electionline Weekly – June 15, 2006

electionline Weekly – June 15, 2006 
electionline.org 

Note: This week’s issue marks the debut of electionline.org’s summer interns, University of Richmond student Meg Coady ’07 and recent Richmond graduate Courtney McCrae ’06. They have already been hard at work helping us track the rapid changes around the country and are a terrific addition to our team. [Note to future intern prospects - we haven’t asked them to make coffee – or copies.] Join us in welcoming them! – Doug Chapin, Director

I. In Focus This Week

Southern States Employ Ranked-Choice Voting to Meet Short Timetables 
Military and overseas voters can participate in run-offs despite sluggish mail

By Meg Coady and Courtney McRae
electionline.org

Getting absentee ballots to far-off U.S. soldiers and citizens in Iraq, Afghanistan and South Korea is a challenge. Foreign mail services can be unreliable and slow, and inevitably, some ballots get delayed or lost.

But printing, mailing, casting and returning a ballot for a run-off election in as little time as a few weeks? Nearly impossible.

The compressed time between primaries and run-off votes in many Southern states have prompted lawmakers and election officials to find creative ways to ensure that voters in distant locales can participate fully in the vote – and to respond to U.S. Department of Justice (DOJ) complaints about violating some overseas’ voters access to participation in a run-off election.

States have responded to complaints that their election timeframe violates the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which protects the voting rights of members of the military, their families and other Americans living overseas.

South Carolina joined Louisiana and Arkansas by providing citizens in the military with a ranked-choice voting system, thereby eliminating the need to vote again in the case of a runoff. Under the new system, UOCAVA voters receive ballots in which they rank candidates based on preference.

South Carolina and Louisiana also extend the opportunity to all citizens living abroad. North Carolina boasts its own particular solution — mailing both the primary and primary run-off ballots at the same time making runoff ballots more accessible if needed, while Alabama simply expanded the period between elections from three to five weeks to address the problem.

Tar Heel State voters falling under UOCAVA receive a blank write-in ballot along with a regular, pre-printed primary ballot to return with their second candidate preferences in the event of a run-off.

"We are pleased to see a demonstrated commitment by the Alabama, North Carolina and South Carolina officials to assure that military members and overseas voters have a meaningful opportunity to participate in the state's second primary elections," said Wan J. Kim, assistant attorney general for DOJ’s Civil Rights Division in a press release. "These measures provide a permanent solution to the difficulties created by their previous run-off schedules, and resolve our concerns about the rights of military and overseas voters to have their ballots counted in all future primary run-off elections."

The U.S. Department of Defense Federal Voting Assistance Program (FVAP), the agency that administers UOCAVA, does not take a firm stance on the merits of instant run-off voting [IRV]. “The Department's primary concern is that overseas military and civilians are able to exercise their right to vote” said an FVAP defense spokesperson. “We are not taking a position on whether IRV should be made available for overseas military and civil personnel.”

States stressed different priorities when crafting a change to election plans. “IRV was considered because the General Assembly had a strong desire to maintain the current time frame between the primary and run-offs,” said Marci Andino, executive director of South Carolina’s State Election Commission. “IRV was the only option that would allow this.”

Lawmakers in the state responded quickly to a letter from DOJ threatening legal action if the voting rights of UOCAVA voters were not protected in the run-off. A month after receiving the complaint, lawmakers passed a bill implementing the voting method.

With the system, if no candidate receives a majority of the votes based on voters’ first choices, the candidate with the fewest votes is eliminated. The votes are then recalculated using the second choices of voters who originally favored the eliminated candidate. This process is repeated until a candidate receives a majority.

Arkansas and Louisiana adopted the ranked-choice voting system under less pressure.

Louisiana has been using the voting method since the early 1990s as a solution to its compressed election timetable.

Arkansas, which also employs run-off votes, adopted the ranked-choice voting system in May 2005.

According to Tim Humphries, legal council for the Arkansas Department of State, the implementation process of the ranked-choice voting for overseas and military voters was not difficult. The education of election commissions, clerks and voters proved to be the only barrier.

Humphries said the process has served the state well.

“I think it is possible that it could be extended to all overseas voters,” said Humphries of the IRV process. Currently five other cities around the nation have followed suit and implemented IRV.

