2006

Election Reform’s Top Priority: Changing the Electoral College Calendar

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[By Foley & Huefner]

[This work draws upon each of our previous research and writing, some of it found here and here, but it is intended to stand on its own as a concise statement of our views on this currently newsworthy topic.]

Were this a presidential election year, the Electoral College would have cast its votes yesterday. This day comes too soon after November’s voting. Significant unresolved races this year demonstrate that, despite post-2000 election reforms, more time is needed to settle close races. As Congress contemplates further reform, adjusting the Electoral College calendar should top its agenda. Why require a paper trail of electronic voting, for instance, if there is insufficient time to audit this trail in a presidential election? In 1934, when a constitutional amendment changed the date for presidential inaugurations to January 20th, Congress altered the Electoral College calendar to establish the Monday after the second Wednesday in December (yesterday) as the day for Electoral College voting, and January 6 as the date when Congress counts those votes. The same statutory scheme also sets the fifth Tuesday after Election Day, or six days before the Electoral College votes, as the so-called “safe-harbor” deadline. If states resolve all controversies concerning their choice of presidential electors by this deadline, then Congress is obligated on January 6 to accept these electors’ votes. These dates – set before “telecommunications” was either common parlance or common practice, and long before the advent of overnight delivery services – are no longer necessary for transmitting Electoral College votes to Washington. The Electoral College easily could vote on January 3 with enough time for Congress to review those votes before a January 20 inauguration. (We’d move the date for this review to January 10, but it also could remain January 6.) With presidential electors voting on January 3, Congress could change the safe-harbor to December 31, which in 2008 would give states an extra 22 days to resolve any disputes arising from the popular vote for these electors in November. Lest there be any doubt that states need these extra days, consider some of this year’s unsettled races. Whether Democrats or Republicans control Pennsylvania’s House of Representatives depends on an ongoing recount. The apparent outcome in Vermont’s election for state Auditor was reversed only last week, when a vote tabulation error was discovered, too late to meet the safe-harbor deadline. Most prominently, litigation over 18,000 undervotes in Florida’s thirteenth congressional district is still unresolved. Similarly, in Washington’s 2004 gubernatorial election, the recount that changed the winner from Republican Dino Rossi to Democrat Christine Gregoire was not certified until December 30, 17 days after the Electoral College voted that year. Indeed, the administrative error that caused several hundred ultimately decisive ballots to go uncounted was not rectified until two days after Electoral College voting. Thus, if the Washington gubernatorial recount of 2004 had been halted by a safe-harbor deadline (in the same way that the U.S. Supreme Court invoked this deadline in 2000 to halt Florida’s presidential recount in Bush v. Gore), or even if the Washington gubernatorial recount had ended on the day the Electoral College voted (which Bush v. Gore dissenters proposed as the deadline for a state-ordered recount in a presidential election), Washington would have a different Governor. Of course, extending the Electoral College calendar could also increase the period of uncertainty surrounding the outcome of the presidential election. This uncertainty could affect the economy, given the value that the market system places on predictability. This period of uncertainty also would shorten the transition time available for the incoming administration to prepare for office. But in most presidential elections, the Electoral College calendar won’t make any difference. For practical purposes, the nation will know the winner on Election Night, or the next morning, as it did when Kerry conceded in 2004. And precisely in that rare situation where the vote is exceedingly close in a state that will determine the Electoral College winner, the process for resolving accurately this state’s count of its vote for presidential electors should not be short-circuited by an unnecessarily abrupt Electoral College deadline, as it was in 2000 and could be again in 2008. What is most important is not how quickly the ultimate outcome is determined, but that the result be accepted as fair and accurate. States need time, after Election Day and before the Electoral College votes, to conduct three potentially laborious functions: (1) the verification of provisional ballots as part of the initial certification of election results; (2) the recount of all ballots, conventional and absentee, in those races subject to either an automatic or a permissive recount; and (3) the trial and appeal of any judicial contest of the final certification of the election. The five weeks between Election Day and the safe-harbor deadline are insufficient for completing these tasks in a close race. Moreover, reforms that improve the accuracy of the vote counting process, while intrinsically valuable, may exacerbate the time pressures of the current Electoral College calendar. Verification of the eligibility of provisional ballots is an important reform mandated by the Help America Vote Act of 2002, but it adds a time-consuming step. And if Congress does mandate a manually auditable paper trail of all ballots, that audit may require considerable time. Thus, the 110th Congress’s first election reform should be to change the Electoral College calendar to give states until the end of December to conclude the selection of their presidential electors. Even with this extra time, states must work expeditiously to determine the outcome of the popular vote. But states will have a much better chance of fairly and accurately finishing their vote-counting procedures if Congress will give them a total of eight weeks, rather than five, to make the safe harbor.

