overview of election law and election issues

1. Overview of Election Law and Election Issues Jon Greenbaum Director, Voting Rights Project Lawyers� Committee for Civil Rights Under Law September 9, 2008

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3. Overview of Election Law and Election Issues Federal and State authority Federal authority in specific areas Where there is no federal law, state law governs BUT � if there is both Federal and State law, Federal law applies 2008 Election Protection Leadership Institute | September 8-9, 2008 3 Governing Law

4. Overview of Election Law and Election Issues Constitutional Statutory Federal Law 2008 Election Protection Leadership Institute | September 8-9, 2008 4

5. Overview of Election Law and Election Issues Article I, Section 4: The Elections Clause Protections against racial discrimination: 14th and 15th Amendments Other 14th Amendment protections Constitutional Provisions 2008 Election Protection Leadership Institute | September 8-9, 2008 5

6. Overview of Election Law and Election Issues Permits Congress to �make or alter laws relating to the time, place, and manner of federal elections.� Basis for several relevant federal statutes 2008 Election Protection Leadership Institute | September 8-9, 2008 6 Article I, Section 4: The Elections Clause

7. Overview of Election Law and Election Issues Equal protection clause (14th Amendment) �[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.� Prevents racial discrimination in voting (15th Amendment) Requires discriminatory intent Basis for the Voting Rights Act of 1965 2008 Election Protection Leadership Institute | September 8-9, 2008 7 Protections Against Racial Discrimination

8. Overview of Election Law and Election Issues The fundamental right to vote (Reynolds v. Sims) Potential fundamental right to vote claims: Malapportioned districts (one person, one vote) Requirements that affect specific portion of the electorate Significant differences in treatment between groups of voters Inequality as to how ballots are counted Due process If conduct is �fundamentally unfair� and undermines integrity of the vote 2008 Election Protection Leadership Institute | September 8-9, 2008 8 Other 14th Amendment Provisions

9. Overview of Election Law and Election Issues The Voting Rights Act of 1965 The National Voter Registration Act of 1993 (�NVRA�) Help America Vote Act of 2002 Uniformed and Overseas Citizens Absentee Voting Act (�UOCAVA�) The Voting Accessibility for the Elderly and Handicapped Act of 1984 (�VAEHA�) The Americans with Disabilities Act (�ADA�) Criminal statutes: 18 U.S.C. �� 241-242 2008 Election Protection Leadership Institute | September 8-9, 2008 9 Statutory Provisions

10. Overview of Election Law and Election Issues Section 2, the general anti-discrimination provision Section 5 preclearance Language minority provisions Federal observer provisions and attorney coverage Anti-intimidation provision, Section 11(b) Section 208 Section 202 (special provision for Presidential election) The Voting Rights Act of 1965: Overview 2008 Election Protection Leadership Institute | September 8-9, 2008 10

11. Overview of Election Law and Election Issues General anti-discrimination provision Prohibits voting practices with purpose or result of discriminating against members of a racial or minority language group �based on the totality of circumstances, . . . that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [racial or minority language group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.� 2008 Election Protection Leadership Institute | September 8-9, 2008 11 The Voting Rights Act of 1965: Section 2

12. Overview of Election Law and Election Issues Used most frequently to challenge systems that dilute minority voting strength Also used to challenge: Discriminatory placement of polling places Efforts to prevent minority candidates from getting on the ballot Challenges and voter caging directed at minority voters Discriminatory appointment of poll workers 2008 Election Protection Leadership Institute | September 8-9, 2008 12 The Voting Rights Act of 1965: Section 2

13. Overview of Election Law and Election Issues Preclearance Applies to specific states and counties with a history of discrimination Jurisdictions must receive federal preclearance before implementing any change affecting voting Must demonstrate that change does not have a discriminatory purpose/retrogressive effect The Voting Rights Act of 1965: Section 5 2008 Election Protection Leadership Institute | September 8-9, 2008 13

14. Overview of Election Law and Election Issues Voting changes are defined broadly. For example: Polling place or precinct changes Changes in candidate qualifications Changes in methods of election Changes in voting equipment If change has not be submitted, a Section 5 �enforcement action� can be brought to enjoin implementation until precleared The Voting Rights Act of 1965: Section 5 2008 Election Protection Leadership Institute | September 8-9, 2008 14

