The Florida election system of

Transcription

1 A project of Election at The Ohio State University Moritz College of Law with generous support by the JEHT Foundation KEY QUESTIONS for KEY STATES Florida The Florida election system of 2008 is a far cry from what people remember seeing on television after the 2000 election. The Help America Vote Act made dramatic changes in the election system of every state, but Florida has gone well beyond what was required by HAVA. After the 2008 Presidential primary, Florida has moved to require precinct-count optical scan voting in every jurisdiction. It also now requires that local election officials be elected by non-partisan ballot, and has changed the Secretary of State from an elected to an appointed position. It has made the recount process more efficient by limiting it to under- and overvotes, more logical by providing a uniform definition of a vote, and more complete and fair by eliminating the ability of candidates to selectively limit requests for recounts to areas where they expect to make gains. The state also has adopted no-excuse absentee voting that can help alleviate long lines at polls. While not everyone is happy with all of the changes, what is undisputable is that Florida leaders really have taken the lessons of 2000 to heart and have worked hard to try to make the system better. We believe these efforts have made the system substantially better. Nevertheless, like every state, Florida does suffer from some lingering problems that show no signs of disappearing anytime soon. Absentee ballot fraud has been an issue in recent history, and administrative error has led to polling place breakdowns and other errors. Florida s voter registration database is another area of controversy, and the NAACP is currently suing the state because of the databases rejection of the applications of minority voters. But before discussing these issues, here is a nine-part overview of Florida s election system as well as an analysis of how Florida lawmakers have reformed most of the institutional problems that manifested themselves in the 2000 election. Inside Institutional arrangements 2 Voter registration/statewide database 3 Challenges to voter eligibility 4 Provisional voting 4 Convenience Voting 5 Voting technology 6 Polling place procedures 6 Ballot Security 7 Post-election processes 7 Challenges and Scenarios 8 Challenge #1: Combating Absentee Ballot Fraud 11 Challenge #2: Polling Place Operations 14 Challenge #3: Administration of Voter ID Law 17 Endnotes 24 by: Nathan Cemenska 1 Date of publication: June 20, 2008 [Editor s Note: The following is an analysis of Florida s election system going into the 2008 Presidential election. Part I digests nine key areas of the law that together cover the entire administrative system. Part II analyzes four challenges faced by the system and attempts to predict the outcome of four hypothetical post-election lawsuits that might arise as a result of these challenges.]

2 Institutional Arrangements Institutional Arrangements Florida s chief election authority is the Secretary of State2. The Secretary is appointed by the governor and confirmed by a simple majority of the Senate 3. Previously, this was an elected position, but that was changed by a constitutional amendment in The Secretary may adopt administrative regulations, collect elections statistics, train and provide technical support to local administrators, review the form of registration applications, administer the voter registration system, bring lawsuits against locals to enforce compliance, and investigate reports of fraud or other irregularities 5. The Secretary also tests and certifies voting machines 6 and certifies the results of multi-county elections 7, reviews equipment accuracy and security procedures promulgated by local authorities 8, helps counties cooperate to make informed, coordinated equipment purchases 9, adopts rules governing absentee voting 10, and develops a uniform statewide poll worker training curriculum and polling place procedures manual 11. According to the state constitution, county Supervisors of Elections administer elections at the local level, 12 although this can be varied by county charter. Currently, only Miami-Dade County, Florida s largest, has chosen to vary its charter and move to an appointment system 13. These Supervisors are elected every four years in partisan elections 14. The Supervisor is the primary entity responsible for administration of the statewide voter registration database 15, ballot design 16, provision of precinct supplies 17, recommending designation of precinct boundaries to the board of county commissioners for final approval 18, safeguarding voting equipment 19, creating and submitting to the Secretary reports about residual voting 20, administering absentee voting 21, and appointing 22 and training 23 poll workers. Most Supervisors are constitutional officers who can be removed by the governor with Senate confirmation, although some counties have changed their laws to make their election leadership non-constitutional officers who are not subject to this check. Voter Registration/Statewide Database To be effective for the next election, registration applications must be received by the 29 th day preceding the election 24 (but mail applications are valid if the postmark indicates a date before the deadline 25 ). Applications will not accomplish registration unless they are complete. A complete application is one that contains all information necessary to establish the applicant is at least 18 years old, is a US citizen, not disenfranchised due to felony conviction, not mentally incompetent to vote, and a resident of the Florida county in which registration is sought 26. The applicant s signature must also be present 27. To be considered complete, the application must also include a driver s license or The Ohio State University Election Law@Moritz 2

3 Voter Registration/Statewide Database The Ohio State University ID card number, social security number, or an affirmation that the applicant has not been assigned any of these numbers 28. Officials must notify applicants of incomplete applications and give them the opportunity to complete them 29. Applicants who fail to complete their applications prior to the deadline cannot vote in the next election (although flawed driver s license or social security numbers can sometimes be corrected with supplemental information see below) 30. Convicted felons cannot vote unless their rights have been restored 31. Driver s license and social security numbers submitted on applications are compared against outside databases using an automatic process that classifies them as matches, potential matches or nonmatches; non-matches and some types of potential matches are reviewed by local Supervisors before deciding whether to register the subject applicant 32. If an applicant s social security or driver s license number cannot be verified, the code prohibits officials from registering the applicant 33. However, where the failure to verify the application was caused by administrative rather than voter error, the law requires officials to notify the applicant and give them an opportunity to correct the application, even after the registration deadline 34. Applicants who fail to provide this supplementary information before the election may vote a provisional ballot and their ballots will be counted if they supplement by 5 p.m. on the second day following the election 35. But one administrator stated that the situation will often not get to this point, because once administrators recognize their own error they may correct it on their own and register the applicant, eliminating the need for notice or any action by the applicant. Incoming applicants will also be compared against a Florida Department of Law Enforcement database to prevent registration by ineligible felons convicted in Florida. Prior versions of the database included information regarding felony convictions nationwide, but those versions were scrapped after they were found to be inaccurate and some Supervisors refused to make decisions based upon them. Registrations may be cancelled only where they are found to be duplicative 36 or by request of the voter 37, felony conviction, mental incapacity, death, or through the operation of an authorized registration maintenance program 38. These programs include programs to cancel the registrations of voters who have moved according to the US Post Office s change of address service or according to returned undeliverable postcards sent by officials as part of an authorized program 39. These list maintenance programs must be conducted every two years and must be completed 90 days prior to the date of any federal election 40. The Election Law@Moritz 3

