Election-Campaign Law

The Wrong Approach to Election Reform

Posted on December 18, 2008
The Ohio legislature yesterday a href="http://www.wtte28.com/template/inews_wire/wires.regional.oh/2b1965c4-www.wtte28.com.shtml"approved a bill/a (SB 380) that would eliminate the window for early registration and absentee voting, among other things...

Reforming Registration

Posted on November 07, 2008
On Monday, I identified four problem areas to watch out for on Election Day: 1) lines at the polls, 2) voting equipment, 3) voter registration lists, and 4) provisional and absentee ballots. While machine breakdowns and polling place lines got the lion's share public attention on Election Day, a closer look reveals that voter registration was the election administration issue of 2008...

What We Don't Know

Posted on November 05, 2008
We now know that Barack Obama will be the 44th President of the United States of America. In the enormity of this moment in American history, the gritty details of election administration, upon which my Moritz colleagues and I spend so much of our time, seem positively trivial...

Hearing in Progress on the Ohio Litigation

Posted on November 04, 2008
Following up this post from earlier today on the Election Day maneuvering that could become post-election litigation in Ohio, there's a hearing taking place this evening Judge Marbley in the NEOCH v. Brunner case Pending before him is a motion to consolidate Ohio Republican Party v...

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A Matter of Perspective

Posted on November 04, 2008
In my last post, I expressed the view that today's election appears to have been a relatively smooth one. Perhaps it depends on where you're standing. Ben Smith reports here on the campaigns' dueling perspectives on today's election. He notes that the Obama camp's message is that "Everything is going fine," while the McCain camp's message is "It's a mess...

The Calm Before the Storm?

Posted on November 04, 2008
It's a beautiful autumn day here in Columbus, Ohio. As I took a walk around the Statehouse during a blogging break this afternoon, the weather seemed to match the climate of today's election. To be sure, this Election Day has seen its share of problems like lines at some polling places, voting machines not working properly, voters being denied provisional ballots if they don't have ID, and other scattered problems...

Disability Access Issues

Posted on November 04, 2008
One of the underexamined issues of election administration is the nexus between voting rights and disability rights. The Americans with Disabilities Act requires that polling places be accessible to people with disabilities, while the Help America Vote Act mandates that accessible voting technology be provided at every polling place...

Something Missing?

Posted on November 04, 2008
See this report on ballots in Shaker Heights, Ohio on which the presidential race was omitted. The report goes on to note relatively few problems in Ohio, an observation consistent with my impressions so far ... though we've got a way to go yet.

New Voter Registration Case in Indiana

Posted on November 04, 2008
As I've said many times this election season, voter registration is the issue of 2008. The latest evidence of this is a complaint and TRO motion brought by Project Vote on behalf ofvoters whose registrations were allegedly rejected because they were on an "old" form (Brown v...

V.W.I.

Posted on November 04, 2008
See this report from the Louisville Courier-Journal, which includes the following anecdote: The funniest report of the morning from a poll, he said, was a call received from Henderson County about an intoxicated voter."They wanted to know if he was allowed to vote," Fugate said...

Jockeying for Position in Ohio

Posted on November 04, 2008
The Ohio Republican Party today filed an amended complaint in its case against Secretary of State Brunner (Ohio Republican Party v. Brunner). This is the same case that the ORP earlier used as a vehicle for its arguments regarding the window for early registration and absentee voting, observers at in-person absentee voting sites, and mismatched voter information...

Early Voting Reform

Posted on November 04, 2008
Polling places have only been opened for a few hours in some states and haven't yet opened in others, but one area in which reform is needed is already quite clear: the process for in-person early voting. In states across the country that allow early voting, we've seen long lines, with voters sometimes waiting for several hours to vote...

Election 2008: Live Blogging and Issues to Watch

Posted on November 03, 2008
I've become a semi-retired blogger in recent months, partly because I'm on leave from Moritz this semester and visiting at Harvard Law School and partly because of my involvement in some of the this year's election litigation.* But I'll be in Columbus tomorrow, where Election Law @ Moritz will again be running an Election Central media center...

Looking for Lines ...

Posted on November 03, 2008
Where can we expect long lines on Election Day? Given the large number of newly registered voters and the intense interest in this year's election, you may not have to look far.If I had to guess, I'd put Virginia and Pennsylvania at the top of my list of states where polling places may be overwhelmed...

