Litigating the 2006 Elections: The Top Three Issues Dominating Battles In And Out of Court, And the Reasons for the Election Lawsuit Explosion


By DANIEL TOKAJI

Wednesday, Sep. 27, 2006

There's no better way to spark debate than creating a ranked list. Taking a page from U.S. News & World Report's playbook, the current issue of Mother Jones ranks the 11 worst places to vote in the United States. While anything but scientific, the list provides a window through which to look at some of the big problems that are making news this election season. It's also a great starting point for considering the role of courts in overseeing the mechanics of democracy.

In this column, I'll summarize post-2000 election controversies, and then offer my list of the top three election law issues that are being debated - both in and out of court - this year.

The Election Litigation Explosion

Election-related lawsuits have been on the rise since the disputed 2000 election. That election famously ended with the Bush v. Gore opinion, which held the State of Florida's court-ordered recount process unconstitutional under the Equal Protection Clause, and sealed President George W. Bush's victory over then-Vice President Al Gore.

Since then, we've seen litigation on such varied issues as voting machines, provisional ballots, absentee voting, registration lists, voter identification laws, and long lines at the polling places, just to mention a few. While the reasons for the increase in election-related lawsuits are complex, it undoubtedly has much to do with the greater attention that partisans on both sides are devoting to the nuts and bolts of elections. There's simply a lot more attention being focus on election administration than was the case six years ago - which is probably the result of both major parties' realization that every vote really does count, at least when the margin is narrow enough. Civil rights groups have also gotten into the act, challenging practices such as punch-card ballots and barriers to registration, on both constitutional and statutory grounds.

Changes in federal and state law have also served as a catalyst for increased litigation. The Help America Vote Act of 2002 (HAVA) ushered in some significant changes in the way that elections are conducted. Among the requirements was that every state provide provisional ballots to voters who show up at the polls, only to find their names not on the list. In 2004, this requirement led to lawsuits in several states - including Ohio, Florida, and Colorado - over whether provisional ballots cast in the wrong precinct should be counted.

Election Law Issues to Watch in 2006

This year, we can expect to see further attention devoted to election-related problems, in the courts and elsewhere. As in 2004, this is partly the result of changes mandated by HAVA. For the first time this year, every state will be required to have in place a statewide voter registration list. In addition, those states that accepted federal money to replace punch-card and lever voting machines must have their new equipment in place this year. Finally, this year, every polling place in the country is supposed to have at least one voting machine that's accessible to people with disabilities.

While these reforms have much to recommend them, some problems will inevitably accompany the changes. In this sense, each state's election system can be thought of as a sort of ecosystem: Any alteration to one component tends to disrupt that system's delicate balance, requiring a period of adjustment. Adding to the disruption are changes in state law that have been enacted since 2004 - which then may interact with HAVA's federal law changes.

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While the Mother Jones story suggests that election-related controversies are limited to particular localities, in reality there are many places in the United States that are likely to have problems this year. In some states, those problems have already generated lawsuits, and more will probably follow.

Here's my list of the three biggest issues to look out for across the country as the 2006 election season unfolds:

1. Voter ID. One of the most significant developments since 2004 is the proliferation of laws requiring voters to produce identification in order to have their votes counted. The focal point for this controversy so far has been the State of Georgia, which enacted a law requiring government-issued photo identification in 2005. Civil rights groups complained that this law would have an especially negative effect on some groups of voters - including elderly people, disabled citizens, and racial minorities.

After civil rights groups persuaded a federal judge to issue an order stopping Georgia’s 2005 photo ID law, the Republican-dominated state legislature passed a modified version of the law, which allows government-issued ID to be provided for free.  This one hasn’t fared any better, with both a federal court and state court having issued injunctions preventing the law from going into effect.

The problems with Georgia's ID requirement earned that state the top spot on Mother Jones' list of the 11 worst places to vote. But Georgia isn't the only state with a voter ID battle on its hands. There are also cases pending in the two other states that have enacted laws requiring voters to show government-issued photo ID. In Indiana, a federal district judge upheld that state’s requirement, while a state court judge in Missouri has issued this order stopping that state’s photo ID law.