4 Provisional Voting Secretary is ordered to conduct these list maintenance programs if the Secretary finds that local officials have not performed list maintenance 41. Felons should be removed when law enforcement officials notify Supervisors of conviction 42. However, no registration can be removed without notice to the voter and allowance of 30 days to respond 43. Challenges to Voter Eligibility Pre-election day challenges may be initiated by any registered voter by filling out an oath stating the challenger s name, address, and reasons for challenge 44. The challenge is not decided prior to election day, but instead the voter must cast a provisional ballot and the challenge is decided as part of deciding whether to count the provisional ballot. Election day challenges may be initiated by filling out the same oath and have the result of requiring the challenged voter to cast a provisional ballot. For rules about the provisional ballot counting process, see Provisional voting, below. Provisional Voting Voters must cast provisional ballots if they fail to present proper ID 45, if poll workers cannot determine they are eligible to vote in the precinct, if poll workers challenge their eligibility 46, or if the social security number or driver s license number contained on the voter s registration application could not be verified against outside databases 47. Provisional ballots are presumptively valid and can only be rejected if the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote 48. However, one official cautioned that this presumption does not amount to much, as the procedures used in counting should eliminate any ambiguity and the need to make decisions based on a presumption. In making their determination, officials must look at the provisional ballot paperwork provided by the voter, any records kept by the Supervisor, and any evidence presented by the voter or any person who challenged the voter 49. Ballots cast in the wrong precinct will not be counted 50. Ballots will not be rejected merely for failure to present ID because, although failure to present ID requires the voter to cast a provisional ballot, the provisional ballot will later be counted provided that it is otherwise valid 51. Where provisional ballots are cast due to inability of officials to verify the social security or driver s license number contained on the voter registration application, the ballot will be counted only if the inability was caused by administrative error and only if the voter provides correct information within two days of the election or the numbers are otherwise verified The Ohio State University Election Law@Moritz 4

5 Convenience Voting during the counting period 52. Where the inability was caused by voter error, the voter can only correct it before the registration deadline and the provisional ballots of voters who fail to meet this requirement will not be counted. The Ohio State University The decision of whether to count provisional ballots is placed in the hands of the county canvassing board, which is composed of the Supervisor, a county court judge, and the chair of the county board of commissioners 53. All three of these officials are elected (although by local option Supervisors and judges can be appointed), and there is no requirement that both political parties be represented on the board 54. This leaves the counting process open to accusations of partisanship just as the counting of ballots was open to such accusations in Fortunately, only 14,550 Florida provisional ballots were cast in the 2006 election (0.43% of ballots cast in polling places), compared to an amazing 127,758 provisional ballots cast in Ohio (3.56%) 55. This reduces the likelihood of disputes over provisional ballots except in very close races. Furthermore, if the past is any indication 73.5% of Florida provisionals cast in 2006 were counted one can expect the number of provisionals counted in 2008 to be high. This may further reduce the likelihood of dispute because, to protect voting secrecy, Florida officials separate counted provisional ballots from any identifying paperwork and commingle the ballots. At that point, it becomes more difficult for candidates to dispute the treatment of the counted ballots, even where unlawful counting of them is shown, because the unlawful ballots cannot be identified. In fact, going back and trying to uncount the unlawfully counted ballots would likely be a practical impossibility. Convenience Voting Florida has early voting and allows voters to cast absentee ballots without an excuse. Early voting is offered at Supervisor s headquarters, city halls and libraries and begins on the 15th day prior to the election and ends on the 2 nd day before the election 56. Absentee ballots may be requested in person, by mail or by phone 57. To be valid, these requests must be received no later than 5 p.m. on the 6 th day prior to the election; the Supervisor shall then send out the ballots no later than 4 days before the election. Voters may also go into the Supervisor s office to pick up the ballot or authorize another person to pick it up, but the authorization must be in writing and each authorized person must present ID and may only pick up two ballots per election. Authorized persons may not pick up ballots for others before the 5 th day prior to the election. Ballots must be received by the Supervisor by 7 p.m. on the day of the election in order Election Law@Moritz 5

6 Voting Technology to be counted 58. The county canvassing board 59 must begin to canvass the ballots between 7 a.m. on the 6 th day following the election and 12 noon on the day following the election 60. Voting Technology After touchscreens recorded 18,000 undervotes in a November, 2006 congressional race 61, Florida banned touchscreens (except for the disabled) and mandated precinct-count optical scan systems throughout the state 62. The systems must prevent both overvotes and undervotes 63. There was no time to change the technology prior to the 2008 Presidential primary 64, so the 2008 general election will be only the second time the new systems are used in a statewide election (the first time will be the primary for state offices that occurs on August 26, 2008). Over one dozen counties including Miami- Dade and Broward, Florida s largest that together represent about 50% of the population 65 will change their equipment 66. Thirteen of these jurisdictions will use the ES&S DS200 optical scanner, an innovative scanner that not only scans voting marks, but also captures images of the entire ballot 67. Although the new paper-based system is supposed to simplify operations, the transition will require new training that may not be completely successful on the first or second try. This could lead to long lines at polls, and some voters might leave in frustration. Another challenge will be to ensure that all polling places are stocked with sufficient supplies of ballots. However, with the exception of the 2006 problems in the 13 th Congressional District, the and primary and general elections went smoothly, as did the 2008 primary 70. This gives reason to hope that the 2008 general election will go smoothly as well. Observers should look to the performance of the system in the August primary as the best predictor of what will happen in November. Polling Place Procedures At the precinct level, elections are conducted by teams of inspectors led by a lead poll worker, or clerk 71. Both the clerks and inspectors are appointed by the Supervisor of Elections 72. In a general election, these poll workers cannot all be of the same political party, although that requirement is waived for primary elections 73. The Secretary develops a uniform training program for poll workers that each Supervisor must use to train them before each election 74. Inspectors may not serve unless they attend two hours of this program (three for clerks) and demonstrate a working knowledge of the laws and procedures relating to voter registration, voting system operation, balloting and polling place procedures, and problem-solving and conflictresolution skills 75. The Secretary also develops a uniform polling place procedures manual that must be present in each polling The Ohio State University Election Law@Moritz 6

