I. In Focus This Week

Litigation Update

By electionline.org staff

Six months after the 2010 election, courtrooms across the country are still sorting out disputes from the November vote. Two of the more high-profile cases had developments this week:



Ohio Provisional Ballot Controversy

On April 5, the Hamilton County (Cincinnati), Ohio Election Board indicated that they will ask the U.S. Supreme Court to review a recent federal appeals court decision involving provisional ballots in a recent judge’s race.

In November, GOP candidate John Williams defeated Democrat Tracie Hunter by just 23 votes out of nearly 220,000 cast, but a dispute arose soon thereafter about whether and how to count hundreds of provisional ballots that could affect the outcome. These provisional ballots were cast in polling places with tables for multiple precincts but were cast at the wrong table (precinct), which disqualifies them under Ohio law. Democrats claim that many of voters whose provisional ballots were rejected ended up in the wrong precinct because of pollworker error and should therefore be counted.

The case has had a complicated procedural history – including application of the terms of a pre-existing settlement in another case (NEOCH v. Blackwell) and conflicting directives from outgoing Secretary of State Jennifer Brunner (D) and her successor Jon Husted (R).

In December, a federal district court ordered the Hamilton County Board of Elections to conduct an expedited investigation of pollworker error. In early January, the Ohio Supreme Court clarified in State ex rel. Painter v. Brunner that “wrong-precinct” provisional ballots are not eligible to be counted under state law, whatever the reason for being cast in the wrong precinct.

Later that month, a panel of the U.S. 6th Circuit Court of Appeals ruled that while the Ohio Supreme Court’s opinion had clarified the law, the fact that an investigation had begun – and that some “pollworker error” ballots had already been counted – created an equal protection problem pursuant to Bush v. Gore.

After the full 6th Circuit refused to reconsider the panel’s opinion, the Hamilton County Board (whose Chairman is also leads the county GOP) – with the assistance of tie-breaking vote from Husted over the objection of two Democratic members -- voted to bring the case to the nation’s highest court. If the Court agrees to take the case (which they are not obliged to do) it could provide an opportunity to offer further guidance on the future implications of Bush v. Gore.

Challenge to Eligibility of Indiana Secretary of State Charlie White

On April 7 Marion Circuit Court Judge Louis Rosenberg ruled that the Indiana Democratic Party’s challenge to Charlie White's (R) eligibility to serve as secretary of state is valid, and he sent it back to the Indiana Recount Commission to be resolved.

Rosenberg heard arguments on Wednesday on whether White was legally eligible to serve as the state’s chief election officer.

Attorneys for the state Democratic Party argued that White was not legally registered to vote in the State, a requirement to hold office. The Democrats believe Vop Osili, White’s Democratic opponent in the 2010 general election (who was defeated handily by White), should be declared the winner. The State Recount Commission rejected this argument in December 2010; Osili and his attorneys seek to reverse that decision.

Rosenberg ruled that the Recount Commission must allow the Democrats to present their case. Rosenberg could've allowed the case to proceed in his courtroom, but in his ruling he said he felt that by sending it back to the Recount Commission, he would be creating "an opportunity for the political system to regain credibility."

The hearing is a separate matter from an indictment alleging that White committed voter fraud when he used an invalid address on his voter registration to cast a ballot. Should White be convicted on any of the seven felony counts against him, he would also be disqualified from holding office.

Coming soon to a courtroom? Wisconsin Supreme Court recount

On Tuesday, Assistant Attorney General JoAnne Kloppenberg defeated Justice David Prosser for a seat on the state Supreme Court. The margin of the race is exceedingly narrow – unofficial returns show a margin of just 204 out of more than 1.4 million cast – and so any recount (which must be requested) would be conducted at the state’s expense. Citizens for Election Integrity Minnesota has the full rundown on the laws, regulations and policies that will guide a recount in Wisconsin.

A recount will be quite an undertaking for the Badger State, which has more than 1,800 election jurisdictions statewide. The sheer number of localities to recount – combined with the state’s fierce partisan warfare which has made headlines in recent months – will likely lead to “ballot-by-ballot warfare in some places” according to Wisconsin election law expert Richard Esenberg.

Already, allegations of voter fraud are being raised, leaving open the distinct possibility of a legal challenge to the results once the recount is completed. That challenge itself would be complicated given the potential conflict of interest involved in a court hearing a challenge to the election of one of its own members, as Ohio State’s Ned Foley observes.


