Election Law @ Moritz

How Obama Won Ohio

In retrospect, the single most important fact of the 2012 presidential campaign was that Barack Obama led steadily in Ohio from the late spring (when the Republicans settled on Mitt Romney as their nominee) through Election Day. Only in the aftermath of his strong performance in the first presidential debate did Romney briefly surge into a tie with Obama in Ohio, but even that situation quickly proved ephemeral, as Obama soon regained his narrow lead there. In view of the fact that Ohio generally leans Republican, and especially so in close presidential races like this one, Obama’s narrow but consistent lead in the Buckeye State during 2012 appears all the more remarkable – and ultimately decisive.

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Will Ohio Have Another Problematic Presidential Election?

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. Another worry is provisional ballots, upon which the state increasingly relies for registration problems, voters who lack proper ID, and those who've moved. If the election is close enough, the two major parties could wind up fighting over which provisional ballots should count. The specter of litigation thus hangs heavy over the state. To top it all off, there have been repeated accusations of partisanship by Ohio's chief election official, the Secretary of State, from the opposing party.

Any of this sound familiar?

When the nation's attention focuses more intently on battleground states later this year, many will no doubt scratch their heads and wonder what the State of Ohio has been up to since 2004. In reality, there have been plenty of changes, some of them for the better. But many of the same issues remain. This comment discusses three big ones: voting equipment, provisional ballots, and allegations of partisanship. It remembers the past while looking ahead to the future, in light of some brand new information from the March primary.

Voting Equipment

This is one area in which there have been significant improvements since 2004, when most voters throughout the state still used "hanging chad" punch card voting systems. The result was that tens of thousands of ballots didn't register a vote for President. Elsewhere in the country, voters used newer voting equipment that provided voters with notice and an opportunity to correct errors. Such "notice" voting equipment combined, with better procedures, saved about one million votes that would otherwise have been lost in 2004.

By 2006, Ohio counties had finally switched to notice voting technology, of either the electronic touchscreen or precinct-count optical scan variety. Both types of systems allow voters to check for overvotes, and thus reduce the number of uncounted votes. The bad news is that Cuyahoga County, the state's biggest county which includes Cleveland, had well-documented problems implementing the Diebold touchscreen system it decided to buy. Among the problems was that somewhere around 20% of the paper records generated by the system were damaged or unreadable, something that's especially problematic given that Ohio law makes paper the official ballot of record.

As a result, Cuyahoga County switched again, using a non-notice optical scan ballot system in the March 2008 primary. The ACLU sued, arguing that votes would predictably be lost due to the switch, but a federal district judge declined to order the county to use a notice system so close to election day. (Disclosure: I consulted with the ACLU on that case.)

The result was that Cuyahoga County used a non-notice system in the March primary. So how did things go? At first glance, it didn't look so bad. The county initially reported 818 overvotes at the time of its unofficial count. (This page now seems to have been removed from the Secretary of State's website.) That's more than any other county but one, but still relatively low when you consider the total turnout of 436,609 in that county.

Some brand new information explains the suspiciously low number of overvotes initially reported. The earlier figure didn't include ballots that would have been overvotes, but had been "remade" so as to avoid being rejected by tabulating equipment. The practice of remaking, as the name suggests, involves marking a new ballot that replicates what election officials believe to be the voter's intended choices, when a ballot is mismarked. Until today, there wasn't publicly available information on how many ballots had been "remade" but I've just received information from the Cuyahoga Board of Elections that that there were really over 4000 overvotes:

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Another Election Expert Questions Florida Do-over by Mail

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 this week 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. Proponents of all-mail voting often cite Oregon's experience in support of their arguments. If they can do it, the argument goes, why can't we?

Given that Democratic Party rules set clear standards for having delegates recognized, which Florida and Michigan just as clearly failed to abide by, it seems obvious that the delegates selected through those states' prior primaries shouldn't be recognized. At the same time, there are reasons to be very cautious about exporting all-mail elections to these states, especially in a hotly contested and undeniably important race like this one. Here are a few of those reasons:

1. Lack of experience. All-mail elections would be new to Florida. It's certainly true that some voters in Florida and other states already vote by mail, in the form of absentee ballots. But having everyone vote by mail is a major change that raises a different set of issues. In Oregon, the transition to all-mail elections was made gradually, over two decades as summarized in this timeline. Trying to implement all-mail voting on an extremely accelerated schedule would invite trouble. This is particularly true for a state like Florida, to put it mildly, doesn't exactly have a trouble-free history of election administration. With so much at stake, this isn't a great time to experiment.