7 Ballot Security place. Ballot Security Voters must present one of the following forms of ID at the polls: driver s license, state ID, US passport, debit or credit card, military ID, student ID, retirement center ID, neighborhood association ID, or public assistance ID 76. The proffered ID must contain the voter s signature and, if it does not, another form of ID with signature must be shown. Voters who do not present proper ID must vote a provisional ballot. However, voters do not have to come back with ID after election day to ensure their provisional ballots are counted; officials should count them even without ID provided they are otherwise valid. Administrative regulations require Supervisors to file with the Secretary a digest of security procedures the Supervisor intends to follow in the next election cycle 77. The regulations must describe how voting machines are tested prior to the election, how records of test results are preserved, how they are sealed against voting and marked for identification, how ballots are secured and accounted for after the election, and other matters. However, failure to follow these rules generally will have no consequence after the election unless it is shown that the failure affected the result 78. Post-Election Processes Precinct returns are submitted to the county canvassing board by 2 a.m. the day following the election 79. The county canvassing board is chaired by a county court judge and staffed by the Supervisor of Elections and the chair of the board of county commissioners 80. The canvass of provisional and absentee votes occurs on a timeline established by the Supervisor of Elections 81. The board must compile the precinct returns and submit them to the state Elections Canvassing Commission by noon on the 12 th day following a general election (5 p.m. on the 7 th day following a primary) 82. If the board attempts to submit corrected returns after this deadline, they shall be ignored and the results on file at the time shall be certified 83. The ECC then compiles and certifies the results 84. The ECC is composed of the Governor and two cabinet members appointed by the governor 85. Officials must conduct a machine recount whenever the original results of a race show a margin of victory of 0.5% or less 86. The results of this recount must be submitted to the Secretary no later than 3 p.m. on the 9 th day following the election (3 p.m. on the 5 th The Ohio State University Election Law@Moritz 7

8 day following any primary). Officials must then conduct a manual recount if the amended results show a margin of victory of 0.25%, but only if the number of overvotes, undervotes and provisional ballots is greater than the margin of victory 87. Manual recounts are managed by the county canvassing board and performed by teams of at least two counters who must, where possible, be of opposing political parties 88. Manual recounts must be completed by noon on the 12 th day following a general election (5 p.m. on the 7 th day following a primary) 89. The results of recounts submitted after this deadline shall be ignored. The Florida administrative code provides detailed instructions for how to conduct recounts 90, including detailed examples of what types of marks made on optical scan ballots constitute valid votes 91. Election contests must be filed within 10 days of certification of a winner 92. Multi-county elections will be heard in the trial court of Leon County, where Tallahasee is located 93. Single-county elections are heard in the trial court of the county in which they occurred. Contests of state legislative general elections are heard in their respective houses, although primary contests of these offices are heard by the local trial court 94. The code specifically indicates that contest petitions will not be dismissed for failure to cast them in the proper form if the grounds of contest provided in the statement are sufficient to clearly inform the defendant of the particular proceeding or cause for which the nomination or election is contested. 95 The defendant must file an answer within ten days of service of the complaint. The code provides that the plaintiff is entitled to an immediate hearing, but does not specify a deadline for completing the various stages of litigation. Instead, it permits the court to expedite proceedings as necessary. The court will only disturb the result of the election where the plaintiff shows that the irregularities changed the results or placed them in doubt 96. Florida law permits the state legislature to order an independent entity to conduct an audit of the voting system of any county after any election 97. The code also authorizes employees of the Secretary of State to observe all local election procedures, and the Secretary must send in agents to perform this task upon request of various political figures or five percent of the registered voters of a district 98. Challenges Florida Does Not Face Although Florida has seen significant reform since 2000, it continues to face challenges in several areas. These challenges include making administration less partisan and more professional, restoring confidence in the electorate, The Ohio State University Election Law@Moritz 8

9 addressing potential operational difficulties associated with the new system of paper voting (including special concerns that apply only during the transition period), lingering problems with the voter registration database, and the potential for absentee ballot fraud. However, because past problems in Florida are so wellknown, perhaps it is most appropriate to begin by talking about problems Florida currently does not have. Inadequate definition of a vote. Many of the problems in 2000 happened because Florida had no clear definition of what constitutes a vote. For instance, during the recount process, Broward County counted ballots with dimpled chads (ballots where the chad was indented but not detached), whereas Palm Beach County did not 99. But Florida law was subsequently amended to allow the Secretary of State to promulgate administrative regulations defining exactly what does and does not count as a vote 100. The new regulations identify various types of nonstandard marks that should count (e.g., the oval or arrow next to a candidate s name is circled or underlined. ). While the regulations probably fail to identify every kind of nonstandard mark that it is possible to make, they do provide sufficient guidance to reduce the number of disputed ballots to below the level of all but the slimmest margins of victory. Furthermore, Florida s uniform PCOS system should give the voter the opportunity to correct most nonstandard marks, reducing the number of disputable ballots even further. Inconclusive manual recount process. The 2000 recount did little to clarify who should have won, and not just because there was no adequate definition of a vote. Another problem was that the manual recount was not conducted statewide, but only in counties where Al Gore made a proper request. While Gore was able to pick up a considerable number of votes in the recounted areas, the correct statewide count still remained a mystery. Furthermore, Gore s strategy of requesting recounts only in certain areas allowed his critics to accuse him of cherrypicking, or of only wanting a correct count in areas where he thought he could make gains. This made the recount results look not only incomplete, but biased, and undermined the credibility of the entire process. But laws passed since 2000 require that when a manual recount is conducted, it be conducted in the entire area where votes were cast for the disputed office 101. Another reason why the 2000 recount was inconclusive was that it was cut off before it could be completed. Specifically, the US Supreme Court ordered the recounts to stop because, in the opinion of the Court, fair recount procedures could not be developed and completed in time for the state to meet the The Ohio State University Election Law@Moritz 9

