2004

Minimizing the Need for Provisional Ballots: A Reform Worth Wishing For

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As we make our wishes for the new year, let’s add this to the list: a system for verifying voter eligibility before Election Day, so that officials can reduce the need to verify eligibility after ballots are cast.

This year’s presidential election was the first in which congressionally mandated provisional voting played a part. Much research should be undertaken to analyze how this process of provisional voting operated in different states – and different counties within each state. For example, we need to understand better what sources of information election officials in different localities used to ascertain whether provisional ballots were eligible to be counted: only the locality’s most recent list of registered voters, or previous lists (to see if voters were erroneously dropped from the most recent list), or voter registration cards (to see if individuals were never added to the list, because of missing information on the cards or other processing errors)?

But we already know this: provisional voting was poised to be a significant factor in the resolution of the presidential election, and under the current system it is susceptible to much disputation after Election Day, as competing candidates attempt to increase or decrease the percentage of provisional ballots ruled eligible for counting (depending on whether provisional ballots are more likely to be for or against the candidate).

We have seen such disputation in the gubernatorial race in Washington State, and we would have seen even more in the presidential race in Ohio had the margin of victory on Election Night been a bit closer.

Here’s the important fact: over 2.5 percent of all ballots cast in Ohio this year were provisional ballots (153,539 out of 5,722, 211, or 2.68%.) It does not take a rocket scientist to realize that when this large a percentage of the total vote must be evaluated for eligibility after Election Day, there is a significant increase in the likelihood that litigation over these eligibility determinations will dictate the winner of the race. For example, if there were a fight over the eligibility of 50,000 provisional ballots, and these disputed ballots would have split 60-40 for one candidate, that 10,000 vote difference is roughly the same as the margin by which Carter beat Ford in Ohio in 1976 (11,116 to be exact).

One way to reduce the potential significance of litigation over the eligibility of provisional ballots is to make the process for evaluating their eligibility as clear-cut and “pro forma” as possible. If everyone knows that there is only a simple question to ask about a provisional ballot – was the individual who cast it on the state’s verified “master list” of registered voters (if so, it counts; if not; it doesn’t)? – then there is not much room for disputing whether or not a provisional ballot should be counted.

An objection likely to arise about such a mechanical process of evaluating provisional ballots is that it undercuts the reason for their existence. Congress mandated provisional voting so that it could serve as a kind of insurance policy for voters wrongly removed from the state’s list of registered voters. If the only question asked about a provisional ballot is whether the person who cast it was on the state’s list, and the ballot is ruled ineligible if not, then the ballot cannot serve as the insurance policy that Congress envisioned.

The solution to this conundrum is to develop a pre-election process for verifying the accuracy of the state’s voter registration list. If it can be determined during October that a voter was wrongly removed from the list, then that voter can be reinstated before Election Day – and that voter can cast a regular rather than provisional ballot, thereby reducing the percentage of ballots in need of post-election evaluation.

Moreover, the pre-election process of checking the accuracy of the registration list can mirror precisely the post-election process that would occur if provisional ballots are examined not just to see if the individuals who cast them are on the list but whether they should be on the list. Let’s say that that there is a post-election dispute about whether an individual who cast a provisional ballot was wrongly removed from the state’s list of registered voters (perhaps based on the mistaken belief that the individual had moved out of state). Election officials would need to go back and look at various records (old registration lists, change-of-address notices, etc.) to see if such an administrative error indeed had occurred.

The crucial point is that the exact same examination that might occur in November to evaluate the eligibility of a provisional ballot could also occur in October to verify the accuracy of the registration list, and it would be preferable for this process to occur in October before any ballots are cast, rather than after Election Day.

There are several reasons why it would be better to make this same voter eligibility determination before Election Day rather than afterwards. First and foremost, when made ahead of time, it occurs under conditions of greater uncertainty, before candidates know how many provisional ballots must be “harvested” to flip the winner from the returns available on Election Night. Eligibility decisions are more likely to be made “on the merits,” without the taint of partisan bias, if they are made under this pre-election condition of greater uncertainty.

Second, as indicated earlier, when these eligibility decisions are made after Election Day, there is the greater likelihood that the public will perceive that the election was decided in court, rather than in the voting booth. That perception is unhealthy for democracy.

Third, with respect to presidential races specifically, the longer it takes after Election Day to resolve disputes about voter eligibility, the greater the likelihood that these disputes will not be resolved until after the time the Electoral College meets. Missing the Electoral College deadlines is a recipe for uncertainty and further disputation at best, constitutional crisis at worse (as has been discussed elsewhere – to read, click on one of the three links below)

For these and other reasons, we hope that the new year will bring legislative reforms that enable disputes about voter eligibility to be settled before Election Day, so as to reduce the potential role for disputes about provisional ballots afterwards.

The Legislature Can Do Better and the Citizens of Ohio Deserve Better

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By Donald B. Tobin

The Ohio Legislature was called back into special session by the Governor to complete work on campaign finance reform. The election process in Ohio has been beset with anonymous contributions, hidden money, and serious accusations of campaign finance abuse. The legislature can and should act quickly to make Ohio’s election law a model for other states to follow.

