Election Administration

Counting Ballots Pursuant to Law is Not Stealing an Election

by

by Steven F. Huefner

Our election systems are deliberately designed to require careful counting of many additional ballots for several days after unofficial results are announced on Election Night.

It has been less than 72 hours since polls closed on the 2018 congressional midterm elections, and for candidates and their supporters who do not yet know the outcome of close contests, patience – not unsubstantiated or false allegations of election rigging – MUST be the order of the day.

As any close observer of U.S. elections knows, once the polls close each state then conducts a carefully structured process of tallying the votes. Critically, as any close observer also knows, the Election Night “results” are not only unofficial, they are also still entirely preliminary and will almost inevitably change, perhaps considerably. With the dramatic rise in the use of mail-in absentee voting over the past decade, election officials increasingly must deal after Election Day with a significant volume of paper ballots that have arrived around Election Day (each state sets its own rules for when the ballots must arrive). Meanwhile, provisional ballots also require individual review and processing after Election Day. These post-election processes are not some mere afterthought; rather, they are critical components of determining the official election outcome, and they must be respected as essential to the overall integrity of the election.

Although these processes occur as part of every election, they understandably do not attract much attention when the unofficial results reported on Election Night are not close. But for election officials, it is a routine part of their duties after every election to undertake the laborious and thoroughgoing canvassing processes now occurring everywhere, not just in states like Florida, Georgia, and Arizona (where some high-profile races are quite close or essentially even). In every election, these processes need to occur in ways that promote public trust, and election officials must be required to adhere to the law that governs these processes. (The American Law Institute has just published an extensive set of legal principles and related commentary designed to promote the fair resolution of disputed elections, developed after several years of collaborative work with a team of expert advisers, in which my Moritz colleague Ned Foley and I also participated as the project’s “Reporters.”) Correspondingly, candidates and the general public should be able to insist that election officials perform these duties properly.

Thus, it is beyond unseemly – indeed, it is downright destructive of public trust in our elections, and fundamentally inconsistent with the health of our representative democracy – for candidates to assert or imply that the reason that Election Night results have been changing in the past few days is because election officials have engaged in some sort of irregular or unlawful conduct to manipulate the results. For anyone who cares about democratic institutions, the responsible position is to let the counting proceed according to state law, and then if necessary to take advantage of recount, audit, and contest processes to ascertain whether any defects occurred in these processes.

We can revisit for future elections whether our system has come to rely too heavily on counting ballots days after Election Night. But that is a policy question for a later date, and all ballots cast in this year’s elections must be scrupulously counted according to the laws established for this year’s elections. Leaders of both parties, with the support of all concerned citizens, ought to condemn any effort to undermine this essential stage of the electoral process.

Accuracy About Voting Needed on Both Sides of Debate

by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by

By Steven F. Huefner

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voters in Line When Polls Close Get to Vote

by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This post appeared originally at Prawfsblawg.

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

by

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.

 

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

by

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.

A Tale of Two Swing States

by

Pennsylvania should prepare itself for the kind of “voting wars” litigation that Ohio has experienced in recent years, including a claim that the state’s current opportunities to cast a ballot impose a disproportionate burden on the state’s African-American voters.

Since 2004, Ohio has been at the epicenter of the so-called “voting wars” because of the pivotal role the state played in George W. Bush’s reelection victory over John Kerry. Given the possibility that a presidential election might again hinge upon which candidate prevails in the state, over the last dozen years both Democrats and Republicans have pursued litigation in an effort to adjust Ohio’s voting rules in ways that the parties perceive to be favorable to their candidates. On the topic of provisional voting alone, there has been at least one major lawsuit actively litigated in every federal election year since it became clear that a close presidential election—like Bush-Kerry itself—might turn on which of Ohio’s disputable provisional ballots end up being counted.

Pennsylvania, by contrast, has largely escaped the intensity of electoral litigation to which Ohio has been subjected. To be sure, when Pennsylvania adopted a new voter identification law in 2012, it provoked lawsuits and, indeed, was invalidated by the state’s judiciary. Also, fears about the reliability of Pennsylvania’s voting machines in 2008 prompted the NAACP to seek, and a federal court to grant, an emergency injunction requiring the state to supply precincts with backup paper ballots. Still, for the most part, Pennsylvania’s voting procedures have not been subjected to nearly the same degree of judicial scrutiny as have Ohio’s during the past decade.

Now we have a report from Dave Wasserman at the 538 website that Pennsylvania is most likely to be the state that tips the Electoral College for the winning candidate. I’m sure Ohio would be happy to share the spotlight that comes from having this “swingiest” of swing-state status. But is Pennsylvania ready for it? One advantage of all the litigation that Ohio has experienced over the last decade is that its electoral system has been tested. Sure, there are new problems that could emerge in Ohio this November, but many of the ambiguities concerning how to count certain categories of ballots in particular circumstances have been clarified through judicial resolution. Because Pennsylvania has not been put through the same type of clarifying process, there potentially will be more available grounds for disputation if the presidential election there is close enough and, as 538 warns, the White House hangs in the balance.

Are Currently Available Voting Procedures Discriminatory?