Political Campaigning by Churches and Charities

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By Donald B. Tobin

In his recent blog post, Bob Bauer summarizes and criticizes my recent article on “Political Campaigning by Churches and Charities.” In one sense, I was pleased to read his comments. Bauer fairly and accurately summarizes the main substance of my argument � that allowing (c)(3)s to intervene in political campaigns is bad for (c)(3)s and bad for democracy. His criticisms, however, miss some of the fundamental premises underlying the article, and his implied remedy has serious problems of its own. In the article, I defend the prohibition in the Internal Revenue Code that prevents tax-exempt 501(c)(3) organizations from intervening or participating in political campaigns on behalf of a candidate for Federal office. I believe the prohibition is good public policy, helps keep a level playing field in elections, and is constitutional. Most tax-exempt organizations are allowed to engage in at least some level of intervention in a political campaign, and as Bauer notes, even corporations are allowed to endorse candidates. Section 501(c)(3) organizations, however, are different. They are in a sense “super tax-exempt.” Section 501(c)(3) organizations receive a dual subsidy. They are not required to pay tax on their income, and contributors to the organizations are able to deduct the contributions under section 170 of the Internal Revenue Code. Thus, even more so than other tax-exempt organizations, the citizenry as a whole, through the public fisc, is being asked to subsidize the organization. Religious institutions, charitable organizations, and educational organizations qualify for this super subsidy. As a condition of receiving this subsidy the organizations must meet certain requirements, including a prohibition from intervening in political campaigns. Some 501(c)(3) organizations have cried foul, arguing that they have a First Amendment right to intervene in elections. There is, however, no First Amendment problem here. These organizations voluntarily seek preferential tax status. They know the restrictions and benefits of that status and choose to seek it. If the organization did not want to comply with the restrictions, it could organize in a different form, forgo the super subsidy, and engage in as much campaign related activity as it wanted consistent with federal election law. The underlying policy question is why should the government subsidize campaign activity for this select group of organizations? My goal in the article is to defend the above restriction by showing that it is both constitutional and good public policy. Bauer acknowledges my policy concerns but argues that they are a parade of horribles and by implication, not what would happen in the real world. Bauer seems to argue that allowing religious institutions some small amount of leeway to intervene or participate in political campaigns would not produce the horrors that I fear. Bauer may be right, and my colleague Allan Samansky has made just such an argument in a recent article. In fact, Samansky also disagrees with my constitutional argument and believes that churches have a constitutional right to intervene and participate in political campaigns. But what I think Bauer misses is that the “parade” I envision is more plausible than he thinks. Political campaigns have found new and innovative ways to influence the electorate. Recent experience has shown that campaigns will attempt to use churches to influence voters and that non-profit organizations are particularly vulnerable. Do we really want our churches and charities to become extensions of political campaigns? Bauer is right, a limited exemption might not produce such a result, but there is already significant abuse in this area. There is every indication that many organizations will push the line as far as they can. For example, if we allow organizations to endorse candidates to their membership, how do we define membership? A broad conception of membership could completely destroy the “limited” exemption. Bauer also correctly notes that current campaign laws would also provide some limitations for (c)(3)s. For example, even if there were a limited exemption, 501(c)(3)s would still be subject to federal contribution limits. But as Bauer knows probably better than anyone, those laws still allow a tremendous amount of election activity. Providing for a limited exemption simply increases the potential loopholes and increases the chances that the consequences I fear will come to pass. Moreover, Bauer criticizes my argument that the prohibition is good for (c)(3)s. But here I think Bauer fails to recognize the amount of coercion and pressure government and politicians can place on religious institutions. Recent campaign experience shows that politicians can and will place pressure on religious institutions to promote politicians campaign or party. The political campaign prohibition helps protect religious institutions from this coercion. Churches and other non-profit organizations already have significant ability to influence the electorate and to reach out to their members. The political campaign ban is a minor limitation that seeks to prevent the use of taxpayer dollars to subsidize speech aimed at supporting or promoting a specific candidate. If 501(c)(3) organizations want to intervene in political campaigns, let them do so without taxpayer provided subsidies. That is what the rest of us are forced to do. Let organizations formed to preach to the masses, help the hungry, and educate our children do just that. We lose far less when we prohibit these organizations from engaging in political campaigns than we would lose if the public lost faith in its religious and charitable institutions.

Happy Birthday, Bush v. Gore

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Six years ago today, the U.S. Supreme Court ordered an end to any recount of the presidential election in Florida that year. With all the electoral reforms that have occurred since then, and all the talk of more congressional legislation to require paper trails in the wake of Florida’s problem with electronic voting machines this year, it amazes me that the central practical lesson of Bush v. Gore goes largely ignored.

That lesson is that recounts in presidential elections must end by the “safe-harbor deadline” established by Congress, which is the fifth Tuesday after Election Day.

This comment sets forth a model schedule that states can adopt in an effort to meet this deadline and proposes that Congress extend this deadline by three weeks, so that states are not so rushed in their procedures for producing a final accurate count of their presidential votes.

Six years ago today, the U.S. Supreme Court ordered an end to any recount of the presidential election in Florida that year. With all the electoral reforms that have occurred since then, and all the talk of more congressional legislation to require paper trails in the wake of Florida�s problem with electronic voting machines this year, it amazes me that the central practical lesson of Bush v. Gore goes largely ignored. That lesson is that recounts in presidential elections must end by the so-called �safe-harbor deadline� established by Congress, which is the fifth Tuesday after Election Day. As I previewed last week, today is the fifth Tuesday after this year�s Election Day, and although most recounts this year are now complete, a few significant ones remain ongoing, including one that will determine which party controls Pennsylvania�s House of Representatives. [UPDATE: This morning’s Philadelphia Inquirer reports that this recount, which has not yet begun because of disagreement of what procedures to use, may not be complete for another few weeks.] Moreover, the safe-harbor deadline applies to all disputes over a state�s delegation to the Electoral College, not just recounts. Thus, the current litigation in Florida seeking a revote in that state�s thirteenth congressional district would now be stopped dead in its tracks, if this litigation involved a presidential election instead. Call me obsessed by this safe-harbor deadline, but I�m afraid that many election reform advocates are simply missing its significance. Congress can require a paper trail, and mandate an audit of that paper record, but if there isn�t time to complete the audit before the safe-harbor deadline, then this reform is useless in a presidential election, when it matters most. The good news on the recount front during this past week was that, with respect to Ohio�s fifteenth congressional district, Franklin County completed an audit of ten percent of its paper trails in that race, corresponding to over 19,000 electronic ballots, and discovered no discrepancies. But before anyone becomes overly optimistic as a result, it is worth remembering that as of last night litigation remained pending concerning uncounted provisional ballots in that race. Moreover, Franklin County would have been hard pressed to review the remaining 90% of paper trails by the end of today, had a discrepancy emerged from an initial 10% audit, and it is unclear that some other large urban counties in the state�most noticeably Cuyahoga�would have been able to duplicate Franklin�s measure of success. Lest anyone forget the potential significance of litigation over uncounted provisional ballots, just consider this question: who would be Governor of Washington State today had the safe-harbor deadline applied to that race? Not the current incumbent, Christine Gregoire, but instead her opponent, Dino Rossi, who had twice been certified the winner and still remained ahead on December 7, the fifth Tuesday after Election Day that year. It was not until December 15, 2004�two days after the Electoral College had met in each state�that King County rectified an administrative error regarding several hundred uncounted ballots, an error uncovered in the wake of litigation over uncounted provisional ballots. On December 22, the Washington Supreme Court confirmed the permissibility of King County�s decision to correct this mistake as part of a then-ongoing manual recount of ballots, thereby clinching Gregoire�s victory, which was finally certified on December 30, when the manual recount was complete. If this recount and all disputes over the state�s gubernatorial election had been halted on December 7, the administrative error over the uncounted ballots would not have been discovered, and a different candidate would have been inaugurated. [UPDATE: This year�s statewide recount of the Auditor�s race in Vermont also shows the consequence of discovering vote tabulation errors too late to comply with the safe-harbor deadline. According to an AP report this morning, the Democratic candidate has pulled ahead because the recount has revealed that 302 votes for this candidate had been misattributed to another candidate during the initial count, which had the Democratic down by 137 votes. The recount continues in three of the state�s largest counties, however, and thus if this recount concerned a presidential election and were halted today, the wrong candidate would be declared the official winner based on the erroneous initial count.] Because of the need to complete all recounts and other disputes concerning presidential elections by the safe-harbor deadline, I have developed this model schedule for states to consider with respect to any vote-counting controversies that might arise in 2008:

