Some subject-specific holiday season wishes: (1) the Democracy Index; (2) a decade-long process to develop a “state of the art” voting process to implement in 2020; and (3) a new method to resolve disputes over close elections, particularly presidential ones.  Season’s Greetings!

The country is asking President-elect Obama to play Santa and spend our way out of the economic mess we’re in.  One hears talk of an $850 billion stimulus package, and it’s hard for a non-numbers person like me to fathom what that magnitude means.  

But I do know that there are some election-related projects that would be worth spending federal dollars for, which appropriately would be characterized as “infrastructure improvements,” analogous to the new digital superhighway that is being considering as part of the stimulus. 

Thus, if Santa has one of his elves working on possible election-related items to add to his list, here are three things I would wish for:

The Democracy Index.  It is a common lament that the quality of data on how the electoral process actually operates is inadequate, and accordingly there have been widespread calls for efforts to improve data collection and analysis.  I join my voice to this chorus (as I have many times previously), and here add only one more note. 

While researching the problem of rejected absentee ballots, which has surfaced in the context of Minnesota’s disputed U.S. Senate election, I noticed that Minnesota did not submit data on this issue for the 2006 Election Day Survey undertaken by the U.S. Election Assistance Commission.  Minnesota, the good government state!  And yet it did not report, and presumably did not even collect, data on this important matter—which is potentially outcome-determinative in the Coleman-Franken race. 

The data collection on this topic is even worse in 2004 than in 2006, with many states not reporting for the Election Day Survey in that previous presidential year.  Thus, it is impossible to make comparisons between this year and then.  There is no way to know whether states are improving, or deteriorating, with respect to this particular problem. 

Thus, President-elect Obama, who as a Senator and presidential candidate, already signaled his support for the Democracy Index project (which requires high-quality data in order to make comparative measurements about election administration in the states), should make sure that this project receives the funding it needs.  At this stage, the money is needed to complete the process of designing the Democracy Index itself, figuring out all the data components that would go into giving each state a score or ranking.  After design comes implementation with its attendant expenses of paying for data collectors and processors, as well as for training them.

Of course, insofar as the next round of data collection will not occur until the 2010 election, this chunk of money is likely too late for the immediate stimulus the economy needs.  But there is still data from 2008, however imperfect it may be, to analyze.  For example, there is a strong consensus among the community of election administration scholars that we still need to learn much more about the differential rates of provisional voting that occurred in 2008: over 200,000 provisional ballots in Ohio (according to one preliminary report), in comparison to just 7,000 in Missouri and 4,000 in Virginia. 

If federal funds were to become immediately available for improving “Data for Democracy,” as Pew’s Make Voting Work initiative has termed this effort, the money could be put to good use in progressing the development of the Democracy Index, and at the same time injecting universities and think tanks with some extra funds at a time that they, along with the rest of the economy, are hurting.  (To the extent this suggestion is seen as self-serving, coming from a university employee, I suppose it is in a broad sense; but the number-crunching enterprise is not one to be conducted by law professors.)

2020 Democracy.  The second thing I’d ask an “electoral elf” to tell Santa is that he should set up some sort of commission to study in 2009 how the decade of 2010-2020 could best be used to develop a “state of the art” electoral process, so that when the children born in 2000 are first eligible to vote for President (in 2020), they will be doing so using a process of which they—and the entire nation—can truly be proud. 

This commission wouldn’t do much to stimulate the economy in the short-term, although it probably would take a few million dollars in 2009 to conduct this study properly.  But the philosophy underlying this study should reflect lessons learned from the Help America Vote Act of 2002.  HAVA spent funds for new voting equipment too quickly, before the technology was really ready, or even the design parameters for a “state of the art” voting technology were developed.

The goal of a 2009 study, instead, should be how to set up a decade-long process that would yield “state of the art” voting technology in 2020, technology (or at least a technology platform) which presumably could last another generation, until 2040 or so.  The decade-long process would consider how the technology used to cast and count ballots should be integrated with the technology used to “register” voters and/or assure their eligibility when they vote.  (Maybe this “state of the art” technology will avoid pre-registration by voters, as it has commonly occurred in the United States, but will instead move to a form of “automatic registration” like that used in Canada.) 

