2005

ID and the Right to Vote

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By Daniel P. Tokaji

The hottest topic in election administration over the past several weeks has been ID requirements for voters. Bills are moving through the legislatures in several states to require voters to present photo identification when they appear at the polls. Among those states whose legislatures have recently considered or enacted ID bills are Arizona , Georgia , Indiana , Ohio , and Wisconsin . Some Republicans in Congress are also pressing a bill that would impose a stricter identification requirement.

Federal law already contains an ID requirement. In particular, the Help America Vote Act (“HAVA”) requires voters who registered by mail to present documentation of their identity and address the first time they appear at the polls. The law doesn’t, however, apply to those who registered in person, at a county registrar’s office or another public agency such as the registry of motor vehicles. 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 pending in some of the states would go significantly further. Those proposed ID requirements would extend to those who registered in person, and not just those who registered by mail. In addition, some proposals 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

Generally speaking, the debate over voter ID has broken down along partisan lines. Republicans advocate strict ID requirements on the ground that they’re necessary to curb fraud. Democrats, on the other hand, oppose them on the ground that they would disenfranchise voters, particularly those of lesser means.

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

What we do have are scattered anecdotes of people turning in phony registration forms. In one Ohio county, for example, registration forms bearing names such as Dick Tracy and Mary Poppins were reportedly submitted. There is also an allegation that a man in Defiance County , Ohio turned in phony registration forms in exchange for cocaine.

If true, those sorts of activities are already illegal and should be prosecuted under existing laws. And in fact, the man who allegedly turned in those invalid registration forms is being prosecuted.

More tenuous is the argument that such incidents justify a stricter ID requirement than the one we already have. There’s no evidence that Mary Poppins actually tried to vote. If someone did try to vote under that name, it would undoubtedly arouse the suspicions of authorities – and could lead to criminal prosecution.

Myth vs. Reality

For the individual voter, voting fraud is a high risk/low reward strategy. 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.

It’s therefore questionable at best whether an ID requirement is really necessary to combat voting fraud. Supporters of the ID requirement have yet to make a convincing case that existing methods of discouraging and punishing fraud are insufficient.

While the anti-fraud benefits of stricter ID laws are dubious, there is evidence that an ID requirement would impose a severe burden on many voters, particularly those of low income. As Spencer Overton of George Washington University Law School notes, one study showed that 6 to 10 percent of voters lack any form of state ID. Professor Overton also notes that blacks, Native Americans, and elderly voters are among those less likely to have photo ID.

Legal Implications

In their present form, the ID bills presently on the table are likely unconstitutional. The Supreme Court has long held that election practices discriminating against poor voters violate the principle of equal protection. In Harper v. State of Virginia , the Court struck down a $1.50 state poll tax for precisely this reason. “The principle that denies the State the right to dilute a citizen’s vote on account of his economic status,” the Harper Court held, “bars a system which excludes those unable to pay a fee to vote or who fail to pay.” In the course of its opinion, the Court noted the possibility that the poll tax was being used to discriminate against black voters.

It might be argued that the “poll tax” problem could be avoided if the state were to offer an ID card free of charge. For example, for non-drivers, the state could make a photo identification card available at no cost.

The problem with this approach is that it still imposes a tax on the voter’s time. Someone who lacks a driver’s license would have to wait in line once to get a photo ID card – only to face the prospect of waiting in another line when Election Day arrives. It would thus increase the burden on those who wish to vote, at a time when our government should be doing everything in its power to lessen those burdens. And as we’ve seen in recent elections, even a few votes can sometimes make a big difference. Even if only a small percentage of eligible voters are discouraged by an ID requirement, that will still be enough to swing some elections.

Some Alternatives

If the goal is really to reduce voter fraud, there are more appropriate steps that we might take. One of them is to eliminate “no fault” absentee voting. When citizens cast their votes by mail, the privacy and anonymity of the ballot may be compromised. For example, someone can watch me cast my ballot, place it in an envelope, and then drop it in the mail. They can even pay me for casting my vote for a certain candidate.

Absentee voting may still be necessary for some citizens, particularly those who are severely disabled. But for other voters, we should consider moving to early voting rather than broader absentee voting. With early voting, the voter casts his or her vote before the election, but does so in a private voting booth rather than through the mail. That safeguards the privacy and anonymity of the ballot – and eliminates the possibility of vote buying – in a way that mail-in absentee voting does not.

Another proposal, made by Rick Hasen of Loyola Law School, would combine universal registration conducted by the federal government with a voter ID card. While there are some serious privacy concerns with a national ID, there’s a tenable argument that it makes more sense for the federal government to provide such identification than for the states to do so. Combining universal registration with an ID requirement might also avoid the partisan polarization that characterizes the present and recent debates.

If some states insist upon imposing their own ID requirement, then those states – not the individual voters – should bear the burden. What states might do is to provide ID cards at the polling place. This would require that a camera and ID-maker be set up at each polling place. Those first-time voters who lack a photo ID would then have their picture taken and receive an ID card, free of charge, at the time they go to vote. While it’s not clear that this would do much to eliminate fraud, it would at least place the burden where it belongs: on the government.

The downside of this approach is that it would require both financial and human resources to make it work. If not implemented properly, it could have the effect of making lines at the polling place longer. But if a state wishes to impose an as-yet unproven ID requirement on its citizens, the least it can do is bear the burden of providing that ID.

The Provisional Ballots of Unregistered Voters

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When provisional ballots were rejected as ineligible to be counted as part of the official results of the 2004 election, the primary reason was that the voter was “not registered” to vote. But why not? Was it because the voter never attempted to register or because the registration form was lost in the process? Or was it that the registration form was missing some crucial information or because the registrant had been rejected as ineligible on account of a felony conviction (or some other disqualification)?

Available evidence indicates that provisional ballots were cast by unregistered voters for each of these reasons and others. If the presidential election had been close enough, there would have been litigation over the question whether provisional ballots should count even if cast by unregistered voters. Proponents of counting these ballots would have argued that they should not be disqualified as long as the individual possesses the substantive qualifications to be a voter (is a citizen, over the age of 18, and so forth).

This argument, in its broadest form, would make provisional ballots the functional equivalent of Election Day registration. No need to attempt to register before Election Day, since you can just show up at the polls and cast a provisional ballot if you’re substantively qualified. Because provisional voting, as required by Congress in the Help America Vote Act (HAVA), was not intended as a back-door requirement that states adopt Election Day registration, it is unlikely that the broadest form of this argument would have been successful.

Nonetheless, a narrower form of the argument would have been much more compelling. Focusing on voters who properly submitted registration forms to their state’s Department of Motor Vehicles but whose forms the DMV failed to transfer to the appropriate Board of Elections, the powerful claim would have been that these voters should not be punished for this administrative error. They did all that they were supposed to in order to become registered, and therefore they should be treated as the equivalent of being registered, even if they were not, in terms of counting provisional ballots.

We can start with the proposition that voters should not be disenfranchised when the government fails to take the steps that it is obligated to follow in order to process valid registration forms so that the voter is included on the list of registered voters. But what if a registration form is lost in the mail and never received by the government? Not the voter’s fault, but not the state’s either.

