[Image courtesy of Twitter]
UC-Irvine law professor Rick Hasen – easily the Hardest Working Man in Election Law Business – has previewed a draft of a new essay on the very topical issue of uniformity in election administration. The draft, to be included in an upcoming symposium at the University of Chicago Legal Forum, takes the ongoing controversy about early and Sunday voting in Ohio as a starting point to examine how the issue of “uniformity” does (and should) play out in election administration.
The overall theme of Rick’s piece is that states like Ohio are looking at uniformity in the wrong way; rather than focus on uniformity between geographic units (usually counties), election officials and policymakers need to look at uniformity of the voting experience for voters:
[T]here is a fundamental flaw in the blanket calls for uniformity across counties (or electoral jurisdictions) in the name of equal protection principles from Bush v. Gore: uniformity across counties sometimes undermines the Equal Protection rights of voters because counties have different size populations … I argue that election administration rules premised on uniformity of counties violate Bush v. Gore or other equal protection principles whenever a rule of election administration treats differently populated counties the same but the relevant rule significantly affects the level of services provided to individual voters. [p. 3]
To illustrate this point, Rick presents two hypothetical examples:
1. In the name of uniformity, the chief election official of the state declares that each county in the state shall have the name number of voting machines. The largest county in the state has a population of about 10 million; the smallest county has a population of about 3,000.
2. In the name of uniformity, the chief election official of a state declares that each county in the state must follow the same standards for ballot format and typeface and follow the same rules for listing of candidates on the ballot.
The two examples demonstrate that uniformity across counties sometimes is appropriate and sometimes is inappropriate and perhaps unconstitutional. In the first example, involving the number of voting machines, uniformity across counties would be manifestly inappropriate and almost certainly unconstitutional. The problem arises because a uniformity requirement as to the number of voting machines, unless the number is set ridiculously high, is likely to put much greater burdens on voters in large counties than in small ones. Requiring each county to have exactly 30 voting machines, for example, means that there would be one voting machine per 100 people in the smallest county, and one voting machine per 333,333 people in the largest county. The obvious implication of such a dire disparity is that many voters in the larger counties will be effectively disenfranchised. Whether or not Bush v. Gore applies to the question of the voting machine per person disparity, such a severe burden on voting would likely be unconstitutional …
In contrast, a rule requiring uniformity across counties in setting the standards for ballot formats and the listing of candidates on the ballot is unobjectionable and not even remotely unconstitutional. Indeed, such uniformity can promote fairness and sound election administration, reduce costs, and minimize voter confusion. No one in bigger or smaller counties is at an advantage or disadvantage under such rules. [pp. 5-6, citations omitted]
Why the difference? Hasen says unlike the ballot design rules, the machine allocation rules , while treating counties the same, treat voters vastly differently – a problem given how concentrated the electorate is nationwide:
[E]lectoral jurisdictions differ drastically in size and the populations they serve. As Kimball, Baybeck, and Deppen found, “Roughly 6 percent of the local jurisdictions served a bit more than two-thirds of the voters in the 2012 election. Meanwhile, the thirty most populated jurisdictions serve more than 20 percent of the nation’s voters. When casting their ballots, the vast majority of American voters are served by a very small number of heavily populated local jurisdictions.”
Uniformity often makes sense when the rules do not depend upon the level of services provided to voters. In contrast, uniformity across counties which significantly affects the level of services provided to voters is constitutionally suspect. [p.7, citations omitted – though I plan to blog the new Kimball et al piece soon]
Applying this issue to the ongoing Ohio battles about early and Sunday voting, Hasen suggests a mixed verdict:
[W]hile Ohio Secretary of State Husted’s insistence on uniformity in early voting days and hours at first looks defensible under Equal Protection principles, in fact it can undermine election administration principles if it places greater burdens on voters in larger counties than in smaller counties. Perhaps for this reason, a federal district court recently ordered Husted to allow counties to add additional early voting hours.
Other early voting practices enacted in the name of uniformity may raise similar issues. If the state requires that counties offer only one polling place for early voting per county, then the location of the polling place could have disparate affects across voters in a geographically dispersed county. Further, a single polling location could mean much longer lines for early voting in high population counties than in small population counties, much like my voting machine hypothetical mentioned earlier.
The ban on Sunday voting question is more difficult. Like the early voting issue, the ban on Sunday voting involves the provision of services to voters. However, a ban on Sunday voting itself does not necessarily limit the total amount of services provided to voters. Under the principles I have set forth above, a ban on Sunday voting would not be unconstitutional under the uniformity principle so long as the ban did not interfere with local election officials’ ability to otherwise set enough hours to comply with a benchmark in terms of voter waiting time. [p. 8, citations omitted]
Hasen then goes on to note that factors other than uniformity – racial discrimination, convenience to voters, etc. would be relevant to a final decision on Sunday voting rules.
To his credit, Hasen notes that this principle can be problematic when county discretion (an increasingly common approach) is added to the mix:
In Bush v. Gore, the Court suggested variation in election rules to deal with local conditions is not an equal protection violation. The Court declared that “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. . . . Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally
presents many complexities.”
On the other hand, if county discretion leads to significantly greater opportunities to vote for voters in some counties rather than others, an equal protection claim seems plausible. If smaller counties have many more early hours than the larger, then that could lead to just as much of a disparity as if the state set a uniform low cap for early voting hours. [pp. 10-11, citations omitted]
Hasen’s bottom line is that uniformity – while appealing on its face – needs a little more scrutiny when applied to election administration:
Uniformity in election administration often makes sense to reduce confusion, enhance efficiency, and assure fairness of the electoral process. But a problem a sometimes arises when election administrators mandate uniformity across counties, not people. In Jenness v. Fortson, [403 U.S. 431, 442 (1971)] the Supreme Court observed that “Sometime the grossest discrimination can lie in treating things that are different as though they were exactly alike.” When the election administration rule significantly affects the level of services to voters, the equality principle should be tied to the number of voters and not the county unit. Otherwise the laws treat (voters in) very differently populated counties as though they were exactly alike.
Large counties, especially in urban areas with many new and moving voters, face big election administration challenges that are different from challenges faced by counties with small, relatively unchanging populations. When state election administrators treat large and small counties uniformly, we need to ask whether uniformity across counties creates Equal protection problems for voters. When uniformity creates these problems, it is appropriate for courts to intervene. [p.13]
This is both a timely and very important contribution to a question that is increasingly of interest to election officials, policymakers and litigators alike. Thanks to Rick for drafting it as well as sharing it with the field. I would be willing to bet that this piece will end up being cited (approvingly and disapprovingly) by combatants in Ohio and elsewhere and may end up as one basis for court rulings on this subject in 2014 and beyond.
As Rick likes to remind me he said first, “stay tuned” …