Equal Vote
Sunday Night Hearing in Ohio Challenge Case
The Cincinnati Enquirer has this report on the hearing before U.S. District Judge Susan Dlott this evening, in Spencer v. Blackwell. A ruling may come as soon as tomorrow morning. The case seeks to stop the election-day challenges to voter eligibility, on the ground that they will discriminate against African Americans. Ohio Secretary of State Ken Blackwell has stated his recommendation that challengers be barred from the polling place, although Attorney General Jim Petro refused to take this position in court. The Enquirer also notes that lawsuits challenging the Ohio challenges are still pending in Akron and New Jersey.

Op-Ed on Voter Challenges
Below is an op-ed coauthored by Spencer Overton of George Washington University Law School and me. It appeared in the print edition of yesterday's Dayton Daily News:

Profiling at the Polls in Ohio
Presence of Partisan Challengers in Swing States a Threat to Democracy

Spencer Overton & Daniel Tokaji

Ohio Republicans recently announced plans to place 3,600 poll watchers in largely Democratic precincts to challenge the eligibility of voters on Election Day.

Officials in other swing states, including Arizona, Florida, and Wisconsin, anticipate similar Republican deployments. But the GOP should abandon its targeted voter challenges because the tactics threaten American democracy for all of us.

While the Republicans claim their challenges are necessary to prevent voter fraud, they follow a disturbing trend of targeting racial minorities at the polling place.

In August 2004, Phuong Tan Huynh campaigned to become the first Asian-American councilman in a majority-white Alabama town, and Huynh's political opponents challenged the voting qualifications of Asian-American voters as they entered the polling place (Huynh eventually won a council seat).

In anticipation of a close gubernatorial race, Republicans in Jefferson County, Kentucky, announced plans to place partisan challengers in predominantly black precincts during the November 2003 election.

In Ohio, all of the precincts in about a dozen counties that contain 91 percent of the state's black population - including urban areas like Cleveland, Cincinnati, Dayton, Toledo, and Akron - might have Republican challengers.

The selective use of voter challenges violates the principle of political equality in various ways. Legitimate voters in targeted precincts are more likely to be denied the right to vote than those in unchallenged precincts. In the pandemonium of Election Day, countless eligible voters will be unable to prove their eligibility and will be denied the opportunity to cast a regular ballot.

Repeated challenges will tax already overextended poll workers, create long lines, and reduce turnout in targeted areas. Further, abuses by just a handful of challengers from one party or the other could seriously distort the results of the election.

There is also the strong possibility of inequality from county to county, or even across precincts within a county.

Ohio's nebulous standard that challengers show "good cause" presents a problem similar to Florida's "clear intent of the voter" standard, struck down by the U.S. Supreme Court four years ago in Bush v. Gore. For example, a poll judge in Allen County might require that a challenged voter show a driver's license to prove residency, while a poll judge in Cuyahoga County might simply require that a challenged voter respond "yes" when asked whether she is a resident.

The new federal law requiring that voters be allowed to cast a provisional ballot does not fix the problem. There is great uncertainty throughout the nation over how many of the provisional ballots cast will actually be counted. In March 2004, only 416 of 5,914 provisional ballots cast in Chicago were counted - about 7 percent.

Claims that targeted challenges are necessary to maintain "voter integrity" are superficially appealing, but throughout history, politicians have advanced seemingly legitimate rationales to justify unfair and unequal election practices.

White politicians once argued that poll taxes were necessary to cover the costs of elections and that literacy tests were needed to ensure an intelligent pool of voters. But our nation rejected both poll taxes and literacy tests because the devices enabled white politicians to maintain power by systematically disenfranchising blacks.

Voter fraud is a real problem, and we must deal with it. But fairness requires that the law be enforced uniformly by impartial officials, rather than exploited selectively by partisan challengers. We should balance the values of access and integrity to prevent overzealous enforcement that reduces participation by legitimate voters.

The fundamental right to vote is too important to be entrusted to the whims of political parties determined to win at any cost.

Spencer Overton is a law professor at the George Washington University, and is writing a book on voter suppression entitled The Ghost of Jim Crow: The Unfinished Struggle for Voting Rights in America. Daniel Tokaji is an assistant professor of law and associate director of the Election Law Project at Ohio State University's Moritz College of Law.

Polling Place and ID Information
There are a number of websites out there providing information on polling place locations and other voter resources. People for the American way has set up mypollingplace.com with a nationwide polling place locator. For information on the ID requirements applicable in different states, see bringyourid.org. Although I can't guarantee the accuracy of the information on these sites, they're at least worth checking out, if you can't get straight information from local or state election officials.
Will There Be Challenges in Michigan Too?
As in other states, Michigan election officials are gearing up for the possibility of election day challenges to voter eligibility. Michigan law allows challenges to be made for “good cause” Challenges may not be made “indiscriminately” and it’s a crime to make challenges “for the purpose of annoying or delaying voters.” MCL 168.727. The Democratic Party is nevertheless concerned that challenges made be made for the purpose of intimidating voters, although the Republican Party denies any such plan, according to this Ann Arbor News report. Although Republicans have publicized the names of some registered voters with addresses they deem questionable, a Republican Party spokesperson says: “Our poll challengers should be out of the way, people shouldn't even see them. Their goal is to let everyone vote and to keep their eyes and ears open to watch the process."
Legal Issues to Watch in the Sunshine State
In the weeks leading up to November 2, Florida has already seen litigation in both state court and federal court over whether provisional ballots cast in the wrong precinct should be counted. It’s also seen federal lawsuits challenging paperless electronic voting machines and the rejection of incomplete registration forms. None of these claims have succeeded. But are there other election issues over which Floridians can expect to see litigation on or after November 2?

With its 27 electoral votes and history of election administration problems, Florida would seem a prime candidate for further election-related lawsuits. Issues that might give rise to litigation include (1) the use of challenges at the polling place, particularly if they’re disproportionately used against minority voters (2) ineligible persons voting (the GOP is already alleging that 925 felons plan to vote illegally), (3) problems with the electronic voting systems used in several of Florida’s largest counties, (4) whether to count ambiguously marked paper ballots, used in some Florida counties, in the event of a recount, and (5) disputes over whether and how provisional ballots should be counted (something that could prove particularly important in Broward County, where there have been serious problems with absentee ballots not getting to voters in time). The AP has this report on potential lawsuits in Florida and other key swing states.
Florida’s Guidance on Election Day Challenges
Florida Election Director Dawn Roberts' October 28 memorandum on election day challenges is now posted on the Election Law @ Moritz site. The memo emphasizes the need to prevent challengers from disrupting or delaying the voting process. It describes the process of conducting challenges prescribed by Florida Statutes 101.111, under which challenges must be made under oath and the challenged voter has the opportunity to make a statement under oath. Clerks and inspectors at the polling place will then decide, by majority vote, whether to sustain the challenge based on the oaths and other evidence presented. In a footnote, the memo takes the position that “the felon component of the Central Voter Database does not constitute sufficient proof for purposes of making a determination on whether a person is a felon….” Those voters who are successfully challenged should be given a provisional ballot. The challenged voters’ provisional ballots will then go to the canvassing board for a final decision, with a “presumption in favor of eligibility.”

Ohio Judge Limits Voter Challengers
A Cuyahoga County Court of Common Pleas judge has issued a permanent injunction limiting the number of challengers from each party at each polling place. Under Blackwell's Directive 2004-45, each party would have been allowed to have one challenger at each precinct. Because some polling places serve more than one precinct, this would effectively have allowed a party to have multiple challengers at some polling places.

