvesting, to which the Ninth Circuit decision gives short shrift. To the extent that modern election systems are vulnerable to electoral fraud, it is the absentee voting process that by far is most at risk. Individuals or groups who seek to meddle in the outcome of an election through the modern equivalent of ballot box stuffing may seek to gain access not just to one but to scores or hundreds of absentee ballots, whether through (1) fraudulent absentee ballot requests, (2) interception of validly transmitted ballots that are on their way out (unvoted) to legitimate voters, or (3) interception of validly voted ballots on their way back to election officials. (The creation of “counterfeit” absentee ballots is not a realistic option, because they would not be counted unless they could be matched with a request for an absentee ballot on file with election officials.)

As an additional concern, the process of harvesting absentee ballots can sometimes itself give rise to (4) improper influence. The Detroit City Clerk was kicked out of office a decade or so ago after it became known that a number of official election “ambassadors” whom the Clerk had dispatched to care centers to assist voters to mark their absentee ballots had provided a little too much assistance. At its extreme, this influence might extend as far as providing a voter with some form of benefit or compensation for a particular vote.

Some might view the return of a group of ballots in a single batch as a potential indicator that one or both of the first two types of absentee ballot fraud described above have occurred. Indeed, in prior elections, video of volunteers delivering batches of voted absentee ballots en masse to election offices was often trumpeted – falsely – as evidence of the perpetration of election fraud, as if election officials were receiving and processing numerous fake ballots. But the larger problem with absentee ballot harvesting is that it provides an opportunity to engage in the third type of absentee ballot fraud, or to exert improper influence or even buy votes.

As for fraud, those who collect ballots for batch submission are then in a position to tamper with what they deliver, either by making their own predictive judgments about the likely votes contained on the ballots inside the sealed envelopes, in order to decide which ballots to return and which to destroy, or by finding an undetected way to open the sealed envelopes before returning them in order to alter or destroy those ballots found to contain votes for a candidate (or candidates) whom the harvesters oppose. Of course, destroying ballots is not likely to meet with much success in a state, like Arizona, that provides voters a means of tracking the status of their absentee ballot, unless the perpetrators replace the destroyed ballots with counterfeits so that the tracking system records the ballots as having arrived. Nevertheless, both replacing or otherwise tampering with voted absentee ballots remain realistic concerns in an election system that permits third-party vote harvesting.

As for improper influence and vote buying, if the harvesting effort also provides an opportunity for harvesters to exert pressures or enticements, subtle or not, for the voters to mark their ballots for certain candidates, the system is corrupt. Furthermore, whether or not the harvesters are present at the time that the voters mark their ballots, it may require that voters take an additional leap of faith that their privacy will be respected if they plan to turn their marked absentee ballots over to a third party.

So it is understandable that in an era of increasing concern about the potential for manipulation of the electoral system, Arizona decided to prohibit third-party collection groups from returning batches of absentee ballots (while allowing family members and caregivers to deliver them). To be clear, and as the Ninth Circuit noted, Arizona provided no evidence that absentee ballot harvesters had ever delivered even one invalid absentee ballot in Arizona. But the above types of potential misconduct to which absentee ballot harvesting is vulnerable, including not only fraud but also improper influence and vote buying, have been proven to occur in other states in the modern era, even though they may often be hard to detect. It therefore is difficult to say that Arizona did not have a substantial basis for adopting its new anti-harvesting law.

Indeed, earlier this year the American Law Institute approved a set of principles (which can be found here) for conducting early and absentee voting, one of which is akin to Arizona’s anti-harvesting law. (I serve as the Associate Reporter for this ALI project.) That ALI principle essentially provides that absentee voters should only be permitted to return their ballots by mail or by hand, either personally or by an agent or family member who should be allowed to deliver only two ballots at a time. This principle reflects a careful balancing of a number of relevant interests at stake in how elections are conducted, and makes eminent sense for the vast majority of voters who do have reliable access to the U.S. mail, and who also can conveniently drop off their ballots in person. As Judge Bybee’s dissenting opinion in today’s Ninth Circuit decision noted, the 2005 bipartisan Commission on Federal Election Reform also had called for similar limitations on absentee ballot harvesting, which a number of states besides Arizona have long had in place.

The harder question is how to balance the reasonable justifications for these general prohibitions on absentee ballot harvesting against the burden such a prohibition may impose on a small minority of affected voters who are far from the election offices and lack access to reliable mail service, as for instance the voters identified in the complaint in the Arizona case. Yet the Ninth Circuit presumably could have limited its order to that subset of voters, rather than enjoining Arizona’s new law in its entirety. Meanwhile, with respect to all other voters, those groups who wish to harvest their absentee votes could be allowed instead to provide postage, rather than hand delivery, for their ballots.

Instead, today’s Ninth Circuit decision unfortunately has essentially rejected Arizona’s legitimate reasons for the anti-harvesting law as it applies to most of the absentee voters in the state. At the least, the court ought to have explored a narrower injunction.

Disclaimer: The views in this Comment are the author’s alone, and not those of either Election Law @ Moritz or the American Law Institute.

