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Electing to Litigate

By John Gibeaut

January 1, 2008, 8:21 pm CST

Kathy Dent says she believed she had run for an obscure office in 2000 when voters chose her as the elections supervisor in Sarasota County, Fla.

“I thought it was a low-profile administrative position,” she says. “What a surprise.”

Her low expectations might have been realized if Floridians hadn’t been busy also trying to elect the next president on Nov. 7, 2000. After the networks first went for Democrat Al Gore, then for Re­publican George W. Bush, the only thing for sure by the predawn hours of Nov. 8 was that Florida was too close to call. It remained that way until Dec. 12, when the U.S. Su­preme Court by a 5-4 vote halted recounts under way in sev­eral Florida counties, effectively hand­ing the election to Bush.

“Elections just haven’t been the same since 2000,” Dent says.

While the justices settled the presidential race, the litigious legacy of 2000 lives on. As Dent and elections officials across the nation prepare for this November’s presidential vote, they also increasingly find themselves beating back lawsuits that now routinely accompany the job.

In Sarasota, Republican Dent faces suits filed by a losing Demo­cratic candidate and angry voters who say the county’s newfangled electronic touch-screen voting machines failed to record 18,000 votes in the especially contentious 2006 race for the state’s 13th Congressional District. The congressional Govern­ment Accountability Office also is investigating. The dispute may not be resolved before the seat comes up for election again this November.

THE HARRIS EFFECT

The race drew added attention because the seat had been vacated by one Katherine Harris. As Florida secretary of state, Republican Harris achieved a measure of fame in the 2000 election when she certified Bush as the winner of the state’s 25 electoral votes when Palm Beach County missed a court-imposed deadline to complete its recount. Harris rode her notoriety to two terms in the U.S. House of Rep­resentatives but lost in a 2006 bid for the Senate.

“I blame the whole thing on her,” Dent says jokingly of the 2006 controversy. “If she had stayed where she was, she could have easily retained the 13th District.”

Dent says the affluent county on the Gulf Coast, 50 miles south of Tampa, has since received more than its share of attention from lawyers and reporters alike. “In Sarasota County since 2006, we’ve been under the electron microscope.”

She even has three employees who do nothing but handle public records requests from news organ­izations.

“It’s been a real challenge keeping up with that, along with all the lawsuits,” Dent says. “The scrutiny doesn’t quit.”

Dent is hardly alone as election litigation swirls through the state and federal courts well in advance of the presidential primaries. The U.S. Supreme Court has accepted an Indiana case challenging the state’s requirement that voters show photo identification when they arrive at the polls. (See “The ID Idea” sidebar below.)

Dozens of claims filed in other courts question changes instituted since 2000 that are supposed to make voting easier and ballot tabu­lations more accurate. The plaintiffs, largely Democrats and organizations representing racial minorities, say those efforts have boomeranged and threaten to make voting more difficult in some instances.

Before 2000, pre-election litigation was practically unknown. But, for better or worse, leading election lawyers and public officials agree that such lawsuits already have ingrained themselves so deeply into the fabric of the democratic process that they may shape the results long before the first voter steps into the booth. Some complain that so much litigation defeats election reform’s main purpose of restoring integrity to the system.

A NEW FACET OF ELECTIONS

“Now it seems we can’t have an election without a lawsuit—or multiple lawsuits,” says Mark “Thor” F. Hearne, a partner with Lathrop & Gage in St. Louis and national election counsel for Bush-Cheney ’04, which itself was involved in 75 cases in the three months before the vote. “I don’t know whether that’s a good thing. In fact, I think it’s a bad thing. When you have judges and lawyers deciding the results of elections, then that undermines confidence.”

Nevertheless, election litigation has become ubiquitous.

The current Florida secretary of state, Kurt S. Browning, recalls his days as a county supervisor in the Tampa-St. Petersburg area before Republican Gov. Charlie Crist appointed him in December 2006. (Voters had amended the state constitution in 1998—before the 2000 controversy—to abolish the once-partisan elected office and create an appointed post. Harris was Florida’s last elected secretary of state.)

“In 2000, I had been supervisor for 20 years and I never had been sued,” Browning recalls. But after Election Day 2000, Browning’s office in Pasco County got hit with five lawsuits in a week.

“Every time we turn around, we have to ask if someone’s going to be able to sue us,” Browning says.

Likewise, the litigation wave has touched Ohio Democratic Secretary of State Jennifer Brunner. She inherited 21 suits from her Republican predecessor after her election in 2006. And Brunner says they just keep right on coming, as she describes a recent encounter outside her office in Columbus.

“As I was walking into the building from lunch, two gentlemen—I assume they were gentlemen—served me with another lawsuit,” Brunner says.

