I. In Focus This Week
Candidate files for preemptive order to enjoin certification in NY-26
New York election law gives the courts ample discretion to intervene
Even before a single ballot was cast on election day in the special election in New York’s 26th Congressional District, Republican Candidate Jane L. Corwin filed a request for a court order to prevent the election from being certified citing the closeness of the race in pre-voting polling.
On election day Supreme Court Justice Russell P. Buscaglia issued an 11-page order preventing the elections boards in Erie, Niagara, Genesee, Orleans, Wyoming, Livingston and Monroe counties from certifying the election until Buscaglia could hold a show-cause hearing on Thursday.
Within the order, attorneys for Corwin had until Wednesday to serve copies of the court order to the affected county boards of elections, their sheriff’s offices, the state board of elections and the other three candidates in the race.
Chris Grant, a spokesman for the Corwin campaign, told The Buffalo News that the court action "is very typical" in such close elections.
"We recognize the closeness of the race and we want to make sure that every legal vote is counted fairly and accurately," Grant told the paper.
On Tuesday though, as the votes were being tallied it became apparent that Democrat Kathleen C. Hochul had a solid lead and Corwin conceded the race. But what about the court order? Would the result render the court order moot as some had suggested?
Phone calls to the Corwin campaign for comment on whether or not the process would continue in spite of her concession went immediately to voicemail and the voicemail box was not accepting messages.
However a report from a local news station indicated that the Thursday show-cause hearing before Buscaglia had been cancelled.
While court orders to halt the certification of an election are nothing new, the issuance of such an order before even a single ballot is cast on election day has many election administration scholars scratching their heads.
“I tried to find earlier cases where a court enjoined certification prior to the completion of an election, as in the case of the NY-26th. The only cases I found that were even close involved the application of the Voting Rights Act and the Equal Protection Clause,” explained Owen Wolfe, a juris doctor candidate (2012) at the Mortiz College of Law at The Ohio State University. “I was unable to find any cases where certification was enjoined just because the election looked like it would be close, which seems to be the situation in the NY-26th.”
Unlike many other states, election law in New York gives its courts ample discretion to become involved in election disputes and the courts — at the instigation of petitioners — have been willing to use this discretion. Most recently a trial court judge oversaw a mandatory audit in the state’s 7th Senate District following the fall 2010 election.
“At the conclusion of the 3 percent audit, the trial court judge determined that though there were a number of discrepancies uncovered in the audit, projected out into a 100 percent audit those discrepancies would not be enough to change the result of the election, so the judge stopped the audit,” Wolfe explained. “These discrepancies amounted to a difference of .12 percent, higher than the .1 percent the election law allows.”
The state’s Court of Appeals held that the statute gives the courts discretion to determine these matters.
“We've certainly seen pre Election Day lawsuits designed to change the voting process that occurs on Election Day itself,” explained Edward Foley, Robert M. Duncan/Jones Day Designated Professor of Law and Director of Moritz’ Election Law program. “There are also lawsuits that try to keep the polls open late on Election Day. Is this ‘delay certification’ suit more disruptive than those? Probably not, but that's not saying a whole lot.
Foley, who has an article coming out in Election Law Journal taking a strong position against litigation that would delay certification of the canvas said that the National Center for State Courts is working to educate judges about the “dynamic interrelationship’ of election administration and election litigation. Foley said the suit in NY26 is a good example of the need to increase those educational efforts.
“One important reason why judges generally should be extremely hesitant to order such delays is to avoid the judges themselves becoming inappropriate pawns in the electoral competition between the two candidates,” Foley noted.
Although Foley noted that the timing of the NY26 lawsuit was unusual and it may not likely be repeated, that doesn’t mean that the number of lawsuits to stop certification will diminish any time soon.
“We can put the phenomenon of an Election Day, or pre Election Day, lawsuit to stop certification on a continuum of various forms of litigation over the voting process, filed by candidates or their supporters seeking some sort of tactical or strategic advantage to the litigation,” Foley said.
“Each of these forms of litigation has their potentially deleterious effect on the administration of the voting process, although … some forms of litigation--especially those occurring--and finishing--before Election Day--can have a salutatory effect if there are problems or biases in the administration the voting rules … [D]elaying certification of the canvass can wreak havoc down the road.”
