2016

Accuracy About Voting Needed on Both Sides of Debate

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The Golden Rule fully applies: speak truthfully about voting as you would have others also speak truthfully about voting.

This recent tweet from Professor Larry Tribe caught my eye: “Call it what you like, but the # of voters turned away for not having required forms of ID exceeded margin of T’s victory in MI, Pa & Wis”

As soon as I read it, I said to myself, “That can’t be right.”

First of all, no voter ever should be “turned away” for lack of ID.  Instead, the Help America Vote Act of 2002 (HAVA) requires that voters lacking required ID receive a provisional ballot. To be sure, some poll workers may fail to enforce the mandates of HAVA, but in volumes exceeding Trump’s margins of victory in Michigan (about 11,000), Wisconsin (about 23,000), and Pennsylvania (about 44,000)??? If there had been a massive failure of election administration on that scale, which could have accounted for the outcome of the presidential election, presumably we would have heard news reports of it by now.

Just because voters cast provisional ballots does not mean, of course, that those provisional ballots will be counted. In some states, a voter who casts a provisional ballot because the voter lacked a required form of ID is not permitted simply to sign an affidavit to get the ballot counted, but instead within a limited period of time must find a way to get the required ID and show it to local election officials. It is accurate to say that provisional voters who are unable to procure the required ID within the available amount of time are disenfranchised because of the ID requirement. But in Michigan, Wisconsin, and Pennsylvania, are there more voters who fall in this category than Trump’s margin of victory in each of these states? If so, then the number of rejected provisional ballots in each state would exceed Trump’s margin of victory there. I have seen no reports of provisional ballots rejected in such volumes in any of these three states—much less rejected for the particular reason of lacking the required ID, rather than for some other reason (like not being a registered voter, or casting a ballot at an improper polling place given the voter’s home address).

Instead I saw this report about provisional ballots in Wisconsin: “618 were issued because the voter didn’t have an acceptable photo ID,” of which 502 were not counted. It is unfortunate for any eligible citizen who took the trouble to go to the polls to be disenfranchised, but 502 is a far cry from Trump’s 23,000-or-so margin of victory.

It is possible, also, that the number of voters deterred from going to the polls to cast a ballot, because of a required ID law, is greater than a winning candidate’s margin of victory.  If so, then one credibly could argue that the suppressive effect of the ID law was responsible for that particular electoral outcome. Did something like this occur in Michigan and Pennsylvania and Wisconsin? I know of no evidence attempting to make this case for any of these three states. Of course, conclusively proving the deterrent effect of an ID law might be a difficult task (how would you show that the reason that a citizen didn’t go to the polls was because of the ID law?); even so, I’m not aware of any effort to make this connection.

Moreover, there are sound reasons to doubt that any such effort could be successful for any of these three states, much less all of them. According to the National Conference of State Legislature’s very useful website, Pennsylvania’s supreme court invalidated that state’s voter ID law, and thus there is no such enforceable obstacle in place there. Michigan, moreover, is one of the states that permits a voter who lacks the required ID to sign an affidavit instead. And with respect to Wisconsin’s strict ID law, for this year’s election the Seventh Circuit required the state to provide a temporary form of ID to any eligible citizen who attempted to get the required ID but was unable to do so. While the Seventh Circuit’s temporary remedy is not as voter-friendly as Michigan’s affidavit option, it does indicate that many voters who really wanted to vote this year—and thus were not easily deterred—had an available mechanism to do so and thereby could avoid disenfranchisement as a consequence of the ID law. As a result, even in Wisconsin, do we have sound reason to believe that about 20,000 would-be voters were actually thwarted from casting a ballot because of the state’s ID law?

Finally, yes, it is possible that the number of otherwise eligible citizens lacking required ID might exceed a winning candidate’s margin of victory.  But that’s a far cry from saying that this number of citizens was deterred from voting because of the ID requirement.  They might have been eligible citizens who, for whatever reason, decided not to vote in the election.  For an ID rule to cause disenfranchisement, it must be an obstacle that prevents, or at least deters, a citizen from voting.  It’s not enough to say more potential voters lack the required ID than Trump’s margin of victory.  That’s like saying all of Jill Stein’s voters, if she had not been on the ballot, would have voted for Hillary Clinton, as opposed to exercising the option of just not voting for president at all.

In sum, I think Tribe’s tweet is wildly irresponsible—indeed demonstrably false. The assertion that “the # of voters turned away for not having required forms of ID exceeded margin of T’s victory in MI, Pa & Wis” simply does not square with HAVA, the applicable ID rules governing these three states, or available data.

Ordinarily, I would ignore such misinformation, except that it comes from a “big name” source—a prominent Harvard Law professor, who (among other well-known accomplishments) served as one of Al Gore’s leading lawyers in the 2000 recount litigation.

As celebrated as Tribe may be, he certainly is not as well known as Donald Trump. Nor is Tribe’s tweet as egregiously false as Trump’s claim that he would have won the national popular vote were it not for “the millions of people who voted illegally.” Still, if one is to decry Trump’s blatant falsehoods about the electoral process, one must also call to account leading figures on the other side of the political aisle when they also propagate outright untruths about elections. In this context, as so many others, the Golden Rule fully applies: speak truthfully about voting as you would have others also speak truthfully about voting.

In this regard, I am also deeply disappointed about the League of Women Voters, whose website prominently displays the declaration of the League and its president, Chris Carson, that the “the 2016 presidential election WAS rigged”—a declaration subsequently reported by the Washington Post.

The League of Women Voters should know better. It is supposed to be a responsible organization about the nature of the voting process. It has a venerated history that it should not squander by sullying itself with Trump-like falsehoods about the nation’s voting process.

What is the League’s evidence that this year’s election “WAS rigged”? Among the assertions that the League makes to support its outlandish allegation is the fact that several states, including Ohio and Wisconsin, cut back the amount of early voting that they previously offered—not eliminating early voting completely, but not offering it as generously as they had before. While one certainly can disagree with this rollback of early voting as a matter of policy, it is impossible to say truthfully that this rollback disenfranchised any voter or rigged any election.

I, for one, refuse to accept the proposition that we live in a “post-truth” world, at least when it comes to talking about voting. Democracy depends on the ability of reasonable people to accept a certain set of shared premises about their electoral procedures, even if they sincerely disagree about matters of social policy, like taxes and economic regulations. Some of these essential shared premises are empirical facts about how elections actually work.

Another element of these essential shared premises is a willingness to use language carefully and precisely when talking about voting procedures. Don’t say “disenfranchisement” when you are talking about voting laws that may make voting less convenient than previously, but which do not actually prevent anyone from participating in an election. Don’t say that voters were “turned away” from the polls “for not having the required forms of ID” when, in fact, that is not what actually happened.

The overheated rhetoric of the “voting wars” has transgressed the realm of exaggeration and reached the danger zone of willful dishonesty. This must stop.

Whoever utters demonstrable falsehoods about the voting process should be condemned for doing so, whether these falsehoods come from one side or the other.

North Carolina’s disputed race for governor: historical context

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Federal courts have a power to protect voting rights that they lacked until recently.

Rick Hasen makes the correct and important observation that, if North Carolina’s General Assembly were to overturn the state’s gubernatorial election based not on the evidence of the actual valid votes, but solely because of a partisan desire to keep control of the governorship, then the federal judiciary would have the power to invalidate that “brazen power grab” as a violation of the Fourteenth Amendment.

In this post, I wish only to supplement Rick’s point with a historical perspective drawn from my new book, Ballot Battles: The History of Disputed Elections in the United States.

At the moment, no one knows for sure that the still-unsettled governor’s race in North Carolina will end up in the scenario that Rick envisions: a federal-court order, based on the precedent of Bush v. Gore or Roe v. Alabama, that nullifies the state legislature’s attempt to overturn the administratively certified result of the vote count. But if it does end up that way, it would underscore the 180-degree reversal of jurisprudence that has occurred over the course of the twentieth century concerning the power of the federal courts in this kind of case.

In 1900, the U.S. Supreme Court had a case involving exactly this same situation. In Kentucky’s gubernatorial election, the Republican candidate had been certified the winner, but the state’s legislature—controlled by the Democrats—overturned that outcome. Awarding the election to the Democratic candidate, the legislature’s move was a “brazen power grab” of the kind that Rick envisions occurring in North Carolina this year. Under the Kentucky constitution, the state’s judiciary was powerless to prevent this transparently partisan theft of the election. The Republicans, therefore, sought relief from the U.S. Supreme Court, arguing that the legislature’s conduct was the functional equivalent of stuffing the ballot box with fraudulent votes and thus a violation of fundamental rights protected by the Fourteenth Amendment of the federal Constitution.

