2008 Key Questions for Key States

[You can access the original webpage HERE through the Internet Archive Wayback Machine. Unfortunately, the interactive mapping feature — which was the heart of the project — could not be preserved and does not appear to have been functional for quite some time. The error: “Adobe Flash Player is no longer supported”  shows up where the maps would have originally appeared.]

[PDFs of the report are accessible through the links below.]

The 2000 presidential contest was a disaster and, since then, disturbing election problems have occurred in Ohio, Colorado, Florida and elsewhere. Will the 2008 presidential election be similarly flawed, or will it go smoothly? To help answer this question, Election Law @ Moritz researched dozens of election law issues over 17 states, categorized the approach of each state, and plugged the data into a series of interactive maps and charts (see also our analysis of the states with the greatest risk of pre-election litigation going into November). The states were chosen based on our analysis of whether they might be critical to the result of the presidential election.

We divided the issues into ten groups: Institutional arrangements, voter registration/statewide database, challenges to voter eligibility, provisional voting, early and absentee voting, voting technology, polling place operations, ballot security, emergency preparedness, and post-election processes (counting, recounting and post-election lawsuits).

You can see an interactive map with information about any of these topics, as well as the executive summary of the whole project, by clicking below. You can also compare research on multiple issues across multiple states by using this interactive chart feature.

This project was funded by a generous grant from the JEHT Foundation. Research was performed by EL@M staff members Nathan Cemenska and Sarah Cherry, as well as Moritz student Caryn Kaufman.

2008 Key Questions for Key States

Special Features

  • Compare States
    • This feature allows the user to compare the election laws of up to five states against one another using an interactive chart. This chart is distinct from the interactive maps that show the answers to only one election law question per map.
  • Pre-election litigation risk assessment
    • We looked at 17 states to try to determine the risk of pre-election day litigation occurring in each of them. This map shows that four states have a high risk of litigation, four states have a low risk, and the rest are somewhere in between.
  • See Complete Information for a State
    • This map provides direct links to the complete information that was researched by Election Law @ Moritz for any individual state.
  • State-Specific Reports

Institutional Arrangements

  • State Chief Election Authorities
    • In 2000, some alleged that Florida’s Republican Secretary of State could not be trusted to administer elections fairly. This chart shows that elected Republicans run elections in 16 states, and appointed Republicans in three. Elected Democrats run elections in fourteen states, and appointed Democrats in five. Appointed non-party individuals or boards control elections in the remaining 12 states.
  • State High Court Composition
    • In the 2000 Presidential litigation, some alleged that Florida’s heavily Democratic Supreme Court was too biased to render a fair result. This chart shows that Republicans have a one-vote majority on five states’ top courts, and a heavy majority in five more. Democrats have a one-vote majority in six states, and a heavy majority in six as well. Twenty-five states select justices by appointment. The remaining states select by election.
  • Local Administrator Training
    • This map shows that there is a lot of variation in how much training local election officials must receive to comply with the law. Some states do not require training at all.
  • Who tallies precinct results?
    • This map identifies the entity that adds up all the votes from various polling places within a local jurisdiction. Some states require that the entity have at least some representation from the minority political party, but other states have no such constraints.
  • Who counts provisional ballots?
    • This map shows the nature of the local-level entity that counts provisional ballots. Sometimes this type of entity is required to have at least some representation from the minority political party, but other times there are no such constraints.
  • Who performs state canvass?
    • This map shows the nature of the state-level entity that adds up all the votes obtained from the various local jurisdictions. Some states require at least some representation for the minority political party within this entity, but there are no such constraints in other states.
  • Local Administrator
    • This map shows whether local election officials are elected or appointed and whether they administer elections on a county or municipal level.
  • Local Administrators’ Party Affiliation
    • This map shows whether local administrators in 17 important states lean D or R. In some states, it was impossible to determine.

Voter Registration

  • Registration Deadline
    • This map shows that most states require voters to register at least 21 days before an election to be entitled to vote in it. However, a few states permit voters to register even on election day itself.
  • Notice of Registration Error
    • This map shows that all states send out notice to people who have submitted voter registration applications when those applications are incomplete and cannot be processed without further information.
  • Opportunity to Correct after Registration Deadline
    • This map shows that most states allow voters to submit corrections to flawed voter registration applications after the normal voter registration deadline, provided that the original application was submitted before the deadline. In some states, it depends on what type of mistake was made.
  • HAVA matching standards
    • HAVA asks states to attempt to match personal information contained on incoming voter registration applications against information contained in external government databases. This map shows that most states use a hybrid standard that requires an exact match with information contained in federal Social Security Administration databases, but use an easier standard when it comes to matching against state motor vehicle databases.
  • Inability to Verify
    • HAVA asks states to attempt to match personal information contained on incoming voter registration applications against information contained in external government databases. But what happens if that matching process fails? This map shows that most states still permit the voter to cast a regular ballot as long as he or she can present proper ID at the polls.

Challenges

  • Pre-election challenges
    • This map shows that most states permit voters to challenge the eligibility of another voter by filing papers with local election officials prior to election day.
  • Election day challenges
    • This map shows that most states permit voters or poll workers to challenge the eligibility of other voters when they appear at the polls on election day.

Provisional Ballots

  • Provisional ballots – name not in poll book
    • This map shows the general rule that applies to deciding whether to count provisional ballots cast by voters whose names were not in the poll book. The general rule is that the ballots should be counted if election officials find that the voter was registered and eligible.
  • Provisional ballots – ballot cast in wrong precinct
    • This map shows the rules that govern whether to count provisional ballots when they are cast in the wrong precinct. Most states will not count any of the votes contained on those ballots, but some states will count at least some of them.
  • Provisional ballot casting rate – 2006
    • This map shows what percentage of ballots cast at polls were provisional ballots in 2006. Colorado and Ohio have the highest rates of provisional voting.
  • Provisional ballot counting rate – 2006
    • This map shows what percentage of provisional ballots in each state was counted in 2006. Ohio, Washington and Colorado counted a high percentage of provisional ballots, while Michigan counted hardly any.

Early and Absentee Voting

  • Convenience voting
    • Voting has become easier in recent years as states adopted convenient options like early voting and made absentee voting more available. This map shows what options are available in each state.

Voting Technology

  • Voting Technology
    • This map shows that most of the 17 states we surveyed primarily use optical scan voting equipment, although a handful of states use touchscreens or a combination of touchscreens and optical scanners.
  • Does state law require a VVPAT?
    • This map shows whether touchscreen voting machines in each state must be equipped with a voter verified paper audit trail.

Polling Place Operations

  • Who are poll workers?
    • This map shows that most states require all teams of poll workers have at least one member of the minority political party. However, Pennsylvania poll workers are elected, and none of them need to be of the minority.
  • Poll worker training
    • This map shows that poll worker training requirements vary a lot across states. Some states require training before every election, while others do not require training at all.
  • Polling hours extensions
    • If a candidate seeks to extend the hours of voting on election day due to bad weather, high turnout, or other reasons, will the effort be successful? This map shows that the black-letter law in most states fails to offer any real answers to this question. A few states, however, allow election administrators or the executive to extend voting, while other states prohibit such extensions.
  • Polling place closing times – local times
    • This map lays out the closing times based on the local time in each state. Some New Hampshire polls close at 7:00 PM while others close at 8:00 PM. The following states span two time zones: Indiana, Kentucky, Tennessee, Florida, Texas, Kansas, Nebraska, South Dakota, North Dakota Idaho and Oregon. Parts of Arizona do not observe daylight savings time but daylight savings time ends on Nov. 2, 2008, so all of Arizona will be on Mountain time.
  • Polling place closing times – by Eastern time zone
    • This map lays out the closing times based on the Eastern time zone. Some New Hampshire polls close at 7:00 PM while others close at 8:00 PM. The following states span two time zones: Indiana, Kentucky, Tennessee, Florida, Texas, Kansas, Nebraska, South Dakota, North Dakota, Idaho and Oregon. Those states are classified by their later closing time. For example, most polls in Texas close at 8:00 PM Eastern time but all of the polls there will be closed by 9:00 PM Eastern time.