When Should Early Voting Begin?: Lessons from the Current State of Distress over the Trump Campaign

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by Steven F. Huefner

In the past 24 hours, calls for Donald Trump to abandon his bid for the White House have swelled. While the odds of him doing so willingly still seem long, they are not negligible; who knows what they will be by early next week, after the second debate between Trump and Hillary Clinton. No matter the odds, the very real possibility that the Republican Party might replace its nominee for President of the United States less than one month before Election Day has invited reflection concerning a variety of issues, both political and legal.

Many others, including my Election Law @ Moritz colleague Ned Foley here, have already offered thoughts and analyses about what a Trump withdrawal at this point might mean to this year’s election. One issue that so far has received relatively less attention, however, is what this late-breaking development might say as a policy matter for future elections about the appropriate duration of the periods of early in-person voting and absentee voting. More specifically, the present moment helps to highlight the hazards of encouraging voters to cast their ballots too far in advance of Election Day. As described in the paragraphs below, decisions about how much pre-Election Day voting to allow need to balance its convenience with the problem of voters’ casting ballots on the basis of materially different information – including changes in candidates – across a span of time.

Each state makes its own decisions about how to conduct even federal elections, except that Congress has specified that federal elections are to occur on the first Tuesday after the first Monday in November of each even calendar year. For most of U.S. history, these federal elections were one-day affairs, conducted in-person on the specified day by requiring voters to present themselves at a designated polling location to cast their ballots, under rules established by each state. The exception, of course, was absentee voting, which began primarily as a method for members of the military to vote while serving in the armed forces. Absentee voting then slowly spread to other categories of voters who could claim some real impediment to voting on the designated Election Day, but still accounted for only a tiny fraction of total voter turnout.

However, over the past two decades, early voting has grown dramatically, as some three-dozen states have either opened their absentee voting process to all voters, or have developed options that allow voters to vote in-person before Election Day. It is now the case that as many as one third or more of the total votes cast in federal elections can be expected to be cast prior to Election Day. Unfortunately, most empirical research suggests that these opportunities to vote prior to Election Day have done little to increase voter turnout (except in some local, non-federal elections for which turnout is much lower to begin with), and instead seem largely just to have made voting more convenient for voters who would vote anyway even if the more convenient early voting options were not available.

The states with early in-person voting or open absentee voting have no uniform date when these options begin. Federal law now requires that absentee ballots for the relatively small number of military and overseas voters be available 45 days before Election Day, and some states choose to make absentee ballots for regular voters available at that same time. More typically, regular absentee voting begins 30 days before Election Day. Meanwhile, early in-person voting (which occurs at a county clerk’s office or other designated early voting center) usually begins later, with the average period of early voting beginning nineteen days before Election Day.

It is easy to understand why states should provide absentee ballots to military and overseas voters well in advance of Election Day, given the difficulties involved in transmitting voting materials to and from other nations, especially into and out of military theaters. It also is easy to understand why election jurisdictions might favor a uniform period of absentee voting for everyone, and therefore send absentee ballots to all voters once their military ballots are ready, 45 days in advance. Or, for jurisdictions that do not make that choice, it also is easy to understand why, once the ballots are ready, they might still feel pressure to get them into the hands of voters relatively soon, say 30 days in advance (the date when the voter registration window closes in many states). Voters themselves presumably want more rather than less time to cast their votes; the campaigns of candidates at the top of the ticket likewise view it as helpful to be able to begin harvesting – and thereby locking in – votes from their supporters sooner rather than later. Similar pressures can affect the choice of how soon to begin early in-person voting.

Yet the events of the past 24 hours simply have to make us think carefully about how these periods are set. Many absentee and early voting ballots have already been cast. But the voter convenience and administrative ease that these votes represent come with costs, including the impact on these voters of a subsequent Trump withdrawal. Were that to occur, it would mean that the act of casting an early ballot is effectively disenfranchising for any voter for whom a Trump withdrawal is material to their voting preference: the voter would have lost the opportunity for meaningful participation in the election. This reality leads some to argue that once early voting begins it may be too late for a political party to replace their nominee on the ballot.

One response (for instance here) is that all early voters choose to take this disenfranchisement risk when they decide to vote sooner than Election Day. But voters may do so without much knowledge of or reflection concerning this risk. Moreover, it is quite a different matter for the government to be needlessly permitting (even encouraging) this early-voting risk taking, if it produces relatively little benefit to voters and the election process generally. Early voting (whether absentee or in-person) undoubtedly has advantages. But extending the period of early voting further and further in advance of Election Day produces diminishing returns while exacerbating the potential that voting early will disenfranchise an early voter because of subsequent events or information important to the voter. This potential disenfranchisement could be reduced (though not eliminated) by shortening periods of absentee and in-person early voting that are longer than ideal.

Although empirical research suggests that most of those who take advantage of the opportunity to vote early are committed partisans who are the voters least likely to change their views in light of typical examples of late-breaking information, that fact does not alter the reality that sometime even these voters will encounter new information or new circumstances that do matter to their vote, including on occasion the replacement of a candidate. Moreover, if the early voters are the committed partisans, they will vote regardless of the length of the early voting period. Although it may be the highest profile such event in generations, the potential implosion of the Trump campaign is hardly the first time that an election has been thrown into chaos in its final weeks. In addition to the self-inflicted implosion of a candidate or campaign, elections can also be affected by late-breaking news about a candidate’s ties to business or industry, as with yesterday’s release of hacked Clinton campaign emails; by sudden new developments in international or domestic affairs, such as the outbreak of a new war; or by a candidate’s illness or death, as when three weeks before Election Day Mel Carnahan was killed in a plane crash while campaigning to be one of Missouri’s U.S. Senators, or when Senator Paul Wellstone of Minnesota similarly died in a plane crash 11 days before Election Day. The potential for these various types of disruption have received relatively little attention as states have expanded their windows for early voting.