One issue that is presently under litigation in Ohio, and which Pennsylvania has not yet faced, is whether the state’s current rules concerning the opportunities available for registering to vote and casting a ballot either discriminate on the basis of race or otherwise deny citizens the equal protection of the laws. In Ohio, the current law is that voters must register 30 days in advance of Election Day and, having done so, then may cast a ballot in one of three ways: first, under a regime of “no excuse” absentee voting, all registered voters may choose to cast an absentee ballot and deliver it by mail (or, if they prefer, drop it off at their local board of elections); second, under a regime of early in-person voting that begins 27 days before Election Day (on October 12 in 2016), all registered voters may choose to go to a designated early voting center in their county on any of the 23 days in which this early voting is available; and third, under a regime of traditional neighborhood-based precinct voting, all registered voters may choose to cast their ballot on Election Day itself at the polling place for their local precinct. In Pennsylvania, current law also requires that voters register 30 days in advance, and all registered voters also may cast their ballots on Election Day at a traditional neighborhood polling place for their particular precinct, but Pennsylvania currently does not offer any in-person early voting, and Pennsylvania also restricts absentee voting to those voters who satisfy a limited list of justified reasons for being unable to vote at their local precinct on Election Day (like military service, disability, and business travel).

Ohio’s current law is being challenged as racially discriminatory and a violation of equal protection because it is less expansive in its provisions than a previous Ohio law, under which early voting started 35 days before Election Day and, as a result, provided a five-day period—dubbed “Golden Week”—in which it was possible to register to vote and cast an early in-person ballot at the same place at the same time.   In a recent ruling after a trial on the merits of these claims, however, the federal court found that Ohio’s change in its law was not motivated by racial discrimination. [See opinion at 115.] Therefore, under longstanding constitutional doctrine, which requires a racially discriminatory intent to prevail, it is impossible to claim that Ohio’s law is unconstitutional race discrimination. [See Washington v. Davis, 426 U.S. 229 (1976).] Laws that are racially discriminatory in effect, but not intent, may violate federal statutory laws, and we will consider whether Ohio’s voting rules have a racially discriminatory effect that violates the federal Voting Rights Act. In the absence of a racially discriminatory intent, however, the presence of a racially discriminatory effect does not violate either the Fourteenth or Fifteenth Amendment. [See Rogers v. Lodge, 458 U.S. 613 (1982) (applying the rule of Washington v. Davis to voting cases).]

Equal Protection Analysis

             Before turning to the Voting Rights Act, we should consider a separate equal protection challenge to Ohio’s current voting, one not based on a claim of race discrimination. Under jurisprudence dating back to the 1960s, the differential treatment of citizens with respect to the opportunity to vote calls for special judicial scrutiny given the fundamental importance of voting in a democracy. Thus, as the Supreme Court held in the canonical case of Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the imposition of a poll tax violates the Constitution’s equal protection clause insofar as it conditions the right to vote on having the financial resources to pay the tax. The Supreme Court applied this line of equal protection cases most recently in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), which involved Indiana’s voter identification law.

The plaintiffs in the pending Ohio case, which include the Ohio Democratic Party in the lead, have invoked this line of cases—known to lawyers as Anderson-Burdick after two intermediate cases in the line—to argue that Ohio’s current rules for registration and voting violate the Constitution’s equal protection clause. But it is difficult to see how this could be so. Ohio’s current rules requiring registration 30 days in advance of Election Day and providing three alternative methods of casting a ballot (again, no-excuse absentee voting, 23 available days of in-person early voting starting on October 12, and traditional precinct-based Election Day voting) apply equally to all citizens.

The plaintiffs say that Ohio’s elimination of Golden Week imposes a burden on those citizens who in the future would like to take advantage of the opportunity to register and vote at the same place at the same time. Whether or not it is appropriate to characterize the elimination of this convenience as a burden, it is hard to understand it as differentiating among voters and thus denying equal protection to any. No new voters get to take advantage of Golden Week any more. All are required to register 30 days in advance and then separately decide which of the three ways they would like to cast their ballots.

It is the most rudimentary requirement of equal protection jurisprudence that in order for the government to be found to be violating equal protection the government must be treating some persons differently than others.   This was true in the poll tax case: those who paid the poll tax were permitted by Virginia to vote; those who did not pay the poll tax were disenfranchised. Analytically, a similar differentiation among citizens existed in the Indiana voter ID case: those with proper ID were treated by the law differently—more favorably—than those without the proper ID. But no such differentiation among citizens appears to exist in the pending litigation over Ohio’s current rules for casting a ballot. Again, the same three ways of casting a ballot apply equally to all. An equal protection challenge to these current rules would seem to fail in this most basic respect: in terms of its availability of early voting, Ohio is not presently engaging in any differential treatment at all among its would-be voters.

To be sure, there may be some potential new Ohio voters who would find Golden Week to be an attractive option.   Of course, any potential new voter would prefer having that option added to other available options, without the loss of those other alternatives. Who would not prefer more choices to fewer?

Yes, but some would-be new voters really would like to take advantage of the extra convenience of simultaneous registration and voting that Golden Week offered. They have an especially strong preference for that form of convenience. Doesn’t the absence of Golden Week deny them equal protection? No. In providing its rules concerning voter registration and the casting of ballots, Ohio law is treating them just the same as other would-be voters. It is providing equal opportunity to all (although obviously not equally as generous as if the options also included Golden Week).

