By Daniel P. Tokaji

One of the catch-phrases during the 2004 election season was the “margin of litigation.” Some have attributed the absence of a protracted post-election fight to the fact that the margin of victory in key states “exceeded the margin of litigation.” As Congress and state legislatures consider whether to amend existing election laws, they would do well to consider the impact of proposed changes on the margin of litigation. Several provisions of Ohio’s pending election bill, for example, would have the unfortunate effect of increasing the margin of litigation, making post-election lawsuits over the outcome more likely.

What Is the Margin of Litigation?

It is first helpful to clarify what is meant by the term “margin of litigation.” While there may not be universal agreement among those who have used this term, it may be understood as the number of votes below which a particular election might be contested in court – or, conversely, the number of votes above which an election is “safe” from legal challenge. Thus, if the margin of victory exceeds the margin of litigation, an election will probably not be contested in court; on the other hand, if the margin of victory is less than the margin of litigation, then lawsuits challenging the outcome can be expected.

As my colleague Steve Huefner noted in the wee hours of the morning after the November 2, 2004 election, it appeared for a moment that the margin of victory in Ohio – the pivotal state in 2004 – might be within the margin of litigation. That’s largely because it wasn’t known how many provisional votes were outstanding and yet to be counted.

By mid-morning on November 3, however, it had become clear that President Bush’s margin of victory was large enough to survive any plausible legal challenge. As Professor Rick Hasen explains in his forthcoming article “Beyond the Margin of Litigation,” President Bush’s morning-after lead in Ohio was approximately 136,000 with around 153,000 provisional ballots still to be counted. Given that not all of those provisional ballots would be deemed valid, and that some of them would have been Bush votes, Senator Kerry’s campaign “did the math” and concluded that there was no realistic chance of prevailing in a legal challenge to the outcome. On the other hand, Professor Hasen explains, a margin of victory under 36,000 votes would likely have been within the margin of litigation, leading to a possible replay of the 2000 election controversy.

So what was the margin of litigation in Ohio’s 2004 election? While no one can say with precision, my estimate is that it was no more than 90,000 votes. As I explained in this post, that’s the most votes that Kerry could have hoped to pick up through post-election litigation, on the most optimistic (from his perspective) assumptions. Thus, the morning-after difference of 136,000 votes was substantially greater than the margin of litigation – and the ultimate margin of approximately 119,000 votes supports the conclusion that litigation wouldn’t have altered the result.

By way of contrast, the ultimate margin of victory in the State of Washington’s 2004 gubernatorial election was a slender 129 out of over 5.8 million cast. My colleague Ned Foley therefore observes that the margin of victory in that election “was well within the now-proverbial margin of litigation.” This explains the protracted legal fight that took place in that state, and that continued long after the declared victor had been sworn into office.

Lessons for Election Reformers

One of the lessons that should emerge from these experiences is that, in considering proposed changes to our election system, it’s essential to consider how they will affect the margin of litigation. A reform that makes post-election litigation less likely may be said to decrease the margin of litigation – it decreases the number of votes above which post-election lawsuits can be expected. By contrast, a change increases the margin of litigation, if it raises the number of votes that must separate the candidates in order to be safely out of the litigation danger zone.

All other things being equal, then, a reform that decreases the margin of litigation is a good thing. It promotes the value of finality, making it more likely that there will be a resolution on (or shortly after) the day of the election. On the other hand, again all other things being equal, changes that increase the margin of litigation are a bad thing, because they make it more likely that the outcome of an election will be fought out in court afterwards.

Of course, all other things aren’t always equal. While finality is important, it’s not the only value that our election system must serve. Two other values of importance are access (making sure that all eligible voters can vote independently and have their votes counted) and integrity (making sure that only eligible voters are allowed to vote, and that the process of vote tabulation is free of fraud and error). Improving our election system will sometimes require that difficult choices be made among these three values.

One of the factors that can increase the margin of litigation is the use of unreliable voting equipment like the “hanging chad” punch card. This equipment tends to result in ambiguously marked ballots that can’t correctly be read by mechanical counters. Its use may therefore trigger calls for a manual recount and attendant litigation, as occurred in Florida’s 2000 election.

Perhaps the most important factor in determining the margin of litigation is the number of provisional ballots cast. More than anything else, a large number of provisional ballots has the potential to call the immediate post-election vote totals into question. For example, if there had been 400,000 provisional ballots cast in Ohio’s 2004 election rather than 153,000, then the margin of litigation would have been significantly higher – probably high enough that it would have led the Kerry campaign to take the fight to court, rather than conceding.

A Case Study: Ohio’s Pending Election Bill

These considerations should inform the debate over proposals to revamp existing election laws. The Ohio legislature, for example, is currently considering a bill that would make numerous changes to the state’s election system (Sub H.B. 3). Among the questions that should be asked, in determining whether to adopt such legislation, is whether it will increase or decrease the margin of litigation.

An examination of the Ohio bill reveals several provisions that can be expected to increase the margin of litigation – and therefore to make litigated elections more likely in the future. One provision would allow pre-election challenges to voter eligibility to be granted without a hearing. In addition, there’s a new provision allowing for hearings on late-filed challenges to be deferred until after an election. In both of these circumstances, voters who are challenged would still be entitled to cast provisional ballots. The net effect, however, will likely be more voters casting provisional ballots rather than regular ballots on election day, thus increasing the margin of litigation – and with it the chances of the parties’ lawyers fighting things out in court after the election.