The U.S. Supreme Court, however, rejected the Republicans’ claim, ruling it was barred by the so-called “political question” doctrine, meaning that the federal courts lacked jurisdiction to review the conduct of state institutions, including a state’s legislature, over the counting of votes in a state election. The Court’s decision, denominated Taylor v. Beckham, was 8-1. Only Justice John Marshall Harlan dissented.

“The overturning of the public will, as expressed at the ballot box, without evidence or against evidence,” Justice Harlan exclaimed, “is a crime against free government” and thus a violation of due process. He continued: “I cannot believe that the judiciary is helpless in the presence of such crime. The person elected, as well as the people who elect him, have rights that the [federal] courts may protect.” But Justice Harlan did not prevail, and the Kentucky legislature got away with its theft of the state’s gubernatorial election.

The jurisdictional barrier announced in Taylor v. Beckham prevailed in the U.S. Supreme Court throughout the twentieth century. This jurisdictional barrier, for example, is the basis on which Justice Hugo Black in 1948 ordered the federal court in Texas to shut down its investigation into whether Lyndon Johnson was the beneficiary of ballot-box stuffing in the crucial runoff election that was part of his race for the U.S. Senate that year. The same jurisdictional barrier is the reason why Richard Nixon in 1960 could not go to federal court to claim that John Kennedy’s victory in that year’s presidential election rested on election fraud perpetrated in Illinois and, again, Texas.

If the precedent of Taylor v. Beckham were still good law, it would block any federal court review of North Carolina’s proceedings concerning the counting of votes in the state’s gubernatorial election this year. This jurisdictional barrier would be absolute—no matter how egregious the partisan theft of the election by the state legislature might be. Yes, a “brazen power grab,” in Rick’s words, but indistinguishable in this respect from what the Kentucky legislature did in the gubernatorial election at issue in Taylor v. Beckham itself.   The case, as lawyers like to say, is “on all fours”—meaning that there is no plausible argument that the precedent, if still valid, is inapplicable.

But Taylor v. Beckham is no longer good law in light of Bush v. Gore. Although the latter case did not explicitly overrule the former, the two are logically irreconcilable. If the jurisdictional barrier announced in Taylor v. Beckham still prevailed, then the U.S. Supreme Court in Bush v. Gore could not have intervened on Fourteenth Amendment grounds to stop the recount ordered by the Florida Supreme Court to determine whether there were “hanging chads” (or dimpled ones) still to be counted in the 2000 presidential election.

No matter how much the majority of the U.S. Supreme Court might have thought that the Florida Supreme Court was attempting to steal the election for Gore, that theft would have been indistinguishable in principle from the one perpetrated by the Kentucky legislature in the gubernatorial election at issue in Taylor v. Beckham. The reasoning of Taylor v. Beckham was that a state’s vote-counting proceedings were off-limits to the federal judiciary, including the U.S. Supreme Court itself, because of the “political question” doctrine, and that reasoning—if still valid—would have been fully applicable to the 2000 presidential election, just as it was to the 1960 presidential election, or to the 1948 U.S. Senate race. Thus, the fact that the U.S. Supreme Court did intervene in Bush v. Gore necessarily demonstrates that the jurisdictional barrier articulated in Taylor v. Beckham is no longer good law.

How to explain this 180-degree transformation? The answer lies in Baker v. Carr and the “reapportionment revolution” that occurred in the Warren Court during the 1960s. Baker v. Carr was a radical reconceptualization of the “political question” doctrine, drastically curtailing its domain, and specifically rendering it inapplicable to Fourteenth Amendment claims concerning the malapportionment of state legislatures. Baker v. Carr quickly led to Reynolds v. Sims and its “one person, one vote” doctrine, which in turn the Warren Court invoked to invalidate Virginia’s poll tax.

Although none of these Warren Court precedents involved a state’s procedures for the counting of ballots, the new “one person, one vote” doctrine easily could apply to that particular aspect of election law as much as it does to redistricting or to prerequisites for the right to cast a ballot, like payment of poll tax. Indeed, the Warren Court itself signaled its potential applicability in a 1966 case involving a special runoff procedure that Georgia used in its gubernatorial elections, Fortson v. Morris.   The Court there divided 5-4 over whether Georgia’s runoff mechanism violated one-person-one-vote, with the majority concluding that it did not; but all nine justices signaled that the one-person-one-vote doctrine in principle was just as applicable to the back end of the voting process, where recounts and runoffs occur, as to the front end of the process, over matters like redistricting and the prerequisites for casting a ballot.

In the decades between the sixties and Bush v. Gore, the lower federal courts heeded the Court’s signal and began to apply the new one-person-one-vote jurisprudence to vote-counting disputes. As Rick notes, the most significant of these lower-court cases is Roe v. Alabama, which involved the Eleventh Circuit’s intervention in Alabama’s 1994 election for the state’s Chief Justice. The federal district court viewed manipulation of the state’s vote-counting rules as “the functional equivalent of altering ballots or stuffing the ballot box” and thus a violation of due process. The court’s reasoning was essentially identical to Justice Harlan’s dissent in Taylor v. Beckham—and thus to the position that did not prevail in that case. Indeed, if Taylor v. Beckham were good law, the federal judiciary had no role to play in the counting of ballots in Alabama’s election for its chief justice. But the Eleventh Circuit affirmed, not reversed, the federal district court’s ruling on the strength of the “one person, one vote” jurisprudence, thereby indicating just how thoroughly that jurisprudence had repudiated the jurisdictional barrier that had previously existed pursuant to Taylor v. Beckham. Moreover, unlike Justice Hugo Black in 1948, Justice Kennedy refused to order the federal court to withdraw from interfering in the Alabama vote-counting process. In this way, Justice Kennedy—and the U.S. Supreme Court as a whole—indicated that the precedent of Taylor v. Beckham no longer prevailed, and thus would not be a jurisdiction barrier six years later in Bush v. Gore.

It is an understatement to say that Bush v. Gore was a controversial ruling. But it is important to evaluate Bush v. Gore in historical context. Taylor v. Beckham was not a wise decision. Justice Harlan’s lone dissent had the much better argument in the case—in the same way as did his lone dissent in Plessy v. Ferguson (the infamous “separate but equal” decision). The episodes analyzed in Ballot Battles reveal that America’s ugliest experiences with vote-counting disputes have been in those instances where a state legislature brazenly steals a gubernatorial election in order to keep its own party’s candidate in power. Indeed, in the Kentucky gubernatorial election at issue in Taylor v. Beckham, one of the two candidates for governor was assassinated while the legislature was in the midst of its proceedings to overturn the certified election results. Thus, insofar as Bush v. Gore repudiated Taylor v. Beckham, thereby vindicating Justice Harlan’s dissent and confirming the power of the federal judiciary to thwart a state legislature’s transparently partisan theft of a gubernatorial election, that aspect of Bush v. Gore is actually a salutary development in American election law.

As for this year’s gubernatorial election in North Carolina, let’s hope that the current controversy never gets near the point that it begins to look like a repeat of Kentucky’s gubernatorial election in Taylor v. Beckham. Let’s hope, in other words, that the state legislature refrains from perpetrating anything looking like a partisan theft, solely to keep its preferred candidate in power. But if the state legislature were to go down this despicable road, then we must place our confidence in the federal courts to recognize that today, unlike in 1900, the words of Justice Harlan state the governing principle of law: “The overturning of the public will, as expressed at the ballot box, without evidence or against evidence,” as he put it, “is a crime against free government” and “[t]he person elected, as well as the people who elect him, have rights” protected by due process and enforceable by federal courts.

The Vote-Counting Wasn’t Rigged, But is the System Still Flawed?

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Does America need what Maine just adopted: Instant Runoff Voting?

After the overheated rhetoric during the campaign that the presidential election might be stolen, it is worth pausing for a moment to notice that the nation’s vote-casting-and-counting process delivered a decisive result fairly promptly, considering how close an election it actually turned out to be. As of this writing Wednesday morning at about 10:00 a.m. EST, the margin in Michigan is about 16,000 votes, and may shrink or even flip as a result of the “blue shift” in late-counted ballots. In Wisconsin, the margin is about 27,000, but it too might shrink a bit. New Hampshire is much, much closer, with only about 500 votes separating the two candidates.

