[EL] poll worker discretion

Sat Jul 28 15:57:38 PDT 2012

Isn't it always dangerous when we give government officials "lots of
discretion for interpreting rules" related to elections and deciding who
may speak, or not?  As Rick rightfully notes, "inevitably subconscious
biases and ideas can sneak in" - which is why we have the vagueness and
overbreadth doctrines to protect against these types of abuses.  Ideally
this sort of protection is prospective, not retrospective, in operation.
 Just as it matters very little if you get to vote *next* election due to
bad voter ID laws, but not this one, it matters very little in campaign
finance if your associational privacy is protected *after* you've lost your
government contract, been assaulted, suffered bloodied noses, etc.

I should think the vice of vagueness is poisonous whenever and wherever it
is applied.  The same evils fretted about that attach to pollworkers'
discretion apply equally to common terms used in campaign finance.  If
you're worried about the term "substantial conformity" (and I can see why
you might be), you should be equally worried about "ordinary" terms of art
of campaign finance that give speech bureaucrats the power to decide who is
regulated and who is not, who is investigated and who is not, and which
funding is disclosed, or not.  See, e.g., the former FEC two-part,
eleven-factor electioneering communications test; the current "Coordinated
Communications" test that includes a "payment prong," a "content prong"
(with four sub-factors to analyze), and a "conduct prong" (not to be
outdone by the content prong, this one has five, count 'em, five
sub-factors); or see what passes as a constitutionally defensible trigger
for speech regulation - 11 CFR 100.22(b) and its invocation of "electoral
portion," "character, qualification, or fitness for office," and the
penumbra-like "contextual clues" regularly relied upon.

The evil is the same.  Only the game has changed.

Forward,

First Amendment Ben

On Fri, Jul 27, 2012 at 1:44 PM, Lorraine Minnite <lminnite at gmail.com>wrote:

>  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<http://electionlawblog.org/?p=37605>
> Posted on July 26, 2012 3:13 pm <http://electionlawblog.org/?p=37605> 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/ref=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’s recap
> <http://www.aclupa.blogspot.com/2012/07/voter-id-day-two-statistically-speaking.html>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.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D37605&title=The%20Problem%20of%20Pollworker%20Discretion%20in%20Implementing%20PA%E2%80%99s%20Voter%20ID%20Law&description=>
>   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
>
>
>
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