While the bill eliminates partisan “challengers” on election day, a change that will probably decrease the margin of litigation, election judges would still be permitted to challenge voter eligibility at the polls. Among the bases on which a voter’s eligibility may be challenged is that he or she is not a citizen of the United States. Naturalized citizens may be required to produce their naturalization papers.

Imagine, for example, a 75-year old woman from China who gained her citizenship decades ago and has been voting at the same precinct for 30 years. Under the proposed bill, that citizen would be required to show her naturalization papers if challenged at the polls – even though she probably would never think to bring them with her, having voted without incident for so long. The voter would still be allowed to cast a provisional ballot, but it appears that the ballot would only be counted if she produces her naturalization papers within three days.

There are two problems with this provision. First, it’s a recipe for racial and ethnic profiling, which may have the effect of intimidating and denying access to eligible voters. Second, it’s likely to result in more people casting provisional ballots, thereby increasing the margin of litigation. When voters are forced to cast provisional instead of regular ballots, the opportunity for post-election litigation grows.

Not all components of Ohio’s bill would increase the margin of litigation. One of the good things in the bill is a provision requiring that counties send their voters postcards notifying them of their polling places, at the time of registration and 45 days before each general federal election. This reform can be expected to decrease the margin of litigation, by making it more likely that voters will show up at the correct polling location, and therefore will cast rather than provisional ballots.

On the other hand, a related provision of the proposed bill would increase the margin of litigation. When the county postcards are returned as undeliverable, those voters’ names must be “marked” in the pollbook. While a returned postcard may indicate that a voter has moved, it may also reflect a mistake on the part of the post office or county registrar. Nevertheless, a voter whose name is marked would be required to show ID and to cast a provisional ballot. Thus, the predictable effect of the requirement that voters’ names be “marked” is that more provisional ballots will be cast – and that the margin of litigation will increase.

Fortunately, it now appears that Ohio’s election bill will be tabled until the fall. Between now and then, state legislators would be well-advised to assess whether the proposed changes will make post-election lawsuits more or less likely. To be sure, finality is only one of the values that should be considered in deciding whether to amend election laws. Some reforms that increase the margin of litigation may still be worth enacting, because they promote electoral integrity or voter access. Still, it’s vitally important that, in considering proposed amendments to election laws, legislators throughout the country consider the impact on their proposals on the margin of litigation.

By Daniel P. Tokaji

Voting activists descended upon Washington last week to urge enactment of the “Voter Confidence and Increased Accessibility Act of 2005” (H.R. 550). This bill is one of several that aims to enhance the security of electronic voting machines, by requiring that they produce a contemporaneous paper record of the electronic ballot, or “voter-verified paper record.” While H.B. 550 has some worthy features, Congress should not enact the bill in its present form because its core requirement would do more harm than good.

What the Bill Would Do

H.R. 550 is a modified version of a bill that was considered but not enacted by the last Congress (H.R. 2239). The chief sponsor of both bills is Representative Rush Holt (D-NJ). This year’s version has 135 co-sponsors in the House, almost all of them Democrats.

H.R. 550 would amend certain provisions of the Help America Vote Act (“HAVA”), the election reform law passed in 2002. The centerpiece of the current bill is its requirement that all voting systems “produce or require the use of an individual voter-verified paper record of the voter’s vote.” For electronic touchscreen machines, this would require an attached printer that would generate “a paper print-out of the voter’s vote.”

While HAVA already requires that voting systems generate a paper record, H.R. 550 would go further. In particular, it would require that electronic voting machines generate a paper record contemporaneously – that is, at the time of voting – so that the voter has the opportunity to “verify” his or her choices. This requirement would take effect on January 1, 2006, the effective date of HAVA’s other voting system requirements.

This sounds good on paper (apologies for the pun), but the results would be chaotic and possibly disastrous in practice. The most conspicuous problem is timing. It is unrealistic to require all jurisdictions using electronic voting technology to obtain printer add-ons by the 2006 election. That’s particularly true, given that there aren’t any federal standards for this device in place yet.

As many election officials discovered in the wake of the 2000 election, rushing the transition to new voting technology can cause more problems than it solves. A 2006 deadline doesn’t give states and counties nearly enough time to investigate their options, go through the procurement process, implement the new equipment, train their poll workers, and educate their voters.

Worse still, there is no provision exempting counties that have already made a successful transition to electronic voting technology. The State of Georgia, for example, moved to electronic voting throughout the state and saw the number of uncounted votes decline dramatically in 2004, particularly in heavily-minority precincts. Under H.R. 550, Georgia election officials would have just a few short months in which to replace their existing system – or retrofit it with an as-yet unproven printing device. That’s inviting trouble. It would be unfortunate if Congress enacted legislation that had the effect of reversing the substantial improvements in technology since the 2000 election.

The Experience in the States

Even beyond the timing issue, it’s doubtful that H.R. 550 provides a workable or effective solution to the legitimate concerns regarding electronic voting security. So far, only one state – Nevada – has actually implemented an electronic voting machine with a contemporaneous paper record on any significant scale. Anecdotal evidence indicates that few voters actually bothered to check the contemporaneous paper records. A serious and unbiased analysis of Nevada’s experiment is needed, before even considering a national mandate.