In considering whether a provisional ballot should count if a voter is unregistered for this reason, it is useful to imagine the following scenario. Suppose a state sets up a mechanism whereby voters can check to see whether their mail-in registrations have been received by the Board of Elections. It would be a system comparable to a FedEx tracking number. The unique number is printed on the registration form, and also on a detachable receipt that the voter can keep to check the status of the form. Together with this “tracking” number is the board’s telephone number and website address, either of which will work to see if Board received the form. (I must credit my colleagues in the Century Foundation’s Working Group on Election Reform with this idea.)

Now, let’s assume that the state provides an opportunity, for voters who through this tracking service, learn that their form was never received by the Board, to fix this problem before Election Day (perhaps by appearing in person at the Board’s office, or by emailing or faxing the registration information to the Board). Suppose further than a voter fails to take advantage of this tracking service. The voter mails a registration but never checks on its arrival, and it gets lost in the mail. Having missed the available opportunity to fix this problem, this voter shows up at the polls on Election Day and casts a provisional ballot. Should it count, despite the fact that this voter never became successfully registered (because the Board never received the form)?

My answer is no. The state gave this voter a fair opportunity to become successfully registered, but the voter did not take advantage of this opportunity, and therefore this voter’s provisional ballot should be rejected, along with the provisional ballot cast by the individual who never bothered to submit a registration form in the first place.

To complicate matters, we could imagine a state applying the tracking service concept to, not just mail-in registrations, but in-person DMV registrations. “Protect Yourself Against the Chance of Administrative Error: Call 1-800-VOTERQS, or visit www.voterquestions.gov, to make sure that your Board of Elections received this form from the DMV.” I’m inclined to think that the state should not make individual citizens shoulder the responsibility of its own bureaucratic inefficiencies. As long as citizens get their valid voter registration forms into the hands of state officials authorized to receive them, they should be considered the equivalent of registered for the purpose of counting their provisional ballots.

After all, it’s possible that even after a voter has used the tracking service to verify that the Board received his registration, the Board subsequently loses it before Election Day. If the voter receives from the Board a “registration confirmation number” (similar to the ones hotels provide), then the voter should be able to use that confirmation number to validate a provisional ballot in the event that the Board misplaces the registration between then and Election Day. Similarly, if a voter receives a receipt upon handing a registration form to a DMV agent, that receipt should suffice to validate the voter’s provisional ballot in the event that the registration form is lost in its transfer from the DMV to the Board of Elections.

Thus, the principle that emerges is as follows: the voter has the responsibility of verifying that an appropriate state official has received the voter’s registration form, when the state provides the voter with a fair opportunity to do so, but once it is in the hands of an appropriate state official – and the voter has received confirmation of this fact – the state has the responsibility of maintaining the accuracy of its records.

We can apply this same principle to the problem of incomplete registration forms. Suppose a voter accidentally mails in a registration form without signing it, as required by state law. Suppose, further, that as part of its “tracking service,” the Board of Election informs the voter who telephones (or checks the website) that the registration process remains incomplete for lack of a signature and this omission may be rectified before Election Day in one of several ways (going to the board’s office, faxing a signature, etc.). If a voter fails to take advantage of this opportunity and remains unregistered as a result, then a provisional ballot cast by this unregistered voter should not be counted, along with the provisional ballot of the voter whose registration form was lost in the mail (and who also did not make use of the board’s “tracking service”).

Conversely, if a voter hands a DMV agent a registration form without the necessary signature, and the DMV agent accepts it without pointing out this defect to the voter, then a provisional ballot cast by this voter should count if the Board of Elections subsequently can verify the voter’s eligibility in the same way as it would have if the signature had been on the form. In this situation, the DMV agent’s failure to notice the defect is the same as if the form had been accepted by a Board of Election official. (The federal Motor-Voter law generates the obligation of DMV agents to function as voter registration officers.) If the DMV agent who accepts the form does not tell the voter that it is missing some essential information, the voter is entitled to believe that handing the form to an authorized government official suffices to complete the registration process.

It takes a DMV agent or board official just a couple of seconds to review a voter registration form to see that it contains all the necessary information. It’s not like reviewing a tax return or a college admissions application. When voters register in person with the government and their registration forms are accepted, they should be absolved of the responsibility of having to check with the government to make sure that there was not some procedural defect in their submission.

Of course, even after an individual personally hands in a registration form at the Board of Elections, if the board discovers that the individual is substantively disqualified from voting – the individual is not a citizen, or is under 18, or is a convicted felon (in a state where that matters) – then a provisional ballot cast by this individual will not count. Moreover, when an individual has been ruled ineligible in this way, if the state provides the individual with a fair opportunity to challenge that ineligibility ruling before Election Day, but the individual does not take advantage of this opportunity, then a provisional ballot cast by this individual should be rejected. In this circumstance, there should be no post-election review of the board’s substantive ineligibility ruling. The individual missed the chance for this review in a fair pre-election procedure, which is a much preferable setting for the resolution of disputes about a voter’s eligibility.

In this context, procedural fairness requires personal notice delivered to the individual that the board did not register the voter on the ground of substantive ineligibility. Since the individual personally handed the form to a board official, the availability of a “tracking service” to check to see if the board rejected the registration should not suffice. The individual in this situation believes that he or she is eligible to vote and therefore may have no reason to suspect that the board will reject the registration. But if the board does provide the individual with such personal notice of its ineligibility determination, and the individual fails to contest it before Election Day, the individual should not be permitted to raise the same issue after Election Day.

These examples do not exhaust the circumstances in which it may be disputed whether a provisional ballot cast by an unregistered voter should count. It is important to consider other possible scenarios, as the rules for deciding whether or not a provisional ballot will count should be decided ahead of time, insofar as it is possible to do so. (Previous Weekly Comments have emphasized this point: see especially March 22 and March 29.) Nonetheless, consideration of the scenarios described above point the way to a basic principle: a provisional ballot cast by an unregistered voter will not count, unless the unregistered voter handed it to an authorized state official and received a receipt for doing so, or received confirmation of registration in some other form (which was subsequently lost by the state), or the unregistered voter lacked a fair opportunity to fix problems associated with the registration process before Election Day.

Verifying Voter Registration Lists, Part 2

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In the previous Weekly Comment, I sketched a two-tiered system by which newly-registered voters could verify that their registrations were accurately included in their state’s official voter registration list. The two different sets of procedures, each with its own distinct timetable, correspond to two separate deadlines by which voters must submit their registration forms: an early deadline and a second, later one. If voters submit their forms by 60 days before Election Day (the early deadline), then the verification process includes personal notification to the voters from the state of any problems with the registration form, as well as evidentiary hearings if the state disputes the registrant’s eligibility to vote. By contrast, if the voters submit their registration forms by the late date, then their ability to verify the accuracy of the state’s official list depends on their taking the initiative – or interest groups taking the initiative on their behalf – to examine a publicly accessible copy of the list, and any dispute about a late registrant’s eligibility to vote would be resolved on a documentary record, without the kind of evidentiary hearing available to the early registrant.