One of the American Law Institute’s current projects is to develop Principles of Election Administration. (I serve as the Associate Reporter for this project.) Earlier this year, the ALI approved a portion of this project concerning early and absentee voting. Recognizing the sound arguments that may lead a state to offer some period of early voting, one of the ALI Principles is that for states that choose to offer early voting, “a uniform statewide period of early in-person voting should begin by the 10th calendar day before Election Day, and should continue daily through the second calendar day before Election Day.” Although the ALI has not taken a position on what the maximum period of early voting should be, a Comment accompanying this Principle notes that, because of the potential for late breaking developments, “A prolonged early-voting period therefore is undesirable (as also is a prolonged period of open absentee voting, which similarly encourages voters to cast their absentee ballots well before Election Day). At the same time, the early in-person voting period needs to be long enough to provide a critical mass of voters with a meaningful alternative to Election Day voting.”

Obviously, any decision to permit a meaningful period of early voting – at least 10 days, under the ALI Principle – means the possibility exists that some voters will have voted by the time some truly late-breaking event occurs. But that possibility doesn’t negate the importance of minimizing the risk by properly confining early voting periods. That is a balancing task that involves careful consideration of how much added benefit a marginal additional day of early voting provides, beyond some critical minimum period of 10 days, or two weeks, or whatever a state thoughtfully concludes. The current attention to the potential disruption that a Trump withdrawal would cause is an appropriate invitation for states to reconsider whether their absentee and in-person early voting periods are longer than they should be.

Disclaimer: The views in this Comment are the author’s alone, and not those of either Election Law @ Moritz or the American Law Institute.

 

The Supreme Court and the Right to Vote

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by Daniel P. Tokaji

“[T]he political franchise of voting . . . . is regarded as a fundamental political right, because [it is] preservative of all rights….”

– Yick Wo v. Hopkins (1886)

For over 130 years, the U.S. Supreme Court has said that the right to vote fundamental. The idea is that voting for candidates who represent our views is the primary means through which we protect our interests, whatever they might be. While the Court has often repeated this constitutional principle, it hasn’t always honored it.  In fact, at the very moment that the Court first declared the right to vote fundamental, African Americans were being systematically and brutally excluded from voting throughout the states of the former confederacy.  As a result, all their other rights – including education, employment – were denied.

Contemporary threats to the right to vote are much less egregious than the racist exclusionary practices that predominated in the late 19th Century and persisted through most of the 20th Century, but today’s threats are nonetheless real. Recent events raise serious questions about the currently short-staffed Supreme Court’s capacity to protect the right to vote against 21st Century threats.  The vacancy created by Justice Scalia’s death has now existed for over seven months and counting.  The split arising from this vacancy compromises the Court’s ability serve as a bulwark against denial of the right to vote.

Recent developments in a voting rights case from two swing states, North Carolina and Ohio, are especially troubling. North Carolina enacted an omnibus voting bill shortly after the Supreme Court’s decision in Shelby County v. Holder (2013), which freed it from the strictures of preclearance under Section 5 of the Voting Rights Act.  Although Section 5 wasn’t used to stop vote denial as often as is commonly supposed (p. 79), there’s no doubt that Shelby County led directly to North Carolina’s 2013 voting restrictions.

North Carolina’s law was especially sweeping, imposing voter ID, limiting early voting, eliminating same-day registration, restricting the counting of provisional ballots, and abolishing pre-registration for 16- and 17-year olds. Despite substantial evidence that African Americans would be especially hard hit by North Carolina’s new restrictions, the district court in NC NAACP v. McCrory denied relief.  Its very lengthy opinion missed the forest through the trees, examining each voting restriction separately, while downplaying their cumulative effect on black voters as well as evidence of the legislature’s racially discriminatory intent.

The Fourth Circuit Court of Appeals reversed the district court, finding that North Carolina’s voting restrictions “targeted African Americans with almost surgical precision.”  The court cited evidence that North Carolina’s Republican leadership specifically asked for racial data on the usage of particular voting practices, then adopted a law restricting those means used predominantly by African Americans.  Based on this and other evidence, the Fourth Circuit concluded that this law was motivated by discriminatory intent.

While racially discriminatory intent is hard to prove, the Fourth Circuit’s conclusion that North Carolina’s legislature had acted with such intent was amply justified by the evidence. To be sure, the ultimate reason for North Carolina’s Republican legislature adopting this law was partisan.  As in other states, North Carolina’s African Americans vote overwhelmingly Democratic, providing a strong motivation for the Republican majority to make it harder for them to vote.  The Fourth Circuit correctly reasoned that racial and partisan motivations aren’t mutually exclusive – to the contrary, they are mutually reinforcing.  That’s especially true in North Carolina, where being African American is a better predictor of voting Democratic than being registered as a Democrat.