While experiments like Nevada’s are to be encouraged, it’s a mistake to lock in place a particular would-be solution – especially one that’s expensive and not yet proven. This will only discourage states from trying other mechanisms that may turn out to be more effective. In the end, it may actually make our voting system less secure than it otherwise would be.

Congress should also look to the experience of states that have passed legislation to require a contemporaneous paper record. The experience of California and Ohio, in particular, demonstrates the hazards of mandating a contemporaneous paper record.

In California, former Secretary of State Kevin Shelley issued a directive requiring that electronic voting systems generate a contemporaneous paper record effective 2006, and the California legislature wrote this requirement into state law last year. The dilemma that counties face is that it’s not at all clear whether these systems will actually work effectively – or, alternatively, whether paper jams, privacy issues, lack of accessibility, or the difficulty in reading the paper print-outs will hamper their effectiveness.

The result of this dilemma has been for the largest county in the United States, Los Angeles County, to retain its “Inkavote” system – an optical scan system that functions like the Votomatic punch card machine, but with dots that voters fill in instead of chad. This device was intended to be an interim solution, and is an improvement over the Votomatic that Los Angeles County used before 2004. But while “hanging chads” aren’t a problem with the Inkavote, it’s equally difficult for voters to check their work. The Inkavote is therefore inferior to the paperless electronic systems currently available, which not only reduce the number of uncounted votes but also provide accessibility advantages for disabled and non-English proficient voters. The result of California’s paper-trail bill has thus been to hinder the country’s largest electoral jurisdiction from moving to better technology.

The experience of Ohio, which also passed a law requiring a contemporaneous paper record last year, is equally illustrative. In Ohio, the result of this law has been to give a virtual monopoly of the electronic voting market to a single company – the oft-reviled Diebold. Until recently, there were no electronic systems certified in the state that satisfied the state’s requirement that these machines generate a “voter verified paper audit trail.” The only system presently certified is manufactured by Diebold and it is presently unclear whether any other systems will be certified in time to be implemented in 2006. Thus, in Ohio, the ironic result of the campaign to require a contemporaneous paper record was to give a virtual lock on the market to the very company that has been the poster child for the supposed ills of electronic voting.

The Good, the Bad and the Ugly

California’s and Ohio’s experience with “voter verified” paper trail laws should give pause to anyone who believes that H.R. 550 is the magic bullet to the problem of electronic voting security. More fundamentally, the bill rests upon the questionable premise that paper is less susceptible to manipulation than electronic records. While there have been a number of documented instances of fraud in past elections, most have taken place with paper ballots; none have taken place with electronic voting.

Moreover, it’s unlikely that the recount process mandated by the current version of H.R. 550 would catch fraud, even if it did occur with an electronic voting machine. The bill would require that the Election Assistance Commission (“EAC”) conduct a manual recount of two percent of all precincts in the country in each general election. At least one precinct per county would be recounted. This would impose an enormous burden on the EAC, requiring unprecedented coordination among federal, state and local election officials, but would have only modest benefits. It would do nothing to catch fraud at the local level, where it is more likely to occur given that relatively small changes in vote totals can swing an election. Even for federal races, such a recount would by itself provide little reason for increased confidence in the accuracy of the result, according to this analysis by VoteHere’s Andrew Neff. Neff’s analysis finds that a two percent precinct recount of a U.S. House race would catch a five percent change in the results (either accidentally or maliciously) with only 40 percent confidence. The bottom line is that the recount process mandated by H.R. 550 would impose a heavy financial burden on the federal government, while doing little to promote electoral integrity.

It is certainly important that voters be allowed to “check their work.” The paperless electronic voting machines already available allow voters to do this, in a way that’s likely to be more effective than a contemporaneous paper record that voters may or may not actually check. The best thing that may be said of allowing voters to check a paper record is that it functions as a sort of placebo, helping to elevate public confidence that elections are being conducted on the square. Even here, however, the benefits of paper are overstated. Approximately 90 percent of ballots in Washington’s recent gubernatorial election, for example, were cast by paper ballot. Yet this did little to “convince the loser that he or she lost,” one of the supposed advantages of paper.

None of this is to say that fraud and error are impossible with electronic voting. But better testing and procedures are much more likely to promote electoral integrity than a printer add-on. The $150 million that H.R. 550 would authorize for such hardware – not to mention the unknown amounts that would be required on an ongoing basis for the 2 percent national recount – would be much better spent on improving the testing and certification of voting machines. The EAC is presently engaged in this process, but progress has been hampered by Congress’ delay in funding its work.

While the centerpiece of H.R. 550 should be rejected, some of its subsidiary features are worthy of serious consideration. Foremost among them is a provision that would make the EAC permanent. HAVA only authorized appropriations to the EAC through fiscal year 2005, even though it has become abundantly clear that the work of election reform will not be finished by 2006. It’s also a good idea to address conflicts of interest by the entities responsible for testing voting systems, as the bill would do.

Another salutary change contained in H.R. 550 would clarify that there is a private right of action, where state and county election officials fail to comply with HAVA’s mandate. One federal appellate court, the Sixth Circuit, has already held that such a right of action exists. Nevertheless, it would be helpful to clarify the existence of a private right of action, so that the voting rights protected by HAVA may be adequately enforced.

