2016

The Claim that the Media is Rigging the Election–and Citizens United

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This post floats a tentative thought, welcoming reaction to it (but isn’t that in part what blogging is for? 🙂

Elsewhere, I’ve addressed the current claims that the election might be rigged through modern-day equivalents of old-fashioned ballot-box stuffing.  Here, I want to consider the other current claim being made: that the mainstream media is rigging (or attempting to rig) the election, as Trump, Pence, and other supporters of their ticket are claiming.

My first reaction to this claim was straightforward: the freedom of speech being exercised by the media couldn’t possible “rig” an election, because freedom of speech is essential to the functioning of a democracy.  Free speech, far from rigging an election, promotes the fairness of elections by monitoring the voting and counting process to assure its accuracy and its compliance with the relevant rules.

While my follow-up thoughts are fully consistent with this initial reaction, I now think there is more that is worth considering on this point–and it relates to the public debate over the propriety of the Citizens United decision.

As I understand it, the Trump-Pence argument that the media could be rigging the election depends on the proposition that the media is improperly distorting the electoral process by persuading voters of the pernicious ideas that the media is disseminating.  Persuasion must be the mechanism of the alleged “rigging” because the media is not paying voters to cast their ballots for a particular candidate (which would be a different type of mechanism for “rigging” the election).  Perhaps part of the claim is that major media outlets (like CNN?) have some kind of monopoly position in the marketplace idea, which gives them an unfair advantage in the effort to persuade voters of what to think; but this kind of monopolization claim seems increasingly untenable given the diversity of media sources available to voters, who can choose whatever outlets they wish in an effort to gather information and develop their opinions.

Insofar as the media-rigging claim depends on the media’s being effective in persuading voters, it is indeed a claim that is antithetical to the very premises of the First Amendment and the role that free expression plays in a democracy.  Voters are entitled to be persuaded by whatever expression convinces them.  If you disagree with the message that the media is sending to voters, then send the voters a different message of your own: the remedy for “bad” speech is counter-speech, and it is up to the voters to decide what to believe.  And in this regard, of course, the media is not monolithic.  If CNN is “slanted” in its particular point of view, then watch Fox for a different perspective.  Likewise, read the Wall Street Journal and not the New York Times, if you think the Times is unduly liberal.

Now for the relevance of Citizens United: insofar as the attack on that decision rests on the premise that corporate-funded speech will distort the electoral process by persuading voters of its message, it seems the same sort of argument that Trump and Pence are making with respect to the media’s capacity to influence what voters think.  To be sure, there might be different types of arguments for attacking Citizens United–that corporate money, for some reason, should be off-limits in the process of persuading voters what to think.  But if one rejects the idea that CNN and the New York Times are capable of rigging the election because the messages they send to voters about the competing candidates, then presumably to be consistent one should equally reject the idea that Citizens United and other corporations are capable of improperly distorting the electoral process because of the messages these other corporations send to voters.

Conversely, defenders of Citizens United should be taking the lead in condemning the Trump-Pence claim that the media is currently rigging the election because of its messages about the candidates.  The First Amendment reasoning that underlies Citizens United rules out the Trump-Pence position on this issue.

One final thought: it seems to me that a well-functioning democracy requires some shared premises among the competing political parties about the nature of the democratic process itself.  While the parties compete to win, they agree upon some basic ground rules.  One of those basic ground rules, it seems to me, used to be the background condition of free expression as the basis upon which competing parties and groups will attempt to convince the electorate of the correctness of their respective positions.  Perhaps, however, like so much else about the electoral process in this strangest of election years, the shared understanding of the role that free speech plays in a democracy is being frayed.  If so, then let’s hope that after this election we can begin a process of civic renewal that will enable restoration of the shared premises that are essential to a well-functioning democracy.

If Trump Never Concedes …

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Chris Cillizza of the Washington Post’s Fix observes that the escalation of Trump’s rhetoric suggests that he’s unlikely to concede defeat no matter what the results of the election show.

I’ve been thinking about this possibility over the last several days, beyond what I wrote a couple of weeks ago for Politico.

It’s important to recognize a few points:

  1.  Election Night returns are not official certified results.  No matter how much of a blowout in favor of Clinton, both in terms of the national popular vote and the Electoral College, that Election Night returns show, our system does not require that a candidate–or a political party–accept them as a definitive statement of the outcome.  While we certainly have come to expect the tradition of the Election Night concession in the television era, especially when the results appear conclusive, it bears repeating that there is no official status to preliminary returns–and certainly none to the APs numbers.  In short, we don’t have a constitutional crisis on our hands if we don’t have a gracious concession on Election Night even if the result appears a blow out.
  2. Our nation has withstood previous presidential elections in which the results were not known, and a concession was not forthcoming, until the canvassing of the returns were complete and the results officially certified.  The election of 1884 took two weeks for the canvass in New York to be complete, and with it the official verdict that Grover Cleveland had defeated James Blaine.  A similar situation occurred in 1916 as Charles Evans Hughes waited for completion of the canvass in California to confirm that he had lost to Woodrow Wilson.  Neither of these examples, moreover, were ones that stressed the system in the way that 1876 and 2000 did.  In other words, waiting for official results by itself does not constitute any serious threat to our democracy, which is far stronger than that.
  3. The key is the absence of violence. In both 1884 and 1916 there was no civil disorder as the nation peaceably waited completion of the official counting process.  Whatever Trump does or does not say–assuming preliminary returns do show him to be losing decisively–the country will not be in crisis as long as his supporters do not engage in violent protests.
  4. To my mind, what will be key is the conduct and statements of Paul Ryan and Mitch McConnell as the leaders of the Republican party in Congress.  If they publicly concede that Trump has lost, and the media appropriately reports the significance of their concession, the nation’s democratic system can take that as the requisite sign of closure, whatever antics Trump might engage in.  Remember, it is a joint session of Congress that constitutionally receives the Electoral College votes from the states under the Twelfth Amendment, and thus Ryan and McConnell have an official, constitutional role in congressional declaration of a president-elect.  If and when Ryan and McConnell make clear to the public their intention to exercise this role in service of the Republic, the media should report that as the functional equivalent of the election being over.
  5. Mike Pence could also help in this process.  If he acknowledges defeat, that will go a long way to helping those who voted for the Trump-Pence ticket to achieve closure, even if Trump is steadfastly refusing to acknowledge what would then be the reality of the situation.
  6. How much time should lapse before Ryan, McConnell, and Pence play this important role? Obviously, there will be intense media pressure for them to make concession-like statements on Election Night, especially if the results point to a Clinton landslide.  But it seems to me that it would not be inappropriate for them to wait to give Trump a chance to do the right thing. Of course, the more belligerent Trump’s rhetoric, the more important it becomes for Ryan, McConnell, and Pence to come forward quickly with responsible statements of their own.
  7. In sum, we have the capacity to navigate the situation even if Trump is inappropriately reckless after being defeated.  Given our constitutional system, one aberrational individual cannot destroy our country–particularly if that individual has lost the election.  (Finally, I’m obviously just assuming now that the Election Night returns may show a resounding victory for Hillary Clinton. Until we see what results the election actually brings, all these thought are simply by way of preparation.)