A press release from the Lawyers Committee of Civil Rights, which brought the lawsuit, states:
Ohio State Court Judge John P. O’Donnell entered a permanent statewide injunction today barring multiple challengers from polling places on Election Day. The Court ordered Ohio Secretary of State J. Kenneth Blackwell to rescind an earlier directive, which would have allowed each party from a precinct to send a challenger to the polling place.

The Court’s order is permanent and applies to all counties in Ohio. At this time, it is not known whether the Secretary of State will appeal the Court’s Order.

The suit was brought by voters in Cuyahoga County, who were concerned that the placement of large numbers of challengers in heavily minority precincts would be used to discourage voters from casting their ballots, particularly African Americans.
Update: The order is now posted here. It finds that Secretary Blackwell acted "arbitrarily, unreasonably and unconscionably" and in "clear disregard" of Ohio law, in allowing more than one challenger from each challenging entity (such as a party) at each polling place. The order applies to all 88 counties in the state. Blackwell is directed to notify all county boards of the ruling by 8:00 pm Sunday, October 31.
New Ohio Voter Challenge Lawsuit
The Lawyers Committee for Civil Rights has filed a lawsuit regarding Ohio's election day challenge law, ORC 3503.20. The press release announcing the lawsuit can be found here. The complaint is here and exhibits here. The suit is filed on behalf of African American voters in Cuyahoga County against Secretary of State Ken Blackwell and the county board of elections. The lawsuit alleges that the large number of challengers is meant to discourage blacks from voting. A TRO hearing was scheduled for today, but no word yet on the result.

More News on Nevada Registration-Destruction Allegations
A petition has been filed in the Nevada Supreme Court, on behalf of a couple claiming that a Republican-backed voter registration group was tossing out Democratic registration forms. The Las Vegas Review Journal has this report. Eric and Tracy Amberson claim that Voters Outreach of America, a group formed by the Republican consulting firm Sproul & Associates, destroyed their registration forms. The Ambersons say they registered on October 2 outside a Wal-Mart, but found that their names weren't on the registration rolls when they checked about three weeks later. See this post and the EL@M October 27 Daily Report for background on the allegations against Sproul & Associates.
Columbus Dispatch on Race and Voter Challenges
Today's Columbus Dispatch features this graphic showing the ten precincts in Franklin County where Republicans have filed the most pre-election day challenges. The chart includes the percent of black voters in these ten precincts. It shows that the three precincts with the most challenges are all majority-black. This tends to support the Democrats allegations that the Republicans are using the challenge process to target African American voters. In related news, the Dispatch has this report on the state of play -- and the state of litigation -- on the issue of challenges in Ohio. The Dispatch reports that African Americans compose 42% of the population in Franklin County precincts with over ten Republican challenges, even though they compose only 16% of the county's voting-age population.
Florida's Guidance on Voter Challenges and Ex-Felons
Florida Elections Director Dawn Roberts has issued a four-page memorandum describing how the challenge process should be conducted. (We're trying to track down a copy of the memo and will post it on the Election Law @ Moritz site when it becomes available.) The St. Petersburg Times reports that the memo emphasizes the importance of conducting the challenge process without unduly delaying voters. More than 2325 challengers are expected in Miami-Dade County, and 959 have already signed up in Duval County where Jacksonville is located. Those who are successfully challenged still have the right to cast provisional ballots.

Inclusion in the state's flawed database of former felons is not sufficient evidence to sustain a challenge. The GOP has already produced a list of over 900 names of alleged felons whom they claim may have illegally voted or absentee ballots. However, these names were drawn from a faulty state database according to the St. Pete's Times.

In related news, the New York Times reports that the Florida Department of Law Enforcement will wait until after the election to investigate the Republicans' claim that ex-felons have illegally voted or requested absentee ballots. Altogether, the Republicans claim that there are some 14,000 voters who should not be on the rolls because of their status as ex-felons.
Nevada's Guidance on Voter Challenges
The Nevada Secretary of State's office has issued this memorandum providing guidance to the counties on how election-day challenges should be conducted. The memo notes the Secretary's conviction that election officials have a responsibility to protect voters from "intimidation, harassment or undue influence." While the deadline for written challenges has already passed, oral challenges may be made under NRS 293.303. The Las Vegas Review Journal has this report on voter challenges and early voting.

Under the Secretary's memo, challenges must be based upon a "good faith belief" that the voter is not entitled to vote and poll workers are entitled to question the challenger on the basis for such belief. The memo places the burden on challengers to show that they're entitled to exercise their right to make a challenge.

Voters who affirm that they're registered at the address in the register are entitled to vote there, while those who have moved within the county are entitled to cast a ballot in the precinct where they formerly resided. Voters who refuse to provide such affirmation are to be directed to special polling places to be set up by counties, where they're entitled to vote only for President, U.S. Senate, and statewide offices or questions. On the whole, this process appears to be designed to make sure that voters aren't wrongly turned away from the polls.
Federal Court Issues TRO in Minnesota ID Lawsuit
U.S. District Judge James Rosenbaum has issued a temporary restraining order in the ACLU Of Minnesota's lawsuit, challenging the refusal to accept tribal identification cards in satisfaction of HAVA's ID requirement. The order is available here on the Election Law @ Moritz website. Judge Rosenbaum found that Plaintiffs had shown a likelihood of success on their claim that the failure to accept tribal ID cards denies equal protection.
Wang on HAVA Problems
Tova Wang of the Century Foundation has been busy. She's written this issue brief entitled "Playing Games with Democracy." It assesses how various provisions of the Help America vote Act are "being used and abused in ways that are designed to disenfranchise voters." She's also written shorter pieces addressing HAVA implementation and other voting issues in three battleground states: Ohio, Missouri, and most recently Michigan. Each of these reports provides a very helpful summary of problems in such areas as registration, the ID requirement, provisional ballots, voting equipment, and vote suppression. (Evidently, Tova's had some time on her hands since my beloved Red Sox beat her beloved Yanks, but I promise not to gloat.)
Nevada Gaming Experts Assess Electronic Voting
The Nevada Secretary of State has asked the experts responsible for testing the state’s slot machine to examine the electronic voting machines to be used throughout the state in the forthcoming election. CNN has this report. Secretary of State Dean Heller claims that Nevada’s electronic voting system is the most secure in the country.
Challenging Florida Voters at the Polls
Republicans are preparing to file written challenges to eligible voters in an ostensible effort to stamp out fraud, according to this Palm Beach Post report. Challenges are allowed under Fla. Stat. § 101.111. Democrats are concerned that such challenges could intimidate voters and slow down voting, particularly in African American communities. E-mails exchanged by Republican staffers have surfaced, revealing the names of hundreds of African Americans in Jacksonville who may be challenged, though Republicans deny that this list indicates those who will be challenged.
Appeals Court Upholds Manual Recount Rule
A Florida court of appeals has rejected a challenge to the procedure to be followed, in the event of a manual recount, in the 15 counties using electronic voting machines. The Sun-Sentinel has this report. Democrats had argued that the rule setting forth the procedure was hastily adopted and functionally identical to a previously adopted rule.
Ohio AG v. Ohio SOS on Election Day Challenges
Earlier today, Ohio Secretary of State Ken Blackwell announced his recommendation that challengers be barred from the polling place on election day. His full statement can be found here. In light of the challenges to Ohio's election-day challenge procedure, brought by African American voters in Cincinnati and the Summit County Democratic Party, Blackwell states: "I have instructed the Attorney General to offer the following recommendation to the federal courts in Hamilton and Summit counties for resolution of these matters now: All challengers of all parties shall be excluded from polling places throughout the state."