Unfortunately, the current proposal being considered by the legislature is far from a “model” plan, and has the potential to turn Ohio into a state where campaign contributors, and not legislators, are really in charge.

The current legislation contains some important provisions. It eliminates some of the loopholes used by local parties to funnel campaign donations to specific candidates, and provides for broad-based disclosure by groups, candidates, and parties engaged in election activity. In fact, as my colleague Edward Foley noted here, the Ohio disclosure provisions are so broad, some of them may raise constitutional concerns.

The current proposal, under the cover of reform, also contains provisions that are worrisome. The proposal raises the amount a person can give to a candidate from $2,500 to $10,000. This is a 400 percent increase and is 500 percent more than the federal limit of $2,000. Limits this high in regional state elections have a strong potential to corrupt the electoral process, or at the very least, raise the appearance of corruption.

Races for the state legislature do not, and should not, cost millions of dollars. With contribution limits of $10,000 a candidate running for office could fund his or her entire campaign with the contributions of a few wealthy donors or PACs. These wealthy donors would then have more influence in the political process and further leave the average citizen out in the cold. It is because of the serious corrupting potential of large contributions that the United States Supreme Court has upheld federal contribution limits of $2,000.

In addition to significantly expanding the amount a person can give to a political candidate, the current legislation also significantly expands the role corporations and labor unions can play in state elections. Under current law, corporations and labor unions are generally prohibited from spending funds to aid or oppose a political party or candidate. These restrictions are fairly broad, and, as discussed here, have important historical roots. Expanding labor and corporate money in political campaigns is hardly reform.

There is some indication that these potentially corrupting provisions were added to the bill “in exchange” for the broad disclosure provisions. If such a “deal” did occur, it is a bad one. Broad disclosure is important, but increasing the influence of a select few has the potential to place our democratic initiations at risk. Furthermore the “deal” may be no deal at all. If the broad disclosure provisions are determined to be unconstitutional, then we might end up with higher contribution limits and more corporate and union money flowing into the system, with nothing to show for it. The legislature should stick with broad-based disclosure requirements, and reject any effort to expand contribution limits and corporate and union involvement in elections.

The legislature can do better, and the citizens of Ohio deserve better.

Investing in Politicians to Boost Corporate Profits

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There is nothing wrong with the profit motive, and nothing wrong with corporations seeking to improve their bottom line. A sound economy runs on such economic activity.

But there is something wrong with businesses buying politicians as a way to boost corporate profits, rather than investing in new technology or otherwise improving productivity.

When businesses try to fleece the public by getting politicians to adopt “special interest” tax breaks and other laws favorable to their bank accounts but contrary to the public interest, the economy as a whole suffers. Inefficient enterprises get subsidized by government favoritism. Consequently, there is less aggregate wealth in society, even though the politician-purchasing businesses are themselves wealthier.

That is why, ever since Teddy Roosevelt, politicians seeking to promote the public interest rather than private avarice have supported banning corporate involvement in political campaigns. They know that business corporations spend money on election campaigns as a way to purchase influence over elected officials, so that they can reap the financial rewards of favorable legislation even when they are inefficient and cannot compete in the market.

In 1907, Congress passed the first federal law prohibiting corporate involvement in political campaigns. In 1947, Congress strengthened this law with the Taft-Hartley Act, so named because of the lead sponsorship of Senator Robert Taft, the grandfather of Ohio’s current governor. Then, just two years ago, Congress strengthened this prohibition even further in the McCain-Feingold legislation, after reviewing reams of evidence that corporations had pried open loopholes in the then-existing law – and had used these loopholes to distort Congress’s agenda and to divert Congress’ attention from the public interest.

Based on this abundant evidence, the U.S. Supreme Court last December upheld the constitutionality of the new McCain-Feingold legislation and rejected the contention that Congress had adopted it solely as a means of protecting the incumbency of its members. As the Court itself observed, “[t]he evidence connects [this special-interest campaign spending] to manipulations of the legislative calendar, leading to Congress’s failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation.”

Given this history, it is with dismay that one reads – as the Columbus Dispatch reported last week – that the General Assembly of Ohio, rather than adopting its own version of the McCain-Feingold improvement, is considering a rollback of Ohio’s prohibition on corporate campaigning equivalent to the Taft-Hartley Act.

Ohio is supposed to be in the midst of campaign finance reform. The state has been plagued with scandals caused by special interests seeking to exploit the same kind of loopholes that led to the enactment of McCain-Feingold. (For background on the recent campaign finance scandals in Ohio, read here.) Evidently, however, some think it may be possible to use a bill labeled “reform” as a smokescreen for removing a cornerstone of the century-old effort to protect the public interest from corporate cupidity.

There is simply no good reason to repeal Ohio’s longstanding prohibition on corporate spending on election campaigns. The argument is sometimes made that disclosure should suffice, that corporations should be free to spend as much as they wish to support a politician’s election as long as they disclose what they spend. But that argument, which may work for campaign spending by individuals and nonprofit groups, does not work for business corporations.

No dollar that a business corporation spends on an election campaign is designed, as an exercise of civic-mindedness, to promote the public good. Instead, it is intended to increase shareholder earnings. That’s because, by law, everything that business corporations do is supposed to be done with the goal of increasing the return to shareholders. Again, there is no problem with corporations having this motive – it’s just that we also need laws that protect the political system from being influenced by corporate activity that necessarily has this motive. (Otherwise, corporations will end up on the public dole even when they are economically inefficient and thus unworthy of government assistance.)

