Election law experts foresee problems at the polls


As the presidential candidates clamored for votes in swing states across the country, HLS students joined with faculty last Thursday to explore the problems we’re likely to see at the polls this Election Day. Assistant Professor Jim Greiner and Visiting Professor Dan Tokaji spoke at the event, which was sponsored by the American Constitution Society.

Greiner began the discussion by explaining how easily computers make the process of gerrymandering, through which the dominant political party reshapes voting districts on the basis of race or party affiliation in an effort to manipulate representation. While producing these districts is easy, challenging redistricting on constitutional grounds has proven difficult. One reason is that in order to successfully challenge a gerrymander, a petitioner must have adequate proof of racial bloc voting. This requires hard evidence that people vote differently based on race.

One method of determining bloc voting is comparing census data about race to precinct data about political affiliation. Even then, however, it is impossible to match political affiliation to particular individuals. Because of poorly fitting statistical models and the problem of matching race to political affiliation, judges have generally not found data to be credible. Greiner stated, “We only have information at the level of the precinct. We need information at the level of the individual.” He went on to say that one of the most effective ways of gathering this evidence is through the use of exit polling, and that he is looking for students to hire as exit pollsters.

Tokaji addressed broader concepts of election administration and broke the issues into three groups. “First, there is redistricting, including racial and partisan gerrymandering. Second, there are issues of money in politics, such as campaign finance. And third, there are nuts and bolts issues-voter I.D., voting machines, registration, and how things work on the ground.” What makes the American system peculiar is its exceedingly decentralized nature. “We have about 13,000 voting systems, which makes consistency and equal treatment very difficult to achieve.”Prior to 2000, Tokaji stated, the “nuts and bolts” did not receive much attention, especially from legal scholars. After 2000, the parties and Congress began to pay much more attention to on-the-ground issues. “Congress has made some efforts to assure a minimum level of consistency and uniformity,” Tokaji stated. In particular, the Voting Rights Act of 1965, the National Voter Registration Act (1993), and the Help America Vote Act (2002) produced standards about machines, registration, and provisional ballots.

However, in 2004, problems persisted. During that election cycle, litigation focused on a variety of issues: technology, machines, registration, eligibility, operations (including long lines of up to two hours), and recounts. As Tokaji put it, “Voting machines are just the tip of the iceberg in terms of the problems of the machinery of our democracy.”

Tokaji predicted that the big issue in the current election would not be voting machines and provisional ballots, as in 2004, or voter identification, as in 2006, but rather voter registration. This is especially true because, Tokaji explained, “on the Democratic side, it is widely believed that bringing a lot new voters into the process is in the Democrats advantage in general and the Obama campaign in particular.” This is true because the voting population has typically been older, richer, and whiter than the population as a whole.

Voter registration has taken on even greater importance in the past week, during which Ohio residents have been able to register and vote at the same time. This unique scenario is the product of an interpretation of state law made by Democratic Secretary of State Jennifer Bruner. Tokaji noted the chaotic litigation surrounding the issue. First, Republicans attempted to prevent this process in state court. Then, the Democrats sought to maintain the practice in federal court in Cleveland, a more liberal court. Finally, the Republicans filed suit in federal court in Columbus, a more conservative court, to get an injunction barring the process. “It was literally a race to the courthouse,” Tojika stated, ” I was going 90 mph on Interstate 71 from Columbus to Cleveland.” Ultimately, the Ohio Supreme Court agreed with the Democratic position.

Responding to questions from the audience, Tokaji linked the foreclosure crisis to registration eligibility, especially in poor, minority communities. “I believe excluding voters on that ground [not having an address] would almost certainly violate federal law.” He remarked that states must allow people to update their address up to Election Day.

Asked about the obstacles to creating “fair” districts, Greiner remarked that creating “fair” districts is not easy because there are so many values at play, many of which are in competition with one another. “Democrats and Republicans equally evil in this area. They would all eat their young for a biased districting scheme,” Greiner quipped.

Greiner also elaborated on some of the challenges inherent in exit polling. Most notably, he cited the “Bradley Effect,” named for Tom Bradley, an African-American who lost the 1982 California governor’s race despite pre-election and exit polls which had him leading by ten percent or more. The hypothesis is that white democrats did not reveal their true vote to pollsters for fear of criticism. Greiner said that his exit pollsters would seek to minimize this effect by moving away from the subject of the poll.

Other factors also affect the veracity of exit polling, including the Shy Tory Factor, which predicts that certain people, notably liberals, tend to agree to participate in exit polls. In addition, most pollsters are young. As a result, certain groups of people disproportionately stop to take surveys. With all these inherent limitations, Greiner issued an important caveat regarding the findings of exit polling. “Since you only see one out of every eight voters, you are always going to have an uncertainty range large enough to be incapable of accurately predicting a close election.”

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