II. Election News This Week
- The Ninth U.S. Circuit Court of Appeals has ruled that San Francisco’s ranked-choice voting system is constitutional. The Court said there was no evidence to suggest that the city's system "imposes any serious burdens on voters' constitutional rights by providing unequal opportunities to cast ballots." The ruling upheld a federal judge's decision. In 2010, Ron Dudum, a former candidate sued city election officials claiming that the city’s system violates the Constitution by denying thousands of voters a voice in elections and allows candidates to win without getting a majority. In its ruling Friday, a three-judge panel made clear that it wasn't expressing any opinions on the "wisdom" of using ranked-choice voting or any other system. "There is no perfect election system, and our search for one would prove no more successful than a hunt for the mythical snark," Judge Marsha Berzon wrote in the 3-0 opinion.
- The Indiana Supreme Court says the state's Recount Commission should proceed with its investigation into Charlie White's eligibility to serve as secretary of state. The commission initially declined to hear the Democrat's complaint in December. The Democrats then appealed in Marion Circuit Court. Marion Circuit Judge Louis Rosenberg ruled April 7 that the complaint is valid and that the commission must hear it, a ruling that White and the Recount Commission appealed to the Supreme Court. In its order, the Supreme Court dismissed both appeals. The Supreme Court agreed with the Democrats' claim that the circuit court's rulings didn't constitute a final judgment, so its orders can't be appealed through the regular process. The court also denied White's request to halt the commission's investigation until his criminal case in Hamilton County is resolved. White's trial is scheduled for Aug. 8. White faces seven felony charges in Hamilton County stemming from allegations that he lied about his address when voting in 2010. Indiana Democrats say that because White was illegally registered to vote when he declared his candidacy for secretary of state last year, he was ineligible to run for the office.
- Voters in South Dakota were greeted with a host of new technology and voting options this week. Using a Sioux Falls school board race as a guinea pig, the state used electronic poll books and vote centers for the first time. The test-run drew nothing but praise from voters and officials. "In one word, I would characterize it as 'excellent,'” Secretary of State Jason Gant told the Argus Press. "It was just what we expected it to be." Instead of sending voters to 59 precincts in their respective neighborhoods, the school district used 10 schools as voting centers, allowing residents to cast their ballots at any of the 10, no matter where they lived in the city. And the electronic poll books replaced large paper volumes of voters' names, allowing election officials to scan a driver's license to more quickly verify people's eligibility to vote.Gant said there were numerous county auditors and city clerks from other communities in Sioux Falls to check out the new system. "Absolutely, this will take off in other places," said Gant, who said if the necessary legislation is brought and passed in the 2012 legislative session, "we should be able to start this in more and more communities across South Dakota.
- It was not a particularly good week for elections officials in Montgomery County. In Montgomery County, Pa., the county board of elections recommended that both the director and assistant director of voter services be suspended without pay for misleading the board about people mistakenly registered to vote.A Voter Services employee wrongly registered about 3,200 people to vote after receiving their names from PennDOT. The individuals were actually not registered voters. And in Montgomery County, Va., the state board of elections signed off on a letter censuring Registrar Randy Wertz and three members of the county electoral board. The letter formalizes the state board’s April 29 decision to issue a censure based on findings by the state’s attorney general’s office that some voters were allowed to cast ballots in November 2010 without having their registration verified.
- Almost a year after a warehouse fire destroyed all 10,000 voting machines in Harris County, Texas; investigators have ruled that the fire was accidental. Rumors had swirled about the cause of the fire since it came in the run-up to the November election, but according KHOU, the fire department says heat from an electrical appliance caused the fire. There were no signs of forced entry in the building, investigators said.
III. Research and Report Summaries
Election Administration and Voting Survey 2010 Statutory Overview – Election Assistance Commission (EAC), May 2011: The EAC released a survey of election administration laws covering the 50 states, the District of Columbia, and four territories. The first EAC survey of election laws was conducted in 2008.
Systems; NIST-IR 7711: Security Best Practices for the Electronic Transmission Of UOCAVA Election Materials - A Center for Correct, Usable, Reliable, Auditable and Transparent Elections (ACCURATE), May 15, 2011: The researchers provide feedback on two recent draft documents created by NIST which focus on security best practices for UOCAVA voting.
NCSL Legislative Action Bulletin – NCSL, May 19, 2011: The most recent bulletin updates state legislation including news about voter ID and other election legislation sent to, signed by, or vetoed by governors.
National: Voter ID
Alabama: Voter ID
Arizona: Elections director
California: Debra Bowen
New Hampshire: Voter ID
Ohio: Election reform
Oklahoma: Voter ID
Oregon: Voting experience
V. Job Openings