15. Overview of Election Law and Election Issues Section 4(f)(4) and Section 203 Applies to jurisdictions that fall under specified formula (based on the percentage or number of limited-English proficient voting age citizens) Four groups of language minority citizens are potentially covered: Hispanics, Asian-Americans, American Indians and Alaska Natives Assistance must cover every aspect of electoral process Must be type of assistance (written and/or oral) needed by the voters Language minority provisions 2008 Election Protection Leadership Institute | September 8-9, 2008 15

16. Overview of Election Law and Election Issues Section 8 permits Attorney General to certify Section 5-covered jurisdictions for federal observer coverage to enforce the guarantees of the 14th or 15th Amendments Section 3 authorizes federal courts to certify observer coverage in any jurisdiction as part of an interlocutory order or final judgment if needed to enforce the guarantees of the 14th or 15th Amendments Federal observers are permitted inside the polls and at the counting of votes The Department of Justice also sends attorneys to monitor elections Federal Observer and Attorney Coverage 2008 Election Protection Leadership Institute | September 8-9, 2008 16

17. Overview of Election Law and Election Issues �No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for [federal] office.� Does not on its face limit the prohibited actions to those that are racial in nature, but some courts have interpreted the statute that way. Anti-intimidation provision, Section 11(b) 2008 Election Protection Leadership Institute | September 8-9, 2008 17

18. Overview of Election Law and Election Issues Person who needs assistance due to blindness, disability or inability to read or write can get assistance from the person of his or her choice, except this assistance cannot be from an agent or officer of the voter�s employer or union Section 208 2008 Election Protection Leadership Institute | September 8-9, 2008 18

19. Overview of Election Law and Election Issues Special provision for the Presidential Election Requires states to provide absentee voting for all citizens (must apply for the absentee ballot no later than 7 seven days before the election and return the ballot on or before Election Day) If a voter moves within 30 days of a presidential general election, the voter can vote in person or absentee at his or her former jurisdiction This option is limited only to voting for President and Vice President Section 202 2008 Election Protection Leadership Institute | September 8-9, 2008 19

20. Overview of Election Law and Election Issues Purpose To make voter registration more accessible to eligible voters Standardize the process of removing voters from the registration list States without voter registration or with Election Day registration as of January 1, 1994 are exempt Requires each state to designate a chief election official Applies to elections for federal officials The National Voter Registration Act of 1993 2008 Election Protection Leadership Institute | September 8-9, 2008 20

21. Overview of Election Law and Election Issues Voter Registration Opportunities Expanded �Motor voter� � individuals must be able to register at the DMV, public assistance agencies, or agencies serving persons with disabilities States must offer voter registration by mail using state forms as well as a federal voter registration form Applications are timely if submitted to designated officials or postmarked at least 30 days before a federal election Requires notification if applications are accepted or rejected The National Voter Registration Act of 1993 2008 Election Protection Leadership Institute | September 8-9, 2008 21

22. Overview of Election Law and Election Issues Procedures on Maintaining Voter Lists States can only remove voters under circumstances that are uniform and non-discriminatory General removal procedures must be completed by 90 days before a federal election Has a private right of action with a notice requirement to chief election official The National Voter Registration Act of 1993 2008 Election Protection Leadership Institute | September 8-9, 2008 22

23. Overview of Election Law and Election Issues Congressional response to 2000 election Several new requirements for federal elections: Statewide voter registration database Provisional ballot requirements The elimination of punch card and lever machines� Voting machine accessibility requirements Identification requirements Limited administrative grievance procedure� Created the United States Election Assistance Commission The Help America Vote Act of 2002 2008 Election Protection Leadership Institute | September 8-9, 2008 23

24. Overview of Election Law and Election Issues Uniformed citizens, their families, and US citizens living outside the country can cast an absentee ballot in federal elections Ballot must be postmarked by Election Day and received within ten days of the election Also provides for a federal �back-up� ballot Uniformed and Overseas Citizens Absentee Voting Act 2008 Election Protection Leadership Institute | September 8-9, 2008 24

25. Overview of Election Law and Election Issues Generally requires polling places to be physically accessible to people with disabilities for federal elections If no accessible location is available, a political subdivision must provide an alternate means of casting a ballot on the day of the election Requires states to make available registration and voting aids for disabled and elderly voters, including information by telecommunications devices for the deaf Voting Accessibility for the Elderly and Handicapped Act of 1984 2008 Election Protection Leadership Institute | September 8-9, 2008 25

