Guest Post: Ned Foley on Alaska and the potential for litigation

Ned Foley of the Moritz School of Law at the Ohio State University weighs in on our recent discussions about Alaska.  For those who don’t know, Ned is one of a few experts on the legal and political wrangling in Coleman vs. Franken, and I appreciate his willingness to muse on this issue. Crossposted at electionupdates.caltech.edu.

I haven’t looked into the details of the Alaska law on this–at least not yet–and let’s hope no situation arises where the outcome matters on how a dispute over write-in ballots is resolved.  But what worries me most in what I have seen as a result of the previous Election Update posts is that apparent discrepancy between the text of the statute and the view of Alaska’s Elections Director, as reported by Slate and the Anchorage Daily News.

The statute says that, to be conducted, a write-in ballot must meet this requirement regarding the write-in candidate’s name: “the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”  This statutory language is odd.  It appears to permit only the candidate’s “last name” to suffice, and to disqualify any mistakes regarding a candidate’s first name.  For example, “Mark Murkowki” or “Jane Murkowski” would be rejected because neither is consistent with Lisa Murkowski.

But what if the ballot has “Lis Murkowski” with the “a” missing from Lisa?  Or “Liza Murkowski,” with a “z” instead of an “s”?  That’s not “as [the name] appears on the write-in declaration of candidacy.”  Sure, despite the discrepancy, we all know the voter’s intent in this situation.  But Alaska’s statute has an important extra provision: “The rules set out in this section are mandatory and there are no exceptions to them.  A ballot may not be counted unless marked in compliance with these rules.”  This provision would seem to prohibit judges and election officials from giving leeway to voters in counting ballots based on discerning evident voter intent despite minor deviations from the rules.

(By the way, on the specific issue raised by Paul in response to Thad, it would seem that this statutory provision indicates that a ballot should NOT be counted if the oval is completely unmarked even if the name is correct. The statute says that write-in ballot is counted if both “the oval is filled in” and the name is correctly included.  While there may are different ways to mark the oval validly, as Paul observes, not marking it at all would seem to fall outside of statutory compliance, and the provision says that no ballot may be counted unless it complies.)

Of course, this “mandatory compliance” provision doesn’t completely resolve all statutory doubt: maybe writing “Liza Murkowski”, despite the mistaken “z” for “s” is close enough to count as being the same as the name “as it appears on the write-in declaration of candidacy”.  The argument is that Lisa and Liza really are the same name, at least compared to Mark or Jane. If so, then the voter would have complied with the relevant mandatory rule, and there would be no need to make an exception.   But the problem with this sort of argument is that this key provision seems to tell judges and officials to err on the side enforcing the counting rule strictly, which would mean that “Liz” and “Liza” really aren’t the same as “Lisa” (despite obvious voter intent).

But the Alaska Elections Director was quoted as saying that “Lisa M” would be acceptable even if “Lisa” alone wouldn’t be enough.  That position seems inconsistent with the statute.  “M” is not the same as the candidate’s last name, which is required.

What I fear is litigation based on an argument that voters relied on the public pronouncements of the state’s Election Director, which appeared in the leading newspaper in the state’s largest city. Even if the Elections Director is flatly wrong under the statute, a court might accept a “due process” argument based on voter reliance.  There is some case law around the country to support that kind of argument.  (I haven’t looked at Alaska or Ninth Circuit precedents specifically on this point.)  That kind of reliance argument, by the way, did not play a role in Coleman v. Franken, because there was no claim that voters were relying on the possibility that election officials would engage in an excessively lenient interpretation of the rules for submitting absentee ballots in Minnesota.

More recent news stories from Alaska indicate some effort to clarify the situation: http://www.adn.com/2010/09/24/1470302/murkowski-seeks-clarification.html

Let’s hope that the issue is sufficiently clarified that it does not become a practical problem.   Or that the election is not close enough for the issue to make a difference.

Gronke to moderate candidate debate for Metro Council President

Paul Gronke, Professor of Political Science at Reed College and Directory, Early Voting Information Center, will moderate the candidate debate between Tom Hughes and Bob Stacey for the Metro president.

Debate is sponsored by the City Club of Portland.  

http://pdxcityclub.org/content/metro-council-president-debate-0

Jeff Zeleny on early voting: the virtues of not being quoted

Jeff Zeleny of the NY Times had a nice piece on early voting yesterday, and how the rise of new balloting methods have altered political campaigns.

I notice that no academics were quoted in the piece, including of course, me! I think this is actually an accomplishment – while I have been predicting these changes to campaign strategy for years, there have been little hard data, or even anecdotes, illustrating the change.