Day Date Event
Tues Nov. 4 Election Day
Sat Nov. 8 deadline for voters to submit missing identification
Fri Nov. 14 verification & count of all provisional ballots; initial certification of winner
Sat Nov. 15 notice of recount (automatic or requested)
Sun Nov. 16 commencement of recount
Wed Nov. 19 deadline for administrative challenge to rejected ballots
Wed Nov. 26 completion of recount & review of rejected ballots; final certification of winner
Thurs Nov. 27 Thanksgiving Day
Fri Nov. 28 deadline for filing judicial contest of final certification
Mon Dec. 1 deadline for defendants� answer to contest
Tues Dec. 2 trial proceedings commence on judicial contest
Fri Dec. 5 deadline for trial court ruling on judicial contest
Mon Dec. 8 appellate hearing on judicial contest
Tues Dec. 9 safe-harbor deadline
Mon Dec. 15 Electoral College meets
Tues Jan. 6 Congress counts electoral votes

Even a cursory glance at this schedule reveals that there is not a lot of time for the completion of each part of the process. Most election officials would say that it is desirable to have more than ten days to verify the eligibility of provisional ballots. Likewise, ten days for conducting a statewide recount, especially one that requires a manual review of all ballots, is an extraordinarily tight timeframe. Perhaps even more pressing is the obligation to complete the trial and appeal of any judicial contest within a single week. Because of the demands that this schedule places upon state officials, Congress should seriously consider adjusting the Electoral College calendar, including the safe-harbor deadline, as suggested two years ago by my colleague Steve Huefner. He proposed December 31 as the new safe-harbor deadline, with January 3 being the new date on which the Electoral College meets, and January 10 the new date for Congress to review the Electoral College submissions from the states. This proposal would add just over three weeks�22 days to be exact�to the time between Election Day and the safe-harbor deadline. States could profitably apportion these extra days among the three parts of the aforementioned schedule that are especially stressed: (1) the verification of provisional ballots; (2) any requested or automatic recount; and (3) any judicial contest. If Congress takes up any election reform next year, it ought to include this revision of the Electoral College calendar as part of its package. Indeed, even if Congress does nothing else, it should address this issue, because the current timetable is unrealistically demanding upon the states. Thus, by the time the seventh birthday of Bush v. Gore rolls around next year, it would be cause for true celebration if Congress diminished the practical significance of that decision by extending the safe-harbor deadline an extra three weeks.

 

Timing is Everything

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Today is four weeks after Election Day, and the day on which the recount for Ohio’s 15th congressional district is scheduled to begin.

If this year were a presidential election, next Tuesday would be the so-called “safe-harbor deadline” the date by which a state must resolve all controversies over its choice of presidential electors if their Electoral College votes are to be binding on Congress.

Would election officials be able to complete a presidential recount in a single week? If not, any future effort at election reform should have as a priority the adoption of a schedule that would leave enough room for a recount in a presidential race.