26. Overview of Election Law and Election Issues Jurisdictions need to comply with ADA requirements to provide reasonable accommodation to disabled voters Federal Election Commission created recommended guidelines in1996 Where the inside of a polling place is not accessible, the Department of Justice has stated that the availability of curbside voting is a sufficient alternative that meets ADA requirements. The Americans with Disabilities Act 2008 Election Protection Leadership Institute | September 8-9, 2008 26

27. Overview of Election Law and Election Issues 18 U.S.C. � 241 �[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same,� those persons are subject to criminal penalties. 18 U.S.C. � 242 �[w]hoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year.� Criminal Statutes 2008 Election Protection Leadership Institute | September 8-9, 2008 27

28. Overview of Election Law and Election Issues 18 U.S.C. � 241 �[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same,� those persons are subject to criminal penalties. 18 U.S.C. � 242 �[w]hoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year.� Criminal Statutes 2008 Election Protection Leadership Institute | September 8-9, 2008 28

29. Overview of Election Law and Election Issues Voter Registration Early and Absentee Voting Residency Voter Identification Felony Disenfranchisement Voter Challenges, Voter Intimidation, and Deceptive Practices Significant Election Issues 2008 Election Protection Leadership Institute | September 8-9, 2008 29

30. Overview of Election Law and Election Issues State requirements vary, federal law requires states to allow residents who register 30+ days before a federal election to vote Some states have shorter deadlines, 9 states allow Election Day registration Voter Registration 2008 Election Protection Leadership Institute | September 8-9, 2008 30

31. Overview of Election Law and Election Issues Potential issues: Processing problems including untimely processing and data entry errors Failure to provide voter registration at motor vehicle offices or public assistance agencies as required under the NVRA Not permitting voters to fix incomplete voter registration applications Discrepancies between statewide and local voter registration databases Undue restrictions on voter registration drives Removing voters from the registration list inconsistently with the NVRA Voter Registration 2008 Election Protection Leadership Institute | September 8-9, 2008 31

32. Overview of Election Law and Election Issues �Early voting� usually refers to in person voting prior to Election Day and �absentee voting� usually refers to a process where a voter requests a ballot that is mailed in In some jurisdictions, any registered voter can vote early or absentee; other states limit absentee or early voting to specified circumstances Early and Absentee Voting 2008 Election Protection Leadership Institute | September 8-9, 2008 32

33. Overview of Election Law and Election Issues Potential issues: Failure to process absentee ballot requests in a timely manner so that a voter receives the ballot too late or not at all. Too few or inadequately resourced early voting sites, resulting in long lines Failure to process ballots from military and overseas voters in accordance with UOCAVA Early and Absentee Voting 2008 Election Protection Leadership Institute | September 8-9, 2008 33

34. Overview of Election Law and Election Issues An individual must be a resident to vote in a particular jurisdiction. For certain categories of voters, residency issues are more frequent: College students Members of the military and their spouses Elderly voters who live in different places at different times of the year Potential issues: Whether a voter is treated differently based on his or her status; for example, are college students required to fill out an additional questionnaire in addition to a voter registration form. Residency 2008 Election Protection Leadership Institute | September 8-9, 2008 34

35. Overview of Election Law and Election Issues First time voter registrants who register by mail must provide a form of photo or non-photo identification when they register to vote or the first time they vote Each state requires some form of registration, but laws vary: In some states, residents only need to provide their signature. Others allow residents to provide either picture ID or non-picture ID Others require residents to present picture ID, but if the resident is unable to provide the required pictured ID, he or she can still vote if they sign an affidavit attesting to their ID Finally, in the most restrictive of states, individuals must present government-issued photo ID for their vote to count Voter Identification 2008 Election Protection Leadership Institute | September 8-9, 2008 35

36. Overview of Election Law and Election Issues Problems relating to voter identification include: Racially disparate enforcement of voter identification laws Misapplication of voter identification laws leading to voters receiving incorrect ballots or being improperly turned away Voter Identification 2008 Election Protection Leadership Institute | September 8-9, 2008 36

