By Charles Stewart III

Kenan Sahin Distinguished Professor of Political Science
The Massachusetts Institute of Technology

Montana’s Secretary of State Linda McCulloch recently announced she would file a bill with her state legislature to move Montana to all-mail elections. In so doing, she cited the growing number of Montanans who already vote by mail, through the absentee ballot process, and the rising per-voter costs of staffing traditional in-person precincts that fewer voters are using.

The reliance on vote-by-mail has certainly grown. Oregon and Washington now vote entirely by mail; among the remaining states, the percentage of ballots cast absentee (which is almost all done by mail) has grown from 4% in 1992 to 14% in 2008. (About one-quarter of Montanans voted absentee in 2008.)

Election administrators have good reasons to want to move more balloting to the postal service. Vote-by-mail is cheaper. It also removes a major barrier to the consistent application of election laws, by eliminating the need to hire and train precinct poll workers. In these difficult economic times, isn’t a cheaper, administratively simpler method of voting a no-brainer?

Not if the policy costs outweigh the savings. Unfortunately, the policy costs — which come in the form of lost votes, decreased legitimacy, and a further skewing of the composition of the electorate — are real. Also unfortunate is the fact that policy analysts and election geeks (me included) have largely ignored these costs as they have analyzed the growth of voting by mail. One defense against not studying the policy costs of voting by mail is that the data just haven’t been available. However, data that bear on the policy costs of voting by mail have begun trickling in, and the initial look is sobering.

The first cost is lost votes. The problem of lost votes was highlighted in the Florida 2000 recount in Palm Beach County with the appearance of the veritable bestiary of chad — hanging, pregnant, swinging, and the like. Something like pregnant chad is a great example of votes being lost through no fault of the voter, because virtually the only way pregnant chad could be produced was if the holding device had not been properly cleaned. Research over the past decade has established solid evidence that most of what used to show up as “blank,” “over-voted,” and “under-voted” ballots in presidential elections — what is now lumped together under the rubric of “residual votes” — was due to some artifact of the machine the voter was using. A goal of the Help America Vote Act (HAVA) was to retire systems that were prone to inducing residual votes, like Votomatic punch cards, in favor of devices that helped save voters from common errors, such as precinct-count optical scanners or direct-recording electronic devices.

Less obvious, but just as important, HAVA provided incentives and mandates that were aimed at reducing even more important causes of lost votes, by improving voter registration systems and encouraging the improvement of election administration practices.

HAVA was mostly oriented toward making sure that if a voter woke up on Election Day intending to vote for president, the vote would be counted at the end of the day. The Act had a very traditional focus on in-precinct voting. HAVA had virtually nothing to say about the lost votes problem from the mail-in ballot end of the process — probably because the problem was invisible in Florida, as it is nationwide. Very little attention has been paid to this problem in any systematic way. We had no idea how big this problem might be.

Until now.

Buried deep within the Election Assistance Commission’s (EAC) 2008 Election Administration and Voting Survey (EAVS) is a series of questions that ask local jurisdictions about the workflow associated with absentee voting by mail in 2008. In addition, the 2008 Survey on the Performance of American Elections (SPAE), conducted by my colleagues at the Caltech/MIT Voting Technology Project (VTP), helps provide evidence about voters who asked for absentee ballots, only never to receive them. Putting these studies together, we have the best evidence about how many people requested absentee ballots in 2008 and, in the end, how many were counted.

The top- and bottom-lines are these: it looks like 36 million people requested mail ballots in 2008, whereas only 28 million absentee ballots were counted, leading to a “leakage” in the absentee ballot pipeline of 8 million ballots, or roughly 20% of requests.

Where did the leaks occur? The data from these studies suggest that 4 million ballots were requested but not received, 3 million were transmitted but not returned for counting, and 800,000 ballots were returned for counting, but rejected.

Are these lost votes, in the same sense of pregnant chad? No. Are they the same as lost votes due to registration mix-ups or poor polling place places? Perhaps.

The leaky pipeline statistics quoted above need to be treated as the preliminary estimates they are. Here are some things to consider when assessing these estimates of lost votes via the mails in 2008: (1) the data sources are new and incomplete, (2) respondents to the SPAE may have rationalized why they didn’t vote, (3) some people who requested absentee ballots may have eventually gone in to vote at a precinct, and (4) local officials may have rejected many absentee ballots out of an abundance of caution over concerns about fraud.

These estimates are a beginning, not the end, of a discussion about how many voters who rely on the mails to cast a ballot actually have their vote counted on Election Day.

Still, what if the “real” lost vote rate for absentee ballots wasn’t 20%, but just 2%? It would still be greater than the in-precinct lost vote rate.

These figures only try to estimate votes that are lost through the supply pipeline of mail-in balloting. What about the ballots that are returned and accepted for counting?

Here is where we encounter the promise of HAVA in polling-place voting falling short in the case of mail-in balloting. HAVA required that ballots voted in a precinct have some safeguard against over-voting; no such safeguards exist for voting by mail. Not surprisingly, the residual vote rate for absentee balloting is greater than for in-precinct voting. For instance, in Florida in 2008, the residual vote rate for Election Day voting in Florida was 0.54%, compared to 0.78% for absentee voting. While not huge, this difference does represent a total of almost 4,600 ballots, a number that well exceeds the vote margin of some recent close elections in that state.

The second cost is the legitimacy of election outcomes. This is where one claim of Secretary McCullough needs to be examined, which is that after visiting groups involved in voting in Oregon, they “loved voting by mail.”

Well, yes and no.