Pennsylvania, of course, is not as close, and was the state more then any other signaled Clinton’s ultimate Electoral College defeat. Right now, about 68,000 votes separates Trump from Clinton, and that gap was just too great for Clinton to be able to overcome realistically in the so-called “overtime vote”. Still, 68,000 is not that large a margin in a state that cast nearly 6 million votes (in percentage terms, the margin being a little over 1%).

To be sure, there were some reported problems about the voting process at the polls on Election Day, as well as during early voting. Technological failure affecting electronic poll books in Durham, North Carolina, requiring poll workers to resort to old-fashioned paper backups, was perhaps the most significant glitch of its kind. But the closing time at affected polling places was extended for 90 minutes as a remedy, and there is no serious contention this morning that problems in the vote-casting process caused America’s electoral system to mis-identify the true winner of the election. Certainly, during the next four years, election administrators and the scholars who analyze and assist their work will study long and hard what happened this year, to figure out how to do significantly better next time, especially when the goal of solving the long line problem of 2012 seems to need additional efforts. Even so, as soon as Wisconsin—along with Pennsylvania—looked out of reach, Clinton called Trump to congratulate him on his victory. There was no doubt about his entitlement to over 270 Electoral College votes, based on the tallying of the popular votes in enough states to reach this magic number, and that is how we determine the winner of the presidency election in our particular form of democracy.

Still, the question lingers whether our Electoral College system is the best way to pick a president. In raising this question, I don’t mean to suggest that the winner of the presidency should be the candidate with a plurality of the national popular vote. Whichever of the two major-party candidates, Trump or Clinton, ends up with more popular votes nationwide—and right now it looks like it will be Clinton, in part because the likelihood of her doing well in the late-counted ballots—it seems improbable that either will reach the 50% mark. The question, thus, is whether the system is well-designed when it prevents the winner from being able to claim support from a majority of the electorate.

Over this past summer, while the campaign was underway, I wrote a law review article arguing that American needs some sort of runoff mechanism for presidential elections. It could be a traditional runoff, like the kind of “two-round” system that many other countries, like France, use for their presidential elections.   Or it could be a form of Instant Runoff Voting, like used in some local elections in America and just yesterday approved for statewide elections in Maine. It is also a long-established feature of Australian elections.

This short essay is not the place to review the arguments in favor of using some type of runoff mechanism, instead of simple plurality voting, or sticking with our existing Electoral College system.   Readers can look at the law review article, if they wish. But, upon reviewing the returns from last night, it does seem appropriate to observe that the presence of a third and fourth candidate of significance may have been a factor in the election. What sort of factor, I’m not prepared to say at this point. It is not enough simply to look at the number of votes for Jill Stein, the Green party candidate, and compare that number in key states to the margin of Trump’s victory over Clinton in each of those states. Because Gary Johnson, the Libertarian candidate was also on the ballot (and received more votes than Stein), he may pulled votes away from Trump more than he pulled from Clinton—and more than Stein pulled from Clinton.

Thus, a head-to-head runoff between Trump and Clinton obviously would not be the same as just removing Stein from the equation. But that truth leads to the larger point. It might be that in a head-to-head runoff between just the top two finishers, Trump and Clinton, would show Trump ahead of Clinton with a majority of the runoff votes (again, this could be true using Instant Runoff Voting). If so, then his mandate for governance would be stronger than the position he is in now, apparently trailing Clinton in the popular vote. That would be true whether the runoff mechanism applied to the national popular vote overall, or instead applied on a state-by-state basis to make sure that the winner of each state’s Electoral College votes received a majority—and not just a plurality—of the popular vote in that state.

What if there is a 269-269 tie and a faithless elector?

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Thinking about possible uncharted waters.

As of this writing, there is some chance that the Electoral College could end up in a 269-269 tie, with uncertainty on which candidate ultimately would end up ahead in the national popular vote. Under the Twelfth Amendment, a 269-269 tie goes to the U.S. House of Representatives, with each state having one vote, and a majority of all states (26) necessary to elect a president. In other words, California and Wyoming—despite their widely divergent populations—each have one vote in this special Twelfth Amendment procedure, which has not been used since 1824.

With all the recent talk about the possibility of faithless electors, one begins to ask the question: would it be possible for a faithless elector on December 19 to shift the Electoral College vote to 270-268, thereby avoiding the election going to the House of Representatives under the Twelfth Amendment? I explored that question as part of a conversation with the National Law Journal’s Marcia Coyle.

What follows are just tentative thoughts, designed to aid analysis, rather than anything close to a settled judgment. It seems to me that the concept of a faithless elector is somewhat different in the context of a 269-269 tie, where neither candidate has claim to an Electoral College victory, than in the context of even the narrowest possible of outright Electoral College wins, 270-268—where the candidate who reaches 270 based on winning the popular votes in enough states does have a claim to being the Electoral College winner. In that scenario, a faithless elector would take a candidate down from 270 to 269, thereby sending the election to the House, when it otherwise would not go there. That is different—from a constitutional and democratic governance perspective—than a faithless elector who takes a 269-269 tie and converts it to a 270-268 win, in order to prevent the election going to the House of Representatives with its antiquated one-state-one-vote provision. In this situation, the faithless elector could be basing the decision on the belief that it is more consistent with the Constitution to have the Electoral College outcome line up with the national popular vote, rather than having the election decided on a one-state-one-vote basis. (And this point is without even considering whether the gerrymandering of congressional districts would have any effect on how the one-state-one-vote procedure would play out.)

To be sure, in this most unpredictable of presidential elections, it is even conceivable that an elector wanting to be “faithless” in this particular way might be foiled in this regard. Starting with the 269-269 tie, that elector could try to get it to 270-269. But another faithless elector, like one of the two who have signaled intents to be faithless in Washington State, could bring the 270 number back down to 269 to 269, thereby sending the election to the House of Representatives after all. One thing, however, would be different with this scenario. If the outcome of more than one faithless elector were, for example, 269 for Clinton, 268 for Trump, and just 1 for Someone Else, the House by its one-state-one-vote procedure would be constitutionally entitled to chose that Someone Else, rather than either Clinton or Trump.

Enough speculation for now. None of this may come to pass, depending upon the outcome in the remaining states “too close to call” as of this writing. But even with it being a small possibility, it seems worth beginning to think about in case the circumstance actually does arise. Maybe it’s not true that “stranger things have already happened” in this presidential election year, but it certainly has been plenty strange enough already.

Nevada Early Voting: Analysis of Issues

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Plausible competing arguments show value of provisional ballots as holding pattern.

One of the things about fast-moving emergency litigation on Election Day is that, in addition to uncertainty about the relevant facts, there may be superficially plausible legal arguments on both sides, with no time to settle definitively which side is definitively correct.

As a result, the main question in this context should be: what is the proper “holding pattern” while the competing legal arguments are evaluated and the relevant facts determined?

Provisional ballots play an important role in dealing with this “holding pattern” situation. While there are collateral consequences of provisional ballots, which can be counted after Election Day, they do have the benefit of letting voters vote, but in a way that the legal system can evaluate the competing arguments on whether those votes are entitled to be counted.

That principle may play a useful role given today’s dispute in Nevada, and indeed my Ohio State colleague Steve Huefner has carefully analyzed whether a proper understanding of the federal Help America Vote Act might lead to the conclusion that, even with respect to early voting, any voter who arrives after the scheduled closing time for that polling place must cast a provisional ballot, rather than a regular ballot.

With that prefatory point in mind, what can be said about the relevant Nevada law concerning the closing of polling places during early voting?

Nevada law has two different types of polling places for early voting: permanent and temporary. Nevada statutes contain rules for closing times at permanent early voting polling places, and these rules give county clerks some limited discretion in some circumstances to set the time at 8pm, instead of 6pm, but otherwise is definite that there will be a specific closing time. See N.R.S. 293.3568.

As for temporary early voting polling places, the statutory law is much more flexible; this is N.R.S. 293.3572:

Voting at a temporary branch polling place may be conducted on any one or more days and during any hours within the period for early voting by personal appearance, as determined by the county clerk.

Thus, for example, a county clerk could set the closing time for a temporary early voting polling place at 10pm, instead of 6pm or 8pm.