Consider this analogy. Suppose each summer the government offers Shakespeare in the Park. If the government charged the state-subsidized price of $5 per ticket, that would be a government rule that differentiated among individuals in terms of access to this government benefit. That differential treatment would trigger judicial scrutiny under equal protection analysis, although it likely would easily pass muster insofar as access to Shakespeare (while desirable) is not fundamental to democracy. Likewise, if the government required college students to show a valid student ID in order to take advantage of free admission to Shakespeare in the Park for all college students. This ID requirement would differentiate among those having and those not having the ID necessary to obtain free admission.

Suppose that for the summer of 2016 the government decides to offer four weeks of Shakespeare in the Park, starting Monday, August 1. Suppose, however, that there are some individuals who really wish the government would offer an additional week—the last week in July. Maybe these individuals are out of town on vacation the entire month of August and therefore cannot take advantage of Shakespeare in the Park if it is only in August, without an extra week in July. Even so, the government’s decision to limit Shakespeare in the Park to just four weeks in August would not be a denial of equal protection to these individuals. Rather, everyone would be entitled to attend Shakespeare in the Park on equal terms during the four weeks in August that the government provides it.

This equal treatment would be the same even if in previous summers the government operated five weeks of Shakespeare in the Park, with the last week of July included along with four weeks in August. And it would also be true even if in those previous summers one reason why some individuals really liked to attend Shakespeare in the Park during that last week in July, rather than in August, was because it so happened that during that week ArtsFest was also taking place in the same park. Thus, previously arts lovers could take advantage of the opportunity to view the ArtsFest exhibits on the same trip to the park that they watched Shakespeare. Limiting Shakespeare in the Park to four weeks in August, as planned for the upcoming summer, makes this “doubleheader” no longer possible. Even so, limiting Shakespeare in the Park to four weeks in August is not a denial of equal protection to anyone. Everyone still is entitled to attend Shakespeare in the Park during the four weeks of August, and everyone now must make two separate trips to the park if they want to see both ArtsFest and Shakespeare. In limiting Shakespeare in the Park to four weeks rather than five for upcoming summers, the government has not engaged in any differential treatment of individuals that would trigger even minimal “rational basis” judicial review for purposes of the Constitution’s equal protection analysis.

Voting is not Shakespeare in the Park, but the same analytic point applies. At a minimum, there needs to be differential treatment of individuals in order to trigger judicial review under equal protection analysis.   But Ohio’s decision to limit in-person early voting to four weeks rather than five, thereby eliminating simultaneous registration and voting, is not a differential treatment of anyone.

In the pending lawsuit, the federal district judge failed to consider this basic point. Instead, the judge jumped right into judicial scrutiny under so-called Anderson-Burdick balancing. But Anderson-Burdick balancing is part of equal protection analysis, and thus it requires differential treatment of individuals in the first place. (As Rick Hasen already has observed, the federal judge in the Ohio case also oddly conflated Anderson-Burdick balancing with the question of whether Ohio’s currently law has the effect, without the intent, of disproportionately disadvantaging African-American voters; in doing so, the judge apparently contravened the aforementioned longstanding doctrine that racially discriminatory effects in the absence of racially discriminatory intent are not unconstitutional under either the Fourteenth or Fifteenth Amendments.)

To my knowledge, consistent with this basic equal protection point, the U.S. Supreme Court has never applied the Anderson-Burdick inquiry in any circumstance that did not involve differential treatment of individuals with respect to the operation of the electoral process. As already indicated, both Harper (poll tax) and Crawford (voter ID)—the first and latest word respectively from the Court in this line of cases—involved the requisite differential treatment of individuals with respect to the entitlement to cast a ballot. Anderson involved a filing deadline for candidates to get on the ballot, thereby differentiating among candidates who did and did not meet the deadline. Burdick involved a prohibition against write-in candidates, and thus could be viewed either as a differentiation among candidates or a differentiation among the voters who wanted to cast ballots for them. In limiting a voter’s choice among candidates, the state law in Burdick also can be viewed as implicating distinctive Free Speech interests that are not at play in Ohio’s rule concerning the number of weeks available for in-person early voting, or in the current lack of overlap between early voting and the registration deadline.

In two cases from the 1970s, before both Anderson and Burdick, the Supreme Court considered the constitutionality of laws that imposed early deadlines on the right to vote.   In Dunn v. Blumstein, 405 U.S. 330 (1972), the Court invalidated a Tennessee law that, although providing for a 30-day registration deadline (like Ohio), required anyone attempting to register to have lived in Tennessee for a year. Then, a year later, in Rockefeller v. Rosario, 410 U.S. 752 (1973), the Court sustained a New York statute that required voters to affiliate with a political party 30 days in advance of a general election in order to be able to vote in the first party primary following that general election. (The current version of this New York law drew a lot of criticism this year insofar as it required independents to declare a party affiliation many months before New York’s hotly contested presidential primary between Hillary Clinton and Bernie Sanders.) Both of these laws can been seen as differentiating between those individuals who satisfy the applicable deadline and those who do not, and thus both of these Supreme Court decisions are consistent with basic Equal Protection analysis. In Dunn, the Court explicitly made this point:

Durational residence laws . . . divide residents into two classes, old residents and new residents, and discriminate against the latter to the extent of totally denying them the opportunity to vote. The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.

405 U.S. at 334-35. In Rockefeller, moreover, the Court there observed that New York’s party-affiliation deadline

did not absolutely disenfranchise the class to which the petitioners belong—newly registered voters who were eligible to enroll in a party before the previous general election. Rather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary.