II. Election News This Week

  • More than 61 percent of voters in Fort Collins, Colo. rejected a plan to move the city to a system of ranked-choice voting during a ballot initiative vote this week. The ranked voting idea got endorsements from several groups, including the League of Women Voters. But ultimately, people didn't feel the need to change the system, Rudy Zitti, a vocal opponent of ranked voting told The Denver Post. "I think most people thought it was unnecessary, and the complexity just turned people off," Zitti said.
  • This week, Georgia Secretary of State Brian Kemp launched a 16-member elections advisory council that will review the Georgia Election Code and State Election Board Rules. The council comprises election officials and leaders from across Georgia, including city and county officials, county election directors, representatives from Democratic, Independent, Libertarian and Republican backgrounds, and members of the Georgia General Assembly. According to Kemp, the council will make recommendations designed to improve and strengthen Georgia’s election laws and procedures. The council will look particularly at improvements that create cost savings and increase efficiencies for state, county and local governments, Kemp said.
  • This week the Tucson city council voted 5-2 to move to all-mail ballots for the 2011 elections. "This is all about increasing voter participation, so there's more people electing their elected officials, and it also streamlines the cost of elections," F. Ann Rodriguez, Pima County Recorder told KGUN9. "We've been preparing.  If you look at the city elections, more and more people have been voting by mail," Vice Mayor Richard Fibres told KGUN9 News. Elections are trending in the mail-in direction, with two-thirds of city voters in casting their ballots by mail in the 2009 city election and the 2010 general election.  Supporters believe the move cuts administrative and logistical costs by reducing expenses on polling places, poll workers, or elections equipment. The decision only applies to this year's August and November elections; it does not mandate all-mail ballots for future elections.  At least one polling place for each ward will be open on Election Day for voting, as well as to re-issue ballots that people lose in the mail.
  • While the nightly news programs lead off each evening with stories about the impending doom of a federal government shutdown, what many folks don’t know is that if the federal government shuts down, so does the government of the District of Columbia. With an April 26 special election looming, the Board of Elections and Ethics (BOEE) has been working with the Office of Personnel Management to ensure that the duties of the BOEE are considered essential. Thirty-five staff have been deemed essential which means they will work throughout any government shutdown to keep the preparations for the special election going. Those 35 staff will be paid, but will not get paychecks until after the government reopens. It has yet to be determined by Congress if furloughed staff will be paid. In addition to a looming government shut down, the DCBOEE has also had to make accommodations because the special election falls on the last day of Passover.
  • Forget Match.com, there’s a new way to meet your future Mr. or Mrs. Right Now and that’s at your local polling place! In Illinois, election judges Carl Lashley and Eve Parojcic met on Election Day 2008 and plan to be married before they work on Election Day in 2012. "We chatted throughout the day," Lashley said of the first time he met Parojcic. "At the end of the day, I said, 'Hey, maybe we should get together for dinner sometime.'" He told WBBM that their recent engagement is an example of bipartisan cooperation. The wedding is set for September 24. And while Lashley and Parojcic are just beginning their life together, in Wisconsin Joyce and Howard Washechek have been married for more than 50 years and working as poll workers for at least half of that time. Joyce said she became lead inspector when her husband was alderman and joked that she refused to give up that role. "I'm the chief, he's the Indian," she said, smiling.

III. Research and Report Summaries

electionline provides brief summaries of recent research and reports in the field of election administration. Please e-mail links to research to This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Revitalizing Democracy in Florida – Collins Center for Public Policy, March 31, 2011: This report examines the state of election reform in Florida more than ten years after the 2000 election. It notes significant changes that have been made and challenges that remain.

 

Legislative Action Bulletin – National Conference of State Legislatures, March 29, 2011: This newsletter provides updates on state legislation relating to voter identification, the national popular vote, and military and overseas voting.


IV. Opinions 

National: Election reform

Alabama: Voter ID

California: Instant-runoff voting

Colorado: Voting system

Connecticut: Ballot legislation

Florida: Election reform

Idaho: Top-two primary; Closed primary

Indiana: Voter registration

Iowa: Voter ID

Kansas: Voter ID, II

Maine: Voter ID

New Jersey: Election corruption

North Carolina: Voter ID

Ohio: Voter ID, II

South Carolina: Voter ID, II

Tennessee: Runoff elections

Washington: Vote-by-mail, II, III

Wisconsin: Voter preparation



V. Job Openings

electionlineWeekly publishes election administration job postings each week as a free service to our readers. To have your job listed in the newsletter, please send a copy of the job description, including a web link to This email address is being protected from spambots. You need JavaScript enabled to view it.. Job postings must be received by 5pm on Wednesday in order to appear in the Thursday newsletter. Listings will run for three weeks or till the deadline listed in the posting.