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Testimony of
Lawrence D. Norden, Senior Counsel
Brennan Center for Justice at NYU School of Law
Before the
The Ohio House of Representatives Elections and Ethics Committee
Regarding
H.B. 260, the “Elections Enhancement Bill”
October 14, 2009
I am Senior Counsel at the Brennan Center for Justice at New York University School of Law. The Brennan Center is a nonpartisan think tank and advocacy organization that focuses on issues related to democracy and justice, including within the context of election administration. During my tenure at the Brennan Center, I have authored several national reports and articles related to election administration, voting systems, and state election law.
At the request of Secretary Brunner, I chaired the bipartisan Elections Summit and Conference she called in December 2008 and March 2009. The Summit and Conference were open to the public and focused on a wide variety of election related topics. Discussions were led by election officials, voting rights advocates, academics and legislators. As part of my duties as Chair, I reviewed written testimony and research provided by academics, the Secretary of State’s office and members of the public in advance of both convenings, and interviewed dozens of election officials, other Ohio public officials, voting rights advocates, members of the media, and Ohio voters who participated in the Summit. At the conclusion of this work, I authored a report summarizing the data, opinions and recommendations provided by Summit participants.
The primary purpose of my report was to build on the Summit and Conference, and assist the Secretary and General Assembly in crafting a consensus-based elections policy that would rely on systematic factual analysis and take into account the many different perspectives of summit participants and other experts and practitioners on voting rights and elections. In that spirit, I offered a “Framework for Reform,” after consulting with the many stakeholders involved in the Summit and Conference. This Framework was supported by many of the State’s leading voting rights groups, academics and the Ohio Association of Election Officials.[1]
Although there were very real differences relating to election policy stated at both the Summit and Conference and detailed by participants in subsequent interviews, there was broad consensus that there are several priority issues in need of immediate action.[2] Among these were the following issues:
- improving the Statewide Voter Registration Database and system to ensure more accurate voter information;
- amending early voting procedures, to decrease burden on election officials, increase options for voters and ensure more votes are counted;
- simplifying the provisional voting and voter ID laws to avoid confusion at the polls; and
- modifying laws related to design and language requirement for ballots and other election forms to reduce voter error.
The Framework outlined the problems in each of these issue areas and, with respect to each identified reforms that seemed to have the most broad-based support.
The Elections Enhancement Bill and subsequent amendments suggested by Secretary Brunner after consulting with her Elections Enhancement Workgroup fall squarely within the Framework detailed in my report. While there are legitimate issues to be debated and considered, there is no question in my mind that this bill addresses many of the main concerns expressed by Summit participants.
I think it is worth highlighting some of the problems and solutions that nearly all Summit participants agreed were most important for improving election administration in Ohio.
1. Improving the Registration Database: Ensuring More Accurate Information
There was widespread agreement among election officials, advocates and academics that maintenance of the Statewide Database is among the most important issues that must be addressed in Ohio in the coming months. A functioning database is critical to elections: under Ohio law, citizens’ ability to vote and have their votes counted depends on whether their current names and addresses are properly added to the list and updated as information changes, and whether only ineligible individuals are moved to “ineligible” status. Election officials report that maintaining and updating their databases are among their most labor intensive and costly tasks.
Voting rights advocates, election officials and academics all pointed to the need to have more accurate and consistent information in the county and state systems. A number of their suggestions can be found in the Elections Enhancement Bill and in Secretary Brunner’s recent recommendations for amendments to that bill. Among these are the creation of an on-line voter registration system, giving voters the ability to request changes to their registration information, and automatic voter registration, both of which represent important advancements to Ohio’s registration system, and of which I will discuss in greater detail in later testimony.[3]
One change that should not be controversial is ensuring that the Ohio Bureau of Motor Vehicles complies with the National Voting Rights Act, which states in relevant part that:
“[a]ny change of address form submitted in accordance with State law for purposes of a State motor vehicle driver’s license shall serve as notification of change of address for voter registration with respect to elections for Federal office for the registrant involved unless the registrant states on the form that the change of address is not for voter registration purposes.”[4]
Through discussions at the Summit as well as subsequent interviews I conducted with participants and the Ohio BMV, it became apparent that Ohio has violated this federal mandate for several years, making it more difficult for counties to keep up-to-date voter registration lists. Specifically, rather than requiring the voter to state, on his change of address form, that the change of address is not for voter registration, BMV instead appears only to require that employees “make available” to voters a separate change of address form. If a BMV employee does not specifically offer such a form, or a voter says he does not want the extra form, his address will not be changed for voter registration purposes. By putting an extra burden on the voter to fill out an extra form, in apparent contradiction with federal requirements, this policy makes it far less likely that voters who have changed their permanent address will also change their registration records.
