Beyond the Margin of Litigation Professor Rick Hasen Loyola Law School, Los Angeles

How Close Did We Come to Election Meltdown Last Time? A 2% shift in the 2004 Ohio vote from Bush to Kerry could well have put the election within the “margin of litigation.”

Allegations of Election Fraud and Election Administration Mismanagement are Hurting Public Confidence in the Election Process According to a post-election NBC News/Wall Street Journal poll, more than a quarter of Americans worried that the vote count for president in 2004 was unfair. And there is a partisan and racial dimension to the issue. John Harwood reported from the same survey results that just "one-third of African-Americans call the vote ‘accurate and fair,’ while 91% of Republicans do."

NES Data Show Democrats Have Greater Concern than Republicans

But in Washington State, after the contested gubernatorial election, the Partisan Divide is Reversed

Why things are not likely to get better by “Measuring bacteria with a yardstick” Our system of election administration is nowhere near perfect, but needs to be in the case of another razor- thin election

Florida 2004 problems: Almost 40 votes on electronic voting machines were lost in Boynton Beach because of a power failure; 14,000 votes had to be recounted in Volusia County after a memory card failed; a ballot tabulator in Broward County started counting backwards after reaching 32,000 ballots; computer error gave wrong figures to Escambia County voting officials; and nearly 270 votes were found in a box in Pinellas County two weeks after the election (with 12 more ballots found later).

2. Razor-thin elections are likely to continue

3. The post-Bush v. Gore Litigation Environment Direct effect: creating new, uncertain equal protection standard Indirect effect: lowering resistance to bringing suit to challenge close election results (in part caused by views of partisan bias of election officials?)

The average number of “election challenge” cases in the period was 96 per year, compared to an average of 254 cases per year from

What can be done? Little can be done to minimize possibility of close elections, or to create perfection in the counting of votes. Three areas for reform

1. Registration reform Much of the 2004 litigation focused on registration related issues: Access v. integrity debate Hyper-federalization of election system

Proposal for universal voter registration conducted by the government combined with biometric voter identification. card Helps with both access and integrity issues.

Potential objections to registration proposal  Privacy concerns with voter identification  Cost  Should it be made easier or harder for people to vote?  Federalism costs

2. Move to nonpartisan election administration on state and local level Rationale: To the extent possible, the people running our elections should not have a vested interest in their outcome. (Florida 2000 debacle, 2004 continued problems in many states) There will be less litigation when election officials are not biased and are not perceived as biased

Current status on state level  In 33 states, the Secretary of State (or other statewide official charged with responsibilities as the Chief Elections Officer of the state (CELO)) is elected through a partisan election process.  No state currently elects the CELO through a nonpartisan election.  The rest of the states use an appointments process. (Greater variation on local level)

How to move to nonpartisanship Appointment, rather than election Nomination by governor, subject to supermajority vote of state legislature (perhaps 75%) Aim to create professional, depoliticized cadre of election officials---using Australia and Canada as models

Arguments against non-partisanship  Difficult to achieve because of history/culture in U.S.  Bipartisan administration might achieve nearly as much with fewer costs

3. Change timing of election challenges Courts should be more willing to entertain pre-election challenges, and less willing to entertain post- election challenges.

Rationale: Bad for legitimacy of courts and election process when courts decide election law issues when election is at stake Allowing candidates and parties to sit on their rights gives them an unfair “option”

But doctrines like standing and application of laches makes this move difficult: Example of Ohio challenger case and California recall case Contrast: Nader v. Keith, where Judge Posner saw the cost of delay to the public interest

Arguments against timing change  Will encourage too much litigation  Litigation brought close to the election can disrupt election