In the Survey of the Performance of America Elections (SPAE), which I mentioned above, we asked voters nationwide whether they favored a series of voting reforms, including whether elections should all be run by mail. Nationwide, the proposal was a dud, garnering support from only 15% of all respondents. A majority of voters in only two states favored vote-by-mail — not surprisingly, in Oregon (64%) and Washington (51%). The next-closest state was Arizona, at 27% support. (Montana was number six, at 22% support.)

While Secretary McCullough was referring to groups in Oregon who administer elections as “loving” vote-by-mail, not the citizens at large, it is hard to characterize all of Oregon, and certainly Washington, as embracing it. Most support it, but even in Oregon — a state that adopted vote-by-mail by referendum — it seems that a solid minority wish the Beaver State continued to use traditional polling places.

This division over whether voting by mail is a good idea in Oregon and Washington has consequences for how voters judge the election outcomes. The SPAE asked respondents if they were confident their vote was counted as cast. Nationwide, the percentage answering “very confident” was 64%. In Washington, the percentage was 48%; in Oregon, it was 59%. What is interesting is that in these two states confidence in the vote count was related to whether one favored voting by mail, which is not true of voters nationwide. Among the residents of Oregon and Washington, supporters of voting by mail were close to the national average in trusting the quality of the vote count. Among the opponents, less than half were confident their vote was counted as cast.

This suggests that one effect of sanctioning universal voting by mail in Oregon and Washington, has been the creation of a solid minority of voters who doubt the wisdom of the move. Many of them are convinced that the vote count is flawed. As a result, Oregon and Washington voters express among the least confidence that their vote was counted as cast among voters nationwide, as least as measured in this survey.

The third cost is in the composition of the electorate. The best research into the effects of vote-by-mail suggests three things. First, the only elections in which turnout is clearly higher is in local elections, where turnout is already homeopathic. Second, in the biennial general elections, turnout generally does not go up; people who used to drop out of the electorate are more likely to be retained, but new people are not systematically added to the electorate. This leads us to the third point: over time, the net effect of voting by mail is to shift the composition of the electorate toward people who are wealthy and well educated. Voting by mail doesn’t expand the electorate overall, while making it less representative.

What should Montana, or any state considering going over entirely to vote by mail, do? Should they abandon the thought? Not necessarily. The purpose of pointing out the (until now) hidden potential policy costs of universal vote-by-mail elections is to make citizens and policymakers more aware of the potential costs, in terms of democratic values, that this form of voting imposes. Perhaps the trade-offs are worth it. Perhaps the perils could be minimized with some creative thinking.

There is also a middle alternative, between continuing to support the dual system of highly decentralized precincts plus mail-in absentees, on the one hand, and complete vote-by-mail, on the other. That is to allow absentee balloting to continue as-is, while moving to a small number of vote centers, dispersed around a county, that are opened for early voting a couple of weeks ahead of the traditional Election Day. (Some states already have these, but often call them “satellite absentee ballot centers.”) On Election Day, use only the vote centers.

A vote center is an office that is set up to allow a voter who lives anywhere in a county to receive the appropriate ballot and cast it on the spot. Implementing vote centers requires an investment of money, intensive communication with voters, and the deployment of new technologies, such as electronic poll books and ballot-on-demand systems. Even with these investments, local governments could still reap most of the savings and administrative improvements envisioned by vote-by-mail if they just closed hundreds of small precincts and opened a few vote centers. That way, voters who wished to avail themselves of the communal aspects of voting, or avail themselves of the safeguards against over-voting, could do that. And, there is even evidence that Election Day voting centers increase voter turnout.

State and local election officials are coping with budgetary shortfalls, just like the rest of state and local governments, and this work is rarely given adequate funding, even in the best of times. Proposals to save money through precinct consolidations and more voting by mail will only increase in number. As this happens, it will be important for everyone who cares about economy in government and the quality of elections to take a serious look at the hidden costs of these changes. Otherwise, we risk a new lost-votes epidemic of our own making.

By Terri L. Enns

Voting, while certainly an individual act, is also a communal one that includes the intention to impact the larger community. Historically, that communal reality was reinforced in the voter’s mind on Election Day, the single day on which people voted, whether the election be a primary, special, or general election. With voting already underway in 39 states, it is worth considering whether there are institutional and structural ways to keep alive that sense of ”the important communal civic event of a single election day.”[i]

In the past, on Election Day voters would join their friends and neighbors at their polling places, which were for the most part located in civically-oriented buildings, either schools or churches. Campaigns focused their energies on a single day, and organized volunteers to get people to the polls on that day. All activity was geared toward the day of decision-making when voters would cast their votes. These features combined to remind voters that they were casting votes that would choose representatives and policies not only for themselves, but for the entire community.

Over the past twenty-five years, various innovations in the voting process have changed that pattern so that by 2004, nearly one in four votes took place on a day other than Election Day.[ii] Absentee balloting, formerly reserved for those people with a clear reason–usually absence from home or some other inability to come to the polling place–is now available in many states for anyone who requests an absentee ballot. In-person early voting is also increasingly available. Oregon and Washington mandates vote-by-mail, and other states are currently experimenting with vote-by-mail for some types of elections.