Hurricanes and Voting Rights

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In response to Howard’s request, I hopefully will weigh in more deeply on the constitutional analysis when I get a chance.  Meanwhile bottom line: it’s complicated.  There is deep conceptual uncertainty about the nature of the Anderson-Burdick balancing test, on which much of the Supreme Court’s analysis of election regulations relies.  Anderson-Burdick grew out of Equal Protection law, but also First Amendment. I’ve been writing recently that, if Equal Protection is at issue, then there needs to be differential treatment among citizens by the government with respect to the opportunity to vote–not just disparate impact of laws that treat all voters equally.  If this is correct, then one would need to look for disparate treatment by Florida among voters with respect to the circumstances arising from the hurricane.  The plaintiffs make such a claim, but I haven’t had a chance to look at it closely.

But others see Anderson-Burdick as not requiring any differential treatment.  More like substantive due process claims, and specifically the “undue burden” analysis for abortion regulation, these scholars and judges think there is no comparative inquiry necessary; as long as some voters are burdened with respect to voting, then there is a triggering of the sliding-scale balancing under Anderson-Burdick.  I would say that many lower courts see it this way, but not necessarily the Supreme Court.

In a new article, forthcoming in the University of Chicago Law Review, I set forth an alternative “due process” analysis to the traditional Anderson-Burdick approach under equal protection.  Although this article doesn’t address the kind of emergency situation involved in the Hurricane Matthew case, the basic concept of the article could be applied.  The article argues that Due Process employs a principle of fair play that constrains partisan overreaching on the part of state governments.  Based on available evidence I’ve seen, one could easily argue–as the plaintiffs have (although not relying on Due Process)–that Governor Scott’s refusal to extend the voter registration deadline was pure partisanship.  He practically admitted as much, saying “this is politics” when explaining the reason for his refusal.

There’s been a lot of important recent scholarship on what the Supreme Court should do to clarify the deep uncertainty associated with the Anderson-Burdick balancing test.  Sam Issacharoff, Pam Karlan, and my Moritz colleague Dan Tokaji –as well as some of the other guest bloggers this month — all have written major new articles addressing the issue, all of which (I think) are available on SSRN or elsewhere on the web.  And there maybe be others (if so, I welcome hearing about them!).

Finally, I note that there was also a Voting Rights Act claim in the case, and there is parallel uncertainty about how the Court should develop the “results” test under section 2 of the Voting Rights Act, especially as applied to regulation of the ability to cast a ballot (rather than redistricting cases) in the wake of the Court’s nullification of section 5 in Shelby County.  Again, Pam and Dan (among others) have made important contributions to the scholarship in the area, but the Court has yet to settle the issue.

As I observed in a quick tweet after the TRO was announced today, hurricanes themselves are not unconstitutional–the weather itself is never state action–and thus the relevant question is the appropriateness of the government’s laws and conduct to handle such emergencies.  As one thinks about this Florida case, one should also compare the federal court order issued at the end of the day during Ohio’s primary election this year, when there was a major car accident on a bridge.  The court issued a TRO without there even being a plaintiff or a case.

When Should Early Voting Begin?: Lessons from the Current State of Distress over the Trump Campaign

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by Steven F. Huefner

In the past 24 hours, calls for Donald Trump to abandon his bid for the White House have swelled. While the odds of him doing so willingly still seem long, they are not negligible; who knows what they will be by early next week, after the second debate between Trump and Hillary Clinton. No matter the odds, the very real possibility that the Republican Party might replace its nominee for President of the United States less than one month before Election Day has invited reflection concerning a variety of issues, both political and legal.

Many others, including my Election Law @ Moritz colleague Ned Foley here, have already offered thoughts and analyses about what a Trump withdrawal at this point might mean to this year’s election. One issue that so far has received relatively less attention, however, is what this late-breaking development might say as a policy matter for future elections about the appropriate duration of the periods of early in-person voting and absentee voting. More specifically, the present moment helps to highlight the hazards of encouraging voters to cast their ballots too far in advance of Election Day. As described in the paragraphs below, decisions about how much pre-Election Day voting to allow need to balance its convenience with the problem of voters’ casting ballots on the basis of materially different information – including changes in candidates – across a span of time.

Each state makes its own decisions about how to conduct even federal elections, except that Congress has specified that federal elections are to occur on the first Tuesday after the first Monday in November of each even calendar year. For most of U.S. history, these federal elections were one-day affairs, conducted in-person on the specified day by requiring voters to present themselves at a designated polling location to cast their ballots, under rules established by each state. The exception, of course, was absentee voting, which began primarily as a method for members of the military to vote while serving in the armed forces. Absentee voting then slowly spread to other categories of voters who could claim some real impediment to voting on the designated Election Day, but still accounted for only a tiny fraction of total voter turnout.

However, over the past two decades, early voting has grown dramatically, as some three-dozen states have either opened their absentee voting process to all voters, or have developed options that allow voters to vote in-person before Election Day. It is now the case that as many as one third or more of the total votes cast in federal elections can be expected to be cast prior to Election Day. Unfortunately, most empirical research suggests that these opportunities to vote prior to Election Day have done little to increase voter turnout (except in some local, non-federal elections for which turnout is much lower to begin with), and instead seem largely just to have made voting more convenient for voters who would vote anyway even if the more convenient early voting options were not available.

The states with early in-person voting or open absentee voting have no uniform date when these options begin. Federal law now requires that absentee ballots for the relatively small number of military and overseas voters be available 45 days before Election Day, and some states choose to make absentee ballots for regular voters available at that same time. More typically, regular absentee voting begins 30 days before Election Day. Meanwhile, early in-person voting (which occurs at a county clerk’s office or other designated early voting center) usually begins later, with the average period of early voting beginning nineteen days before Election Day.

It is easy to understand why states should provide absentee ballots to military and overseas voters well in advance of Election Day, given the difficulties involved in transmitting voting materials to and from other nations, especially into and out of military theaters. It also is easy to understand why election jurisdictions might favor a uniform period of absentee voting for everyone, and therefore send absentee ballots to all voters once their military ballots are ready, 45 days in advance. Or, for jurisdictions that do not make that choice, it also is easy to understand why, once the ballots are ready, they might still feel pressure to get them into the hands of voters relatively soon, say 30 days in advance (the date when the voter registration window closes in many states). Voters themselves presumably want more rather than less time to cast their votes; the campaigns of candidates at the top of the ticket likewise view it as helpful to be able to begin harvesting – and thereby locking in – votes from their supporters sooner rather than later. Similar pressures can affect the choice of how soon to begin early in-person voting.

Yet the events of the past 24 hours simply have to make us think carefully about how these periods are set. Many absentee and early voting ballots have already been cast. But the voter convenience and administrative ease that these votes represent come with costs, including the impact on these voters of a subsequent Trump withdrawal. Were that to occur, it would mean that the act of casting an early ballot is effectively disenfranchising for any voter for whom a Trump withdrawal is material to their voting preference: the voter would have lost the opportunity for meaningful participation in the election. This reality leads some to argue that once early voting begins it may be too late for a political party to replace their nominee on the ballot.

One response (for instance here) is that all early voters choose to take this disenfranchisement risk when they decide to vote sooner than Election Day. But voters may do so without much knowledge of or reflection concerning this risk. Moreover, it is quite a different matter for the government to be needlessly permitting (even encouraging) this early-voting risk taking, if it produces relatively little benefit to voters and the election process generally. Early voting (whether absentee or in-person) undoubtedly has advantages. But extending the period of early voting further and further in advance of Election Day produces diminishing returns while exacerbating the potential that voting early will disenfranchise an early voter because of subsequent events or information important to the voter. This potential disenfranchisement could be reduced (though not eliminated) by shortening periods of absentee and in-person early voting that are longer than ideal.