But this statutory flexibility is limited, insofar as the county clerk must announce the chosen closing hour ahead of time. N.R.S. 293.3576, entitled “Schedule of locations and times for early voting,” provides:

The county clerk shall publish during the week before the period for early voting and at least once each week during the period for early voting in a newspaper of general circulation a schedule stating:

(a) The location of each permanent and temporary polling place for early voting.

(b) The dates and hours that early voting will be conducted at each location.

Thus, voters, candidates, and political parties are all entitled to know the set closing hour ahead of time, so that they can plan accordingly. Moreover, the statutory requirement that this schedule be fixed—and not change, at least not absent a good reason—is underscored by another subsection of the same provision: “No additional polling places for early voting may be established after the schedule is published pursuant to this section.”

Therefore, once the closing time is set—even for a temporary early voting polling place—it’s set, and is not supposed to change.

Okay, so now what happens to voters who have been waiting patiently in line at a temporary early voting polling place, who arrived long before the scheduled and posted closing time, but never make it to the very front of the line by that closing hour? Can they be told to go home and come back the next available day for voting, either another day of early voting if the period of early voting is still going on, or instead on Election Day? That would seem awfully harsh, considering that the voters did everything proper: they showed up before closing hour, as they were supposed to do—and indeed, may have been waiting already an extremely long time.

Well, it turns out that the provisions of Nevada statutory law on early voting have nothing to say on this crucial point. Instead, there is a separate provision, which was adopted long before the advent of early voting, and thus written with traditional Election Day voting in mind, but also written in general language that, by its explicit terms (or “plain language,” as lawyers like to say), can also apply to early voting.

What is this provision? It’s N.R.S. 293.305, and it comes in a chapter called “Voting at the Polls”. It’s entitled “Closing of polls; admissions of voters and other persons”. It says:

If at the hour of closing the polls there are any registered voters waiting to vote, the doors of the polling place must be closed after all such voters have been admitted to the polling place. Voting must continue until those voters have voted.

This is the statute that, even though not written with early voting specifically in mind, protects voters who are already in line at closing time even during early voting, and not just on Election Day. It’s the law that would make it unlawful for election official to say to these voters, waiting perhaps two hours or more, “Sorry, you must come back another day.”

But to invoke an old cliché, what’s good for the goose is good for the gander. This same statute, although not the most artfully written, makes clear that no voter who arrives after closing time is permitted to vote. The last person standing in line at closing time is the cut-off point; anyone else gets turned away.

Now the argument is being made that this same provision should not be interpreted this way for the specific purpose of early voting. Instead, although it protects early voters already in line at closing time, anybody who arrives afterwards (while those patient early voters are still be processed), should be allowed in—notwithstanding the specific statutory language of the “doors of the polling place must be closed”—because as long as there is still one more day available of voting (either another day of early voting or only Election Day itself), then this late voter could just come back that other day. So, why put that voter to the trouble? Just let the voter vote, despite the fact that this late voter arrived after the scheduled and posted closing time.

This argument seems to be, on first impression, an inappropriate construction of the statute. After all, it is the very same statutory provision– N.R.S. 293.305—which protects the patient voter already in line. This statute, moreover, comes as a package deal: if you are already in line, your “in” and can cast your ballot; but if you are not already in line, you’re “out” and can’t cast a ballot. I don’t think a judge appropriately can say, “I’ll enforce the first part of this package deal for early voting, but not the second part.” That interpretation would seem a distortion, or manipulation, of the previously established voting rules, which is frowned upon because voters, candidates, and parties are entitled to rely upon the law as written down in advance of the election.

This principle of “don’t change the rules for casting and count ballots, set in advance of the election, after the voting already has started” is not only a wise rule of statutory construction. It also a federal constitutional principle pursuant to the Due Process Clause of the Fourteenth Amendment, as most prominently pronounced by the United States Court of Appeals for the Eleventh Circuit in a case involving an election for Chief Justice of Alabama: Roe v. Alabama (discussed in chapter 10 of Ballot Battles, pages 267-77.) Moreover, for a federal election, a deviation from statutory rules set in advance would risk a state losing “safe harbor” status under 3 U.S.C. § 5.

Thus, there are at least plausible arguments to think that N.R.S. 293.305 applies to early voting, not just Election Day voting, both to protect voters already waiting in line, but to preclude voting by anyone who shows up after the scheduled and posted closing hour. These arguments seem to have extra force given the requirement, even for temporary early polling places, that the closing hour be fixed in advanced and publicly announced in advance, thereby permitting reliance on that public announcement. Given at least the plausibility of these arguments, any ballot cast by a voter who showed up after closing time should have been provisional.

Trump Campaign’s Nevada Lawsuit Also Raises Potential Federal Law Issue

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By Steven F. Huefner

The allegations in the Trump Campaign’s Nevada Lawsuit raise an important issue of federal law.

Late yesterday, the Trump for President Campaign filed a lawsuit in a Nevada state court alleging that one early voting site in Clark County, Nevada, had violated state law when it extended its early voting hours beyond the hours previously announced and publicized, when state law required that this announcement and publication occur in advance of the election. The suit requested that the Nevada Secretary of State secure the voting machines used at the site and not count the votes on those machines until any potential that allegedly unlawful votes on those machines might affect the outcome had been resolved.

Earlier today, the local trial court denied the requested relief, at least partly on the basis that the Trump campaign had not exhausted its administrative remedies with the Nevada Secretary of State. The issues raised in the complaint may not go away so easily, however, so let’s take a closer look at the complaint’s allegations (with the crucial caveat that the defendant, the Clark County Registrar of Voters, has not filed an answer to the complaint, and could well controvert or deny many of the critical allegations).

For present purposes, the critical allegations of the complaint are that: (1) Clark County had previously set 8 p.m. as the end of early voting hours on Friday November 4 at the Cardenas Market early voting location; (2) in the afternoon of November 4, the election officials operating the Cardenas Market early voting location announced that the Clark County Registrar had directed them to keep the early voting location open until 10 p.m.; and (3) a number of voters arrived at the Cardenas Market early voting location after 8 p.m., all of whom were allowed to vote.

As for the legal landscape, the complaint recites that Nevada law provides that one week before early voting begins, the county clerk in each county shall publish the hours of early voting at each early voting location in the county. Clark County (the Nevada county with the largest population, home to Las Vegas) has numerous early voting locations, and the hours are not the same at every location. Clark County’s posted hours apparently did recite that the early voting hours at Cardenas Market would close at 8 p.m. on November 4.

The complaint alleges only a violation of state law. Under state law, it may (or may not) be a complicated question of whether the county clerk or the county register of voters has lawful administrative authority to make adjustments to their published early voting hours, even (or especially) once early voting is underway. But the allegations also could give rise to an essential issue of federal law.

The Help America Vote Act of 2002 includes a provision that requires the use of provisional ballots when polls are kept open beyond their announced closing time. The provision reads as follows:

Any individual who votes in an election for Federal office as a result of a Federal or State court order or any other order extending the time established for closing the polls by a State law in effect 10 days before the date of that election may only vote in that election by casting a provisional ballot under subsection (a) of this section. Any such ballot cast under the preceding sentence shall be separated and held apart from other provisional ballots cast by those not affected by the order.

It is not clear, either from this HAVA provision itself or from subsequent judicial interpretations of it, whether it applies only to Election Day voting, or also applies to early voting. If this HAVA provision applies to early voting, and if the allegations of the Trump campaign’s complaint are true, then it would appear that voters who were not in line at the Cardenas Market early voting location as of 8 p.m. on November 4 but were allowed to vote that evening should have been, but were not, required to cast a provisional ballot.

To be clear, this conclusion depends both on (1) the legal determination that the HAVA provision applies to adjustments to early voting hours, and (2) the factual determination that the early voting hours in fact were extended. The factual issue is beyond the scope of this analysis, but the legal issue of the HAVA provision’s scope merits brief comment. There are powerful arguments that although HAVA may be ambiguous on the point, its provisional voting requirements should apply to early voting as well as Election Day voting. These arguments mean that the Trump campaign could yet have a colorable federal law claim arising out its allegations.

The most common judicial or administrative extensions of voting hours occur on Election Day because of unanticipated problems that prevent some voters from taking advantage of the previously published voting hours. But because any such extension might advantage one candidate or party over another, a last-minute decision to alter voting hours ought to be subject to careful subsequent judicial review to ensure that it was a proper response to a genuine problem. Use of provisional ballots permits meaningful review, because in the event that the extension is determined to have been inappropriate, the affected ballots can be excluded from the certified results.