The main reason for the changes from single day, single location elections is the convenience of the voter. The ubiquity of cell phones should be enough proof that as a society we do not like to be tied to a single location. Work schedules, family arrangements, and personal preferences all provide fodder for arguing against a single day for voting. For many, underlying the convenience rationale is the assumption that a more convenient system will increase voter participation. However, as logical as that rationale seems, the data appear to show that participation does not increase; rather, the people who would have voted anyhow are just voting at different times and places.[iii]

Despite the lack of evidence of increased participation, these more convenient forms of voting are no doubt here to stay. Sufficient numbers of nonvoters cite convenience-related reasons for their failure to vote[iv] to quiet any move to return to the systems in place twenty years ago. Instead, what follows are some suggestions about institutional means to strengthen the sense of shared civic responsibility while retaining the increased convenience that we’ve come to assume:

Reduce the number of days for early voting: While a single day for voting is inadequate to accommodate contemporary work schedules and lifestyles, it seems overly-generous for people to have the option to begin voting six to eight weeks before an election. What is the added value of voting more than a week prior to the traditional Election Day? In addition to adding costs and allowing people to vote without the benefits of information coming at the end of full campaigns, these long voting periods can dilute focus on the election.

Establish a Voting Holiday: As with Independence Day and Veterans’ Day, turning voting day (at least for general elections) into a holiday would provide a more intense focus on the civic nature of voting. Many work conflicts would be eliminated, and adding a couple of voting days before the holiday itself would be sufficient to do away with most scheduling conflicts. As a nation, we are used to using holidays to signify important cultural events, and voting combines many of the values celebrated by other holidays.

Locate all polling places in civic buildings: While I have not noticed any trends toward voting in private establishments, it is worth a reminder that the location of voting impacts the ways in which people vote. Some research indicates that “environmental cues” may influence the way that voters behave. The study looked at the impact of voting in a school or voting in a church, and found that polling locations have a small but measurable influence on votes. If that is true, then paying close attention to the types of buildings used as polling places is an important way to reinforce the idea that voting is a communal act.

We should be deliberate about retaining the structural reminders of the communal nature of voting, even while embracing convenience. There is some irony in the fact that voting used to take place on a single day, and then the populous was willing to wait for weeks and months for the official results of that single day of voting. Now, we spend weeks voting, but then expect the results of all that voting to be available before we go to sleep on what is now the the last day of a voting season. Part of the reason we are eager to learn the outcome is that we know that all members of society will be impacted by the results of elections. Our structures need to remind us of that fact while we are in the act of deliberating about our choices and casting our votes, not only as we await the tally of everyone else’s votes.

By Donald B. Tobin

According to some, 501(c)(4)s are the perfect advocacy organization for independent third parties seeking to influence elections; they can take unlimited donations and do not have to disclose the names of donors. If (c)(4)s can operate this way, they become a perfect mechanism for corporate influence in campaigns and also fundamentally destroy the few checks that are left on the corruptive influence of large contributions in political campaigns.

Even before Citizen’s United we saw a significant increase in the use of 501(c)(4) tax-exempt “Social Welfare Organizations” as vehicles for advocacy in election campaigns. In a recent article in The New York Times, Michael Luo and Stephanie Strom examine the use of 501(c)(4) organizations in political advocacy. They note the attractiveness of these organizations for large contributors because in most cases these organizations do not have to disclose donations to the organizations. According to proponents of the use of (c)(4)s, they are the perfect advocacy organization for independent third parties seeking to influence elections; they can take unlimited donations and do not have to disclose the names of donors. If proponents are correct that (c)(4)s can operate this way, (c)(4)s become a perfect mechanism for corporate influence in campaigns and also fundamentally destroy the few checks that are left on the corruptive influence of large contributions in political campaigns.

What is important to distinguish, however, is whether the proponents are in fact correct. In most cases, the (c)(4)s formed to engage in independent advocacy are not complying with the law. As Luo and Strom explain in their article, enforcement in this area is difficult, and the IRS is both underfunded and unequipped to handle large-scale regulation in this area. The question, however, is not whether (c)(4)s can get away with this behavior in the short run, but whether their interpretations are in fact correct and whether their actions are legal. If their actions are illegal, then there are actions that can be taken to rein in large-scale abuse.

Prior to highlighting methods of reining in the abuse of (c)(4)s, it is important to understand the requirements for different tax-exempt organizations. In general, organizations seek some type of organizational structure with which to conduct their activities. Since Citizens United, organizations can engage in campaign activities through a for-profit corporation. There are also tax-exempt organizations that can be used to engage in political discourse. Section 501(c)(3) organizations are what we think of as typical non-profit organizations. These are religious institutions, charities, educational institutions, etc. Contributions to these organizations are deductible and income related to the organization’s exempt purpose is not taxed. These organizations, however, may not intervene in an election campaign for or against a candidate for public office. Some (c)(3) organizations push the envelope, but for the most part, these organizations stay out of large scale campaign advocacy. (For more on the use of (c)(3)s in political campaigns see Campaigning by Churches and Charities).

Section 501(c)(4) organizations are “social welfare organizations” and donations to these organizations are not tax deductible (and are likely subject to gift tax), but income generated by the organization related to its exempt-purpose is not taxed. Social welfare organizations must be organized primarily (although the statute says exclusively) for a social welfare purpose and political campaign advocacy is not a social welfare purpose. The regulations governing (c)(4) organizations provide that an organization qualifies as a (c)(4) if “it is primarily engaged in promoting in some way the common good and general welfare of the people of the community.” The regulations further provide that “the promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.” See Treas. Reg. 1.501(c)(4)-1(a)(2)(i) and (ii). Intervention in a political campaign has been defined broadly by the IRS, and it is the IRS’s definition, not the FEC’s definition that applies in this instance.