2. Security. The likelihood of fraud and other forms of electoral manipulation is frequently exaggerated. But to the extent foul play happens, it's most likely to occur with mail-in ballots. That's partly because the anonymity of the ballot is compromised, allowing people to buy and sell their votes in a way that's not possible with in-precinct voting, as Rick Hasen has pointed out. It's also because lots of things that can happen to a ballot between the time it's goes from election authorities to the voter and back again. Suppose some election insider has a list of "deadwood" on the rolls (i.e., people who've died or moved yet remain on the rolls) and is able to intercept those ballots before they get into the mail? Or suppose someone has a connection at the post office? This isn't to argue that these things often happen -- there's not much evidence of such fraud in Oregon, according to this report by Paul Gronke. But again, Oregon's got a long history of dealing with the problems with mail voting, and not much history of corruption. By contrast, there has been fraud with mail ballots in Florida, specifically in a Miami mayoral election in which absentee ballots were found at the home of a local political boss, as noted by Prof. Gronke (at p. 2).

3. Voter mistakes. As we learned in Florida eight years ago, voters make lots of mistakes. Fortunately, the current generation of voting technology can reduce those mistakes, as I've discussed at length in this article. That includes not only electronic touchscreen voting systems, but also paper-based "notice" systems that are used at Florida's precincts. With such "notice" systems, commonly known as precinct-count optical scan, voters run their paper ballots through scanners at each polling place. Those scanners provide voters with notice and the opportunity to erroneous "overvotes" (making more choices than allowed). Such mistakes are more common than you might think, as documented in the media consortium study of ballots in Florida's 2000 election. That study found more than 40 overvotes per 1000 ballots with optical-scan paper ballots. The use of precinct-based notice technology reduced the number of errors to less than 3 per 1000. People voting by mail, of course, don't have access to notice technology and can thus be expected to cast more ballots that won't be counted. And this isn't even taking into consideration the other mistakes than can occur, like sending in the ballot late, failing to include adequate postage, not including adequate identifying information, or not signing in the right place. See this study by Mike Alvarez, Thad Hall, and Betsy Sinclair on the errors that voters make when voting by mail.

4. Skewing the electorate. To my mind, the most serious risk of all-mail elections is that it will distort participation to the disadvantage of certain demographic groups. Those who are most familiar with voting by mail are likely to have the highest levels of participation; others can be expected to have more trouble and thus lower levels of participation. This includes not only people who have moved or who are homeless, but also those who are illiterate or marginally literate, and therefore may have difficulty following written instructions on mail ballots. At the polling place, such people can of course rely on poll workers' assistance -- not so when they vote by mail.

Empirical research for Oregon provides some support for this concern. It's true that some studies have found a modest increase in overall turnout in Oregon, after many years of experience. But even in Oregon, that increase tends to occur disproportionately among those already most likely to participate, including those who are better educated and more affluent. As one researcher has put it, mail voting can have "perverse consequences" because it tends to "reinforce the demographic compositional bias of the electorate and may even heighten that bias." The end result could be an electorate that's even less representative of the general public than the existing one -- older, richer, and whiter.

Even if one believes that all-mail voting works well in a smaller and relatively homogeneous state like Oregon, there's reason to be very cautious about exporting it to larger, more heterogeneous states. These concerns are especially acute in states such as Florida and Michigan, parts of which are covered by Section 5 of the Voting Rights Act. That means that any change to their election rules -- including an all-mail primary election -- would have to be precleared by the U.S. Department of Justice or the U.S. District Court in Washington, D.C. If the use of all-mail voting would have a retrogressive effect, making racial minorities worse off than they were before, then the change couldn't be made.