Extensions of voting hours may be less common in the early voting context, because the types of unanticipated problems that trigger such extensions in Election Day voting will be less likely to leave voters without recourse, because they can still vote on another day. And conversely, voters who are enabled to vote through an extension of early voting might also have readily been able to vote another day had the early voting hours not been extended. Nevertheless, any change to pre-announced voting hours, whether for early voting or Election Day voting, should be subject to subsequent review to ensure it was an appropriate change.

One difficulty arises, however, in applying the HAVA provisional voting requirement to extensions of early voting hours. When the extension instead involves Election Day voting, if subsequent review determines that those provisional votes should not be counted because the extension was inappropriate, then the affected voters are in no worse position than they would have been in had the extension never been ordered. In either case, they are not able to have their voting preferences incorporated in the election results. But when at issue are provisional ballots cast during a period of early voting, if those provisional ballots are subsequently determined ineligible for inclusion, the affected voters are excluded from the election when they might well have yet had an opportunity to participate had they not been required to cast a provisional ballot. That is, had the voting hours not been extended, presumably some of the voters would have returned on another day of early voting or on Election Day. So unless, at the time that they are casting a provisional ballot during the extended hours of early voting they are told that the only way to ensure that they can participate in the election is to return and cast a regular ballot, these voters are in a worse position through the application of the HAVA provisional voting requirement to an extension of early voting. And it might even be that if these voters return on a subsequent voting day in order to ensure they cast a valid ballot, they might be required to cast a provisional ballot yet again, for the very different reason that election records reflect that they have already voted. Sorting out these categories of provisional balloting would introduce additional opportunities for administrative error.

The result is that determining the applicability of the HAVA requirement to early voting may be a complex though important question. It is surely a question that could tie up the resolution of a close Nevada race in court for weeks, unless the factual allegations in the complaint filed yesterday can be clearly rebutted.

Intimidation, Speech, and the Vote: Some Key States’ Laws

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By Daniel P. Tokaji

There’s been a flurry of concern over voter intimidation over the several days, and with good reason. Donald Trump’s repeated and totally unsubstantiated claims that the election will be rigged could prompt some supporters to take matters into their own hands. There are, however, both federal and state laws protecting voters from intimidation. This post includes a summary of some of the swing states’ statutes and decisions governing activities around polling places.

There’s been a flurry of concern over voter intimidation over the several days, and with good reason. The Democratic Party brought suit in key states to try to stop allegedly intimidating tactics by the Trump campaign and its allies.  Although a federal district judge in Ohio issued a temporary restraining order, a conservative panel of the Sixth Circuit quickly stepped in to block that order and the Supreme Court today declined to intervene.  The DNC also tried to enforce a decades-long consent decree restricting “ballot security” activities by the RNC.  A federal court in New Jersey found some evidence of a potential violation in Nevada but not enough to issue relief.

Although these look like defeats for the Democrats, they may have partly won by losing. The possibility of judicial intervention should cause the RNC and Trump campaign to avoid anything that smacks of intimidation.  Trump ally Roger Stone, for example, has declared under oath that “Stop the Steal” volunteers have been warned to avoid intimidation.   The RNC is likely to be especially cautious, as it faces the prospect of the DNC v. RNC consent decree being extended if it is found to have engaged in prohibited ballot security activities.

That’s not to say that there’s no risk of voter intimidation tomorrow. In fact, the risks are greater than in previous presidential elections.   What worries me most isn’t what happens inside the polling place, but what happens outside. Trump’s repeated – and totally unsubstantiated – claims that the election is rigged could prompt some supporters to take matters into their own hands.  Even if the Trump campaign and RNC avoid intimidation, we can’t assume that Trump supporters will be so restrained.

Suppose, for example, that ordinary citizens stand guard outside a polling place looking for people who they suspect aren’t citizens.  Violence is possible but more likely, and more insidious, is that their mere presence might discourage eligible citizens who just want to avoid any sign of trouble. The risk of vigilante justice is thus substantial, even if the Trump campaign and Republican Party avoid any impropriety.

There are both federal and state laws designed to protect voters from intimidation. The Voting Rights Act prohibits voter intimidation, even by private parties.  And in Burson v. Freeman, the Supreme Court upheld a state law restricting election-related speech within 100 feet of polling places, in order to protect the right to vote.   Many states have chosen to adopt such restrictions on speech around polling places. That said, those who wish to engage in election observation, electioneering, exit polling, or other forms of speech near polling places have the right to do that, so long as they comply with applicable state rules and avoid true threats.

To clarify what’s permissible and what’s not, I asked my research assistant to compile a summary of some of the swing states’ statutes and decisions governing activities around polling places, which appears at the end of this post. This table shows that several swing states have 100-foot zones like that approved in Burson.  Some allow these activities closer to the polls and one (Iowa) restricts speech 300 feet from a polling place entrance.

For those concerned about the prospect of intimidation in tomorrow’s election, the most important message is this: The right to vote is sacred.  People marched, suffered, and died to make sure that all of us are able to vote.  Don’t let anyone intimidate you from exercising that right.

Voter Intimidation Statutes and Case Law

Compiled by Katy Shanahan, Moritz College of Law, J.D. Expected 2017

Colorado            

C.R.S.A. § 1-13-714: No person shall do any electioneering on the day of any election, or during the time when voting is permitted for any election, within any polling location or in any public street or room or in any public manner within one hundred feet of any building in which a polling location is located, as publicly posted by the designated election official.

Florida

F.S.A. § 102.031(4)(a): No person, political committee, or other group or organization may solicit voters inside the polling place or within 100 feet of the entrance to any polling place, a polling room where the polling place is also a polling room, an early voting site, or an office of the supervisor of elections where vote-by-mail ballots are requested and printed on demand for the convenience of electors who appear in person to request them.

Case Law

Florida statute creating “No Approach Zone” within 100 feet of the entrance to polling place on election days did not violate First Amendment, as it was applied to ban political action committee and civil rights organization from engaging in exit solicitation about non-ballot issue of amendment to city charter that would create citizen oversight panel for city’s police department; while application infringed to some extent on plaintiffs’ right to engage in political speech, the restriction was necessary and narrowly tailored to protect compelling interests in protecting voters from confusion and undue influence and preserving integrity of the election process.  Citizens for Police Accountability Political Committee v. Browning, C.A.11 (Fla.)2009, 572 F.3d 1213

Subsection (3) of this section forbidding soliciting or attempting to solicit any opinion for any purpose within 150 feet of polling place on election day was overbroad and facially invalid.  Florida Committee for Liability Reform v. McMillan, M.D.Fla.1988, 682 F.Supp. 1536

 Iowa    

I.C.A. § 39A.4(1)(a)(1): Loitering, congregating, electioneering, posting signs, treating voters, or soliciting votes, during the receiving of the ballots, either on the premises of a polling place or within three hundred feet of an outside door of a building affording access to a room where the polls are held, or of an outside door of a building affording access to a hallway, corridor, stairway, or other means of reaching the room where the polls are held. This subparagraph does not apply to the posting of signs on private property not a polling place, except that the placement of a sign that is more than ninety square inches in size on a motor vehicle, trailer, or semitrailer, or its attachment to a motor vehicle, trailer, or semitrailer parked on public property within three hundred feet of a polling place is prohibited.

Ohio

Ohio Rev. Code Ann. § 3501.30(A)(4): Two or more small flags of the United States approximately fifteen inches in length along the top, which shall be placed at a distance of one hundred feet from the polling place on the thoroughfares or walkways leading to the polling place, to mark the distance within which persons other than election officials, observers, police officers, and electors waiting to mark, marking, or casting their ballots shall not loiter, congregate, or engage in any kind of election campaigning.

Case Law

Secretary of State could not ban exit polling near polling entrances by oral directive. American Broadcasting Co., Inc. v. Blackwell (479 F.Supp.2d 719, 722+, S.D.Ohio)

The state using a portion of private property for Election Day does not equate to an intent to open up the entire property to public discourse. Petition circulators were not deprived of their First Amendment free speech rights when they were ordered to move from public sidewalk to position beyond 100 feet from polling place pursuant to state statute creating “campaign-free zone”; decision to exclude circulators from parking lots and walkways leading to polling places was reasonable and viewpoint-neutral. United Food and Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738

North Carolina

N.C.G.S.A. § 163-166.4(a): No person or group of persons shall hinder access, harass others, distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election-related activity in the voting place or in a buffer zone which shall be prescribed by the county board of elections around the voting place. In determining the dimensions of that buffer zone for each voting place, the county board of elections shall, where practical, set the limit at 50 feet from the door of entrance to the voting place, measured when that door is closed, but in no event shall it set the limit at more than 50 feet or at less than 25 feet.