Finally, section 527 of the Code was created for political organizations. Section 527 organizations are organizations whose primary purpose is to influence the “selection, nomination, election, or appointment of any individual to any federal, state or local public office.” Section 527 organizations are not subject to tax on its exempt function income, contributions to 527 organizations are not deductible, but contributions to 527s are not subject to gift tax. Section 527 organizations, however, are subject to a disclosure regime that requires disclosure of contributions and expenditures. If organizations do not disclose, they are subject to tax on non-disclosed contributions and expenditures.

So in short, 501(c)(4) organizations are supposed to be primarily engaged in social welfare, are not subject to tax on income, and may engage in a limited amount of intervention in a political campaign. Section 527 organizations are designed for political advocacy. Contributions to the organizations are not income, but the organizations are required to disclose contributions and expenditures or face additional tax.

Current advocates of using (c)(4)s as campaign advocacy vehicles are distorting the law and often are mischaracterizing their activities. If they are truly lobbying to promote their social welfare purpose, then they are properly (c)(4) organizations. But if they are engaged in intervention in a political campaign, and they are trying to cloak their activities as lobbying, they are violating both the spirit and the substance of the statute. Under campaign finance jurisprudence, they may be able to use such trickery, but it is usually not accepted in tax jurisprudence.

The distinction is important here. It is not by mistake that (c)(4)s do not have to disclose while 527 political organizations do. Social welfare organizations were not designed to be vehicles for promoting candidates; they were designed to promote social welfare. The promotion of social welfare may include lobbying on issues related to the organization’s social purpose. There is an argument that these types of activities do not pose the same concerns with regard to the corruptive influence of money in political campaigns that is present when organizations intervene in political campaigns. A statutory scheme that requires disclosure for campaign intervention but not for lobbying and the promotion of social welfare therefore makes sense. If organizations are able to mask campaign intervention as lobbying, then the check on corruption present in the current statutory scheme will be subverted.

The question really is what type of enforcement mechanism exists to constrain entities that are improperly characterizing themselves as (c)(4)s. It is one thing to say that these entities can get away with organizing as a (c)(4) and another thing to say that it is legal. The fact that enforcement is lacking does not make the action legal.

Why does it matter? If it is illegal but the illegality is unenforced, won’t the action continue? The answer is maybe, but at some point, there are consequences to people who subvert the law and are too clever. So here are some proscriptive solutions for limiting the abuse of (c)(4)s.

First, the IRS could take stronger action against such organizations. In many cases, these organizations are violating the law. If procedural mechanisms are not in place to properly regulate these organizations (like the fact that they do not necessarily file tax forms when they are created so the IRS may not know who they are), the IRS has the power to change those regulations.

Second, the IRS can reclassify these organizations as 527 organizations and assess tax based on the organizations’ failure to disclose contributions and expenditures. An organization is not a 501(c)(4) organization simply because it says so. Section 527 specifically defines organizations that are 527 organizations. There is no opt-out provision. So even if an organization says it is a 501(c)(4) organization, it may actually be a 527 organization and thus subject to disclosure requirements of a 527 organization.

Third, when disclosure provisions were enacted as part of section 527 it was a compromise between no disclosure and an earlier bill that would have required disclosure of 501(c)(4) and 527 organizations. If 501(c)(4)s continue to be used to subvert the disclosure provisions in section 527, Congress could create disclosure provisions in (c)(4) for those organizations who rely on “lobbying” as their primary social welfare purpose. (As an aside, § 501(c)(4) could be amended as part of budget reconciliation and therefore could be modified with only 51 votes, thus potentially avoiding concerns that modifications could be easily filibustered).

Fourth, The New York Times article states that one of the problems is that these organizations may disappear as soon as the election is over. In this instance, lawyers who are setting up these organizations have an ethical responsibility under our Professional Responsibility rules not to assist others in engaging in illegal activities. If these are campaign advocacy organizations masquerading as social welfare organizations, lawyers cannot participate in setting up or advising these organizations. Lawyers are prohibited from assisting a client in engaging in an illegal activity. Lawyers cannot assist in such an activity even if there is lax enforcement, and the lawyer believes the client can get away with it. It is this type of attitude that brought us Worldcom, Enron, and some of the downfall in the financial industry. Lawyers are not allowed to counsel people to cheat on their taxes even though there is little chance they will get caught, and they are not allowed to counsel people to create (c)(4) organizations when they are not (c)(4) organizations. Moreover, the Treasury has implemented specific ethical rules under Circular 230, which governs practice before the IRS. Those rules are often stricter than state bar rules and the rules under circular 230 would likely apply in this instance.

Fifth, the IRS could start assessing gift tax on donations to (c)(4) organizations. While there is a statutory exemption from the gift tax for contributions to (c)(3) and 527 organizations, there is no such exemption for (c)(4)s. If large donors were subject to gift tax on their contributions, (c)(4)s would be a lot less attractive as a campaign vehicle.

So are proponents of 501(c)(4)s as smart as they think? Probably, if smarts are measured by what they can get away with in the short run. But if their point is that they have found a legal way to engage in secret campaign advocacy, they are wrong, on both moral and legal grounds. The question is not whether the IRS, Congress, or local bars have the power to limit this abuse, they certainly do. The question is whether we are going to be serious about disclosure in a post-Citizens United campaign finance system. If (c)(4)s can be used as independent campaign advocacy organizations with no disclosure requirements, then there will be no check on the corruptive influence of large campaign contribution and our democracy will surely suffer.