There's a reasonable argument that preclearance should be denied, on the ground that an all-mail election will have a negative impact on the participation of minority voters. But even if preclearance is granted, mail voting could still have a disproportionate impact on participation by some groups of voters. And that, of course, would cloud the legitimacy of Florida's election -- and perhaps the selection of our next President. As Yogi Berra (or John Fogerty) might put it, it's like deja vu all over again. If there's going to be a re-vote in Florida, it should be conducted at precincts rather than by mail.

Five Things to Keep an Eye on in Ohio

It is widely believed that Ohio's primary on March 4 will play a pivotal role in determining the Democratic candidate for President. If Obama wins the statewide popular vote, the pundits proclaim, his victory likely would propel him to similar success in Pennsylvania (on April 22), and the party's "superdelegates" -- who by all accounts will control the outcome of the party's national convention in Denver -- will fall in line. Conversely, if Clinton prevails in the Ohio primary's popular vote, then she would be expected to do the same in Pennsylvania, and these two victories in states that will be major battlegrounds in the general election campaign will cause the superdelegates to favor her.

Consequently, the conduct of Ohio's election officials in administering the primary vote is now important, not only as a "test run" of technologies and procedures to be used again in November, but also in its own right. While it is the prerogative of the Democratic Party to make what use of the Ohio primary vote as it wishes -- including any significance the superdelegates may find in the results about the electability of these two candidates in the fall -- it remains the responsibility of the state's election officials to manage the casting and counting of primary ballots properly, so that its results are accurate.

Whether we care about the performance of Ohio's election system for one or both of these reasons, what should we look for on March 4 to evaluate whether or not it worked satisfactorily?

Here are five things to keep an eye on. While this short list is inevitably incomplete -- indeed, one important truth about election administration is the need to maintain flexibility given the good chance that something unexpected will occur -- this is a reasonable set of priorities as we come within two weeks of the primary date.

1. Cuyahoga County. Ohio's most populous county has been the source of its biggest electoral problems in recent years, including what was supposed to be an easily administered election just last November. But from officials who fudged a 2004 recount to save time and money, to precincts that were so poorly managed that over 10,000 ballots were cast by voters who never signed in, to misplaced vote tallies from 14% of precincts, to mutilated "paper trails" for a fifth of all votes -- the list of recent failings is so long and so serious that major improvement in Cuyahoga County has been "job one" for Ohio's new Secretary of State, Jennifer Brunner, who took office last year.

Brunner replaced the county's Board of Elections and installed a new director. She has also forced the Board to change its voting technology for the March 4 primary, jettisoning its touchscreen machines in favor of a "central count" form of optical-scan equipment. Unlike optical scan ballots that are counted at the precinct, at least initially, "central count" optical-scan ballots will not be counted until they are delivered to the Board's central offices. (Brunner has backed off her proposal that all Ohio counties move to this "central count" approach, but her insistence that Cuyahoga County do so remains in force, now that a federal court has refused to intervene on the issue.)

Some observers expect that the use of "central count" machines will delay the reporting of election results on the night of March 4. While that delay would be frustrating to the candidates and the media, as well as to citizens all around the country who would like to know the outcome of Ohio's primary, any such delay is not necessarily cause for doubting the accuracy of the results that are eventually reported. Historically, late election returns from certain localities (think Chicago, 1960) raised suspicions that the delays were used to swing the race to the favored candidate. But I would imagine that any delay in counting Cuyahoga's optical scan ballots once they have arrived at the Board's central office would be innocent, representing a bottleneck on the flow of ballots through the machines. Moreover, I would assume that representatives of the candidates -- and the media -- will keep an eagle eye on the counting process as it occurs at the central office, given the intense interest in Cuyahoga's vote.

I am more concerned, however, about the methods by which Cuyahoga's ballots are moved from precinct to central office. One need not expect anything nefarious in order to be a bit worried. In the May 2006 primary, the county lost in transit from precinct to central office 75 electronic cartridges containing the votes from 14 percent of precincts. Unfortunately, it is not at all inconceivable that on March 4, for reasons solely of ineptitude or inadvertent mistake, ballots could go missing before they have a chance to be counted. Also, the Ohio General Assembly is poised today to pass a bill that will permit transit to the central office twice on primary day, to speed up the central counting, but thereby potentially increasing the chances of errors in transit.