In these circumstances, it should come as no surprise that the Supreme Court denied North Carolina’s motion to stay the Fourth Circuit order, especially given the state’s tardy filing of its motion. What was surprising is that there was a 4-4 tie, with the four conservative justices voting to reinstate the restrictions (Chief Justice Roberts, Justice Kennedy, Thomas, and Alito). Those justices dissented from the denial of a stay, even though it’s hard to imagine a broader and deeper package of voting restrictions or, at least in 2016, one with a more evident racial discriminatory purpose than that of North Carolina.

Given the split in the North Carolina case, there was no real hope that the Court would intervene in Ohio Democratic Party v. Husted.  That case challenged Ohio’s elimination of “Golden Week,” the five-day period for same-day registration and early voting.  African Americans disproportionately relied on this window, leading the federal district court to conclude that it violated Section 2 of the Voting Rights Act.  Although this restriction was less onerous than those adopted in North Carolina, Ohio’s anti-fraud justification was especially flimsy.  It defied both credulity and the evidence to argue, as did Ohio, that there was a significant risk of fraud with ballots cast thirty days before election day.

Ohio’s pretextual justification suggested that, as in North Carolina, the Republican-dominated legislature’s real goal was to gain partisan advantage by restricting a means of voting disproportionately used by African Americans. The highly respected district judge ruled against Ohio, doing exactly what the law requires by carefully sifting through the evidence on both sides. The fact that the district judge was appointed by George W. Bush and formerly served as Chief Counsel to Republican Governor George Voinivich adds credibility to his studied conclusion that Ohio’s voting restrictions violated both the Fourteenth Amendment and the Voting Rights Act.

The Sixth Circuit nevertheless reversed, beginning its opinion with an ideological statement of opposition to judicial intervention in voting disputes:  “This case presents yet another appeal …asking the federal courts to become entangled, as overseers and micromanagers, in the minutiae of state election processes.”  The court’s reasoning on the Voting Rights Act claim is even more troubling.  Remarkably, it found that plaintiffs had failed to prove the requisite disparate impact on African Americans, even though they were heavy users of the voting opportunity that the state eliminated. Though the Sixth Circuit opinion isn’t a model of clarity, it seems to suggest that a racial minority group is foreclosed from prevailing if its overall turnout is equal to that of the majority group, emphasizing that “the statistical evidence shows that African Americans’ participation was at least equal to that of white voters.”  This suggests that a racial group should always lose if their overall turnout equals that of the majority.  The proper threshold question is whether the challenged law eliminates opportunities that African Americans predominantly use, as I’ve explained in this article (pp. 473-80).

Despite the problems with the Sixth Circuit’s reasoning, there was practically no hope of the Supreme Court staying its order. There was no reported dissent from the Court’s denial of a stay, but that says little or nothing about what would have happened if the Court had a full complement of justices.  The same is true of the Sixth Circuit’s most recent decision in NEOCH v. Husted, mostly rejecting a challenge to procedures used for provisional voting, absentee voting, and voter assistance.   Although there are similar problems with the Sixth Circuit’s analysis of the Voting Rights Act claim in that case, seeking Supreme Court review would be similarly futile.

These cases create serious doubts about whether the Supreme Court, as presently constituted, can be trusted to protect the fundamental right to vote. As a practical matter, it means that federal appellate courts now enjoy a great deal of power, as Rick Hasen has noted.  Divisive voting issues are very likely to split the Court in half, meaning that the lower court’s ruling will be affirmed.  And this is to say nothing of looming controversies over partisan gerrymandering and campaign finance, also likely to divide the current Court in half.

Sadly, it is a virtual certainty that the Court will remain understaffed for the remainder of the current election season, with several voting cases still pending and more likely to come up. As long as this seat remains open, there will be a 4-4 split on several important issues, but none are more important. The fundamental right to vote, and therefore all of our rights, are at stake.

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by Daniel P. Tokaji

Donald Trump has revived the question whether Senator Ted Cruz is ineligible to serve as President due to his birth in Canada. A recent Trump Tweet asserts that Trump has standing and threatens to sue if Senator Cruz doesn’t stop “cheating” and “doing negative ads.”

Trump is right about one thing: whether Senator Cruz is constitutionally eligible to serve as President is unsettled. The issue cries out for judicial resolution, but it’s not clear whether a federal court could or would decide the question. Although Trump probably satisfies the constitutional requirements for standing, there are sound prudential reasons why a federal court might decide not to intervene.

Fortunately, there’s another way of adjudicating the issue. An action could be brought in state court, challenging Senator Cruz’s eligibility and seeking his removal from the state’s primary ballot. There’s at least one state – Pennsylvania – where the deadline for filing hasn’t yet expired, but if skeptics of Cruz’s eligibility want to sue there they must act quickly, no later than Tuesday. Litigating the case through the courts of Pennsylvania or another state would tee up the issue for Supreme Court review, which would be helpful in resolving the recurrent question of what it means to be a “natural born Citizen” eligible to serve as President.

The Constitutional Question Is Unsettled

Before getting into the mechanics of federal and state court lawsuits, it’s worth taking a moment to review the Cruz eligibility question and to consider why a prompt judicial resolution is desirable. Article II of the Constitution says that only a “natural born Citizen” or someone who was a citizen at the time of the Constitution’s adoption is eligible to be President. Since no one in the latter category still walks the earth, one must be a “natural born Citizen” to be President.