By Daniel P. Tokaji

It has been almost ten years since the disputed election that gave rise to Bush v. Gore, the Help America Vote Act of 2002 (HAVA), and a number of related election reforms in the states.  Notwithstanding these significant changes, a fundamental problem at the heart of the 2000 election debacle has yet to be solved.  Ten years ago, many observers suspected bias on the part of election officials responsible for the recount, including Florida Secretary of State Katherine Harris.  In over 30 states, the chief election official – usually the secretary of state – is still elected as the candidate of one of the major parties.  This creates an inherent conflict of interest between election officials’ duty to discharge their duties to all citizens and their own personal and political interests.

It has been almost ten years since the disputed election that gave rise to Bush v. Gore, the Help America Vote Act of 2002 (HAVA), and a number of related election reforms in the states. In some respects, this has been a time of great progress. We have eliminated punch card voting machines and moved to statewide registration lists. We offer provisional ballots to voters who registered but don’t find their names on the list when they show up to vote. And the process has been made more convenient, with over 30% of Americans voting before election day through absentee and in-person early voting in 2008.

Notwithstanding these significant changes, a fundamental problem at the heart of the 2000 election debacle has yet to be solved. Ten years ago, many observers suspected bias on the part of election officials responsible for the recount, including Florida Secretary of State Katherine Harris as well as local election officials. Similar concerns surrounded the 2004 presidential election, particularly actions taken by Ohio’s Secretary of State Ken Blackwell – most infamously, the requirement that registration applications be on 80-pound paper weight. More recently, Republicans have raised concerns of partisan bias on the part of Democratic election officials, including Minnesota’s Secretary of State in the contested U.S. Senate election in 2008.

Whether or not these officials have acted based on partisan bias is impossible to know for sure. What can be said with confidence is that conflicts of interest are a pervasive problem in U.S. election administration. In over 30 states, the chief election official – usually the secretary of state – is elected as the candidate of one of the major parties. And in most of the remaining states, the chief election official is selected by a party-affiliated official, usually the state’s governor. Both systems create an inherent conflict of interest between election officials’ duty to discharge their duties to all citizens and their own personal and political interests. The situation is not much better at the local level. Party-affiliated election officials run election in almost half of the local election jurisdictions in the U.S.

This state of affairs is directly contrary to an emerging international consensus that election administrators should be insulated from partisan politics. According to the influential European Commission for Democracy Through Law: “Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results.” For the most part, the persons and institutions running American elections lack such impartiality and independence.

Recognizing this conflict of interest is the easy part; solving the problem is much more difficult. Bipartisan boards can also be dysfunctional too, as my colleague Ned Foley has noted with reference to New York’s recent experience. The best American model is Wisconsin’s Government Accountability Board, which consists of retired judges selected in a way that is designed to promote impartiality. Other countries, including Canada, Australia, and India, have election administration bodies insulated from partisan politics that might also serve as a model for reform in the U.S.

Unfortunately, it is not realistic to expect many states to replace party-affiliated chief election officials with more independent institutions. The party that controls that office – or that is poised to do so – can be expected to oppose such reform. In some states, both major parties will oppose institutional reform, since it takes away an elected office for which their candidates may run.

Moreover, even if we could insulate election officials from partisan politics, the institutions responsible for making election laws are no model of impartiality. While there are a handful of federal laws that govern election, including HAVA, most of the rules regarding voter registration, voting technology, provisional ballots, absentee voting, voter identification, and recounts are the product of state law. When one party controls the state legislative process and enacts laws making it more difficult for some people to vote or have their votes counted, there is reason to worry. The most notable examples in recent years are the Indiana and Georgia laws requiring voters to present government-issued photo ID, despite the paucity of evidence showing voter impersonation to be a serious problem.

Partisanship is thus a spectre haunting the making of election laws, as well as their implementation. With the increased polarization of American politics, these concerns have never been more serious. This year, 23 states will have partisan elections for the state’s chief election official. Control over the state legislature and Governor’s office will also be a stake in a number of states. There has been a fair amount of attention to the impact that this year’s elections will have on the forthcoming round of redistricting. Less noticed is the fact that this election will dictate which party controls the machinery of elections in many swing states.

Of particular concern is that states will move to impose more aggressive proof-of-citizenship requirements that may impede participation by eligible voters. In 2005, Ohio enacted a law requiring naturalized citizens to produce a certificate of naturalization if challenged at the polls. (Disclosure: I was part of the legal team that successfully sued to stop this law.) And long before making news with its recent immigration law, Arizona enacted a stringent proof-of-citizenship law that is the subject of ongoing litigation. More recently, Georgia adopted a controversial voter verification program, to which the U.S. Department of Justice originally objected on the ground that it would have an adverse impact on minority voters – though it ultimately abandoned its objection, perhaps to avoid a constitutional challenge to Section 5 of the Voting Rights Act.

Exaggerating voter fraud, especially when it comes to immigrants, has become a cottage industry in some quarters, and a convenient excuse to make it more difficult for some citizens to register and vote. Overly restrictive rules for voter registration and verification can be expected to have a negative impact on some groups, including Latino and Asian American citizens who already have low turnout rates.

What is the solution? While there are no easy answers, the pervasive partisanship in the making and implementation of election laws necessitates close judicial oversight of elections. Though some have complained that about the increase in election-related litigation since 2000, the reality is that the federal courts are the government institution most insulated from partisan politics. Accordingly, they have a vital role to play in policing election administration. Because access to federal courts is essential, they should be generous in allowing a private right of action in cases alleging a violation of federal election laws, as I argue in a forthcoming article. Courts should also closely scrutinize laws and practices alleged to have a disparate impact on certain groups of voters, including racial and ethnic minorities.

