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electionlineWeekly — November 29, 2012

Table of Contents

I. In Focus This Week

‘By the way, we have to do something about that’
Experts weigh in on the lines and possible fixes

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The big story coming out of Election Day 2012 wasn’t necessarily what many of us predicted in the lead-up to November 6.

What became the major story of Election Day 2012 — administratively speaking — were the hours long wait many voters were faced with in order to cast their ballots in some areas across the country.

In the 20-odd days since Americans went to the polls, fingers have been pointed, legislation has been introduced and task forces and panels have been convened to determine what caused the lines and ultimately how to fix them.

But was this really a problem or just something that we now noticed because of the hyper-connected society we live in. Was 2012 any worse than 2008? And if so, why?

“It is certainly a problem which needs to be fixed,” said Richard Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine and creator of the Election Law Blog. “My sense is that things were worse in 2012 compared to 2008, but even if they were not, it is intolerable that voters need to wait two, three, six hours or more to be able to case an in-person ballot on Election Day.”

But what is tolerable?

Edward B. Foley, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and the Rule of Law at The Ohio State University’s Moritiz College of Law said there have to be some reasonable expectations about wait times to cast ballots, but just what is reasonable?

“In a presidential election, I think the average voter on Election Day expects that there may be the possibility that they are going to have to wait to cast a ballot,” Foley said. “But from my view, I’d like to keep that to an hour. I start to worry if people are in lines longer than an hour.”

But in many areas people did have to wait for more than an hour and since Election Day several states and counties have created panels and task forces to look into what exactly happened to cause the long lines.

According to Doug Lewis, executive director of the Election Center, what caused the lines can vary from county to county, state to state and even polling place to polling place.

“You’ve got lots of causes for long lines and rarely are the situations identical from location to location,” Lewis said. “But there are some constants that will slow down the process.”

Lewis said that things like provisional ballots, ballots with multiple and wordy measures, shortened early voting periods and not enough voting machines — caused by a lack of funding to purchase new or fix machines — were some of the common, and fixable, problems that caused the lines on Election Day.

But one of the overarching problems and one that there is no easy fix for is the law of averages.

“Voters don’t show up in averages,” Lewis said. “Some of these things we can do better jobs at, but if we get to the point where elections officials are only allowed to buy equipment for and prepare based on averages, we’re always going to have problems.”

According to Hasen, given our decentralized system of election administration, any true fix will have to come from the state and local level.

“I would like to see a federal response, most likely in the form of carrots and sticks from Congress to induce states and localities to take steps to fix the line problem,” he said.

Hasen said given the president’s call to “fix that” he hopes it will lead to some serious bipartisan attempts, but noted the difficulty in getting movement from Congress in this area.

However, some members of Congress didn’t seem to want to wait for a commission. As of press time, two pieces of legislation have been introduced at the federal level designed help ease the crowding at polling places on Election Day.

Delaware Senator Chris Coons (D) was first out of the box when he introduced legislation on Nov. 15. The Louis L. Redding Fair, Accurate, Secure and Timely (FAST) Voting Act of 2012 would essentially create a grant program to reward states that “aggressively pursue election reform.”

“Too many voters waited far too long to cast their ballots in this last election,” Coons said in a statement. “Long lines are a form of voter disenfranchisement, a polling place running out of ballots is a form of voter suppression, and making it harder for citizens to vote is a violation of voters’ civil rights. The FAST Voting Act is a creative way to jumpstart states’ election reform efforts and ensure that what happened last week doesn’t happen again.” 

Coons said the granting program is modeled after the “Race to the Top” program for education.

Congressman Gerry Connolly (D-Va.) introduced the House version of the FAST Voting Act.

“We faced long lines at a number of polling places in Virginia. That is unacceptable,” Connolly said in a statement. “Virginia and many other states can do better.  This legislation is designed to jumpstart election reform and provide states with the tools to make their elections more efficient and more accessible to all voters.”

Congressman George Miller (D-Calif.) also introduced federal legislation with the focus on early voting and sufficient resources.

Miller’s legislation, The Streamlining and Improving Methods at Polling Locations and Early (SIMPLE) Voting Act, would, among other things, require all states to provide a minimum of 15 days of early voting in federal elections, require states to ensure the resources are available to keep wait times to an hour or less, and require states to have contingency plans should lines appear.

“What we’re proposing here is a very simple solution. We’re saying give voters in every state the opportunity to vote early so that they won’t be left out on account of a last minute illness, a change in work schedules, or unavoidable emergencies, and make sure that there are enough resources on Election Day so that voters casting their ballots in person are not forced to choose between waiting hours to vote or not voting at all,” Miller said in a statement.

Even if it is FAST and SIMPLE, of course the last thing most people want to hear, even local governments is “We’re from the government and we’re hear to help you.”

Lewis said that federal legislation is not necessary and that state legislatures are better equipped to determine what procedures will suit their voters than the federal government.

“These simple and fast solutions are not plausible and wrong,” Lewis said. “You have to understand the root causes.”

Lewis said that to really fix the problem is going to take a lot of money and require the elections administration field to look closely in the mirror.

Foley, who said he was less interested in assigning blame and more interested in looking forward, added that some of the issues can be handled by law, but like Lewis, believes real fixes are going to require money and some internal soul-searching by the elections field.

“I think for the most part we can get to the point where we can do this,” Lewis said. “We’re going to look for solutions and rational solutions.”

Editor’s Note: In an upcoming edition, we’ll speak with local election officials to get their take on what caused the lines and what they would like to see happen to help alleviate them.