Constitutional Law

ELECTION 2008: ISSUES TO WATCH

by Daniel Tokaji* a professor of law at Ohio State University’s Moritz College of Law. Tokaji is also associate director of Election Law @ Moritz and will participate in an ACS conference call on the elections on Nov. 6 at 11 a.m.

One of the most exciting election seasons in American history will (hopefully) come to an end tomorrow. For those of us who care about making our democracy work better, this election has revealed both how far we’ve come and how far we still have to go.

Tomorrow, Election Law @ Moritz will be running an Election Central media center, at COSI (the children's science museum) in Columbus, Ohio. I'll be live-blogging on election administration issues that develop here. Moritz faculty, staff, and students will also be tracking problems and litigation throughout the day on the front page of our site.

Here are four big questions I'll have my eye on tomorrow:

1. Will there be long lines at the polls? This is the question that everyone is wondering about, with massive turnout expected, particularly among African American and student voters. We'll see whether that turnout materializes. But we've already seen enormous early voting, both in person and by mail, which Michael McDonald of George Mason University has been tracking here. Perhaps the heavy early voting in no-excuse absentee voting states like Colorado, Florida, and Ohio will take pressure off the polls on Election Day. On the other hand, the increase in early voting may presage an avalanche in Election Day turnout that will overwhelm polling places, especially in states like Pennsylvania that don't have no-excuse absentee voting. In the event that there are long lines at polling places -- especially in urban areas or near colleges -- look for lawsuits to extend polling place hours, such as the Ohio Democratic Party v. Blackwell case in 2004.

2. Will there be equipment problems? The short answer to this question is "Yes." In any big election, there are likely to be some places where electronic voting machines break down or polling places run out of paper ballots. One of the places to watch out for in tomorrow's election is Cuyahoga County, Ohio's largest which includes the City of Cleveland. That county will be using its fourth voting system since 2004, having moved from punch cards, to touchscreen, to central-count optical scan, and now to precinct-count optical scan. The system county officials have now provides voters with notice and the opportunity to correct inadvertent overvotes, but there are risks with implementing a new system in a high-turnout election like this one. For jurisdictions that use touchscreen machines, we've again seen allegations of vote-flipping, in which the voter tries to vote for one candidate but the machine captures the vote as for another. This is another subject on litigation would not be surprising, particularly if it's looking close in a pivotal state.

3. Will registration errors lead to disfranchisement or fraud? Voter registration has been the big issue of the 2008 election, just as voting machines were the issue of 2000 and provisional ballots the issue of 2004. Those on the right are concerned that private groups like ACORN have registered lots of nonexistent voters who could conceivably vote on or before Election Day. Those on the left are concerned that overly stringent matching and purging practices in states like Florida could result in eligible voters being taken off the rolls. Voter registration is a critical issue to watch tomorrow -- probably more important than anything else, in terms of the total number of votes affected -- but it's something that too often slips through the cracks of media coverage. The reason, I suspect, is that registration problems aren't as visible as long lines or machine problems. Voters who believe that they're registered but find that their names aren't on the registration list have a right to receive a provisional ballot. If the voter is later determined eligible and registered to vote, then that ballot should be counted. But states vary dramatically, and there are sometimes differences even within states, in how provisional ballots are handled. This leads to the final question.

4. Will provisional or absentee ballots make a difference? In a close election, look out for disputes over provisional and absentee ballots. In fact, these are probably the biggest ways in which a candidate on the short end of a close election can hope to harvest more votes, thereby making up the difference and perhaps ultimately emerging victorious. That scenario isn't likely in this (or any other) year's presidential election, but there's a good chance that some down-ballot races will be close enough to be within the so-called "margin of litigation." In 2004, a protective lawsuit was filed on Election Day (Schering v. Blackwell), alleging inequalities in the way that provisional ballots were being handled from county to county in Ohio. That case was dropped after it became clear that provisional ballots weren't going to make a difference, but we can expect comparable litigation over provisional ballots in the event of a close race. We should also look out for disputes over the counting of the increased number of absentee ballots in a close election. My colleague Ruth Colker describes here the difficulties she had in getting her absentee ballot counted, after authorities initially refused to do so because the date of birth she provided when voting didn't match the erroneous one in registration records. If there's a widespread practice of requiring exact matching to count absentee ballots, then a lot of eligible voters could wind up having their ballots tossed.

This isn't intended to be a comprehensive list. If there's one thing that past elections have taught us, it's that we should expect the unexpected. Whether or not the presidential race turns out to be close, Election Day 2008 is certain to be an exciting one for those of us who care about election administration.

* Disclosure: I've served as an amicus or counsel for parties or amici in several of the cases that have been filed during this election season, including cases having to do with the early registration and voting windown, the handling of absentee ballot applications, and the matching of voter registration records. The full disclosures may be found here for active cases and here for archived ones.

Full post as published by ACS Blog on November 03, 2008 (boomark / email).