Since Brunner is a veteran election lawyer and a former state trial judge, mountains of litigation don’t alarm her. “I’m pretty used to that,” she says. “I just see a lawsuit as a cost to the office.”

The courts always have entertained disputes over election results, as well as attempts to vindicate minority voting rights through redistricting cases and challenges to blatant racial discrimination, par­ticularly in the South. Election litigation today reaches beyond those traditional fields to cover the entire process, from registration to ballot box, by attacking technology and shoddy election management as new forms of illegal discrimination.

“People are no longer investing in recount litigation,” Hearne says. “You have to be prepared for that anyway, so now people are starting to focus on what happens before the election.”

A new class of defendant also has emerged: the local election admin­istrator.

“In the elections field, it’s such a technical backwater that 99 percent of the people didn’t know we existed,” says Democrat Ion Sancho, the Leon County, Fla., elections supervisor who is based in Tallahassee. “We sort of viewed the process as ours. We were the experts.”

Now going to court almost has become an Election Day ritual for Sancho, a J.D. who says he doesn’t lose. And he knows where he’ll be on Election Day 2008: “I expect to get sued every election now.”

While Florida decided the 2000 presidential race, Ohio and its 20 electoral votes pushed Bush over the top and into a second term in 2004. Ohio remained in the national focus until late December that year as it endured its own nasty recount amid complaints of long lines that drove voters away from the polls, broken machines, untrained poll workers who sent people to the wrong precincts, and inconsistent policies on the use of provisional ballots—which were given to voters whose registrations were disputed.

So lawyers and plenty of other folks again likely will be watching the courts in both states, as well as the vote totals, as the 2008 presi­dential campaign moves from the YouTube debates to the primaries.

In Tallahassee, election lawyer Mark Herron wonders just how far Florida has come since 2000.

“In some respects, we’ve moved the ball forward as far as getting all the votes counted,” says Herron, who practices with Messer Caparello & Self and represents Christine Jennings, the losing candidate in the Sarasota congressional race.

Like many other states, Florida has dumped ATM-like touch-screen voting machines in favor of old-fashioned paper ballots that voters mark with pencil and then feed into an optical scanner to register their selections. Thus, authorities have an independent paper trail to follow, which electronic machines can’t produce. A vote lost in an electronic machine is just that—lost.

Herron also draws encouragement from Florida rules for election officials to use when trying to determine voter intent: examining marks left behind on paper ballots. Questions of voter intent prolonged the 2000 recount as officials spent weeks without guidance examining marks on punch cards in attempts to determine whether a voter meant to cast a ballot in a particular race.

“But in some ways, we’ve gone backward,” Herron adds.

POST-FLORIDA FIXES

Much of the new focus stems from the 2002 Help America Vote Act, passed by Congress in response to the Florida fiasco.

As its first goal, HAVA requires states to dump lever and punch-card voting machines, such as those responsible for dragging out the Florida recount well beyond the election. HAVA also requires states to improve polling place accessibility, computerized statewide registration and voter identification.

In addition, the law requires pro­visional voting, which allows people identified at the polls as ineligible to cast a ballot contingent on a later determination of eligibility. The requirement aims to address complaints that millions of voters were turned away from the polls in 2000. When first used nationally in 2004, 1.9 million voters received provi­sional ballots—1.2 million of which eventually were counted, according to the U.S. Election Assistance Commission, a bipartisan agency established to administer HAVA.

But HAVA also gives states great leeway in determining how to im­plement the law. That has led to controversy in some states that impose additional restrictions, most often in the name of preventing fraud.

For example, HAVA recognizes a wide range of identification methods, including utility bills, bank statements and similar documents from new voters who register by mail and then arrive at the polls in person. But nearly half the states impose stricter requirements and require all voters to present ID at the polls. Seven require government-issued photo IDs and one state—Arizona—demands proof of citizenship.

Though all states allow voters without ID to cast provisional ballots, some voting-rights advocates say states don’t always bother to validate or count them unless margins between candidates are slim enough to make a difference.

In Florida and elsewhere, legis­latures clamped down on organized voter registration drives with the stated purpose of reducing fraud. Florida lawmakers, for instance, devised a scheme that set up a schedule of deadlines and fines between $250 and $5,000 for each late registration application. Had a federal judge in Miami not blocked the state from enforcing it, the risk associated with the law would have forced the League of Women Voters out of the registration business.

“We essentially stopped all reg­istration activity because of that,” says League of Women Voters President Mary Wilson, a principal in the firm of Aungier & Wilson in Albuquerque, N.M. Such restrictions have nothing to do with an applicant’s eligibility, she says. “They’re procedural requirements.”

