Early Returns on Election Reform

Daniel P. Tokaji, Early Returns on Election Reform, 73 Geo. Wash. L. Rev. 1206 (2005).

Abstract:  The United States was fortunate to avoid another protracted post-election fight in the 2004 presidential election. Although the Help America Vote Act of 2002 (HAVA) promised substantial changes in the way that elections are conducted in the United States, these changes in federal law did not prevent serious problems from occurring in Ohio and other states. The only reason that these problems did not lead to another contested election is because the margin of victory exceeded the margin of litigation. This Article examines how the changes commonly referred to as election reform contributed to the difficulties that emerged in 2004, focusing especially on Ohio’s experience with respect to voting equipment, voter registration, provisional voting, ID requirements, challenges to voter eligibility, and polling place operations. The article then considers what should be done to deal with the problems that the 2004 election revealed, drawing five lessons for the future: (1) while HAVA’s changes with respect to voting equipment have had a beneficial effect, there is a continuing need for improvement in those states that have not yet upgraded their technology; (2) pre-election litigation challenging election administration practices should be brought as far in advance of election day as practicable; (3) courts should act swiftly in issuing injunctive relief where it is appropriate; (4) states should prescribe clear rules governing the administration of elections, as far in advance of election day as possible; and (5) courts should take a skeptical view of election administration rules that are promulgated unilaterally by partisan election officials, as opposed to those enacted by the legislature or by some other bipartisan or nonpartisan body.

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