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Comments of Justin Levitt Regarding the 2008 Election Administration & Voting Survey

Suggestions solicited by the Election Assistance Commission for modifications to its Election Day Survey

  • Justin Levitt
Published: May 20, 2008

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  Comments of Justin Levitt to the Election Assistance Commission
Regarding the 2008 Election Administration & Voting Survey

  May 19, 2008

   The Brennan Center for Justice at New York University School of Law thanks the Election Assistance Commission for the opportunity to comment on the 2008 Election Day Survey.

The Brennan Center is a non-partisan public policy and legal advocacy organization that focuses on fundamental issues of democracy and justice. Among other things, we seek to ensure fair and accurate voting procedures and systems and to promote policies that maximize citizen enfranchisement and participation in elections. We have done extensive work on a range of issues relating to election administration, including work to remove unnecessary barriers to voter registration; to make voting machines more secure, reliable, usable, and accessible; and to expand access to the franchise and ensure that elections are conducted with integrity.

Data are critical to all of our work, and critical to ensuring that advocates and administrators are able to reward successes and to diagnose and rectify problems. The Election Day Survey is an invaluable instrument in furthering data-driven policy, and in improving the administration of elections across the country.

We have reviewed the draft 2008 Election Day Survey promulgated by the Commission, and respectfully offer the following comments:

General comments

The data collected by the Election Day Survey is most valuable when it is complete and accurate, but compliance has been spotty in the past. As the number of questions increases, with no relative prioritization of the questions, the risk increases that the survey will yield sloppy, and less meaningful, data.

We suggest one practice to improve the likelihood that the information reported is reported reliably. Particularly where the Commission has received information that new systems will be required to report a particular piece of data, or where there is otherwise reliable information that jurisdictions may have difficulty reporting a particular piece of data, it may wish to bifurcate information requested in the survey. Certain requests – seeking information that every state should be expected to provide – would be mandatory, including the information in the statutory overview section. Other information might be expressly flagged as a “preview” for the next administration of the survey. Jurisdictions with the ready capacity to answer “preview”questions in 2008 would be encouraged to do so; jurisdictions without such capacity would receive warning that they should develop that capacity by 2010. This structure should improve the quality of the data the Commission collects in 2008, without sacrificing the survey’s signaling function in indicating data that the states should be collecting.

Specific comments – Section A.I.: Voter Registration

Question 2 requests the number of active and inactive registered voters. The NVRA provided for an “inactive” status, for voters who have not responded to communications from elections officials; some locations seem to assume that such voters are no longer within their jurisdiction, and plan elections accordingly. The Survey should collect data to test this assumption, even if it cannot answer the hypothesis directly. Specifically, the Survey should ask:

  • How many registered voters designated before the 2008 Federal general election as “inactive” voted in the 2008 Federal general election?

Question 4 concerns “online registration,” but does not define the term. Some states allow registered individuals to change information online (and may consider that change an “online registration”); some allow individuals to fill in forms online that must then be printed, signed, and delivered physically; others (Arizona and, now, Washington) allow individuals to complete the entire registration process online. The Survey should define this term to ensure that survey users understand what the collected data captures.

Question 5 concerns the source of voter registration application forms. In the list of sources, it is not clear where states should tally the forms completed in-person, at state or local election offices. The Survey should clearly indicate where such forms are to be tallied.

Similarly, there has been growing recognition of the significance of voter registration drives as a source of registrants entering the system, but little available data to quantify that impact. In Question 5, it is unclear whether the Survey intends to capture all such drives in its category of “other means”. If so, the Survey should clearly indicate that voter registration drives are included in the example: “Other means (e.g., voter registration drives conducted by political parties or nonparty groups).”

Question 5 also concerns the total number of forms received in the previous two-year period. Several current controversies in state and local election administration focus on forms received immediately before a state’s primary voter registration deadline, and on forms received between that deadline and Election Day. In order to assess the way in which various sources are used in the course of an election cycle, it would be extremely useful to track the number of application forms received from each source both immediately before and immediately after a deadline. If the infrastructure to capture such data is not currently in place, this question might be designated a “preview” question. Specifically, the Survey should also ask:

  • How many registration application forms were received from the following sources in the 30 days before the deadline for voter registration?
  • How many registration application forms were received from the following sources between the voter registration deadline and Election Day?

Question 6 concerns the status of registration application forms. Some states collect registration forms that are neither valid nor invalid, but rather held in an interim state pending some further action. These may be designated “pending” or “suspended” or “provisional” registrations, depending on the jurisdiction – but will not always be considered “invalid or rejected.” The Survey should clearly designate where such forms are to be tallied, focusing on the impact on the applicant. For example, if an applicant in this interim status is not permitted to vote before the additional action is completed, and the additional action has not been completed by Election Day, the Survey should make clear that the forms are to be considered “invalid or rejected.”