What does that term mean? Legal scholars disagree. Some maintain that Senator Cruz is eligible to serve, even though he was born in Canada, because his mother was a U.S. citizen. Neal Katyal and Paul Clement make this argument in a Harvard Law Forum piece, relying on colonial-era British statutes which made people British subjects if born abroad to British subjects.

Not so fast, says legal historian Mary Brigid MacNamanon. She claims that these statutes were a stark departure from the common-law rule that only those born in the U.S. were considered natural born citizens at the founding. According to MacNamanon, Cruz wasn’t a natural-born U.S. citizen but rather naturalized at birth, an argument she develops in this article.

Laurence Tribe takes an in-between position, arguing that the answer depends on how we think the Constitution should be interpreted. If one is an originalist, he claims, then Cruz isn’t eligible because he wouldn’t have been considered a natural born citizen at the founding. If one believes that the Constitution’s meaning changes over time, however, then Cruz should be deemed eligible according to Tribe.

The one thing that’s clear from this debate is that the question is unsettled, as Randy Barnett notes. The Supreme Court hasn’t ruled on the meaning of the term “natural born Citizen,” including its applicability to someone born outside the U.S. to a U.S. citizen parent. Nor is there a settled practice establishing that someone like Senator Cruz is or isn’t eligible.

Prompt Judicial Resolution Is Desirable

Just because there’s no settled answer to the question doesn’t necessarily mean that a court should intervene. There are non-judicial entities that might consider the question as Derek Muller has explained. On the other hand, there are serious problems with the most obvious non-judicial ways of resolving the question.

One possibility would be a statute or congressional resolution providing that Senator Cruz (or someone in his position) is a natural born Citizen. The Senate issued such a resolution in 2008, declaring that Senator McCain satisfied this requirement. But Majority Leader Mitch McConnell has said the Senate doesn’t plan to do the same for Senator Cruz. Even if it did, it’s ultimately the courts’ responsibility to “say what the law is.” Congress’s opinion on whether Senator Cruz satisfies the Constitution’s eligibility requirement wouldn’t bind the Supreme Court or lower courts.

That isn’t to say that Congress is powerless when it comes to determining a potential President’s eligibility. The Constitution vests Congress with responsibilities at the back end of the presidential selection process, which could include declaring a President-Elect ineligible. The constitutional requirements appear in Article II, Section 1, as modified by the Twelfth and Twentieth Amendments. After the presidential electors meet in their respective states, the states’ vote certificates are sent to Congress for counting. There’s also a statute, the Electoral Count Act of 1887, which regulates this process and allows objections to a President-Elect’s eligibility.

Article II and the Electoral Count Act offer a second extra-judicial means of deciding Senator Cruz’s eligibility. If he winds up winning the general election but Congress thinks him ineligible, it could decline to count the votes for him and make someone else President. Needless to say, this is not a desirable way of deciding what “natural born Citizen” means, much less choosing a President. It would be a nightmare for voters to elect someone President, only for Congress to override the voters’ choice by declining to count that candidate’s electoral votes. If that weren’t enough, there are also constitutional questions surrounding the Electoral Count Act, as I’ve previously noted.

There’s a third extra-judicial possibility. The judgment whether Senator Cruz is eligible to serve might be made by voters themselves in primaries, caucuses, and the general election. The idea of letting the people decide has intuitive appeal, but serious problems. Ordinary citizens aren’t and can’t reasonably be expected to become constitutional experts. Judges are much better suited to determine what the Constitution means. Leaving it to the people could also lead to unfair attacks by an opponent – just what some people think Trump is now doing to Cruz. If Senator Cruz really is constitutionally eligible, then it would be unfair to deny him votes due to the specter of his candidacy ultimately being invalidated. And if he isn’t eligible, then it would be better for voters to make their choice solely from the pool of eligible candidates.

For all these reasons, the extra-judicial means of resolving the question of Senator Cruz’s eligibility are unsatisfactory. It would be better to have a court decide the question. And it would be best to get that judicial resolution promptly, before too many people decide whether to vote for someone who might or might not be eligible.

State Court Is the Best Forum

In what court should a lawsuit be filed? Given that the question of Senator Cruz’s eligibility arises under federal law, the most obvious answer is federal court. Sure enough, voters have filed federal lawsuits this election cycle in Utah and Texas challenging Senator Cruz’s eligibility. We also saw federal lawsuits eight years ago challenging Obama’s and McCain’s eligibility to serve. Those cases were dismissed, properly in my opinion, for lack of standing. There are also good reasons why federal courts might stay out again this time, especially in lawsuits brought by voters.

To have standing to sue in federal court, one must satisfy both constitutional and prudential constraints on the federal courts’ power to decide cases. Article III of the Constitution has been understood to impose three requirements for standing: (1) an injury in fact, one that is real and immediate rather than conjectural or hypothetical, (2) causation, meaning that the injury is fairly traceable to defendants’ conduct, and (3) redressability, meaning that a favorable court decision would remedy the claimed injury. In addition to these constitutional constraints, there are also prudential standing requirements, constraints that federal courts have imposed on themselves. It’s doubtful that an ordinary voter would have standing to challenge Senator Cruz’s eligibility, as I explained here.