It remains necessary to consider what procedures and timetables should apply when other citizens or interest groups wish to challenge the inclusion of names on the state’s official voter registration list. The effort of the Ohio Republican Party in 2004 to challenge approximately 35,000 new registrations in the state exposed the inadequacy of the state’s procedures for handling such challenges (an inadequacy shared by other states, if confronted with comparable challenges). Yet there needs to be some mechanism by which citizens who believe registrations are fraudulent or otherwise improper can present their objections, with a concomitant fair opportunity for the challenged registrants to defend their eligibility to vote.

An added advantage of a two-tiered system of voter registration, with separate early and late deadlines, is that any challenges to early registrants can occur earlier, with procedures that impose a heavy burden on those who challenge registrants that the state already has verified as eligible. By contrast, late registrants may be challenged in more streamlined procedures that are somewhat less favorable to the effort to resist such challenges. The extra protections for early registrants are a fair bonus for the early submission of their forms, which gives officials more time to check their accuracy.

The following are sample schedules for challenges to early and late registrations. They are meant to coincide with the schedules sketched in the previous Weekly Comment. Like those, they are intended to prompt a discussion among election administration officials, policy analysts, and others (including the Century Foundation project of which I am a part). Additional details, particularly concerning the appropriate grounds for challenges (lack of citizenship, under the age of 18, and so forth), would need to be developed before legislation embracing this idea could be adopted. Nonetheless, as before, these schedules may provide a useful starting point in considering what reforms should replace the evidently inadequate procedures that currently exist.

Again, these schedules are based on 2006 dates for illustration. The notation “E-45” refers to 45 days before Election Day. Each schedule is subdivided into two parts, the first concerning names that the state has added to its official list based on its initial intake of registration forms, the second concerning names that the state has added to its list after the registrants themselves have already objected to being omitted from the list and the state, having reviewed these objections, have resolved these cases in favor of inclusion.

Challenges to Early-Deadline Registrants

Challenges to Initial Posting of Names

Day Date Election Day minus X days Event
Saturday Sept. 23 E–45 state must publish voter list on web site
Tuesday Oct. 3 E–35 deadline for all challenges to names on list
Tuesday Oct. 10 E–28 state dismisses challenges or schedules hearings to resolve voter eligibility [schedule for these hearings is the same as when early registrant objects to omission from 9/23 list, and state disputes registrant’s eligibility]

Challenges to Subsequent Posting of Names

Day Date Election Day minus X days Event
Friday Oct. 13 E–25 state publishes updated list on web site; includes new names from voter-initiated objections to omissions from 9/23 list
Tuesday Oct. 17 E–21 deadline for challenges to new names on 10/13 list
Monday Oct. 23 E–15 state dismisses challenges or schedules expedited hearings in which eligibility is presumed, unless new clear & convincing evidence of ineligibility
Monday Oct. 30 E–8 state completes expedited rulings; registrants have opportunity for expedited appeal if ruled ineligible
Thursday Nov. 2 E–4 state resolves expedited appeals
Friday Nov. 3 E–3 state publishes Verified List on its web site
Tuesday Nov. 6 E–0 Election Day

Challenges to Late-Deadline Registrants

Challenges to Initial Posting of Names

Day Date Election Day minus X days Event
Friday Oct. 13 E–25 state publishes updated list on its web site; includes initial posting of late registrants [this list is the same as the one that includes new names of early registrants initially omitted from 9/23 list but then verified; different procedures apply to challenges of verified early registrants]
Wednesday Oct. 18 E–20 deadline for challenges to late registrants on list
Saturday Oct. 28 E–10 state resolves challenges; limited opportunity to appeal for registrants ruled ineligible
Thursday Nov. 2 E–5 state resolves appeals
Friday Nov. 3 E–4 state publishes Verified List on its web site
Tuesday Nov. 6 E–0 Election Day

Challenges to Subsequent Posting of Names

Day Date Election Day minus X days Event
Tuesday Oct. 24 E–14 state publishes updated list; includes new names of late registrants omitted from 10/13 list but added after objections [see 2d verification schedule]
Friday Oct. 27 E–11 deadline for challenges to new names on 10/24 list
Thursday Nov. 2 E–5 state resolves challenges using presumption of eligibility; no opportunity to appeal rulings
Friday Nov. 3 E–4 state publishes Verified List on its web site
Tuesday Nov. 6 E–0 Election Day

These four timetables reflect a combination of two main considerations: (a) whether the registration met the early or late deadline, and (b) whether the state already has resolved a dispute over the registrant’s eligibility, in response to the registrant’s objection to being omitted from the state’s official list. The procedures are most favorable to the early registrant whom the state already has verified as eligible: in this scenario, the challenger must overcome a strong presumption of eligibility, based on new evidence (not previously available to the state) that presents a clear and convincing showing of ineligibility, and the registrant is entitled to an expedited hearing to present rebuttal evidence, as well as an expedited appeal in the event of an adverse ruling after the hearing. By comparison, the late registrant whom the state already has verified as eligible is entitled to the same strong presumption of eligibility when the state considers the subsequent challenge – with the challenger facing the same obligation to supply new and clear and convincing evidence of ineligibility – but there is insufficient time to guarantee appeals in those cases where the state finds that the challengers have met their heavy burden of proof.

Regarding challenges to the initial posting of names, where the state has not verified the eligibility of an omitted registrant in response to an objection, the procedures again favor the early-deadline registrant. In this situation, the challenged early registrant is entitled to the same evidentiary hearing as an early registrant whose omission from the list the state continues to believe is justified. In other words, a dispute might arise either (i) because a challenger sees a name on the initial list of early-deadline registrants, posted 45 days before Election Day (which is September 23 in 2006), and the challenger believes this name should be excluded, or (ii) an early registrant’s name was not included on this list and, in response to an objection from this early registrant, the state maintains that the omission was proper. In either case, the registrant is entitled to an evidentiary hearing, to be held between 28 and 14 days before Election Day, in which the issue of eligibility to vote is resolved, with the registrant entitled to an appeal occurring between 14 and 7 days of the election if the hearing results in a ruling of ineligibility.

The corresponding procedures for challenges to late registrants, whose names appear on the state’s updated list posted 25 days before Election Day (October 13 in 2006), is much less favorable for the registrants. If a challenge of this kind is resolved against the registrant, there is only a limited opportunity for an appeal (to be conducted within 10 to 5 days before Election Day), based on the documentary record available to the state, without the possibility for an evidentiary hearing. In this respect, the comparative disadvantage to the late registrant is similar to the one that applies when the registrant objects to being omitted from this list. Simply put, if the state determines that the late registrant is ineligible to vote, there can be only limited review of this determination, in contrast to the more robust evidentiary hearing available to the early registrant who is ruled ineligible. But this comparative procedural disadvantage is the inevitable price of submitting one’s registration form by the later rather than earlier deadline.