Eventually, the federal outlay to build the optimal electoral process for 2020 could be considerable, although likely nothing in comparison to defense spending or other categories of the federal budget.  One of the tasks of the 2009 study process would be to consider the cost/benefit trade-offs of spending more federal funds over 2010-2020 decade to improve the “infrastructure of democracy” in comparison to other social needs.  Regrettably, apart from data improvement efforts along the way to the development of the Democracy Index (as described above), large-scale improvements in the nation’s electoral infrastructure are not “shovel-ready,” to use the phrase du jour. 

But putting together the 2009 commission to think through a plan on how to use the 2010-2020 decade is an immediate priority, and any funds spent to have this commission work properly (and avoid the difficulties that beset the Carter-Baker Commission, for example) would be a well-justified immediate federal expenditure.

Different Post-Voting Dispute Resolution Procedures.  My third wish is likely to cost even less, both short-term and long-term, than the first two.  It is also one that seems to attract less interest within the “election administration” community, understood as the public officials and social scientists who focus on the voting process.  The reason it receives less attention, I believe, is because it concerns a part of the process that kicks into action only at extremely infrequent intervals—at least for statewide elections—and, even when it does, to tends to concern the courts as much or more than the election officials themselves.  Thus, when figuring out what to spend one’s time on, year-to-year and day-to-day, the procedures for handling a dispute in a major statewide election tend to get short-shrift. 

Yet these procedures are all-important in determining the integrity of the electoral process when it matters most.  That truth is clear in light of the presidential election in 2000, as well as the still-ongoing recount of the U.S. Senate race in Minnesota this year.  Citizens pay close attention to these exceptionally close and hotly disputed elections for major offices because they want to know that democracy is capable of working when every ballot really counts. 

But events this year remind us that our existing procedures still are not well-suited to handling a disputed presidential election, like the one that occurred in 2000.  If Ohio had been the single swing state this year (as it was in 2004), and if Ohio had been as close this year as Missouri was (just a few thousand votes separating the two major-party presidential candidates) or indeed as Ohio was in 1976 (when Carter beat Ford by about 11,000 votes), then Ohio would still not know who won its presidential election.  The date for the meeting of the Electoral College would have come and gone (it was last Monday), and either Ohio’s vote-counting process would have been artificially cut short—a winner declared before all the votes had been counted (as the state’s provisional ballots would still have been tied up in litigation concerning the process for evaluating their eligibility before any of them could be counted)—or the nation would have to wait for Congress to resolve a dispute on January 6 concerning a late-arriving result regarding Ohio’s Electoral College votes. 

Neither scenario is appealing.

Consequently, if Congress does nothing else regarding election reform next year, it should fix the Electoral College calendar, to delay the time for the Electoral College to meet to early January, just a day or two before Congress itself meets to accept the Electoral College results.  This fix would give the states more time to resolve the issues that inevitably arise in close and important elections.  And the experience that Minnesota is currently undergoing confirms that even well-run and fair-minded states need the extra time, especially if they use optical-scan paper ballots. 

But while Congress is undertaking a change to the Electoral College calendar, it should also consider a reform of the institution entrusted to resolve any dispute over the counting of presidential ballots.  As the litigation over congressional ballots in Ohio and Minnesota this year remind us, there often is institutional uncertainty about whether a particular court or administrative body has the authority to handle matters like wrongfully rejected absentee ballots, or alleged double-counting of spoiled optical scan ballots, or the disqualification of provisional ballots. 

With respect to presidential elections, Congress would do well to legislate that any such issues regarding presidential ballots should be heard in a special forum created just for this purpose—a forum that would be understood as aiding Congress in its own constitutionally mandated function of officially declaring the winner of a presidential election.  The forum should be structured to be fair to both candidates ensnared in a dispute over presidential ballots, as Bush and Gore were eight years ago.  The forum should be empowered to handle any issues of state or federal law, including Equal Protection and other constitutional claims, that might arise in connection of the counting of presidential ballots.

This reform certainly won’t do much too stimulate the economy.  Any significant expenditure would occur at the earliest in 2012, although some funds could be spent sooner to figure out how best to structure this special forum.  Moreover, even the money spent to operate this special forum would simply displace funds used to litigate issues elsewhere.  Indeed, this reform might even save money insofar as it makes litigation of these issues more efficient.  Part of the problem this year involving congressional ballots in Ohio was that much litigation was simply over which forum should handle certain issues—and the same point might be made of some disputes that have arisen in connection with the recount of Minnesota’s U.S. Senate election.  This kind of “which forum” litigation could be avoided, or at least reduced, through new clear congressional election. 

