Rick Hasen is the author of the book "Voting Wars: From Florida 2000 to the next election meltdown," and Election Law Blog. He's an expert on election law, and has been following the issue closely in the lead-up to the 2012 election.
We spoke Thursday morning about the landscape for voting rights in 2012, how Hurricane Sandy could play a role and why we may not know the outcome in Ohio until Nov. 17. What follows is a transcript of our conversation, lightly edited for length and clarity:
Sarah Kliff: When you look out at the scenario for voting rights in 2012, what strikes you as the landscape on the ground right now?
Rick Hasen: A lot of the things I was worried about have been resolved at least to some extent. One of my biggest concerns was whether Pennsylvania was going to adopt a new voter identification law. That law was put on hold for this election.
Florida also had a very tough voter registration provision in effect, which made it very hard to register voters. That likely has lingering effects. It was also challenged in court.
So several of these things have gone away. What I’m looking at now are Sandy-related delays, changes and polling place problems. These are things like electronic machines not having power or roads not being passable. This is especially a concern when it comes to Pennsylvania, which is one of the states that’s closer.
SK: How could you see Hurricane Sandy effecting voters’ ability to vote?
RH: In terms of the range of things that can happen, some people may not be able to get to the polls if roads are impassable or if transportation is unavailable. One way that Pennsylvania tried to deal with the problem, which will help some voters, is extending the period for returning absentee ballots. That only helps people who already had an absentee ballot, who can get to a post office.
It’s possible that some polling places could be underwater, or otherwise disrupted. Voters would have to vote somewhere else and get that information about where to go to vote. To the extent that polling places use electronic, there has to be a backup system. Even in places using pencil and paper, it’s going to get pretty dark to see the ballot after 5 p.m.
SK: What other issues are you watching, aside from Sandy?
RH: Sandy is the top of the list. After that, I’m looking at Ohio and its provisional ballots. They now have a rule that they can’t start counting provisional ballots until November 17. If it's a close election we could be waiting a few weeks for Ohio’s results. The identity of the president could hang in the balance.
A new wild card this year is the secretary of state sent out absentee ballot applications to everyone in the state. Anyone who asked for an absentee ballot, but hasn’t returned one, if they go to the polls, they will have to cast a provisional ballot. This could add thousands of people, casting provisional ballots which won’t be counted until November 17.
SK: How likely do you see a situation like that being in Ohio?
RH: It all depends on the margin. If it's within a point, then I think we won’t have a definitive result. If the spread is wider, then even with the provisional ballots, it may be enough for one candidate to claim victory. Or, it could well not come down to Ohio. We just don’t know because the polls are all over the place. It’s certainly a lot closer than you want it be from the point of view of an election administrator.
The election administrator’s prayer is, “Lord, let it not be close.”
SK: How are some of the obstacles to voting different between 2008 and 2012?
RH: What’s different this time is, between 2008 and 2012, mostly Republican legislatures passed a series of laws which have made it marginally harder for people to vote. These are not just new voter ID laws but also cutbacks in early voting and more stringent roles for registration.
In an extremely close race these changes could make a difference. I don't subscribe the the view that many on the left have, that these changes are going to disenfranchise millions of voters. But the voting wars have definitely intensified.
SK: Why is that? Is it the new laws, or something else?
RH: One of the lessons of 2000 is that election law can be part of a political strategy. One of the things I describe in my book is how the amount of litigation has more than doubled since 2000. Candidates and others are much more willing to go to court than they were before. After the Obama win, Republicans were looking for ways to make it harder for Obama to repeat his 2008 victory.
We saw the coordinated efforts of ALEC to pass voter ID laws. After the Supreme Court gave a green light to these laws, in 2007, there was concerted efforts to get these laws on place. Democrats have paid less attention, but some attention. Election reform is not happening in a bipartisan way.
SK: Do you think this keeps escalating with each election? Or is there something that changes and forces reform?
RH: If the meltdown in Florida wasn’t enough to get us to change, then it’s not clear what’s going to push us over the edge. Another Bush versus Gore, maybe. One of the surprises in this election period has been that the courts have reined in some of the excessive changes proposed by Republican legislatures. They’ve said that cutbacks in early voting can’t be justified by a desire to stop fraud. Most importantly, we had a very conservative panel of judges in Sixth Circuit which prevented Ohio from disenfranchising voters who voted at the wrong polling precinct solely because of an error made by the polling worker.
SK: Why do you see that case as the most significant?
RH: The courts recognized in Bush versus Gore, and more generally, the constitution’s equal protection requires some basic fairness in how elections are administered. Some have pointed to this as a cudgel that could be used as a greater force. It hadn’t worked that way, but the Sixth Circuit seems to have revived this as a means of assuring greater equality.
Addendum: Rick and I spoke late last week, but after a number of incidents unfolded over the weekend, we chatted again Tuesday to catch up on the latest.
SK: What have you been seeing happen over this past weekend?
I’m amazed at how much has already happened in the last week. There seemed to be a meltdown at the Miami Dade election offices. The state legislature got rid of early voting for the weekend before, but Miami Dade decided to go ahead with in-person absentee balloting. They didn't get the permission of the mayor, and people started getting ticketed. It sounded almost like a riot. You'd think after 12 years after Bush versus Gore the state would have gotten its act together.
SK: And what about in Ohio?
RH: Late Friday we saw in Ohio, the Secretary of State issue a controversial new rule regarding the handling of provisional ballots. If the election comes down to Ohio, then all the rules related to provisional ballots will matter. It could make a difference in local races. If it's close in Ohio, we could be waiting two weeks before we know.
SK: Do these developments surprise you? Or are they what you expected?
RH: I hate to say I’m not surprised, but I’m not surprised. As I argue in "Voting Wars," we’ve learned all the wrong lessons from previous meltdowns. Everyone is jockeying for an advantage. Legislatures pass rules to help their own parties. We don’t give enough resources or training for our election officials. What I’m hoping for is a blowout one way or another so we don’t have to go into extra innings.