Question 7 concerns the number of duplicate entries that are received, by source. It is also important to trace the other dispositions of registration forms by source, in order to assess and (if necessary) improve the efficacy of these other sources. It is as important to know whether a certain type of source is producing many invalid or rejected applications as to know whether that source is producing many duplicates. Rather than asking only about duplicates by source, the Survey should collect data about each of the Question 6 status categories with respect to each of the Question 5 sources.

Question 8 concerns the disposition of “removal” or “confirmation” notices. It is not inherently clear what “confirmation” notices include; that is, it is not clear whether this is intended to capture a notice that every new applicant is mailed (whether the registration is successful or not), a notice that every successful applicant is mailed, or a notice reserved for applicants when there is a question regarding address or identity. Moreover, because the notices are presumably intended for two very different purposes, they should each have distinct policy ramifications that are impossible to discern when elided. The Survey should instead separate the categories, and clarify the definition of “confirmation” notices. Specifically, the Survey should ask:

  • Of the total number of removal notices mailed to voters, how many were:
  • Of the total number of confirmation notices (including notices sent when a complete registration application form is accepted), how many were:

Question 9 concerns the number of voters removed from the registration rolls for various reasons. All are legitimate reasons to remove individuals from the rolls – except one. Under the NVRA, a voter may not be removed for failure to vote in two consecutive Federal general elections alone. Rather, that voter may be removed on the inference that they have moved from the jurisdiction, if they have been sent the appropriate form of notice, and have neither responded nor voted in two consecutive Federal general elections. As drafted, this portion of the Survey is misleading, and should be corrected. There are several potential ways to correct the entry: one might be “Inactive voter after NVRA waiting period”; another might be “Failure to respond to NVRA notice and no appearance in two consecutive Federal general elections.”

Specific comments – Section A.IV.: Election Day Activities

Question 19 concerns first-time voters registering by mail, and the requirement under HAVA section 303(b) to either verify information by matching or present identification. The question as drafted is misleading in at least three respects. First, the section reference appears to be incorrect: the correct section is 303(b). Second, voters whose information has not been verified are required to provide an identification document whether voting at the polls or absentee. Third, the question should clarify whether it addresses voters who were actually told to provide identification documents, or voters who were subject to an identification requirement. The question should be rephrased as follows:

  • What was the total number of first-time voters who registered by mail, whose information was not otherwise verified, and per HAVA, were subject to the identification requirements of sect. 303(b)?

Question 19 also does not distinguish between voters with driver’s licenses and those with Social Security numbers, even though evidence indicates that HAVA section 303(b) may be functioning differently for each group. The Survey should allow jurisdictions to diagnose problems or quantify success, by distinguishing the two groups from each other. Specifically, the Survey should also ask:

  • Of the voters identified in Question 19, how many submitted a driver’s license number on the registration application form? How many submitted Social Security digits? How many submitted neither?

There is no question presently on the Survey addressing individuals who attempt to vote but do not cast ballots, for whatever reason. If the infrastructure does not currently exist to collect this data, it might be added as a “preview” question. Specifically, the Survey should also ask:

  • What was the total number of voters who arrived at the polls to vote in the election, but were turned away without casting a ballot?

Question 24 concerns the reasons for rejecting provisional ballots, and includes in that list the fact that the elector was challenged. This does not, however, indicate the total number of ballots that were challenged; presumably, some challenged ballots were later counted. The Survey should therefore ask, as a separate question:

  • How many voters were challenged, and voted a provisional or challenged ballot?

Question 24 also includes in the list of reasons for rejecting provisional ballots the possibility that the voter was “ineligible to vote.” Because in some jurisdictions a registration problem will render an applicant ineligible, the Survey should more clearly distinguish such problems by supplying examples in the “ineligible to vote” category. Specifically, the Survey should list as a category “ineligible to vote (e.g., because of age, felony, residency, citizenship)”. Optimally, the Survey should distinguish each of these categories from each other.

Finally, Question 24 elides many registration problems in its description of provisional ballots rejected because of “voter not registered / registration purged.” Many states track the reasons why a registration may have been or become invalid. The Survey should break registration problems out in a separate question to probe the various reasons for the problems. Specifically, the Survey should ask:

  • Of the number of provisional ballots that were rejected because of a registration problem, how many were due to:
    • No registration form submitted
    • Registration form arriving after the cut-off date
    • Registration form incomplete on its face
    • Registration determined to be from invalid address
    • Registration purged from the rolls
    • Other invalidity

Question 25 concerns poll books. Jurisdictions vary widely in their use of poll books, and the Survey could easily give a more complete picture of the way in which poll books are deployed. For example, the Survey might ask:

  • If electronic poll books were used, were they linked in real-time to a central state or county registration database?
  • If printed poll books were used, how many days before Election Day were they printed?
  • Were supplemental poll books used, and if so, what categories of voters were listed in the supplemental poll books?