Although H.R. 550 is undoubtedly well-intentioned, Congress should not enact the bill in its present form. Its core requirement would lock into place a device unlikely to be workable or effective, and would impose significant burdens – financial and otherwise – on the federal government, as well as state and local election officials. Congress should instead stay the course it charted when enacting HAVA, while providing the EAC with the authority and resources it needs to oversee the transition to better voting technology.

By Daniel P. Tokaji

The Ohio legislature is presently considering a bill (Sub HB 3) that would make changes to various aspects of the state’s election system. Last week’s comment discussed the provisions of this bill concerning voter eligibility and provisional ballots. This week’s comment addresses the areas of absentee voting, recounts and contests, and voter identification.

Absentee Voting

One area in which Sub HB 3 would liberalize voting rules is in absentee voting. Under current Ohio law, absentee voting is only allowed for those who meet one of certain specified qualifications – for example, service in the military, hospitalization, observance of a religious holiday, disability, or absence from the country. Sub HB 3 would eliminate these requirements, allowing anyone to vote by absentee ballot.

Absentee voting is one area in which liberalization doesn’t make sense. Mail-in absentee voting is the part of our voting system where there’s the greatest opportunity for fraud and other forms of mischief. That’s because the anonymity and privacy of the ballot – crucial ingredients of the election system’s integrity – are most easily compromised when voters cast absentee ballots. For example, if an absentee ballot is sent to a married couple, it would be possible for one spouse to vote the other’s ballot, and then have him or her sign the outer envelope. The possibility for coercion – by spouses, caretakers, or even one’s children – exists in a way that it does not in the privacy of the voting booth.

Worse still, no-fault absentee voting raises the possibility of vote-buying schemes. With in-precinct voting, fraud is rare. The privacy and anonymity of the ballot is, in our present system, a strong check on such schemes succeeding. If someone tries to pay me $10 to vote for a particular candidate, they can’t verify whether I’ve actually done so if I’ve voted at a precinct, given the secrecy of the ballot.

Anonymity can’t be protected in the same way with mail-in ballots. A would-be vote buyer can watch me vote and sign the envelope, and then pay me $10 for selecting certain candidates. That vote buyer can even deposit the absentee ballots in the mail himself. While this would violate state law, such schemes would be difficult to detect with a no-fault absentee system.

The motivations behind the proposed move to no-fault absentee voting are undoubtedly admirable. It is presumably designed to encourage voters to vote early, and thereby reduce the lengthy lines that many Ohioans faced on November 2, 2004.

There’s a better way to accomplish this objective. Rather than adopting no-fault absentee voting by mail, Ohio should consider in-person early voting. With early voting, as with absentee voting, voters may make their choices prior to election day. The difference is that, with early voting, voters to make their choices in the secrecy of a voting booth, set up at a central location such as the county registrar’s office or a public library. This safeguards the anonymity of the ballot in a way that mail-in voting does not.

Mail-in absentee voting will still be necessary for people who truly can’t make it to the polls, such as people who are disabled, elderly, or serving overseas in the military. For all other voters, however, in-person early voting is a better way of expanding access while still protecting integrity.

Recounts and Contests

Sub HB 3 would also make significant changes to the statutes regarding recounts and contests. It would raise the base deposit for recount applications from $10 to $50 for each precinct in which a recount is requested. It would also provide for this amount to be adjusted in future years, to keep place with inflation as measured by the Consumer Price Index. While one might quibble with the exact dollar amount, it’s reasonable for the state to increase the deposit for recounts and to provide that this amount should keep pace with inflation.

One of the biggest problems that Ohio would have faced in 2004, had the final vote tally been closer, is that the recount and contest process wouldn’t have been completed in time for the “safe harbor” date – leading to the possibility of the election being thrown to either the Ohio legislature or to Congress. My colleague Peter Shane has thoroughly described this issue in this post , and I’ve discussed it in this blog entry. In a nutshell, the problem is that Ohio’s present laws wouldn’t allow for recounts and contests to be completed by the “safe harbor” date which, by federal statute, is 35 days after the election. In fact, it’s very unlikely that this process could be completed by the date the Electoral College meets, which is 41 days after the election.

Included in Sub HB 3 are two provisions that seek to deal with this problem. One would require that “any recount of votes conducted … for the election of presidential electors shall be completed not later than six days before the time fixed under federal law for the meeting of those presidential electors.” In other words, recounts must be completed by the “safe harbor” date. The other provision eliminates Ohio’s contest process for all federal elections, including both presidential and congressional contests. Sub HB 3 provides that such contests shall “be conducted with the applicable provisions of federal law.”

It’s not entirely clear what this is referring to, since there’s not any analogous federal statute providing for contests. This may refer to the timetable for electoral ballot counting that my colleagues Prof. Shane and Prof. Steve Huefner have described. Yet federal law requires Congress to defer to the states, in cases where there’s been a “final determination” of any election contests or controversies by the safe harbor date.

HB’s proposed reforms of the recount and contest process appears well-intentioned, but probably won’t solve the timing problem. Saying that the recount must conclude by the safe harbor date is a good idea – but that by itself doesn’t mean it will happen. The big question is whether there will be enough time, under Ohio law, to complete the recount process and any attendant litigation within 35 days after the presidential election.