Thus, this third wish of mine might not be folded into any stimulus package.  But it is still a meritorious idea—one that should be taken up within the next four years.  As long as I’m telling an “electoral elf” what ideas to pass along to Santa, I want to make sure to include this one, so that it does not get overlooked. 

Happy Holidays as we all celebrate the end of this most amazing election year—and a moment of remembrance for Tim Russert, from all his fans, as he hopefully was able to witness the end of the process in his own ethereal way. 

A unanimous 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has released an important opinion in a case I’ve been watching closely for several years. This new precedent could have major implications going forward.  Arguably, it is now the most significant appellate court reliance on Bush v. Gore.

A unanimous 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has released an important opinion in a case I’ve been watching closely for several years. The case is League of Women Voters v. Brunner (originally v. Blackwell), and it involves an “omnibus” Fourteenth Amendment challenge to the way in which Ohio has operated its voting process in the past. I’ve previously characterized the case as the equivalent of school funding litigation for voting administration law, because the remedies sought by the plaintiffs—which include federal-court oversight of the state’s voting process—have the potential for requiring the state to spend money to alleviate geographic-based inequalities in the voting process from county to county, or precinct to precinct.

The case came to the Sixth Circuit on an interlocutory appeal of the district court’s denial of the state’s motion to dismiss the complaint for failure to state a claim. The unanimous panel essentially affirms the district court’s denial, thereby sustaining the plaintiffs’ legal theory of the case and now remanding it for further consideration of plaintiffs’ factual allegations. The panel had one small quibble with the plaintiffs’ legal theory, rejecting the contention that its claim based on the Due Process Clause of the Fourteenth Amendment should be considered “procedural” Due Process instead of “substantive” Due Process. But that is a technical, minor matter, and the upshot of the panel’s treatment of the Due Process claim is that it permits voters to seek federal-court relief under the Fourteenth Amendment when a state’s misadministration of the voting process causes systematic disenfranchisement of voters, whether through long lines at the polls or the absence of names from voter rolls, or otherwise. Citing one of the plaintiffs’ factual allegations as an example of what makes their claim legally sufficient, the court observed: “Inadequate provision of voting machines caused 10,000 Columbus voters not to vote.” (Slip op. at 13.)

Potentially even more significant is the panel’s invocation of Bush v. Gore as a precedent to sustain the legal theory of plaintiffs’ Equal Protection challenge to Ohio’s voting process. Arguably, this new opinion is now the most significant appellate court reliance on Bush v. Gore. In preparing the McCain v. Obama simulation conducted last month, we looked for precedents relying on Bush v. Gore, and this League of Women Voters case was one of the most significant even as it then stood at the district court level. Now that it has been affirmed unanimously by this 3-judge panel, its importance is much greater.

The alleged inequality in the amount of time that voters in different parts of Ohio had to wait in 2004 is a legally sufficient Bush v. Gore violation, according to the appellate court. “Voting machines were not allocated proportionately to the voting population, causing more severe wait times in some counties than in others,” the court noted in specifying the relevant factual allegations. The court also identified geographic variation in the treatment of provisional ballots as another basis of the plaintiffs’ legally cognizable Bush v. Gore claim.

This new precedent could have major implications going forward. Together with the federal district court decision in Pennsylvania recognizing a similar constitutional violation if waiting times at polling places are too long, the Sixth Circuit’s decision could spur reforms to eliminate excessive waiting times before the next election. If not, state and local administrators could expect new lawsuits to enforce this judicially recognized constitutional right.

Similarly, today’s decision has potential implications for disputes concerning the treatment of provisional ballots, including the dispute now pending before the Ohio Supreme Court (discussed . Unjustified geographical inequalities caused by local election officials “not utiliz[ing]” the provisional voting process “properly” (in the words of the appeals court, at page 13), could rise to the level of a Bush v. Gore constitutional violation. One should not be surprised to see that argument made with respect to the 1,000 provisional ballots in dispute from Franklin County, as one of the claims already made in that case is that Franklin County inappropriately used a different form than other counties, and Franklin County’s form was more likely to cause provisional voters to make mistakes.