Today is four weeks after Election Day, and the day on which the recount for Ohio�s 15th congressional district is scheduled to begin. If this year were a presidential election, next Tuesday would be the so-called �safe-harbor deadline,� the date by which a state must resolve all controversies over its choice of presidential electors if their Electoral College votes are to be binding on Congress. In fact, next Tuesday happens to be the sixth anniversary of Bush v. Gore, as Election Day both this year and in 2000 fell on November 7, and Bush v. Gore ordered an end to the recount in Florida on December 12, 2000, precisely because that date was the safe-harbor deadline. As part of Ohio�s overhaul of its election code earlier this year, a provision now requires any recount in a presidential election to be complete by this safe-harbor deadline. (The provision is Ohio Revised Code � 3515.041.) It would be an interesting test to see if the recount of Ohio�s 15th congressional district could be finished in just one week. Because it is not a presidential race, state law gives local officials three extra days, until Friday, December 15 (� 3515.03). If local officials do get this congressional recount done on time, it likely will be because they recount only 3% of the Voter Verified Paper Audit Trails, or roughly 6,600 VVPATs, rather than all 221,156 ballots. Were they to review manually each one of these ballots in a single week, they would need to count 31,593 of them per day, or 1,316 per hour working round the clock�without even allocating any time for double-checking or resolving discrepancies between this manual count and the initial machine count. [Update (8:29am): This morning’s Columbus Dispatch reports that the Franklin County Board of Elections will recount 10% of VVPATs in the OH-15 congressional race, or almost 20,000 ballots. Director Matt Damschroder is quoted as saying, “It will give us greater opportunity to test and prove the accuracy . . . of our new system.”] As my colleagues and I have discussed previously, it is not at all clear to us that it is permissible under state law for local officials to review only 3% [or 10%] of VVPATs rather than all of them, despite the obvious administrative desirability for this more limited review. The part of the elections code governing recounts provides that any candidate may apply �for a recount of the votes cast at such election in any precinct� (�3515.01) and that the Secretary of State must order a recount �in a district election� when the margin of victory is less than one-half of one percent (�3515.011). These two provisions regarding requested and automatic recounts clearly contemplate the recounting of all ballots rather than just a fraction of them. More to the point, another section of the code specifies the procedures for conducting both permissive and mandatory recounts (�3515.04), and states that �the board of elections, in the presence of all observers who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them,� not a portion of them. Likewise, still another section provides: �Upon completion of the recount of the ballots of all precincts listed in an application for a recount . . . or in the case of a [mandatory] recount as provided in � 3515.011,� the board shall file an amended return indicating any change in the results. The upshot of all these provisions would seem to mandate the recounting of all ballots in a congressional race where either a candidate puts up the money for a recount of all precincts or an automatic recount of the race at the government�s expense is required because of the narrow margin of victory. Because a separate section of state law makes the VVPAT the �official ballot to be recounted� (�3506.18), a recount of all ballots in a race would appear to mean a recount of all VVPATs. To the extent that there is sufficient ambiguity in these statutes to permit officials to recount only 3% [or 10%] of VVPATs as a part of a government-funded automatic recount, presumably a willing and well-funded candidate could moot the point by putting up enough money to cover a candidate-requested recount in all precincts. In other words, even though Mary Jo Kilroy is entitled to an automatic recount under state law by virtue of Deborah Pryce�s narrow margin of victory, Kilroy could insist on a recount of all precinct�not just the 3% offered by the government�if she were prepared to pay for it. Of course, if the 3% [or 10%] sample produces a discrepancy, the board of elections may end up having to review all the VVPATs at its own expense. Either way, is the board ready to manually recount 220,000 VVPATs in a single week? When one considers that a recount of a presidential race in 2008 would be statewide, the challenge of conducting the recount in a single week seems all the more daunting. The entire state would be at the mercy of its slowest county. Therefore, even if Franklin County were able to review all its VVPATs in time, the state as a whole would miss its safe-harbor deadline if Cuyahoga County were unable to do so. No wonder Cuyahoga County is thinking of switching to optical scan machines before 2008. Franklin County, are you sure you want to be the state�s largest county with VVPATs in 2008? Of course, if it were necessary to conduct a statewide manual recount of optical-scan ballots, that task would also be exceedingly difficult to complete in a single week. Optical scan ballots may be easier to review manually than VVPATs, which are spooled like adding-machine tapes. But a manual review of 6 million ballots is a scary prospect, no matter how user-friendly these pieces of paper. All this suggests that Ohio needs to figure out a way to complete its initial counting of the ballots more quickly so that recounts don�t begin four weeks after Election Day. Ohio law is generous in giving voters 10 days to provide their local boards with proper ID if they did not have it on Election Day. Perhaps the state needs to consider cutting back on this amount of time. Similarly, the state gives local boards three full weeks to complete their initial count of all ballots, including provisionals and absentees. While it is desirable to give local officials ample time to determine the eligibility of provisional voters, it would leave more time for conducting manual recounts if boards could complete the initial count in two weeks. Doing so, of course, would be easier if the number of provisional ballots were reduced. This year saw an upsurge in the number of provisional ballots cast in Franklin County: about 21,000 or 5.5%, compared to 14,462, or 2.7% in 2004. One important goal for 2008 would be to bring that number back down. Ohio is hardly alone in having a vote-counting process that makes it virtually impossible to complete a full statewide manual recount, if triggered, by the safe-harbor deadline. Yesterday, Vermont began a statewide recount of its Auditor�s race, which might not be complete �until the first of the year,� according to one county official quoted in a local newspaper. Similarly, Pennsylvania has not yet begun a recount of a key race on which control of the state�s House of Representatives rests. And if the current fight in Florida over 18,000 undervotes were occurring in the context of a presidential rather than congressional race, that state again would be unable to resolve the controversy by the safe-harbor deadline. The Florida fight is causing Congress to consider mandating VVPATs. While there are other reasons to be cautious about adopting such a requirement, as my colleague Dan Tokaji has recently explained, one especially strong reason for caution is that there may be insufficient time to make this requirement meaningful in a presidential election, unless Congress also changes the safe-harbor deadline and the date on which the Electoral College meets. It is certainly laudable that the public debate over voting technology is turning to what sort of technology works best in the context of a recount, not just what technology facilitates the casting of ballots on Election Day. But the design specifications of a recount-suitable technology must take into account the severely limited amount of time there exists to conduct a recount in a presidential election. Simply put, there is no point in requiring voting machines to produce spools of paper if there is not enough time for election officials to unravel these spools and examine them. When Congress or any state legislature revisits the issue of voting technology, it should do so in the context of a beginning-to-end, from registration to recount, review of the timetable of the voting process. As already indicated, the amount of time available for recounts is interconnected with the amount of time it takes to complete the initial count of ballots, including verifying the eligibility of provisional ballots. Moreover, as I�ve disussed elsewhere, the amount of time needed for verifying the eligibility of provisional ballots is interrelated with the amount of time election officials have before Election Day to verifying the accuracy of their voter registration databases. Notwithstanding the decision to cut off the recount in Bush v. Gore, neither Congress nor state legislatures have attempted to consider the schedule of the voting process as a whole, to determine whether an appropriate amount of time is devoted to each component part, so that the entire process can be completed by the safe-harbor deadline. Rather, since 2000, a series of reforms have been adopted at the federal and state level without regard for their consequences in terms of this overall schedule: new voter identification requirements, new provisional voting procedures, new VVPAT requirements. Each of these reforms might seem like a good idea to the legislature that adopts it, but taken together they create a process that cannot be completed in the total amount of time available. Recounts, because they come at the end, inevitably get short-circuited in a presidential election. Yet recounts are an exceedingly important part of the process in close elections that warrant them. Presidential elections being the most important of all, the ability to conduct a recount in a presidential election where the margin of victory is narrow enough to require one would seem to be a paramount objective of our electoral system. Presently, however, our system is structured in such a way as to preclude them from occurring, at least effectively. Recounts, especially in presidential races, are no joke. Yet with recounts, as with joke-telling, timing is everything.

OH-15: Legal Issues in Recount

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Report that Kilroy may attempt to challenge disqualification of provisional ballots raises substantive and procedural questions.

Several significant legal questions emerge from this morning�s Columbus Dispatch story about the recount that has been triggered by yesterday�s final results in the election for Ohio�s 15th congressional district. First, the paper reports that the Secretary of State will call for a manual recount of 3% of the Voter Verified Paper Audit Trails (VVPATs), pursuant to that office�s rules for automatic recounts of this kind. Yet, as explained previously by Steve Huefner (building on earlier analysis by our colleague Dan Tokaji), there is a question whether a statute adopted by Ohio�s legislature actually requires a count of all 100% of these VVPATs in this situation, and if so, what legal procedure Kilroy could pursue to enforce compliance with this statute. Second, the Dispatch article also says that Kilroy is considering a possible challenge to the disqualification of provisional ballots. Apparently, about 2,600 provisional ballots were rejected in Franklin County, out of approximately 21,000 cast, although a portion of these ballots would be applicable to another congressional district. An AP report says that the two main reasons why provisional ballots were rejected were either that the individual was not registered or that the ballot was cast in the wrong precinct. Although federal law does not require Ohio to count wrong-precinct provisional ballots, the Dispatch reports that Kilroy may claim that poll workers failed to comply with an obligation to direct these voters to their correct precinct. In addition to questions about the merits of any challenges Kilroy might make regarding the rejected provisional ballots, there is a basic procedural question in Ohio about where she might bring this kind of challenge. Although Ohio law would permit a candidate for a state office�Governor, representative in the state�s legislature, and the like�to go to state court to contest the official outcome of the election on this basis, a change in state law earlier this year precludes the availability of this kind of state-court challenge for candidates to a federal office, including one of the state�s delegation to the U.S. House of Representatives. Ohio Revised Code � 3515.08, as amended by HB3, expressly states: �The nomination or election of any person to any federal office . . . shall not be subject to a contest of election conducted under this chapter [which otherwise provides for such contests].� Instead, this section of Ohio law confines a candidate for federal office, like Kilroy, to whatever remedies may be available under federal law: �Contests of the nomination or election of any person to any federal office shall be conducted in accordance with applicable provisions of federal law.� Because challenging the rejection of provisional ballots would not be part of the state�s automatic recount process that has been triggered for this race�and this point applies whether the automatic recount examines 3% or 100% of the VVPATs�Kilroy may be consigned to contesting the election in Congress itself if she wishes to dispute the disqualification of provisional ballots. Although Kilroy ultimately may not decide to exhaust all possible avenues and bases for contesting this election, significant legal issues remain unsettled for as long as she contemplates her options.