The future of registration drives remains in doubt, however, as Florida has appealed. A similar case in Ohio remained on track in late November for trial in Cleveland, though a preliminary injunction also blocks enforcement.

Though both ID cases and registration restrictions implicate minority voting rights, only a handful of courts so far appear to be impressed with arguments based on racial discrimination. Race and technology collide, however, over a HAVA requirement that states purge their registration lists of duplicate names by matching voters’ driver’s license or Social Security numbers against those on file in existing state and federal databases. If a voter has neither a license nor a Social Security number, then states are supposed to assign a separate, unique identifier.

Critics say such computer matching presents a higher standard for minorities than most prospective voters, especially in the case of Hispanics, Haitians and others who commonly use hyphenated surnames. For example, no match occurs if names are transposed or dropped when entered into the system. A mar­ried woman who changes her name runs the same risk if she registers to vote under one name but keeps her driver’s license under another.

Matching also can fail when voters or clerks transpose digits in driver’s license numbers when entering them into the system. And when matches were tested based on the last four digits of Social Security numbers, the odds of a favorable outcome for the voter were just slightly better than 50-50.

No one disputes that the clean, centralized state voter lists envisioned by HAVA would go far toward maintaining confidence in the system. Nor does anyone want to turn away legitimate voters. So the system allows voters stricken from the rolls to present evidence of eligibility.

But some states have taken the requirement one step further by using the database matching to reject voters at the time of registration. As a result, thousands who might otherwise qualify to vote would lack proof that they even attempted to register.

“Often a policy like this can kick people off the rolls or keep them from getting on—without the state knowing,” says Justin Levitt, a lawyer with the Brennan Center for Justice at New York University.

When Los Angeles County tried to purge its rolls by comparing its voter records with the other databases, that’s exactly what happened.

“It was beyond weird,” says Conny McCormack, who retired Dec. 31 after 12 years as registrar for Los An­geles County, the nation’s largest election jurisdiction. “It was ludicrous.”

California had updated its existing central registration list for the matching that state officials believed HAVA required. Beginning in January 2006, McCormack attempted to use it to qualify new registration applications. By April, the new system had rejected 44 percent of the 64,673 registration applications the county had received in that period. Historically, Los Angeles typically rejected less than 1 percent.

“The numbers were such that it would have affected election results,” says McCormack, who with her colleagues persuaded state officials to switch to another system. Election officials in Texas and New York also backed off. In Washington, state officials settled a lawsuit after a judge enjoined that state’s matching program.

But in Florida, Secretary of State Browning says his office will keep right on tying registrations to matches. “We believe we’re doing the right thing,” Browning says.

EXTRA INFLUENCE

In September, the matter landed in a Tallahassee federal court where plaintiffs claimed the state delayed or denied registration for more than 20,000 people in 2006. And with Flor­ida’s primary scheduled for Jan. 29, plaintiffs worry that the state will have an undeserved influence over the outcome of the November election.

“Because it’s earlier, it’s going to have a greater impact on who the nominee is,” says Levitt, lead lawyer for a coalition of civil rights groups suing the state. “The way Florida votes also may determine the way the election gets decided.”

Florida maintains that the HAVA requirement allows the state to screen applicants at registration. In support, the state cites a 2003 Justice Depart­ment opinion concluding that states must reject applications that contain information that can’t be verified.

Other states have since disre­garded the opinion by then-Civil Rights Division counsel Hans A. von Spakovsky. Citing the remaining litigation, department officials declined comment. Von Spakovsky was appointed in 2006 to the Fed­eral Election Commission, which enforces campaign finance laws.

From the tactical and legal points of view, the Florida database case also may demonstrate how well the 1965 Voting Rights Act works in a new context.

Congress passed the law in reaction to blatant racial discrimination, such as poll taxes and literacy tests commonly used in the South. Regarded as the most effective civil rights law ever enacted, the act in more recent decades has served as the chief vehicle for race-based challenges to redistricting.

The act would give minorities claiming disenfranchisement an ef­ficient tool to attack discrimina­tion in addition to broader constitu­tional-based claims that courts may hesitate to reach.

Though practitioners and aca­demics agree that the venerable statute remains effective after more than 40 years, few courts in the modern election cases have bothered with it. Indeed, the most attention the act has drawn recently came when Justice Department superiors signed off on a Georgia voter ID plan despite staff lawyers’ conclusion that it would violate the law.

John Tanner, Justice’s Voting Sec­tion chief, made the situation worse in October when he had to apologize for suggesting ID laws may pose more of a problem for elderly white voters. “Of course, that also ties into the ra­cial aspect because our society is such that minorities don’t become elderly the way white people do,” Tanner told the National Latino Congreso in Los Angeles. “They die first.”