In the long run, the United States needs to move toward electoral institutions that are insulated from partisan politics, as is the norm in most other democracies. In the short run, however, such reforms are not likely. It is therefore essential that courts play an active role in checking partisan election administration, especially when it comes to laws and practices likely to have a disparate impact on poor and minority voters.

By Steven F. Huefner

Last Saturday marked the 45th day before the November 2 election, the new deadline under a federal law passed last year for sending ballots to military and overseas voters. This is a substantial improvement in the law protecting the voting opportunities of military and overseas voters, but precisely how well these voters will be served, both by the requirements of the new governing law itself, and as a matter of the implementation of that law, merits close attention over the next two months.

Last week marked not only the end of this year’s primary election season, but also the date when, under a new provision of federal law, states were required to send absentee ballots for the upcoming federal elections to U.S. military and overseas citizens. Specifically, last Saturday, September 18, was the 45^th day prior to the November 2 general election. Under the Military and Overseas Voter Empowerment Act (“MOVE”), which Congress passed in 2009, the 45^th day before a federal election is the deadline (except in a handful of states that recently received a waiver of this requirement) for sending absentee ballots to voters covered by the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”). This is a substantial improvement in the law protecting the voting opportunities of military and overseas voters, but precisely how well these voters are served, both by the requirements of the new governing law itself, and as a matter of the implementation of that law, merits close attention over the next two months.

U.S. military personnel and overseas civilians, who are collectively estimated to constitute approximately six million potential voters, have long struggled with greater voting challenges than most absentee voters face. These challenges reflect both the high degree of transiency of these citizens, as well as the difficulties of delivering mail to and from remote locations around the globe. Although military voters have tended to register to vote at rates higher than those of the general population, their voting participation rates have usually been dramatically lower. For some of these potential voters, blank ballots may never arrive, or may arrive too late to be timely cast, or may be timely cast but returned too late to be counted. Other voters may find the process of applying for an absentee ballot from abroad too complicated, or may have difficulty getting information about candidates and issues. In its 2009 study “No Time to Vote,” the Pew Center on the States found that more than one third of U.S. states do not provide enough time for military voters abroad to reliably cast their ballots, and that half of the states needed to improve their absentee balloting processes for these voters.

The MOVE Act seeks to address some of the difficulties facing military and overseas voters in part by mandating that states provide these voters a minimum 45-day time period for the round-trip that begins when a blank ballot is sent to a voter and ends when a voted ballot is returned to an election official. In addition, the act requires states to establish electronic means for voters to register to vote and to apply for an absentee ballot, as well as electronic means for election officials to send voters the blank absentee ballot itself. The act does not require states to permit voters to cast their absentee ballot electronically (although a handful of states have independently begun to permit some limited electronic voting, even if it is just accepting a faxed version of a paper ballot in some special circumstances). MOVE also prohibits the imposition of notarization requirements, which can be particularly onerous in some foreign jurisdictions, on ballots cast by military and overseas voters.

Last year’s MOVE Act is but the latest in a series of congressional efforts over many decades to reduce the challenges and to improve the absentee balloting process for military and U.S. citizens abroad. MOVE itself was an amendment to UOCAVA, a 1986 measure that established special voting rights and protections for military service members, their families, and U.S. civilians abroad. Yet notwithstanding the many previous federal efforts, difficulties for military and overseas voters have persisted, in large part because U.S. elections are conducted at the state and local level under procedures that vary widely from jurisdiction to jurisdiction. This panoply of divergent requirements and processes has complicated the efforts of military voting assistance officers, State Department officials, and non-governmental organizations to help individual voters.

Because of these difficulties, for the past two years the Uniform Law Commission (“ULC,” also known as the National Conference of Commissioners on Uniform State Laws) has been drafting a uniform state law for military and overseas voters. That effort concluded earlier this summer with the ULC’s approval of the Uniform Military and Overseas Voters Act (“UMOVA”). [Disclosure: I served as the Reporter for the ULC drafting committee that drafted UMOVA.] A copy of UMOVA is available here, and state legislatures are now beginning to consider adopting this act. While building upon existing federal law in the area, UMOVA also would extend protection to state and local elections not held in conjunction with the federal elections that MOVE and UOCAVA cover, and would provide additional uniformity in the voting process for military and overseas voters across the states.

Obviously, no state will adopt UMOVA in time for it to affect the November 2010 election. Instead, improvements this year in the participation of military and overseas voters are most likely to come from individual state responses to last year’s MOVE Act. But regardless of how well state efforts to become MOVE compliant succeed in improving the 2010 voting experience of UOCAVA voters, the 2010 election is likely to establish that UMOVA deserves to be widely enacted across the U.S. for future elections.

Among other things, while MOVE’s 45-day requirement surely will improve the voting participation rate of many UOCAVA voters, it does not apply to non-federal elections, as UMOVA would. In addition, although the 45-day time period will be a substantial improvement in some states, even 45 days may not always be enough for some potential voters. Indeed, the extent to which the 45-day period is sufficient will deserve careful monitoring during this election. UMOVA would extend this time period by allowing ballots cast before Election Day to reach local election officials after Election Day, as long as they are received in time to be included in the local canvass. This is an accommodation that several states have already made in litigation or in negotiation with the U.S. Department of Justice, and standardizing this practice across all states would enfranchise additional voters.