And although I'm no conspiracy theorist, I would like some greater assurance that no hanky-panky can occur in the handling of uncounted ballots while en route to HQ. Ohio often touts its inherently bipartisan structure of election administration at the precinct and county levels. Democratic and Republican pollworkers are supposed to watch each other as they jointly transfer custody of the ballots to county-level officials, who also are equally Democratic and Republican. But there is no guarantee that both Obama and Clinton are represented among pollworkers. If (as is commonly thought) Republicans would prefer Clinton to be the Democratic candidate, then it is theoretically possible -- unlikely to be sure, but still possible -- that Clinton-supporting pollworkers would combine with Republican pollworkers to "lose" a few Obama ballots while trucking them downtown for counting. It would be great if the media and "election protection" folks -- assuming they are trustworthy (how does the public know?) -- has the capacity to monitor the delivery of ballots from every precinct in the county, but that's asking a lot. It would have been better if Brunner had ordered an initial scan of the ballots at each precinct, so that there would be an electronic record to match against the central count. While I don't suspect anything untoward to actually occur on March 4, it will be interesting to see if there arise any allegations of irregularities in ballot-handling procedures.

More likely to occur are conventional problems in managing polling places. Some precincts are bound to open a little late, either because some poll workers don't show up on time -- or at all. One thing to watch for is whether such occurrences trigger calls to extend voting hours in the evening. In November 2006, Democrats convinced a federal judge to extend voting hours based on relatively modest problems of this type. At the time, Republicans believed it was a tactic designed to facilitate efforts to boost Democratic turnout. In the battle between Obama and Clinton for Ohio, it is conceivable that one side or the other might think it advantageous to keep the polls open for a couple of extra hours and thus might try to use any delays that occur in the morning as a basis for obtaining a court order for extra voting in the evening. (Any ballots cast after the regularly scheduled closing time must be provisional, according to the federal Help America Vote Act, and if such a court order occurs, it will be worthwhile to check to see if the court complies with this statutory rule.)

2. Disenfranchisement through Under-Capacity. The main memory from 2004 in Ohio is the inordinate length of lines in many polling places around the state, not just Cuyahoga County. Excessively long lines have again been a problem in this primary season, as state after state has failed to plan adequately for the high turnout caused by the excitement and competitiveness of the Democratic presidential race. Although there has been no systematic quantification of the problem, many news reports describe voters who, after waiting, have left the polling place without being able to cast a ballot (either regular or provisional). In some instances, it has been because the polling place itself has run out of ballots to cast, waiting on workers from headquarters to deliver a new supply. In any event, the electoral infrastructure in these states has been ill-equipped to handle a healthy public demand for its services.

The same problem could occur again in Ohio, echoing what happened in 2004. Then, especially in Franklin County, it was too few voting machines. This year, it could be too few poll workers, or least ones sufficiently trained to keep the lines moving quickly.

If there are reports of Ohio voters giving up in frustration because of lines over an hour in length, it is possible that the state could see renewed litigation over the issue. The object of the litigation would not necessarily be to change the result of the primary itself, but to seek a judicial remedy that would prevent similar disenfranchisement from occurring in November. There need not even be the filing of new lawsuits. The still-pending case filed by the League of Women Voters could become the vehicle for pursuing the matter.

3. Polling Place Confusion and Inequalities. Ohio has its own set of issues concerning the availability of paper ballots for the primary. As of this writing, it is still unclear whether Secretary Brunner will be permitted to enforce her planned requirement that counties using touchscreen machines must give voters the option of a paper ballot alternative. A state judge is considering one county's request for an injunction that would block Brunner's directive. [UPDATE: After the initial posting of this comment, the state court dismissed the county's case.]

If Brunner's "paper alternative" requirement does remain in force, some predict that the affected counties will run out of these paper ballots. That occurrence would not necessarily be disenfranchising, since voters still could use the touchscreen machines in these counties. But the turmoil at polling places, when voters ask for paper ballots but are told they cannot have them, may have collateral consequences, including increased delays.