37. Overview of Election Law and Election Issues The practice of denying people with felony convictions the right to vote States differ with respect to voter eligibility for persons who have been convicted of a felony Problems include: Misapplication of state law by election officials Improper purging of voters that have not been convicted of a felony Administrative delays in restoring the civil rights of individuals Felony Disenfranchisement 2008 Election Protection Leadership Institute | September 8-9, 2008 37

38. Overview of Election Law and Election Issues All states allow some sort of challenges, but laws differ and challenges can cross the line and become intimidation �Dirty tricks� - voters are deceived about the time, place, and manner of elections, or falsely led to believe that they may be subject to prosecution if they vote 2008 Election Protection Leadership Institute | September 8-9, 2008 38 Voter Challenges, Intimidation and Deceptive Practices

39. Overview of Election Law and Election Issues Problems include: Voter caging � where a candidate or party send a mass mailing and challenges voters (or classes of voters) whose mailing comes back as undeliverable En masse challenges to groups based on their status (such as students or the military) or their race, ethnicity or surname Poll workers, challengers, or persons outside the polling place that are intimidating to voters Literature or robocalls that give voter inaccurate information about the election (date, where the voter votes, how the voter vote) or informs voters that they may be arrested if they vote based on other infractions 2008 Election Protection Leadership Institute | September 8-9, 2008 39 Voter Challenges, Intimidation and Deceptive Practices

40. Overview of Election Law and Election Issues There are some federal protections regarding assistance to voters and accessibility State law may contain additional protections Problems include: Failure to provide required language assistance to voters � no translation or poor translation of written materials; insufficient or poorly trained bilingual poll workers and election officials Noncompliance with Section 208, such as poll workers insisting that they be the only ones who can assist a voter Problems with curbside voting in bad weather 2008 Election Protection Leadership Institute | September 8-9, 2008 40 Assistance to Voters and Disability Access

41. Overview of Election Law and Election Issues States are required to offer provisional ballots in federal elections to any voter where there is an issue as to whether the voter is eligible to vote in the precinct Some states call these ballots �affidavit� ballots We view provisional ballot as a last resort. Provisional Voting 2008 Election Protection Leadership Institute | September 8-9, 2008 41

42. Overview of Election Law and Election Issues �Problems include: State laws that require voters to be in the proper precinct in order for the provisional ballot to count and poll workers handing voters a provisional ballot without telling them that it will not count if they are not in the correct precinct Poll workers failing to direct voters to the proper precinct Poll workers failing to make sure that the provisional ballot envelope is totally filled out Voters not being provided with the toll-free number required by HAVA which informs them as to whether their ballot was counted Election officials who abuse the discretion they have under state law as to whether a provisional ballot should be counted. Provisional Voting 2008 Election Protection Leadership Institute | September 8-9, 2008 42

43. Overview of Election Law and Election Issues Problems include: Insufficient number of machines (of any type) or unequal distribution of machines Inadequate response to equipment breakdowns (failure to replace machines quickly or offer nonprovisional paper ballots) Calibration problems with machines Poll worker problems with operating machines Ballot security issues Poorly devised ballots Precincts running out of ballots Election Equipment and Ballots 2008 Election Protection Leadership Institute | September 8-9, 2008 43

44. Overview of Election Law and Election Issues Usually result from a lack of sufficient resources, poor planning, poor training or poll workers who do not follow proper procedures These other problems include:� Failure to provide an �inactive� list at the polls or poll workers failing to consult the �inactive� list for voters who do not show up in the �active� pollbooks Problems with electronic pollbooks Polls opening late or closing early Inadequate communications between board of elections and poll workers Long lines and the failure of election officials to recognize the reason(s) for long lines and respond accordingly Other Polling-Place Issues 2008 Election Protection Leadership Institute | September 8-9, 2008 44

45. Overview of Election Law and Election Issues Candidates and political parties often take the lead on these issues but there is a role for nonpartisans to play Problems relating to these issues include: Failure to ensure a proper chain of custody of ballots Denial of public access to witness the counting Unduly restrictive requirements regarding the counting of absentee, challenged or provisional ballots Failure to accept valid UOCAVA ballots Premature certification of the election Failure to permit public access to the counting, auditing, and recount process where such access is not prohibited by law 2008 Election Protection Leadership Institute | September 8-9, 2008 45 Counting of Ballots, Audits and Recounts