It gets even more interesting. About two hours after Blackwell released his statement, Attorney General Jim Petro issued a statement indicating his refusal to abide by Blackwell's recommendation -- even though Blackwell is his client in the pending litigation. Petro's statement can be found here. (Incidentally, Petro and Blackwell are both Republicans and both reportedly plan to run for Governor in 2006.) Petro's rationale is that "Neither the Secretary of State nor I can negotiate away the legal rights of Ohio’s citizens."

The Cincinnati Enquirer has this report on the Blackwell-Petro dispute. Stay tuned...
Pre-Election Challenges in All Ohio Counties Suspended
U.S. District Judge Susan Dlott today extended the temporary restraining order in Miller v. Blackwell, to cover all counties in which the Republican Party had filed pre-election challenges to voter qualfications. This follows the Sixth Circuit's denial of an emergency motion to stay Judge Dlott's TRO, available here.
New Lawsuit Against Ohio Voter Challenges
African American voters in Cincinnati have brought a federal class action lawsuit against Secretary of State Ken Blackwell, Hamilton County election officials, and the Chair of the Hamilton County Republican Party. Spencer v. Blackwell. The complaint and TRO papers can be found here.

The lawsuit alleges that the practice of challenging voters on election day denies the voting rights of African Americans in Hamilton County. The complaint alleges that Ohio's voter challenge statute is a "Jim Crow era" statute being used for a racially discriminatory purpose. Plaintiffs also allege that the practice of challenging voters under this law violates the Voting Rights Act. The plaintiffs seek a temporary restraining order, preventing challengers from being present in the polling place on election day.

This lawsuit differs from the Miller v. Blackwell case, in which a TRO issued yesterday, in that the new case seeks to stop voter challenges on election day. In contrast, the TRO issued yesterday in Miller (see here) addresses pre-election challenges. Judge Dlott's order blocking the pre-election challenges is now available here. The Secretary of State has filed an appeal and emergency stay motion in that case.
Two Electronic Voting Opinions
Courts in both New Jersey and Florida have now rejected challenges to the electronic voting systems used in those states. The opinion in the New Jersey case can be found here and the opinion in the Florida case here.

In the New Jersey case (Gusciora v. McGreevey), the plaintiffs sought to enjoin the use of paperless electronic systems to be used in the forthcoming election by 15 New Jersey counties. Superior Court Judge Feinberg's 51 page ruling relies on prior decisions in California and Maryland that have upheld electronic voting, noting that it's much too late in the day to make the switch to a different system without courting disaster. The court concludes:
[S]witching to a system of paper ballots at this late date in 15 counties is logistically impossible. The speculative concerns regarding electronic voting pales in comparison with the very real threat of voter confusion and the inability to conduct an orderly and secure election process on November 2, 2004
See here and here for my prior thoughts on this case.

In the Florida case (Wexler v. LePore), U.S. District Judge James Cohn rejects Rep. Robert Wexler's challenge to the paperless electronic voting systems to be used in 15 of Florida's 67 counties in the forthcoming election. Judge Cohn concludes that Florida’s use of electronic voting is consistent with the Equal Protection Clause, as interpreted in Bush v. Gore, and with state law. Wexler reportedly plans to appeal to the Eleventh Circuit. See here for the Sun-Sentinel's coverage.
Ohio Provisional Voting Opinion
The Sixth Circuit has now issued opinions in the Ohio provisional voting case, holding that provisional ballots cast in the "wrong precinct" need not be counted. The court holds that HAVA is enforceable through private actions under section 1983. But it concludes that the term "jurisdiction" as used in HAVA need not be interpreted in the same way as the term "registrar's jurisdiction" in the NVRA (aka "Motor Voter"). It therefore upholds the Secretary of State's instruction that provisional voters be required to affirm that they're registered within the precinct, and not merely the county, within which they appear. The court proceeds to hold that HAVA doesn't require provisional ballots to be counted if cast in the wrong precinct. The Sixth Circuit does, however, affirm the district court's conclusion that the Secretary of State's directive violates HAVA, insofar as it required a voter's residency to be determined "on the spot" by pollworkers and empowered them to deny a provisional ballot unless the voter's residency in the precinct could be confirmed.
Denial of TRO in Cuyahoga County Registration Case
U.S. District Judge Paul R. Matia has denied a temporary restraining order, sought in a case challenging the claimed mishandling of voter registrations in Cuyahoga County, Ohio (Cleveland area). The order can be found here on the Election Law @ Moritz website. The lawsuit alleges that the county has made errors in transcribing information from registration applications, failed to process registrations and provided inaccurate information about provisional voting for those who move between precincts. The court denies the TRO, on the ground that the "drastic remedies" sought by plaintiffs aren't necessary to preserve their voting rights. In particular, the court notes that provisional voting will allow those whose names don't appear on the registration lists to be counted, if their names were omitted by mistakes.

My take: Judge Matia's faith that provisional voting will solve Cuyahoga County's registration problems may not be warranted, given all the difficulties that Ohio is experiencing in implementing this requirement of HAVA. Let's hope he's right.
Federal Judge Halts Ohio Voter Challenges
U.S. District Judge Susan Dlott has issued a temporary restraining order stopping the pre-election challenges to some 35,000 recently registered Ohio voters. Republicans challenged these voters under a provision of Ohio state law (ORC 3505.24) allowing boards of elections to remove voters from registration lists if they're not qualified. For background on the challenges and lawsuit, see this story in today's Columbus Dispatch.

Judge Dlott's oral decision bars the Secretary of State and six county boards of elections from proceeding with hearings on the disqualification of these voters, pending a preliminary injunction hearing that's to take place in her Cincinnati courtroom on Friday at 10:30 am. A press release issued by the court says that a written order will be issued later today. Stay tuned ...
Ohio as the Florida of 2004
The Washington Post offers this report on the many election-related concerns that have arisen in the Buckeye State, with more appearing each day. You heard it here first -- see this post from March 7, 2004, entitled "Could Ohio Be the Next Florida?"
Christian Science Monitor on Provisional Ballots
The Christian Science Monitor has this story, discussing the potential for post-election litigation over whether provisional ballots get counted. The pre-election fights over provisional voting in the "wrong precinct" may only be phase one. If the election is close, expect fights over whether the provisional votes cast should be counted -- the answer to which will hinge on whether those casting provisionals were eligible to vote under state law.
New Jersey Judge Rejects Challenge to Electronic Voting
A New Jersey Superior Court judge has rejected a request to ban the use of electronic voting machines in Tuesday's election. The Philadelphia Inquirer has this report. Judge Linda Feinstein observed that forcing the replacement of the electronic voting machines within days of the election would be "a formula for disaster." See here for background and my thoughts on this lawsuit.
Spoiling for Another Fight in Florida?
The A.P. reports here on lawyers gearing up for legal battles in Florida, on election day and possibly afterwards. Approximately 2000 Democratic lawyers will be working on election issues in Florida. Republicans haven’t provided the number of election lawyers on their side. The Washington Times reports here that Florida election officials are warning county election officials to be alert to the possibility of harassment at polling places.
Electionline.org Report on State(s) of Election Reform
Now available online is this report by electionline.org, detailing the status of election reform in the states. The report, entitled "Election Preview 2004: What's Changed, What Hasn't and Why," includes discussion of voting equipment, absentee voting, early voting, registration changes, and ex-felon voting.
Iowa Provisional Voting and Registration Issues
Iowa Republicans brought suit in state court on Monday October 25, to stop election officials from counting provisional votes cast in the "wrong precinct." The Des Moines Register has this report. This is the mirror-image of cases filed in Ohio, Michigan, Colorado, Florida and Missouri, in which the states' refusal to count provisional ballots cast in the wrong precinct has been challenged. The Iowa plaintiffs challenge the opinion of the state's Democratic Attorney General, that voters casting provisional ballots in the correct county but wrong precinct should have their votes counted for federal office. A hearing is scheduled for Wednesday on the Republicans' request for immediate injunctive relief.