Although empirical research suggests that most of those who take advantage of the opportunity to vote early are committed partisans who are the voters least likely to change their views in light of typical examples of late-breaking information, that fact does not alter the reality that sometime even these voters will encounter new information or new circumstances that do matter to their vote, including on occasion the replacement of a candidate. Moreover, if the early voters are the committed partisans, they will vote regardless of the length of the early voting period. Although it may be the highest profile such event in generations, the potential implosion of the Trump campaign is hardly the first time that an election has been thrown into chaos in its final weeks. In addition to the self-inflicted implosion of a candidate or campaign, elections can also be affected by late-breaking news about a candidate’s ties to business or industry, as with yesterday’s release of hacked Clinton campaign emails; by sudden new developments in international or domestic affairs, such as the outbreak of a new war; or by a candidate’s illness or death, as when three weeks before Election Day Mel Carnahan was killed in a plane crash while campaigning to be one of Missouri’s U.S. Senators, or when Senator Paul Wellstone of Minnesota similarly died in a plane crash 11 days before Election Day. The potential for these various types of disruption have received relatively little attention as states have expanded their windows for early voting.

One of the American Law Institute’s current projects is to develop Principles of Election Administration. (I serve as the Associate Reporter for this project.) Earlier this year, the ALI approved a portion of this project concerning early and absentee voting. Recognizing the sound arguments that may lead a state to offer some period of early voting, one of the ALI Principles is that for states that choose to offer early voting, “a uniform statewide period of early in-person voting should begin by the 10th calendar day before Election Day, and should continue daily through the second calendar day before Election Day.” Although the ALI has not taken a position on what the maximum period of early voting should be, a Comment accompanying this Principle notes that, because of the potential for late breaking developments, “A prolonged early-voting period therefore is undesirable (as also is a prolonged period of open absentee voting, which similarly encourages voters to cast their absentee ballots well before Election Day). At the same time, the early in-person voting period needs to be long enough to provide a critical mass of voters with a meaningful alternative to Election Day voting.”

Obviously, any decision to permit a meaningful period of early voting – at least 10 days, under the ALI Principle – means the possibility exists that some voters will have voted by the time some truly late-breaking event occurs. But that possibility doesn’t negate the importance of minimizing the risk by properly confining early voting periods. That is a balancing task that involves careful consideration of how much added benefit a marginal additional day of early voting provides, beyond some critical minimum period of 10 days, or two weeks, or whatever a state thoughtfully concludes. The current attention to the potential disruption that a Trump withdrawal would cause is an appropriate invitation for states to reconsider whether their absentee and in-person early voting periods are longer than they should be.

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

 

GOP repudiation of Trump before 11/8? If so, then what?

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As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump.  True, Trump will still be on the ballot that we citizens cast.  But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence.  Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.

Suppose this plan is successful, insofar as it causes on Election Night, 11/8, the media to announce that GOP electors were chosen in enough states to amount to 270 Electoral College votes. Then on 12/19, the GOP electors all do as intended according to this plan: they cast their official Electoral College votes for Pence, not Trump.  Pursuant to 3 U.S.C. 9-11, these electors all sign their certificates showing Pence as their choice and send the certificates to Joe Biden, as President of the Senate.

Now, someone might claim that some of these electors violated a previous pledge they made to cast their Electoral College votes for Trump.  Maybe this claimant even arranges to send to Biden a separate set of Electoral College votes cast by replacement electors who were substituted because the faithless electors violated their pledge. (This move would be reminiscent of 1876.) We can assume that the claimant wouldn’t send to Biden 270+ Electoral College votes for Trump, but some number short of 270 in the hope of depriving Pence of the presidency.

What would happen when Biden receives two conflicting sets of Electoral College votes from some states, one set for Pence, and the second set for Trump? Under the Twelfth Amendment and 3 U.S.C. 15, the new Congress meets on January 6, 2017, to open these Electoral College votes.  If the Republicans control both the Senate and the House and stay organized on behalf this plan, they could vote to accept all the Electoral College votes for Pence and reject all the Electoral College votes for Trump, and Pence would be constitutionally elected President.   If, however, the Democrats control the Senate (perhaps unlikely as a practical matter if the GOP electors reached 270+, but still worth considering), while the Republicans retain the House, the situation gets even more complicated. If  for some states the Senate votes to count the Electoral College votes for Trump (would they in an effort to deprive Pence of the White House?), and the House votes to count the conflicting Electoral College votes for Pence, then under 3 U.S.C. 15, the conflict is supposed to be resolved by the governor of each state that sent to Biden two or more sets of conflicting Electoral College votes.  But some scholars think that 3 U.S.C. 15 is unconstitutional, and it is unclear what happens if both conflicting sets bear the governor’s signature.

Anyway, let’s suppose for simplicity that the governor-as-tiebreaker in each state is accepted, and the consequence is that Pence is pulled below 270–perhaps because Pennsylvania’s Democratic governor follows the Senate’s lead and picks the Trump set of electors. If Pence falls below 270, then the House of Representatives must choose the President with the choice confined to Pence, Clinton, and Trump.  But under the Twelfth Amendment, each state has one vote, and it takes 26 states to achieve a choice (not just a majority of states that vote in the House).  If 26 states vote for Pence, then he’s the constitutionally elected President (by the different route than above).  But if no one gets 26 states (because some state delegations are evenly divided between Democrats and Republicans, and Pence can’t quite reach 26), then under the Twentieth Amendment whomever the Senate has picked as Vice-President becomes the Acting President.

So if the Democrats control the Senate, they would have picked Kaine as Vice-President. But if the Republicans control the Senate, who would they pick?  It depends on whom the GOP electors voted for on 12/19 when they picked Pence for president.  As I read the Twelfth Amendment, they are not supposed to pick Pence for both President and Vice-President.  So they would need to come up with another name for Vice-President, who might end up as Acting President.

All of this is highly speculative, of course, and even if the process starts down this road, there might be some wild and unexpected twists-and-turns.  But this year’s presidential election already has been wild and unexpected, so who knows? It pays to speculate a bit, just to try to be prepared for strange scenarios that might actually unfold.

Presidential and congressional elections; Amar’s “sunrise” idea

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In my first post, I discussed the importance of reforming the process for presidential elections, specifically advocating the need for a runoff mechanism (like Instant Runoff Voting, but it could be a separate runoff election like many other democratic countries, including France, use for their presidential elections).  I used the full scope of U.S. history to make the point that, ever since the Electoral College failed to function in the way intended even after the Twelfth Amendment fix, the existing process for presidential election fails to handle adequately the existence of third (or more) candidates–and that it is not just a “Ralph Nader” problem limited to just a few aberrations.

In this post, I want to raise a question that was asked on Friday at the Fordham Law Review symposium where I presented my paper on the need for presidential runoffs.  The question, an extremely important one, was essentially (and I’m paraphrasing), “What difference does it make to fix presidential elections, if Congress is paralyzed by hyper-polarization and gridlock, especially when one party controls the Senate and another party controls the House?”

I’m strongly of the view that the purpose of elections is for the citizenry to choose a government.  But if the government is incapable of actually governing, then elections have failed in their essential purpose.  I think the capacity, or incapacity, of Congress to legislate responsibly with respect to the budget and other pressing national issues (tax reform, etc.) suggest that our political system is at an unprecedented level of dysfunction.  If reforming presidential elections won’t fix the problem, what will? Reforming congressional elections? Something else?  I hope to have more to say on this topic.  Meanwhile, I note that it is impossible to place the blame solely on gerrymandering, since the Senate is not gerrymandered.  Or on Citizens United, given the existence of Buckely (among other reasons).  The challenge of reform is a multi-faceted one.