A New Absentee Voting Directive in Ohio

Posted on November 03, 2008
On the eve of the election, Ohio Secretary of State Jennifer Brunner has issued a new directive, requiring counties to give would-be absentee voters notice if there's a problem that would prevent their absentee ballot from being counted. Directive 2008-109 may be found here...

What Happens When Voters Don't "Match"?

Posted on July 20, 2008
One of the big under-the-radar issues this election season has to do with the state registration databases required by the Help American Vote Act of 2002. Before HAVA, registration lists were often compiled and administered at the local level. HAVA now requires a statewide registration database...

Injunction for Libertarian Party of Ohio and Barr

Posted on July 18, 2008
U.S. District Judge Edmund Sargus, Jr. has issued this order, requiring that the Ohio Secretary of State place on the general election ballot the names of various Libertarian Party candidates, including Bob Barr. The order is based upon the Sixth Circuit's 2006 decision in Libertarian Party of Ohio v...

Did Obama Break His Promise?

Posted on June 20, 2008
There's been a great deal of criticism of Senator Barack Obama's announcement yesterday that he would opt out of the public financing system for the general election, some of it summarized here on Rick Hasen's blog. Some argue that Obama went back on his word by electing not to accept public financing, and the restrictions on private contributions, that come with it...

Are We Condemned to Repeat It?

Posted on June 03, 2008
It's election year in Ohio, likely to be pivotal in the presidential contest. Everyone expects a close race. Yet there's great concern about whether the state's election infrastructure can hold up to the pressure that will be upon it. Of special concern is the voting equipment to be used, particularly in the state's largest and most diverse county...

Elmendorf on Crawford on Harper

Posted on May 06, 2008
Chris Elmendorf offers this comment for EL@M, regarding last week's decision from the Supreme Court in Crawford v. Marion County Election Board. It's characteristically thoughtful, provocative, and well worth reading. (Disclosure: He and I co-authored an amicus brief to the Court on the case...

An Election Day Registration Bill

Posted on May 02, 2008
A bill has been introduced in the Senate that would require states to allow election day registration (EDR) in federal elections. The bill may be found here and co-sponsor Senator Russ Feingold's statement in support of the bill here.EDR has been used in nine states some of them since the 1970s...

Crawford: It Could Have Been Worse

Posted on April 29, 2008
That's about the best that can be said about yesterday's opinions in Crawford v. Marion County Election Board. Following the precedent set by LULAC v. Perry and Randall v. Sorrell in 2006, the Court issued a splintered decision in an important constitutional election law case...

The Problems with All-Mail Elections

Posted on March 12, 2008
With the Clinton and Obama camps at odds over whether to seat Florida and Michigan delegates, the idea of holding an all-mail election has emerged as a possible solution. The New York Times reports today that Democratic Party officials are "close to completing a draft plan" for a mail-in primary in Florida that would take place in early June...

Blackwell Redux?

Posted on March 11, 2008
The AP has this report on the Ohio Supreme Court's decision rejecting Ohio Secretary of State Jennifer Brunner's request that she be shielded from the deposition in a case regarding a Summit County Board of Elections member whom she refused to reappoint...

Pay Attention to Provisionals

Posted on March 09, 2008
That's one piece of advice I'd give to both election officials and candidates this election season. This lesson emerged during the 2004 election, when the large number of provisional ballots cast in Ohio delayed the decision to call the state -- and thus the presidential race -- for President Bush...

Uncounted Ballots & Ohio's Delegate Math

Posted on March 06, 2008
Yeterday, I raised some questions regarding as-yet-uncounted ballots in Ohio -- specifically, the number of provisional, residual, and absentee ballots that aren't included in the official vote totals. In this post, I discuss how these ballots could actually affect the result of yesterday's election, despite the clear margin by which Senator Clinton won the statewide popular vote...

Lingering Questions in Ohio

Posted on March 05, 2008
You may have heard the joke about the pre-election prayer of election officials: "Please don't let it be close." Last night, the prayers of Ohio's election officials were answered ... at least for the statewide popular vote. The margin of victory in last night's Democratic presidential primary was sufficiently large that election administration problems -- like the ones I anticipated here and here -- didn't affect the overall outcome...

Don't Call Ohio Too Soon

Posted on March 04, 2008
That's my advice to the news media tonight, in the event of a close Democratic primary. As returns start to come in from Ohio this evening, we should keep in mind circumstances that will probably result in more outstanding ballots on Election Night than in other states, and maybe even more than is typical for Ohio...