In related news, some Iowa Republicans are calling for the resignation of Secretary of State Chet Culver, for advising that registration forms without the U.S. citizenship box checked should be accepted. Iowa's Secretary of State follows Colorado, Michigan, Ohio, Washington and Wisconsin in taking this approach. The Iowa Voter Registration Commission voted against 2-2 against changing the rule regarding the citizenship box, but at least some election officials reportedly plan to follow Culver's advice that forms without the box checked should be accepted.

Secretary of State Culver is apparently relying on this opinion from the Iowa Department of Justice. That opinion finds that HAVA doesn't require this box to be checked, for voters to be properly registered in elections for federal office. The Iowa legislature had assumed otherwise, in passing a law stating that voters should be considered registered in state and local elections, even if the box isn't checked. The Iowa DOJ concluded that those who "submit a registration form which is complete in all other respects, but upon which the applicant has failed to mark either yes or no to the citizenship question, should be treated as fully registered for state, local, and federal elections."
Florida Electronic Voting Decision
A federal court in Florida has again dismissed Rep. Robert Wexler's lawsuit, challenging the use of paperless electronic voting. FCW.com has this report. In related news, Buddy Nevins here offers his view that electronic voting is the best bet for an accurate count, in today's Sun-Sentinel.
Demos Provisional Voting Report
Now available on Demos' website is this report entitled "Placebo Ballots: Will Fail-Safe Voting Fail?" It addresses the state's implementation of provisional voting requirement, finding that "over half the states have subverted the lofty goal of HAVA's provisional voting requirement" (their words, not mine). The report estimates that more than 200,000 provisional votes may be discarded.
Update on Michigan Provisional Voting Case
The Sixth Circuit has ordered both sides to submit written arguments tomorrow (Tuesday), in the appeal of the order requiring Michigan to count provisional ballots cast in the "wrong precinct." The A.P. has this report. The Sixth Circuit has already stayed the district court's order, after concluding in the Ohio litigation that the Help America Vote Act does not require states to count provisional ballots cast out of precinct. The Michigan case (Bay County Democratic Party v. Land) raises the additional question of whether state voter eligibility laws require the state to count provisional ballots cast within a city or township, even if the voter mistakenly appears at the wrong precinct.
Ohio Litigation Update
The Sixth Circuit has issued an order affirming in part and reversing in part the district court's preliminary injunction order. The panel affirms the district court's conclusion that there's a private right of action under 1983 for violation of rights created under the Help America Vote Act. It also affirms, insofar as the district court order requires that voters be allowed to cast a provisional ballot if they're eligible to vote "in the jurisdiction." But it reverses the district court's order that HAVA requires provisional ballots to be counted, if cast anywhere in the county of the voter's residence. The order states that a written opinion will follow.

In related news, the Columbus Dispatch has this disturbing report on a particularly virulent form of vote suppression: voters being called at home and being told, falsely, that their precinct has changed. Chris Geidner has this take on Secretary Blackwell's "Vote in Your Correct Precinct" TV ads.

Meanwhile, Judge Carr has denied the Lucas County Democratic Party's motion for a preliminary injunction on the "Box 10" issue, described here. Judge Carr's order doesn't squarely address the merits. Instead, it rests on the fact that there's not enough time between now and the election to develop an evidentiary record sufficient to decide the case. It also chides plaintiffs for waiting so long to challenge Secretary of State Blackwell's order, which was issued in December 2003.

(A side note: I spent about two months trying to get information from the Ohio Secretary of State and Attorney General about how they they were implementing HAVA. The state was less than forthcoming, to say the least. Although I requested information from the Secretary of State's office in August, my request was referred to the AG, and the information wasn't provided until the week of October 11. Included in those documents was the memorandum indicating that forms with Box 10 left blank would be rejected -- the first time I found out that the Secretary of State had given such an instruction. Wonder if the Democratic Party had similar difficulty in prying information from the state about its HAVA implementation plan.)
ACLU Report on Purging
The ACLU, Demos and Right to Vote have issued a report entitled "Purged: How a patchwork of flawed and inconsistent voting systems could deprive millions of Americans of their right to vote". It includes a report card of state felon purge laws and practices, rating them on how lists are compiled, how "matches" are determined, and whether the purged individual is given notice. The report contains a summary of the felon purge practices within the states surveyed, and suggests good practices for notification and matching.
Electronic Voting News
Here's a rundown of some of the recent stories that have appeared regarding the implementation of electronic voting.

- The Caltech/MIT Voting Technology Project has several new items on their website. They include this commentary by MIT's Ted Selker and this report by Charles Stewart on Georgia's electronic voting system. Also included are materials from a symposium on voting technology that took place at MIT earlier this month.

- In New Mexico, some voters claim that voting machines didn't correctly register their choices on the screen, according to this report from the Albequerque Journal. However, those voters were able to correct their choices before casting the electronic voting. This emphasizes the importance of checking the review screen that appears at the end of the e-voting process.

- Jim Adler's blog notes that VoteHere's chief scientist Andy Neff will be discussing e-voting transparency at Berkeley, CalTech, Stanford, and Carnegie-Mellon in coming weeks. He also provides an abstract from Neff's talk on "Trustworthy Electronic Election Results without Trusted Machines." Adler also reports on experiments with contemporaneous paper records in
Nevada and Venezuela.

- Finally, on the lighter side, some electronic voting humor.
Another Florida Provisional Voting Order
The U.S. District Court for the Northern District of Florida has issued an order granting in part and denying in part the Democratic Party's motion for a preliminary injunction (Florida Democratic Party v. Hood). In an order by Judge Robert Hinkle, the court holds that provisional voting rights under the Help America Vote Act may be enforced through private lawsuits brought pursuant to section 1983. The order requires that voters be allowed to cast a provisional ballot, even if they appear at the wrong polling place, but doesn't require that those provisional ballots be counted. The A.P. has this report.
In Miami Today
Because there weren't enough election-related problems in Ohio . . .

