You think your driver’s license makes your vote safe?
Earlier I promised to look into the soft spots in the law that would enable some shenanigans at polling places, especially in swing states (and districts). As I was working on it life got in the way and wouldn’t you know it, it seems the folks at Demos & Common Cause beat me to the punch. Earlier this month they released a report entitled “Bullies at the Ballot Box. Now, instead of reinventing the wheel, I’ll highlight some of what they found and point out some vulnerabilities they missed.
This report provides background on the current threat of overly agressive voter challenge tactics and the history of such efforts in previous elections. The report then details what is permissible and legal when it comes to challenging a voter’s eligibility, both before and on Election Day and inside and outside the polling place.
The title “Bullies at the Ballot Box” is a bit of hyperbole. Real bullies are malicious trolls who enjoy inflicting pain on their victims. Rabidly partisan voter challengers don’t do it out of hate for the voters, they just think it will help them win. I don’t think the intent of the vast majority of these people is to oppress minorities; it’s about profiling Democrats. Be sure that they will be targeting young-looking voters, too. The tactic is just a low blow to weaken their opponent; nothing personal.
Let’s start with one of the largest swing states, Ohio. There is a history of partisan-biased enforcement of election rules in Ohio. Just look at the recent dust-up over setting the schedule for polling locations throughout the state. The secretary of state (Republican) broke the ties in the following manner: If the precinct leans GOP, its folks get a larger window of time to vote; if the precinct leans Democrat, he votes against it. The courts are currently still wrangling with this issue.
On election day there’s still ample opportunity for more partisan exertions of power. Ohio does not have a restrictive new photo-ID requirement (yet) and its most notorious battle is about the availability of early voting. As the report points out, private citizen election day observer challenges have been removed from the polling places. That’s a step in the right direction, but the report misses some access points for agitators.
In Ohio, the polling place is still operated by partisan appointment. (The Judge’s order in Hunter v. Hamilton County has a great detailed description of the process.) The person with the most power on-site is the presiding judge, who under Ohio law, must be a member of the party whose candidate for governor received the most votes in the prior gubernatorial election in that particular precinct. So some polling operations will be overseen by a Republican presiding judge and others by a Democratic presiding judge. Across the state hundreds of thousands of Republican citizens vote under the authority of Democratic presiding judges, and vice versa. Although there are assigned an equal number of Democrats & Republicans at each location, guess who has the on-the-spot tiebreaker in any dispute: the presiding judge.
Recognizing the lack of power of poll watcher in Ohio, rampant voter fraud believers are well aware of the opportunity to exert influence as precinct officials and are actively recruiting. The Ohio Voter Integrity Project (a True the Vote/Tea Party ally or affiliate) has launched a recruiting effort and supplemental online training for people wanting to be election judges. From their FAQ page:
Can I sign up to be a presiding judge or deputy judge if I haven’t worked the polls yet?
Absolutely, once you have been fully trained first by us and then by the BOE you can and should take one of the leadership roles at the precinct. You can make the most impact by working in one of these roles.
They will be present, paranoid and ready to jump on any perceived irregularity no matter how small. Expect the provisional ballot count to be much more than the 10,000 plus from the 2010 election in Ohio.
In Ohio, here are some of the most glaring parts of the process where the paranoid partisan judge can impact the vote.
When the voter walks up to the table the first thing they do is state their name, address, and present a “proof of the elector’s identity.” Ohio lets voters use a variety of forms of ID, including a current electric bill, as long as it has the voter’s name and address.
However, the law provides no standards or guidance for precinct election officials in determining whether the form of ID is valid. How does the judge decide whether it is a real ID? If you have any suspicion about its validity can you give the voter a provisional ballot? Do you have to have probable cause in order to reject the ID? Is it a reasonable doubt standard? Giving no guidance for standard of review leaves a loophole large enough to drive a Mack truck through. Here is where the law allows the zealously partisan poll worker to find any minuscule irregularity and make someone vote a provisional ballot.
Of course, the most common form of ID that voters will carry is the driver’s license. Now, the purpose of providing the ID is to verify your identity. Information on the ID will be checked against what the precinct election official sees (your physical appearance & what’s in the poll list or signature pollbook). What if you’ve lost a lot of weight since that picture was taken? Is that enough to doubt the ID? What if you have a wildly different hairstyle? Again, where is the standard?
After the ID check, the second vulnerable stop is the signature comparison. The voter is directed to sign in the poll list or signature pollbook. Here the poll worker can challenge if they think the signature doesn’t match the one the voter provided on her registration form. The law then provides for a vote of the precinct election officials on whether the signature “substantially conforms” to the one in the signature pollbook. Expect some partisan-line voting here with the presiding judge breaking the tie.
The third most obvious vulnerability emerges as a consequence of the others: long lines caused by frivolous challenges. This is most likely to happen at the busier times of day at the polling place. Seeing irregularities everywhere and asking for votes on many disputes will send the queue out the door. Some people will be deterred from voting (example: I don’t have time for that line, I’ve got to get to daycare before they charge me $60 for being late).
Voters facing challenges on election day may be directed to use provisional ballots. It sounds like a fair compromise. Your provisional ballot will still count right? Well, yes and no. It will likely be counted … eventually. It will not be counted for the purposes of “calling” a winner for Ohio on election night. The candidate will have to decide whether to concede by comparing the margin of victory to the number of outstanding provisional ballots left uncounted. These numbers they rely on are not an official count, but based on a form of media estimate. The procedure used by the media for calling an election is unprepared for an abnormal spike in the number of provisional ballots.
For example the Associated Press (AP) does not wait for provisional ballots when reporting unofficial results (calling the winner) on election night, but at least they know it is an issue and try to account for it in their numbers:
Race callers also need procedures to track provisional votes, an election night wrinkle that grew out of the post-2000 election reforms. AP held back from calling Ohio—and with it the presidency—in 2004 because of the uncertainty over how many provisional ballots had been cast and how they might break. This year, there will be provisional voting history from 2004, 2006 and 2008 to guide race callers in close elections.
There is the problem. They are making a huge assumption that the number of provisional ballots and their outcomes will track with recent election years. The increased efforts to target Democrat-looking voters for extra scrutiny should warrant reconsideration of this policy. Maybe have exit polls that ask whether someone voted provisionally, who they voted for, etc. That data would help serve as a check against this weak assumption.
That’s just a taste of what we can see in Ohio. Up next, a perusal of the situation in Florida.