Moreover, it is not clear that the official BMV policy is even followed in many BMV offices. Summit participants who have changed their driver’s license addresses reported to me that employees failed to ask them whether they wanted the extra change of registration address form. That is not particularly surprising; BMV employees probably do not view updating the voter rolls as one of their primary responsibilities. It is for this very reason that the federal mandate is preferable to Ohio’s current policy: it does not rely on BMV employees to ensure that registration information is updated.
The failure of the BMV to comply with the NVRA creates extra work and costs for election officials already strapped for time and money. It also means more problems on Election Day, with voters who have moved showing up to polling places where they are not already registered, leading to more provisional ballots cast, creating even more work for election officials and poll workers and inserting more uncertainty into the process.
The Elections Enhancement Bill changes Ohio law to make it consistent with the Federal mandate, and empowers the Secretary of State to enter into a memorandum of understanding with the Ohio BMV and other designated agencies, so that the Secretary can ensure that her office and these agencies comply with the NVRA.
2. Making it Easier to Ensure Legitimate Absentee (and Provisional) Votes Are Counted
Few areas of election administration have seen bigger changes in Ohio over the last few years than early in-person and mail-in voting, and few changes have had a bigger impact on the entire electoral process. Both voting rights advocates and election officials generally see the recent reforms to Ohio’s absentee voting laws in a positive light. Most importantly, many credit the expansion of absentee voting with keeping Ohio generally free of long lines at the polls on Election Day in 2008.
Most summit participants who discussed early absentee voting also felt that the last few elections raised serious questions about some aspects of current absentee voting practices in Ohio. Both advocates and election officials argued that further changes to Ohio’s laws and practices in this area were necessary. I discuss many of the suggestions in great detail in my report. Several of those suggestions have found their way into the Elections Enhancement Bill. I would like to focus on an important recommended change that garnered widespread support and is included in the bill: making it easier to correct and count absentee ballots with technical deficiencies.
There was widespread agreement that despite important efforts from the Secretary of State to provide guidance, it was too difficult in 2008 to correct and count absentee ballots with technical defects. Specifically, election officials were forbidden from counting ballots with certain technical deficiencies unless voters physically came to the board of elections to correct them.
The new bill, together with the Secretary’s suggested amendment, would make it easier for voters to correct ministerial mistakes to ensure that legitimate votes are counted. The bill allows boards to contact voters whose ballot envelopes had not been properly signed, and allows voters to provide correct information over the telephone. This is particularly important for home-bound voters, or military and overseas voters, who may not be able to visit board offices to personally correct their envelopes.
For similar reasons, the bill makes it easier for boards to contact Ohioans who have made mistakes on their registration forms, and for those Ohioans to correct these mistakes. Secretary Brunner has recommended giving provisional voters these same protections in her Final Report on House Bill 260.
3. Simplifying Provisional Ballot Procedures to Avoid Confusion at the Polls
There was universal agreement among the summit participants I interviewed that the rules and procedures governing both provisional voting and voter ID are too complex, making poll worker’s jobs extremely difficult, leading to confusion and error. Even the Ohio Supreme Court in Skaggs v. Brunner noted that Ohio’s “generally murky” provisional ballot statutes “present a quagmire of intricate and imprecisely stated requirements, including internal inconsistencies and multiple affirmations and declinations.”[5]
The Elections Enhancement Bill does much to simplify these rules. In particular, with regard to provisional ballots, it greatly simplifies the requirements for who must vote provisionally. As one election official noted to me in an interview, current provisional ballot laws are too complex to explain to poll workers and even harder for poll workers to explain to voters. The current statutory list of specific circumstances requiring provisional voting would be hard for anyone to commit to memory.
The Elections Enhancement Bill limits the list of who must or may cast a provisional ballot to the following:
- individuals who say they are registered, but are not in the poll book or supplemental poll lists;
- individuals who do not have or who decline to show ID;
- individuals marked in the poll book as having requested an absent voter’s ballot; and
- individuals not eligible for any reason to cast a regular ballot.
This simple list should make it much easier for poll workers to know when to issue provisional ballots, and for voters to understand why they have been given a provisional ballot.
Additionally, the proposed changes to the ballot affirmation, which eliminate unnecessary language and greatly reduce the information requested from the voter, should make it much more likely that the affirmation is filled out correctly.