Thus, no amount of disclosure can remove the inherently corrosive effect of corporate spending on political elections. This spending inevitably is intended to purchase improper influence over an elected official and hence needs to be banned. (Since labor unions act in the economic interests of their members in a way parallel to corporate conduct in the interest of shareholders, it has long been believed that labor unions should be barred from engaging in election campaigns to the same extent as business corporations, and the U.S. Supreme Court recently upheld this parallel prohibition on labor unions when reviewing the McCain-Feingold law.)

Moreover, and most important, it is unnecessary to inject corporate money into election campaigns to make them run properly. There is – and will continue to be – plenty of money from individuals and nonprofit groups. Such campaign spending by citizens and civic groups may sometimes be criticized as being motivated more by self interest rather than public interest. But at least some of this spending will be undertaken by a genuine civic-minded desire to improve the public good – and all of it has the capacity to be so motivated, whereas none of corporate spending does.

Therefore, individuals and nonprofit groups must remain free to spend what they wish on election campaigns, and precisely because they must remain free to do so, it is unnecessary that for-profit businesses also be unfettered to engage in campaign spending. Full political freedom for flesh-and-blood citizens, as well as for groups of citizens who join together to achieve common political aims, exists without letting business corporations enhance shareholder earnings by purchasing influence over politicians.

Thus, whatever else the General Assembly of Ohio does regarding campaign finance before this year is out, it should not repeal the state’s longstanding prohibition on campaign spending by business corporations.

Reforming the Timetable for the Electoral College Process

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By Steven F. Huefner

In addition to this Weekly Comment, which urges congressional reform of Electoral College timetable, a separate new posting extensively analyzes the complex relationship between the current Electoral College rules, as enacted by Congress, and Ohio’s recount procedures.

Four weeks after the 2004 presidential election, Ohio is still several days away from certifying its official results. Secretary of State Kenneth Blackwell has directed county election boards to complete their official post-election canvass by December 1, in conformance with state law, and apparently has indicated that the final statewide certification will occur no sooner than December 3, and perhaps not until December 6. As the November 17 Weekly Comment observed, this timetable for election certification has the potential, in the event of a close race, to create irredeemable conflicts with the federal statutory processes for casting and counting presidential electoral votes. This Comment suggests that an adequate remedy to this conflict requires extending the federal timetable, in addition to speeding up the state timetable.

If the results of a presidential election were close enough to require a statewide recount or to give rise to litigation that otherwise could affect the outcome, then it is highly unlikely that under current law Ohio could determine its winner in time to take advantage of the federal “safe harbor” deadline, which this year is December 7. This is the date after which a state’s selection of electors is no longer presumptively conclusive when Congress meets to count electoral votes. Indeed, Ohio might even have difficulty resolving a contested presidential election before the date when the electors meet to cast their votes, which this year is December 13.

In response to this potential problem, Ohio could adjust its post-election processes to produce a certified official result sooner, as the November 17 Comment suggested. However, even if Ohio completed its election canvassing processes and certified an official result by mid-November, the existing federal timetable likely would remain unrealistic in the event of a dispute or contest about the statewide winner of the presidential election. The fact that in the 2000 election the U.S. Supreme Court terminated Florida’s effort to complete a fair recount of its presidential ballots precisely because the federal “safe harbor” deadline had already arrived, even though Florida had been conducting manual recounts since a few days after the election, only provides additional evidence that some adjustment in the federal timetable might be in order.

Federal law establishes the date when states choose their presidential electors (the Tuesday after the first Monday in November, as provided in 3 U.S.C. ‘ 1), the date for conclusively resolving any controversy about the choice of those electors (the “safe harbor” date provided in 3 U.S.C. ‘ 5, defined as six days before the date set for the electors to cast their votes), the date when those electors cast their votes for President (the Monday after the second Wednesday in December, as provided in 3 U.S.C. ‘ 7), the date when Congress counts these electoral votes (January 6, as provided in 3 U.S.C. ‘ 15), and the date when the newly elected President takes office (January 20, as provided in U.S. Const., amend. XX). Because this last date is established as a matter of U.S. constitutional law, it would be the most difficult to change. The remaining dates, however, are set entirely as a matter of federal statutory law, and therefore could be altered simply by congressional action. Moreover, the intervals were set in an era when modes of communication demanded substantial time between key steps in the electoral process. In today’s information age, the need for most of these intervals is hopelessly antiquated.

The exception, of course, is the interval between the popular election and the elector’s casting of their votes. Under existing federal law, the time between election day and the safe harbor for choosing a state’s electors is five weeks. Both the 2000 and 2004 elections suggest that this interval may not be sufficient for the satisfactory resolution of a close election. Although Ohio and other states certainly could expedite their post-election canvassing and certification processes, and should do so as much as reasonably possible, the value of a compressed timetable must be balanced against the needs for fairness, accuracy, and transparency. Post-election processing of absentee ballots, scrutiny of provisional ballots, and recounting of paper ballots all take time to be done right, even without judicial involvement. Furthermore, once candidates or voters turn to courts for assistance in resolving legal issues, still more time will often be necessary, if the election processes are to remain fair, accurate, and transparent. Indeed, the frantic briefing, argument, and decision schedules under which the supreme courts of Florida and the United States were compelled to handle the 2000 election almost certainly compromised their treatment of the issues before them.