If we consider these four timetables as a whole, we can see that they set up a sequence of deadlines by which challenges must be made, as names of new registrants are added to the state’s official list of registered voters. The state posts the names of early-deadline registrants 45 days before Election Day, and challenges to these names must be submitted within the next 10 days, or 35 days before Election Day. Then, 25 days before Election Day, the state posts both additional names of early registrants (who have been verified in response to objections after initially being omitted from the E-45 list) and the names of late-deadline registrants. Challenges to the additional names of early registrants must be filed within 21 days before Election Day (only four days later), and challenges to the names of late-deadline registrants within 20 days (the extra day reflecting the greater hurdle to challenging early registrants already verified by the state). Finally, 14 days before Election Day, the state adds to its list the names of late-deadline registrants omitted from the previous (E-25) list but subsequently verified after the registrant objected. With respect to these additional names, challenges must be filed within the next 3 days, 11 days before the election. This staggered sequencing of challenges enables the state to resolve them more efficiently, without all challenges to new registrants being filed by a single deadline.

Moreover, with respect to previous voters (who are not new registrants), the state should establish even earlier deadlines for challenging their continued inclusion on the state’s official list. For example, 90 days before the election, the state could post its list of all registered voters as of that date, and require challenges to any names on that list to be submitted within 75 days before the Election Day. By resolving these challenges ahead of time, the state frees up its administrative process to handle any challenges arising from voters who comply with the early-date deadline for new registrations (60 days before Election Day). Likewise, the state could complete its own purges of preexisting lists by 90 days before the election, so that disputes over these purges could also be resolved in advance.

In sum, an overarching goal in reforming the process of verifying voter registration lists should be to have as much of this verification occur as early as possible before Election Day. The creation of a two-track system of early-deadline and late-deadline registrations would help accomplish this objection. With respect to both the procedures by which the registrants themselves verify that their forms were processed accurately and the procedures by which others can challenge new registrations they deem improper, the bifurcation of the registration deadline enables early registrants to receive more procedural protections. The result is a system with both greater fairness and accuracy.

Verifying Voter Registration Lists

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As states endeavor to comply with the congressional requirement that they create statewide voter registration lists, rather than relying on lists developed by local boards of election, it is important to emphasize the need for procedures to verify the accuracy of these new statewide lists. These verification procedures, moreover, can reduce the need to rely on provisional ballots: if voters have a fair opportunity before Election Day to rectify any inappropriate omissions from the list, then these voters can cast a regular rather than provisional ballot on Election Day. As I have argued elsewhere, as have others, it is better both for the voters themselves as well as for the public as a whole if questions about voter eligibility can be resolved by verifying registration lists before Election Day rather than adjudicating disputes over contested provisional ballots afterwards.

What, then, would a fair pre-election process for verifying registration lists look like? Its key components would be notifying new would-be voters of any material defects in their registration forms, which would prevent them from being registered, as well as enabling voters (and the interest groups that represent them) to examine the registration lists in sufficient time to raise objections to omissions. A fair process would also provide other citizens (and interest groups) with a chance to challenge new registrations as improper, while giving these new registrants an adequate opportunity to rebut such challenges.

Structuring a fair verification system is largely a question of timing: how to provide adequate notice and an opportunity to correct mistakes between the deadline for submitting registration forms and Election Day. If the deadline for submitting registrations were much earlier than it is currently — say, 60 days before Election Day, rather than 30 — then there would be sufficient time for correcting errors and resolving any disputes about voter eligibility before the casting of ballots. But an early registration deadline denies the right to vote to those who moved to the state during the month of September of an election year.

One way to balance the advantages and disadvantages of early and late registration deadlines would be to adopt both: for those who submit their forms by the early deadline, they can take advantage of a more robust set of procedures for verifying registration lists; whereas if individuals are unable to submit their forms until the late deadline, then they must accept the limitations of a more streamlined verification process. (This two-tiered system would be a bit like college admissions: early applications have a better chance of success.)

What follows is a brief sketch, for illustration only, of how a two-tiered registration system might work. Before any such system were implemented, its details would need to be developed based on input and review from election administration officials, policy analysts, and others. Think tanks need to kick around the idea before legislative committees in various states begin drafting statutes. (The Century Foundation is one such organization that has assembled a group, of which I am a member, to consider such proposals.) But even a brief sketch can be useful to demonstrate the basic concept.

I have based the following schedules on 2006 dates, when Election Day will be Tuesday, November 7. But 60 days before Election Day is always a Friday, 50 days before Election Day is always a Monday, and so forth. So the basic architecture of these schedules would be the same for any election year. (In the tables below, the notation “E-60” means 60 days before Election Day, “E-50” means 50 days before Election Day, etc…)

Verification Process for Early Registration Deadline

Day Date Election Day minus X days Event
Friday Sept. 8 E–60 early registration deadline
Monday Sept. 18 E–50 state must notify voter of any problem
Saturday Sept. 23 E–45 state must publish voter list on web site
Tuesday Oct. 3 E–35 voter must (a) respond to notice, or
(b) inform state of omission from list
Tuesday Oct. 10 E–28 state must (a) add voter to list, or
(b) schedule hearing to resolve eligibility
Tuesday Oct. 24 E–14 state must complete eligibility hearings;
voter may appeal ruling of ineligibility
Tuesday Oct. 31 E–7 state must resolve appeals
Friday Nov. 3 E–4 state publishes verified list on web site
Tuesday Nov. 7 E–0 Election Day

Verification Process for Late Registration Deadline

Day Date Election Day minus X days Event
Monday Oct. 9 E–29 late registration deadline
Friday Oct. 13 E–25 state publishes updated list on web site
Tuesday Oct. 17 E–21 voter must inform state of omission from list
Monday Oct. 23 E–15 state must (a) add voter to list, or (b) notify voter of adverse determination, which voter has limited opportunity to appeal
Tuesday Oct. 31 E–7 state completes limited appeals in late cases
Friday Nov. 3 E–4 state publishes verified list on web site
Tuesday Nov. 7 E–0 Election Day

A comparison of these two schedules shows that an early registrant gets the advantage of a more robust verification process than the late registrant. First of all, the early registrant receives personal notice from the state of any registration problem of which the state is aware, as well as the opportunity to challenge omissions from the voter list published on the state’s web site 45 days before the election. By contrast, the late registrant receives no such personal notice, but must rely on the initiative to challenge the updated voter list published on the web site 25 days before the election. Moreover, the timetable for challenging omissions is shorter for late registrants: they must do so within four days of the list’s publication, whereas early registrants have 10 days to present such challenges.

More significantly, if in response to a challenge of this kind the state takes the position that the omission of the would-be voter from the list was proper (on the ground that the individual is ineligible to vote), the early registrant gets the benefit of much more favorable review procedures than the late registrants. The early registrant in this position is entitled to a hearing, to take place between 28 and 14 days before the election, at which the registrant has an opportunity to present evidence in favor of eligibility and contest the state’s evidence of ineligibility. Moreover, if the early registrant receives an adverse ruling of ineligibility after this hearing, the early registrant is entitled to an appeal of this ruling, which occurs between 14 and 7 days of the election. Conversely, the late registrant is entitled only to a limited appeal of the state’s adverse determination of ineligibility, with no opportunity for the kind of evidentiary hearing available to the early registrant.