These are only a couple of ways in which the new Sixth Circuit precedent might be invoked in other cases. The ruling is sufficiently broad in its analysis that the full range of its potential implications cannot be immediately foreseen. One caveat in this regard: the opinion speaks repeatedly of a systemic breakdown in Ohio’s voting administration. It is possible that relatively isolated inequalities or instances of wrongful disenfranchisement would not rise (or descend?) to the level of a Fourteenth Amendment violation. But, then, it will be a line-drawing challenge for the courts in future cases to distinguish between the sufficiently egregious or systemic problems and those that are not. Today’s opinion does not speak to that line-drawing challenge, but rather simply permits this single case—based on its specific factual allegations—to go forward.

The U.S. Court of Appeals for the Sixth Circuit today sent back to the Ohio Supreme Court the case that involves disputed provisional ballots that might determine the outcome of one congressional and two state legislative elections.   It is important now how the Ohio Supreme Court handles the case on the merits.  Its ruling will affect the state’s reputation on voting administration–and potentially may also influence how the U.S. House of Representatives handles a disputed congressional election, depending upon how events unfold.

The U.S. Court of Appeals for the Sixth Circuit today sent back to the Ohio Supreme Court the case that involves disputed provisional ballots that might determine the outcome of one congressional and two state legislative elections. The federal appeals court’s ruling, which was a unanimous decision of the three-judge panel (made up of two Republican appointees and one Democratic appointee), was entirely jurisdictional and did not address the merits of the dispute. It reversed the contrary jurisdictional ruling of the federal district court and thus also vacated the district court’s decision on the merits.

The appellate ruling appears justified based on the submissions made to that court. It is certainly welcome that it is unanimous. Its opinion carefully explains why the case properly belongs in state court.

The Republican plaintiffs who challenged Brunner’s conduct regarding the disputed provisional ballots sought judicial relief solely on state-law grounds, and Brunner’s effort to re-characterize their legal claims as really resting on federal-law grounds was weak and ultimately unpersuasive. It is too bad that the federal district court did not also see the jurisdictional issue the same way, so as to avoid the delay caused by the need to start all over again in state court. (It is intriguing also that Brunner might have tried to rely on an entirely separate federal statute for “removing” the case to federal court, 42 U.S.C. § 1443(2)—which permits removal when an official enforces a “law providing for equal rights”—but she did not do so, and speculation about what might have been is perhaps better left to another occasion.)

Now that the case is back before the Ohio Supreme Court, one hopes that this elected body is able to issue a decision on the merits that does not appear politically, rather than legally, motivated. Whatever the actual motivation of its members, appearance is what matters here. A sharply divided ruling would increase the likelihood that opinion leaders in the state, and around the country, would perceive it as tainted by political considerations.

The Ohio Supreme Court has already issued a half-dozen or so rulings in election cases during this campaign season. But it is difficult, even for an election law specialist in Ohio, to keep all of them simultaneously in mind, in order to develop a sense of that court’s overall performance in these cases. (Some of these prior rulings have not been unanimous.) This case, however, will be the biggest of them all, precisely because the outcome of several extremely close elections potentially hangs in the balance. The court’s reputation is thus at stake here, regardless of what one might say about its track record in the previous cases.

It is likely also that Brunner will raise several federal-law defenses to the plaintiffs’ state-law claim now before the Ohio Supreme Court. Some of these federal-law arguments were presented in amicus briefs filed in the federal appeals court, including one based on the so-called “materiality” provision of 42 U.S.C. § 1971(a)(2)(B). In brief, the argument is that it is immaterial if a provisional ballot envelope lacks the voter’s printed name, if the voter’s signature is legible—and federal law precludes a state from making an immaterial omission a basis for disenfranchising a voter.

Another federal-law argument would be that the Help America Vote Act prohibits poll worker error from causing the disqualification of a provisional ballot on the ground that the voter’s affirmation of eligibility accompanying the ballot is incomplete. Brunner has made this argument as a matter of state law, but she could rely on similar statutory language in HAVA to add it as a separate federal-law defense. A reason for doing so is that, from her perspective, it would avoid having her “poll worker error” argument depend on the Ohio Supreme Court’s reconciliation of several state statutes that point in opposite directions. Even if HAVA is not entirely clear on this issue (as it is not clear on so many matters), there is no other provision of federal law that cuts the other way.