Sub HB 3 would amend state law to provide that election boards shall complete their canvass within 21 days after the election. (There’s no set date under current law.) A recount may be requested within five days of when the Secretary of State “declare[s]” the election results. RC 3515.02. Even assuming that the Secretary of State declares the election on the earliest possible date, 21 days after the election – and it’s not clear that this will actually happen – that would only leave two weeks before the safe harbor date, for recounts and any attendant litigation to be completed.

In the event that the recount is completed by this date, the elimination of the contest process would appear to prevent the election from being contested on any other basis. Under present Ohio law, an election may be contested where irregularities in the election affected enough votes to change or make uncertain the results. There may be cases in which such irregularities occur, but wouldn’t be resolved by a recount. Some examples include cases where 1) ineligible voters were found to have voted improperly, 2) provisional ballots were erroneously mixed in with regular ballots and counted, or 3) voters were improperly prevented from voting. If such problems occurred in a presidential election, Sub HB 3 would seem to prevent any remedy – so long as any disputes over the state’s recount were completed by the safe harbor date. In the worst-case scenario, this could mean the wrong person sitting in the Oval Office, even though we know that grievous mistakes were made during the course of an election.

How one feels about the elimination of contests may well depend on how one balances the competing values of finality and accuracy. Those who favor finality may welcome such a change, even if it increases the possibility of the “wrong person” being elected President in some future election. On the other hand, those who favor accuracy above all else may balk at such a solution, even if the chances of such a nightmare scenario developing are remote.

Identification Requirements

The Help America Vote Act of 2002 is the first federal law to impose an identification requirement on voters. In particular, HAVA requires voters who registered by mail to present documentation of their identity and address the first time they appear at the polls, unless they provided identifying information with their registration. The law does not apply to those who registered in person. In addition, HAVA doesn’t require photo ID. Those who don’t have a driver’s license, for example, can show a utility bill or government document that includes their name and address.

Bills introduced in Ohio and some other states would go significantly further, imposing a strict photo identification requirement on all voters. SB 36, for example, would extend the ID requirement would extend to those who registered in person, and not just those who registered by mail. In addition, it would require photographic proof of identification. Thus, voters who lack a driver’s license would have to obtain some form of photo ID, or lose their right to vote.

The debate over voter ID has by far been the most bitterly partisan fight witnessed since the 2004 election. Republicans argue that it’s needed to combat fraud, while Democrats contend that it’s a device by which to disenfranchise the most vulnerable voters.

One of the most striking features of the debate has been the factual vacuum in which it’s conducted. What is absent is any solid evidence of how many fraudulent votes would actually be stopped by an ID requirement like that embodied in SB 36. We don’t know, for example, how many voters actually show up at the polls pretending to be someone they’re not – much less how many fraudulent votes would be prevented by imposition of an ID requirement.

Supporters of a strict photo ID requirement have yet to make a credible case that it’s warranted. It is essential to keep in mind that, for the individual voter, voting fraud is a high risk/low reward strategy. Voters must sign in at the polls to make sure that their signatures match their registration forms. A voter who pretends to be someone else risks prosecution if he or she is caught, and the state should aggressively prosecute those who engage in such fraud. On the other hand, the rewards for the individual who engages in fraud are meager. The anonymity of the ballot – the fact that outsiders can’t confirm who someone voted for at the polls – makes it very difficult to mount any successful scheme of widespread fraud, without bearing an enormous risk. Moreover, there’s been no showing that HAVA’s existing identification requirements are inadequate.

What we do know is that imposition of an ID requirement would impose a severe burden on many voters, particularly those of low income. One study showed that 6 to 10 percent of voters lack any form of state ID. Seniors, disabled voters, and poor voters are more likely to lack ID.

If the State of Ohio is really serious about combating fraud, imposing an ID requirement is precisely the wrong way to go about it. It will impede access while doing little to promote integrity. Instead, the state should enforce existing law, cracking down on those who actually engage in fraud. It should also maintain limits on “no fault” mail-in absentee voting – the place in the system that’s most vulnerable to foul play.

The Bottom Line

Some of the changes contained in the current version of Sub HB 3 are commendable. The limits on partisan challengers and the requirement that recounts conclude by the “safe harbor” date are particularly worthy of inclusion. But it would be a bad idea for the legislature to act too hastily in enacting the bill as a whole. Some of Sub HB 3’s provisions could do more harm than good in future elections. The legislature would be well advised to err on the side of doing election reform right, rather than doing it quickly.

By Daniel P. Tokaji

With memories of the tumultuous 2004 election still fresh, the Ohio legislature has begun to examine what might be done to make the state’s voting system function better in the future. The House Elections and Ethics Committee is presently considering a bill that appears to be the main vehicle for election law amendments, and would make significant changes to various aspects of Ohio’s voting system.

In its present form, the House bill is 685 pages long. That’s partly because the bill (HB 3) reprints the affected sections of Ohio law as they currently exist, with the portions to be added underlined and those to be deleted crossed out. A similar bill (SB 3) has been introduced in the Ohio Senate.

In addition, the Senate is considering a bill (SB 36) that would require voters to show photo identification. This proposal would implement an even stricter ID requirement than the one recently enacted by the Indiana legislature, which has recently been challenged in court by the Indiana Civil Liberties Union and the Indiana Democratic Party. Some voting rights advocates are concerned that a similar ID requirement may be added to HB 3.