Ohio's Primary: What Will Go Wrong?

Posted on March 02, 2008
With polls showing the Ohio Democratic primary race neck and neck, and with victory in the state likely pivotal to the survival of the Clinton campaign, this question of what might go wrong in Ohio's election is again on many people's minds. Election administration was of course the subject of much discussion here in 2004...

Super Tuesday & Possible Delegate Selection Disputes

Posted on February 05, 2008
This Super Tuesday is like no other, both in terms of the large number of delegates at stake but also because of the national attention that today's national primary is receiving. From here on in, the focus is likely to shift (as it should) from who "won" each state's popular vote to how many delegates each candidate picked up...

Electoral College Symposium

Posted on February 01, 2008
The Michigan Law Review has published this online symposium on "Recent Proposals for Electoral College Reform." It includes my contribution, entitled "An Unsafe Harbor: Recounts, Contests and the Electoral College," which addresses the interaction between federal laws structuring the Electoral College process and state laws regarding post-proceedings...

The Crawford Argument

Posted on January 08, 2008
While most of the country's eyes are on the New Hampshire primary results, the Supreme Court will on Wednesday hear arguments in Crawford v. Marion County, involving the constitutionality of Indiana's law requiring government-issued photo identification for in-person voting...

Conflict in Cuyahoga

Posted on December 21, 2007
The Cuyahoga County Board of Elections yesterday deadlocked 2-2, along party lines, on whether to purchase new voting technology for the 2008 elections. The Cleveland Plain Dealer has this report. This decision follows Monday's meeting which I blogged here, and last week's report from the office of Secretary of State Jennifer Brunner discussed here...

A Hobson's Choice in Cuyahoga County?

Posted on December 18, 2007
The Cuyahoga County Board of Elections held a hearing yesterday, to consider whether to dump its touchscreen voting system in 2008. The Cleveland Plain Dealer has this report and the Columbus Dispatch this one. This follows Friday's EVEREST report from Secretary of State Brunner's office, recommending that Ohio's existing voting technology be replaced with central-count optical scan equipment...

EVEREST: Ohio's Voting System Report

Posted on December 15, 2007
Ohio Secretary of State Jennifer Brunner yesterday released this report of Project EVEREST (Evaluation & Validation of Election-Related Equipment, Standards, & Testing). Today's Columbus Dispatch has this report. The report is billed as a "comprehensive" review of the voting systems used in Ohio, which are also used throughout the United States...

Pew's Data Collection Proposal

Posted on October 22, 2007
Among the most serious problems with the administration of American elections is the lack of reliable information. On everything from the number of people registered to the number of votes counted, the information coming from state and local election officials leaves much to be desired...

What Congress Should Be Talking About

Posted on September 18, 2007
The U.S. House of Representatives may soon resume consideration of H.R. 811, a bill that would require voting machines to generate a "voter-verified" paper record. This bill is the outgrowth of a bitter and protracted debate over the security of direct record electronic (DRE), which has consumed considerable time and attention across the country over the past few years...

So What's Up With the Blog?

Posted on August 02, 2007
Several people have asked me this question recently, remarking on the sparsity of posts over the past few months. Part of the reason why I've not been actively blogging is fatigue or, put more positively, a need to recharge my batteries in preparation for the uptick in election administration activity that's sure to accompany the 2008 elections...

Money for Data: Funding the Oldest Unfunded Mandate

Posted on June 05, 2007
Thad Hall & Daniel TokajiFederal elections are the country's oldest unfunded mandate. The Constitution gives Congress power to make or alter rules for federal elections, but the task of running those elections has long been left to state and local governments...

The Politics of Justice

Posted on May 22, 2007
In recent weeks, the controversy surrounding the U.S. Department of Justice (DOJ) has taken an especially disturbing turn. What started as a scandal about the unjustified firings of a few U.S. attorneys now appears to be something much different -- and much more serious...

Voter Fraud and the EAC

Posted on April 26, 2007
The last few weeks have seen some very important developments in the ongoing debate over voter fraud. Just today, there's news that exacerbates concern about the role of the federal government in suppressing important information on this debate.The most recent flurry of attention began with New York Times stories earlier this month, available here and here...

Four on Bush v. Gore

Posted on April 05, 2007
The applicability of the Equal Protection Clause to matters of election administration is receiving renewed scholarly attention. My colleague Ned Foley has posted this paper, entitled "The Future of Bush v. Gore." Prof. Foley develops a taxonomy of post-Bush equal protection claims, and considers the prospects for future intervention by the Court...