The Ohio Supreme Court is the ultimate authority on questions of state law. But it does not have the final word on questions of federal law. Thus, if there is any reason to think that the Ohio Supreme Court has acted politically, rather than judicially, with respect to the federal-law issues presented to it in this case, that reason would be a basis for seeking U.S. Supreme Court review. Although the U.S. Supreme Court understandably would be reluctant to get involved in another election dispute, that reluctance has another implication.

This case does not necessarily end with the Ohio Supreme Court, even if the U.S. Supreme Court refuses to get involved. At least with respect to the congressional election (involving Ohio’s 15th congressional district), the U.S. House of Representatives potentially sits in judgment over the Ohio Supreme Court’s treatment of federal-law issues with respect to the disputed provisional ballots. If the House perceives that the Ohio Supreme Court treats those federal issues improperly, and if those provisional ballots would indeed determine the outcome of a congressional election, that perception of state-court impropriety might motivate the House to nullify the state-court ruling and seat the opposing candidate.

I want to be abundantly clear here: I’m not advocating that course of action, which depends upon a series of “what ifs”. (The House itself, moreover, might be accused of acting politically, even if it were attempting to correct a perceived political ruling from the Ohio Supreme Court.) I’m not even attempting to assess the likelihood of what the House of Representatives might do in that situation, if events unfold that way. My only point here is that the stakes are high on how the Ohio Supreme Court handles this case, and many eyes (not just the most obvious ones) will be watching its performance.

One hopes that the court acquits itself well, to the benefit of its own reputation as well as the reputation of Ohio as a whole. For at least one thing should now be obvious: a state’s judiciary is a key component of the state’s overall system of implementing its voting laws. As we observed in From Registration to Recounts, it is not enough to evaluate the performance of a state’s chief elections officer, as well as its local election officials. It is also necessary to evaluate the performance of a state’s judiciary in its role in enforcing the state’s election laws.

Now, when it matters most, we will see how well the Ohio Supreme Court contributes to the state’s overall implementation of its voting process this year.

[Please note: This comment originally appeared on Rick Hasen’s Election Law Blog as part of his Fixing Election Administration series.]

Election reform should embrace a long-term perspective and include non-partisan administration of the voting process. Meanwhile, eliminating unconscionably long lines at the polls is a short-term imperative, as is the need for more data on which to base long-term reform.

It is too soon after the casting of ballots this year for any definitive pronouncements on exactly what reforms the new Congress should adopt in order to improve the voting process. Many of these ballots still remain to be counted. Although there already are calls for legislation that would revamp voter registration, for example, we are likely to learn much more over the next month about the way voter registration actually worked in 2008.

Several significant elections remain unsettled as of this writing, including the presidential election in Missouri, the U.S. Senate elections in Alaska and Minnesota, Ohio’s 15^th congressional district (which arguably is “ground zero” for the law of provisional voting), and several other U.S. House races. How these races are resolved is likely to tell us much about the practical significance of various voter registration rules: Election Day Registration (EDR) in Minnesota, compared with Ohio’s five-day limited version of early voting EDR, versus Missouri’s more traditional model.

Moreover, even in elections that are no longer in dispute, the process of reviewing provisional ballots in different states—as well as the analogous process of evaluating the eligibility of absentee ballots that are disputed for various reasons relating to voter registration—will reveal valuable insights about the accuracy of voter registration lists, the challenge of adopting sound practices to maintain those lists, and the obstacles to voter participation as a consequence of suboptimal administrative practices.

As our Moritz-authored book From Registration to Recounts discussed, voter registration is one part of a larger system of interrelated voting administration rules, which also include voter identification, provisional ballots, polling place challenges to voter eligibility, the recruitment and training of poll workers, and many other components. As we documented, it is necessary to understand each component in the context of the state’s overall “electoral ecosystem.” I suspect—although don’t yet know because the data is not yet available—that the problems that voters encountered in 2008 concerning the disqualification of both absentee and provisional ballots will tell us something important about administrative practices concerning voter registration (and vice versa).

