[EL] poll worker discretion

Sat Jul 28 14:40:52 PDT 2012

The article Lorri sent is about election officials getting so angry about
the ID law in Penn that some  said they would not enforce the law.
(Well...maybe only two officials seem to be saying something like that; see
the article and William Groth's comment on problems with implementing the
law.)

Three thoughts:

1) It is highly likely that many polling places will implement the law
poorly--by mistake or by some level of intention--with some errors being on
the side of less stringent and some more stringent than the law (seemingly)
requires.

2) In any event, as the article notes, these laws can really rub citizens
the wrong way and election officials (of both parties in this article) seem
to be steamed about it, too. In short, if there are many people that cannot
vote who are vocal about it, enough ticked off election officials, enough
problems with implementing it, and/or sufficient coverage of
problems (which current interest would seem to guarantee), I think a
backlash against these ID laws is possible.  Not sure how much of any of
those factors will be enough to get it rolling or if it will be enough to
get ID laws changed or even removed, but with enough confusion,
frustration, etc. it could happen. Somewhat more likely is that negative
experiences or coverage with ID laws could stop them passing elsewhere.

3) I assume some groups, analysts/scientists, and journalists are gearing
up with ways to try to tally these mistakes as well as people turned away
according to these laws. Of course, the effect on discouraging some voters
from trying to vote will be harder to estimate...but I'm sure the topic
will become its own little academic industry for at least a few years.

The link to the original article again is:
http://articles.philly.com/2012-07-26/news/32870365_1_id-law-new-voter-identification-law-delco-election

Douglas R. Hess, PhD
Washington, DC
douglasrhess at gmail.com

On Sat, Jul 28, 2012 at 3:00 PM, <
law-election-request at department-lists.uci.edu> wrote:

> ---------- Forwarded message ----------
> From: "William Groth" <wgroth at fdgtlaborlaw.com>
> To: "'Lorraine Minnite'" <lminnite at gmail.com>, <
law-election at department-lists.uci.edu>
> Cc:
> Date: Fri, 27 Jul 2012 14:59:18 -0400
> Subject: Re: [EL] poll worker discretion
>
> 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
> 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-identification-law-delco-election
>
>
> The Problem of Pollworker Discretion in Implementing PA’s Voter ID Law
>
> Posted on July 26, 2012 3:13 pm by Rick Hasen
>
> One of the themes of The Voting Wars 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’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.
>
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