Congress Turns to Election Administration

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By Daniel P. Tokaji

One of the things that may change with the new Democratic majorities in both houses of Congress is greater attention to the mechanics of elections. In one sense, this is a welcome development. The last of the core provisions of the Help America Vote Act of 2002 (HAVA) were implemented in this year’s election season. It is therefore quite appropriate that this Congress devote attention to studying how well these changes worked and what might be done prospectively to make our election system function better. There is reason to be concerned, however, that this is not what the incoming congressional majority will actually do.

One of the things that may change with the new Democratic majorities in both houses of Congress is greater attention to the mechanics of elections. According to this report in the San Jose Mercury News, Senator Dianne Feinstein plans to focus on electronic voting and other election administration issues, in her new capacity heading the Rules and Administration Committee. In one sense, this is a welcome development. Now is the perfect time for Congress to re-focus on the nuts and bolts of elections. The last of the core provisions of the Help America Vote Act of 2002 (HAVA) were implemented in this year’s election season. Chief among those were the replacement of punch card and lever voting technology, for those states which accepted federal funds, and the implementation of disability accessible voting technology. Also in place this year, at least in most states, were new statewide registration databases mandated by HAVA. It is therefore quite appropriate that this Congress devote attention to studying how well these changes worked and what might be done prospectively to make our election system function better. There is reason to be concerned, however, that this is not what the incoming congressional majority will actually do. In the past few years, the main election reform on which some on the Democratic side have been focused is the so-called “voter verified paper audit trail” (VVPAT). Mandating that electronic machines generate a VVPAT is frequently urged as a remedy for the security and transparency concerns with electronic voting. I’ve explained on many occasions, including here, why I don’t think such legislation is wise. Most recently, some electronic voting critics have seized upon the problems in Sarasota County to argue that a VVPAT should be required — even though it’s not at all clear that a VVPAT would have prevented the problems that emerged there. Relatively little research has been done on the functioning of electronic voting machines with a VVPAT in real elections. The research that does exist raises serious questions about whether mandating a VVPAT is really a workable and effective remedy for the real security issues that exist with electronic voting technology. No one seriously denies that there are risks with electronic voting technology. The danger is mandating a particular solution before understanding the problem completely. As I noted here, it’s pretty clear that something went seriously wrong in Sarasota County, and I’m among those who very much look forward to learning what that something — or some things –were. But it’s reported that Senator Feinstein was planning to roll out VVPAT legislation even before the Sarasota problem. If true, there’s reason to worry that some in Congress aren’t seriously interested in looking carefully into the problems in HAVA implementation, but rather in pushing through a pre-selected solution that may or may not make sense. Congress should take a hard look at what went wrong in Sarasota County. Before moving to mandate the VVPAT or any other particular fix, it should also look carefully at how effectively they’ve functioned in places where they have been implemented, such as Cuyahoga County. Do voters actually check the VVPAT, for example, when it’s provided on electronic voting machines? And is it practicable to hand-recount a sufficient number of paper records to ensure an adequate level of confidence? Congress should also examine the problems that have occurred in the implementation of HAVA throughout the country, including but not limited to those relating to voting technology. Only after engaging in a careful process of diagnosis should Congress move to the task of prescribing remedies. This applies not only to voting technology, but also to voter registration, provisional voting, identification requirements, and all the other aspects of election administration that have undergone change in the last six years. It should also look carefully at the various agencies charged with administering elections, including the Election Assistance Commission (EAC), to determine whether there’s a need for institutional reform. If Congress rushes to judgment on solutions before properly analyzing the problems, it could end up making things worse instead of better.

OH-15: 500 Provisional Ballots Invalidated

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A Free & Fair comment on this morning’s news.

Towards the end of this morning�s Columbus Dispatch story about the continuing counting of ballots in the Pryce-Kilroy race for Ohio�s 15th congressional district�a story whose headline has Pryce gaining 181 votes from ballots in Madison and Union counties�it is reported that so far about 500 provisional ballots have been ruled ineligible in Franklin County because they were cast by individuals who are not registered to vote. The first point to make about this fact, as the Dispatch itself notes, is that not all these ballots may apply to the OH-15 election, as Franklin County is split with another congressional district. Therefore, it seems unlikely, although possible, that these rejected provisional ballots will end up making the difference between who wins and who loses this election. Another important point, not discussed in the Dispatch article, concerns the procedures that the election officials use to determine whether or not a provisional voter is registered. Different states, as well as different counties within states, have different methods for conducting this inquiry, and these different methods can cause variations in the percentages of provisional ballots that are rejected. For example, some localities check only whether the provisional voter appears in the election board�s computerized database of registered voters, while others double-check the accuracy of their computerized databases by going back to look to see if the board has on file a voter registration card for this provisional voter. In previous elections, some local boards have checked to see whether their state�s Department of Motor Vehicles has failed to forward voter registration forms that were timely submitted to their bureaus, whereas other local boards have not undertaken this additional inquiry. Although Ohio�s legislature overhauled the state�s vote-counting procedures earlier this year, in a law known as HB-3, that statute does not specify the procedures for county boards of elections to use when verifying the registration status of provisional voters. In my judgment, that omission is a missed opportunity and could leave the state and its local boards vulnerable to an Equal Protection challenge based on Bush v. Gore to the extent that different counties use different procedures, with the consequence that some rejected provisional ballots would have been counted had they been cast in other counties. Although this Equal Protection theory may or not be available with respect to the Pryce-Kilroy race, depending upon the facts �on the ground� in the three counties involved in that race, it is conceivable that this Equal Protection theory could be invoked in the statewide Auditor race, which remains undecided and awaiting the final count of provisional ballots. Or, even if the Auditor race is out of reach in the same way that the presidential race was in 2004, this Equal Protection claim remains latent, waiting to be invoked in 2008 if the facts warrant it. Even apart from a state�s interest in avoiding a possible Equal Protection claim, there are important reasons to clarify and specify the procedures for determining whether or not a provisional voter is registered. Given the requirement of the Help America Vote Act (HAVA) for states to set up centralized voter registration databases, a requirement which became effective this year, there is increased attention to the protocols that states and their local election boards use to verify the accuracy of these databases. Studies have shown that �matching� protocols can cause errors in this verification process: if a name or address is misspelled, or a nickname is used, the election official will fail to find the individual even though that person is actually in the database. This point equally applies to the process of verifying the registration status of provisional voters. If the name on the provisional ballot is �Henry,� but the name in the registration database is �Hank,� the local board may determine erroneously that the individual is not registered�and therefore the provisional ballot does not count�even if an extra step in the verification process would have resulted in the recognition that the individual is indeed registered under his nickname. For this reason alone, state law should clearly and specifically delineate all the steps that local election boards need to take before ultimately rejecting a provisional ballot on the ground that it was cast by an individual who was not registered. Franklin County had a high percentage of provisional ballots this year. Although we all need to wait until the counting process is complete to review why the rate was so high, as well as the consequences it had, it is possible that procedures associated with the new HAVA-mandated registration database caused a large number of individuals to be removed from the rolls or to have their registration status put in doubt. It is also possible, when the time came to check the registration status of those individuals forced to cast a provisional rather than regular ballot, that the verification procedures in place were unable to recover individuals who had gone missing. Of course, it is also possible that 500 individuals went to vote on November 7 even though they had never attempted to register beforehand, and thus no amount of checking could uncover a missing registration form. But one wonders about the likelihood of that. Going to the polls on Election Day takes time and effort. Just remember that turnout among registered voters is below sixty percent, and thus think of all those who unquestionably could have voted but didn�t bother to do so. Here, we have 500 folks who made the effort and stood in line. By signing their provisional ballot envelope, they attested to their sincere belief that they thought they were registered. Presumably, then, they think that the election board has a registration form somewhere that has gone missing. So what happened? What explains this misunderstanding between voter and government concerning this elementary question of whether this otherwise eligible voter completed the necessary paperwork in advance of the election in order to be able to cast a countable ballot? Was it lost in the mail? Was it submitted too late or lacking required information? Was it misplaced by a third-party group that conducted a voter registration drive? Is it sitting at the Department of Motor Vehicles, or other state agency designated as an acceptable location for the timely delivery of registration forms, waiting to be forward to the elections board? Was the individual erroneously purged from the registration database? Or did these voters really go to their proper precincts to vote (because this situation is not the rejection of a provisional ballot for being cast an incorrect precinct), without ever having attempted to register in the first place? This basic question deserves to be answered with respect to each and every rejected provisional ballot, simply because of the disenfranchisement (rightful or wrongful) that has occurred, even if these ballots make no difference to the outcome of the Pryce-Kilroy congressional election.