Department officials declined to comment on the staff veto or make Tanner available for an interview.

Many of the recent cases that do use the Voting Rights Act limit them­selves to a race-neutral provision that forbids authorities from denying the right to vote due to typographical errors and other clerical mistakes that have nothing to do with whether the applicant is qualified.

The Florida complaint differs from much of the pack because it contains a Voting Rights Act count directly addressing illegal discrim­ination with an allegation that database matching amounts to a prohibited practice that denies the right to vote on account of race.

Daniel P. Tokaji likes to see that. But traditional court tests for Voting Rights Act violations can become convoluted. So the Ohio State Uni­versity law professor urges courts to develop a more straightforward standard to evaluate minorities’ claims that problems with mechanical aspects of the process cause their disenfranchisement.

“That’s the type of stuff the Voting Rights Act is supposed to address,” Tokaji says.

To give plaintiffs a case they can prove and states a chance to defend their policies, Tokaji proposes a test similar to the disparate-impact analysis used for decades in Title VII employment discrimination cases. A plaintiff first would have to make a prima facie showing that the challenged practice unfairly denies minority votes in relation to other historical and social conditions that also contribute to discrimination.

The burden then would shift to the defendants, who must justify the practice as necessary—for example, to prevent fraud. Tokaji still hasn’t decided, though, how high a standard a defendant should clear, but he hints that it should be formidable.

“That’s the million-dollar question,” he says. “I would demand a pretty tight fit.”

Whether it’s in Florida, Ohio or elsewhere, election litigation also doesn’t come cheap. Money damages aren’t an issue because plaintiffs typically ask for declaratory judgments of their rights and injunctions to force state action. But the lawyer bills alone can be enough.

STATE OF COMPLEXITY

In Ohio, Secretary of State Brunner finds herself in the delicate po­sition of having to defend practices and policies she wants to abolish. She hopes much of the litigation against the Buckeye State will become moot as she sets about keeping a campaign promise to restore faith in Ohio’s system by fixing the shortcomings revealed under her Repub­lican predecessor, Kenneth Blackwell.

For example, a 2005 kitchen-sink complaint filed by the League of Women Voters accuses Blackwell and other state officials of running a system that uses “non­uniform standards, processes and rules, and that employ[s] untrained or improperly trained personnel, and has wholly inadequate systems, procedures and funding necessary to ensure the meaningful and equal exercise of the right to vote.” Is this kind of litigation worth it? For Brunner, getting the lawyer bills under control should help in regaining Ohioans’ trust. Her office was unable to provide an estimate on how much opposing lawyer fees have cost Ohio taxpayers, but she says the league case alone has topped the $5 million mark.

“This one is really out of control in terms of attorneys’ fees,” she says. “It attempts to address 30 years’ worth of problems. They also drafted various forms for my office to use. I have people who can do that. I don’t have to pay New York attorneys to do it.”

Although the attorney general defends the cases in court, Brunner has hired an outside lawyer to manage the mess and ride herd on the fees. Otherwise, the handful of lawyers in Brunner’s office would do nothing but deal with litigation and neglect their other duties. Their jobs include advising local elections officials in Ohio’s 88 counties so they don’t get themselves into scrapes that generate still more lawsuits and, ultimately, more legal fees.

Broken equipment also costs taxpayers. Florida state officials believed their vote-counting problems would disappear forever after 2000 if they went to touch-screen systems. In Sarasota, Elections Supervisor Dent fell in love with touch screens and persuad­ed county commissioners to spend $4.7 million to put them in each of the county’s 157 precincts.

After the 18,000 Sarasota con­gressional votes went missing in 2006, the state reversed itself and went for paper ballots and scanners. This time it cost Sarasota taxpayers another $3.5 million.

But the home-rule county had a head start on the rest of the state because voters there already had rejected the touch-screen system at the polls and forced officials to replace them with pencils and paper. That meant Sarasota got to try its new machines in a county election Nov. 6.

Just 31 percent of the county’s 238,000 registered voters turned out for the balloting, but Dent reports only three scanners broke down and had to be replaced. That earned her praise even from some of her harshest critics.

“This almost feels like democracy,” says Kindra Muntz, president of the Sarasota Alliance for Free Elections, a watchdog group also involved in litigation and lobbying.

Now, with the polls closed, Muntz turns the same way as other activists: to the courts. Though Florida is one of the few states that attempt to verify results through post-election audits, Muntz wants more. She’s asking the Florida Supreme Court to allow Sarasota voters to impose tougher standards. A lower court struck the measure off the ballot less than a week before the election.

“We’re halfway there,” Muntz says.