Provisional Ballots

Nevada Early Voting: Analysis of Issues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Applicable Constitutional Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

Provisional ballots and address information

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

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

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

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

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

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

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

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

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

Other issues in the NEOCH case

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

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

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

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

NC Supreme Court Recount Could Be Legal Focal Point

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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

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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.