How, then, to provide sufficient time for resolving election controversies, while recognizing that election outcomes also must be settled quickly? One possibility would be to push back several days the date for counting the electoral votes in Congress, say to January 10, and in turn to set January 3 as the date for the electors to cast their votes in their state capitals, and December 31 as the safe harbor date. (In fact, until 1933, when the twentieth amendment moved up the date for presidential succession to January 20, federal law had called for Congress to count electoral votes on the second Wednesday in February.) This adjustment would add anywhere from 17 to 23 days, depending on the year, to the time available to resolve an election controversy before the safe harbor deadline. Of course, in most elections, the result would still be known by the morning after the popular election. But in those few instances that may require more time, the additional three weeks under this revised timetable could be invaluable.

What would be the costs of this delay? In those rare cases in which the election is not publicly settled the morning after the election, pushing the safe harbor back to December 31 obviously has the potential to reduce the transition time for a new administration. On the other hand, in precisely these rare cases, it is preferable that the election’s ultimate outcome be one that the public trusts, rather than that the incoming administration know its status three weeks sooner. In the meantime, both principal candidates presumably would conduct a number of transition activities. These activities, although undoubtedly compromised, could partially ameliorate the delay in knowing the ultimate outcome. Some modifications in the Presidential Transition Act, which currently provides federal assistance to “the apparent successful candidate” as early as the day after the popular election, might also be in order, to enable both candidates to draw upon government support in planning for a potential new administration. In any event, this transition inconvenience seems preferable to forcing state and federal courts and state elections officials to rush their judgment about the election outcome.

Of course, a variety of other election reforms, including electronic voting, early voting, and a nationwide voter database, could increase election day efficiency and accuracy, and thereby reduce the likelihood of a disputed election and alleviate much of the need for an expanded post-election timetable. But no reforms will eliminate the possibility that another presidential election will become a pitched battle in court. It therefore makes sense to prepare for this possibility by maximizing the time available to determine any such real controversy, under both state and federal law.

While a number of expansions of the federal timetable are imaginable (including even moving Election Day forward from November to, say, Labor Day), more drastic reform seems less politically feasible. Accordingly, Congress should adopt some version of the timetable suggested here to replace the antiquated Electoral College timetable now in use.

Voters with Disabilities: The Potential Swing Vote in the Presidential Election

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By Ruth Colker

Two untold but related stories from this year’s presidential election include: (1) the disenfranchisement of disabled voters due to the long lines and other accessibility problems at polling places, and (2) an historic shift in voting preferences from Democratic to Republican among disabled voters.

Although the United States Department of Justice has issued guidelines for accessible polling places, those guidelines do not speak to how elections are conducted. Accessibility complaints from this year’s election are numerous. Some individuals complained that they could not physically stand for the several hours necessary to wait to vote. No folding chairs were available for people to rest. Further, there was no signage indicating that people with disabilities could request accommodations from the long lines.

At some polling places, accommodations were being made for individuals with disabilities, but there was no uniform procedure for insuring that accommodations were offered. Individuals with hidden disabilities were sometimes challenged for documentation to prove their disability status. Even individuals with obvious disabilities were sometimes harassed when they sought accommodations. When a disabled voter carrying oxygen sought to vote in Broward County with assistance, he was required to present proof of disability. In Delaware County, Pennsylvania, a voter who used a wheelchair was reportedly told that she had to get out of the wheelchair in the booth if she wanted to vote.

Due to the length of the lines, some polling places enforced time limits for voting. After waiting for several hours, some individuals with disabilities found themselves unable to vote in the five or fewer minutes that they were allocated to vote. In Kentucky, voters were reportedly limited to two minutes to cast their votes.

Some individuals with disabilities need assistance when voting, and polling places were inconsistent in how they allowed individuals to access assistance. Some polling places insisted that only a family member or legal guardian could assist the individual with disability, yet the individual had no family members living in the state who could offer such assistance. One voter in Cleveland reported that poll workers called the police when she sought to assist her sight-impaired neighbor.

Although HAVA requires that curbside voting be made available to voters who cannot get to their polling sites due to accessibility problems, that requirement is frequently not followed. A poll worker in Hillsborough, Florida, complained that curbside voting was not being made available. A voter in Cuyahoga County, Ohio, voiced a similar complaint.

Solving many of these kinds of problems is relatively simple and inexpensive. Clear signage indicating how people can request assistance or accommodations would streamline the process. Consistent rules across polling places would insure that all voters with disabilities are given an equal chance to vote, irrespective of their polling place locations. States can liberalize their rules about voting assistance so that voters with disabilities can choose who they trust to assist them with voting. Early voting can be made easier for all voters, including voters with disabilities.

Voters with disabilities may have been the decisive factor in Bush’s popular vote plurality over Kerry, as contrasted with the 2000 election. In 2000, Al Gore reportedly carried the disability vote 56 to 38 percent; whereas in 2004, Bush reportedly carried the disability vote 52.5 percent to 46 percent. The volatile nature of the disability vote should cause both parties to be vying for that vote in the next presidential election. Bipartisan efforts to make voting more accessible for this key constituency could have a big impact on the next election.