The MOVE Act’s centerpiece, its 45-day requirement, itself reflects another accommodation between the desire to fully enfranchise military service personnel, on the one hand, and some of the logistical challenges that election officials face in conducting an election, on the other, as well as the political realities of many states’ existing primary election calendars. Until the official canvass (and any potential recounts and contests) of the primary election is complete, local election jurisdictions cannot finalize their general election ballots. Thus, it would have been problematic for a state still tallying the official results of its primary election from last Tuesday to send out absentee ballots last Saturday. Accordingly, complying with the 45-day requirement demands that a state’s primary election occur at least two months before the general election, and ideally earlier than that. (Although the fact that ballots can be transmitted electronically means not only that they can be available to the voter almost immediately after the ballot content and style are finalized, without the delays typically associated with mail delivery, but also that the time between primary election and absentee ballot distribution may be somewhat reduced, without the need to wait for ballots to be printed.)

But how well is this accommodation working? As this first election under MOVE unfolds, a number of questions about the 45-day minimum deserve attention. The threshold question, immediately pertinent, is whether ballots are already available for these voters? Are states that did not request a waiver of the 45-day deadline in fact complying with the deadline? If not, why not? In the four states (Alaska, Colorado, Hawaii, and Wisconsin, along with the District of Columbia and the U.S. Virgin Islands) that sought a waiver this year but were denied it, what is happening to protect these voters? In the five states (Delaware, Massachusetts, New York, Rhode Island, and Washington) that received a waiver of this requirement for this election, will they be able to comply with the 45-day requirement in 2012?

Beyond these questions about the round-trip time requirement, many other questions also are worth considering in this first MOVE election: How well are the electronic methods of transmitting ballot applications and blank ballots working? Are voters better able to get the information and assistance they need? Can they complete the ballot and accompanying materials successfully? Are they in fact casting a ballot that ultimately is counted? If not, why not? Will enforcing their participation rights, particularly in a close election, eventually become a matter of litigation?

In short, the voting experiences of military and overseas voters deserve careful attention in the federal midterm elections now underway. Between now and mid-November there likely will be multiple opportunities to continue to reflect on how to further facilitate these voters’ participation. This reflection may confirm that the MOVE Act framework is sensible and therefore worth extending to state and local elections. It also may suggest how, for purposes of protecting this particularly deserving subset of the American electorate, federal law alone remains less effective than an effort to develop a more uniform voting process for these voters in every state, as UMOVA seeks to do. Given that elections themselves are state rather than federal undertakings, the value of additional state control over this process should not come as a surprise.

By Daniel P. Tokaji

On Wednesday of last week, private citizens and a private organization in Kinston, North Carolina filed a complaint challenging the constitutionality of Section 5 of the Voting Rights Act. This case, LaRoque v. Holder, follows last year’s U.S. Supreme Court decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), which raised questions about Section 5’s constitutionality but ultimately avoided deciding the question.

Plaintiffs in LaRoque are also unlikely to secure a determination of Section 5’s constitutionality, though for different reasons than in NAMUDNO. There are two barriers to the federal district court deciding the constitutional issue. The first is that plaintiffs probably don’t meet the prudential requirements for standing. The second barrier – even more problematic for plaintiffs – is that they lack a private cause of action to challenge the statute’s constitutionality. If the district court follows existing law, it is difficult to see how it can reach the constitutional issue.

Do Plaintiffs Have Standing?

LaRoque arises from a referendum in Kinston, a municipality located in Lenoir County, North Carolina, which is covered by Section 5. Up until now, Kinston has conducted partisan elections for mayor and city council. The referendum, approved by voters in November 2008, would switch from partisan to nonpartisan elections for these offices. The U.S. Department of Justice (DOJ) objected to this change under Section 5, on the ground that the absence of party affiliation on the ballot would harm the ability of African American voters to elect their preferred candidates of choice.

The City of Kinston has not filed a district court action seeking judicial preclearance, as it’s entitled to do under Section 5. Instead, the city council has apparently decided to accept DOJ’s preclearance denial, voting not to take the matter to court. For this reason, the plaintiff isn’t heentity directly subject to Section 5, as was the case in NAMUDNO. Instead, plaintiffs are “voters, prospective candidates, and proponents of citizen referenda,” including the one they would like the city to implement (Complaint ¶ 1.)

The first problem with a federal court entertaining the case is standing. In order to have standing, plaintiffs must satisfy both the requirements of Article III and prudential requirements that the Supreme Court has imposed. Under Article III: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright (1984). It is possible that at least some of the Plaintiffs meet the three requirements encompassed by this standard: 1) an injury in fact, 2) causation, and 3) redressability.

Even assuming that the minimum requirements of Article III are satisfied, however, the LaRoque plaintiffs probably don’t have standing. For a federal court to hear this case, they must also meet the separate prudential standing requirements, the judicially “self-imposed limits” on the exercise of federal jurisdiction. As a general rule, prudential standing bars the assertion of a right by a third party – i.e., by someone other than the rightsholder. As the Court put it in Elk Grove v. Newdow (2004), there’s a “general prohibition on a litigant’s raising another person’s legal rights.” To the extent there is a rightsholder in this case, it’s not the private individuals and group that brought suit, but rather the City of Kinston.

There are exceptions to the general bar on a litigant asserting another person’s legal rights, but it’s doubtful that they apply here. The Court has allowed third-party standing, where there’s a special relationship between the would-be plaintiff and the rightsholder, and where there’s a genuine obstacle to the rightsholder asserting his or her own rights. A paradigmatic example of a special relationship is that between a doctor and a patient seeking contraception or an abortion, as in Singleton v. Wulff (1976). An example of a genuine obstacle to the rightsholder asserting his or her own rights is NAACP v. Alabama (1958), in which the NAACP asserted the associational rights of its members who, for good reason, wished to remain anonymous.

