Subject: Re: [EL] Reducing Congressional representation due to disenfranchisement of military personnel?
From: "Candice S. Hoke" <shoke@law.csuohio.edu>
Date: 10/14/2010, 2:26 PM
To: Justin Levitt
CC: "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu>, Election Law <election-law@mailman.lls.edu>

As important as it is to accord military voters the right to cast valid ballots that are counted, Justin is obviously correct that no constitutionally valid distinction can be offered between eligible military voters and other voters. 

Further:  while the MOVE Act is a valuable advance for overseas military and civilian voters, it is again an instance of well-intended Federal election legislation that did not accord sufficient time for careful, complete, and timely implementation. 

Enacted in December 2009, the Act intruded into a federal election administrative cycle that had already commenced.  Federal election cycles are planned on a 12-18 month schedule of tasks.  Election budgets must be calculated, proposed and approved well in advance of the cycle, according to local law.  

Perceiving only important services to accord underserved overseas voters (and no injuries that could accrue), the Act imposes on State and local election offices duties to set up the infrastructure for electronic voter registration, absentee ballot application, and blank ballot transmission in addition to preparation of ballots 45 days in advance of the election.  42 U.S.C.A. § 1973ff-1  Eventually these will be wonderful advances -- after election offices have sufficient time to devote to assessing design, installation, and functionality, and to conducting testing to ensure that the electronic election service systems function reliably and securely.  But that's not this 2010 election.  It's a scramble to try to meet the Act's laudable requirements, and that's not wise when trying to launch new software for critical functions. 

Other MOVE Act problems:  (1)  By imposing these electronic support requirements with an exceptionally short implementation period, the States and localities faced premium pricing from vendors with appropriate software. (2) Many jurisdictions do not have an IT staff or budget for IT supplying these services, and no website.  Centralization of election functions will likely result-- which raises other worries.  (3) The software packages for implementing MOVE Act requirements have not received the usability, security, and reliability testing and validation that one might consider essential prerequisites before asking military & other overseas voters to exercise their fundamental constitutional franchise rights.  (4) We may find ourselves repeating the HAVA experience, where too ambitious timetables led to the rapid purchase of electronic voting machines later shown to be seriously flawed.  But when better products and more time were available, the funding had largely disappeared.

Unquestionably, the MOVE Act legislated many superb advances that ultimately will benefit overseas voters dramatically.  But its timetables are too aggressive for delivering those benefits in a reliable manner in 2010.  (Will be posting my MOVE Act + Internet Voting article on SSRN)


Prof. Candice Hoke
C|M|Law, Cleveland State University






Justin Levitt wrote:
I certainly want to provide every available incentive for eligible military voters to be able to cast valid ballots that are counted.  But would this abridgment of military voters' right to vote be constitutionally distinct from the abridgment of other eligible voters' right to vote based on other state electoral regulations that increase the difficulty that those electors have in casting valid ballots?  Put differently, should state representation be reduced across the board by the proportion of (registered) electors who attempt to cast a valid ballot but do not, military or otherwise? 

Justin
-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt@lls.edu
ssrn.com/author=698321

On 10/14/2010 10:38 AM, Scarberry, Mark wrote:
Cross-posted to the conlawprof list:
 
 
Glenn Reynolds posted the following item on his Instapundit blog (http://pajamasmedia.com/instapundit/107920/):
 
 
"FIRST NEW YORK, NOW THIS: Military ballots may not count in Illinois. [http://www.wlsam.com/Article.asp?id=1985148&spid=]

"The great way to address this would be to dock states a percentage of their total federal funding to match the percentage of military ballots that are not counted."

 

Reducing federal funding would be fine, but what about reducing Congressional representation as determined by the 2010 census per section 2 of the 14th Amendment?

Mark Scarberry

Pepperdine


_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law
    


_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law