Having made this cautionary observation about avoiding a rush to judgment on the specific voting reform legislation to put before the 111^th Congress, I do think the following observations are not premature:

First, short-term versus long-term. It is worth distinguishing between problems that are imperative to fix before we vote again as a nation, in contrast to currently identifiable problems that nonetheless would benefit from a more long-term solution. One of the lessons of our experience with the Help America Vote Act (HAVA) may be that Congress moved too quickly to replace the wretched punch-card machines with expensive-yet-inadequate touchscreen technology, which subsequently needed to be jettisoned or imperfectly retrofitted. At least on the issue of vote-counting equipment, the next Congress might do well to set up a decade-long process that, starting in 2010, will lead to the use in 2020 of a new voting infrastructure of which our nation truly can be proud.

“2020 Democracy: Developing and Implementing a Vision for our Nation’s Voting Process” we might call this decade-long agenda. Consider it a gift to the children born in 2000, that year of the hanging chad. For the first presidential election in which these first-born citizens of the 21^st century can vote, we will bequeath to them a truly state-of-the-art electoral process. If the nation could actually achieve that objective, it would be worth waiting for; and if the 111^th Congress sets in motion the process that yields this result, it will deserve the historical credit. (Putting into place the data collection necessary for Heather Gerken’s “Democracy Index” would be an important first step in this decade-long agenda.)

Second, the immediate imperative of reducing waiting times to vote. Even if one agrees that Congress should take a long-term approach to many aspects of electoral reform, there is one aspect of the process that cannot wait—and that is the truly unconscionable amount of time that many voters, particularly African-Americans, needed to wait in line this past Tuesday in order to cast their ballots. There are profound non-partisan reasons for all Americans to celebrate the vindication of democracy in our nation that occurred last week, as the world rightly took notice. But in the midst of this well-justified celebration, we should not lose sight of the fact that the historically unprecedented nature of this year’s election masks the degree of disenfranchisement that these excessively long lines would have caused in any other election.

Since Tuesday, there have been reports of voters in several states—including Missouri, Pennsylvania, and Virginia—waiting five, six, or seven hours to vote! There was even one CNN report of a Pennsylvania voter waiting 11 hours! Missouri’s Secretary of State has expressed the fear that some voters were unable to withstand the excessively long lines in that state, and since the presidential election in Missouri remains undecided, it is conceivable that disenfranchisement caused by the inordinate waiting times may end up being decisive on which candidate won that state. (If so, one shudders to think what would have happened if Missouri’s Electoral College voters had been necessary for either candidate to reach 270.)

The consequence of the problem would have been much worse if voters, particularly African-Americans, had been unwilling to endure the unconscionable waiting times in order to vote this year, no matter how long it took. But voting should not be such an ordeal. Congress should set a national standard that no voter should have to wait more than one hour to cast a ballot and then work with states on ways to implement this standard. A change from Election Day to Election Week, at least for presidential elections, would seem a sensible place to start.

This move would differ from “early voting,” as currently practiced in many states, where only one location is available for voting in each county prior to Election Day. This year we saw five-hour and longer lines at these single “early voting” locations. The different concept of Election Week, by contrast, would consist of multiple “voting centers” dispersed throughout a county, which would be open twelve hours per day, for seven days. Surely, voters could find a time within their busy schedules to visit one of these vote centers and cast a ballot without having to wait more than one hour. It would be more expensive than our current practice, but this year demonstrates that there is a constitutionally minimum level of expenditure necessary in order to prevent voters from having to suffer unreasonably long lines at polling places.

Bottom line on this point: certainly by 2012, when the United States next votes for President, Congress should have put in place a solution to the long-line problem we saw this year.

Third, rules versus institutions. One truth that this year already confirms is that it is not enough for Congress, or the states, to write new legislation that purports to set the rules for operating the voting process. To be sure, those rules are important, and it is highly desirable that those rules be clear and straightforward, whatever policy judgments they reach concerning the balance between facilitating voter participation and protecting the integrity of the voting process. But even with well-written rules, unexpected issues will emerge, and in this intensely competitive environment candidates will be looking for ways to exploit unforeseen gaps in the legislative scheme. In this situation, the identity of the administrator who implements the legislation is crucial.

We have seen the inevitable problem whenever a state’s chief elections officer, charged with implementing the voting rules, is an elected partisan official. This problem is structural, and it exists whether the officer is an elected Democrat or an elected Republican. The problem merely may be one of appearances, rather than reality, but that is enough in the elections business. The dynamic now exists in which the other political party attempts to undermine the credibility and legitimacy of the state’s chief elections officer, so that it can win back the position.