In structuring this two-tiered verification process, it is necessary also to consider the timetables by which citizens (and groups) can challenge the inclusion of individuals on the published lists of registered voters. These additional timetables will be presented in a subsequent Weekly Comment, along with the timetables for voters to defend against being purged from these lists. Meanwhile, the two schedules set forth above are enough to provide an initial indication of the main benefit that a bifurcated system of registration deadlines would provide: the ability of early registrants to employ favorable procedures for correcting errors to the processing of their registration forms and resolving any disputes that might arise over their eligibility to vote.

The Problems with Early Voting

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By David Stebenne

Among the various voting reforms under serious consideration today is the approach known as “early voting.” This process, which some of the states have begun using, allows voters to cast their ballots during the week or two prior to a national election day. The idea is to spread out the voting, and thereby reduce crowding at the polls on the customary Election Day. There are some serious problems with early voting, however, which make it seem a less than desirable way of eliminating delays during balloting.

It took the United States government almost a century to establish a uniform day for federal elections. The first major step in that direction came in 1845, when Congress passed a law (U. S. Code Title 3, Chap. 1) establishing the first Tuesday after the first Monday in November as the day for appointing Presidential electors in every fourth (i.e. presidential-election) year. Congressional elections could still be held on a different day, though, until 1875, when Congress passed a new law (U. S. Code Title 2, Chapter 1, Section 7) requiring that they be held on that same day in every even-numbered year.

There were at least four related reasons for this move toward a uniform day for federal elections. As the size of the electorate grew rapidly in the 1820’s and ’30’s, and mass political parties were born (most notably the Democrats in 1828), and the means of communications improved, concern increased about the possibility of irregularities in the voting process. The dangers of manipulation and outright fraud in particular increased. To allow some jurisdictions to vote later than others gave the later-voting areas more opportunity to influence the final result improperly. An unscrupulous party official could calculate, based on the votes already in from other areas, how many more would be needed in his jurisdiction to elect his party’s candidate, and then try to stuff the ballot box to bring about that result.

By the early 1870’s, with voter turnout and partisanship at historically high levels, more sophisticated communications technology (the telegraph in particular) made manipulation of the voting process all too easy and common. These factors pushed Congress then to adopt the federal Election Day system still in use in most jurisdictions today. The only noteworthy change since then came in 1914, when Congress passed a new law in response to ratification by the states of the Seventeenth Amendment to the U. S. Constitution, which required the popular election of United States Senators. This new law (U .S. Code Title 2, Chapter 1) required their election on the same day as the election of members of the House of Representatives.

The history of the move toward a uniform day for federal elections suggests that the current enthusiasm for early voting is unwise. To spread out voting more widely over a period of several days tends to increase the dangers of voter manipulation and fraud that led Congress to require a uniform voting day. Unscrupulous election officials would be more able to manipulate the process if they could determine how the vote was going in the early days.

Even if no tabulation of the votes was permitted until the polling ended, there is still another, newer kind of voting manipulation problem. The advent of inexpensive, ubiquitous mass communications has also made early voting problematic because ordinary voters now can be influenced by news reports issued during the polling period. The longer that period is, the less controlled a test of public opinion the election will become. Citizens who cast their ballots during the early days of voting might well do so on the basis of information about the economy and society that is significantly different from citizens who vote on the last day. When one stops to consider that the news media themselves are susceptible to manipulation by candidates, political parties, governments, and even foreign terrorists, the problems associated with early voting become clearer.

While no one disputes that Americans need to improve the administration of the voting process, the preceding discussion suggests that early voting is a problematic way of doing so. Election officials would seemingly do better to emphasize improved educational efforts and more and better voting technology than a greater spreading out over time of the voting process.

Thoughts on Gerrymandering

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By Dale A. Oesterle

The fuss over vote counting in the past election strikes me as worrying about whether the deck chairs on the Titanic were in their proper place when the ship went down. We have serious problems with the education of voters, voter turnout, and with the structure of our elections and we obsess excessively over whether each vote submitted was counted.

Vote with dementia, vote without even basic knowledge of the candidates or issues, vote under misapprehensions caused by misleading political ads, vote when one candidate has outspent the other five to one, vote in elections in which an incumbent has the race locked up, vote in elections in which a majority of the potential voters do not even cast a ballot, and, using the best computer wizards in the land and bottomless spending, we must guarantee an absence of errors in tabulating your checks or clicks.

Our media focus on vote counting reminds me of a case I teach in corporations, when the busy host of a dinner at home for A-list guests held as a benefit for the local opera, excused himself for the briefest of moments to go upstairs to his study in order to sign a contract selling the $1.5 billion company of which he was the CEO.

Why the odd focus? Perhaps it is because vote tabulation problems affect only a few races, but they are high profile ones — races for chief executive positions, the President and the Governor of the State of Washington, for example. Perhaps it is because vote tabulation is a problem we can address and the more serious, deeper problems admit of no easy solution.

My personal favorite concern is with the high percentage of pre-determined elections. Ninety-eight percent of all political races are predetermined — the incumbent wins. In those rare races with no incumbent, the incumbent party candidate wins. This alarming tendency has survived term limits, campaign spending laws, and various reapportionment strategies. The tendency may explain our modest voter turnout for most elections.

The result is caused by winner-take-all elections in gerrymandered districts. The gerrymandering creates protected districts and the winner-take-all format enables 100 percent confidence in the outcomes. We can change both procedures.

Gerrymandering can be reduced by a combining an institution of neutral decision makers with a decision strategy that reduces extreme proposals. Ten states or so have some form of neutral, non-partisan commission that decides voting district boundaries. All states should have one.

Moreover, if the commissions use some of the new decision techniques developed by game theorists, we may get some rational results. The one I favor is the “baseball” or “final offer” method in which the commission hears all proposals from all established political parties and selects the most reasonable, without modification. The procedure reduces the incentive of the parties to make extreme proposals. Another variation, “night baseball,” requires the commission to accept whichever parties’ plan is closest to the commission’s plan (or that of a neutrally appointed expert).

Also helpful would be a more parsimonious use of winner-take-all elections. Elections of members to federal, state, county, and city legislatures could use multiple seat elections. Multiple seat elections also make possible cumulative voting systems that guarantee minority representation.

In any event, we need to refocus some of our energy away from mechanical tabulation to the inherent structure of our system of selection. Accuracy in depicting the results of a pre-determined election is a modest virtue at best. I am sure that the votes in Chinese national elections, with one candidate from one party running for any one seat, are accurately and painstakingly counted.

Election Reform: The Process Matters

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By Terri L. Enns

The Ohio General Assembly is to be commended for identifying election reform as one of its top priorities for its 126th Regular Session. Like many other states, the Ohio General Assembly must bring several key areas of its laws into compliance with the Help America Vote Act of 2002 (HAVA), and additionally hopes to clean up some areas of state election law. Named among the top seven proposals for this session, companion bills House Bill 3 and Senate Bill 3 have begun the committee hearing process in their respective chambers to address these matters.

