Article created by The Century Foundation.
A federal court in Ohio has just issued a decision that has potentially enormous significance for elections all over the country. In The League of Women Voters et al. v. Blackwell, a federal judge denied a motion to dismiss by the Governor and Secretary of State. Instead, he ruled that if the League and other voting rights organizations can demonstrate there were “systemic breakdowns” in the election system that led to widely disparate levels of voting access throughout the state in 2004 (and for over three decades before that), the state likely violated the Equal Protection Clause of the Constitution.
Judge James G. Carr writes,
Put simply, LWV contends that defendants’ election system provides different voting rights to different citizens based solely on where those citizens happen to reside and vote. Some citizens get short lines, properly functioning voting machines, well trained and informed poll workers, accurate registration information, and the opportunity to cast unencumbered absentee or proper provisional ballots. Other citizens, due to the vagaries of residence and registration, encounter long lines, defective voting machines, ill-trained and uninformed poll workers, inaccurate registration information, and absentee or provisional ballots that are ultimately deemed invalid. If LWV’s allegations are well founded, defendants may be depriving citizens of the franchise depending on where they live in violation of the equal protection clause.
This statement should be a loud and clear warning bell for states all over the country. The problems in Ohio were perhaps the most pervasive and certainly the most publicized, but similar problems plagued many states in 2004, and threaten to continue to do so if action is not taken.
For example, many states had completely inconsistent policies and practices regarding the casting and counting of provisional ballots. There was not just inconsistency across states—there were varying types of treatment within states. According to a report by the nonpartisan electionline.org:
In Arizona, a state that requires provisional ballots be cast in the correct precinct to be counted, at least two counties, Gila and Pinal, counted provisional ballots cast in the wrong precinct. . . . During the state’s presidential primaries, Illinois did not count provisional ballots cast in the wrong precinct. The State Board of Elections issued a directive for the November election instructing counties to count ballots cast in the wrong precinct for some federal races. Some counties followed the directive, while others citing state law requiring the correct precinct did not.
According to other reports, some places voters were offered a provisional ballot when they were supposed to get one, while other voters were simply denied their right to cast a provisional ballot.
With respect to absentee ballots, certain counties in Florida completely disenfranchised voters through mismanagement. Voters who requested absentee ballots in a timely manner nonetheless either never received them or received them too late to vote. As was reported in the Bradenton Herald on October 27, 2004, 6 days before the election, “The Broward County Supervisor of Elections office on Tuesday said it couldn’t account for nearly 60,000 missing absentee ballots sent to voters and that its phone lines were being overwhelmed by calls.” The next day, the Miami Herald reported that 76,000 missing absentee ballots would be re-mailed—5 days before the election, to people all over the country. According to a lawsuit filed by the ACLU, many of these voters were completely disenfranchised as a result of these difficulties. Notably, the counties with problems were all Democratic strongholds.
The state of Washington’s complex and confusing law regarding the voting rights of ex-felons has led to widespread inconsistency in treatment of voters. Neither citizens nor elections administrators are sure of what the law requires. Until threatened with legal action, in 2003 in New York, more than half of the state’s 62 county boards of elections, including all five boroughs in New York City, were found to have been refusing to register individuals with felony records until they provided various documents.
Also in New York, in 2004, disparities in training and voting information were made all too apparent in a study finding elections officials had wildly varying interpretations of what the state’s voter identification requirement was.
Finally, with respect to voting machines, Florida’s troubles continue. A study by the Broward Daily Business News of three South Florida counties found:
[The] voter-to-machine ratio varied significantly among the counties. Overall, Miami-Dade precincts had an average of 195 registered voters per machine, Broward precincts had an average of 184 voters per machine and Palm Beach County had an average of 145. The contrasts were more dramatic between the 1,502 precincts in the three counties. Precinct 640 at the University of Miami had a registered voter to voting machine ratio of 347—the highest in the three counties. In contrast, in some Palm Beach County precincts, a single registered voter was assigned his or her personal machine. . . . At the University of Miami, the wait times were as long as five hours, and many students who had classes and tests left without casting a ballot. . . . Of the 20 precincts where [Elections] Supervisor Kaplan’s office most severely underestimated the number of voters, 14 were in heavily Democratic Miami Beach.
What makes this case all the more interesting is that the judge found that the Governor and Secretary of State were the proper defendants in the action. In other words, those at the top will be held responsible for ensuring that our democracy is equally accessible to all voters—regardless of race, ethnicity, and yes, where they happen to live. It also shows that no matter how many laws the federal or state government passes, if elections officials implement them in a wrongful or incompetent manner, true election reform can never have real meaning.
Of course, the Supreme Court based its Bush v. Gore decision in 2000 on the equal protection clause, but famously held that, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Judge Carr’s ruling suggests that while the judicial system might be obligated to ignore that particular case, it cannot continue to ignore the conflict between the constitution and the way elections are conducted in the United States.