I'm in Miami, Florida today, for the American Constitution Society's conference on "Election Law, Voting Rights and the 2004 Election,” which runs from 1:00 to 6:00 pm today. Here are the three panels:
Voter (Dis)enfranchisement: Issues for the 2004 Election, 1:15-2:45 pm
Doug Chapin, Director, electionline.org
Deborah Goldberg, Director, Brennan Center for Democracy
Janai Nelson, NAACP LDF
Tova Wang, Senior Program Analyst, The Century Foundation

Counting Every Vote: Voting Technology and the Law, 3:00-4:30 pm

Kim Brace, Director, Election Data Services
David Kimball, University of Missouri
Martha Mahoney, University of Miami Law School
Daniel Tokaji, Ohio State University's Moritz College of Law

Florida Election Law: Avoiding the Ghosts of 2000, 4:45-6:00 pm

Mitchell Berger, Berger Singerman and counsel in the 2000 recount litigation
Eric Buermann, General Counsel to the Miami-Dade Republican Party, and former General Counsel to Bush-Cheney in 2000
Ronald Labasky, General Counsel, Florida State Association of Election Supervisors
Lida Rodriguez-Tassef, Miami-Dade Election Reform Coalition
Courtenay Strickland, Voting Rights Project, ACLU of Florida

The conference will take place at the University of Miami, Storer Auditorium.
Update on Ohio Litigation
The Sixth Circuit has set a briefing schedule on the appeal of the district court order, holding that HAVA requires provisional voting out of precinct. (See yesterday's post.) The Secretary of State's brief was due today, and the Democratic Party's brief on Saturday. Argument, if necessary, will take place on Tuesday, October 26 in Cincinnati.

Meanwhile, Judge Carr has dismissed a claim by the League of Women Voters that the Secretary of State's implementation of the ID requirement violates HAVA. This ruling comes after the Secretary clarified that ID would NOT be required of those who present the last four digits of their SSN at the time of voting. The court's order may be found here.
Ohio Governor at Moritz on Thursday
Gov. Bob Taft will appear at the Ohio State University's Moritz College of Law tomorrow at 12 noon, on a panel entitled "“The Legacy of Election 2000: If the System Fails Again?” I'll be one of the other panelists, along with my collegues Peter Shane and Steve Huefner. The event will be webcast live here. Given all the controversy surrounding the forthcoming election in Ohio, this event is not to be missed.
New Jersey Lawsuit to Block Electronic Voting
With just two weeks left before the November election, anti-electronic voting advocates in New Jersey have brought suit to stop the use of paperless electronic systems in that state. The N.Y. Times offers this story and the A.P. this one. The suit, filed in a N.J. state court, seeks to block the use of 8,000 electronic voting machines on the grounds that they "cannot be relied upon to protect the fundamental right to vote." More than three million voters in 15 of New Jersey's 21 counties are to use electronic voting machines in this election.

My take: This lawsuit is completely irresponsible, if these reports are accurate. However one feels about the security of electronic voting, it's far too late in the day to be talking about replacing this or any other state's voting equipment ... a fact that responsible opponents of electronic voting have recognized for several months. As anyone with even a passing knowledge of election administration knows, it takes time to make the switch from one voting system to another. Courts in Maryland and California have already rejected challenges to the security of paperless electronic voting. And those decisions were issued in lawsuits brought much earlier in this election cycle.

It's hard to imagine that any court would take this complaint seriously, given the chaos that would result from the relief that plaintiffs seek. The only thing that this lawsuit will accomplish is to further undermine confidence in the electoral process, and give voters an excuse to stay away from the polls altogether.

GOP Alleges Widespread Fraud in New Mexico
The New Mexico Republican Party is asserting that there will be some 15,000 to 20,000 "fraudulent votes" in the forthcoming election, most of them for Democratic nominee John Kerry. The Hill offers this report. The GOP plans a lawsuit if the New Mexico vote is close.

According to a Republican spokesperson, the blame lies not with the Democratic Party but with over-aggressive voter registration efforts by left-leaning 527's. The Secretary of State reports that about 150,000 new voters have been registered. Not clear from the article is upon what the Republicans base their estimate that over 10% of these new registrations are fraudulent.
Judge Rules Against Blackwell ... Again
U.S. District Judge James Carr today issued a stinging order, which finds that Ohio Secretary of State Ken Blackwell's new proposed directive on provisional voting still fails to comply with the Help America Vote Act. Last week, Judge Carr issued an order finding that Blackwell's directive 2004-33 violated HAVA, by refusing to allow provisional ballots to be cast by voters unless it can be confirmed that they're at the correct precinct. See here for my description and a copy of the court's order. The court denied Blackwell's request for a stay, and ordered him to file a HAVA-compliant directive for the court's review.

In today's ruling, Judge Carr lambasts Secretary Blackwell for his failure to adhere to the new provisional voting requirements of federal law. Here's a sample:
Instead of describing the requirements of HAVA in Directive 2004-33, Blackwell gave a narrative description of Ohio's pre-HAVA, outdated provisional voting procedures. Those procedures indisputably fail to extend the right to vote provisionally, as mandated by HAVA, to all Ohio voters who are entitled under HAVA to do so.

By failing to discuss HAVA, on the one hand, and describing only outmoded, no longer applicable procedures on the other, Blackwell, in all likelihood, left Ohio's election officials more confused than they would have been if the directive had not been issued.

As a result of his failure to do the job he admitted in Directive 2004-33 must be done...Blackwell, Ohio's chief election official, would, if Directive 2004-33 were to have been implemented, have disenfranchised large numbers of Ohio voters on November 2, 2004....
The court goes on to explain that Blackwell's new proposed directive, submitted in response to the court's preliminary injunction order, still falls short of what HAVA requires:
The Proposed Directive remains as drastically under-inclusive as Directive 2004-33, and is every bit as much in violation of HAVA.
The right to vote provisionally under HAVA is not limited to persons whose names are not on the rolls. That right is also extended to any individual who is told by an election official that he or she "is not eligible to vote."...

By not even mentioning this group -- the primary beneficiaries of HAVA's provisional voting provisions -- Blackwell apparently seeks to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000....

[T]he Proposed Directive treats this Court's determination that HAVA permits county-wide, rather than just "home" precinct provisional voting in federal elections as though that decision had not been reached ....

[Blackwell's] failure to submit a Proposed Directive that reflected my ruling ont that issue is inexplicable.
In light of Blackwell's failure to produce a directive that complies with HAVA and the preliminary injunction order, the court submits a proposed order for comment by counsel. That order closely tracks the requirements of HAVA, and requires that no one be denied a provisional ballot because they reside within a different precinct. Those provisional ballots must be counted for the U.S. President and Senate races, and for the U.S. House race provided that the voter is elgible to vote for the contest on the ballot in the precinct at which he or she appears.
Waterstone on Lane & Voting Rights
Michael Waterstone has a new article entitled "Lane, Fundamental Rights and Voting," available here on SSRN. It addresses the implications of the Supreme Court's decision in Tennessee v. Lane for laws designed to protect the fundamental rights of people with disabilities, most notably Title II of the Americans with Disabilities Act. Here's the abstract:
New federalism's premise is that the Courts are the ultimate arbiter of Congress's ability to use its Section 5 powers to enforce Section 1 of the Fourteenth Amendment. This Article argues that while this principle survives the Supreme Court's recent decision in Tennessee v. Lane, the rules have been changed for cases involving fundamental rights. In Lane, the Court's review of Congress' justifications and constitutional bases for passing Title II of the Americans with Disabilities Act was more relaxed than in previous new federalism cases. While Lane itself does not justify this departure, this Article suggests that the doctrinal and theoretical justification for this shift is that the Court should give a presumption in favor of the validity of Congressional abrogation of state sovereign immunity in cases involving fundamental rights.