In LaRoque, there appears no be no special relationship or genuine obstacle to the rightsholder making the constitutional claim Plaintiffs seek to assert. While Plaintiffs supported the referendum and want the city to implement it, this probably isn’t enough of a special relationship to overcome the general bar against third-party standing. Nor is there any genuine obstacle to the city asserting its own rights. The city is free to challenge the constitutionality of Section 5, if it chooses. There’s no obstacle to the city asserting its rights – it’s simply decided not to do so.

The fact that the city has apparently chosen not to sue provides an additional reason for denying prudential standing. In Elk Grove, the Court rejected third-part standing of a parent seeking to challenge the words “under God” in the Pledge of Allegiance, on the ground that the interests of the parent and child were “potentially in conflict.” It was doubtful, in that case, that Mr. Newdow had legal authority to speak for his daughter. In this case, the interests of the city and would-be plaintiffs appear to be not just “potentially” but actually in conflict, given Kinston’s decision not to challenge the preclearance denial or the constitutionality of Section 5. Accordingly, plaintiffs don’t seem to have prudential standing.

Do Plaintiffs Have a Right of Action?

Prudential standing isn’t the only problem in LaRoque. The second obstacle to the district court entertaining Plaintiffs’ constitutional claims is that they have no private right of action. Plaintiffs are private citizens and a group suing a federal official, the U.S. Attorney General, for allegedly violating the U.S. Constitution. They cite no federal statute that gives them a right to sue, and I don’t believe that one exists.

There’s no federal statute that generally confers a right of action on plaintiffs claiming that a federal official has violated their constitutional rights. Section 1983 gives a right of action to those claiming that a state or local official has violated their constitutional rights, but § 1983 doesn’t cover violations committed by federal officials.

Plaintiffs might assert that the Administrative Procedures Act (APA) allows them to challenge DOJ’s preclearance decisions, but the Supreme Court closed off that avenue in Morris v. Gressette (1977). In that case, the Court held that Section 5 precluded private plaintiffs from obtaining judicial review of the Attorney General’s preclearance decisions. It’s true that Morris dealt with a decision by the Attorney General not to object – rather than a decision to make an objection, as in LaRoque. But it’s hard to see why this should matter, for the purpose of APA reviewability, since Morris held that the preclearance scheme created by Congress precludes APA review.

In other contexts, the Supreme Court has implied a right of action on plaintiffs alleging a violation of their own constitutional rights. The leading case is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), an opinion by Justice Brennan that allowed a private plaintiff to bring a damages claim against federal agents who had allegedly conducted an unconstitutional search and arrest. In the decades since Bivens was decided, the Court has curtailed the availability of an implied right of action to challenge federal officials’ violation of constitutional rights. It has created an exception where there is an “alternative existing process” for protecting the right at issue and declined to extend Bivens beyond its core of protection for individual constitutional rights. More broadly, the Court has increasingly viewed the judicial implication of rights of action – under Bivens and in other contexts – with suspicion. As Justice Scalia has put it, with his own inimitable flair: “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action.” Correctional Services Corp. v. Malesko (2001) (Scalia, J., concurring).

It’s very hard to see how a right of action could be implied for the private plaintiffs in LaRoque. They can’t plausibly claim that their constitutional rights have been violated. The claim instead is that Congress has acted in access of its delegated powers. If there is a “victim” of this alleged constitutional violation, it’s Kinston and similarly situated state and local entities, by virtue of the unwarranted intrusion on their sovereignty. I can’t think of a case in which a cause of action has been implied in favor of private individuals under similar circumstances.

Because there is no statute that expressly confers a right of action upon them, the LaRoque Plaintiffs must persuade the courts to create one. For the district court to do so would be a stretch, one that runs contrary to the direction in which the Supreme Court has moved in recent decades.

Should Plaintiffs Be Able to Sue?

To this point, I have been examining whether the LaRoque plaintiffs can sue based on existing law on standing and private rights of action. Many people – myself included – believe that the Supreme Court has been too restrictive in these lines of cases, failing to provide access to federal court in circumstances where it’s warranted. Of course, Congress could certainly create a right of action for citizens like those in LaRoque, who wish to challenge a preclearance denial where the affected jurisdiction affected declines to do so (assuming there’s no Article III bar). Alternatively, the Supreme Court could change the law to allow an implied right of action in this sort of case.

Even for those of us who support a broadening of private rights of action, it’s questionable whether that’s appropriate in this case. After all, Kinston residents who want to see the referendum implemented do have a remedy. They can go to the city council and ask it to revisit the decision not to seek judicial preclearance – or, alternatively, try to persuade the city to bail out of coverage. Failing that, citizens can try to persuade voters that the city council’s decision was wrong and have councilmembers voted out of office.

Supporters of the referendum might counter that this course of action is unlikely, given that African Americans constitute a majority of Kinston’s registered voters. Were whites consistently outvoted in city elections, this might be a reasonable argument for creating a right of action. But according to the DOJ’s letter denying preclearance, blacks have actually been a minority of voters in most of the city’s recent elections. If that’s true, it’s hard to see a good reason to change existing law, and allow private plaintiffs like those in LaRoque to sue, contrary to the wishes of the affected government entity.

The Supreme Court stated in NAMUDNO that it believes there to be serious questions about whether Section 5 is constitutional. There will surely be a case that provides a suitable vehicle for raising that issue again. In my view, LaRoque isn’t that case.