Redistricting Reform: Back on the Agenda

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[Foley & Brad Smith]

This piece, co-authored with Brad Smith of Capital University, originally appeared on November 18 in the Columbus Dispatch under the title “Ohio must get rid of gerrymandering.” 

Anyone who knows our work knows that we don�t agree on much. We don�t even agree a whole lot about the substantive topic that underlies this op-ed: how legislative districts should be drawn and how large a problem partisan gerrymandering is. Yet we do agree on one important procedural point: legislative districts should be drawn by an independent, nonpartisan commission. Our decision to co-author this comment was prompted by a conversation we had about the delegation that Ohio elected to the U.S. House of Representatives on November 7th. The basic fact, assuming that Deborah Pryce and Jeanne Schmidt hold on to their seats [the latter of which AP has now called in Schmidt’s favor although her opponent has not yet conceded], is that Ohio will send 11 Republicans and 7 Democrats to Congress in January. But overall in Ohio 1.97 million votes were cast for Democratic candidates for Congress, whereas only 1.78 million votes were cast for their Republican opponents. In other words, Democratic candidates received about 200,000 more votes�and won the state�s total popular vote for the House by a 52.5% to 47.5% margin�but Republican candidates won 4 more seats. We don�t dispute these facts. Instead, we disagree about their significance. One of us thinks they don�t demonstrate much of a problem, while the other considers them evidence of partisan subversion of the public interest. The argument that this gap between the percentage of votes and the percentage of seats is no big deal rests on the observation that a shift of fewer than 10,000 votes in three districts�not enough to materially alter the overall statewide voting percentages� would have led to the Democrats winning 10 congressional races, or 56% of the seats, with 52.5% of the statewide congressional vote. Thus, according to this argument, the lopsided edge Republicans will enjoy in the state�s next congressional delegation has less to do with gerrymandering than with the fact that Republicans won all three of the state�s close races. Had the Democrats won even two of those close races, with a shift of just a few votes, they would have won seats in proportion to their total statewide vote. Minor deviations in close races are to be expected in any districting system, and do not indicate any systemic unfairness. The opposing view argues that, had these three districts not been drawn by Republicans to increase their party�s advantage, Democratic candidates probably would have run in more favorable districts, enabling them to win at least two of these seats. It is no accident that Democrats came close in these three districts because they overlap substantially with two of Ohio�s three largest cities, Columbus and Cincinnati. Deborah Pryce�s district has a large chunk of Columbus, but not all of it, and Cincinnati is split between Schmidt�s and Rep. Steve Chabot�s. Had the mapmaker kept these cities intact as much as possible (given the obligation to comply with overriding principle of one-person-one-vote), then at least two of these districts would have been more friendly territory for Democratic candidates. Instead, Republican mapmakers divided these cities into separate districts and combined them with Republican-leaning outlying areas, making it easier for Republican candidates to win a disproportionately large share of congressional seats. We could go round and round on who has the better of this argument. The point is that we, and others like us who debate the substance of districting, need a way out of this endless dispute. Our exit strategy is the adoption of an independent nonpartisan commission to draw the district lines. If, under an independent commission�s plan, Democrats take only 7 out of 18 congressional seats despite winning a majority of congressional votes statewide, so be it. That result would be the outcome of a process structured to be fair to both Democrats and Republicans. The same would be true if Republicans won fewer seats than their overall statewide vote total would suggest. When districts are drawn by partisan mapmakers, however, there will always be the suspicion that the plan was unfairly drawn to help one party. The value of a process that is perceived as fair is a familiar�and intuitive�one. As the philosopher John Rawls observed, if two individuals must share a piece of pie and each wants half, the outcome will be fair as long as the person who slices the piece must take the second slice. There are different ways to design an independent commission. This op-ed is not the place to discuss these details. Our point, rather, is that some form of neutral commission should replace the current system, so that one party is not allowed both to slice the congressional pie and to choose which piece it will enjoy. At the same time, a party that wins fewer legislative seats than it thinks it should have will no longer be able to complain that the districting process was rigged against it. Last week�s election demonstrates the benefits of an independent districting commission, not because results were necessarily unfair (that conclusion would be to take one side of the debate between us), but because mapmaking controlled by one party necessarily exposes the map to charges of unfairness. Even as this election shows the value of reform, it provides an opportunity to achieve it. At this point, neither party knows for sure who will control the state�s reapportionment process in four years. The current General Assembly remains in Republican hands, while the new Governor is a Democrat. As an early exercise of bipartisan cooperation, the General Assembly and the Governor should forge a plan for an independent commission to draw the state�s congressional map after the next census, in 2010. In addition to adopting a procedural reform that is fair and worthwhile, doing so just might foster additional bipartisan undertakings for the benefit of Ohio.

Election Night: Do We Really Need to Know Results Before We Can Sleep?