When Should a Presidential Election Be Over?

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As Ohio contemplates recounting all of its ballots, at the request of the Libertarian and Green Party candidates, the impending collision between the state’s recount process and the meeting of the Electoral College necessitates a reconsideration of the state’s timetable for reaching a final count.

This year the Electoral College meets on December 13. This date is specified by an Act of Congress, which states that “[t]he electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December.” Congress, moreover, has specified that all controversies regarding the appointment of electors should be resolved six days before the Electoral College meets – in other words, before December 7 this year – in order for the vote of the state’s electors to be binding on Congress when that body meets on January 6 to review the Electoral College votes and formally declare the winner of the presidential election. The earlier date is known as the “safe harbor” deadline and figured prominently in Bush v. Gore: the Supreme Court stopped the recount process in Florida because that deadline had arrived by the time of the Court’s decision.

According to press reports, Ohio Secretary of State Blackwell plans to announce a certified statewide result in the presidential race between Friday, December 3 and Monday, December 6, after receiving certified results from each county by December 1. Even if Blackwell were to announce on Friday, there would be insufficient time to conduct a recount by the “safe harbor” deadline of Tuesday, December 7. Examining just the 76,068 punch card ballots that failed to record a vote for President, to see if that failure was the result of machine error, would likely take too long.

The state needs to shorten the process for reaching a certified result. Election Day was November 2 this year. It should not take until December 3, a whole month and a day later, to have an official count, which is then subject a possible recount. Instead, the state should be able to announce a certified result no later than two weeks after Election Day, so that any controversies over that certified result can be conclusively resolved by the “safe harbor” deadline, which is three weeks later.

Now, the state may object that it is difficult to achieve a certified result in two weeks when there are over 150,000 provisional ballots to evaluate for eligibility, as there were this year. But this point just demonstrates the necessity in future years of reducing the number of provisional ballots, as well as simplifying the judgment necessary to determine whether each provisional ballot is eligible.

It is not a good thing when over two percent of all ballots cast are in this “provisional” category, which must be examined one by one to see if each counts. Nor is it good if determining whether a provisional ballot is eligible requires anything more than a split-second decision that is transparently straightforward and thus undeniably correct. Otherwise, it is quite likely that in a future presidential election the nation will be waiting for the provisional ballots to be evaluated in order to know which candidate won, and the candidates will be fighting over which provisional ballots to count.

If it takes more than two weeks to reach an official certified result that includes an initial count of the provisional ballots, it would seem difficult to resolve any disputes over these provisional ballots by the “safe harbor” deadline. Even expedited litigation takes some time. Suppose a complaint is filed over the counting of provisional ballots two days after the announcement of a certified result, with a response to the complaint two days later. Suppose a hearing on the complaint occurs exactly one week after the announcement of the certified total, with a decision just a day later. There still needs to be time for appellate review of the decision, with the possibility of Supreme Court review if necessary. If the announcement of the certified result does not occur until three weeks after Election Day, because of the time it takes to process the provisional ballots initially, there does not seem to be enough time to fit in any challenges to the official determinations made regarding the counting of provisional ballots.

Unless Congress changes it, the “safe harbor” deadline is five weeks after Election Day. If the initial count of provisional ballots eats up three of these five weeks, because there are so many of them and each one requires some considered judgment, then there seems little hope of resolving controversies over these judgments in the two remaining weeks before the “safe harbor” deadline.

Thus, a goal for future presidential elections should be to adopt a provisional ballot process that is susceptible to an initial certified result within two weeks of Election Day. Even more, one might hope that the process for evaluating and counting provisional ballots can be sufficiently straightforward that it is always extremely unlikely that this process can affect the result of the Election Night returns. Ideally, provisional ballots should play no greater potential role in presidential elections than overseas absentee ballots have in the past. For this to occur, their numbers would need to drop considerably below the 2.5% of ballots that they exceeded this year.

Americans want their presidential elections decided by the morning after Election Day, if at all possible. There may be some elections that are too close for that to happen, and unfortunately, sometimes it may be necessary to resort to recount or other post-election procedures to settle who is the winner. But this year’s election has demonstrated – thankfully in a circumstance where the result is not in doubt – that the process for officially certifying and potentially recounting election results needs to be streamlined, at least in Ohio, in order to fit within the five-week period before the “safe harbor” deadline.

Two Weeks Before Election Day, and Yet…

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By Terri L. Enns

The presidential election of 2000 served as a wake-up call that not all is well with the electoral system in the United States. In response, many states sought to improve their voting procedures, and Congress passed the Help America Vote Act of 2002 (“HAVA”). HAVA is intended to avoid a replay of some of those problems by creating a new federal agency to assist with election administration, by providing funds to states for updating equipment and improving election procedures, and by creating some minimum standards for states to follow. In response, each state was required to submit a state plan for implementing HAVA’s requirements. Ohio’s plan is dated June 16, 2003.

