[Image courtesy of True the Vote]
We’re now less than a week from Election Day, which means that virtually everyone I talk to about November 6 wants to know “what should I be watching for?”
A few months ago, you’d have thought the answer would be voter ID, but court challenges have rendered all but a few of the new laws inoperative. Voting machines have been a concern in the past, but for whatever reason (familiarity, perhaps?) they haven’t raised too many eyebrows this year. Early and absentee voting are interesting, but outside of Ohio don’t seem to be much of a story – at least in terms of drama on Election Day.
I think the biggest thing to watch next Tuesday is the impact of citizen poll watchers, including but not limited to those affiliated with Houston-based True the Vote.
Lots of ink has been spilled so far about the motivation and tactics of groups like True the Vote, but none of that interests me. What interests me is a four-part question:
1. Will they show? Believe it or not, the answer to this is not obvious; in 2004, the two major parties litigated the issue of poll watchers in Ohio all the way to the U.S. Supreme Court, which ruled in the early morning hours of Election Day that GOP-affiliated watchers could be at the polls. Despite that order, the watchers never showed up. The circumstances are much different now, but none of the alleged problems associated with poll watchers can occur if no one is there actually doing the watching.
2. What will they do? This is the real heart of the matter. Assuming that watchers are present, the extent of their impact on Election Day will be determined by how actively they insert themselves into the voting process. Different states have different laws about what watchers can and can’t do – in many ways, the story of November 6 will depend on how expansively individual watchers view those rules with regard to their own activities.
3. How good is their information? Loyola’s Justin Levitt had a must-read piece yesterday describing the challenges inherent in doing any kind of voter list maintenance, especially when it occurs outside of the election office:
Maintaining the voter rolls is a delicate science. Officials need to keep records clean, but they also need to ensure that voters are actually ineligible before jeopardizing their constitutional rights. Taking lapsed records and ineligible people off of the rolls helps prevent potential problems; taking eligible individuals off the rolls immediately creates real ones. The proper balance calls for the care of a skilled surgeon, excising cysts from the rolls in an atmosphere of quiet calm. Take out the bad, but be careful not to cut out the good. Mass computerized challenges in the closing days of an election cycle are like operating with a chainsaw. The results are unhealthy, no matter how good the operator’s intentions …
Sloppy efforts to match data from one system to another yield many mistakes: garbage in, garbage out. People listed as dead aren’t dead. People listed as moving haven’t moved. People listed as noncitizens aren’t noncitizens. People listed with disenfranchising convictions haven’t been convicted of disenfranchising crimes. Or eligible citizens on the rolls are mistaken for people who are ineligible but not registered — like Florida Governor Rick Scott, flagged as dead in 2006 by a purge that confused him for another Floridian with the same name and date of birth. Mistakes like these are far more common than most of us would assume.
Poll watching is already a difficult task, requiring the right blend of assertiveness and respect for the process. Watchers operating from challenge lists rife with errors like those described above will find it difficult to maintain that blend.
4. What effect will it have on polling places? This question is a direct consequence of the first three. If the number of poll watchers is small, their challenges limited and their information accurate, then the impact on polling places should be small. If poll watchers are legion, they are extremely aggressive and their lists are rife with errors, it’s not an overstatement to suggest that chaos will result – especially given that some voters may not take too kindly to being challenged and meet aggression with aggression.
Of course, the truth (as always) is going to be somewhere in the middle; the number of watchers will vary from community to community and the demeanor of the watchers will vary as much as the individuals involved. I will confess to sharing Justin’s nervousness about the quality of the challenge lists – indeed, I would expect that on average they will be over-inclusive – but even this will vary from place to place.
It’s precisely because of this likely variation that I think citizen poll watchers – True the Vote’s and anyone else’s – are Election Day’s biggest wild card and thus the most important thing to watch on November 6.