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By Terri. L. Enns

When the nation went to bed on Election Night, 2006, numerous races remained without clear winners. For several days after the election, the nation waited for results in the races that would determine control of the U.S. Senate. Over a week after the election, the Franklin County, Ohio, Board of Elections announced that it will not release results in the 15th Congressional District race between Debra Pryce and Mary Jo Kilroy until November 27. Another congressional race in Ohio remains undetermined and other federal, state, and local races around the country continue to be disputed as votes are being counted. What should we make of this delay in knowing the outcome of elections? Is it something we should embrace and encourage as an indicator that every vote is being counted or is it important to achieve a sense of finality immediately after Election Day? As more voters choose to vote by absentee ballot or are required to use provisional ballots, those ballots, which require boards of elections to gather additional information for verification purposes, may push back the date on which a board of elections knows the outcome of an election. One response would be for states not to disclose any election results until all absentee and provisional ballots are counted. Many states delay the counting of provisional ballots for some days after Election Day to allow voters to provide supplemental information to assist boards of elections in determining the voter’s eligibility to vote. In close races, these ballots determine the outcome, so results of the election cannot be known until those ballots are counted. By holding announcement of all winners until all votes are counted, Election Day would become the final day for casting ballots, not the day on which winners are announced. An increasing number of states permit early voting, and voters do not expect that results from those early returns will be disclosed until all voters have cast their ballots. It could be argued that announcing votes during early voting, after which other voters may still be casting ballots, may discourage people from voting if it seems that their votes will not impact the outcome, and thus the situations differ. A similar argument can be made, however, that there is less incentive for provisional voters to return to boards of elections with supplemental information if the outcome of an election has already been announced before all absentee and provisional votes have been counted. While Election Day is the last day to cast a vote, as many states give provisional voters extra time to provide supplemental information, it is not the last day for voters to act. If we can wait for results until all votes have been cast, why not wait until all votes have been counted? One problem with delaying publication until all votes are counted is that states vary in their official certification dates. While not problematic for state and local elections, rolling results in a federal election can be confusing. A solution to the problem of varied dates might be for Congress to influence dates on which federal election results could be announced, as it did for the date on which elections are held. Congress could simply establish a date before which counting could not occur. Setting such a date for federal elections would probably encourage states to set the same date for state elections, as a two-tiered process would be difficult to administer. In addition, presidential elections ultimately lie in the hands of the Electoral College, and some states already need to better align their certification, recount, and contest timeframes with the date on which the Electoral College meets. Another problem with delaying the announcement of election results is that some of the public already distrusts the “chain of custody” surrounding the entire voting process, and may argue that delay provides additional opportunity to negate actual voter intent. The converse could also be argued: increased time allows increased care with the ballots and provides additional time to make sure that every ballot cast by an eligible voter is counted. Perhaps a response would be to permit the wider use of paper ballots for those who do not trust alternative forms of voting, since the additional time required to count paper ballots would present less of a problem if results were not expected to be instantaneous. Establishing clear and complete protocols for transporting and securing any type of vote is critical and something that the states should be improving regardless of the timing of releasing results. Delaying results until all votes are counted would also go a long ways toward quelling persistent rumors that absentee and provisional ballots are counted only when elections are close. This mistaken belief may lead people in some circumstances not to vote, and being assured that all votes are counted before results are announced may encourage those people to participate. A potential fiscal benefit to delaying election results is the reduced need for vote counting technology. Some counties in Ohio are buying additional scanners in order to process the increased number of absentee ballots in a timely manner. A slower rollout of results would negate the need for as many ballots to be processed simultaneously. Moving announcement of results back several weeks would require a psychological shift in our assumptions about the election process, as we have come to expect an immediate result and consider delays an unfortunate aberration. News outlets might return to exit polling to try to anticipate the outcome of an election before results were announced to sate our desire to know a winner. Over time, however, the media would begin to treat Election Day as merely the final day of voting, shifting its focus to the day results are announced. As Riverside County, CA, continues to count a reported 120,000 absentee and provisional ballots, election results there are on hold. In numerous other counties and states results are unknown. While it may be hard on the candidates, democracy is not jeopardized by waiting for a few additional days or weeks to learn the outcome of our elections. Ned Foley has recently argued here and here that elections are successful if a loser accepts results as fair and accurate by the time the winner is to take office. But why should those candidates in jurisdictions casting fewer absentee or provisional ballots have finality while others in districts with more provisional or absentee ballots wait for days and weeks to know their fate? While the thought of delaying the announcement of results raises numerous questions, it might be time to seriously consider how the expectation that we immediately know winners and losers impacts our entire electoral process.

Local Blackouts on the Electoral Grid

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A first look at 2006, with a comparison of Colorado this year and Ohio in 2004:
Were more voters disenfranchised by problems with election administration in 2004 or 2006? The evidence to answer this question is unavailable right now. But it is a question worth pondering as we begin to assess the relative success of the electoral system this year.