What if Trump sued, as his tweet threatens? There’s a more plausible argument that he has standing, but it’s not completely clear. There are prudential reasons why a federal court should hesitate to get involved. To start with, consider what a federal lawsuit by Trump would look like. He would presumably seek injunctive relief against Senator Cruz (enjoining him from running for President) and election officials (requiring that they remove Cruz from the ballot). Trump would probably seek declaratory relief as well, in the form of a declaration that Senator Cruz isn’t constitutionally eligible.

Trump probably satisfies Article III standing requirements, as Rick Hasen explains. He could assert a competitive injury, arising from the potential loss of presidential delegates and therefore his opportunity to win the Republican nomination due to a constitutionally ineligible opponent running. The injury is traceable to defendants’ conduct (Cruz in running for President and state election officials allowing him on the ballot), and would be redressed by the relief he can be expected to seek.

Trump’s hypothetical lawsuit is shakier is on the prudential requirements for a federal court to decide a case. These are somewhat mushier, making it difficult to predict the outcome, but one requirement for prudential standing is the general bar against federal courts deciding a “generalized grievance.” The grievance here is quintessentially generalized, in that all U.S. citizens have a shared and equal interest in not having a President who is constitutionally ineligible to serve.

The rationale for prudential standing also tends to support a federal court staying out. The Court has explained that prudential standing arises from the concern that “courts would be called upon to decide abstract questions of wide public significance even though other government institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” There are no “individual rights” at stake in the sense that the term is usually used. This isn’t, for example, an individual’s claim that she’s been discriminated against or that her right to vote has been denied, but a structural harm.

The question is whether some other “government institution[]” is more competent to address the question. Turns out there is: state court. That’s the forum in which a candidate would ordinarily seek to have a competitor excluded from the ballot if he or she failed to satisfy the requirements for that office. The fact that state courts are usually the ones that decide whether or not to disqualify a candidate would probably make a federal court reluctant to issue this form of relief. While it might seem strange to have a state court deciding a question of federal law, they commonly do just that under our federalist system.

The arguments for a state court adjudicating the dispute are especially strong when it comes to presidential elections, given that Article II of the Constitution grants the states – specifically the “state Legislature” – authority over the manner in which its presidential electors are appointed. As I’ll now explain, there are state laws that provide judicial procedures through which a candidate’s eligibility can be challenged.

Sue in Pennsylvania, Then Take It Up

While there may be multiple states in which Senator Cruz’s eligibility could be challenged, I’ve looked at two. The first is Ohio, which has its primary on March 15. Ohio law allows for a written protest against a candidate who seeks to run in a primary, which may be filed by any qualified voter who is a member of the candidate’s party. ORC 3513.05. A protest may seek to have a candidate’s name removed from the ballot on the ground that “the candidate’s candidacy or the petition violates …. any requirement established by law.” ORC 3501.39. This language is broad enough to encompass both federal and state law. The problem is that Ohio’s deadline for filing a protest is 74 days before the primary – that is, early January. ORC 3513.05. It’s therefore too late to sue in Ohio.

Fortunately for skeptics of Senator Cruz’s eligibility, there’s at least one state where a challenge could still be brought. Pennsylvania will hold its primary on April 26. The last day for candidates to file nominating petitions was yesterday, February 16. See here and here. Under Pennsylvania law, a candidate’s nominating petition must include an affidavit affirming eligibility for the office sought. See 25 P.S. 2870; In re Pippy, 711 A.2d 1048 (1998). A registered elector of the party has standing, and state courts may rule on the eligibility of candidates for federal as well as state office. In re Duncan, 102 Pa. Comwlth 99 (1982). Someone objecting to a candidate must file a petition within one week of the due date for nominating papers, 25 P.S. 2937 – that is, by February 23.

One of the grounds for objection is that the candidate’s nominating papers contain false statements. In re Cianfrani, 359 A.2d 383 (1976). A candidate’s statement that he is eligible when in fact he is not would be false, rendering the candidate’s nomination invalid and requiring a court to set it aside. Pippy, 711 A.2d at 1051. In Pennsylvania as in Ohio, this procedure may be used to challenge a candidate’s qualifications for office. See, e.g., DeNome Election, 3 Pa. D. & C.3d 583 (1977). Pennsylvania state courts would thus seem to provide an appropriate forum for litigating the question of Senator Cruz’s eligibility – but only if an objection is filed by Tuesday.

One might understandably worry that it would be desirable to get a ruling from a federal court, ideally the Supreme Court. I agree. The meaning of the “natural born Citizen” clause is a question of federal law, after all, one that has arisen with respect to three presidential candidates in the past three election cycles. A state court ruling would be helpful, but only a Supreme Court ruling could dispel the uncertainty surrounding its meaning.

The good news is that review of a state court decision on Cruz’s eligibility could be sought in the U.S. Supreme Court. The Supreme Court’s jurisdiction to review federal law questions is broader than that of lower federal courts. In particular, the Supreme Court can review a state court’s erroneous interpretation of federal law, even if standing would have been lacking had the lawsuit originally been brought in a federal district court. See ASARCO v. Kadish, 490 U.S. 605 (1989).

This means that the Supreme Court could review the decision of Pennsylvania’s courts on the meaning of the “natural born Citizen” clause, if a timely state court action is brought and litigated through that state’s system, resulting in a judgment on the merits. It would be helpful for the Supreme Court to rule on the issue, whatever the outcome in state court, so we can get a definitive ruling on who’s a “natural born Citizen” for this and future presidential elections. Fortunately, it’s a clean issue of law, which should facilitate expedited review.