Nationally, however, IRV and other forms of ranked-choice voting have not caught on, with only a handful of municipalities (San Francisco, Berkeley, Calif., and Burlington, Vt.) using the method for local elections. Some of the arguments against the use of IRV question voters’ ability to understand the logistics of ranked-choice voting and the costs associated with its implementation.

Despite these arguments, Rob Richie, executive director of FairVote, remains positive about the direction of IRV. “IRV has passed every test it has faced so far in flying colors,” he said, “If military voters from Arkansas and South Carolina handle the system well, it will be more evidence of its value being real, not just theoretical.”

Lawmakers in a number of states – including California, Maine, New Mexico and New Jersey – have introduced legislation for instant runoff voting, but none have garnered the necessary support to implement the measure statewide. Currently several localities such as Denver, Minneapolis, Santa Fe, N.M. and Pierce County, Wash. have created task forces to study IRV. Bills are currently pending in Iowa and Massachusetts.

According to FairVote, instant-runoff voting’s supporters include Sen. John McCain, R-Ariz., Democratic party chairman Howard Dean, and Sen. Barack Obama, D-Ill. Yet, even with such notable figures backing the alternative voting system, few national initiatives have materialized. Rep. Cynthia McKinney, D-Ga., introduced H.R. 2690 in May 2005, which would require federal elections to employ IRV. The bill, however, has idled in committee.

New Restrictions on Voter Registration Drives Result in Legal Challenges
Fraud prevention efforts alleged to conflict with organizations’ First Amendment rights

By Kat Zambon 
electionline.org

The 2004 Presidential Election was significant in several respects, most notably for long lines at polling places and the large numbers of people attempting to vote for the first time. Many of those first-time voters came to the process through third-party voter registration drives.

However, following a series of reported problems with third-party voter registration drives, state legislatures around the country began passing laws to regulate such drives in an effort to improve the process and deter fraud.

Now, some organizations are fighting back with legal action arguing that the legislation suppresses their 1st Amendment rights and amounts to little more than another voter suppression tactic while offering little hope of decreasing fraud.

The League of Women Voters in Florida is leading the backlash against voter registration drive restrictions with a lawsuit filed May 18, charging that the new Florida law, which went into effect January 1, “severely burdens their efforts to encourage civic engagement” by imposing “potentially ruinous fines and burdensome reporting requirements on all organizations registering voters” except political parties.

The new law mandates that all voter registration forms are turned in within 10 days of the time they are collected and fines organizations $250 per day for each form received late, $500 for each form collected before the registration deadline but received by election officials after the deadline, and $5,000 for each form completed but not submitted by an organization.

A press release about the lawsuit explains that the law’s “strict liability clause” means that “no extenuating circumstance - not even destruction of an office by a hurricane - will excuse the failure to submit a registration form” while almost everyone associated with an organization, including volunteers, would be personally responsible for any fines incurred. The Florida League’s $80,000 annual budget would be consumed by only 16 lost forms.

“There’s no mistaking the impact of these fines. Anyone who is a leader of an organization has good reason to be scared of the consequences of authorizing a voter registration drive in Florida today,” the plaintiffs’ co-counsel, Wendy Weiser of the Brennan Center for Justice, said in the release.

Since the law went into effect, the League’s board voted unanimously for the first time in its 77 year history to suspend all voter registration efforts in the state. The suit called the potential impact of the new law “staggering” as about half of the newly registered Florida voters in the 2004 election were registered as a result of third-party voter registration efforts.

The plaintiffs, including the People Acting for Community Together, the Florida AFL-CIO, SEIU Florida Healthcare Union, and the American Federation of State, County and Municipal Employees (AFSCME), motioned for a preliminary injunction and expedited oral arguments June 6. Jenny Nash, Florida Department of State spokesman, was unable to comment on the ongoing litigation.

State Rep. Ronald Reagan, R-Bradenton, who originally sponsored the law, told the St. Petersburg Times that he heard testimony when the bill was proposed that third-party groups did not deliver voter forms in a timely manner. Reagan supported a successful amendment to his bill that would exempt political parties from the deadlines and penalty fines because “the parties do it right.”

Weiser said that the bill discriminates “based on affiliation or non-affiliation with” Florida’s political parties. An editorial in The Miami Herald points out that “any party registered in the state of Florida – including the Surfers Party of Vermont – is immune [from the law’s restrictions] if they suppress registrations or turn them in late.”

Advancement Project senior attorney Elizabeth Westfall argued that the laws restricting voter registration drives violate the National Voter Registration Act, which requires that states ensure that laws or regulations restricting voter registration activities are “narrowly tailored to serve an overriding state interest,” according to a briefing by Project Vote. “The problem with these restrictions and trends is that they’re not helping to prevent ineligible voters from registering but they keep eligible voters from the polls,” Westfall said.

A fact sheet from the Brennan Center summarizes the status of voter registration drive restrictions in Colorado, Florida, Maryland, New Mexico, and Ohio and shows the different areas being legislated, including turnaround time, civil fines, criminal fines and penalties, pre-registration, and training. The laws vary greatly from state to state, with turnaround times that range from 48 hours to 10 days and criminal penalties that make failure to comply with turnaround times a felony in some states.

Ohio legislator Kevin DeWine, R-Fairborn, who sponsored voter registration drive legislation that eventually became law, said most people he’s heard from aren’t “complaining about turning things in 10 days” and may be looking at the law too literally. DeWine explained that he offered the legislation to formalize the voter registration drive process following the 2004 election and recalled hearing that a box of more than 500 voter registration applications arrived at the board of elections three days after the deadline.

According to DeWine, there were two main reasons for the legislation. “There’s no reason for someone to walk around with voter registration applications for weeks at a time,” DeWine said, plus it “created a chaotic environment for election administrators” when hundreds of voter registration applications came in all at once.

DeWine stated that the 10 day-deadline to turn in voter registration applications is enough time, adding, “I really don’t care what happens to the voter registration form” during those 10 days. “I don’t care who gets it there as long as it gets there within 10 days … These are issues that are easily, easily dealt with and shouldn’t put a crimp in any voter registration drive,” DeWine said.

Noting that the Brennan Center has testified in Ohio and sent letters to the Attorney General and Secretary of State, Weiser said that “the problem isn’t the concept” with deadlines to deliver voter registrations. “It is unclear to me why the state would have any interest in limiting” the types of organizations that can participate in voter registration efforts because of such deadlines, she explained.

“The vagueness is having a serious chilling effect and the penalties are criminal,” Weiser said, adding that the new law makes certain election law violations a felony, even for first-time offenders.

Advancement Project staff attorney Donita Judge said that the new law “pretty much shut down voter registration” in Ohio. Having testified in Ohio’s Joint Committee on Agency Rule Review, the legislative body responsible for ensuring that regulations are supported by law, Judge said, “We believe the Secretary of State wrongly interpreted the rule … we believe that the testimony is strong enough” that they will receive a favorable decision within the next month.

On June 14, Ohio Secretary of State J. Kenneth Blackwell “filed rule changes … to clarify two issues of contention,” according to The Plain Dealer. The changes removed the definition of compensation from the law and allowed voter registration forms collected through voter registration drives to be sent by mail.

“Obviously, it [compensation] is not a bottle of water to a volunteer. Obviously, it is not a t-shirt to a volunteer,” said James Lee, spokesman for the Secretary of State’s office in explaining that they removed the definition of compensation from the rules because it is not addressed in the law. After looking at the new rules, Peg Rosenfield, elections specialist for the Ohio League of Women Voters, told The Plain Dealer, “My initial reactions is that they’re moderately less bad.”

II. Election Reform News This Week 

  • One of the founding members of the Election Assistance Commission, Texas attorney Ray Martinez, has decided to stay on at the federal agency after announcing earlier this year he would resign his post at the end of the month. Martinez, appointed as one of two Democratic commissioners in the EAC’s first year, was asked to stay on the panel until Senate Democrats can find a replacement, according to a press release.

  • The U.S. Department of Justice this week obtained an injunction against Alabama and Secretary of State Nancy Worley for failing to meet the federal deadline for establishing a statewide voter registration database. “Unless ordered to do so, the defendants will not take the actions necessary to meet the requirements of HAVA,” the injunction stated. The court order will require that the state devise a plan for completing the database by June 29. The department sued the state last month.

III. Opinion This Week

National: Voting systems
Arizona: Voting systems; election lottery
Colorado: Voting systems; early voting
Florida: Voting system testing; II; partisan election officials
New Jersey: Voting systems
New York: Voting systems
Ohio: Partisan election officials; citizenship challenges
Pennsylvania: Voting systems
Utah: Early voting
Washington: Vote-by-mail
West Virginia: Voter ID

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