10 federal safe harbor deadline that guarantees a state s chosen Presidential electors will be respected 102. Fortunately, Florida s new statutory regime does a lot to try to avoid bumping up against the safe harbor deadline again. First, the recount process should be more efficient than in prior days, because optical scan ballots are easier to recount and because administrative regulations should reduce bickering over the definition of a vote. Updated voting technology has also reduced the number of under- and overvotes over which to fight, making the process more efficient. Nevertheless, there remains a danger that recounts could be cut off before reaching conclusion. The state legislature removed some language from that the Florida Supreme Court in 2000 used to force the Secretary of State to extend the time by which recounts must be completed 103 ; the new language appears to take that ability away from the Secretary, and says that the results of any recounts submitted after the relevant deadlines shall be ignored. While recounts could be conducted later as part of an election contest, those contests do not need to be filed until ten days after certification of the results, or as late as twenty-two days after election day in the case of a general election 104. In the 2008 Presidential election, a contest filing on the twenty-second day after the election would leave just nineteen days until the safe harbor deadline of December 15. Ballot design. In 2000, a high level of voter error occurred due to Palm Beach County s famous butterfly ballot, as well as Duval County s lesser-known, but equally flawed caterpillar ballot (a ballot in which the list of candidates for President spread on to a second page, confusing voters into overvoting by voting on both pages) 105. Florida responded by empowering and requiring the Secretary of State to promulgate regulations specifying uniform ballot design for each type of voting machine, including sample ballots for illustration 106. The regulations specifically prohibit spreading the list of candidates for a particular race over more than one column or page, and also prohibit butterfly designs by requiring that the space for marking a choice be either to the left or the right of the name listing, but not both. Although these regulations did not prevent a confusing touchscreen ballot design from allegedly contributing to large undervote in the 2006 race for the state s 13 th Congressional district, new laws require each machine to notify voters of residual votes, alleviating future concerns 107. A high volume of provisional ballots. While provisional ballots are an easy target in any close race, the likelihood that a disgruntled candidate would make an issue of them in Florida is reduced because Florida voters cast a relatively low number of provisional ballots. Only 14,550 Florida provisional ballots were The Ohio State University Election Law@Moritz 10

11 cast in the 2006 election (0.43% of ballots cast in polling places), compared to an amazing 127,758 provisional ballots (3.56%) cast in Ohio 108. Clearly, the results of a statewide race would have to be very close for it to be possible for provisional ballots to affect the outcome. Nevertheless, if the kind of squeaker that occurred in 2000 were to recur, the candidates almost certainly would contest provisional ballots. Unfortunately, the decision of whether to count provisional ballots is placed in the hands of the county canvassing board, which is composed of the Supervisor, a county court judge, and the chair of the county board of commissioners All three of these officials are elected (although by local option judges can be appointed), and there is no requirement that both political parties be represented on the board , , Thus, accusations of partisanship may accompany the counting of provisional ballots just as they accompanied the counting of ballots in Challenge #1: Combating Absentee Ballot Fraud Florida does not have a rich history of voting fraud like Philadelphia and Chicago, but it has suffered from some serious absentee ballot fraud in recent times. The most famous case occurred when hundreds of fraudulent absentee ballots were cast in and changed the initial outcome of Miami s 1997 mayoral election 109. The initial loser filed a lawsuit alleging fraud and the trial court concluded that a massive, well conceived and well orchestrated absentee ballot voter fraud scheme had occurred 110. Party operatives called ballot brokers stole and cast blank absentee ballots, cast ballots out of false addresses, pressured voters into requesting ballots they were ineligible for under the then-existing rules 111, and pressured voters to cast their ballots for the desired candidates 112. And there are other, less famous examples. In 1994, a trial court ordered a new mayoral election in Hialeah (outside of Miami) after it found that substantial absentee ballot fraud made the true result of the original election unclear 113. A grand jury concluded that absentee ballot fraud played a role in a 1997 Miami Beach city council election 114. A former city commissioner in Gadsden County was convicted of coercing several voters into casting tainted absentee ballots in a 1999 election 115. Four individuals were charged with and at least one was convicted of forging absentee ballots in a 2001 city commissioner election in Winter Garden, outside of Orlando 116. In addition to these proven cases of fraud, unproven allegations of fraud have drawn into question the results of several other recent elections 117. The Ohio State University Election Law@Moritz 11