410 U.S. at 757.

In this respect, the 30-day registration deadline in Ohio’s current law—considered by itself—can also be viewed as differentiating between those who meet and do not meet this deadline. But there is little doubt that this 30-day registration deadline would easily pass constitutional muster, given the Court’s precedents. See Marston v. Lewis, 410 U.S. 679 (1973) (rejecting an equal protection challenge to a 50-day registration deadline); Burson v. Fortson, 410 U.S. 686 (1973) (same).  In any event, it is not Ohio’s 30-day registration deadline about which plaintiffs complain in the current litigation; instead, it is Ohio’s current provision of early voting for a period of time that is not long enough to overlap with the time in which the registration window is still open. Yet the challenged aspect of Ohio’s current law, unlike the registration deadline itself, does not differentiate between anyone: it simply makes early voting available for the specified period of 23 days. One might try to say that this aspect of Ohio’s law differentiates between those who do and do not take advantage of this rather extensive period of early voting, but that would be like saying that the government’s decision to provide four weeks of Shakespeare in the Park differentiates between those who do and do not take advantage of this rather extensive theater opportunity.

To say that the government treats persons differently just by offering everyone an ample amount of Shakespeare would be to undermine a basic analytic precept of equal protection jurisprudence. Indeed, to provide something to everyone who shows up to receive it during the time when it is available would seem to satisfy the essence of equal treatment. (If one needs another example to confirm this fundamental point, imagine a municipal swimming pool at which anyone may swim during the time in which it is open between Memorial Day weekend and Labor Day weekend.   Is the city that invites everyone to swim during these available times really denying equal treatment to someone who would prefer to swim at the municipal pool before it opens on Memorial Day weekend?) Insofar as the pending Ohio case involves an equal protection challenge to the availability of early voting in the state, the same point would seem true. Thus, by jumping immediately to Anderson-Burdick, the federal district court in the pending Ohio case seems vulnerable to reversal on the basic ground that Anderson-Burdick does not apply since the case does not involve a differential treatment of would-be voters.

Voting Rights Act Analysis

To my mind, the Voting Rights Act issue in the pending Ohio case is more difficult to think through. That is because section two of the VRA, as revised by Congress in 1982, does not require the existence of differential treatment among voters on the basis of race, but instead imposes liability on a state whose uniform treatment of voters nevertheless results in black voters facing greater obstacles to casting a ballot than white voters. The exact text of section two, as amended, is as follows: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” (Emphasis added.) It might have been possible to interpret the phrase “denial or abridgement” narrowly to encompass only outright governmental impediments to the act of casting a ballot. But that possibility has been superseded by decades of Supreme Court jurisprudence, subsequently accepted by Congress in its revisions of the VRA, which apply this “results in . . . abridgement” language to the dilution of African-American voting power as a consequence of the particular way in which legislative districts are drawn during decennial reapportionments. Those district lines are not impediments to casting a ballot; nonetheless they can cause African-American voters to suffer inferior electoral opportunities compared to white voters.

Think, too, of this example: a particular town is residentially segregated, and the town’s only polling place is on the white side of town very far from the neighborhood where black voters live. There is no doubt that the government’s location of this sole polling place close to white voters and far from black voters, even if not motivated by intentional race discrimination, would be a “practice” that “results in . . . abridgement” of the right to vote based on race—or at least a court could so conclude after considering “the totality of circumstances,” as required by additional explicit language in the statute. Indeed, even Justices Thomas and Scalia, the two members of the Supreme Court who adopted the most restrictive interpretation of this language in the VRA, explicitly acknowledged that it would apply to this example: “the section thus covers all manner of registration requirements, the practices surrounding registration (including the selection of times and places where registration takes place and the selection of registrars), the locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process that might be manipulated to deny any citizen the right to cast a ballot and have it properly counted.” Holder v. Hall, 512 U.S. 874, 922 (1994) (Thomas, with Scalia, concurring in the judgment).

Note, too, that for the purpose of section two of the VRA, it matters not whether the location of the town’s sole polling place in a white neighborhood (and far removed from where black voters live) is a newly adopted “practice” or instead a longstanding one.   Either way, this practice violates VRA’s section two if the totality of the circumstances demonstrates that the polling place’s location “results in” black voters having more difficulty in casting a ballot than white voters (as would clearly seem to be the case from the rudimentary facts of this example). In this respect, section two of the VRA differs from the Act’s section five, which focuses on whether a change in a state’s voting practices causes a deterioration in the electoral opportunities of racial minorities compared to what those opportunities were prior to the change. Section five has been rendered inoperable by the Supreme Court’s decision in Shelby County v. Holder (2013), and in any event section five would not have applied to Ohio or Pennsylvania because neither state was among the “covered jurisdictions” governed by that particular provision of the VRA. Therefore, in considering whether the current voting practices in Ohio or Pennsylvania violate the VRA, only section two matters, and under section two what is relevant is not the state’s current practices compared to its previous ones, but instead whether the state’s current practices cause minority voters to face greater difficulty in casting a ballot than white voters. Section two’s focus on the present and future, rather than the past, however, means that a practice is not immunized from section two liability just because the practice is longstanding. “It’s been that way forever,” in other words, would be no defense in a section two lawsuit brought against a town with a single polling place in a white neighborhood far from where the town’s black voters live.