Case Law

Amendment of North Carolina statute extending prohibition against electioneering from 50 feet within voting place to 500 feet in 6 counties was a change in “standard, practice, or procedure with respect to voting,” within Voting Rights Act and was unenforceable in 4 of the counties which were covered by the Act for failure to obtain prior approval of United States District Court for the District of Columbia or to submit amendment to Attorney General of United States. Clayton v. North Carolina State Bd. of Elections, 1970, 317 F.Supp. 915

Pennsylvania

25 P.S. § 3060(c); (d): No person, when within the polling place, shall electioneer or solicit votes for any political party, political body or candidate, nor shall any written or printed matter be posted p within the said room, except as required by this act. All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers, when permitted by the provisions of this act, must remain at least ten (10) feet distant from the polling place during the progress of the voting.

Case Law

Pennsylvania statute creating a ten-foot buffer zone between voter and polling place operated as a content-neutral regulation of general application governing the physical location of those seeking to observe or influence polling activities and protected an individual’s right to cast a ballot in an election free from the taint of intimidation and fraud, and therefore did not violate newspaper’s First Amendment free speech and press rights; newspaper did not, as a member of the press, enjoy a special constitutional right of access to polling places.  PG Pub. Co. v. Aichele, W.D.Pa.2012, 902 F.Supp.2d 724

A candidate is not entitled to be present in a polling place during the time polls are open except for the purpose of casting his own ballot, and county boards of elections are within their legal authority when they instruct election officers to such effect, notwithstanding §§ 3506, 3507 of this title, since presence of candidates in polling places is not affirmatively authorized by Election Code.  In re General Election to be Held in City and County of Philadelphia, 75 A.2d 812, 366 Pa. 6, Sup.1950

Virginia

Va. Code Ann. § 24.2-604(A): During the times the polls are open and ballots are being counted, it shall be unlawful for any person (i) to loiter or congregate within 40 feet of any entrance of any polling place; (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote; or (iii) to hinder or delay a qualified voter in entering or leaving a polling place.

Wisconsin

Wis. Stat. § 12.03(2)(b)(1), (d); (4): No person may engage in electioneering during polling hours on any public property on election day within 100 feet of an entrance to a building containing a polling place. This subsection does not apply to the placement of any material on the bumper of a motor vehicle that is parked or operated at a place and time where electioneering is prohibited under this subsection. In this section, “electioneering” means any activity which is intended to influence voting at an election.

Case Law

Wisconsin statute prohibiting electioneering within 500 feet of election place on election day unconstitutionally infringed on free speech rights of homeowners living across the street from official polling place;  although state had compelling interest in maintaining integrity of election process and in keeping voters free from intimidation and harassment, statute was not narrowly tailored to achieve such interest. Calchera v. Procarione, E.D.Wis.1992, 805 F.Supp. 716.

 

Faithless electors: what happens if they matter?

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Let’s hope it doesn’t and all this remains speculation.

A new report says that a second Democratic presidential elector in Washington State, which the Democrats are predicted to win, may refuse to cast his official Electoral College vote on December 19 for Hillary Clinton—despite his pledge to do so, pursuant to Washington State law, RCWA § 29A.56.340.

The state statute imposes a civil fine of $1000 on any such faithless elector: “Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.” But apparently two of Washington’s twelve are willing to pay that fine in order to be what one of them calls a “conscientious elector”.

One or two faithless electors conceivably could make a difference this year. Here are a couple of maps that would give Clinton exactly the 270 Electoral College votes she needs, with not an extra elector to spare:

http://www.270towin.com/maps/PDGGQ

http://www.270towin.com/maps/G6DZY

Given the historically unprecedented unpopularity of both presidential candidates this year, I’ve been wondering whether America might actually confront the possibility of multiple faithless electors on both sides. Without trying to anticipate all the potential permutations, let’s just stick for moment with the current situation in Washington State.

A quick review of some constitutional basics. Article Two of the U.S. Constitution explicitly gives each state legislature the power to choose the method of appointing that state’s presidential electors:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The U.S. Supreme Court’s decision in Bush v. Gore confirmed this constitutional authority. Thus, although all states now appoint their presidential electors by means of the popular voting that culminates on Tuesday, November 8, each state legislature has the constitutional power to choose a different method of appointment, including by deciding to appoint its state’s electors directly. In 2000, the Florida legislature was in the midst of considering that option when Bush v. Gore, and Al Gore’s concession afterwards, mooted the point.

But the Constitution gives Congress the power to determine when each state shall appoint its presidential electors: “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” I understand this constitutional provision as requiring the “day” that the electors meet in their respective states to cast their official Electoral College votes for president to be uniform throughout the United States; this year that day is Monday, December 19, as specified by Congress in 3 U.S.C. § 7. Some have read the same provision as also requiring that the “time of choosing the electors” also be the same in every state. I don’t read it that way, since the Constitution uses “time” for the first step and “day” for the second, and confines the uniformity requirement to “day”. In any event, Congress has exercised its choice to “determine the time of choosing the electors” to require, as a matter of statutory law, that all states choose their electors on Tuesday, November 8. This statutory requirement is provided in 3 U.S.C. § 1: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

(The way this works is that each political party nominates its slate of presidential electors in each state, with the number of individuals in the state equal to the state’s number of Electoral College votes. On Tuesday, November 8, citizens see the names of the presidential candidates on the ballot, but by law they are actually voting for the slate of presidential electors nominated by the same party as the candidate that the voter chooses. The relevant provision for Washington State is RCWA 29A.56.320.)

Consequently, were the Washington Legislature to try to do something about the potential problem of a faithless elector, by for example providing for the appointment of different electors other than the one appointed as a result of the popular vote on November 8, it would seem necessary—pursuant to U.S.C. § 1—for the state legislature to act prior to November 8, so that this alternative method of appointment can occur on the congressionally mandated date of November 8. Thus, as a practical matter it would seem too late (as I writing this analysis late on Sunday, November 6).

Congress does have a separate statutory provision to cover the situation in which a state, for some reason, has failed to make its appointment of presidential electors on the mandated date (November 8). This is 3 U.S.C. § 2, and it states: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” But this language would not seem to apply to the situation of a faithless elector. The problem with a faithless elector is not failing to be appointed on November 8; it is the entirely different circumstance that the elector chooses not act in accordance with the pledge required by state law.

Of course, we don’t know for sure that an elector will be faithless until he or she actually casts his or her Electoral College vote on December 19. But let’s take the example of Robert Satiacum, the Democratic elector who is emphatic that he will not vote for Hillary Clinton on December 19. Assuming that there is no way to prevent his appointment as an elector (assuming the Democratic slate of electors win the popular vote in Washington State on November 8), then is there anything that can be done to replace him after December 19 with someone else who won’t be faithless? In other words, when the results of the November 8 popular vote are officially certified, Robert Satiacum will have been duly appointed to hold the office of presidential elector. But what if his announcement of his plan to violate his pledge somehow negates that appointment, thereby requiring his position to be filled with someone else?

Electors sometimes die and need to be replaced. Or it turns out that a duly appointed elector pursuant to a state’s popular vote is constitutionally barred from serving as a presidential elector by virtue of “holding an office of trust or profit under the United States,” and thus needs to be replaced for this reason. That situation happened in 1876, for example.

Washington State, like others, has a statutory provision to address this type of contingency. It’s part of RCWA 29A.56.340:

If there is any vacancy in the office of an elector occasioned by death, refusal to act, neglect to attend, or otherwise, the electors present shall immediately proceed to fill it by voice vote, and plurality of votes.

It would seem, then, the question whether the announcement of an intent to violate the pledge would constitute either “refusal to act” or an “otherwise” circumstance generating a “vacancy” entitled to be filled “immediately” by other electors. In considering this question, one must acknowledge that it’s not easy to fit the faithless elector situation into the statutory language. The idea of the “electors present” filling a “vacancy” suggests that this replacement power is limited to the situation where an elector does not show up for the Electoral College meeting, either because of death or refusal to act or neglect to attend. It doesn’t seem to apply to the situation in which a duly appointed elector does show up and is willing to pay the $1000 civil fine for breaking the pledge.