12 Part of the problem is that state law to some extent opens the door to absentee ballot fraud. There is tradeoff between access to voting and integrity of the vote that in many cases cannot be eliminated, and Florida lawmakers have decided to come down on the side of access. For instance, Florida law permits campaigns to pay ballot brokers a fee for soliciting absentee ballots provided this is not done with intent to alter, change, modify, or erase any vote. 118 This facilitates access by allowing more targeted incentives for get-out-the-vote workers, but it also increases the likelihood of ballot brokers going too far to get out the vote for their candidate, as in The state has also recently eliminated legal provisions that required absentee ballots to be witnessed 119 and required an excuse to vote absentee. As a result, absentee ballot fraud may be easier to accomplish than it was in 1997, and is almost certainly easier to accomplish than it was in the years after 1997, when since-repealed protections against fraud were put into place. Another problem is, even where appropriate legal protections are in place, candidates and election officials may not take them seriously enough. This occurred in the 2000 election when officials in Seminole and Martin Counties allowed Republican activists to add to flawed absentee ballot applications state-assigned voter identification numbers that were required before absentee ballots could be sent out 120. In 1995, a campaign consultant admitted to acting as an absentee ballot broker to several Florida politicians at a time when that activity was illegal 121. Indeed, the courts themselves will not cast out ballots for failure to follow anti-fraud procedures unless the guiding statute explicitly orders that this be done 122. In the 2000 incident, courts refused to invalidate the ballots because, even though one trial court judge said that the procedure may have provided an opportunity for fraud, no actual fraud had been shown 123. Again, this reflects a deliberate policy decision on the part of state actors to expand access where possible, even where it might result in some fraud occasionally occurring. Scenario #1: In a close election, a number of illegal absentee ballots are cast that exceeds the margin of victory Florida s decision to expand access at the risk of losing some integrity is a rational and defensible policy, but when absentee fraud does occur it will likely have the consequence of disenfranchising many legitimate voters. The Ohio State University Election Law@Moritz 12

13 When unlawful absentee ballots are cast and can be identified and segregated from lawful ballots, the court will disqualify the unlawful votes and revise the candidates totals accordingly 124. However, typically illegal absentee ballots will be inseparably commingled with legal ballots, making this impossible. When a substantial number of unlawful votes become commingled in this way, the Florida Supreme Court has held the entire absentee vote should be invalidated and the winner recalculated 125. It is not necessary to prove with mathematical certainty that the illegal votes changed the result of the election, but only that the number of affected ballots was substantial 126. The rationale behind this policy is to promote finality while preserving the vote of non-absentee voters who cast ballots in the election 127. While this bright-line rule has some beauty in its simplicity, it is also harsh and it is questionable whether the nation could stomach its application in a race for an important US office. While the question has never been tested, it is almost certain that in a statewide race the court would not actually invalidate the entire absentee vote, but only the vote in the affected county. Nevertheless, that could mean that just to get rid of a few hundred fraudulent votes the court would throw out thousands of legitimate votes. Furthermore, because the rule requires no proof of a changed result, but only substantial fraud, the remedy might change the result of the election even though the fraud did not. Because this would seem unfair to many people, a court faced with an election contest based on absentee ballot fraud could be put under enormous pressure to find a way to avoid applying the rule as written. One method would be for the court to discredit evidence that the number of fraudulent ballots was high. In the case of commingled ballots it would not only be unclear which ballots were illegal, but also how many of them were illegal. The court would hear testimony from voters and from expert statisticians that went to the number of illegal votes, but the evidence would probably to some extent contradict itself, giving the court the ability to find that the fraud was not serious enough to warrant invalidation of the absentee ballot. Another method to control the result would be to develop a more refined definition of the amount of fraud that is considered substantial. One way the court could do this would be to compare the estimate of the number of illegal ballots with the overall number of absentee ballots cast in the affected jurisdiction. So, while one thousand illegal ballots might seem substantial on the face of things, the court could say that this number is not substantial when there were 20,000 total absentee ballots cast in the county. The problem with developing this kind of test is that, while developing it, the court could not The Ohio State University Election Law@Moritz 13

14 but be keenly aware of the result its application would have. This would open the court up to charges of partisanship. It is likely that a large swathe of the populace would be dissatisfied with any decision the court made under these circumstances, no matter how fair the court tried to be. Challenge #2: Preventing operational difficulties at polling places that might cause voters to turn away in frustration Florida voters have experienced long lines in some elections, lines that have caused some people to simply walk away and never vote. The worst example outside of 2000 is the September, 2002 gubernatorial primary, in which hundreds of frustrated voters got out of line and never returned after Miami-Dade poll workers were unable to boot up the county s touchscreen voting machines 128. The problems were even worse in Broward County, where twenty-four polling places opened late 129 and others closed early 130. Reports of long lines occurring after 2002 are scarce, but there are reasons to think that lines could resurface as a problem in the 2008 election. The first reason is that this election will be the first federal election in which Florida will try out its new statewide optical scan system. Although the majority of counties were already using optical scan equipment and will not have to go through a transition, fourteen counties together representing about 50% of the population 131 will change their equipment 132. Optical scan systems are simpler to operate, reducing the likelihood that poll workers will fail to set them up by the legally required opening time. Nevertheless, because the machines rely on printed paper ballots, voting will be interrupted if officials fail to estimate the needed supplies. The second reason to be worried is that, like most states, Florida s method of selecting its local election officials provides no formal check against individuals attaining office who do not possess the requisite skills. Running elections requires some understanding of law, statistics, technology, finance, public policy, public relations and management principles. The best way to ensure that an individual selected for Supervisor has these skills is to require candidates to demonstrate substantial prior election administration experience to become eligible for the job. Unfortunately, the result of the current system is that most Supervisors, at least in Florida s largest jurisdictions, have no such experience at the time they enter office (see Figure 1). While most of the existing Supervisors have been in office for some time and must have developed sufficient experience, The Ohio State University Election Law@Moritz 14