Taken as a whole, the current version of HB 3 includes some good features, some questionable ones, and some that would be affirmatively harmful. While a complete analysis of the significant changes proposed isn’t possible in this space, I’ll be reviewing and commenting on some of the bill’s key features in the next two weeks. This week’s comment addresses challenges to voter eligibility and provisional ballots.

Challenges to Voter Eligibility

One of the most prominent issues in the weeks leading up to the 2004 election was the parties’ use of challenges to voter eligibility. Presently, Ohio law allows challenges to be made either before the election or on election day.

HB 3 would prevent party representatives from making challenges to voter eligibility on election day. (Party representatives would still be allowed in the polling place, but would be designated “observers” rather than challengers.) This is an improvement over existing law, which raises the specter of party representatives making meritless challenges that would slow down the voting process and possibly intimidate voters.

Pre-election day challenges would still be allowed, if filed at least twenty days before the election, rather than eleven days as is the case under current law. This too is an improvement, since it gives more time to resolve challenges before election day.

Boards of election would be allowed to grant or deny challenges based solely on the board records. While it makes sense to allow election boards to deny challenges without any notice to the voter, it’s more perilous to grant them without providing the voter notice and the opportunity to rebut the challengers’ case. Although the voter would still be able to vote provisionally, the absence of pre-election notice and a hearing increases the possibility of erroneous exclusion. This is a change from existing law, which requires notice and the chance for a hearing before sustaining a challenge to voter eligibility.

In cases where the board isn’t able to determine whether the challenge should be sustained based on its records, an in-person hearing would have to be scheduled. But problems could still arise in circumstances where the board can’t conclusively rule on late-filed challenges before the election. In cases where a challenge is filed less than 30 days before the election, the board would have the option of setting the hearing after election day. In those circumstances, the voter would cast a provisional ballot rather than a regular ballot at the polls, which would be counted only if the voter is later determined eligible.

The danger that this presents is that it presents an incentive to file numerous challenges within 30 days of the election. In the event that the election board can’t conclusively determine whether the challenges should be granted, voters would be left to cast provisional ballots, which might or might not be counted after the election. It’s difficult to predict how this will play out in a close election, but it creates the possibility of more voters casting provisional rather than regular ballots on election day, with the parties left to fight over those ballots after the election.

Provisional Voting

No area provoked greater controversy during the 2004 election season than provisional ballots. One of the most hotly contested issues was whether provisional ballots should be counted, if cast in the wrong precinct. Secretary of State Blackwell ordered that such ballots not be counted, and the Sixth Circuit concluded that this order was consistent with the Help America Vote Act.

HB 3 would amend Ohio law to clarify that provisional ballots would not be counted if cast in the wrong precinct. Under HAVA, provisional ballots should be counted if cast by voters eligible and registered to vote in the “jurisdiction.” Ohio’s existing statutes don’t define this term.

HB 3 would define “jurisdiction” to mean “the precinct in which a person is a legally qualified elector.” Thus, a voter who mistakenly appeared at the wrong precinct wouldn’t have her provisional ballot counted. That’s true even if that voter had been mistakenly directed to the wrong precinct by state or county officials. It’s also important to remember that some polling places have multiple precincts in them – sometimes all voting in the same room. It appears that a provisional ballot wouldn’t be counted if the voter appeared at the right polling place, but voted at the wrong precinct within that polling place.

Whether or not this is consistent with HAVA, it’s clearly not what was intended by the bipartisan commission that originally proposed a federal provisional voting requirement. After the 2000 election, former Presidents Jimmy Carter and Gerald Ford chaired a national blue ribbon commission. Among their most important recommendations was that all states implement provisional voting, which was already in place in 19 states. It cited the example of California, in which the provisional ballot is counted if cast in the correct county.

In recommending provisional voting in all states, the Commission suggested building on the pre-existing requirements of the National Voter Registration Act (commonly known as “Motor Voter”) which defined “registrar’s jurisdiction” as the entity maintaining voting lists. 42 U.S.C. § 1973gg-6(j). This is ordinarily the county, city, or town in which the voter resides.

The Carter-Ford Commission explicitly linked its provisional voting recommendation to another key recommendation that became part of HAVA: the implementation of statewide voter registration databases. With more reliable databases maintained at the state level, the Commission reasoned, it ought to be easier to realize the goal of making sure that “[n]o American qualified to vote anywhere in her or his state should be turned away from a polling place in that state.” The Commission therefore recommended that provisional ballots be counted if the “provisional voter is eligible and qualified to vote within the state” (emphasis added).

That’s not to say that voters could appear at any precinct they desired with impunity. If a voter turned up in the wrong precinct, election officials would not be required to give them a ballot tailored to their home precinct. Rather, the provisional ballot would be counted “only for the offices for which the voter is qualified to vote.” In effect, the Commission explained, the voter who appeared at the wrong precinct would only be permitted to cast a “limited ballot.”

The current version of HB 3 departs from the bipartisan Carter-Ford Commission’s vision. Given that Ohio is required by HAVA to have its statewide registration database in place by 2006, there’s no good reason for failing to count provisional ballots of those eligible to vote anywhere in the state. Once that database is in place, it should be a simple matter to determine after the election whether that voter is really eligible and registered to vote. At the very least, provisional ballots should be counted if cast in the correct county – but again, only for those contests in which the individual was eligible to vote.

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Next week’s comment will have more on this bill, including amendments concerning absentee voting, recounts, and contests. In addition, there will be a hearing on HB 3 before the House Elections and Ethics Committee this Wednesday at 10:30 am. Check the Equal Vote blog for an update.