In my view, it would be a public service for someone to bring an action challenging Senator Cruz’s eligibility in Pennsylvania or another state court, to clarify what “natural born Citizen” means. Counterintuitive though it might seem, state court is the most promising forum for such an action. The issue could then be litigated up to the U.S. Supreme Court, which would be well-advised to grant certiorari so we know who is and isn’t eligible to serve as President, an important federal question if there ever was one.

Tokaji’s Testimony re Ohio’s Initiated Constitutional Amendment Process

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By Daniel P. Tokaji

The following written testimony was submitted to the House Government Oversight and Accountability Committee for a June 23, 2015, hearing on the proposed amendment to Ohio’s initiated constitutional amendment process. I sympathize with the goals of Sub. H.J.R. 4 but, for the reasons stated more fully below, oppose the proposal in its present form. Its vague and ambiguous language is an invitation to judicial lawmaking and would do more harm than good if adopted.

Thank you for allowing me to present testimony regarding this proposed constitutional amendment. I sympathize with the goals of Sub. H.J.R. 4 but, for the reasons stated more fully below, oppose the proposal in its present form. Its vague and ambiguous language is an invitation to judicial lawmaking and would do more harm than good if adopted.

By way of introduction, I am Charles W. Ebersold & Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University, Moritz College of Law. I am also a Senior Fellow with Election Law @ Moritz, a nonpartisan program devoted to providing accurate information, analysis, and commentary on election law and administration. My primary area of research and expertise is election law. I am co-author of the casebook Election Law: Cases and Materials (5th ed. 2012), author of the book Election Law in a Nutshell (2013), and former co-editor of Election Law Journal, the only peer-reviewed academic journal in the field. I have written numerous academic articles on various election law topics, including election administration, redistricting, and campaign finance. One of the courses I teach is Legislation, which includes statutory interpretation and ballot propositions. This testimony is solely on my own behalf and does not represent the views of any entities with which I am affiliated.

The current version of Sub H.J.R. 4 would amend the Ohio Constitution to prohibit initiative constitutional amendments that grant a “monopoly or a special interest, privilege, benefit, right, or license of a commercial economic nature….” I not only understand but also share the concern that motivates this initiative. There is a legitimate worry that powerful economic interests have too much influence on ballot measures. In particular, it is easy for those with substantial wealth to get a proposed initiative constitutional amendment on the ballot, in Ohio and in other states, although economic resources are not sufficient to ensure passage. There is also a reasonable concern, also one I share, with particular persons or groups being granted economic benefits from ballot measures that are disproportionate to the benefit that the general public would derive.

Notwithstanding my sympathy for the concern that motivates Sub. H.J.R. 4, I am concerned about the unintended consequences of its current language. Its wording is intolerably vague and poorly drafted, in my opinion. More specifically, the proposal’s loose and malleable language would confer enormous discretion on judges to invalidate ballot measures that differ from their with their own policy preferences, while upholding ones that accord with judicial preferences. Sub. H.J.R. 4 is therefore an invitation to judicial lawmaking that would overrule citizen-initiated democracy.

My greatest concern is with Sub. H.J.R. 4’s language regarding a “special interest, privilege, benefit, right, or license” in subsection 1e(B)(1). No definition for this term is provided. While the goal of this provision may be laudable, there is no universally or even commonly accepted definition of a “special interest.” One person’s special interest is another person’s public interest. The meaning and application of this provision will ultimately be decided by judges of our state supreme court, and there is no telling exactly how they will interpret such a vague, open-ended term.

What we can be certain of is that placing such a vague provision in our state constitution will multiply litigation over initiative constitutional amendments. The opponent of virtually every initiative will claim that it benefits a special interest at the expense of the public interest. We can also safely anticipate that this language will invite our judges to apply their own political or ideological values in determining which initiative constitutional amendments will stand and which will fall, supplanting the role that the people are supposed to play under direct democracy.

This concern is not merely hypothetical. It is instead based on research of scholars who have carefully studied judicial intervention in ballot measures. For example, a study by two prominent scholars of direct democracy examined state appellate court judges’ decisions in five states, involving more than 150 cases and 700 individual judges’ votes on single-subject rules. They found that judges were more likely to uphold initiatives if their partisan affiliation indicate that they would be sympathetic to the proposed initiative. John Matsuzaka & Richard L. Hasen, Aggressive Enforcement of the Single Subject Rule, 8 Election Law Journal 399 (2010).

Professors Matsuzaka and Hasen’s finding is directly applicable to the proposed subsection 1a(C) of Sub H.J.R. 4, which would constitutionalize the single-subject rule. But the “special interest, privilege, benefit, right, or license” language raises even graver concerns. That is because the definition of “special interest” (and the other terms that immediately follow it) is even less defined – and definable – than single-subject rules. We now have considerable precedent on what a single subject means, but we do not have any established precedent on the meaning of “special interest” or the like terms that follow. Accordingly, there is no constraint on judicial subjectivity. Sub. H.J.R. 4 will inevitably lead judges, consciously or not, to substitute their own policy preferences for the will of the people. We can expect that judges will strike down initiatives with which they personally disagree, even though they command majority support among the people of Ohio.