And yet, two weeks before a presidential election that is too close to call, in a state that is a key battleground state, the list of unresolved issues is distressingly long. The Secretary of State’s expressed desire is to provide to “future generations” an electoral process that “ensures the integrity of their vote and provides them with an election system that is efficient and fair.” (“Changing the Election Landscape in the State of Ohio,” Ohio State Plan to Implement the Help America Vote Act of 2002, Cover letter from J. Kenneth Blackwell, Ohio Secretary of State). Hopefully, those “future generations” include those persons who will cast votes on November 2, 2004.

The list of unresolved issues in Ohio is staggering, ranging from initial registration issues, continuing through numerous unanswered questions about Election Day procedures, and including potential challenges to the process once the election has taken place. Given the length of time between the alarm bells sounded by the 2000 election and the upcoming 2004 election, many of these issues should have been resolved prior to now. And yet, only last week did a judge rule that federal votes on provisional ballots will be counted if cast in the correct county, not just the correct precinct (The Sandusky County Democratic Party v. J. Kenneth Blackwell, U.S. District Court Northern District of Ohio, 3:04-cv-07582). The suit was in response to a directive on provisional voting that the Secretary of State did not issue until September 16, 2004. Secretary Blackwell stated his intention to appeal the court’s ruling, ensuring that election workers will not be able to be trained on the proper handling of provisional ballots until very near the election. In the 2000 election, Ohio voters cast over 100,000 provisional ballots, a number which, if similar in the 2004 election, could easily affect the outcome of the presidency.

In addition to provisional voting issues, questions remain about how to handle incomplete or incorrect voter registration forms, if and how persons will be notified that their registration forms were incomplete, how poll workers will accurately identify those persons who must show identification at the polls, how the specific group of voters who are required to provide identification at the polls will know that they need to bring such identification, how poll workers will know which “other government documents” will suffice as identification, and many other questions.

This list does not include any of the potential issues caused by Ohio’s continued reliance on punch card ballots for over 70 percent of the state’s voters. Nor does the list touch on potential intimidation issues, long lines that may inconvenience or discourage potential voters, or Ohio’s provision for “challengers” from the political parties who may challenge at the polls the eligibility of a voter on grounds of age, residence, or citizenship.

Some of these problems could be solved by increased use of technology. HAVA requires a statewide voter registration list, but Ohio, while having once promised implementation by July, 2004, is not yet able to provide up-to-date registration information from all 88 counties. Such a list would provide voters with a single place to check for whether or not their registration was accepted and to locate their proper polling place. Additionally, poll workers would more easily be able to verify registration information and identify the proper polling location for each voter.

Certainly not all of the problems anticipated for Election Day could be solved by the use of technology. Indeed, not all of the problems that will arise have even been anticipated! However, those specific types of election problems that occurred in the 2000 election and that HAVA was passed to remedy should not be causing election officials and voter advocates to scramble two weeks before the upcoming election. Let us hope that on November 3, the day after the election, every eligible voter is satisfied that her vote was properly cast and will be duly counted and that the outcome of the election reflects the will of the majority of those who voted.

Signs of High Turnout Signal Need for Prepared Poll Workers

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By David Stebenne

Both historical indicators and some contemporary ones suggest that voter turnout in the Buckeye State this November will be high. Historically, major national crises (most notably military and economic ones) have tended to increase the general public’s interest in voting. The ongoing conflicts in Afghanistan and Iraq, the global struggle against terrorism, and the sluggish economy thus promise to boost voter turnout this year.

The Democratic Party’s choice of a nominee also promises to increase voter turnout, if history is a reliable guide. Two of the highest rates of voter participation in the past hundred years occurred in the 1928 (67%) and 1960 (63%) presidential elections, which were the only other times that one of the two major parties nominated a Roman Catholic for president. Catholic candidates Al Smith and John F. Kennedy motivated higher turnout in two ways, by energizing fellow Catholics to vote for them and evangelical Protestants to vote against them. And while the importance of denominational affiliation appears to have diminished since the early 1960s, John Kerry’s Catholicism seems likely to produce a similar effect this year. Group identification among American Catholics remains fairly strong, and so a Catholic presidential candidate generates more interest among Catholics in voting than Protestant ones. Phobias among evangelical Protestants about Catholics are no longer very public, but they are still very much alive, and they, too, increase interest in voting.

Two important contemporary indicators, like those historical ones, also suggest a high turnout this year. In recent national polls, roughly three quarters of the voting-age population said they were following this year’s presidential election closely, which is much higher than at this point four years ago.

Even more revealing is the pattern of substantial increases in voter registration across the state of Ohio. Nowhere has that pattern been more pronounced than in Franklin County, the swing county in a swing state. The 2003 census revision indicated that there are approximately 815,000 Franklin County residents aged eighteen and over. As of the close of voter registration in Franklin County on Monday, October 4, however, over 837,000 had registered to vote – almost 103% of the voting age population! (The discrepancy appears to reflect people who have moved or died but have not yet been purged from the rolls, rather than fraud.) Voter registration percentages have reached 90% or more of the eligible population in some other Ohio counties, which suggests strongly that Franklin County is not an anomaly. And so we are likely in for a much higher turnout than the 55% recorded in November 2000.