By Steven F. Huefner

Now that six comparatively quiet months have passed since the frenzied final week of the 2004 election, this seems an opportune moment to reflect on what we have learned from last November’s election, as well as to take stock of how much might remain to be done to capitalize on the experience. Three independent developments last week – namely, the introduction of an election reform bill in the Ohio legislature, the announcement of an initiative campaign to amend the Ohio Constitution, and the abrupt resignation from the federal Election Assistance Commission of its former chairman – are emblematic of the fact that, while some hopeful progress is occurring, much work lies ahead. Otherwise, even the 2008 presidential election will be upon us before we have incorporated our lessons.

After the 2000 election, most states and the federal government made substantial adjustments in their election laws, largely with the hope of reducing the chances that another election would be as controversial as that year’s presidential contest had been. Of course, that controversy reflected not only the fact that the outcome was incredibly close, but also the problematic nature of several components of Florida election law. Many states took a lesson from the Florida experience, and by 2004 had improved the mechanics of their voting systems and adopted clearer standards for resolving contested elections. A number of these reforms were facilitated by the Help America Vote Act, which Congress passed in 2002.

Notwithstanding these reforms, only the comfortable margins of victory in most 2004 races prevented a repeat of the 2000 debacle. Indeed, had the poll worker’s prayer of “Lord, let this not be a close election” not been answered almost everywhere (with the dramatic exception of the Washington governor’s race), any number of vexing legal issues could have arisen to cloud the 2004 outcome. Furthermore, the absence of greater competitiveness in most legislative races is itself a growing concern to the health of our democratic processes. Among other potential problems brought to light by the 2004 election were issues involving: voter registration and identification; the distribution of resources at polling places and the resulting lines at selected polls; the casting and counting of provisional and absentee ballots; mechanisms and timetables for challenging and recounting ballots; and partisan oversight of election systems. In the months since the November election, many of the EL@M Weekly Comments have addressed some facet of these issues.

In this light, the Ohio General Assembly’s effort to address many of these issues during its current session therefore is commendable. While it is too early to predict the outcome of this effort, last week the House Elections and Ethics Committee began considering a substitute election reform bill (Sub. H.B. 3) that, if enacted, would represent real progress. Among other things, the bill would permit “no-fault” absentee voting, require that pre-election challenges to voter registration be resolved at least ten days prior to an election, eliminate partisan challengers at the polls on election day (while continuing to permit witnesses to observe the polls), clarify the standards for counting provisional ballots, and mandate that a presidential vote recount be completed six days before the Electoral College meets. While a number of other reforms could also be included, and the particular details of each reform will affect their ultimate value, these are all sensible refinements to current state election law. But it remains up to the Ohio General Assembly to fulfill the potential embodied in this bill.

Meanwhile, last week a private group here in Ohio announced that it would seek to place an initiative measure before the voters next fall containing a package of three constitutional amendments to reform Ohio’s election law. If adopted, these amendments would (1) establish a bipartisan legislative redistricting commission, (2) transfer responsibility for administering elections from the Secretary of State to a nine-member state board of elections supervisors, and (3) revise Ohio’s most recent campaign finance reform law by, among other things, reducing the maximum allowable contribution from $10,000 per person to $2,000 for contributions to statewide candidates and $1,000 for contributions to General Assembly candidates. The group is led by a former chairman of the Ohio Democratic Party, a former Republican justice of the state supreme court, the president of the Ohio Civil Service Employees Association, and a professor emeritus of political science at OSU. Their efforts mirror similar efforts underway in other states, and each of their proposed amendments are consistent with previous Weekly Comments in which I and others have similarly argued for redistricting reform (see my August 2004 comment and Dale Oesterle’s March 2005 comment), for election administration reform (see my February 2005 comment), and for changes in Ohio’s most recent campaign finance law (see Donald Tobin’s December 2004 comment and Terri Enns’ April 2005 comment). Now the question is whether the public will support these important improvements to our processes of democratic governance.

Accordingly, although both the initiative campaign and the Ohio General Assembly’s attention to meaningful election reform are encouraging, as of yet they are each unfulfilled. Meanwhile, another development last week was deeply discouraging, serving as an additional reminder of the much unfinished work. Last Friday, Commissioner DeForest Soaries of the U.S. Election Assistance Commission, a Republican appointee whom the other commissioners had elected as the Commission’s first chair, announced that he is resigning from the Commission effective this week. Congress created the Election Assistance Commission as part of the Help America Vote Act, and charged it with helping provide guidance concerning the administration of federal elections. Yet in announcing his resignation, Soaries explained to the Associated Press that neither Congress nor the executive branch have shown serious interest in election reform: “All four of us [commissioners] had to work without staff, without offices, without resources. I don’t think our sense of personal obligation has been matched by a corresponding sense of commitment to real reform from the federal government.”

Given the crucial role of the federal government in bringing uniformity to federal election processes, Congress’s disinterest in the area is alarming. Many of the post-2000 state reforms were spurred in no small part by the Help America Vote Act, which Congress worked diligently to enact by 2002 in order to give states time to implement most of its reforms by 2004. Because a similar timetable is important to any pre-2008 reforms (indeed, even the 2002 Act in many respects came too late for states to be able to adopt its hoped-for reforms by 2004), Congress has not much more than another year before the next election cycle will begin to close the window of opportunity for states to reform their election practices until after the 2008 election. Unfortunately, the 109th Congress has yet to show much serious interest in election reform, and former Chairman Soaries’ resignation is but one manifestation of this apparent indifference.