Here, I want to close this post with one idea concerning the process of reform.  It’s Akhil Amar’s idea, which he mentions at the end of his book America’s Unwritten Constitution, and which I explore in a subsequent essay, The Posterity Project.  The idea, very simply, is to use a “sunrise” mechanism when adopting any significant structural reform.  The opposite of a “sunset” mechanism, which terminates a piece of enacted law after a specified period of time, a “sunrise” mechanism would delay the time at which a piece of reform takes effect for a specified period.  The reason for a “sunrise” mechanism is to induce present-day politicians to set aside short to self-interest (including the short-term self-interest of their constituents and co-partisans) and adopt reforms in the long-term best interest of the polity.  It’s the closest we humans can actually come to putting ourselves behind a Rawlsian veil-of-ignorance, as we might not know what our own narrow self-interest will be at some point in time down the road.

Obviously, there is an inherent trade-off in setting the “sunrise” date: the further in the future it is, the more Rawlsian the deliberation, but the longer we have to wait before the reform actually takes effect.  The shorter the delay of the “sunrise” mechanism, conversely, the more likely self-interest calculations will taint the deliberations over what reform to adopt.   However you think the “sunrise” mechanism should be specified, I urge you to consider the advantage of a nonpartisan structural reform commission co-chaired by ex-presidents Barack Obama (after he leaves office) and George W. Bush.  The purpose of the reform commission would be to consider the set of structural reforms–involving presidential and congressional elections, and other topics–that are necessary to rectify the problem of paralyzed and dysfunctional government, which we seem to have right now.  Any reforms recommended by this commission would not be adopted until after the specified “sunrise” period of delay was over.

Election Law Priorities? Fixing Presidential Elections?

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On Friday, I was very fortunate to be able to attend, and present a paper at, Fordham Law Review’s symposium on presidential elections. Other presenters included Anthony Gaughan, Michael Morley (who is also participating in this month of election law blogging), and (I’m most proud to say) my superb former student Sean Wright (now at the FEC).  I encourage all to you to look at their recommendations for reforming presidential elections, which include eliminating caucuses, adjusting the rules for the party conventions, raising campaign contribution limits, adoption of the National Popular Vote plan, among others.

My paper, on the need for runoffs in presidential elections, addresses what is sometimes called the “Ralph Nader” problem, because of Nader’s role in determining the outcome of the 2000 presidential election, but the point of my paper was to show historically that it is a much bigger issue than many of us realize.  Depending on how one counts exactly, roughly 15-20% of all presidential election (there have been 56 of them) are ones in which a third candidate likely or possibly determined which of the two leading candidates was the one who ultimately won.  That’s a much higher percentage than I realized before starting the project, and involved some of our most consequential presidential elections.

Most of us don’t remember from high school history the 1844 election, but that was the one in which James Polk beat Henry Clay only because a third candidate, James Birney, drew votes away from Clay.  Polk, the candidate of “Manifest Destiny” wanted (and, as winner, did) take America to war against Mexico and supported the entry of Texas into the Union as a slave state.  Clay opposed Polk on these crucial issues concerning America’s future.  Whichever side you think had the better of the argument, there’s no doubt it was one of the most important elections in determining America’s future.

Likewise, 1912.  That’s the one where Teddy Roosevelt ran against his protege William Taft, the incumbent president, for the Republican nomination.  After losing the nomination to Taft, TR bolted the GOP and formed his own Progressive Party, with his Bull Moose candidacy.  Roosevelt ran second to Wilson, and clearly would have won a runoff, since Taft’s supporters (to the right of TR) would have supported TR over Wilson.  Had TR won back the White House in 1912, it is very likely that America’s entry into World War One would have been much sooner, and the terms of peace imposed on Germany much different.  (No naive League of Nations idealism from TR, the ultimate realpolitik president in terms of international affairs).  Who knows, but all of world history (no rise of Hitler and World War Two???) might have been very different if TR, rather than Wilson, had won in 1912.

Who knows how this most bizarre presidential election of 2016 will end up, but it is still conceivable that Jill Stein or Gary Johnson could determine whether Trump or Clinton wins (making this year similar to 2000).  The bottom line is that America lacks a capacity for handling presidential elections in which a third candidate (or more) is a factor in the race. We have lacked this capacity ever since the Electoral College has not functioned as originally intended (which is pretty much right for the beginning).

Fixing this problem is high on my own list of election priorities.  In the paper, I explain that each state already under Article Two has the constitutional power to use Instant Runoff Voting for the appointment of its presidential electors.  What we need is a concerted movement to get states to use this power in this way.

I’m curious whether others share this view and also what they would list as their top election law priorities.

Thanks much for inviting me to participate in this month of blogging.  I’m very much looking forward to the exchange of ideas!

The Supreme Court and the Right to Vote

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by Daniel P. Tokaji

“[T]he political franchise of voting . . . . is regarded as a fundamental political right, because [it is] preservative of all rights….”

– Yick Wo v. Hopkins (1886)

For over 130 years, the U.S. Supreme Court has said that the right to vote fundamental. The idea is that voting for candidates who represent our views is the primary means through which we protect our interests, whatever they might be. While the Court has often repeated this constitutional principle, it hasn’t always honored it.  In fact, at the very moment that the Court first declared the right to vote fundamental, African Americans were being systematically and brutally excluded from voting throughout the states of the former confederacy.  As a result, all their other rights – including education, employment – were denied.

Contemporary threats to the right to vote are much less egregious than the racist exclusionary practices that predominated in the late 19th Century and persisted through most of the 20th Century, but today’s threats are nonetheless real. Recent events raise serious questions about the currently short-staffed Supreme Court’s capacity to protect the right to vote against 21st Century threats.  The vacancy created by Justice Scalia’s death has now existed for over seven months and counting.  The split arising from this vacancy compromises the Court’s ability serve as a bulwark against denial of the right to vote.

Recent developments in a voting rights case from two swing states, North Carolina and Ohio, are especially troubling. North Carolina enacted an omnibus voting bill shortly after the Supreme Court’s decision in Shelby County v. Holder (2013), which freed it from the strictures of preclearance under Section 5 of the Voting Rights Act.  Although Section 5 wasn’t used to stop vote denial as often as is commonly supposed (p. 79), there’s no doubt that Shelby County led directly to North Carolina’s 2013 voting restrictions.

North Carolina’s law was especially sweeping, imposing voter ID, limiting early voting, eliminating same-day registration, restricting the counting of provisional ballots, and abolishing pre-registration for 16- and 17-year olds. Despite substantial evidence that African Americans would be especially hard hit by North Carolina’s new restrictions, the district court in NC NAACP v. McCrory denied relief.  Its very lengthy opinion missed the forest through the trees, examining each voting restriction separately, while downplaying their cumulative effect on black voters as well as evidence of the legislature’s racially discriminatory intent.

The Fourth Circuit Court of Appeals reversed the district court, finding that North Carolina’s voting restrictions “targeted African Americans with almost surgical precision.”  The court cited evidence that North Carolina’s Republican leadership specifically asked for racial data on the usage of particular voting practices, then adopted a law restricting those means used predominantly by African Americans.  Based on this and other evidence, the Fourth Circuit concluded that this law was motivated by discriminatory intent.