This dynamic has been most acute in Ohio, where Republicans have looked for ways to attack Jennifer Brunner’s every move (and she has regrettably given them some openings), in an apparent payback for the Democratic attacks on her Republican predecessor, Ken Blackwell. But the same dynamic has occurred to a lesser extent in Minnesota, where Republicans have looked for opportunities to trip up Mark Ritchie in a tit-for-tat response to Democratic criticisms of his predecessor, Mary Kiffmeyer. This childish behavior would be inconsequential except that it erodes public confidence in the fairness and integrity of electoral process. Even worse, the maneuvering makes it even more difficult for local administrators to do their jobs properly, as they endeavor to keep their heads down while the partisan bombshells are hurled back and forth. We’ll see, too, whether this dynamic interferes with Ritchie’s ability to conduct the impending Minnesota recount in a way that both sides perceive as impartial and fair, even assuming the best of intentions on his part.

It may be difficult for Congress to mandate that for federal elections, including presidential elections, states employ a non-partisan chief elections officer. That issue is one that needs further examination, including an analysis of relevant constitutional considerations. Nonetheless, there will be no truly successful reform of the voting process—whether for 2020 or any other year—unless and until our nation figures out a way to rid itself of this structural defect in our system.

The new Congress thus should not have the attitude, “We’re fine with states having elected Secretaries of State running their elections, as long as they are Democrats.” Instead, Congress should look for ways creatively to eliminate this institutional problem. Since it won’t be easy, even though it is essential, tackling this topic is another reason to set our sights long-term.

Fourth, the ticking time bomb of the Twelfth Amendment. We now have had two presidential elections in which we’ve escaped another disaster like the one in 2000, and the odds are in our favor that we will have many more escapes until the next disaster hits. But these escapes do not mean that we are safe.

At some point in our nation’s future, there will be another incredibly close presidential election, where the winner of the Electoral College depends on the outcome in a single state and the result in that single state depends upon the resolution over a dispute over the counting of ballots for presidential electors there. When that occurs, all the reform of the voting process will not matter—including the institutional reform of non-partisan chief election officers in each state—unless Congress has also reformed the institutional mechanism for resolving this kind of dispute over presidential ballots.

In the aftermath of Bush v. Gore, it is unclear whether as a practical matter the institution that will resolve a future dispute over presidential ballots will be the U.S. Supreme Court again or, instead, Congress according to the arcane and imperfect procedures of the Electoral Count Act, which was adopted in the wake of the crisis of 1876. This institutional uncertainty is unsettling—and undesirable. It is the result of the Twelfth Amendment failing to specify what should happen when this kind of dispute arises, a defect noted presciently by Joseph Story in the 1830s but we have yet to rectify.

While it might not seem the most pressing reform given the odds each year against another meltdown scenario, as a nation we have suffered considerably the two times that this deficiency has mattered: 1876 and 2000. It would be preferable that, whenever this kind of situation happens again, we have already taken the steps to be better equipped with a clear and fair method of resolving this kind of dispute.

Thus, as long as we are itemizing the elements of a state-of-the-art electoral system for 2020, this particular item should be added to the list.

According to the Minnesota Star-Tribune this Wednesday morning, the U.S. Senate seat in the North Star State faces an almost certain recount. Election Law @ Moritz will analyze this recount process as it unfolds. Meanwhile, two general preliminary observations are in order.

First, as shown in our book From Registration to Recounts: The Electoral Systems of Five Midwestern States, Minnesota has a reputation for being a national leader in the quality of its voting administration process. In 2006, for example, Minnesota conducted a very successful audit of that year’s election. Nothing, however, tests a state’s voting administration system like a statewide recount, and the nation—as well as the state—stands to learn a lot (and thus benefit from) the scrutiny that Minnesota is likely to undergo in the next days and weeks. We will learn more about the operation in practice of Minnesota’s version of Election Day Registration, for example, and whether that practice should be a model for more states—or perhaps whether Minnesota would have benefited from a move to “Automatic Voter Registration,” as proposed by its Secretary of State and enacted by its legislature, but vetoed by its Governor.