But the applicability of section two to “the location of polling places, the times polls are open, . . . and similar aspects of the voting process,” as Justices Thomas and Scalia put it, inevitably raises difficult line-drawing questions. Some states keep the polls open for twelve hours on Election Day, usually from 7 am to 7 pm. But other states are willing to keep the polls open for fourteen or even fifteen hours, from 6am to either 8 or 9 pm. Suppose it could be shown that in a state with only twelve hours of voting on Election Day black voters disproportionately face greater difficulties in getting to the polls than white voters—the principal reason being that black voters disproportionately have work or family constraints that prevent them from having the flexibility to get to the polls within the twelve-hour window—while having the extra two or three hours that other states provide would be an especially great benefit to minority voters. On the basis of this evidence, would the legal conclusion follow that a state with only twelve hours of voting on Election Day violates the VRA? Or would twelve hours be deemed enough, even if it were shown that African-American voters would especially benefit from having fourteen or fifteen hours? Congress presumably did not think it was requiring states to provide more than twelve hours of voting on Election Day when it amended the VRA in 1982 to incorporate the “results” test in section two, but it may be that regardless of congressional intent the 1982 amendment has that legal consequence.

What about the fact that Election Day is on Tuesday, not Saturday or Sunday? Suppose it also could be shown that holding Election Day on Tuesday, rather than Saturday or Sunday, disproportionately burdens black voters more than whites—because, again, blacks on the whole have less flexibility than whites in their weekly schedules. Would that mean that holding Election Day on Tuesday, rather than Saturday or Sunday, is a “practice” that “results in” abridging voting rights “on account of race,” as provided in VRA’s section two? It is hard to believe that Congress meant to make holding elections on Tuesdays vulnerable to a VRA challenge under the results test of section two, especially as Congress itself has set Tuesday as Election Day for federal elections. But it is also hard to identify a principled basis for protecting Tuesday-as-Election-Day from a finding of liability under the results test in VRA’s section two, at least if the evidence shows that holding elections on Tuesdays in fact has a disproportionately adverse impact on African-American voters.

These line-drawing questions seem very pertinent to evaluating the claim that Ohio’s current rules regarding voter registration and the casting of ballots violate VRA’s section two. The federal district court said that they do, because Ohio’s current rules entail an elimination of Golden Week, a practice that African-Americans disproportionately took advantage of when it existed. But recognizing the need to consider Ohio’s rules under section two rather than section five, the federal court also said that it was not applying the “retrogression” analysis applicable to section five claims. [See opinion at 97.] Yet it is difficult to square these two statements from the district court. If the court truly was not employing section five’s “retrogression” inquiry, then it should not matter that Ohio law previously contained Golden Week. What matters, instead, under section two is whether the current set of rules and practices “results in” African-American voters having less opportunity to cast a ballot than white voters.

Citing a since-vacated appellate opinion, the federal district judge (op. at 98) in the pending Ohio case asserted that the elimination of Golden Week was relevant to determining whether currently blacks have equal opportunities to vote as whites. But this assertion seems to be an analytic error. To see this point, consider again the analogy to the government’s provision of Shakespeare in the Park during four weeks in the summer. Suppose the question is whether blacks have equal opportunities to see Shakespeare during those four weeks as whites. For this purpose, the timing of this theater is the only relevant issue (not cost of the tickets, or the location of the particular park relative to where blacks and whites live, etc.) Suppose we have reason to think blacks on the whole are equally able to attend theater during the month of August as whites. In other words, there is no reason why blacks would face greater difficulty attending Shakespeare in the Park during these four weeks in August than whites would.  If this were the case, then we would say the government’s timing of its Shakespeare in the Park does not “result in” blacks having less opportunity to attend this theater than whites.

This conclusion would not change, it is important to recognize, just because blacks might have preferred more than whites would have for the government to offer its Shakespeare in the Park during the last week of July. And on this point it matters not whether the government did nor did not offer Shakespeare in the Park in July previously. (Suppose Ohio had not eliminated Golden Week, but blacks disproportionately would have utilized an additional second week of Golden Week; the fact that Ohio never provided that extra desirable week of simultaneous registration and voting would not cause the provision of one week of Golden Week to result in blacks having greater barriers to voting than whites during the single week of Golden Week.) Even if in previous summers the government provided a fifth week of Shakespeare in the Park during the last week of July, and even if blacks more than whites attended Shakespeare in the Park during this last week of July—and even if they did so because blacks more than whites enjoyed the possibility of seeing Shakespeare on the same trip to the park as viewing Artsfest—it does not follow that blacks have less opportunity than whites to attend Shakespeare in the Park in the upcoming summer when the government is now offering it only during four weeks in August. If it is still true that it is no more difficult for blacks than for whites to go to the park during these four weeks in August, then it does not become more difficult just because blacks more than whites found it preferable to see Shakespeare at the same time as Artsfest. Only on a retrogression analysis would the provision of four weeks of Shakespeare in the Park, rather than the previously available five weeks, become a discriminatory burden on black theater-goers. For the same reason, because VRA’s section 2 does not involve the retrogression analysis that belongs to section 5, the relevant inquiry is whether Ohio’s current provision of 23 days of in-person early voting makes it more difficult for blacks to vote than for whites to vote—not whether blacks more than whites would take advantage of an in-person early voting period that started even earlier.