While racially discriminatory intent is hard to prove, the Fourth Circuit’s conclusion that North Carolina’s legislature had acted with such intent was amply justified by the evidence. To be sure, the ultimate reason for North Carolina’s Republican legislature adopting this law was partisan.  As in other states, North Carolina’s African Americans vote overwhelmingly Democratic, providing a strong motivation for the Republican majority to make it harder for them to vote.  The Fourth Circuit correctly reasoned that racial and partisan motivations aren’t mutually exclusive – to the contrary, they are mutually reinforcing.  That’s especially true in North Carolina, where being African American is a better predictor of voting Democratic than being registered as a Democrat.

In these circumstances, it should come as no surprise that the Supreme Court denied North Carolina’s motion to stay the Fourth Circuit order, especially given the state’s tardy filing of its motion. What was surprising is that there was a 4-4 tie, with the four conservative justices voting to reinstate the restrictions (Chief Justice Roberts, Justice Kennedy, Thomas, and Alito). Those justices dissented from the denial of a stay, even though it’s hard to imagine a broader and deeper package of voting restrictions or, at least in 2016, one with a more evident racial discriminatory purpose than that of North Carolina.

Given the split in the North Carolina case, there was no real hope that the Court would intervene in Ohio Democratic Party v. Husted.  That case challenged Ohio’s elimination of “Golden Week,” the five-day period for same-day registration and early voting.  African Americans disproportionately relied on this window, leading the federal district court to conclude that it violated Section 2 of the Voting Rights Act.  Although this restriction was less onerous than those adopted in North Carolina, Ohio’s anti-fraud justification was especially flimsy.  It defied both credulity and the evidence to argue, as did Ohio, that there was a significant risk of fraud with ballots cast thirty days before election day.

Ohio’s pretextual justification suggested that, as in North Carolina, the Republican-dominated legislature’s real goal was to gain partisan advantage by restricting a means of voting disproportionately used by African Americans. The highly respected district judge ruled against Ohio, doing exactly what the law requires by carefully sifting through the evidence on both sides. The fact that the district judge was appointed by George W. Bush and formerly served as Chief Counsel to Republican Governor George Voinivich adds credibility to his studied conclusion that Ohio’s voting restrictions violated both the Fourteenth Amendment and the Voting Rights Act.

The Sixth Circuit nevertheless reversed, beginning its opinion with an ideological statement of opposition to judicial intervention in voting disputes:  “This case presents yet another appeal …asking the federal courts to become entangled, as overseers and micromanagers, in the minutiae of state election processes.”  The court’s reasoning on the Voting Rights Act claim is even more troubling.  Remarkably, it found that plaintiffs had failed to prove the requisite disparate impact on African Americans, even though they were heavy users of the voting opportunity that the state eliminated. Though the Sixth Circuit opinion isn’t a model of clarity, it seems to suggest that a racial minority group is foreclosed from prevailing if its overall turnout is equal to that of the majority group, emphasizing that “the statistical evidence shows that African Americans’ participation was at least equal to that of white voters.”  This suggests that a racial group should always lose if their overall turnout equals that of the majority.  The proper threshold question is whether the challenged law eliminates opportunities that African Americans predominantly use, as I’ve explained in this article (pp. 473-80).

Despite the problems with the Sixth Circuit’s reasoning, there was practically no hope of the Supreme Court staying its order. There was no reported dissent from the Court’s denial of a stay, but that says little or nothing about what would have happened if the Court had a full complement of justices.  The same is true of the Sixth Circuit’s most recent decision in NEOCH v. Husted, mostly rejecting a challenge to procedures used for provisional voting, absentee voting, and voter assistance.   Although there are similar problems with the Sixth Circuit’s analysis of the Voting Rights Act claim in that case, seeking Supreme Court review would be similarly futile.

These cases create serious doubts about whether the Supreme Court, as presently constituted, can be trusted to protect the fundamental right to vote. As a practical matter, it means that federal appellate courts now enjoy a great deal of power, as Rick Hasen has noted.  Divisive voting issues are very likely to split the Court in half, meaning that the lower court’s ruling will be affirmed.  And this is to say nothing of looming controversies over partisan gerrymandering and campaign finance, also likely to divide the current Court in half.

Sadly, it is a virtual certainty that the Court will remain understaffed for the remainder of the current election season, with several voting cases still pending and more likely to come up. As long as this seat remains open, there will be a 4-4 split on several important issues, but none are more important. The fundamental right to vote, and therefore all of our rights, are at stake.

The Sixth Circuit’s Distinction between Absentee and Provisional Ballots: Why?

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This comment originally appeared as a guest post at Rick Hasen’s Election Law Blog.

One thing I don’t understand about the majority opinion in yesterday’s NEOCH decision is the distinction that the majority draws between absentee and provisional ballots for the purpose of applying Anderson-Burdick balancing to the invalidation of ballots for a voter’s clerical error in writing the voter’s birthdate or address on the envelope in which the ballot (absentee or provisional) is submitted.

The majority finds an Equal Protection violation under Anderson-Burdick for the invalidation of ABSENTEE ballots for this type of clerical error, but rejects the equivalent Equal Protection claim with respect to the invalidation of PROVISIONAL ballots for the identical type of clerical error.  This disparate disenfranchisement of comparably situated voters (by the Sixth Circuit majority) itself invites Equal Protection inquiry under a Bush v. Gore type of analysis.

What does the Sixth Circuit majority say to justify this distinction?  Not much; it doesn’t really address the comparison of absentee and provisional ballots directly, but rather just analyzes each separately in turn under its application of the Anderson-Burdick balancing test.

The majority seems to think that process of verifying provisional ballots, to make sure that the provisional voter is registered and authentic (ID matches, so that the person casting the ballot is really the person entitled to cast it) justifies disqualifying a provisional ballot if the voter accidently writes the wrong information for the voter’s birthdate or address—for example, accidently writing the current date rather than one’s birthdate.  The relevant sentence of the majority’s opinion, on page 22, is this:  “Ohio’s important interests in provisional-voter registration and identification eclipse the small burden of accurately completing the two fields—a burden that actually impacts just a few hundred voters each election, an impact wholly in their own control.”

But then the very next sentence is: “However, we agree with the district court that Ohio has made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope.”  Ohio’s defense was the same in both contexts: the need to make sure that the person submitting the absentee ballot was in fact registered and authentically the person in whose name the ballot is being cast.  But here the majority rejects the defense as theoretical and speculative, not grounded in actual evidence of a problem.  As the majority puts it, “some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh.”  (Id.)  But why wasn’t that point equally applicable to the same defense regarding provisional ballots?

It is as if the majority opinion believes that provisional ballots are inherently more suspicious than absentee ballots, enough so that an innocent clerical mistake is enough grounds to toss the ballot out, thereby disenfranchising the voter.  But this position makes no sense to me.  The constitutional claim in the case, as the Sixth Circuit majority itself defines it, concerns the invalidation of the ballot solely because of the clerical error regarding the birthdate—the mistaken writing of the current date, for example (as I discussed in a previous post on this case before it reached the Sixth Circuit).  But if this is the sole reason for rejecting the provisional ballot, then the election officials already know that the provisional voter’s registration status has been confirmed, and that the provisional voter’s required ID number (driver’s license or last 4 digits of SSN) has dispelled doubt about the voter’s authenticity.  In this situation, there is no need to disqualify the ballot just because of the inconsequential clerical error regarding the birthdate.  As the majority acknowledges elsewhere regarding ABSENTEE ballots, the state’s justification for “requiring mail-in voters to complete the address and birthdate fields” as information that potentially aids election officials in the verification process is not an adequate justification “to reject ballots containing technical errors” when those errors do not defeat the ability of officials to verify the ballot in question (slip op. at 24; emphasis in original).  The very same point applies equally to provisional ballots, but the Sixth Circuit majority just seemed to miss it in that context.