What is the proper response to the concern about certain groups earning a windfall from a particular constitutional amendment at the expense of the general public? This is a reasonable question, given the ease with which well-financed groups can qualify initiatives for the ballot. The answer is that we should trust the people to make the right judgment. We should also do our best to inform them if we believe that a ballot measure would disproportionately benefit a powerful economic interest. In other words, this is an area where the best answer to speech we don’t like is more speech. Those who are active in public discourse, especially elected public officials, have a responsibility to help educate the public about the undesirable effects of ballot measures.

The empirical research generally shows that, while it is relatively easy for wealthy groups to qualify a ballot measure, it is not so easy to pass one. Our citizens do a good job, better than most elite observers suppose, of sniffing out ballot measures that enrich the few at the expense of the many. See, e.g., John Matsuzaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (U. Chicago Press 2004). We would do well to trust the people to make policy judgments about the public interest, rather than foisting that responsibility on state judges.

I am aware that language has been added to the proposed constitutional amendment that, as I understand it, is designed to limit its application to commercial activities. While I agree that such a limitation is appropriate, the current language is carelessly written and therefore ill-tailored to accomplish this objective. To see why, I quote the full text of subsection 1e(B)(1), with the relevant language italicized:

The power of the initiative shall not be used to pass an amendment to this constitution that would grant or create a monopoly or a special interest, privilege, benefit, right, or license of a commercial economic nature to any person, partnership, association, corporation, organization, or other nonpublic entity, or any combination thereof, however organized, that is not available to other similarly situated persons, partnerships, associations, corporations, organizations, or other nonpublic entities at the time the amendment is scheduled to become effective.

Although I agree that the prohibition, if adopted at all, should be limited to activities “of a commercial economic nature,” the proposed language is not carefully drafted to achieve this limitation. Under the “last antecedent” canon on statutory interpretation, a modifying word or phrase is presumed to apply only to the last word which preceded it – in this case, the noun “license.” Accordingly, if this canon were followed by a court, the modifying term “of a commercial economic nature” would not apply to measures that “grant or create a monopoly or a special interest, privilege, benefit, [or] right.” Rather, the “commercial economic” limitation would apply only to measures that grant a “license.” It is likewise unclear whether the adjective “special” is meant to modify only the noun “interest” or, alternatively, to modify the nouns “privilege,” “benefit,” “right,” and “license” as well. I believe that the intent is the latter but, again, the language is not carefully drafted to accomplish this end.

Fortunately, the ambiguous application of these two modifiers can be repaired without much difficulty. The modifying term “of a commercial economic nature” could be added immediately after each of the nouns preceding it (i.e., “monopoly,” “interest,” “privilege,” “benefit,” “right,” and “license”). In addition, the adjective “special” should be added immediately before each of the nouns it is intended to modify. For purposes of clarity, each of the full terms (e.g., “special privilege of a commercial economic nature”) should appear on a separate line preceded by a parenthetical letter (i.e., (a), (b), (c), (d), (e) and (f)). I hope this description is understandable, but if you would like further clarification, please let me know and I would be happy to assist your staff in drafting alternative language.

So there is no confusion, this suggested modification to the existing language would not fully resolve my concerns about Sub. H.J.R. 4. Even if limited to commercial economic activity, the references to “special interest,” “special benefit,” and the like are still too vague for adoption, in my opinion, opening the door to judges giving effect to their personal, political, and ideological predilections. While the above-mentioned modification would improve the proposal slightly, Sub. H.J.R. 4 would still remain too vague, and thus an invitation to judicial subjectivity.

Finally, there is a problem with subsection 1e(B)(4) of this proposal, which provides in pertinent part:

If, at the general election held on November 3, 2015, the electors approve a proposed constitutional amendment that violates or is inconsistent with division (B)(1) of this section … then notwithstanding any severability provision to the contrary, that entire proposed constitutional amendment shall not take effect.

This provision is invalid and therefore would be inoperative if the measure becomes law. That is because the current Article II, Section 1b of the Ohio Constitution provides:

If … conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes …. shall be the amendment to the constitution.

To see why the proposed language from Sub. H.J.R. 4 is unenforceable, suppose that the November 3, 2015 ballot includes a citizen initiative that would amend the constitution in a way that “violates or is inconsistent” with Sub. H.J.R. 4. Suppose further that both the citizen initiative and Sub. H.J.R. 4 are approved by a majority of voters. By definition, those two constitutional amendments would be “conflicting” under current section 1b, because they are inconsistent with each other. Accordingly, only the constitutional amendment receiving the greater number votes would be operative. If the citizen initiative received more votes than Sub. H.J.R. 4, then Sub H.J.R. 4 – at least its provision purporting to nullify conflicting constitutional amendments – could not be given effect. At this time, I have no position on whether the remainder of Sub. H.J.R. 4 could still take effect. The irony is that the provision of Sub. H.J.R. 4 purporting to nullify conflicting initiative constitutional amendments is itself null, and could potentially have the effect of nullifying other parts of Sub. H.J.R. 4.

For all these reasons, I oppose Sub. H.J.R. 4 in its current form. Thank you for considering my views on this important subject.

Imperfect Remedies for Election Problems

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By Steven F. Huefner

Extending voting hours in response to polling place irregularities may be appropriate, but is far from ideal.

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.