But someone duly appointed to be an elector, but not constitutionally qualified because of “holding an office of profit or trust under the United States” might show up for the Electoral College meeting, and the other electors still might think that the constitutional disqualification caused a “vacancy” that required an immediate replacement. Thus, maybe it doesn’t matter if Robert Satiacum shows up for the meeting; his announced plan to break his pledge might trigger a “vacancy” that requires an immediate replacement. The argument seems to me, at this moment, a stretch but not entirely implausible.

(Michigan, by contrast, has a statutory provision that explicitly makes being faithless to constitute a vacancy: “Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy. MI ST § 168.47.  Also, the Uniform Law Commission has created a model statute to provide, in relevant part, that a faithless elector creates a vacancy, but the ULC’s website says that only four states so far have adopted this model statute: Minnesots, Montana, Nebraska, and Nevada.)

As a practical matter, however, I’m not sure the strength of the legal argument, based on an interpretation of the relevant Washington State statute, is what matters. Instead, it seems to me crucial whether a dispute over the faithless elector persists until January 6, 2017, when Congress meets pursuant to the Twelfth Amendment to receive the Electoral College votes of the states. Then it becomes a question of what form the dispute takes and how Congress proceeds to handle it.

Without attempting to get into all the potentially intricate details here, because after all this is entirely speculative at this point, a key distinction for such congressional proceedings is whether Congress has received two conflicting certificates of Electoral College votes from Washington, rather than just one. To oversimplify somewhat for purposes of this analysis, if Congress receives just one certificate, then it would take both houses of Congresses to reject the Electoral College votes from that state under 3 U.S.C. § 15—the most impenetrable statute that I’m aware of, but I think it is clear enough on this point: “no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title [3 U.S.C. § 6] from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.”

The real problem comes if Congress receives two conflicting sets of Electoral College votes from the same state, as happened in 1876. Thus, suppose that the other Washington State electors declared that Robert Satiacum forfeited his position by virtue of his announcement to break his pledge, and they thereby were replacing him with someone else. This replacement along with the other electors then cast all Washington’s 12 electoral votes for Clinton, and send these votes to Congress. That’s the first certificate from the state.

Now suppose that Robert Satiacum asserts that the other electors were not entitled to dismiss him under Washington State law, and therefore he was the only duly appointed elector who showed up for the true meeting of Washington electors—the other ones failing to show up because they were holding their meeting separately with the replacement. Robert Satiacum thereby appoints eleven other individuals to be replacements for the vacancies caused by the nonappearance of the eleven other electors. (Something exactly like this happened in Oregon in the 1876 dispute.) These Satiacum-led electors then send their separate certificate of electoral votes to Congress. This is the second certificate.

Now you may think that this Satiacum-led certificate is entirely dubious as a matter of Washington State law. Maybe so. But the key point is that its mere existence creates a two-certificate scenario for the purpose of the Electoral Count Act of 1887, 3 U.S.C. § 15. And figuring out what 3 U.S.C. § 15 actually requires in a two-certificate scenario is a nightmare.

To be sure, if both Houses of Congress agree on which of two conflicting certificates to accept, then as a practical matter the dispute is over. The electoral votes will be counted in accordance with whichever certificate the two chambers accept. If it is the certificate from the eleven-plus-replacement, and not the Satiacum-led certificate, and all of its twelve electoral votes are for Clinton, then she will get these 12 votes, and if they are enough to get her to 270, then she’s the president-elect. By contrast, however, if both Houses of Congress accept the Satiacum-led certificate, and it contains enough electoral votes for individuals other than Clinton to prevent her from reaching 270 (and not votes for Trump, which would enable him to reach 270), then neither Clinton nor Trump would have an Electoral College majority, and under the Twelfth Amendment the House of Representatives would pick the president through its special one-state-one-vote procedure.

The serious problem arises if the Senate and the House disagree about which of the two conflicting certificates to accept. One interpretation of 3 U.S.C. § 15 is that whichever certificate bears the seal of the Governor of Washington is the one that Congress must accept. But there are other interpretations of this impenetrable statutory language. There is also the possibility that both certificates bear the governor’s seal, as for example might happen if a court orders the governor’s seal to be affixed to a certificate that the governor has rejected.

(Another potential wrinkle to consider is that between November 8 and December 19, Washington State enacts a new law, modeled on Michigan’s, to make explicit that a faithless elector situation creates a vacancy requiring an immediate replacement. If this were to occur, it would be new law, presumably denying Washington the protection of the Safe Harbor provision of 3 U.S.C. § 5, pursuant to which Congress promises to follow state law regarding any dispute concerning the appointment of the state’s presidential electors—as long as that state law was on the books “prior to the date fixed for the appointment of the electors,” which is November 8. More to the point, even with the enactment of this new law, there still could be the possibility of two conflicting certificates of electoral votes sent to Congress from Washington State. Robert Satiacum and his allies might refuse to recognize the validity of this new law, and thus go about their plan to submit a second certificate to Congress. Again, the legal merits of that second certificate may be lacking, but the crucial point is what Congress does with the second certificate under 3 U.S.C. § 15.

For the nation’s sake, let’s hope we never get to the situation where a faithless elector has caused two separate certificates of Electoral College votes from the same state to reach Congress—and that state’s Electoral College votes are crucial to determining whether a presidential candidate reaches the magic number of 270.

In other words, let’s hope that after Tuesday, all this remains in the realm of unnecessary speculation.

Voters in Line When Polls Close Get to Vote

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It’s one of the most basic principles of electoral democracy.

It’s one of the most basic principles of electoral democracy: if you go to the polls when they are open, and you are a registered and qualified voter, then as long as you wait in line, you are entitled to cast your ballot even if the line is so long that you must wait until after the scheduled time for the polls to close.

Nevada, like other states, has a law specifically on this point. It’s Nevada Revised Statutes (N.R.S.) § 293.305, and it says:

If at the hour of closing the polls there are any registered voters waiting to vote, the doors of the polling place must be closed after all such voters have been admitted to the polling place. Voting must continue until those voters have voted.

Thus, when on Friday the lines for early voting in Nevada were so long as to require keeping the polls open until after the scheduled closing hour, voting continued—as required by this law—until all those waiting in line at closing time were able to cast their ballots.

There was no need for a court order. Or a directive from the Secretary of State or other election official. It wasn’t optional or discretionary. It happened automatically, by force of this statutory requirement. If it hadn’t happened, it would have been a violation of the law—as well as the underlying elementary principle that the statutory requirement protects.

That’s why it’s so troubling to hear a major-party presidential candidate assert that “it’s a rigged system” because this statutory requirement was followed as it must be.

To be sure, the candidate prefaced his “rigged system” assertion with the statement: “It’s being reported that certain key Democratic polling locations in Clark County were kept open for hours and hours beyond closing time to bus and bring Democratic voters in.” If it were indeed true that the polls were staying open “to bus” in extra voters who had not been waiting in line at closing time, that would be a violation of the same state law. But I’ve searched for news reports of any such busing in of extra voters, or indeed any casting of ballots by voters other than those already waiting in line, and I haven’t been able to find a single such report.

Moreover, it seems highly unlikely that this kind of busing in of late extra voters could occur. Nevada also has an administrative rule designed to enforce the statutory requirement in a way that prevents the casting of a ballot by any extra voter who wasn’t already standing in line at the closing hour. This administrative rule is Nevada Administrative Code § 293.247, and it provides:

After determining who is the last person waiting to vote at the time that the polls close, a member of the election board shall:

(a) Place a sticker or other distinguishing mark on the last person waiting in line to vote; or

(b) If the last person waiting to vote does not want a sticker or other distinguishing mark placed on him or her, physically stand behind the last person waiting in line to vote, to ensure that no other person enters the polling place to vote.

In other words, absolutely no one gets to vote after “the last person waiting to vote at the time the polls close,” and Nevada law has specific mechanisms to make sure no one gets to sneak by in violation of this prohibition. Either the sticker or a person identifies the last eligible voter waiting in line. In my search for news stories on what happened at the end of early voting in Nevada this year, I came across no account suggesting that this provision of the Nevada Administrative Code was violated or not enforced. On the contrary, one news story quotes the relevant Nevada elections authority saying that the well-established procedures were followed as required: “As we do throughout early voting and have done for many years, if the early voting site is scheduled to close at a certain time and there is still a line, obviously we continue to process those votes.”