4. Amending laws related to design and language requirements for ballots and other forms to reduce voter error.
In previous work unconnected to the Summit and Conference, the Brennan Center concluded that Ohio’s laws related to ballot design are among the worst in the country, directly conflicting with best practices and impeding the ability of election officials to ensure that ballots are easily understood by the largest number of voters.[6] After reviewing Ohio’s laws related to design requirements for ballots, registration forms, and provisional and absentee ballot envelopes and applications as part of our work for the summit, we concluded that these laws were similarly flawed. The Summit and Conference produced widespread agreement among election officials and voting rights groups on this point.
Tens of thousands of registration forms, absentee ballots and provisional ballots were rejected in 2008, often for technical defects that might have been avoided if forms used plain language and more usable designs.[7] The Framework for Reform recommends using simple, non-legalistic language and reducing the number of fields that voters must complete to the bare minimum. It also recommends eliminating as many rules as possible that affect design, and giving the Secretary of State broad discretion to recommend designs and language that will make forms and ballots as usable as possible.[8] This is generally recognized by usability experts as best practice.[9]
The Elections Enhancement Bill accomplishes many of these goals. Required ballot instructions are simplified and ballot issue language is limited to no more than 300 words per issue. Similarly, the bill eliminates requirements for unnecessary fields and overly technical language referencing the Ohio election code for absentee ballot envelopes and provisional ballot affirmations. All of these changes should make voter error less likely.
The Summit and Conference were unique events in Ohio and the nation: a public convening of ideologically diverse election officials, academics, voting rights groups, public servants and other members of the public to review data from previous Ohio elections, with an eye towards improving elections in the future. By working cooperatively, Summit participants were largely able avoid the partisan rancor that so often defines discussions about election administration, and to identify key areas of Ohio election law that were ripe for reform.
I have focused my testimony on the recommendations for reform that had the broadest support among Summit participants. The Elections Enhancement Bill adopts all of these recommendations. It is also noteworthy that for the vast majority of issues where there was agreement among participants on the critical need for reform without overwhelming support for a particular solution, the bill adopts at least one of the suggestions offered by Summit participants.
It is my belief that the Elections Enhancement Bill represents an important step toward further improving Ohio’s elections. I hope that as you consider additional changes to the bill, you will consult the thorough and thoughtful work of the Summit and Conference participants.
[1] The Ohio Association of Election Officials stated that it “concurs with the report’s identification of several broad categories of election administration, which are ripe for review and reform prior to the 2010 election year, and the framework . . . should serve as the basis for future election reforms in Ohio.” The report’s Framework for Reform was also endorsed by Advancement Project, Advocates for Basic Legal Equality, Citizens Alliance for Secure Elections Ohio, Common Cause National, Common Cause Ohio, Professor Edward B. Foley of Moritz College of Law, Professor Candace Hoke of Cleveland-Marshall College of Law, Professor David Kimball of the University of Missouri -St. Louis, Lawyer’s Committee for Civil Rights Under the Law, League of Women Voters Ohio, The Miami Valley Voter Protection Coalition, Professor J. Quin Monson of Brigham Young University, NAACP National Fund, Ohio Citizen Action, Professor Daniel Tokaji of Moritz College of Law, and Verified Voting.
[2] The Framework for Reform is annexed to this testimony as Exhibit A.
[3] Separate from my work in Ohio, the Brennan Center has conducted extensive study on both automatic and on-line registration. Much of this research can be found at http://www.brennancenter.org/content/pages/voter_registration_modernization. Next week, I will present separate written testimony highlighting the relevance of some of this work to the current proposals for automatic and on-line research in Ohio.
[4] Editorial, Shut Out At the Polls, Wash. Post, Mar. 16, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/03/15/AR2009031501668.html.
[5] State ex. rel. Skaggs v. Brunner, 2008 WL 5157872 (Dec. 5, 2008), at 10.
[6] Lawrence Norden, et. al., The Brennan Center for Justice at NYU School of Law, Better Ballots 64 (2008), available at http://www.brennancenter.org/content/resource/better_ballots/ [hereinafter Better Ballots].
[7] For instance, Brown County rejected 44.2% of provisional ballots cast, while only eight counties rejected provisional ballots at a higher rate than Cuyahoga County, which disqualified 27.5% of its provisional ballots. Statewide, 27,763 mail-in absentee ballots were not counted, and in some counties, more than 4% of absentee ballots sent by mail were not counted. At least 1/3 of rejected registration forms in Cuyahoga County were because voters failed to fill-in information required under state law. Problems that have been noted with the current laws are inconsistent address requirements, complex documentary ID requirements, and the “wrong precinct” rule.
[8] Lawrence Norden with Jessie Allen, 2008–2009 Ohio Election Summit and Conference Final Report 20 (2009), available at http://www.brennancenter.org/content/resource/final_report_2008_2009_ohio_elections_summit_and_conference.
[9] Better Ballots, supra note 5.