Second, in 1962, Minnesota had an experience with a statewide recount in its gubernatorial election of that year. That experience has served as a model for the design of the McCain v. Obama simulated adjudication we conducted last month. The essential lesson of that experience was that Minnesota was able to put aside partisan divisions that threatened the early stages of the recount process. After the Minnesota Supreme Court split on a party-line vote over canvassing procedures, the two main gubernatorial candidates that year developed a special 3-judge panel (with one judge from each party, and the third recognized by all as a neutral) to complete the recount process. This institutional innovation resulted in an outcome that was widely perceived by both sides and the public to be fair.

It will be interesting to observe whether Minnesota’s current procedures for conducting recounts are similarly viewed by partisans and the public generally as able to handle a recount fairly and impartially. One of the themes that emerged in our Minnesota chapter of From Registration to Recounts is that residents of the state are concerned that its politics have become increasingly polarized—and marred by partisan divisiveness—in the way that politics nationally and in other states have become. In our interviews with state and local officials for the book, some expressed regretful doubt that Minnesota could currently handle a statewide recount in the same spirit of bipartisan cooperation (on behalf of the people of the state as a whole) in the same successful way that the participants were able to muster for the recount of the 1962 gubernatorial election. How Minnesota handles the recount process over this year’s U.S. Senate race may prove these fears unfounded (or perhaps not—we can only wait and see).

Finally, regarding the procedures for handling a statewide recount of this type and the need for bipartisanship of the kind displayed in the 1962 situation, it is worth observing that Minnesota has had a strong tradition of independent and third-party candidates. Jesse Ventura, for example, became the state’s governor as an independent. And this year’s U.S. Senate race featured a strong independent candidate, who captured roughly 15 percent of the vote. Minnesota certainly needs voting administration procedures that are fair to independent as well as major-party candidates. But in the context of a recount over which the two leading candidates prevailed, the same need for fairness for all other candidates moves into the background. Now it is appropriate to focus on the fairness and impartiality of the recount procedures with respect to the two candidates who remain vying for the electoral prize.

In this context, the special recount procedures that the two 1962 gubernatorial candidates devised worked especially well. Those procedures were structurally impartial between these two candidates and were perceived as such. It will be interesting to see whether the state can be equally successful this year.

As we head into Tuesday evening, at Election Law @ Moritz we will be looking for publicly available numbers on these four sub-categories of ballots that will not be included in the initial returns but that potentially will (or at least may) be counted down the road:

1.  Provisional Ballots.  (We’ve discussed this sub-category previously.)

2.  Overseas and “Late Arriving” Absentee Ballots.  These are the ones that are the subject of the lawsuit filed in Virginia by the McCain campaign.  Each state’s law potentially intersects with federal law a bit differently on the timetable for counting these ballots.

3.  Problematic Absentee Ballots.  This is the sub-category that is probably least well-understood at the moment, in terms of its potential volume.   Various battleground states (Colorado, Florida, Indiana, and Ohio) have seen reports about absentee ballots that have been set aside as potentially uncountable.  Ohio’s Secretary of State Brunner issued a directive late yesterday requiring absentee voters in this situation to receive notice so that they potentially can rectify problems in order for their ballots to be counted.

4.  “Residual” Optical Scan Ballots.  These are paper ballots for which the machine records no vote for particular races, and sometimes the machine is in error.

The total number of uncounted ballots, combining all four of these sub-categories, potentially hangs over the initial returns in each statewide (including presidential) or local election.  To be sure, it is not enough that this total number equal a candidate’s lead in the initial returns in order to put on hold, or cast a doubt about, the outcome of that race.  For example, if a candidate is leading by 10,000 votes in initial returns and there are also 10,000 total uncounted ballots, it is obviously extraordinarily unlikely that all 10,000 would have been cast for the leading candidate’s opponent.  Thus, as a practical matter, there needs to be significantly more uncounted ballots than the candidate’s lead in initial returns in order to potentially make a difference.  But there is no clear magic number on this point.  It depends on which precincts the uncounted ballots were cast in and each candidate’s relative strength in those precincts.  Also, the different types of sub-categories might tend to lean more or less in favor of one candidate than another (e.g., provisional ballots more likely Democratic in certain precincts, whereas overseas absentee ballots more likely Republican, even perhaps in the same precincts).

It is unclear what time tonight, or tomorrow, we will have reliable numbers in each state concerning each of these four sub-categories.