High turnouts are not, of course, without precedent in the state of Ohio. The all-time high in Franklin County, for example, was 81% in 1960. The problem, however, is that in recent years turnout has usually been far less than that. And so poll workers across the state, and especially in major urban centers, need to prepare for the very real possibility of much higher voter participation than they have experienced in the recent past.

At least seven things need to be done to make possible an effective administration of the voting process. First, major urban centers such as Cuyahoga, Franklin, and Hamilton counties need to train a substantially greater number of poll workers, and be sure to teach them how to deal with large numbers of new voters who are unfamiliar with the mechanics of the voting process.

Second, such urban centers need to undertake a public education effort through the media encouraging voters to cast their ballots during daylight hours, rather than waiting until evening, when the polls will likely be very crowded.

Third, that education campaign must also stress the importance for first-time voters of bringing some form of identification to the polls, as a precaution. (If someone has registered to vote for the first time by mail since January 1, 2003, and did not include either a partial Social Security number or driver’s license number, that person will be required to produce an ID when he or she votes.)

Fourth, major urban centers need to prepare for the likelihood that large numbers of voters will have arrived prior to the close of polls, but will have to wait a long time to cast their ballots, thanks to big, last-minute crowds. Four years ago in St. Louis, the number of people in that situation was so great that some polls stayed open for up to two hours beyond the poll-closing deadline. Judicial intervention was required to produce that result and it was highly controversial at the time. Ohio’s urban centers need to train their poll workers carefully to avoid confusion and contention over this issue.

Fifth, major urban centers need to prepare for possible confusion over provisional balloting. Poll workers must be carefully trained to handle this issue in accordance with state law. (For more on this hotly debated issue, see the related discussion on the center’s web site.)

Sixth, poll workers need to be trained carefully so as not to turn away released felons (if they have re-registered since leaving prison) or college students (who register using their campus address) out of a mistaken belief that such people are not allowed to vote.

Seventh, polling stations must prepare for the likelihood of Democratic and Republican Party observers, and arrange places for them to monitor the balloting process without intimidating voters. The keys here are to be sensitive to the concerns of first-time voters and to be as consistent as possible in how observers are regulated.

There is still time for those charged with administering the voting process to take all of these needed steps. One can only hope that they are taken, so that Election Day in Ohio will work to increase public confidence in our form of government rather than diminish it.

Blackwell’s Mixed Record So Far

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Ohio Secretary of State Ken Blackwell has made a couple of major mistakes in connection with this year’s election, for which he has been the subject of well-deserved criticism. First was the outrageous decision – since rescinded, thank goodness – to reject voter registration forms unless submitted on 80-pound paper. Second is the refusal to let international observers witness how pollworkers handle the process on Election Day, a decision criticized in this column last week and, to our knowledge, yet to be revoked.

But not all of Blackwell’s decisions are improper. He rightly rejected the idea that first-time voters should be disqualified for failing to check a box indicating that they are U.S. citizens even when they had signed a statement to the same effect. (The Florida Secretary of State, by contrast, takes this hyper-technical and unnecessarily disenfranchising position.) Nor can Blackwell’s refusal to put Ralph Nader on the ballot, whether or not ultimately vindicated in court, be condemned as an exercise of partisan maneuvering.

In addition, Blackwell has made a defensible decision not to permit voters who go to the wrong polling places to cast provisional ballots under the new federal Help America Vote Act (HAVA). As explained in a new entry to the e-Book on Election Law, an initial analysis of HAVA’s legislative history tends, on balance, to support Blackwell on this issue. While one reasonably could argue that Blackwell should take a position on provisional voting that is more generous than the minimum required by HAVA, it is also reasonable to respond that too generous a policy on provisional voting could be counterproductive.

Election officials will need to quickly determine whether provisional ballots should be counted as valid votes, and this process becomes considerably more complicated if officials need to determine also which of the different races the ballot should be counted for. For example, provisional ballots submitted at the wrong precinct could be counted for all statewide races, but it would be necessary to sort out whether the ballots should count towards U.S. House of Representative races, state legislative races, and many local races and ballot initiatives. Confusion over this sorting-out process, especially given the need for speed, easily could cause errors in tabulating the number of valid provisional votes for the statewide races, including the presidential election. (Human error could fail to mark a ballot as eligible for the presidential race, even as it records the same ballot as eligible for another race.) Although one could make the judgment call the other way, it is plausible to believe it better to limit provisional voting to the single location that corresponds to the voter’s current address, rather than opening it up to wherever the voter wishes to go.

This judgment, however, assumes that it is possible to determine definitively, and without difficulty, the correct polling location for each address in the state. Often, the reason that voters go to the wrong polling place is because of redistricting that has moved their address from one precinct to another. Confusion on Election Day about which precinct is the right one for particular voters can wreak havoc and result in disenfranchisement.

Blackwell purports to handle this problem by relying, in part, on a hotline which pollworkers can call to determine the correct precinct for each voter. But Election Day hotlines are notoriously dysfunctional, ringing busy all the time as they are inundated with calls. Instead, Blackwell should insist that pollworkers at each precinct have all the information they need to establish instantly and authoritatively the correct polling location for each address. This could be done, for example, by means of a laptop and CD-ROM containing a searchable database of all addresses of registered voters in the state, with the correct precinct listed for each address along with a “Mapquest”-type set of directions on how to get to the right polling place for that precinct.