The clock is ticking.

By Terri L. Enns

In December 2004, during a special session, the Ohio General Assembly passed H.B. 1, a campaign finance bill with the goal of “reaffirming voter confidence in our system by making sure that their votes were earned with accountability and with transparency,” according to the bill’s sponsor, Representative Kevin DeWine. All Democrats in the General Assembly voted against the bill, largely because they opposed the bill’s increase in the contribution limit from $2,500 to $10,000 per election cycle.

Questions about whether the current campaign process breeds corruption and the sufficiency of disclosure as a reform were main points of disagreement at a forum on Campaign Finance Reform in Ohio hosted by Ohio Citizen Action and Election Law @ Moritz on Friday, April 15. The first panel, “The Call for Campaign Finance Reform,” focused on various events that led the General Assembly to turn its attention to campaign finance issues for the first time since the mid-1990s. Julie Carr Smyth of the Cleveland Plain Dealer and Catherine Turcer of Ohio Citizen Action summarized some of the “scandals” involving campaign finances that have occurred in Ohio since 2000. While thus far only a few of the “scandals” have resulted in indictments, the presenters made a credible argument that at least the appearance of corruption, if not actual corruption, had once again become a problem in Ohio. According to the panel, the General Assembly decided that “really aggressive” change was necessary and the primary approach was to permit voters to be able to “follow the money.”

The second panel, “House Bill 1 and the Legislative Process,” provided three varied interpretations of the reforms included in the bill. Dana Walsh, from the Office of the Secretary of State of Ohio, stated that the bill’s basic premise is disclosure because under prior law “too many loopholes” prevented people from tracing the flow of money. He described a litany of changes made by the bill that increase reporting requirements and prohibit contributions to accounts previously not subject to disclosure of donor information.

Senator Marc Dann sharply disagreed about the effects of the bill. After stating that campaign finance is a unique area that requires bipartisanship, he claimed that the three most important elements of campaign finance reform are missing from the bill. First, reform requires meaningful limits, and Ohio ‘s limits are now some of the highest in the nation. Second, the timing of disclosure is as critical as the disclosure itself, and the bill focuses on disclosure around election time rather than requiring instantaneous disclosure during the critical periods during the legislative session when contributions are intended to influence legislation. The third necessary element to reform is meaningful penalties. Senator Dann called for the criminalization of violations of campaign finance laws.

In contrast to the tacit agreement of the first panelists that corruption, or the appearance of corruption, is a problem in Ohio politics, the third panelist characterized any campaign finance regulations as a “loophole in the First Amendment.” Bill Todd, from the law firm of Squire, Sanders & Dempsey LLP, emphasized that any reforms must not violate the constitutional guarantees of the right to criticize government. Additionally, reforms must provide concrete guidance so that political contributors know what they can legally do with their money. His stated concern was that the ability to articulate a political message depends on the ability to acquire enough money to get that message out, and thus restrictions on the amount of contributions and too much regulation violate citizens’ First Amendment rights. Mr. Todd has represented numerous “issue advocacy” groups, including Citizens for a Strong Ohio, which gained national recognition for its television ads attacking Ohio Supreme Court Justice Resnick in her 2000 bid for re-election. In a written analysis, he advises that H.B. 1’s changes have created “new opportunities for an Ohio business to participate in the political arena.”

The third panel included some technical analysis of the contents of the bill by Suzanne Novak from the Brennan Center for Justice at New York University and several points to consider when reforming campaign finance laws provided by Herb Asher, Professor Emeritus at The Ohio State University. Ms. Novak raised questions about some of the wording in the bill that is unclear, pointed to some specifics in the bill that seem to run counter to the policies underlying the bill, and noted some areas of constitutional concern. Mr. Asher’s main points were that the law of unintended consequences affects campaign finance reforms, and that disclosure will never work as advocates suggest.

At the end of the day, the question remained whether disclosure is sufficient to “reaffirm voter confidence.” Do voters feel confident that disclosure prevents corruption and the appearance of corruption, as the Republican supporters claim? Or does a $10,000 per cycle limit, even if every dollar is disclosed, lead to the kind of improper influence by contributors and diminished participation by average citizens that is feared by the Democratic opponents?

Disclosure by itself provides no information to the average citizen. Someone must go through the reports, analyze them, and then make the information accessible to interested citizens, all in a timely manner. The media also must be committed to the analysis and dissemination of the information. Does a report that indicates that a House race was funded by contributions from only five families (each couple contributing $20,000 for the primary and $20,000 for the general election) “reaffirm voter confidence”?

The seminal U.S. Supreme Court case of Buckley v. Valeo upheld contribution limits because ceilings “merely . . . require candidates and political committees to raise funds from a greater number of persons . . . .” Buckley v. Valeo, 424 U.S. 1, 22, 96 S.Ct. 612, 636 (1976). House Bill 1, while expanding disclosure, does little to reassure the average citizen that her voice will be heard over the din of $10,000 contributions from wealthy donors. Even if those contributions are transparent, the move to narrower support from fewer people does not move in the direction of “reaffirming voter confidence.”