This Article applies this view of Lane to a future category of ADA Title II fundamental rights litigation - cases involving the right to vote for people with disabilities. Although earlier new federalism cases would compel a different conclusion, after Lane, Courts should hold that the ADA validly abrogates the States' sovereign immunity in Title II voting cases. This has implications for the whole range of Section 5 legislation.

Finally, the disability rights community has criticized Lane for providing insufficient clarity for future Title II cases. This application of Lane to voting responds to that criticism, showing how the presumption in fundamental rights cases is sufficiently strong as to discourage needless litigation.
The article will be published in the Alabama Law Review, and is definitely worth reading.
Michigan Provisional Voting and ID Decision
A federal district court in Michigan has ruled that the state must count provisional ballots cast within any precinct in the voter's home city, township, or village. The decision comes in consolidated cases brought by the NAACP and Democratic Party. Here's an excerpt from Judge David Lawson's opinion:
The Court finds that Michigan election law defines voter qualifications in terms of the voter's home jurisdiction, and a person who casts a provisional ballot within his or her jurisdiction in entitled under federal law to have his or her votes for federal offices counted if their eligibility to vote in that election can be verified.
The district court's 51-page ruling distinguishes the Missouri provisional voting decision, Hawkins v. Blunt, which found that Missouri's procedure for directing voters to the proper precinct -- but refusing to count their provisional ballots if they refused to go -- was consistent with HAVA.

The court upholds Michigan's ID requirement. Under the state's rule, those who are subject to the ID requirement (generally first-time voters who registered by mail after January 1, 2003 and didn't submit copies of ID with their registration forms) are allowed to cast provisional ballots, which must be counted if the voter produce ID within six days of the election.
Florida Provisional Voting Decision
The Florida Supreme Court has rejected the AFL-CIO's claim that the state constitution requires the state to allow and count provisional votes cast in the "wrong precinct." The Sun-Sentinel has this report.
Justice Department Brief in Michigan Provisional Voting Case
The United States Department of Justice has filed an amicus brief, arguing that the Help America Vote Act doesn't require that voters be allowed to cast provisional ballots -- or that those provisional ballots be counted -- if they appear in the "wrong precinct." The Washington Post has this report. The Justice Department argues that private actions can't be brought to enforce HAVA. It also argues that the term "jurisdiction" need not be interpreted to mean "county" and, therefore, that HAVA doesn't require counties to issue provisional ballots unless voters appear at the proper precinct.
"Box 10" Complaint in Ohio
The Lucas County Democratic Party and Ohio Democratic Party have filed a new federal lawsuit, challenging Secretary of State Ken Blackwell's memorandum requiring the rejection of certain voter registration forms. The case surrounds Blackwell's order that counties not accept registration forms delivered in person, unless "Box 10" is filled in. Box 10 requires voters to fill in either the last four digits of their SSN, or their Drivers' License number.

The complaint alleges that Blackwell's order violates the National Voter Registration Act, aka "Motor Voter." From the complaint's introduction:
3. In a December 31, 2003 memorandum issued by Defendant’s office to Ohio County Boards of Elections that purported to interpret the federal Help America Vote Act (“HAVA”), Defendant directed that, with respect to any individual who submits a voter registration form in person at a county board office, a public library, a Department of Motor Vehicle office, or any other locations accepting such forms, “the application cannot be accepted if Box 10 is not completed[,] unless the applicant” states that he does not possess the requisite information and writes “None” in that space. See Memorandum from Dana Walch to County Boards of Elections, Dec. 31, 2003, at 2.

4. In the same memorandum, Defendant’s office also stated that if an individual completes the same form by mail, the applicant need not complete Box 10. According to the memorandum, “[t]he board would consider [such] a form a valid registration but would flag that elector’s name in the poll book so that, the first time that elector appears at the polls to vote, pollworkers would ask the elector for proof of identity and obtain the missing information.” Id. at 1.

5. The Defendant is obligated under the NVRA to ensure that eligible Ohio voters are able to register to vote in federal elections under uniform statewide standards. He has failed to carry out that obligation. The Defendant’s policy directing that Ohio County Boards of Elections shall not process in-person voter registration applications that are complete in all material respects, except for the information set forth in Box 10 of the Ohio form, violates the NVRA and is not compelled in Ohio at this time by HAVA.
My take: The complaint is correct to assert that the Secretary of State is misreading HAVA, to the extent that he seeks to use that law to justify the rejection of forms lacking a SSN or DLN. I've previously blogged on this issue here. As I noted there, this policy represents an ironic twist on HAVA, insofar as it treats hand-delivered registration forms less favorably than mailed-in registration forms -- exactly the opposite of what Congress intended.

In defense of his position, the Secretary of State will presumably rely on this provision of HAVA:
an application for voter registration for an election for Federal office may not be accepted or processed by a State unless the application includes (I) in the case of an applicant who has been issued a current and valid driver’s license, the applicant’s driver license number; or (II) . . . the last four digits of the applicant’s social security number.” 42 U.S.C. § 15483(a)(5)(i)(A).
The Dems' complaint points out that the reason for this requirement is to provide the information needed for the statewide computerized registration databases required by HAVA. Although these databases were supposed to be in place by this year, Ohio like most other states has been granted a waiver of this deadline until 2006, as allowed by HAVA. Hence, the Dems argue, registration applications shouldn't be denied (at least in this year's election cycle) on the ground that this information is missing.

Even aside from this argument, there's a real problem with what Blackwell has ordered. From looking at a registration form alone, it can't ordinarily be determined whether Box 10 has been left blank (a) because the voter doesn't have an SSN or DLN, or (b) because the voter has one of these, but simply refused to fill it in. If it's really (b), then it's proper not to process the registration under HAVA. But if it's (a), then the voter should be assigned a unique identifying number and the registration must be processed.

It's true that Blackwell has ordered that registration forms be processed if the voter writes "None" in Box 10. The obvious problem is that voters without a SSN or DLN may simply leave the box blank, not understanding that they're obligated to write "None" to have their form processed. County officials are supposed to notify voters of the need to write "None" in Box 10, if they lack a DLR and SSN. Many voters, however, may hand-deliver their registration forms -- or have someone do it for them -- without ever speaking to a county official. And even if they do, there's no guarantee that county officials will provide accurate information.
Blackwell Ordered to Clarify Position on IDs
Federal District Judge James Carr has ordered Ohio Secretary of State Ken Blackwell to clarify his position on the state's implementation of the ID requirement. HAVA requires that voters be given provisional ballots, if they're subject to the ID requirement but don't present it at the time of voting. Blackwell had previously ordered that voters who are subject to ID requirement produce ID by the time that polls close. Judge Carr's order asks whether orally providing the voter's driver's license number or the last four digits of the SSN will suffice. My colleague Ned Foley has more here.
Race and Punch Cards in Ohio
The Columbus Dispatch today published this report, on the results of a precinct-level analysis of data from Ohio's 2000 presidential elections. The study found that heavily black precincts had uncounted vote rates about three times as high as other precincts, largely due to punch card voting -- which is still to be used by about 70% of Ohio voters in 2004. That's more than in any other state except Utah, and more than in any other swing state.
Summary of Electronic Voting News
Today's Washington Port has this summary of developments on the electronic voting front over the past several days. It includes reports on Palm Beach County's test of its vote tabulation system, Rep. Wexler's lawsuit, and Ted Selker's recent commentary in Newsday.
Ruling in Ohio Provisional Voting Case
U.S. District Judge James Carr has ruled in favor of the Ohio and Sandusky Democratic Party, granting a preliminary injunction against the Secretary of State's order that provisional voting not be allowed by voters who appear at the wrong precinct. The decision is now posted on the Election Law @ Moritz website.
Rejected Registrations in Iowa
The Des Moines Register reports that hundreds of registration forms have been rejected in Iowa, because county auditors have been unable to verify identification numbers on them. The problem apparently stems from the fact that they've not had access to a database that's supposed to be used to verify Social Security numbers. According to one auditor: "These voters have done nothing improper. They followed the procedure printed on the application." The story also reports that Iowa is refusing to accept registration forms, in which the voter doesn't check boxes at the top indicating that they're citizens and at least 18 years old.
ACLU and Soaries on Provisional Voting
An ACLU study of 2151 provisional ballots cast in the past two years found that 7.3% were not counted, because they were cast in the wrong precinct. The Sun-Sentinel has this report and the ACLU's press release is here.