With this analytical point now clarified, how does Ohio’s current law fare under section 2 analysis? According to US Census data, in 2014 voter turnout among Ohio’s black citizens (40.7%) was actually a little bit higher than among the state’s white citizens (40.2%, for “non-Hispanic whites” as the relevant comparison of majority-race voters). The 2014 election was held after Golden Week had been eliminated, and thus this data suggests that under Ohio’s current rules and practices for voter registration and the casting of ballots the state’s African-American citizens do not suffer disproportionate obstacles in the ability to vote compared to the state’s white citizens. In the previous sentence, the most important word is “suggests” because, as political scientists have observed, there are significant limitations to the US Census methodology that generates this data. Nonetheless, unless there is better data to rebut what the US Census numbers at least superficially suggest (and it is important to remember that plaintiffs bear the burden of proving wrongful “results” in a section two lawsuit), it presumptively appears that blacks citizens in Ohio have an equally effective ability to register and, using one of the state’s three available methods, to cast a vote as white citizens in Ohio. To be sure, African-American voters as a group might disfavor one of Ohio’s available methods of voting. (The district court found that blacks in Ohio tend to distrust absentee voting.) Likewise, African-American voters as a group might prefer a longer period of early voting, or might like to have the convenience of being able to simultaneously register and vote. But under the regime as it currently exists, Ohio’s black citizens do not appear to confront disproportionate obstacles to the casting of ballots that are not confronted by Ohio’s white citizens.

Yet if Ohio’s current regime violates section two of the VRA, as the federal district court ruled, then what of Pennsylvania’s current regime? The federal judge said that in evaluating Ohio’s regime under section two it is irrelevant what the voting rules and practices of other states may be. Not quite. Whatever legal principle leads to a conclusion that Ohio violates section two must also apply to all other states. After all, unlike section five of the VRA, section two governs all fifty states. Thus, if Ohio law violates section two, then we can ask whether according to the same interpretation of section two Pennsylvania law also violates section two?

Based on the conclusion of the federal judge in the Ohio case, Pennsylvania’s existing regime would seem to be extremely vulnerable. As we have seen, Pennsylvania provides much less opportunity to cast a ballot than Ohio: Pennsylvania lacks “no excuse” absentee voting and also lacks any in-person early voting. In other words, Pennsylvania voters without a valid reason for voting absentee are confined to casting a ballot on Election Day (and must have registered 30 days in advance to do so). The fact that this severely limited set of voting options is longstanding “practice” in Pennsylvania would be no defense to a section two challenge to that practice. Rather, the question would be whether this practice of severely limited options “results in” Pennsylvania’s African-American voters facing disproportionately greater difficulties in casting a ballot than the state’s white voters. In this regard, it is worth observing that the same US Census data for the 2014 election shows voter turnout for Pennsylvania’s black citizens to be only 37.1%, significantly lower than the 42.1% turnout rate for Pennsylvania’s white citizens.

Thus, it would seem that Pennsylvania should be even more vulnerable to a section two lawsuit than Ohio. If one resists this conclusion on the ground that Pennsylvania provides enough voting opportunities for both its black and white citizens—it keeps its polls open on Election Day for thirteen hours, from 7 am to 8 pm—then it becomes difficult to see how Ohio could be violating the same section two by providing so much more voting opportunities than Pennsylvania. If one then points out that Ohio used to provide even more voting opportunities than it currently does, including offering the much-desired Golden Week—then it seems like the analysis has converted to a “retrogression” inquiry despite protestations to the contrary. If blacks have no greater difficulty voting than whites do under current Ohio law, but blacks utilized the even more convenient aspects of Ohio’s previous regime at higher rates than whites did, a finding of liability because of this change in Ohio’s law would fit the theory of section five, not the jurisprudence of section two.

The Value of a Retrogression Inquiry

To say that the distinctive retrogression analysis properly belonging to section five should not be smuggled into section two “results” jurisprudence—despite the obvious temptation to do so after the neutering of section five in Shelby County—is not to deny the importance of an anti-backsliding principle in voting rights law. Indeed, one can see the argument of extending section five’s retrogression analysis nationwide, so that it covers northern states like Ohio as well as southern ones like North Carolina.   But as frustrating as it is to wait for Congress to fix the coverage formula applicable to section five in the aftermath of Shelby County, it is seems inappropriate as an exercise of statutory interpretation to convert section two, which was always intended to be distinct from section five, into the functional equivalent of a nationally applicable anti-backsliding rule. (In a current research project, I am pursuing whether the Due Process Clause of the Fourteenth Amendment, which in a wide variety of non-voting contexts is understood to prevent the government from improperly undermining legitimate settled expectations and reliance interests, might be interpreted as encompassing an anti-backsliding principle in electoral contexts and thus could do some of the work of the incapacitated section five.)

But as important as an anti-backsliding principle is to voting rights, it is also necessary to recognize that it comes with costs. If it becomes too difficult for a state to undo an experiment in electoral reform, states will be reluctant to experiment in the first place. States without any early voting will be advised by their attorneys that if they choose to adopt some early voting they may be stuck with whatever amount they initially provide, so perhaps they better think twice before adopting it.

There are legitimate reasons why a state might not want to offer more than two weeks of early voting. One of the presidential debates this year is scheduled for October 19. A state might think that it is much better if voters cast their ballots after they have seen all the debates, and that voters should not cast their ballots “too early” based on incomplete or outdated information compared to what is known on Election Day itself. A state that expanded its available days of early voting from zero to two weeks, but no more, would be seen as embracing a reasonable balance between making voting more convenient and having the election capture the electorate’s collective opinion at a particular moment in time.