There is some language in the Sixth Circuit’s majority opinion that suggests that it might make a difference to the Anderson-Burdick balancing that numerically fewer provisional ballots are rejected each election because of these clerical errors than absentee ballots 620 provisional ballots, compared to 1712 absentee ballots, in 2014 & 2015 (slip op. at 21).  But that numerical difference would seem irrelevant under the way that the Crawford “plurality” — the Justice Stevens opinion — understood Anderson-Burdick balancing (in contrast to Justice Scalia’s alternative approach in his Crawford concurrence), and the Sixth Circuit majority acknowledges the Stevens opinion in Crawford to be “controlling”.  In this regard, the Sixth Circuit majority refers to the Anderson-Burdick claims before it as “facial challenge[s]” (slip op. at  21), but I had understood the Anderson-Burdick claims in this case – in contrast to Crawford itself – to be as-applied challenges on behalf of the subset of voters represented by the plaintiffs (the homeless and other specifically disadvantaged groups).

This leads me to wonder whether, even after yesterday’s decision, there is still the possibility of a valid AS-APPLIED challenge on behalf of any provisional voter whose ballot is rejected solely because of a clerical error regarding a birthdate or address—and that the upshot of the decision is that the equivalent rule regarding absentee ballots is facially invalid, and thus absentee voters do not need to seek an as-applied remedy for this kind of disenfranchisement, whereas provisional voters still do.  Even so, I still don’t understand the basis for the Sixth Circuit majority’s distinguishing between absentee and provisional voters, even for purposes of the kind of claims that the majority characterized as equivalent “facial challenge[s].”  But at least that would not rule out the possibility of protecting provisional voters from disenfranchisement solely because of a clerical error that the Sixth Circuit majority itself defines as inconsequential to verifying the voter’s eligibility and identity.

I welcome hearing from others about their thoughts on how best to understand the Sixth Circuit’s distinction between provisional and absentee ballots with regard to rejecting them for clerical errors.

When Should a Voter’s “Clerical Error” Invalidate a Ballot?

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Not when the state already has enough information to verify the ballot’s validity.

Roland Gilbert accidently wrote the current date, instead of his birthdate, when filling out the form on the envelope for submitting his absentee ballot in Ohio’s 2014 general election (which included a gubernatorial race). It’s a mistake that all, or at least most of us, have made at one time or another in our lives when filling out forms. Is it a mistake that should disqualify Roland Gilbert’s absentee ballot from being counted?

As a policy matter, I certainly think not. Moreover, this policy position recently has been adopted by the American Law Institute, a prominent nonpartisan organization most famous for its Model Penal Code, Uniform Commercial Code, Restatements of Law covering a wide variety of fields (like contracts, torts, and property law), and other law-improvement projects. In its new Principles of Law project concerning Election Administration, the ALI takes the position that an absentee ballot should not be invalidated if the identity of the absentee voter can be verified and the voter is registered and eligible to cast the ballot. (Full disclosure: together with my Election Law @ Moritz colleague Steve Huefner, I serve as Reporter to the ALI project that developed this and related principles.)

With respect to Roland Gilbert, there was no dispute that he was a registered and eligible voter. Nor was there any dispute that the absentee ballot in question had been cast by him. As required by a separate provision of Ohio law, he had supplied identification information for his absentee ballot (driver’s license number, or SSN, or the like), and this information sufficed to verify his identity—and his ballot’s authenticity. Yet his ballot was rejected—and thus Roland Gilbert disenfranchised—apparently for the sole reason that he mistakenly wrote the current date instead of his birthdate on his absentee ballot envelope.

This disenfranchisement seems wrong and undemocratic, disturbingly so. But is it unconstitutional? That legal issue is at the heart of the pending case, NEOCH v. Husted, in which federal district court Judge Algenon Marbley recently ruled that this disenfranchisement does violate the equal protection clause of the federal Constitution. Ohio’s Secretary of State Jon Husted has since appealed the case to the Sixth Circuit federal appellate court.

The Applicable Constitutional Analysis

To determine whether a state violates equal protection in the administration of its voting laws, the U.S. Supreme Court has devised what has come to be called the “Anderson-Burdick” balancing test. As I discussed in a recent essay on another pending federal court case involving Ohio’s voting laws, the one involving the state’s repeal of so-called “Golden Week” (when eligible citizens could both register to vote and cast their ballots during the same trip to an early voting location), the first task under the Anderson-Burdick balancing test is to identify the allegedly objectionable way in which the state is differentiating between two groups of voters. In the Golden Week case itself, this seemed impossible to do, since even after the repeal of Golden Week, Ohio was offering the same amount of voting opportunities to all eligible voters: 23 days of early voting, no-excuse absentee voting, and traditional Election Day voting. As I explained using an analogy to government-provided Shakespeare in the Park, the fact that in previous years the government used to provide five weeks of summer theater whereas now the government provides only four weeks does not cause a differentiation among would-be theater-goers that would raise an equal protection question. As long as the currently available four weeks are equally available to any person who would like to attend, there can be no equal protection objection to the shorter length of this government-provided benefit.

By contrast, in the NEOCH case, there is no doubt that Ohio is differentiating between two groups of voters: (a) those who correctly complete their birthdate on their absentee ballot envelopes and (b) those who do not. Thus, it is entirely appropriate to scrutinize this differential treatment of voters under the Anderson-Burdick balancing test. Although the justices of the U.S. Supreme Court have not been entirely clear—or in agreement among themselves—on exactly how Anderson-Burdick balancing is supposed to work, it essentially involves a comparative weighing of (i) the burdens imposed on the voters who suffer the differentially adverse treatment and (ii) the state’s justifications for imposing this adverse treatment on the negatively affected group of voters.

The most directly relevant precedent from the U.S. Supreme Court is Crawford v. Marion County Election Board, where the justices applied Anderson-Burdick balancing to Indiana’s voter ID law. There, the nine justices divided into three groups, of three justices each. The three most liberal justices on the Court at the time (Souter, Ginsburg, and Breyer) would have invalidated the Indiana law in its entirety as being unduly burdensome in relation to its potential benefits. The three most conservative justices (Scalia, Thomas, and Alito) would have upheld the law in its entirety as being minimally burdensome on the state’s voters considered as a whole. The outcome of the case was controlled by the three justices in the middle (Stevens, Kennedy, and Chief Justice Roberts), who refused to invalidate Indiana’s ID requirement completely, but explicitly left open the possibility that the ID requirement would be invalid as applied to those voters for whom it actually operated as a barrier to participation in an election.

The problem in the case, as these three centrist justices carefully explained, was that the plaintiffs were attempting to obtain an across-the-board injunction, which would have prevented Indiana from enforcing its ID rule even with respect to voters who already possessed the required ID or easily could obtain one (and thus for whom the rule imposed no consequential burden). Moreover, the plaintiffs had failed to identify any individual Indiana voter who actually would be disenfranchised as a consequence of the ID rule’s enforcement.   Thus, the centrists concluded: “Finally we note that petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute.”