15 County Population (millions) Supervisor Florida s habit of culling Supervisors from fields unrelated to elections does increase the risk of serious mismanagement by newly minted Supervisors. Nothing better illustrates this risk than the example of Miriam Oliphant. Oliphant ran for and was elected Broward County Supervisor in the Prior election administration experience? 1 Miami-Dade 2.4 Lester Sola (no info) Chief Deputy, Miami- 2 Broward 1.79 Brenda Snipes (D) Dade SoE 133. None. Former school 3 Palm Beach 1.27 Arthur Anderson (D) administrator 134. None. Former 4 Hillsborough 1.16 Buddy Johnson (R) education professor 135. None. Former state 5 Orange 1.04 Bill Cowles (D 137 ) rep 136. Chief Deputy for prior 6 Pinellas.92 Deborah Clark (R) SoE 138. Deputy administrator 7 Duval.84 Jerry Holland (R) for prior SoE 139. None. Former city 8 Polk.56 Lori Edwards (D 141 ) councilman 140. None. Former state rep Brevard.53 Hubert Childress, Jr. No info. 10 Volusia.50 Ann McFall (R 143 ) Limited experience as member of county Figure 1 canvassing board 144. November, 2000 election. A former model who had been elected to the local school board, Oliphant had no prior elections experience when she came into office. The level of maladministration that followed was simply incredible 145. Upon obtaining office, Oliphant began firing key staff members and replacing them with personal friends who had little or no experience in elections 146. Oliphant failed to purge the registration database of 17,000 old addresses 147 and quietly exceeded the budget of her office by $1 million with no notice to or approval from the county commission 148. In the September, 2002 gubernatorial primary, 24 polling places opened late 149, others closed early 150, and 288 absentee ballots went secretly uncounted. Those ballots were found one year later in the file cabinet in which they had been hidden 151. After learning of these and other irregularities, then-secretary of State Glenda Hood forwarded to Oliphant two dozen recommendations for improving Broward County elections in the areas of staffing, poll worker training, management, absentee ballots and voting systems; when Hood was not satisfied with Oliphant s performance along these lines, Hood recommended that the governor use his constitutional powers to suspend Oliphant and replace her with another administrator 152. The governor suspended Oliphant and replaced her with Brenda Snipes, a retired former school administrator with, again, no prior elections experience 153. This was the first time a Florida governor had used his or her power to suspend a Supervisor since Oliphant was later permanently removed from power by the state Senate. All of this is not to say that the system is doomed, or that it necessarily suffers from any flaws that are not present in the election systems of all 50 states. Ms. Snipes has performed well in office, as have many Supervisors who came to office with no prior elections experience. Although Ms. Snipes s prior experience was not in elections, it did include a great deal of responsibility and required some, though not all, of the same skills that are necessary to run elections. Indeed, because there is currently little The Ohio State University Election Law@Moritz 15

16 or no nationwide or even statewide labor market for specialists in election administration, one doubts whether Florida could really improve on its current system of trusting elections to those who have, on the whole, demonstrated competence in other areas. And Florida does make some effort to control the quality of election administrators, including giving them $2,000 bonuses for attending multi-day continuing legal education seminars every year 155. Most Supervisors take advantage of this incentive. But despite such measures, compared to a formally professionalized system, Florida is making a gamble every time it trusts the job of voting to administrators with no demonstrated track record in this area, and it would be unfortunate, but not unforeseeable, if some new administrator came along and repeated Ms. Oliphant s performance. Scenario #2: Operational breakdowns at polling places Florida s history of polling place error combined with the transition to new equipment and the potentially record-breaking turnout of the 2008 election creates a risk of operational breakdowns that cause voters to leave the polling place in frustration. This could occur if, for instance, poll worker training programs fail to prepare poll workers adequately. Operational failure could also result from inconsistent quality of pre-election-day configuration and testing of voting machines. While voters do not have the right to expect voting to be an instantaneous process, expecting them to endure excessive delays is not realistic and in a close election a losing candidate might file an election contest claiming that he or she would have won but for voters who left because of the delays. Unfortunately, Florida cases examining what to do when polling place error causes voters to leave in frustration are very old and for that reason may not be respected by modern courts. Furthermore, even putting aside that concern, they do not give much guidance. The two cases are from the Florida Supreme Court, and lay down only a very basic rule that disenfranchisement flowing from administrative error should not nullify the result of an election unless the rejected votes would have changed the result 156. This means that the plaintiff in the above-described contest would fail unless the plaintiff could at least convince the court that the number of disenfranchised voters exceeded the margin of victory. The evidence on this front is likely to be shaky, consisting as it probably would of unsystematic observations of eyewitnesses who could be easily contradicted by other witnesses or attacked as biased. And the Florida Supreme Court has indicated that, in addition to evidence of the number of disenfranchised voters, it would be helpful to have some evidence of how those voters would have cast their The Ohio State University Election Law@Moritz 16

17 ballots 157. Florida courts do allow voters to waive their right to secrecy 158 and testify as to how they would have voted, but the accuracy of this testimony can easily be called into question after the election when the effect of changing one s vote is known. Furthermore, no precedent has been found in Florida or elsewhere approving the use of demographic information to predict how individuals would have voted. This means that the court would be unlikely to simplify things by saying that, because 100 voters were disenfranchised in a district where 90% of voters are Democrats, therefore 90 votes should be added to the vote total of the Democratic candidate and 10 to that of the Republican. Despite this, it is likely that such rough calculations would play into the court s analysis in ways that the court would not itself acknowledge. Due to these evidentiary problems, it would be very difficult to persuade a court to change the result of the election by installing the plaintiff into office. The plaintiff would have a much better chance of persuading the court that the true result was simply unclear, and that the election should be voided. In that case, however, Florida law does not indicate what should follow. In most cases from other states, courts in this situation will order a special election, but it is not unprecedented for them to order a re-vote only in precincts affected by the irregularities. This of course presents its own difficulties, as it effectively puts the choice of the entire community in the hands of a few individuals, individuals who may change their choice of candidate, or even their choice whether to vote, now that they know the effect this would have on the outcome. Florida federal district courts after the 2000 Presidential election refused to re-open the polls after close to permit voting by individuals who claimed to have been disenfranchised 159, but those decisions were not made in the context of an election contest and were not made by the state courts in which it is most likely an election contest would be filed. Challenge #3: Resolving the dispute over Florida s voter registration database matching protocols Florida s voter registration database is currently the subject of much controversy. Like the law of many states, Florida law requires registration applications to be rejected unless the voter provides-- either before the final registration deadline or within two days of voting a provisional ballot-- a driver s license number or social security number that matches up with information contained in motor vehicle or social security administration databases 160. This system resulted in about 14,000 rejected applications as of September, 2007, and the rejection The Ohio State University Election Law@Moritz 17