Ohio SOS Asks for Cuyahoga Board's Resignations

Posted on March 19, 2007
Ohio's new Secretary of State Jennifer Brunner has asked for the resignations of all four members of the Board of Elections in Cuyahoga County, the state's largest county which includes Cleveland. The Columbus Dispatch has this report and Secretary of State Brunner has issued this press release...

Early Voting in 2008

Posted on March 13, 2007
The 2008 election season is already upon us. Each day's news contains more stories about the candidates' attempts to raise money and woo voters. In addition, bills have been introduced in Congress dealing with such diverse matters as voter intimidation, electronic voting security, and a democracy index to measure the health of state election systems...

Obama's Democracy Index Bill

Posted on March 02, 2007
Senator Barack Obama (D-IL) has instituted the "Voter Advocate and Democracy Index Act of 2007," designed to institute a system by which states' election systems could be measured. A release describing the bill may be found here and the text here courtesy of Rick Hasen...

NYU Symposium on Election Law

Posted on February 23, 2007
I'm headed to New York, for the NYU Annual Survey of American Law's 2007 Symposium, "The Uncertain Landscape of American Election Law: Where Does the Ballot Box Head from Here?" which takes place all day today. I'll be speaking on a panel in the afternoon on election administration, and there will be panels earlier in the day on campaign finance and redistricting...

Voter ID and Turnout

Posted on February 22, 2007
Yesterday's N.Y. Times had this story on a study from researchers at Rutgers University's Eagleton Institute, prepared in conjunction with the Moritz College of Law. This follows a story earlier in the week in USA Today on the same study. (Disclosure: I'm part of the team that worked on this project...

Joining the Election Law Casebook

Posted on February 21, 2007
A busy semester has left me with little time to blog, but I did want to note the announcement that I'll be joining Dan Lowenstein and Rick Hasen on the next edition of their Election Law casebook. It's an exciting opportunity, and I'm deeply honored to be joining them...

The Latest Version of the Holt Bill

Posted on February 06, 2007
Rep. Rush Holt (D-NJ) has introduced another version of his bill (H.R. 811) to require that all voting systems generate a "voter-verified" paper ballot. It would authorize $300 million for fisacal year 2007 to meet the new requirements. I've commented on the problems with this sort of requirement numerous times in the past, including here and here, and little would be gained by again replaying that debate...

The Deceptive Practices and Voter Intimidation Bill

Posted on January 31, 2007
Senators Obama and Schumer today introduced a bill (S. 1975) designed to stop deceptive practices and the intimidation of voters. The NY Times has this story and this editorial supporting the bill.The bill arises from concerns about false and misleading practices that have been reported in recent elections, targeted especially at African American, Latino, and Native American communities...

Convictions in Ohio Recount Tampering Case

Posted on January 25, 2007
Two Cuyahoga County election officials were convicted today on felony counts of negligent misconduct in connection with Ohio's 2004 presidential recount. The AP has this report. The convictions stem from the recount that was requested not by the John Kerry, but by Green Party candidate David Cobb and Libertarian candidate Michael Badnarik...

The New Year in Election Law

Posted on January 15, 2007
Although later than I'd anticipated, I'm back blogging this week. Much has happened in my absence. Having had some much-needed time to recharge my batteries, it seems like a great time to recap briefly some of the election law developments in recent weeks and look ahead to what the new year may bring...

Enjoying the Holidays

Posted on December 28, 2006
I'm taking a blogging break and will be back the week of January 8.

Guest-Blogging on Election Law

Posted on December 18, 2006
I'll be guest-blogging on Rick Hasen's Election Law Blog this week. As I've done before, I'll cross-post any posts containing substantive analysis or commentary here.

The Ohio 15th Recount

Posted on December 10, 2006
The end-of-the semester crunch has kept me too busy to blog in the past week, but there have been a lot of developments. One of them has to do with the election for Ohio's 15th Congressional District, involving Democrat Mary Jo Kilroy and incumbent Republican Deborah Pryce...

Mootness in Stewart v. Blackwell

Posted on December 01, 2006
After the 2000 election, lawsuits were filed in at least five states challenging the use of punch card voting equipment, on the ground that its use violates rights protected by the Fourteenth Amendment and the Voting Rights Act. Stewart v. Blackwell is, to my knowledge, the last remaining of these cases...