Election administration relies on players at every level of government, creating a highly complex system. In its statement entitled “Administering Elections in a Nonpartisan Manner,” (February 7, 2005), the National Association of Secretaries of State has neatly summarized the complex web of entities responsible for election administration: “We are bound to uphold the election laws that are passed by our state legislatures and by Congress; [w]e must abide by the related rulings of our state and federal courts; [a]nd we are required to work with thousands of local officials to administer elections.” Rules are made and implemented at the federal, state, and local levels, by both professionals and volunteers. Some of the administrators are involved in the election process full time, while others are intermittent players. Whenever one level of administrator makes a decision, the effects are felt both up and down the federal-state-local ladder.

Ohio ‘s bills, as currently drafted, may not be the form most conducive for full discussion of the issues at each level. The bills include changes mandated by HAVA with little room for divergence, changes mandated by HAVA that leave some discretion to the states, and other reforms that arise purely from state law. The HAVA mandates must be enacted before January 1, 2006. Policy discussions behind those mandates have taken place at the federal level, and Ohio state and local administrators have no choice but to adhere to these federal requirements and enact the changes or the state may face federal sanctions. Including those federal mandates in the bills may confuse the policy discussions and may function as a sort of blackmail, requiring members to support other more parochial reforms that need not move on the same time table. For instance, while HAVA imposes specific identification requirements for first-time voters who register by mail, the bills adopt additional identification requirements as a purely state-level policy matter. Committee discussion of identification requirements must carefully parse those requirements that are part of HAVA and those requirements that are proposed by the majority leadership in Ohio. Additionally, a separate identification requirements bill is also being heard in the Senate, further complicating matters.

Another possible barrier to full discussion of the issues is the hearing process itself in the Senate. Although S.B. 3 was introduced by the chair of the Senate State, Local Government, and Veterans Affairs Committee, the bill is being heard in the Rules Committee. This unusual procedure is the first time in recent years that the Rules Committee is hearing testimony on a substantive bill, instead of the committee’s usual role of determining the calendar for upcoming sessions. Senate President Bill Harris (R-Ashland) stated, “I want to control the bill. Period.” (Gongwer News Service, Volume #74, Report #16, Article #02-Tuesday, January 25, 2005.) While the Rules Committee assignment has the efficiency advantage of including the leadership of both parties, what is lost is the knowledge of and experience with election law held by members of the State, Local Government, and Veterans Affairs Committee and their staff. Additionally, the Rules Committee has no regularly scheduled meeting time for the purpose of taking testimony, unlike other standing committees with predictable meeting times, making it more difficult for concerned parties to provide input.

A third concern about the process of hearing these bills is based on the earlier observation raised about the multi-layered administration of elections. While the General Assembly is considering the companion bills, election-related events are taking place outside the Statehouse. The federal Elections Assistance Commission, established by HAVA to administer election reform, recently held hearings on February 23 here at the Moritz College of Law, as part the Commission’s study of the successes and failures of provisional balloting, one subject of the current Ohio legislation. Additionally, legislators from counties currently using touch screen voting devices may attempt to change current state law to relax Ohio ‘s paper trail requirement for such machines, a law which led Ohio Secretary of State Ken Blackwell to mandate optical scan voting for all counties in Ohio. At the same time, the courts may become involved in voting issues as the Secretary of State’s edict requiring counties to purchase optical scan machines has been challenged and the Ohio Attorney General has opined that the Secretary of State lacks the authority to impose such a requirement. Both of these issues-provisional ballots and optical scan voting-are included in the bill and yet legislative decisions may be overcome by events at the local and federal levels.

Ohio is typical in the complexity of its election administration and in its need to reform election laws to comply with HAVA’s requirements and to deal with inefficiencies and inconsistencies uncovered by the 2004 presidential election. Each state facing issues of reform should be aware of the complex and multi-layered administration of election laws and should ensure that no procedural roadblocks prevent the thorough and seamless reform of election laws.

New 527 Bill Plugs Some Major Holes, but is it Constitutional?

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By Donald B. Tobin

Senators McCain and Feingold recently introduced legislation to close the so-called 527 loop-hole. When Congress passed the Bipartisan Campaign Reform Act (BCRA), it significantly limited the amount of soft money that could be contributed to political parties. It also restricted union and corporate contributions.

As a result of these limitations, large donors sought ways around the BCRA limitations. Major donors started making contributions to 527 Political Organizations. These are independent entities organized under section 527 of the Internal Revenue Code that have as their primary purpose influencing elections.

As the money started pouring in to 527s, Professor Foley and I argued that some 527s were really political committees and should be registered as such. If a 527 was also a political committee, it would be subject to stricter rules applicable to political committees and would not be able to accept unlimited contributions. Relying on language in the Supreme Court’s opinion in Buckley v. Valeo we argued that a 527 that had as its primary purpose influencing federal elections was a political committee and should be regulated as such. The Federal Election Commission had hearings and proposed rulemaking on this matter and rejected proposed rules that would have regulated political committees.

Partially in response to inaction at the FEC, Senators McCain and Feingold recently introduced legislation to regulate 527s as political committees. Their proposal, however, is far more sweeping than anything proposed so far (including the proposal of the FEC General Council that the Commission rejected) and raises serious constitutional questions. Although I believe that many 527s can be regulated as political committees, the current version of the bill proposed by Senators McCain and Feingold is very broad and likely reaches organizations that cannot be regulated under the First Amendment.

In Buckley, the Supreme Court held that Congress could not restrict expenditures by individuals made on their own behalf even if those expenditures were express advocacy (expressly advocated the election or defeat of a candidate for federal office). Thus George Soros, Bill Gates, or anyone else with a sizeable fortune, can spend unlimited funds on behalf of a candidate of his or her choice.

So if George Soros can spend millions on his own, why can’t he contribute millions to a 527? The reason is that the Court created a different standard for contributions than for expenditures. The Court in McConnell noted “[b]ecause the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients . . . contribution limits impose serious burdens on free speech only if they are so low as to ‘preven[t] candidates and political committees from amassing the resources necessary for effective advocacy.'”

There is no evidence that restricting contributions to political organizations to $5,000 will prevent organizations from amassing enough resources for effective advocacy. The question then is whether there is a sufficient Congressional justification for the restriction on a political organizations First Amendment rights. In Buckley and McConnell the Supreme Court has recognized that corruption and the appearance of corruption are acceptable reasons for restricting the amount of contributions to a candidate or party. If contributions to 527 organizations raise similar corruptions concerns, contributions to them can be regulated for similar reasons.

The McCain-Feingold legislation attempts to do just that. It classifies 527 political organizations engaged in over $1,000 of federal advocacy as a political committee and thus limits contributions to them to $5,000.

Whether this is constitutional turns on whether the corruptions concerns present are sufficient to allow regulation. The Supreme Court indicated in Buckley that organizations that have as their major purpose influence federal elections are can be regulated because they “can be assumed to all within the core area sought to be addressed by Congress.” They are, the Court recognized “by definition, campaign related.” So many 527s, those that have as their major purpose influencing federal elections, can constitutionally be regulated. Section 527s that do not have as their primary purpose influencing federal elections, however, must present a serious possibility of corruption before they can be subject to regulation as political committees.