Meanwhile, EAC Chair Buster Soaries offers his opinion that HAVA doesn't require states to allow provisional voting out of precinct. The Columbus Dispatch has this report.
Registration Forms Destroyed?
The AP reports here on allegations that an Arizona consulting firm destroyed Democratic registration forms. The firm, Sproul & Associates, was reportedly contracted by the Republican National Committee to register voters under the name "Voters Outreach of America." A former employee alleges that he witnessed Democratic voter registration forms being destroyed. See here for a report from KLAS-TV in Las Vegas and here for coverage by MTV.com (!), which reports that the company has run registration drives in Pennsylvania, Minnesota, Michigan, Ohio, West Virginia, Florida and Nevada.
Commonwealth Club Forum on Electronic Voting
Audio of last week's forum on electronic voting at the Commonwealth Club in San Francisco is available here. The panel included David Dill of Stanford, Henry Brady of Berkeley, and me.
More on Missouri Provisional Voting Decision
Sam Hirsch of Jenner & Block offers these insights, posted on Rick Hasen's blog.
Florida Supreme Court Argument on Provisional Voting
WFSU has this page, which has both a transcript and video of today's argument in the Florida Supreme Court on AFL-CIO v. Hood. The issue is whether it violates the Florida Constitution for the state not to count provisional ballots cast in the "wrong precinct." Thanks to Steve Reyes for the pointer.
Federal Court Rules in Missouri Provisional Voting Case
The U.S. District Court for the Western District of Missouri (Judge Richard Dorr) today ruled in Hawkins v. Blunt, which challenged the State of Missouri's implementation of provisional voting. Rick Hasen has posted the opinion here.

At issue was the state's requirement that voters be directed to the correct precinct, and that provisional ballots cast in the "wrong" precinct not be counted. The court granted the state's motion for summary judgment, and denied the cross-motion filed by plaintiffs. It ruled that Missouri's provisional voting statute is consistent with both the Help America Vote Act and the Equal Protection Clause.

This appears to be the first opinion to be issued, in the several cases to challenging state rules regarding out-of-precinct provisional voting. Lawsuits are still pending in Florida, Ohio, Michigan and Colorado. Briefing is now complete in the Colorado case, and was to be completed today in the Ohio case. There will be an evidentiary hearing in the Michigan case tomorrow. Also tomorrow, the Florida Supreme Court will hear argument in the AFL-CIO's provisional voting case. Expect decisions soon in all of these cases.
Saltman on Voting Machines
The Howard County Times has this story discussing the views of Roy Saltman, one of the first to point out the serious problems with punch card voting technology. Saltman first recommended that the use of punch cards be ended in the 1980's. He also discusses the potential problems with electronic voting but concludes that "anything's better than punch cards."
More on Ohio's Provisional Voting Controversy
The Columbus Dispatch has this report on the escalating disagreement between some county election officials and the Ohio Secretary of State, on how provisional voting should be handled. Franklin County has allowed voters who show up at the wrong precinct to cast provisional ballots in the past, but the Secretary of State is now ordering that such ballots only be issued to voters who show up in the correct precinct. In 2000, Franklin County issued 12,630 provisional ballots of which 10,168 were determined valid. The article also discusses pending lawsuits from the League of Women Voters and the Democratic Party over the issue.
Waiting for a Decision in Colorado
The A.P. has this story on the Colorado Common Cause litigation, challenging the state's rules regarding provisional voting and the ID requirement. See here for my prior discussion of this case. The complaint concerns Colorado's rule that all voters show ID -- and not just first-time voters who registered by mail, as per HAVA. The case is under submission before Denver District Judge Morris Hoffman, and a ruling is expected later this week.
Florida Voting Litigation
The Florida Supreme Court has posted the briefs filed in the AFL-CIO's provisional voting lawsuit on this page. The case will be argued this Wednesday, October 13, in Tallahassee.

Meanwhile, the A.P. reports here that Florida Democrats are accusing Secretary of State Hood of violating federal law, by ordering that incomplete registration forms be rejected. According to this report, a federal judge denied the Dems' request for an injunction against Hood's order.
Registration Forms Being Rejected in Ohio?
The Toledo Blade has this story, which includes a disturbing report that registration forms lacking either a drivers' license number or last four digits of the voter's SSN are being rejected. In a bizarre twist on what Congress intended when it enacted the Help America Vote Act, those whose registration forms are hand-delivered are reportedly being treated less favorably than those who register by mail:
[A] quirk in federal law that requires new voters to provide some form of identification will keep hundreds of unwitting Lucas County residents from casting ballots on Election Day, the elections director said.

The Help America Vote Act, enacted after the 2000 presidential election, allows those who mail their registrations to their local board to provide either identification on the form - a driver's license number or the last four digits of their Social Security number - or to provide the identification at the poll Nov. 2. Poll workers will accept such items as a utility bill or other identification linking the new voter to his address.

However, those registrants who signed up as part of a voter registration drive, on their doorstep, church, or at a local shopping center, will not have their registration processed if they did not provide the voter registration solicitor with a form of identification.
My take: If this report is correct, it reveals a grievous problem in the implementation of HAVA. It's true that the new law requires that certain mail-in registrants to present ID or other proof of identity at the time they appear at the polls. This requirement doesn't apply to those who register through other means, including by having their forms hand-delivered to elections offices.

The ironic twist, if this report is correct, is that at least one Ohio county is treating hand-delivered registration forms less favorably than mailed-in registration forms. It's true that HAVA requires that registration forms generally not be accepted, unless they include a driver's license number or the last four digits of their SSN. 42 USC 15483(a)(5). But there's an exception for those who don't have a driver's license or SSN.

The problem is that you may not be able to tell, just from looking at the registration form, whether or not the voter actually has a DLN or SSN. All you may know is that the voter left the box blank. Under these circumstances, the best course of action would be for election officials to assume that voters who don't fill in the box don't have either of these numbers -- and therefore to issue them a unique identifying number. Alternatively, election officials might ask that these people provide their SSN or DLN on election day. Voters who say they don't have one on election day should then be issued unique identifying numbers. But in my opinion, it's inconsistent with HAVA to reject hand-delivered forms simply because "they did not provide the voter registration solicitor with a form of identification."