18 rate among African-Americans and Latinos was about twice the rate for the general populace 161. The NAACP sued in federal court claiming, among other things, that HAVA prohibits states from making such database-matching a precondition to registration. While the district court granted a preliminary injunction against further matching, the 11 th Circuit reversed and stated that HAVA does not seem to prohibit states from implementing 162 the matching program. This is a substantial setback for the plaintiffs, but the case has not yet reached the merits on the trial level and it is possible that the district court will find other ways to attempt to block the law. Furthermore, one justice in the 11 th Circuit case wrote a vigorous dissent, and it is possible that the appellate court could decide the case differently if, in the future, some other aspect of it is heard en banc. It is unclear as of June 8, 2008 whether this case will reach conclusion in time to affect the November Presidential election. Scenario #3: A candidate files an election contest claiming that, but for registrations rejected by Florida s matching program, provisional ballots cast by voters whose registrations could not be verified would have been counted in such number as to change the result of the election Voters whose registrations could not be matched by officials, but who nevertheless showed up at the polls to vote, have to do so by provisional ballot 163. Assuming a very close race (only about 14,000 provisional ballots were cast in 2006), the winner might then depend on determining whether those provisional ballots should count. The 11 th Circuit has held that voters who cast a provisional ballot due to administrative error in matching would have until 5 p.m. two days after the election in which to provide matching information and make their ballots count. On the other hand, the 11 th Circuit also stated that voters have no opportunity after the election to provide matching information if the failure to match was caused by their own error in filling out the registration form. While this distinction is not unreasonable in light of the language in the governing statues, as a practical matter it could lead to almost interminable squabbling over whether the voter or the election official was at fault. Determined candidates would be well-advised to usher as many provisional voters as possible into the Supervisor s office with appropriate ID showing driver s licenses and social security numbers, but the ultimate fate of those ballots would remain unclear until much later. Barring an agreement between the parties laying down rules for determining who caused a matching error, the court The Ohio State University Election Law@Moritz 18

19 would have to go painstakingly through driver s license databases, social security databases, voter registration applications, the voter registration database and whatever supplementary identification the voters had provided within two days of the election. In some cases-- where the number on the voter registration application is simply incorrect, or where election administrators clearly made a data entry error before attempting to verify the culprit would be obvious. But what if the voter placed an incorrect social security number on the application and the information contained in the social security database was so incorrect that verification would have been impossible even if the voter had provided correct information? Then the result of the 11 th Circuit s test becomes less clear. There would likely be many such conundrums, and whatever result was eventually reached would be sure to leave some dissatisfied. Assuming the question of who had the right to present supplementary information was eventually worked out, the court would then be faced with the task of deciding whether to count the vote of each voter who had a right to present supplementary information and who actually had done so. Again, this could be tricky considering that Florida currently has no precise legal definition of a match (the current law simply says that applications should be rejected when the identifying number is not verifiable by the department [of state] 164. While the Secretary has procedures in place 165, he has not issued any regulations on the subject and it is not clear whether the Secretary s definition of a match would be satisfactory to the courts. Furthermore, although the Secretary performs the initial determination of whether there is a match, non-matching applications are forwarded to local Supervisors for review. This may indicate that, as in Pennsylvania, the Secretary in the final analysis has not developed any authoritative definition of a match at all but, as in many other states, has decided to punt on this issue by leaving it to local authorities. If that is indeed the case, the court would have no option but to develop some kind of rules as it went along, something that will leave it open to attack, knowing as it will how any such rules are likely to affect the ultimate outcome. The above analysis assumes that the 11 th Circuit s interpretation giving some voters but not others the opportunity to present supplementary information holds up in litigation. This is by no means certain since the interpretation is not explicitly compelled by the statutes and, at any rate, is at this point nothing The Ohio State University Election Law@Moritz 19

20 more than dicta. It is possible that an aggrieved candidate could persuade another court that all voters who were unmatched have the opportunity to present supplementary information, increasing the number of provisional ballots that would count. It is also possible, considering the confusion in this area, that a court would decide to extend the time in which voters could present supplementary information in order to ensure that their ballots would count. The number of angles present in this scenario make the result very difficult to predict with any certainty. Scenario #4: A hurricane interrupts voting in some areas on Election Day November is the tail-end of hurricane season in Florida, and the bulk of hurricanes occur in earlier months. Nevertheless, November hurricanes have occurred, and if one interrupted voting in a Presidential election it is likely that the candidates would try to gain advantage (or minimize damage) by attempting to influence how the administration dealt with the problem. Candidates could go about this directly (by communicating with the administration itself) or indirectly, by filing lawsuits to extend voting or reschedule elections in some or all precincts. Fortunately, Florida has a fairly well-developed election emergency plan that should limit, though by no means eliminate, the risk that candidates will succeed in gaining an unfair advantage. The plan gives the governor in case of emergency the power to suspend an election in the middle of its execution or, alternatively, to delay an election that is about to occur 166. The governor will reschedule the election to occur within ten days of when it otherwise would have occurred, or as soon as practicable. The plan defines emergency broadly so that it would include not only natural disasters, but presumably also large-scale accidents or even terrorist attacks 167. However, the language also is careful to exclude disasters that, however unfortunate, do not interfere with the conduct of elections. This should help limit the risk of officials invoking the plan when it is not justified. When the governor reschedules an election, Supervisors must reassess various logistical decisions (e.g., polling place locations) in light of the disaster and at their discretion set up special absentee voting locations where voters may cast their ballots without having to worry about whether they are in the correct precinct 168. All voters in the affected area (including disaster workers who do not reside in the jurisdiction) are eligible to cast absentee ballots at these locations. The Supervisor may also order ballots counted in another county when it is not feasible to do so in the county where voting occurs. The Ohio State University Election Law@Moritz 20