Ballot Security

  • Voter ID
    • This map shows that voter ID requirements vary a lot across states. Pursuant to the minimum security requirements of HAVA, many states only require non-photo ID and only require it of first-time voters who register by mail. Other states require photo ID of everyone.
  • Consequences of failure to present ID
    • This map shows that a lot of states provide at least one way for voters to cast a regular ballot even when they do not have the required ID.
  • Follow-up required of voter
    • Sometimes when voters do not have the required ID, they have to cast a provisional ballot. This map shows that in some states it is necessary to return to the offices of the local election official with ID in order to ensure the ballot will count. In other states, this is not necessary.

Emergency Preparedness

  • Natural Disasters or Emergencies
    • Hurricanes, snow storms and other sudden events have interfered with elections in many states. However, this map shows that eight states do not have any legal standards that give guidance in these types of events. The rest of the states have at least some basic law on the subject.
  • Ballot Shortages
    • This map shows that many states require poll workers to contact local election officials when they anticipate running out of ballots. Other states permit poll workers to fashion emergency ballots. Some states have no applicable law at all.
  • What if touchscreens break down?
    • This map shows that different states have different approaches to dealing with touchscreen voting machines that malfunction in the polling place. In a few states, there is no law addressing these issues.

Post-Election Processes

  • State certification deadline
    • This map shows the deadline by which the statewide canvassing authority must declare the official results of a statewide election.
  • Election contest deadline
    • This map shows the deadline that candidates must meet if they wish to contest the result of an election. Presidential election contests are not permitted in some states.
  • Local count deadline
    • This map identifies the deadline by which local election officials must certify official local voting results to the state’s chief election authority so that they can be combined with the voting results from other local jurisdictions.
  • Audit method
    • This map shows that most states require officials to manually audit the accuracy of voting machines by looking directly at ballots or touchscreen paper trails. However, a few states permit the use of special machines in auditing the vote.
  • Audit scope
    • This map shows the percentage of ballots that must be audited in each state to help ensure the accuracy of voting machines.
  • Candidate-requested recounts
    • This map shows that most states grant desiring candidates a recount upon request. However, a few states will only grant this type of request if the margin of victory comes within a certain percentage.
  • Administrative recounts
    • This map shows that most states permit election officials at either the state or local level to order recounts when they determine there has been a problem. The law in a few states does not explicitly authorize such recounts.
  • Automatic recounts
    • This map shows for each state the threshold margin of victory that would trigger an automatic recount. Some states do not have automatic recounts.
  • Definition of a vote
    • This map shows that most states have fairly detailed rules that determine what types of ballot marks should count as votes and what types should not. However, the law in some states simply directs officials to count the ballot if officials are able to discern voter intent.
  • Election Contest Scenario #1: Unverified Ballots
    • In November, 2006 in Cuyahoga County, Ohio, about 12,000 voters were allowed to vote without first signing in. If the margin of victory had been closer, courts might have invalidated the election and ordered a new one. However, courts in other states take different approaches, including randomly invalidating ballots to eliminate the excess. This map breaks down these approaches.
  • Election Contest Scenario #2: Provisional Ballots with Technical Mistakes
    • Provisional voters generally must complete a form providing information that officials use to determine whether the voters are registered and eligible. However, what if a voter omits a piece of information that may be helpful, but is not strictly necessary, for officials to confirm or deny registration? Will the ballot be counted? As this map shows, in most states the law is insufficiently developed to say for sure.
  • What Court Would Hear a Presidential Contest?
    • Some people believe that the composition of the United States Supreme Court changed the result of the 2000 presidential election litigation. But as this chart shows, the starting point for such litigation depends on the law of each state. State supreme courts hear Presidential election contests primarily only on appeal, except for in five states where they assume the role of a trial court. It is unclear in five states what court would have jurisdiction, and six states do not hear Presidential election contests at all.
  • Who Performs Presidential Recounts?
    • In 2000, opinions differed on what was necessary for a ballot to count as a valid vote. This map shows most states mandate recounts be conducted by bipartisan teams to guard against bias. However, 13 states have no such requirement, and three allow recounts only in election contests, where rules may be prescribed by the court. Finally, three states do not allow Presidential recounts at all.