Electronic Voting in Brazil
The L.A. Times has this story on Brazil's experience with electronic voting. It reports that over 400,000 electronic voting machines have been deployed, to serve the 180 million people in a country where voting is mandatory. Some worry about the prospect of fraud, lobbying for a contemporaneous paper record of the electronic ballot, while thers claim that such fraud is unlikely or impossible. Sound familiar?
More on Ohio Provisional Voting Controversy
The Columbus Dispatch has this story, reporting that Secretary of State Ken Blackwell has warned Cuyahoga County (Cleveland area) that it must follow his directive, ordering that voters appearing in the wrong precinct not be allowed to cast provisional ballots. The chair of Cuyahoga's board of elections responded by saying that voters will only be given provisional ballots if they're at the right precinct or if poll workers are uncertain whether the voter is in the proper precinct. The Cleveland Plain-Dealer has this story on the lawsuit filed by the League of Women Voters and other groups, challenging Blackwell's provisional voting directives.
Florida Supreme Court to Hear Provisional Voting Case
On a 4-3 vote, the Florida Supreme Court has accepted jurisdiction over the AFL-CIO's case challenging Secretary of State Glenda Hood's refusal to count provisional ballots cast in the "wrong precinct." Simultaneous briefs are due this Friday, October 8, and argument will take place on October 13. See here for prior discussion of the case, and here for the AP's coverage.
Ohio League of Women Voters Lawsuit
A coalition of citizen and labor groups filed suit this morning in the U.S. District Court for the Northern District of Ohio (League of Women Voters of Ohio v. Blackwell, Case No. 3:04CV7622). The lawsuit challenges Secretary of State Kenneth Blackwell's directives requiring (1) that voters only be issued a provisional ballot if they appear at the correct precinct, and (2) that the provisional ballots of those subject to the ID requirement only be counted, if they provide ID or other proof of address by the end of the voting day. As discussed here, the Ohio Democratic Party previously filed a lawsuit on the first issue, although the League's complaint appears to rely more heavily on the Ohio Constitution's eligibility rules than does the Dems' complaint.

Here's the preliminary statement from the League's complaint:
1. This emergency action is brought to prevent thousands of eligible Ohio voters from being unlawfully disenfranchised in violation of their voting rights under federal and state law. By this action, Plaintiffs seek a declaratory judgment and preliminary injunction to prevent the Ohio Secretary of State from (1) refusing to provide and count provisional ballots in the upcoming election and (2) requiring proof of identification by first time voters who registered by mail. A “provisional ballot” is a fail-safe ballot offered to voters whose eligibility cannot be determined at the polling place. Once election officials verify the voter’s eligibility and registration within a specified period after the election, the provisional ballot should be counted.

2. On February 20, 2004, Ohio’s Secretary of State issued a directive – Directive 2004-07 – that, among other things, instructs all of Ohio’s county election officials how to administer provisional ballots cast by a category of voters who are entitled by federal law to vote by provisional ballot: first-time voters who register by mail and who cannot provide identification on Election Day. Although Directive 2004-07 correctly provides that provisional ballots must be issued to voters who cannot provide “acceptable documentary proof” of their identities on Election Day, in a bizarre and illegal twist, it then dictates that those provisional ballots may not be counted unless those voters do, in fact, provide “acceptable” identification on Election Day.

3. On September 16, 2004, the Secretary of State issued yet another directive – Directive 2004-33 – concerning another category of voters entitled by federal law to vote by provisional ballot: voters who, as a result of either official or voter error, appear to vote in the wrong precinct. Despite the clear requirement of federal law that states allow such voters to vote by provisional ballot, Directive 2004-33 unlawfully states that “[u]nder no circumstances shall precinct pollworkers issue a provisional ballot to a person whose address is not located in the precinct, or a portion of the precinct, in which the person desires to vote.”

4. Directives 2004-07 and 2004-33 both violate the “fail-safe voting” provisions of the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §§ 15301 et seq., which were designed to prevent the disenfranchisement of eligible voters entitled to vote by provisional ballot. HAVA clearly requires that states allow both first-time voters who register by mail and cannot provide identification on Election Day and voters who appear to vote in the wrong precinct to cast provisional ballots. HAVA then requires election officials to verify the provisional ballots after the election and to count the provisional ballots cast by all individuals who are eligible under state law to vote. By refusing to allow voters whose names do not appear on the list of eligible voters for the precinct to cast provisional ballots, Directive 2004-33 conflicts with a clear mandate of federal law. And by directing in advance that the state will not count any provisional ballots cast by first-time voters who register by mail and cannot provide identification on election day – a category of voters whom the Secretary of State concedes is entitled to vote by provisional ballot – Directive 2004-07 eviscerates the “fail-safe voting” protections that Congress has mandated, turning the provisional ballots into no more than scrap paper. The effect of these two directives would be to disenfranchise thousands of eligible, registered voters, in violation of federal law.

5. In addition to a declaration that Directives 2004-07 and 2004-33 violate federal law, Plaintiffs seek a preliminary and permanent injunction that will take effect before the November 2, 2004 election prohibiting Ohio elections officials from (1) refusing to provide voters a provisional ballot based on the ballot being requested or cast in a precinct different than the one to which the voter has been assigned, and (2) rejecting provisional ballots based on the fact that a first-time voter who registered by mail did not provide documentary proof of identity at the polling place on Election Day.
In addition to the League of Women Voters of Ohio, the plaintiffs include the Ohio AFL-CIO, ACORN, People for the American Way, AFSCME Ohio Council 8, the Coalition of Black Trade Unionists, A. Philip Randolph Institute, the Coalition on Homelessness and Housing of Ohio, and Project Vote. Plaintiffs' counsel include the Brennan Center and Manatt, Phelps & Phillips. The lawsuit alleges violations of HAVA, as well as the Equal Protection Clause and the fundamental right to vote under the First and Fourteenth Amendments.

This lawsuit follows reports that Ohio's largest county, Cuyahoga (Cleveland area), is refusing to follow Blackwell's order that only those voters who appear at the correct precinct will be given provisional ballot. See here for the Plain-Dealer's coverage and here for the Cincinnati Enquirer's story on Jesse Jackson's criticism of Blackwell's provisional voting directive.
On the Road
Blogging will probably be lighter than usual this week, as I'm travelling. On Thursday, I'll be speaking at a form on electronic voting at the Commonwealth Club in San Francisco. Here's a description of the event:

DAVID L. DILL, Ph.D., Founder and Board Director, VerifiedVoting.org
DANIEL TOKAJI, Professor of Law, Ohio University; Author, "Equal Vote" Blog
MARC CARREL, Assistant Secretary of State, California
DAN BURK, Registrar of Voters, Washoe County, Nevada
HENRY BRADY, Professor of Public Policy, UC Berkeley
KIM ZETTER, Senior Reporter, Wired News; Moderator


Heard some disturbing stories about electronic voting machines and the companies that make them? A significant portion of the electorate will vote electronically using ATM-like voting machines in November. The viability of the systems is still in question - a number of incidents have eroded confidence that the systems can ensure every vote is counted fairly. Could this year's Presidential election have balloting snafus like those in Florida in 2000? Find out from the experts.
On Friday, I'll be speaking on a panel on felon disenfranchisement at the
People of Color Legal Scholarship Conference at George Washington University. See here for a description of the program.
NYT on Registration Forms with Unchecked Boxes
The New York Times has this report on the states' varying responses to registration forms, on which the voters have failed to check boxes indicating that they're over 18 and U.S. citizens. Florida's Secretary of State says such forms should be rejected, while Ohio's Secretary of State has issued a directive saying they should be accepted.

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