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. Last time, I looked at Ohio and measured their potential for chaos on election day. Now it’s Florida’s turn.
You would have thought they would be running a really tight ship by now given the catastrophe in 2000. However, their work is far from done. Demos & Common Cause’s report “Bullies at the Ballot Box,” declares Florida’s election day voter challenge laws “unsatisfactory.”
Florida law permits any elector or poll watcher in his or her county to challenge the right of any voter to vote on Election Day in writing and under oath. The challenge must be filed with the clerk or inspector at the polls and describe why the challenger believes the voter is attempting to vote illegally. Importantly, Florida law provides for a penalty for a voter or poll watcher who files a frivolous charge – any one filing a challenge not in good faith commits a first degree misdemeanor. Unfortunately, a voter who is challenged must vote provisionally, and their provisional ballot will only be counted if the voter provides written proof that she is entitled to vote by five o’clock two days following the election. This requirement is overly burdensome and may endanger an eligible voter’s ability to vote.
Again, “Bullies at the Ballot Box,” with its attention-grabbing title, merely scratches the surface of the potential for partisan abuse of the system on election day. At the outset there’s a simple error that I’m sure someone on the right will pounce on to discredit the whole report. It states that that “Florida could improve its law by adopting specific rules governing the behavior of poll watchers within the polls. For example, poll watchers should not be allowed to communicate with voters.” In fact, Florida law actually does prohibit poll watchers speaking with voters in Section 101.131 “The poll watchers shall pose any questions regarding polling place procedures directly to the clerk for resolution. They may not interact with voters.” Of course, whether that rule is adequately enforced on-site is a different question.
Florida does a worse job than Ohio in protecting voters from partisan-motivated poll watchers AND election workers.
The people running the election at the polling place in Florida are referred to as the election board and consist of a clerk (the chief judge) and inspectors. Florida law does not require an equal number of Democrats & Republicans (or others) on these election boards. The only limit is provided in Section 102.012(b)(2): “No election board shall be composed solely of members of one political party.” These election boards are appointed by the Supervisors of Elections who are elected in each county. A Republican Supervisor of Election need only appoint one Democrat (or possibly a Republican-leaning Independent) to each staff at the polling place. Now, of course, some Supervisors of Elections will have integrity and try to make the process appear fair and cast a mix of affiliations. However, the lack of a partisan balance requirement in the law leaves an easy opportunity for partisan abuse, especially since Section 102.012(1)(a) states “In all questions that may arise before the members of an election board, the decision of a majority of them shall decide the question.”
Even where the polling places happen to be staffed by a balanced election board dedicated to creating a fair process, the potential voters are still inadequately protected against overzealous poll watchers.
Unlike Ohio, on election day poll watchers may challenge a peron’s right to vote. All they have to do is fill out a form and hand it to the clerk. The most outrageous danger in the Florida law is that if challenged, a voter must vote a provisional ballot. Section 101.111(b)(1) provides: “The clerk or inspector shall immediately deliver to the challenged person a copy of the oath of the person entering the challenge, and the challenged voter shall be allowed to cast a provisional ballot.” The Florida Secretary of State office issued guidelines adopting this interpretation of the voter challenge law: “Once a person is challenged at the polls, the person does not have a choice (with one exception) but to vote a provisional ballot if he or she chooses to vote.“
The challenged voter automatically gets a provisional ballot. This means the clerk has no ability to make a decision on the merit of the challenge. Even if it is an obviously empty challenge, the law states the clerk cannot toss it aside: the voter is stuck with a provisional ballot. In the previous post I discussed how provisional ballots can skew the election. Expect the media to significantly underestimate the number of provisional ballots (and estimated provisional ballot count voting for a certain incumbent) in their formula used to “call” a winner on election night. Don’t be surprised if said incumbent is spineless enough to back down and concede in the face of this dubious “call.”
These provisional ballots will be handed out like candy in part because Florida’s law, Section 101.111, does not contain a set list of acceptable grounds for challenging voters. Its only specified reason concerns the procedure when the challenge is based on a voter’s residence in the precinct, allowing the voter to complete a change of address form.
Since Florida has a photo ID law, one of the most obvious grounds for challenge is still that you are not who you are claiming to be. In Florida, like Ohio,
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?
Yes, they sound like silly reasons to challenge someone’s right to vote, but remember, in Florida, the clerk (election judge) cannot rule on the challenge at all. They must give a provisional ballot.
The “Bullies at the Ballot Box” report points out that Florida “provides for a penalty for a voter or poll watcher who files a frivolous charge – any one filing a challenge not in good faith commits a first degree misdemeanor,” which is less than 1 year in jail and/or $1,000 fine for each offense. Of course, the likelihood of actual prosecution may depend on the partisanship of the local prosecutor, and I’m sure the folks that fund those right-wing Super PACs would be grateful to help you pay those fines. I’m sure Governor Rick Scott (or a President Romney) could be persuaded to issue some pardons in some of these cases.
If there is a motivated prosecution, the overzealous partisan challenger may find relief in the “good faith” exception in the law. If a poll watcher only watches Fox News and listens to right wing talk radio, they could honestly believe that rampant voter fraud is a fact (because they heard it on the “news” all the time) and they since they took a “True the Vote” type training that any irregularity, no matter how small, is conclusive proof of voter fraud, it is possible that a court could find they offered an obvious frivolous challenge in “good faith.” If you want to apply a reasonableness standard to this “good faith” exception, it would essentially require a court to come out and say that it is unreasonable for a person to believe that information consumed from Fox News and right-wing talk radio qualifies as facts. Can you imagine the outcry if a judge made such a ruling?
In practice, what effect does the loose voter challenge procedure have on the polling place operation? If an overly zealous poll watcher challenges a voter, I doubt the watcher (Florida allows one from each party) would want the inspectors to continue processing voters while the clerk, poll watcher, and challenged voter discuss, fill out and exchange copies of the “Oath of Person Entering Challenge” form. They would want the line to stop so they do not miss a chance to observe the next people in line. They could ask to halt the whole process under their right to observe. While the clerk has the authority to order the deputy to stop this, the clerk may be of the same political persuasion as the overzealous poll watcher.
Consider this: What happens when the board runs out of “Oath of Person Entering Challenge” forms? Are the challenged voters forced to wait while copies are made, or worse, delivered from miles away?
Given the gaps in the law and the motivation to provide suffocating voter scrutiny it looks like Florida could be headed for another mess on election day.