The early returns declared that the nation�s new electoral system to have operated effectively��relatively problem-free,� in the words of one Wednesday morning headline. Doug Chapin, who directs the deservedly prestigious electionline.org, was quoted as saying �fender benders but no major tie-ups.� On Sunday, the Washington Post editorialized: �The System Worked.� My assessment is a bit different. To be sure, there were many success stories. Maryland did not have the meltdown that occurred during its September primary. Likewise, Cuyahoga County, Ohio, did not repeat the severe problems that crippled its own primary, in May. Indeed, one important lesson from November 7, 2006, is that local election administrators usually are able to avoid the problems that caused a catastrophe in their own immediately preceding election. The administrative challenge, however, is to get localities that have not recently experienced system failure to implement or maintain effective safety mechanisms to prevent their jurisdictions from becoming the next ones to break down. The most significant successes occurred, of course, in Virginia and Montana, where extremely close results in their U.S. Senate races were quickly accepted by the losing candidates, thereby avoiding recounts that would have prevented a determination of which party controlled the Senate itself. When Senator Allen conceded defeat, he was reportedly behind by only about 8000 votes, or approximately one-third of a percent. Similarly, Senator Burns stepped aside trailing by only about 3000 votes, which in his smaller state amounted to three-quarters of one percent. In both cases, the lack of a basis on which to challenge an outcome this close means that the state�s voting system easily passed my Election Validity Test. Moreover, it may still turn out that most of the prominent races that still remain undecided end up passing this Election Validity Test as well. As I explained last week, this test gives local officials ample time to thoroughly and carefully count�and if necessary recount�all the votes. Only one week after the casting of ballots is complete, it is still early on in this official counting process, as distinguished from the unofficial returns of election night and the next morning, which are useful only in races that turn out not so tight. Thus, for example, there is no necessary reason to think that the race for Washington�s 8th congressional district will flunk the Election Validity Test, just because it is taking a long time to count ballots there as a result of flooding and other difficulties. As long as both candidates ultimately agree, after the counting is complete, that the result is fair and accurate, then the election will have been a success despite the delay. (The allegation that some bags of absentee ballots there burst open because they were stuffed too full is a bit troublesome, but apparently all ballots remained in a secure chain of custody, in which case there would be no basis for attacking these ballots as corrupted.) The same point applies to Wyoming�s single congressional district and Georgia�s 12th. Even though the leading candidates in both races have margins of about half a percent, the counting of provisional and absentee ballots is proceeding apace, and there is no reason to think that the losing candidate will contest the result. Even in Connecticut’s second congressional district, where the margin stood for a while at a mere 60-some votes, or about one-tenth of one-quarter of one-percent (0.024%), there does not yet appear to be any basis for challenging the ultimate result as invalid. (The margin climbed back up to 109 by the end of yesterday.) And if the final certified margin of victory dips below one hundredth of one percent 0.01%), or 25 votes out of a total of 250,000, then my Election Validity Test would deem the race a statistical tie and no longer expect the state�s electoral system to produce an outcome that both candidates accept as accurate. As of this writing, however, there appears to be one congressional race that will be unable to satisfy the Election Validity Test: Florida�s 13th. Whatever the cause of the 18,000 undervoted ballots in Sarasota County, whether bad ballot design or machine failure, it would seem difficult for supporters of the losing candidate to accept the outcome as the product of a fair process, especially if a statistical analysis strongly shows that the losing candidate likely would have prevailed had the machines and/or ballot design employed in other counties also been used in Sarasota. This point does not mean necessarily that a court should invalidate the election�s result. Rather, even if the result must be accepted, the conclusion may remain that the system failed to permit voters to register a choice between the competing candidates in such a way that the result is a fair and accurate reflection of their choice. There are two other unsettled congressional races that conceivably could end up failing the Election Validity Test, although in each case it appears unlikely at this point. Both of these races, New Mexico�s 1st and Ohio�s 15th, have involved preliminary courtroom squabbling over the procedures for counting provisional ballots. Therefore, it is possible that partisan disputes down the road over the eligibility of particular provisional ballots will become determinative of which candidate wins, with the consequence that the losing candidate refuses to accept the legitimacy of the opponent�s victory. But the number of provisional ballots in these two races is relatively small in comparison with current margins by which the leading candidates are ahead, and therefore this end-game scenario seems only a remote possibility right now. But even if it turns out that Florida�s 13th congressional district is the only federal or statewide election to fail the Election Validity Test this year, there remains cause for concern. While the Election Validity Test measures a system�s ability to determine which candidate is the rightful winner�thus identifying arguably the most important attribute by which an election system can be judged�this test does not attempt to determine the degree of voter disenfranchisement that may occur in any given election. It is possible for there to exist widespread disenfranchisement of eligible voters in a particular election, and yet for the electoral system still to be able to identify the rightful winner. The margin of victory just needs to exceed the number of disenfranchised citizens. That�s what occurred, in my judgment, in the presidential election of 2004 in Ohio. A large number of voters in Franklin County and elsewhere in the state were effectively turned away at the polls because of excessively long lines in 2004, but I do not believe that the number of voters who went to the polls attempting to cast an eligible ballot yet were unable to do so exceeded President Bush�s 118,601-vote margin of victory over Senator Kerry. But to disenfranchise thousands of eligible voters is no minor matter, even if doing so does not prevent the system from identifying the rightful winner. For this reason, most observers were outraged by what occurred in Ohio in 2004, whether or not they went so far as to think the malfeasance of the state�s electoral system deprived Kerry of a victory that was rightfully his. Yet anyone outraged by Ohio 2004 should be equally outraged by Colorado 2006, from what has appeared so far. Just as excessively long lines prevented untold number of voters from casting their ballots in Ohio two years ago, so too widespread lines of over two hours in length�sometime lasting over 4 hours�prevented an unknown number of voters in Colorado from casting their ballots this year. While the problem was most acute in Denver last Tuesday, just as the problem was most prevalent in Columbus in 2004, excessively long lines were reported elsewhere in Colorado in the same way that they were reported elsewhere in Ohio. The only reason not to care about voter disenfranchisement in Colorado this year, in contrast to the voter disenfranchisement in Ohio in 2004, is that this year�s disenfranchisement did not have the potential to affect the outcome of a presidential election. But the issue right now is not the Electoral Validity Test, rather only the magnitude of the harm to individual voters caused by their inability to cast a ballot when they went to the polls. In this respect, the harms in Ohio 2004 and Colorado 2006 seem exactly the same, assuming that the number of voters affected is equal (which is difficult to judge from this vantage point so soon after this year�s vote). Moreover, there was a gubernatorial election on the ballot in Colorado this year (it just wasn�t that close), and the disenfranchisement in Denver and elsewhere may still end up affecting the outcome of the Secretary of State election. Looking ahead, as the Washington Post did yesterday, Colorado may turn out to be a swing state in 2008. Thus, even if one wants to focus solely on how a state�s election machinery may affect the outcome of a presidential election, without paying any attention to the civil rights perspective of disenfranchised citizens, there is currently just as much a reason to worry about Colorado�s electoral infrastructure as there is about Ohio�s. For this reason, I do not believe that there is such a night-and-day contrast in the quality of election administration between 2004 and 2006 as the headlines, editorials, and other commentary during this past week would suggest. The prevailing wisdom of the past week is that this year the operation of the nation�s election machinery should be judged essentially a success, whereas 2004 was essentially a failure�although we were lucky then to dodge the proverbial bullet. As I see it, however, the two years are much more similar than that. If Colorado�s calamity ends up being irrelevant to the outcome of any race there, then that state would appear to have dodged a bullet in the same way that Ohio did in 2004. Using the total number of voters disenfranchised as a result of election administration as a yardstick, I do not have sufficient information at hand to know whether 2004 or 2006 was worse, either when considering solely Ohio 2004 and Colorado 2006 as a side-by-side comparison, or looking at the nation as a whole in both years. There was disenfranchisement of voters as a result of long lines in states other than Ohio in 2004, but there was also disenfranchisement of voters as a result of long lines in states other than Colorado this year. It would be interesting�and perhaps sobering�to see the result of a scientific study that attempted to measure as precisely as possible the number of eligible voters nationwide who were deprived of their right to cast a countable ballot as a result of election administration failures. I would be pleased to see that a comparison of 2004 and 2006 according to this metric showed the nation moving in the right direction, by reducing the number of voters disenfranchised as a result of administrative failures. But from what I have been able to ascertain so far about the overall operation of the electoral process last Tuesday, I would not be altogether surprised if the evidence went the other way.