Posted: November 1, 2010

Election Day 2010: What We'll Be Watching

Since 2004, the Election Law @ Moritz project has been providing information, analysis and commentary on legal issues surrounding the electoral process. As in past years, we’ll be keeping close track of issues that arise on Election Day. Our team of faculty, staff, and students will be following problems that arise at polling places across the country, reporting them on our Information and Analysis page. We’ll pay special attention to any lawsuits filed before, during, or after the polls have begun, with links to key documents appearing on our Major Pending Cases page.

What should we expect? There are some issues that tend to recur in every election – including machines that break down, polling places that open late, and allegations of cheating. When the dust settles, these problems often turn out to be less significant than they first appeared.

If there’s a general lesson to be learned from past elections, it’s that we should expect the unexpected. Invariably, there are problems that arise which few people anticipated. The paradigmatic example is the counting of “hanging chad” punch card ballots in Florida’s 2000 presidential election Another is the protracted post-litigation surrounding absentee ballots in Minnesota’s razor-thin U.S. Senate election in 2008. The problems that wind up seeming most significant will depend, in large part, on which contests wind up being the closest.

With that qualification in mind, here are three issues to which we’ll be paying close attention tomorrow:

1. Alaska’s Write-in Votes. If I had to pick the contest most likely to go into overtime, it would have to be Alaska. That’s not because it’s the closest race (although it certainly could be close), but because of the write-in candidacy of Republican incumbent Lisa Murkowski, who’s in a three-way contest with Democrat Scott McAdams and Republican nominee Joe Miller. What makes this race especially intriguing, at least for election lawyers, is the mix of state and federal legal issues surrounding lists of write-in candidates provided by the Alaska Division of Elections. A state trial court issues an injunction against state election authorities, but that order was reversed by the state supreme court, which allowed lists to be provided – but, importantly, without information about write-in candidates’ party affiliation. On Saturday, Alaska voters filed a federal lawsuit challenging the state supreme court’s order on the ground that the change in election rules it mandates hasn’t been precleared, as required by Section 5 of the Voting Rights Act. My initial take is that there’s a strong argument that federal law has been violated . . . and that things could get really messy, if the election winds up being close.

2. Dueling Claims of Fraud and Suppression. When it comes to claims of fraudulent voting, the partisan lines of battle are now clearly drawn. Republicans tend to claim that fraud is rampant. (Remember Senator McCain’s 2008 claim that ACORN was “on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy”?) On the other hand, Democrats tend to be more concerned about the risk of voter suppression. That includes the risk that seemingly neutral rules, like voter ID, will have a discriminatory effect on racial minorities and other Democratic-leaning groups. It also includes the risk of challenges to voter eligibility being used to intimidate voters, a concern that the Advancement Project expresses here. A new wrinkle this year are the efforts of Tea Party-aligned groups like True the Vote. Though the group proclaims its mission to be the promotion of electoral integrity, Texas Democrats worry that an effect (if not the purpose) of its efforts will be to intimidate minority voters, particularly Latinos.

3. Provisional and Absentee Ballots. With the U.S. Senate and House up for grabs, and so many gubernatorial races in play, it’s hard to say what elections will be closest. What we do know is that, if an election goes into overtime, it’s likely to be decided by disputes over provisional and/or absentee ballots. Provisional ballots are typically cast by voters whose names aren’t on the list, who lack required ID, or (in some states) who have moved before the election day. Required by HAVA, they are heavily used in some states, including Ohio and California. If there’s a close election in one of those states, we can count on there being a dispute – and possibly litigation – over which provisionals get counted. The same goes for absentee ballots, including those cast by military and overseas voters pursuant to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). On Friday, a federal court issued an injunction against Maryland election officials, finding that the state’s process for UOCAVA voters would probably violate their constitutional rights. More broadly, upwards of 30% of votes were cast before election day in 2008. But as Charles Stewart noted here, only 28 million of the 36 million absentee ballots requested were actually counted – meaning that around 8 million votes somehow “leaked” out of the absentee ballot pipeline. In a close election, we can expect disputes and maybe even lawsuits over whether absentee ballots with technical defects (like being marked incorrectly or coming in past the deadline) should be counted.

These are just some of the issues we’ll have our eye on tomorrow. So stay tuned. It should be a busy day and it will probably be a long night. In some places – perhaps even when it comes to control of the Senate or (less likely) the House – election law questions may keep the outcome in doubt for weeks to come.

Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile