[EL] poll worker discretion

Fri Jul 27 11:59:18 PDT 2012

In connection with this thread it may be worth recalling that the Indiana
Democratic Party in Crawford argued both before the district court
(Memorandum in Support of Motion for Summary Judgment, at 40-43) and in the
Seventh Circuit--in both its opening (at 36-38) and reply briefs (at
21-22)-- that the ambiguities in Indiana's voter ID law gave partisan
election workers overly broad discretion in implementing the law at the
polls.  The IDP specifically contended that the law left undefined the words
"conform" or "indigent," and, citing to the Supreme Court's rulings in City
of Chicago v. Morales,  Grayned v. City of Rockford, and Louisiana v. United
States,  posited that these ambiguities would encourage arbitrary and
inconsistent enforcement of the law.  While we  believed and still believe
those arguments to have been cogent, Judge Posner did not even acknowledge
that these arguments had been made, much less address them in any way in his
opinion.  This may help to explain why those arguments were also left
unaddressed by the Supreme Court.

William R. Groth

Fillenwarth Dennerline Groth & Towe, LLP

429 E. Vermont Street, Ste. 200

Indianapolis, IN 46202

Telephone: (317) 353-9363

Fax: (317) 351-7232

E-mail:   <mailto:wgroth at fdgtlaborlaw.com> wgroth at fdgtlaborlaw.com 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lorraine
Minnite
Sent: Friday, July 27, 2012 1:44 PM
To: law-election at department-lists.uci.edu
Subject: [EL] poll worker discretion

Apropos below:
http://articles.philly.com/2012-07-26/news/32870365_1_id-law-new-voter-ident
ification-law-delco-election

The Problem of Pollworker Discretion in Implementing PA
<http://electionlawblog.org/?p=37605> 's Voter ID Law 

Posted on  <http://electionlawblog.org/?p=37605> July 26, 2012 3:13 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

One of the themes of The Voting Wars
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/r
ef=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>  is that it is
dangerous when we give people charged with running our election lots of
discretion for interpreting rules for who can vote, etc., because inevitably
subconscious biases and ideas can sneak in.  I talk about that a lot when it
comes to my recounting of the Florida 2000 debacle.  It happened when county
canvassing boards were deciding whether or not to count votes for Gore, Bush
or neither. It happened when local election officials decided whether or not
to use a faulty voter purge list prepared by the state by DBT.  (It also
happened when the Republican Secretary of State, Katherine Harris, and the
Democratic Attorney General, Bob Butterworth, gave conflicting
interpretations of Florida statutory provisions governing the election
protest period.)

I was reminded of that when I read this portion of the ACLU-PA
<http://www.aclupa.blogspot.com/2012/07/voter-id-day-two-statistically-speak
ing.html> 's recap of today's testimony in the voter id trial, raising an
issue wholly apart from the question of how many people don't have the right
i.d. or the right documents to get that i.d.:

A buzz-word of the day, "substantial conformity" is the term PA's voter ID
statue applies to the similarity between a voter's name on his or her photo
ID and the name that appears on state election rolls. The legislature
included no definition nor criteria for this term, and Ms. Oyler testified
that, while the Department of State may issue recommendations to the county
boards of election, those recommendations would be non-binding. Ultimately,
the question of substantial conformity, and the decision as to whether two
names match - say, for example "James Smith" and "Jim Smith" - will be left
to those individual boards of elections, and ultimately to the individual
poll workers.

Leaving such a subjective determination in the hands of so many individuals
raises significant questions. Substantive differences in name are not
uncommon - particularly for recently-married women, who are likely to have
obtained a new driver's license, but highly unlikely to have updated the
election rolls. Voters whose ID is rejected would have the opportunity to
cast a provisional ballot, but as they will have only six days to order and
obtain a corrected ID card, the odds that their vote will be counted are
slim. In his testimony, Baretto remarked that any voter who has an ID with a
name that is not an exact match with his or her name on the voting rolls is
"at risk" come election day.

A similar problem confronts the voter ID law's provision for "indigent"
voters. According to the law, voters who are "indigent" are permitted to
bypass ID requirements and instead complete a special form, which must be
submitted to the county board of elections to accompany their provisional
ballot. Once again, however, lawmakers failed to define "indigent," and so
it is left to the county boards of elections, and ultimately to the
discretion of individual poll workers, to decide who is indigent and who is
not - as well as to decide whether to provide the indigent voter form
on-site at the polling place, or to require the voter to visit county
election headquarters to obtain the form.

In short, under PA's new laws you're not only handing that poll worker your
photo ID card - you're also handing over unprecedented authority over
whether or not you can vote. Try to smile.

 This alone raises some serious federal constitutional questions about
vagueness, due process, and impermissible discretion, issues which were not
addressed in the U.S. supreme Court's Crawford case.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D37605&title=The%20Problem%20of%20Pollworker%20Discretion%20in%20Implem
enting%20PA%E2%80%99s%20Voter%20ID%20Law&description=> Share

Posted in election administration <http://electionlawblog.org/?cat=18> , The
Voting Wars <http://electionlawblog.org/?cat=60> , voter id
<http://electionlawblog.org/?cat=9>  | Comments Off 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120727/e65710de/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120727/e65710de/attachment.png>