The reasoning of the centrists in Crawford is instructive for the pending NEOCH case. It is plainly acceptable for Ohio to ask absentee voters to supply their birthdate, as Judge Marbley’s opinion acknowledges. Having this information can help confirm a voter’s eligibility and identity, thereby increasing the government’s confidence concerning a ballot’s validity, and asking a voter to supply it imposes only a trivial burden. (To be sure, as Judge Marbley also observed, there are low-literacy or otherwise impaired voters who cannot fill out an absentee ballot on their own, but under Ohio and federal law they are entitled to assistance in completing their absentee ballot envelope, and thus asking them to include their birthdate is not unduly burdensome even as to these voters.)

But invalidating a ballot, and thus disenfranchising the voter, because of an inadvertent error—like the one Roland Gilbert made, accidently putting the current date, instead of his birthdate—is an entirely other matter. Here, in contrast to Crawford, there is proof of a specific individual voter who suffers a severe burden: disenfranchisement itself, the loss of the right to participate on equal terms with other eligible voters in the election. And what is the state’s justification for this disenfranchisement? In Roland Gilbert’s case, and others like it, there isn’t any. Indeed, it is the existence and enforceability of a voter ID requirement that makes this so.

Ohio is able to ascertain Roland Gilbert’s identity and eligibility because of the ID information that is also required on the absentee ballot envelope. There is no dispute about the accuracy or validity of this information. In this circumstance, confirmation of Ronald Gilbert’s birthdate on his absentee ballot envelope is superfluous, and voiding his ballot because of an inadvertent error concerning this unnecessary extra information serves no valid government purpose. Only in a Kafkaesque bureaucracy, where government functionaries take pleasure in declaring “Gotcha” when they trip up citizens in the enforcement of their administrative regulations, would invalidation of a ballot solely for this kind of innocent mistake seem reasonable.

Thus, under Anderson-Burdick balancing it seems entirely appropriate to order—as Judge Marbley did—that Ohio not disqualify any absentee ballot because of the absentee voter’s failure to provide the voter’s correct birthdate when other available identification information provided on the absentee ballot envelope suffices to establish the voter’s eligibility and the ballot’s authenticity. Were I the judge in the case, I might have tried to frame the injunction against the state even more explicitly than Judge Marbley did to make clear that its scope was limited to those voters for whom an accurate birthdate was indeed superfluous. It is possible to imagine circumstances in which an accurate birthdate would be necessary to authenticate a ballot. Suppose, for example, that two individuals named “John Smith” reside at the same address, perhaps a father and son. They might have indistinguishable signatures, and the identification information provided with the returned absentee ballot—a utility bill, for example—might be insufficient to determine which John Smith was the one who cast the returned ballot. (Maybe one John Smith at that address already has cast another ballot, and it is important not to permit any individual to cast a second ballot in the same election.) In this instance, an accurate birthdate on the returned absentee ballot envelope might enable the government to determine that it was the father, not the son, who cast the ballot (and if it had been the son, not the father, who was the one who already cast the previous ballot, then this ballot now identified as from the father would be valid and eligible to be counted).

As I read Judge Marbley’s order in light of the rest of his opinion, it seems clear enough that it would not bar disqualification of an absentee ballot for lack of an accurate birthdate in those instances, like this hypothetical example, where the birthdate is indeed necessary to verify the ballot’s validity. Instead, Judge Marbley’s order essentially is limited to those other instances, like Roland Gilbert’s, where an accurate birthdate is unnecessary to validate the ballot. So limited, the order permits Ohio both to collect birthdate information in the first place and to rely upon this information in those situations when it is necessary to verify a voter’s identity.

In this respect, Judge Marbley’s order is consistent with post-Crawford developments concerning the constitutionality of voter ID laws. For example, in litigation over Wisconsin’s version of a voter ID requirement, the U.S. Court of Appeals for Seventh Circuit (like the Supreme Court in Crawford itself) refused to invalidate the ID requirement in its entirety. But in a subsequent opinion by Judge Easterbrook, the Seventh Circuit signaled that Wisconsin’s ID law would be invalid as to individual voters who, despite good faith efforts, were unable to obtain the required ID and therefore would be disenfranchised:

Instead of saying that inconvenience for some voters means that no one needs photo ID, plaintiffs contend that high hurdles for some persons eligible to vote entitle those particular persons to relief. Plaintiffs’ approach is potentially sound if even a single person eligible to vote is unable to get acceptable photo ID with reasonable effort. The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily. Plaintiffs now accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort, while endeavoring to protect the voting rights of those who encounter high hurdles. [Page 4; emphasis added.]

By the same logic, Judge Marbley’s order protects Roland Gilbert and other individual voters just like him, for whom Ohio’s birthdate requirement imposed an inappropriately disenfranchising burden, even as it imposes no such burden on most other voters.

Judge Marbley’s order is also consistent with a previous appellate decision in an earlier round of the same NEOCH litigation (696 F.3d 580). Back in 2012, the U.S. Court of Appeals for the Sixth Circuit considered the requirement in Ohio law that voters, when casting a provisional ballot, accurately supply on their provisional ballot envelope their name, their signature, and one of several acceptable pieces of identification information (driver’s license number, SSN, and so forth).   In the context of a preliminary injunction proceeding, when consideration of the relevant constitutional claim was tentative and not definitive, the Sixth Circuit surmised that demanding that provisional voters accurately supply these three pieces of information would not be unduly burdensome under Anderson-Burdick balancing. But that pronouncement is easily distinguishable: those three pieces of information are in most instances necessary to verify a provisional voter’s eligibility. Without the voter’s name, election officials simply do not know who the voter is. Without some sort of identification information (like a driver’s license or Social Security number), election officials ordinarily cannot confirm the authenticity of the voter’s identify. And unless a provisional voter has a religious objection to signing the provisional ballot envelope (in which case the signature requirement is waived upon an alternative demonstration’s of the voter’s authenticity), the absence of a signature is an indication of the voter’s unwillingness to attest to the voter’s own eligibility. Thus, none of these three pieces of information are superfluous in the way that an accurate birthdate often can be. Invalidating a provisional ballot for failure to accurately supply any of those three pieces of information would be justifiable in a way that invalidating an absentee (or provisional) ballot for failure to accurately supply a superfluous birthdate amounts to nothing more than the gratuitous disenfranchisement of an eligible voter who has cast a ballot in good faith.

Provisional ballots and address information

There is more to the pending NEOCH case than just the disqualification of absentee ballots because of inadvertent mistakes in supplying one’s birthdate. Like the earlier round of litigation in NEOCH, this round also involves provisional ballots as well as absentee ballots. Under current Ohio law, provisional ballots along with absentee ballots are being disqualified when a provisional voter inadvertently writes the current date instead of the voter’s birthdate on the provisional ballot envelope. According to the same Anderson-Burdick balancing, the same conclusion should apply: the federal judiciary should prohibit Ohio from disqualifying that provisional ballot when the provisional voter accurately supplied other identification information sufficient to verify the voter’s eligibility.