Blackwell does say that local boards of elections must supply their pollworkers with accurate maps and street listings for all addresses within the particular precinct for that location. But Blackwell should go further and demand that the pollworkers have the maps and information necessary to send voters to their correct polling places – without having to rely on a hotline – if voters arrive at the wrong one. Moreover, during the time remaining before Election Day, Blackwell should do everything possible to make accessible, including through easily navigable procedures at his web site, information on how to determine the correct polling place for each address. (The media should assist this effort through public service announcements urging voters to verify their correct polling places with their local boards of election.)

This point leads to a broader one. As significant as the decisions that Blackwell already has made regarding this year’s election, there will be many more in the days to come. As each occasion arises, Blackwell can substantially improve his overall record by making decisions that make sense in terms of the goals of an electoral process that is accessible to voters, accurate in its count, and open to inspection, so that it can be accepted as fair.

Let the Sunshine In

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Ohio Secretary of State Ken Blackwell has decided that a team of international election observers will not be permitted to watch the voting process on Election Day in this all-important battleground state, according to a Columbus Dispatch report last week. This decision is a big mistake. As it appears more and more likely that there will be controversy and confusion over the administration of the election on November 2, especially regarding the ID and provisional ballot rules that are new this year, it is imperative that the voting process be observed by neutral outsiders who do not have a stake in the outcome of the vote.

In making his decision, Blackwell relies on a provision of Ohio law (Rev. Code § 3501.35) that prohibits everyone except poll workers, voters, and certain partisan “challengers” and “witnesses” from entering polling places to watch what happens there. But Blackwell should invoke instead the separate provision of Ohio law (Rev. Code § 3505.21) that says that he, or local election boards, may designate additional observers to watch the counting of ballots. Although the distribution of ballots to be cast is distinct from the counting of them after they are cast, the count is inherently flawed if voters are denied a provisional ballot when they are entitled to receive one.

The spirit of the watch-the-counting law is to make sure that the process is transparent, so that no one can credibly claim that the election was stolen because the counting was hidden behind closed doors. The purpose of the no-entry-to-polling-places law is something else altogether: it is to prevent last-second campaigning as voters are about to step into the booth. It would be entirely consistent with this purpose to permit neutral observers to watch the administration of the new ID and provisional ballot rules, to see if voters get the ballots they are entitled to.

Moreover, the new ID and provisional ballot rules are the requirements of federal law, which necessarily takes precedence over conflicting state law. The best way to reconcile these new federal requirements with the existing provisions of state law is to say that the Secretary of State has the authority to designate neutral observers to watch how ballots are handed out to voters as well as how they are counted after they are cast. (The actual casting of votes, of course, should remain secret, behind the curtain of the voting booth.)

Also, Blackwell’s decision arguably intrudes onto foreign policy terrain that properly belongs to the federal government rather than the states. The United States government often sends or assists teams of international observers to monitor elections in other countries. Consequently, it is in our national interest to be receptive to international visitors who wish to observe our elections in the same way.

What is more, international observers are most likely to be truly nonpartisan, as they cannot vote in our elections and have no direct stake in the outcome. Ohio law specifically allows representatives of each political party to watch the voting process as “challengers,” who are entitled to claim that specific individuals are ineligible to vote. But having only partisan representatives watch the voting process invites dispute and uncertainty, as the party whose candidate loses has an incentive to cast doubt on the legitimacy of the process, and the winning party’s representatives are hardly credible when they counter that the process went smoothly. Having neutral observers is the best way for the public to know whether the administration of the election was fair.

Indeed, the public’s interest in knowing what happens at polling places on Election Day is so great that the right to monitor the process should be extended not only to a handful of international observers, but to the press, as well as to genuinely non-partisan groups that are forbidden from any partisan activities by federal tax law. If NBC News or The New York Times shows up at Ohio polling places to observe whether the new ID and provisional ballot rules work smoothly in this swing state, are election officials really going to call the police to kick them out? The thought seems preposterous.

But if there is any effort to exclude the press from polling places on Election Day, there should be an immediate First Amendment challenge in response. The interest of the entire electorate nationwide in knowing whether the presidential election in Ohio was fair and reliable must supersede the interest that Ohio has in preventing last-second campaigning at polling places. A 5-4 Supreme Court decision that upheld a narrower Tennessee law, which specifically prohibited campaigning within 100 feet of the polls, is no precedent for a prohibition against the press’s neutral observation of the voting process.

Likewise, there is no reason to keep out voting rights organizations that are inherently disqualified by federal tax law from partisan activities. Since they can’t engage in campaigning, they don’t present the concern that underlies the no-entry-to-polling-places law.

While Ohio undoubtedly has an interest in preventing so many observers that a polling place becomes an unruly circus, that interest can be satisfied by limiting the number of nonpartisan representatives at any single voting place. But the idea of excluding them altogether is misguided and sure to backfire. If neutral groups aren’t able to watch what happens at Ohio polling places this November, and if the initial count is close (as it is expected to be), then we are sure to hear reports that the process was unfair and improper in a myriad of ways. There will be no way to ascertain the accuracy of these charges, and the result of the election will be suspect, a circumstance that nobody can hope for.