21 This plan presents at least two risks. The first risk is that the governor will use his or her power in a way that gives advantage to one of the Presidential candidates. This could happen if, for instance, the governor chose to reschedule elections in one area that favored candidate A, but refused to reschedule elections in another affected area that favored candidate B. This scenario seems unlikely since it would appear too transparently partisan, but in other situations more subtle tactics could be used. Imagine if a hurricane hit Miami-Dade and Broward Counties, both of which are heavily Democratic, and was sufficiently severe to justify rescheduling the election. No other areas were affected. A Republican governor might help the Republican presidential candidate simply by refusing to reschedule elections in the affected areas. If this, too, seems implausible, imagine that the storm was less severe, or that it never actually struck land. Under those assumptions, it might seem plausible for the governor to claim that the situation just was not bad enough to justify rescheduling the election. Nevertheless, in a close election a losing candidate might file suit, claiming that he or she would have won but for the governor s partisan use of his rescheduling power. Unfortunately, no law tells courts what to do with this type of lawsuit. We know from Bush v. Gore that voters have a right to equal protection in the way that elections are administered, but we have no way of knowing how far that right extends or what concrete rules might flow from it. It is possible, however, to identify three factors that might play into the decision. First, the court will be prejudiced against the governor if it suspects that his or her use of the rescheduling power was motivated by the prospect of partisan gain. Second, out of respect for state autonomy (in the case of a federal court lawsuit) and the general judicial reluctance to disturb elections, the court will hesitate to grant a remedy where it feels that the governor used his or her power in good faith, even if the result was messy. Third, unfortunately, how the court feels about the first two issues may say more about the prejudices of the court than the facts of the case. The whole thing might turn into a protracted court battle rivaling 2000 in ugliness. The second risk is that, even if application of the governor s rescheduling power is fair, the rescheduling itself could change the voting behavior of individuals in a way that is not fair. For example, imagine that voting is justifiably rescheduled in Miami-Dade and Broward, the only two counties affected by a hurricane. However, before the rescheduled election occurs, the country learns that, as in 2000, the next President will be determined by Florida s vote. Obviously, voters in the two affected counties are going to turn out in droves now that they know how likely it is that their votes will determine the result. On The Ohio State University Election Law@Moritz 21

22 the other hand, the remainder of counties in Florida experienced only average turnout, because voters there had no idea how much influence their votes would come to have. To many, this would not seem fair. Florida lawmakers are aware of this risk, and built a safeguard into the law to try to mitigate it. Specifically, the emergency provisions state that, when the governor delays or suspends voting in some areas but not others, all Supervisors will withhold election results until the rescheduled election is completed and all Supervisors are ready to announce their results 169. The idea is to avoid the high level of strategic behavior that voters in the delayed or suspended jurisdictions would presumably engage in if they knew the election results from other jurisdictions. While Florida s attempt to mitigate this behavior is admirable, as a practical matter it would have little effect in the context of a Presidential election. Even if voters in rescheduled jurisdictions had no clue how the vote had gone in the rest of Florida, they would still know how it had gone in the other 49 states and would adjust their turnout accordingly. Furthermore, even where Supervisors follow the law by refraining from releasing any results themselves, it is likely that staff members or other persons will leak results and give at least some anecdotal evidence of how the vote had gone. And regardless, if there was even a remote possibility that the result of a Presidential race would turn on the vote in a few rescheduled Florida counties, it is certain that the candidates would expend all of their remaining resources campaigning and getting out the vote in those counties. Thus, despite Florida s attempt to mitigate things, turnout in the rescheduled jurisdictions would be huge. This scenario would almost certainly trigger a lawsuit alleging that rescheduling elections in some areas but not others violated the US Constitution s right to Equal Protection and other laws. Courts would then have to decide the following question: Does the Constitution give voters a right not only to reasonably accurate and uniform voting processes (something more or less established by Bush v. Gore), but also to a reasonably uniform Election Day voting period that limits the type of extreme strategic behavior described above? This is a tough question. It seems fairly obvious that the Constitution does not require Election Day voting periods to be exactly uniform, if for no other reason than that for years and years the country has tolerated California and other states in western time zones closing their polls three or four hours after polls are closed on the east coast. On the other hand, it seems patently unfair to allow a few counties in Florida to vote after they have seen, or at least have a good idea of, how other states and the rest of the counties in Florida have voted. It is equivalent to allowing a poker player to see all the other player s The Ohio State University Election Law@Moritz 22

23 cards before having to decide whether to stay in the game. Unfortunately, it is hard to say where to draw the line between these two extremes because how far Equal Protection extends in the area of elections is still largely up in the air. One way to try to avoid these complications is, in the event of disaster affecting only some jurisdictions, to nevertheless reschedule the whole election statewide. This would at least ensure that voters cast their ballots on the same day, with the same degree of knowledge about what effect their vote might have. Thus, though turnout would still almost certainly be high, at least it would be high everywhere, not just some places. But even this solution is not perfect. Florida voters would still be able to see how voters in other states had cast their ballots, and would change their behavior accordingly. Also, if the triggering disaster occurred on the eve of Election Day or on Election Day itself, the candidate who was believed to have been poised for victory in Florida at that time could be expected to complain that the rescheduling hurt his or her chances for victory. When voting in the other states was over and the candidates were able to concentrate all of their resources on Florida, it might change the balance and lend credence to this complaint. A final problem is it is not clear that the governor is authorized to reschedule elections in areas that were not affected by disaster. The law only makes it clear that the governor may reschedule areas hit by disaster while refraining from rescheduling in other areas, and some might use this to argue that rescheduling elections for the entire state is prohibited unless the entire state is hit by disaster. Because the statute does not explicitly address this issue, it is at least a reasonable argument. In conclusion, a hurricane occurring on or right before a Presidential Election Day would be, somewhat predictably, a mess. No matter how officials dealt with it, there would be some who argue that the solution affected the result or was at least intended to do so. Furthermore, insofar as the result of the election depended on Florida, there would almost certainly be lawsuits or at least entreaties to the governor to use his power in a way that gave advantage to one candidate or another. The end result would probably drag both officials and the courts down into the mud that they were dragged into in Thankfully, hurricanes do not often occur in November. The Ohio State University Election Law@Moritz 23