Congress has also gotten into the act. Last week, the House of Representatives passed legislation (H.R. 4844), which would require all voters to produce a government-issued photo identification that proves citizenship as of 2010. That law hasn't yet been considered by the Senate, and it would undoubtedly face a legal challenge if it were enacted. Whether or not it ultimately passes, it's almost certain that we'll be hearing more about the voter identification issue in the coming months.

2. Registration Controversies. The second big election law issue to watch out for in 2006 concerns the rules governing voter registration. Every state but North Dakota requires citizens to register, if they wish to vote, though a handful of others allow people to register on Election Day.

As noted above, HAVA requires that every state have a statewide registration database in place this year.  That’s proving to be a tall order for some states, including New York, which was sued by the U.S. Department of Justice for failing to implement this requirement.   Other states have a voter registration database in place, but have been sued for having procedures in place which threaten to result in some voters’ names being wrongly excised from the list.   A federal judge in Washington recently issued an injunction against that state’s procedures for requiring “matching” of voters’ registration information against driver’s license and Social Security records.  Kentucky is also facing litigation relating to registration; the issue has to do with the state’s procedures for purging voters from its list.

Another major voter registration issue to emerge in the 2006 election season concerns barriers to nonpartisan groups that conduct voter registration drives. In Florida, for example, the League of Women Voters brought suit after that state's legislature passed a law imposing heavy monetary penalties on groups that failed to submit registration forms in a timely manner. The federal district court issued an order concluding that the state law imposed an impermissible burden on First-Amendment-protected speech and association.   Similarly, in Ohio, a federal court has enjoined that state’s requirements for nonpartisan registration groups, which would have required each individual gathering registration forms to bring them directly to the county board of elections or Secretary of State’s office.

As in the area of voter registration, those challenging state rules claim that they impose an unfair barrier on certain groups' ability to participate in the democratic process. It appears very likely that voter registration will continue to be an issue generating controversy - and perhaps more litigation - for the remainder of this election season.

3. Voting Machines (Again). The final issue to watch in 2006 takes us back to what started all the attention to election reform in the first place: the equipment used to cast and count votes. The 2000 election focused public attention on the voting systems then in use, especially the notorious "hanging chad" punch card ballots used in Florida and many other states. In the wake of 2000, many states decided to replace their punch-card voting equipment with electronic voting systems, which allow voters to make their choices through touchscreen machines similar to ATMs. These systems also provide accessible voting for some people with disabilities, allowing them to vote without assistance - many of them for the first time in their lives.

The problem with electronic voting machines, in the eyes of some computer scientists, is that they are vulnerable to fraud and manipulation if an insider has access to the machine or its software. This issue has come to the fore recently, with the release of a report from Princeton University researchers on the vulnerabilities of a popular voting machine made by Diebold.

As with voter ID and registration, there has also been a lot of activity in the courts. Maryland, California, New Jersey, Florida, and Colorado are among the states that have seen lawsuits challenging electronic voting. In addition, disability rights advocates in California recently brought suit, arguing that the equipment used in several counties isn't sufficiently accessible to people with visual and manual dexterity impairments.

It's unlikely that any court will order existing equipment to be scrapped or replaced before the November general election. Still, the courts have an important role to play when it comes to the administration of elections: They can clarify what rights voters have before they go to the polls. And even when plaintiffs don't obtain the relief they seek, the courts' rulings can provide a beneficial effect by clarifying the rules of the game for election officials, poll workers, and voters alike.

For all these reasons, we're likely to see more litigation surrounding the nuts and bolts of elections between now and November 7. And that's not at all a bad thing.


Daniel Tokaji is an Assistant Professor of Law at the Ohio State University's Moritz College of Law, and is Associate Director of the Election Law @ Moritz project. He is the author of a daily weblog "Equal Vote" which is devoted to discussion of election reform and the Help America Vote Act.

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