The pending NEOCH case also involves the disqualification of ballots, both absentee and provisional, for inaccurate address information. For example, when filling out an absentee or provisional ballot envelope, a voter mistakenly might transpose digits of the voter’s zip code, writing 42309 accidently instead of 43209. Obviously, a voter’s address is important for determining a voter’s eligibility. In our residence-based system of elections, where which legislative representative one votes for (as well as which municipal offices) depends on where a voter lives, election officials must be able to determine where a voter lives in order to verify the eligibility of a voter’s ballot. Even so, it does not follow that the government should be entitled to disqualify a voter’s absentee or provisional ballot automatically just because the voter made a clerical error concerning the voter’s address when completing the envelope in which the ballot is submitted.

In this context, it is important to remember that the pending litigation concerns voters who already have registered at least 30 days in advance of Election Day, as they are required to do under Ohio law, and when registering have supplied their address. Neither an absentee nor a provisional ballot can count if the voter is not previously registered. Invalidating an absentee or provisional ballot because the voter was not registered, or properly registered, is entirely appropriate and constitutional. Thus, invalidating an absentee or provisional ballot just because of an inadvertent clerical mistake on the absentee or provisional ballot envelope itself is, by definition, disenfranchising a voter whose proper registration status is not in dispute.

For all properly registered voters, the government already has on file the voter’s address. Thus, when examining an absentee or provisional ballot envelope, the only relevant question is whether the government has adequate information to link the ballot to a properly registered voter who purportedly cast it. If the envelope contains the name and signature of a properly registered voter, as well as a key piece of identification information (like a driver’s license or Social Security number), and if those three pieces of information match what is on file in the government’s voter registration database, then the government has established a positive link between the ballot and properly registered voter who cast it. If there is no reason to believe that an inadvertent error concerning completing the voter’s address on the envelope undermines that positive link, then there is no reason to disqualify the properly registered voter’s ballot just because of that inadvertent error.

This would be the case, for example, when a voter has made a simple transposition of digits in the voter’s zip code or made some other minor error, like writing “123 Park Avenue” instead of “123 Park Place”. If the rest of the address is correct—and the voter’s name, signature, and identification information all match what’s in the government’s registration database for that voter—then election officials have no reason to doubt the validity of the voter or the authenticity of the ballot. In this situation, it is obvious that a routine and innocent clerical error has occurred. Under Anderson-Burdick balancing, as explained by both the Crawford centrists and Judge Easterbrook, this particular voter should not be disenfranchised just because of the clerical error. When the government knows it has an authentic ballot from a valid voter, the government should not be disqualifying the ballot according to some “Gotcha” theory of clerical perfection. The right to vote on equal terms with other eligible citizens is too important for that kind of bureaucratic mentality.

To be sure, there may be instances in which inaccurate information concerning a voter’s address on an absentee or provisional ballot envelope might undermine the government’s confidence that it has an authentic ballot from a valid voter.  (The government legitimately asks voters to include their address on their absentee or provisional ballot envelope, even though the government already has a registered voter’s address on file, as part of its overall efforts to increase the accuracy of its ballot authentication processes, just as it does by asking voters to include their birthdates. Even if this extra information is not always necessary, sometimes it is useful, and there is nothing wrong in asking for it. Ohio also uses addresses on provisional ballot envelopes to create new valid registrations for provisional voters whose previous registration status the government cannot verify, thereby enabling these voters to cast countable ballots in future elections.)

If the address on the envelope looks nothing like the address on file in the voter registration database, then the government might have reason to doubt the ballot’s eligibility. In that situation, the government might be justified in calling upon the voter to clarify the discrepancy before the ballot is definitively entitled to be counted. But in those situations in which it is readily apparent that a discrepancy concerning the properly registered voter’s address is nothing more than a routine, innocent clerical error—which in no way undermines the government’s confidence that the ballot in question was cast by a voter entitled under state law to cast that very ballot—then the government is not justified to require anything further from the voter before proceeding to count that valid vote. To demand anything more from the voter in this instance would be an inherently unjustified burden, and thus one that necessarily flunks Anderson-Burdick balancing.

Simply put, in this situation, the government already has enough information to validate the ballot. To make the voter do anything more is overkill. For this reason, the voter should not be required to correct the obvious clerical error in order for the ballot to count. Accordingly, for this set of circumstances, it is appropriate for the federal courts to require (as Judge Marbley had done) that the state count the properly registered voter’s authentic ballot.

(Under Ohio law, a voter’s change of address may sometimes present a confusing situation for both the voter and the poll worker. If a previously registered voter has moved residences within the same county, but has failed to update the voter’s registration with the new address—as the voter is now able to do online—then the voter is supposed to cast a provisional ballot at the precinct appropriate for the voter’s new address, and that provisional ballot should count once the voter’s new address is verified. If the voter accidently puts the voter’s old address on the provisional ballot envelope, instead of the new address, there will be a mismatch between what the voter should have supplied and what the voter did supply.   If election officials can figure out what happened without additional information, and thereby determine that the voter actually cast a ballot in the correct precinct for the voter’s new address, then the officials should go ahead and count the ballot as properly cast. But this may be one of those instances in which election officials need additional information from a voter in order to corroborate the change of address, in which case the government would be entitled to disqualify the ballot if the additional corroborating information was not forthcoming.)

Other issues in the NEOCH case

When an absentee or provisional voter is legitimately required to supply additional information in order to validate the voter’s ballot, there is the question of how much time the voter should have to supply this information. In Ohio, voters previously were permitted ten days for this purpose. Now they have only seven. One of the issues in the pending NEOCH case is whether this shortening of the so-called “cure” period violates either equal protection or the Voting Rights Act.

This particular issue, it seems to me, is more like the curtailment of early voting that caused the elimination of Golden Week. Whether it is good or bad policy to cut the cure period from ten to seven days, it is not obvious to me that this cutback triggers Anderson-Burdick balancing. All voters now receive seven days. Where is the differential treatment among different groups of voters? That some voters would like, or would especially benefit from having, three extra days means that the shorter period imposes a “disparate impact” but under equal protection law that does not mean that the law subjects these voters to differential treatment—and it is only differential treatment, not disparate impact, that triggers equal protection scrutiny (whether under Anderson-Burdick, rational basis review, or any other level of judicial review). To invoke another basic analogy, suppose the government used to provide free transit for anybody on municipal buses from July 1 to July 10, but now provides this free transit only from July 1 to July 7. Yes, it is a cutback, but as long as the current free service is available to anyone who wants to ride the bus, it does not seem to be a differential treatment among would-be riders, even if there are some citizens who would prefer to ride the free bus during the extra three days no longer available.

But however the cutback of the cure period should be analyzed under Anderson-Burdick balancing, and however some other ancillary issues in the pending NEOCH case should be handled, it should be clear from the discussion above that that there are serious constitutional questions at stake. At issue is the potential disenfranchisement of properly registered voters who have cast their ballots, in circumstances where the government has no reason to doubt these voters or their ballots.   As Judge Easterbrook has observed, even if the voters and ballots that fall into this particular category are a tiny faction of all the voters and ballots in an election, the right to vote belongs to each eligible individual, who is entitled to protection from improper disenfranchisement. The federal courts are capable of tailoring injunctions carefully, so that a state law may be enforced in those many circumstances—indeed most of them—where it causes no improper disenfranchising effect, while at the same time the federal court’s injunctive relief safeguards those relatively few voters who need protection from disenfranchisement caused by the unnecessarily excessive enforcement of an otherwise unobjectionable state law.

When all is said and done, the upshot of the pending NEOCH case should be clear: Roland Gilbert and other voters just like him should be protected from being disenfranchised solely because they made a simple and understandable error when filling out their birthdate or address on their absentee or provisional ballot envelope.