(The American Law Institute, at its annual meeting on May 16 this year, approved a set of principles for early and absentee voting that recognized, among other relevant considerations, the “information gap” among voters that potentially increases as the period of early voting lengthens. This “information gap” was a factor in the ALI’s deliberations on what to recommend as a minimum amount of in-person early voting for those states choosing to establish an early voting regime. The ALI settled upon a recommendation that early voting begin no later than ten days before Election Day, rather than adopting a recommendation that early voting necessarily should begin even earlier in October than that, in recognition that some states legitimately might wish to avoid the “information gap” associated with a longer period of early voting. Full disclosure: together with my Moritz colleague Steve Huefner, I serve as reporter for this ALI project.)

If a state experimented with a month of early voting, but subsequently decided that two weeks was a better balance of the competing considerations, a state should not be unduly hindered from making this kind of adjustment to its election laws. To be sure, as section five required before Shelby County, if a state has a history of racial discrimination in voting and the state decreases its early voting period from four weeks to two, the state should be required to justify this cutback in nondiscriminatory terms, and the federal judiciary should make sure that any nondiscriminatory reason that the state asserts is not mere pretext. But in principle a state’s decision to hold two rather than four weeks of early voting can be understood in racially neutral terms, and no state that experiments with a longer period of early voting should be forever barred from deciding that a two-week period would be better.

In any event, that kind of point would be relevant to the application of a retrogression analysis. But for the reasons elaborated, retrogression analysis is not germane to the evaluation of Ohio’s change in its early voting rules. What matters, instead, is a proper application of the section two “results” analysis.

For an interesting comparison on how section five and section two apply differently to the same reduction in early voting, one can examine the two decisions concerning Florida’s changes in early voting in advance of the 2012 election. As a consequence of new legislation, Florida’s early-voting period shrank from a maximum of twelve days to a maximum of eight, although the legislation also provided other changes that newly guaranteed three weekend days of early voting, including one Sunday of early voting, and potentially retained the same number of total hours of early voting compressed into a fewer number of days. In Florida v. United States, a three-judge district court (which included Supreme Court nominee Judge Merrick Garland) ruled that under section five Florida had failed to demonstrate that its changes to early voting were not retrogressive. By contrast, in a separate lawsuit presenting a section two challenge to the same legislative changes in early voting, Brown v. Detzner, a federal district judge in Florida ruled that plaintiffs had failed to establish that the changes resulted in the state’s black voters having less opportunity to cast a ballot than the state’s white voters. It is hard to square the federal court decision in Brown v. Detzner, the Florida section two case, with the recent ruling in Ohio.

What Next?

As the Ohio case moves from the district to the circuit court, this much seems clear: the status of section two analysis is extremely fluid given the line-drawing difficulties involved. On appeal, the Ohio case could go either way. But if the district court is affirmed, meaning that current Ohio law does violate section two, then Pennsylvania should beware. For the Ohio ruling on appeal to be principled, it necessarily would mean that Pennsylvania is at significant risk of also violating section two. With Pennsylvania coming into the spotlight as the most likely Electoral College “tipping state,” litigation over Pennsylvania’s voting procedures presumably would follow quickly.

NC Supreme Court Recount Could Be Legal Focal Point

by

One to watch very closely.

From an election law perspective, the biggest potential development I’ve seen early Wednesday morning after Election Night is not in U.S. Senate races, or even gubernatorial ones, but rather the fight for a seat on North Carolina’s Supreme Court.

The reason is that before Election Day North Carolina already was the focus of intense federal court litigation concerning changes in that state’s voting rules, particularly those concerning the elimination of same day registration during early voting and a new requirement to invalidate provisional ballots cast in the wrong precinct.  The U.S. Court of Appeals for the Fourth Circuit preliminarily indicated that those changes violated the federal Voting Rights Act.  Although the U.S. Supreme Court put that Fourth Circuit decision on hold for the purpose of administering ballot-casting procedures yesterday (Election Day), the Supreme Court did not decide the merits of the federal-law claims.  Consequently, the Supreme Court did not rule on the status of any provisional ballots cast in North Carolina as a consequence of the state’s changes to its voting rules.  As Josh Douglas and I addressed in our op-ed yesterday, the supremacy of federal law means this: assuming the Fourth Circuit adheres to its position on the invalidity of the new North Carolina rules under the federal Voting Rights Act, then North Carolina may not reject a provisional ballot solely because of noncompliance with its new law.

Thus, the status of provisional ballots may become important in a recount over the state’s supreme court seat.

Ten years ago, North Carolina had major litigation over provisional ballots in a statewide race for its chief education officer.  That led to a big decision in the North Carolina Supreme Court, James v. Bartlett, 607 S.E.2d 638 (2005), only for that decision to be subsequently reversed in the state’s legislature, with additional state-court litigation thereafter.

It is obvious that litigation over a state supreme court seat is a matter more difficult for the state supreme court itself to resolve that litigation over a separate statewide office, like superintendent for public instruction.  The apparent conflict of interest is obvious.  The last time an election for a state supreme court seat was seriously disputed was in 1994, over Alabama’s Chief Justice election.  That dispute ultimately was resolved in federal court, in the important precedent-setting case of Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995), which ruled that it violates Due Process to change the rules for counting ballots after they are cast.

Since there already is pending litigation over North Carolina’s voting rules, it would not be at all surprising if the election for this state supreme court seat was resolved in federal rather than state court.  Indeed, it could become the crucible for litigating the merits of the pending federal claims.