It is hard to imagine that contributions to a 527 that engages in $1,001 in federal advocacy raises a real threat of corruption. Donors can regularly give candidates far more than $1,001 and Congress has found this amount not to be corrupting. PACs, individuals, and candidate committees can routinely accept contributions of this amount. Why is $1,001 corrupting when it is received by a 527 organization, but not by a candidate?

Professor Foley and I have argued sometimes a 527 can be engaged in so much federal advocacy, that a contribution to the 527 is similar to a contribution to a candidate. When a 527 has as its major purpose the influencing of a federal election, the 527 can operate as an effective surrogate for a contribution to a candidate. Contributions to the 527 can thus raise corruption concerns even if they are not coordinating with a candidate.

This justification, however, is much weaker when the 527 does not have as its major purpose the influencing of federal elections. A contributor does not know that his contribution will benefit a specific candidate unless the organization spends a significant amount of its resources on that candidate. So when influencing federal elections is not an organization’s major purpose, it is thus harder to argue that the contribution is corrupting.

The McCain-Feingold bill also limits the amount an organization can accept in its non-federal segregated account to $25,000. This provision also raises serious constitutional questions. A similar limitation was upheld in McConnell as applied to state political parties engaged in federal election activities. The Court upheld this limitation as “Congress’ judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption.” This logic, however, does not necessarily apply to independent organizations that are not engaged in federal elections. Proponents of the measure should at least put forward strong evidence that these type of contributions pose a serious corruption threat for federal elections.

Although the new McCain-Feingold legislation attempts to close some loopholes exploited by some advocacy group, there is a serious question whether the legislation as written is constitutional. Advocates need to provide strong evidence that contributions to 527 political organizations that engage in only a minimal level of federal advocacy pose significant corruption concerns to warrant the infringement on their First Amendment rights. This should be fairly easy to prove when considering 527s that engage in significant federal activity, but it will likely be a tough hurdle when trying to regulated 527s with only small amounts of federal activities.

Independent Election Administration

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By Steven F. Huefner

Last week, Ohio Secretary of State Kenneth Blackwell once again found himself on the defensive in connection with his administration of the 2004 election, this time for failing to appear at a congressional hearing. Among his detractors was Representative Bob Ney, a fellow Republican from Ohio and chair of the U.S. House Administration Committee, who is reported to have threatened to come to Columbus to hold the hearing, saying “you can run, but you can’t hide.” Representative Ney’s frustration at Blackwell’s absence helps highlight the seriousness of the issues that arise when partisan figures run our election processes.

Ney and his Administration Committee colleagues, who have oversight of federal election procedures, had asked Blackwell to appear before the committee last Wednesday at the first congressional hearing to review the conduct of the 2004 election. Had Blackwell attended the hearing, he certainly would have faced questions about perceived conflicts between his roles as the state’s chief elections officer, on the one hand, and as honorary co-chair of the Bush campaign in Ohio (and as leader of the campaign to amend the state constitution to prohibit gay marriage), on the other. The committee’s ranking Democrat, Juanita Millender-McDonald of California, had wanted to ask Blackwell about allegations that a number of his official actions had favored Republican candidates. For his part, Ney, who has previously defended Blackwell’s conduct of the 2004 election, may have hoped that his testimony would help clear the air.

Instead, two days before the hearing, at the conclusion of their annual meeting in Washington, the National Association of Secretaries of State issued a short statement entitled “Administering Elections in a Nonpartisan Manner.” The statement attempts to reassure the public and the Congress that the 39 secretaries of state who serve as their state’s chief elections officers are duty-bound to administer elections in a nonpartisan manner, and do just that, notwithstanding their party affiliation. Unfortunately, the statement does little to ease concerns that partisan secretaries of state have an inherent conflict of interest. Nor did the almost simultaneous resignation of former California Secretary of State Kevin Shelley, amidst a deepening scandal over allegations that he misused his authority.

The statement from the National Association of Secretaries of State accurately notes that each of the 39 secretaries who administer their state’s election laws has taken an oath of impartiality, that each must abide by statutory laws and court orders, and that each depends on the assistance of thousands of individuals from both parties to conduct elections. Nevertheless, the reality is that these officials occupy incredibly important and influential positions, where subtle and perhaps subconscious biases in their conduct may determine election outcomes. For instance, regardless of the good faith with which a secretary of state acts in overseeing the purging of the voter roles, or the processing of new registrations, it is not hard to imagine how party allegiance might, even unwittingly, influence the secretary’s conduct of these processes.

Equally important, the public must perceive its elections to be fair and impartial. Without this perception, citizens will quickly grow skeptical and disillusioned. Of course, we expect our elections officials to care about their community, and to encourage us likewise to get involved, and to vote. Predictably, however, when a state’s chief election administrator publicly takes sides on particular candidates and other ballot questions, she will lose the public’s trust that her decisions and judgments in implementing a multitude of complex procedural requirements are always impartial.

Consider, for instance, the potential effect on an Ohio voter’s trust in Secretary Blackwell’s official acts of the following (genuine) telephone message:

“Hi. This is Ohio Secretary of State Ken Blackwell. Voting ‘yes’ on Issue 1 to keep marriage between one man and one woman is just common sense. . . . This is Ken Blackwell. For the future of Ohio, please join me in voting ‘yes’ on Issue 1.”

A voter’s alarm over this advocacy might only be compounded upon hearing another Blackwell phone message a few days later, saying something like this: “Hi. This is Ohio Secretary of State Ken Blackwell. Please perform your civic duty and remember to vote next Tuesday.” Yet assuming that this second call went out to all Ohio voters as a message of civic responsibility (rather than only to a selected audience as a partisan get-out-the-vote drive), then these two messages’ combined conflation of the roles of advocate and neutral is astounding.

One partial improvement would be for secretaries of state to eschew any public endorsements of candidates or issues. However, this may be expecting too much, given the enormous pressures that all elected politicians face – pressures to support their party, to prepare for their own reelection, and to position themselves for other opportunities. But precisely because of these realities, a paper claim of neutrality, like that which the National Association of Secretaries of State issued last week, similarly is of little comfort.

The preferred remedy is to take election administration out of the hands of partisans. Indeed, independent election administration is recognized around the globe as one of the central elements in the proper conduct of democratic elections. Similarly, a few U.S. states also have chosen to administer their election systems through some independent system. In order to protect the fairness and neutrality that is so fundamental to the strength of democracy, it is past time for other states to do likewise.

How Did Ohio’s Voting Equipment Fare in 2004?

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By Daniel P. Tokaji

With all the concern and speculation that’s been swirling around the 2004 presidential election, it’s useful to take a look at some data. The Ohio Secretary of State’s office has posted the results of the November 2004 election. In conjunction with this list of voting equipment used from the Akron Beacon-Journal, this information allows an initial assessment of how the different types of voting equipment used in Ohio performed in this election.