There have been many troubling and unprecedented developments in this year’s presidential election. Yet, in my judgment, this episode marks another line being crossed—and a particularly troubling one. A major-party candidate for the highest office in our nation’s democracy should not condemn it when the voting process properly adheres to one of its most basic democratic principles: registered voters who arrive at the polls while they are still open are entitled to cast ballots even if they must wait until after the scheduled time for the polls to close. To suggest that adherence to this principle, and to the legal obligation that protects it, amounts to a “rigged system” is to demonstrate a lack of understanding what the very essence of democracy is all about.

This post appeared originally at Prawfsblawg.

The Perils of Allowing Absentee Ballot Harvesting

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by Steven F. Huefner

[With UPDATE after Supreme Court stay.] Today’s Ninth Circuit en banc decision in Feldman v. Arizona Secretary of State’s Office misses the mark.

UPDATE: The post below was written Friday evening, November 4, 2016. This morning, Saturday November 5, 2016, the U.S. Supreme Court, in a brief unsigned order without any noted dissent, stayed the injunction that the Ninth Circuit had issued yesterday. The result is that the Arizona prohibition on absentee ballot harvesting by third-party organizations is back in effect through Election Day.

As the original post below suggested, this is a sound result, given the legitimate reasons for Arizona to have adopted the measure. Of course, today’s Supreme Court ruling may have little to do with the merits of the challenge to the Arizona law, and everything to do with the Purcell principle against last-minute changes to otherwise stable election processes. But regardless of the factors that may have influenced today’s apparently unanimous disposition, what is most gratifying about it is to see the judiciary resolve a question of election administration, fraught as the question may be with potential partisan effects, without the Court itself dividing along ideological lines. This salutary feature adds immeasurably to the stability and strength of democratic processes, in terms of both perception and reality, and therefore deserves as much emulation as possible at all levels of our courts in resolving other election law questions.

ORIGINAL POST: Earlier today, a closely divided en banc panel of the United States Court of Appeals for the Ninth Circuit issued an order enjoining Arizona from enforcing a new law prohibiting the “harvesting” of absentee ballots. The decision was almost immediately appealed to Justice Kennedy (the member of the U.S. Supreme Court designated as the Circuit Justice over the Ninth Circuit), and he has called for a response by 9:00 a.m. tomorrow. At issue are a number of important questions concerning two independent areas of election administration. One set of questions, which this post will not address further, involves the Purcell principle, or the circumstances under which it is appropriate for courts to intervene in established election procedures when the election is imminent.

The other set of questions involves the substance of the Arizona law itself, and what procedures and limits are appropriate for securing a state’s absentee voting regime. Until this election, Arizona law had allowed third-party groups to collect voted absentee ballots from absentee voters, and to return these voted ballots by hand in bundles and boxes to the appropriate election officials for processing and counting. These third-party groups engaged in this absentee ballot “harvesting,” at least in part, in order to assist voters for whom returning their voted ballots would otherwise involve some genuine burden. For instance, as the complaint alleged in the case before the Ninth Circuit today, some Arizona absentee voters who live on one of several American Indian Reservations in the state not only are a substantial distance from the local election office, making it difficult for them to drop off their ballots in person, but also do not have reliable home mail delivery or easy access to the U.S. Postal Service. Private ballot harvesters provide a service for these voters.

But there is a potential nefarious side to absentee ballot harvesting, to which the Ninth Circuit decision gives short shrift. To the extent that modern election systems are vulnerable to electoral fraud, it is the absentee voting process that by far is most at risk. Individuals or groups who seek to meddle in the outcome of an election through the modern equivalent of ballot box stuffing may seek to gain access not just to one but to scores or hundreds of absentee ballots, whether through (1) fraudulent absentee ballot requests, (2) interception of validly transmitted ballots that are on their way out (unvoted) to legitimate voters, or (3) interception of validly voted ballots on their way back to election officials. (The creation of “counterfeit” absentee ballots is not a realistic option, because they would not be counted unless they could be matched with a request for an absentee ballot on file with election officials.)

As an additional concern, the process of harvesting absentee ballots can sometimes itself give rise to (4) improper influence. The Detroit City Clerk was kicked out of office a decade or so ago after it became known that a number of official election “ambassadors” whom the Clerk had dispatched to care centers to assist voters to mark their absentee ballots had provided a little too much assistance. At its extreme, this influence might extend as far as providing a voter with some form of benefit or compensation for a particular vote.

Some might view the return of a group of ballots in a single batch as a potential indicator that one or both of the first two types of absentee ballot fraud described above have occurred. Indeed, in prior elections, video of volunteers delivering batches of voted absentee ballots en masse to election offices was often trumpeted – falsely – as evidence of the perpetration of election fraud, as if election officials were receiving and processing numerous fake ballots. But the larger problem with absentee ballot harvesting is that it provides an opportunity to engage in the third type of absentee ballot fraud, or to exert improper influence or even buy votes.

As for fraud, those who collect ballots for batch submission are then in a position to tamper with what they deliver, either by making their own predictive judgments about the likely votes contained on the ballots inside the sealed envelopes, in order to decide which ballots to return and which to destroy, or by finding an undetected way to open the sealed envelopes before returning them in order to alter or destroy those ballots found to contain votes for a candidate (or candidates) whom the harvesters oppose. Of course, destroying ballots is not likely to meet with much success in a state, like Arizona, that provides voters a means of tracking the status of their absentee ballot, unless the perpetrators replace the destroyed ballots with counterfeits so that the tracking system records the ballots as having arrived. Nevertheless, both replacing or otherwise tampering with voted absentee ballots remain realistic concerns in an election system that permits third-party vote harvesting.

As for improper influence and vote buying, if the harvesting effort also provides an opportunity for harvesters to exert pressures or enticements, subtle or not, for the voters to mark their ballots for certain candidates, the system is corrupt. Furthermore, whether or not the harvesters are present at the time that the voters mark their ballots, it may require that voters take an additional leap of faith that their privacy will be respected if they plan to turn their marked absentee ballots over to a third party.

So it is understandable that in an era of increasing concern about the potential for manipulation of the electoral system, Arizona decided to prohibit third-party collection groups from returning batches of absentee ballots (while allowing family members and caregivers to deliver them). To be clear, and as the Ninth Circuit noted, Arizona provided no evidence that absentee ballot harvesters had ever delivered even one invalid absentee ballot in Arizona. But the above types of potential misconduct to which absentee ballot harvesting is vulnerable, including not only fraud but also improper influence and vote buying, have been proven to occur in other states in the modern era, even though they may often be hard to detect. It therefore is difficult to say that Arizona did not have a substantial basis for adopting its new anti-harvesting law.

Indeed, earlier this year the American Law Institute approved a set of principles (which can be found here) for conducting early and absentee voting, one of which is akin to Arizona’s anti-harvesting law. (I serve as the Associate Reporter for this ALI project.) That ALI principle essentially provides that absentee voters should only be permitted to return their ballots by mail or by hand, either personally or by an agent or family member who should be allowed to deliver only two ballots at a time. This principle reflects a careful balancing of a number of relevant interests at stake in how elections are conducted, and makes eminent sense for the vast majority of voters who do have reliable access to the U.S. mail, and who also can conveniently drop off their ballots in person. As Judge Bybee’s dissenting opinion in today’s Ninth Circuit decision noted, the 2005 bipartisan Commission on Federal Election Reform also had called for similar limitations on absentee ballot harvesting, which a number of states besides Arizona have long had in place.

The harder question is how to balance the reasonable justifications for these general prohibitions on absentee ballot harvesting against the burden such a prohibition may impose on a small minority of affected voters who are far from the election offices and lack access to reliable mail service, as for instance the voters identified in the complaint in the Arizona case. Yet the Ninth Circuit presumably could have limited its order to that subset of voters, rather than enjoining Arizona’s new law in its entirety. Meanwhile, with respect to all other voters, those groups who wish to harvest their absentee votes could be allowed instead to provide postage, rather than hand delivery, for their ballots.

Instead, today’s Ninth Circuit decision unfortunately has essentially rejected Arizona’s legitimate reasons for the anti-harvesting law as it applies to most of the absentee voters in the state. At the least, the court ought to have explored a narrower injunction.

Disclaimer: The views in this Comment are the author’s alone, and not those of either Election Law @ Moritz or the American Law Institute.