Imperfect Remedies for Election Problems

by

By Steven F. Huefner

Extending voting hours in response to polling place irregularities may be appropriate, but is far from ideal.

With polls in some states already closed or soon to close, it is fair to say that Election Day 2014 has gone off without many major polling place problems. In part, we can thank the fact that this is a “midterm” election, which lacks the substantially larger turnout of a presidential election that creates significant additional stress on polling place operations. That said, a number of small glitches still have occurred around the country throughout the day (not surprising, really, given the over a hundred thousand polling places throughout the country, staffed by volunteers). These problems have primarily included equipment malfunctions and incomplete polling place preparations, and though they have been fairly localized, they still have the potential to effect close races.

In response to these problems, courts in at least three states have in the last few hours ordered some polling places to remain open beyond their scheduled closing times. In Georgia, it is a 15-minute extension in one polling location. In Connecticut, it is a thirty-minute extension in two polling locations. In Illinois, it is a 60-minute extension in five polling places. While admirable in their attempt to remedy problems early in the day, these voting extensions ought to remind us of how imperfect our voting processes are.

We hold elections in order to allow each eligible citizen to have an equal voice in their government. We structure them with advance notice and various procedural requirements designed to provide for a smooth and fair administration of the election, intended to enfranchise all voters who wish to vote. But when a particular voter is prevented or dissuaded from voting because a polling place opens 15 minutes late, or because an unanticipated line develops when polling books are not ready for use, it presumably does little to assist that particular voter to offer additional minutes of voting time in the evening. (Voters in-line at the designated time for polling places to close already are allowed to stay and vote.)

Instead, it is by far preferable to allow voters experiencing a problem to cast a provisional ballot at the moment they are experiencing the problem. As my election law colleagues Ned Foley and Josh Douglas noted in a New York Times Op-Ed today, in any federal election, federal law requires poll workers to offer provisional ballots to any voter who wants to vote but is unable to vote a regular ballot. Meanwhile, a separate provision of federal law also now requires that any voter who votes as a result of a court order that extends the scheduled voting hours must also vote a provisional ballot.

A provisional ballot cast as a result of an extension is likely more vulnerable to being excluded from the count, if in a subsequent judicial contest a reviewing court determines the extension was unwarranted. A provisional ballot cast during regular voting hours because a poll book was not available, or regular ballots were in short supply, or lines to use regular equipment were too long, presumably will be counted once election officials can verify the voter’s eligibility.

Thus, as the evening draws on and a few polling sites remain open beyond their scheduled close this evening, it bears noting the imperfection of this remedy. Although extending polling place hours may sometimes be a warranted response to Election Day problems, we are far better off, first, by doing all we can to prepare for Election Day, and second, by taking better advantage of provisional ballots.

More on Connecticut Registration List Issues [Updated]

by

By Steven F. Huefner

Thoughts on Connecticut’s voter registration list issues.

Many reports have been coming in about voting difficulties this morning in Connecticut, including both ballot shortages at some polling places, and a complete lack of the list of registered voters at others. Although we are still short on complete facts about these problems, it’s not too early to worry about their potential impact on a close race. The gubernatorial contest is the most closely watched, and has the potential to be a nail-biter.

The spokesperson for the Connecticut Secretary of State is reported to have said, quite aptly: “I don’t know how many polling places were affected. [Having the voter lists ready] really, really must be done before the election…. This is Election 101.” He then also said: “Once we get this situation under control, our next goal after election day is to investigate what happened and hold accountable those who are responsible.”

Unfortunately, that skips over the fact that in the event the problems affected more voters than the apparent margin of victory in a race that is too close to call, these morning difficulties could have an immediate impact on the way in which the race plays out. By midmorning, many were contemplating the possibility of extending voting hours this evening to accommodate voters who abandoned their efforts to vote this morning because of long delays triggered by the absent poll books. [Update: by midday, the Democratic Party had filed suit  to extend voting hours.] If hours are extended, federal law will require that voters casting their ballots in the extended period cast a provisional ballot, to permit courts to sort out after the fact whether the extended hours were appropriate, and whether to count the votes cast during that time.

Meanwhile, voters who, in lieu of signing the poll book, instead signed blank sheets of paper this morning to obtain a ballot, will be scrutinized to determine if they in fact were eligible to vote. Though discrepancies here are not likely to be many, they will pose a much more difficult problem if the voters in question were given regular ballots rather than provisional ballots. If so, these ballots given to these voters this morning will already have been counted, and will not be easily subtractable from the tallies. (The reporting so far has not been specific on this point, but certainly suggests that these voters were allowed to vote regular ballots. Provisional ballots also should have been readily available and offered to any voter for whom a regular ballot was not available or for whom other problems impeded their ability to vote, as Ned Foley and Josh Douglas pointed out in a NYTimes Op Ed today. None of the Connecticut reporting so far has indicated that provisionals were deployed in this way as a remedy for the morning problems.)

These are just a few quick reactions to the preliminary reports of the Connecticut difficulties. At the end of day (literally and figuratively), it may be that the problems are of insufficient magnitude to affect the outcome of any of the races on today’s ballot. In that case, the spokesperson is right that there will be time enough to determine responsibility and take steps to prevent this in the future. But that hope ignores the possibility, slim but real, that problems like these can make determining the outcomes a mess.