Three different types of voting technology were used on November 2, 2004: punch card ballots, optical scan ballots, and electronic voting machines. As explained below, the initial results indicate that, as in prior elections in Ohio and elsewhere, punch cards performed much more poorly than other types of equipment. It also suggests that, if and when Ohio converts to better voting equipment, tens of thousands of votes will be saved.

Ohio’s Voting Equipment

Ohio is one of the last bastions of the punch card ballot, with approximately 72% of Ohioans using this voting method. That’s a higher percentage of punch-card voters than in any other swing state. With the punch card system, voters mark their ballots by using a stylus to punch a pre-scored “chad.” Among the 68 counties using the punch card in the 2004 general election were large urban counties such as Cuyahoga (Cleveland area), Montgomery (Dayton), Summit (Akron) and Hamilton (Cincinnati), as well as many smaller rural counties.

The next most commonly used type of voting system in the general election was the Direct Record Electronic or “DRE” system, used by approximately 16% of Ohio voters. There are actually several types of DRE equipment used in different counties within the state, including older push-button machines used by voters in Franklin County and newer “touchscreen” voting machines used by voters in Auglaize and Mahoning Counties. The Secretary of State’s office lists the type of DREs used, along with instructions on how each type of equipment is operated.

The third and final type of voting equipment used in Ohio ‘s November 2004 election is the optical scan or “Marksense” type system, used by approximately 12% of voters. With this system, voters make their choices by marking a piece of paper, which is then counted by machine.

There are two basic varieties of optical scan voting system: precinct-count and central-count. With precinct-count optical scan systems, voters feed their ballots into a counter at the polling place, and are notified if they’ve cast an inadvertent “overvote” – that is, if they’ve marked more than one candidate for a particular office. With central-count optical scan systems, ballots are counted at a central location, so no such notification is possible. Only three counties used precinct-count optical scan in the last election (Allen, Hardin, and Lucas), according to this AP report.

How Did Ohio ‘s Voting Equipment Fare in ’04?

The metric that’s most often used to measure voting system performance is “residual votes.” That term is used to describe ballots for which no valid vote was cast. It includes both overvotes and undervotes (ballots on which no choice is read). Overall, there were a total of 94,488 residual votes in Ohio ‘s November 2004 presidential election. Of those, the substantial majority (76,398) were cast using punch card equipment.

Election Law @ Moritz has prepared a table which shows the total number of votes for each candidate (pdf file) in the 2004 presidential election, as well as the number and percentage of “residual votes.” Put simply, the residual vote rate is the percentage of ballots for which no valid vote was recorded.

Overall, the residual vote rate in Ohio ‘s November 2004 presidential election was 1.65%. That’s down slightly from the November 2000 election, in which the residual vote rate was 1.89%.

The table also indicates the type of system that each county uses for in-precinct voting. In 2004, the counties that used each of the three types of equipment for in-precinct voting had the following residual vote rates:

Type of Voting Equipment Residual Vote Rate
Punch Card 1.84%
Electronic 1.25%
Optical Scan 1.01%

A few words of caution are appropriate in considering the meaning of these numbers. First, not every residual vote represents an error on the part of the voter or the equipment. In some cases, voters may intentionally undervote – that is, they may choose to abstain from the presidential race. Surveys of past elections indicate that approximately 0.3 to 0.7% of voters choose not to vote for any candidate. If those numbers were the same in Ohio this year, it means that the substantial majority of those who cast residual votes didn’t mean to do so.

It’s also important to bear in mind that equipment isn’t the only factor that can affect the residual vote rate. The demographic characteristics of certain counties can affect the rate of residual voting. For example, there’s evidence that voters of lower income and education levels tend to have higher residual vote rates, particularly with punch cards. A study by Michael Tomz and Robert P. Van Houweling shows that there’s a racial gap in residual voting – i.e., that there’s a higher rate of residual voting in predominantly black precincts – with punch card and central-count optical scan equipment. Tomz and Van Houweling also show that the use of electronic voting machines virtually eliminates that gap.

A final point to keep in mind in reviewing the Ohio data is that, in some counties, absentee and provisional voters use a different type of equipment than other voters. For example, in Franklin County, most voters who appeared at their polling place used electronic voting machines. But absentee voters and those who cast provisional ballots used the punch cards in Franklin County .

Overall, Franklin County had a 1.45% residual vote rate in the 2004 election. At this time, we don’t know for sure how many residual votes were cast using punch cards and how many were cast using electronic voting machines. It’s very likely, however, that this residual vote rate is being driven up by provisional and absentee voters using punch cards. That was true in the 2000 election, when Franklin County had an overall residual vote rate of 0.89%. This overall number obscured the fact that Franklin County voters using electronic voting machines registered a very low 0.6% residual vote rate, while those using punch cards had a whopping residual vote rate of 3.6% – about six times as high.

For these reasons, countywide and statewide residual vote rates provide only a rough measure of voting system performance. Still, it’s interesting to note that the high rate of residual voting with punch cards in Ohio is consistent with what other studies have found, including one by Henry Brady and his colleagues at the U.C. Berkeley Survey Research Center. That study also showed that residual vote rates decline when counties move from punch cards to electronic or precinct-count optical scan voting systems.

What’s in Store for Ohio Voters

Secretary of State Blackwell has recently announced that precinct-count optical scan systems will be used as the state’s primary voting device starting in 2006. Of course, the state had previously said that it would get rid of its punch card machines by 2004, but failed to do so. But if Ohio follows through on this plan, it will be good news for Ohio ‘s punch card counties, which can expect to see a higher percentage of their votes counted in the next election cycle.

Moving to precinct-count optical scan isn’t necessarily the best thing for all voters. As Ruth Colker has noted, it’s imperative that Ohio provide equal access for people with disabilities. For people with visual impairments in particular, electronic voting provides unparalleled advantages, since it has an audio feature that allows them to vote independently. The Help America Vote Act requires at least one accessible DRE unit at each polling place for voters with disabilities by 2006.

Moreover, it’s not at all clear that precinct-count optical scans will lower residual vote rates, for those counties that are moving from lever or electronic voting machines. Lucas County ‘s experience provides an interesting example. Lucas County used a lever voting machine in 2000 and had an exceptionally low residual vote rate of 0.57% overall. In the 2004 presidential election, however, the county converted to a precinct-count optical scan system and saw its residual vote rate climb to 0.70%. That’s still pretty low – but not as low as with the old-fashioned lever voting machine. Nevertheless, Ohio counties are required to replace punch card ballots, as a condition of the state’s decision to accept funds under Title I of the Help America vote Act.

Still, precinct-count optical scan appears to do pretty well from the standpoint of accuracy. The three counties that used precinct-count optical scan as their primary method of voting in 2004 had a 0.84% residual vote rate. And there’s no question that the 72% of Ohioans who used punch cards in Election 2004 will benefit from the replacement of this equipment, whether it’s with precinct-count optical scan or electronic voting technology. The early data from this election provide further evidence that the “hanging chad” punch card should be retired, before it results in yet another disputed election.