Specific comments – Section B.I.: General

Question 3 concerns terms for registration status that the state may use, and gives certain terms as examples. Several states use other terms (e.g., “pending” or “suspended” or “provisional”), often without consistency, to describe the status of registration forms, but may not without prompting conceive of these terms in the category requested by Question 3. The Survey should therefore include “pending” and “provisional” registration statuses in the list of examples mentioned in Question 3.

Specific comments – Section B.II.: Voter Registration

Question 6 concerns active and inactive registrations, but only asks about the “definition” of voter registration in the abstract. It is possible that different definitions of the registered voter pool, however, are used for different purposes. It would be more useful both to advocates and to administrators to determine how inactive registrations are used for specific purposes, particularly if they are included for some, but not all, practices. Specifically, the Survey should ask:

  • Does the jurisdiction send election materials to registered voters? Are voters with inactive registrations sent these same materials? If voters with inactive registrations are sent some, but not all, materials that are sent to voters with active registrations, which materials are they not sent?
  • If the jurisdiction uses printed poll books, are voters with inactive registrations printed in the regular poll books? In a supplemental poll book?
  • Does the jurisdiction include inactive registrations when determining how many voting systems or machines to allocate to particular precincts?
  • If the jurisdiction uses some form of paper ballot, does the jurisdiction include inactive registrations when determining the number of ballots to print?
  • Does the jurisdiction include inactive registrations when tallying turnout?
  • Does the jurisdiction include inactive registrations for purposes of qualifying ballot measures?

Question 8 concerns the deadline for voter registration, but the cut-off date for registration is not always a cut-off date for all purposes. Some states permit incomplete registration applications or those with errors to be corrected after the deadline and applied to the impending election. As phrased currently, it is not clear that the question about “exceptions” after the cutoff date applies to such corrections, rather than forms received for the first time after the cut-off date. The Survey should probe further into this practice. Specifically, the Survey should ask:

  • If a registration application arrives before the cut-off date, but is incomplete or contains an error, can that error be corrected after the cut-off date such that the applicant will be registered for the impending election?
  • If so, are there any errors or incomplete sections that cannot be corrected after the cutoff date such that the applicant will be registered for the impending election?

Question 11 concerns voter removal and “confirmation” processes. As written, it is not clear what voter “confirmation” processes entail; an example might improve the information collected. Moreover, as written, it is not clear whether the question is asking about the processes and procedures for removal, or just about the processes and procedures for notifying voters of removal. The question should be clarified to ensure that the former information is captured. Specifically, the Survey should ask:

  • Please describe your state’s voter removal and confirmation processes and procedures, including any procedures for notice. Voter “confirmation” includes the process by which the address and/or identity of a new registrant is confirmed.

Question 13 concerns links between the driver license agency or other state agencies and the registrars’ office, but only asks about the existence of such links, and not about how the links are used. States vary widely in their practices in this regard, and the Survey should probe further into that variation. Specifically, the Survey should also ask:

  • Does the state seek to match information collected by the registrars’ office to information maintained by the other agencies when a applicant submits a registration form? If so, which other agencies? What information does the state seek to match? What are the criteria for a valid match? What are the consequences to the applicant of a valid match? What are the consequences to the applicant of a failed match?
  • Does the state seek to match information collected by the registrars’ office to information maintained by the other agencies for the purpose of identifying ineligible registrants to be removed from the rolls? If so, which other agencies? What information does the state seek to match? What are the criteria for a valid match? What are the consequences to the registrant of a valid match? What are the consequences to the registrant of a failed match?

Specific comments – Section B.III.: Election Administration

Question 17 concerns absentee voting. In addition to the states’ differing requirements for voting absentee, states vary in their procedures for handling absentee ballots. The Survey should probe this area further. Specifically, the Survey should ask:

  • Does your state regulate whether individuals other than the voter may handle absentee ballot applications or absentee ballots? If so, who may handle the applications or ballots, and under what conditions?

Question 21 concerns provisional balloting, and whether an individual who is registered in a different precinct may vote a provisional ballot that will count. Some, but not all, states allow provisional ballots to count even if the voter is outside of the proper voting district; the ballot counts only for the races for which the voter would otherwise be eligible. The Survey should inquire whether states follow this practice. The Survey should also inquire whether provisional ballots are used to further voter registration in the state. Specifically, the Survey should also ask:

  • Does your state allow the provisional ballot of a voter who is registered in a different district to be counted in those races for which the voter is eligible?
  • If a voter’s registration application was incomplete, will the information on a provisional ballot be used to complete the registration? If the ballot completes the registration information, will it be counted in that election?
  • If a voter is not registered in the jurisdiction but votes a provisional ballot, will the provisional ballot be used to register the voter for the next election?