Zeleny’s story, rather than relying on speculative quotes from scholars like myself, relies on quotes from candidates, party officials, and the like.  This is good – early voting has gone mainstream.  

And ironically, post-2010 and especially post-2012 is finally the time when academics will be able to finally weigh in with solid empirical data about the impact of early campaigns on voter behavior.  

Crossposted at electionupdates.caltech.edu

 

Gronke on Hall on Alaska

Thad Hall notes at Election Updates the Alaska statute regarding state law on rules for counting ballots, including write-ins.

I don’t agree with Thad, however, that the key question here is whether the oval is filled in properly. The law specifies that nearly any mark (“making “X” marks, diagonal, horizontal, or vertical marks, solid marks, stars, circles, asterisks, checks, or plus signs that are clearly spaced in the oval opposite the name of the candidate”) in the oval will count.

I have two reactions to Thad’s post. First, anyone taking the time to write in some variant of Lisa Murkowski would be likely to be able to make a mark in the oval (and one expects that the Murkowski campaign will go to great lengths to educate voters about the procedure).

Second, after Franken v. Coleman, can we actually be sure how a state or federal court will determine voter intent if there is a write-in but no mark in the oval? Maybe I can convince Ned Foley to weigh in…

Alaska teaches the nation about voter intent

I have given many talks about vote by mail / no excuse absentee voting in the past four years.  One of the most interesting topics is always voter intent–a concept foreign to many Midwesterners and East Coasters (election officials are generally aware from professional contacts).

The first national learning moment on voter intent was probably the contested Minnesota Senate race.  Now it looks like voter intent has hit the big time with the Murkowski announcement in Alaska.  

As I blogged about a few weeks ago, combine voter intent laws with a very lenient post-mark it by election day, a slow postal system in Alaska, a close race in Alaska, and the possibility that control of the Senate may rest with the state, and we have a recipe for a firestorm.

If you’re an election lawyer or election law/admin scholar, it might be good to clear your calendar for two weeks after Nov. 2.

Welcome to election “day”

We are working on an update to our 2008 early voting calendar.

The 2010 version should be available at earlyvoting.net soon, but already, we’ve discovered a substantial number of states who have moved up their no-excuse absentee mailing timeline to correspond to the 45 day MOVE ballot transit requirement.

As a consequence, election “day” starts on Monday for millions of American. And about a week later, almost every state with significant numbers of no-excuse voters will have mailed out ballots. Pretty amazing. 

Crossposted at electionupdates.caltech.edu

Charges of widespread absentee vote fraud in GA

This story in the Atlanta Journal Constitution’s website caught my eye.  The tone is breathless and the reporter levels a lot of broadsides.  But it reads more like an editorial or commentary than a real news story.  If it has legs, I expect we’ll hear more.

DC learns what it means to have a week-long “election day”

This story in the Post is not a surprise to anyone who follows early voting.

All I can say to the Fenty and Gray forces is that early voting, in as much as we can generalize from other races in other states and localities, is more likely to reshuffle the electorate than change the electorate.

The fact that early voting is higher in Fenty strongholds may mean that Fenty has a better funded, better organized get out the vote operation.  But it may also mean that areas where Fenty has more support are areas with voters who are, on average, whiter, better educated, and have higher incomes.

One important difference, however, is that this is a local race, and we have little empirical data on the turnout effects of early voting in local races.  Many of us–me included–believe the impact is much greater in this contests.  In addition, this is a relatively “high profile” contest, which will should only increase the turnout impact of early voting.

The reports of confrontations at the early voting stations is a cause for concern.  I wonder what election day will bring.  The next week should be interesting.  Hope my friends Alysoun and Rokey at the DC office are hanging on.  It will be a busy week.

Crossposted at http://electionupdates.caltech.edu

GOP in Iowa include absentee ballot forms in “goodie bags” for troops

Interesting initiative by the Iowa GOP.  I’m not sure why this even merits coverage, it’s legal and it’s probably a good idea.

Honolulu Star Advertiser demonstrates how NOT to do political analysis

Richard Borreca of The Honolulu Star Advertiser celebrates “thoughtful and engaged electorate“.

Sounds like good news, right? No, it’s a terribly done story on two grounds. First, “surveying” the electorate by hanging out for an hour outside of polling place is bad practice.  The writer acknowledges that he is using an “admittedly small sample” (it’s not a SAMPLE for crying out loud!).

But worse, generalizing from early in person voters who were interested and engaged enough to vote on the first day of early in person voting to the full electorate is … is … really really bad.