Secretary Brunner has also ordered that all provisional ballots be cast on paper rather than machine. If any precinct ran out of provisional ballots, that would be a serious problem. Would the pollworkers then permit the provisional voter to cast a ballot on a machine, including the one that presumably is available for disabled voters? Or would the pollworkers deny the voter the right to cast any ballot at all, in direct contravention to HAVA's requirement that no one wishing to cast a provisional ballot be deprived of the opportunity to do so? If some precincts handled this problem one way, while others did another, this disparity in treatment of similarly situated voters would be grounds for an Equal Protection challenge. Since similar Equal Protection claims are already pending in the League of Women Voters' lawsuit, these new ones simply could be added to that case.

It seems unlikely that either Clinton or Obama would themselves go to court to contest the denial of provisional ballots to voters entitled to them -- because the margin of victory would have to be so extraordinarily close for these ballots to make a difference, and any candidate risks losing votes in upcoming primaries if the public frowns upon a "sore loser" contest over the Ohio outcome. But reports that Ohio voters in some localities were unable to cast provisional ballots would not sit easily with voting rights groups and would likely be pursued aggressively before November.

4. High Rates of Provisional Voting. We should look at provisional voting in Ohio on March 4 not only to see if anyone is denied the opportunity, but also to see how many voters are forced to cast provisional rather than regular ballots. Ohio had among the nation's highest rates of provisional voting in the 2004 and 2006 general elections. Indeed, Ohio was one of the few states to increase its rate of provisional voting from 2004 to 2006, rising from 2.7% of all ballots cast to 3.1%.

Moreover, some counties in Ohio had rates of provisional voting significantly above the statewide average. For example, Franklin County (where Columbus, the state capital, is) had a provisional voting rate in 2006 of 5.1%. These provisional ballots were a factor in the recount of the closely fought congressional race for Ohio's 15th district between incumbent Deborah Pryce and challenger Mary Jo Kilroy. A similarly high, or even higher, volume of provisional ballots conceivably could be a factor in the awarding of delegates between Clinton and Obama.

Other states in this primary season have experienced unusually high rates of provisional voting. It appears that most of the increase has been caused by questions about a voter's eligibility to receive a Democratic ballot if the voter isn't registered as a Democrat. Some Ohio voters could experience similar questioning. Although voters who are not already registered as a Democrat are entitled to switch registration in the primary, Ohio law permits pollworkers to challenge a voter's sincerity in switching. The challenged voter then must sign a statement "under penalty of election falsification" that he or she "supports the principles" of the Democratic Party. (Ohio Revised Code § 3513.20.) It seems unlikely that this provision of Ohio law will be enforced aggressively, but in some localities it may cause an increase in Ohio's already high rate of provisional voting -- since the pollworkers can require any challenged voter to vote provisionally (and any voter who refuses to sign the specified statement must do so). Furthermore, any discrepancies in the enforcement of this provision from one precinct to the next would provide further fodder for the League of Women Voters' omnibus Equal Protection challenge to the administration of Ohio's election laws.

5. Irregularities in Absentee Voting. In order to reduce the risk (and significance) of problems at polling places on March 4, election officials in Ohio are aggressively urging citizens to take advantage of "no excuse" absentee voting. All signs indicate that voters are heeding this message. While the effect may be to reduce demand for ballots at polling places on March 4, thereby avoiding disenfranchisement due to under-capacity, one wonders whether the state is trading one set of risks for another. Absentee voting is more susceptible to abusive practices, like organized inducements to vote for a certain candidate. The media should be on the lookout for any whiff of improprieties associated with absentee voting.

* * * * * * * * * * *

One, of course, hopes that no significant problems occur in connection with Ohio's primary. If the state -- and especially Cuyahoga County -- make it through unblemished, that accomplishment would be itself a major story. It would also bode well for November.

Someday election administration will return to being a non-issue for the public. The interest in the topic since 2000 and Bush v. Gore will have subsided, as voting procedures and practices become stabilized. That day has not yet arrived, but with any luck a successful March 4 primary will move us closer -- or at least will not set us back any further.

BRAND NEW STORIES

How Obama Won Ohio

Will Ohio Have Another Problematic Presidential Election?

Another Election Expert Questions Florida Do-over by Mail

Five Things to Keep an Eye on in Ohio

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