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Please read these concerns expressed by a friend of mine, who is an attorney here in Wisconsin. October 16, 2004 As the election approaches with what feels like accelerating speed, I've been thinking for a while about a couple of things that pose, I think, significant risks of causing Wisconsin to find itself among what I believe will be several states that become the Floridas of 2004. I've also been thinking about what we, as voters and Kerry/Edwards supporters, can do to minimize the risk that our activities might contribute to Florida-izing us. For whatever they're worth, here are my thoughts. (I also want to make unequivocally clear: these are strictly my personal views. I'm not speaking, writing, etc., on behalf of anyone else, officially or unofficially, dead or alive, etc., etc.) Here are my two areas of concern: (1) absentee voting, and (2) a potential problem with the federal Help America Vote Act , which in some instances might supersede Wisconsin law that deals with voters who cast ballots after the poll-closing time -- 8:00 p.m. -- specified by state statute.
ABSENTEE BALLOTING
Section 6.87 of the Wisconsin Statutes specifies the procedures for casting absentee ballots. The legislature, in an unusual step, includes in the statutory subchapter on absentee balloting a statement of legislative policy (sec. 6.84(1)): "The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses." (The term "elector" in the context of absentee balloting refers to voters, not to the electors of the Electoral College.)
Given the stakes in this election and the large number of absentee ballots many people believe will be cast in Wisconsin this time around (I've seen or heard estimates as high as 25%), I think it's safe to predict that any victory in which the vote differential between the leading candidates is less than the number of absentee ballots cast will almost certainly generate hard-fought challenges to those ballots. Those challenges will try to identify any flaw that offers a possibility of disqualifying the ballot.
Absentee voting by mail poses, I think, some significant risks beyond the fraud problem that concerns the legislature. First, the ballot might get lost, delayed, or irreparably damaged in the mail. Second, if a voter accidentally overvotes on the ballot, the error won't be discovered until after the polls close, thus resulting in an invalidated ballot; with ballots cast at a polling place that uses a scanner (as in the city of Madison), the scanner will kick out an overvoted ballot and the voter will have a chance to cast a correctly marked ballot. Third, if there's a flaw in the execution of the certificate for the mailed ballot, the voter might not be able to correct the defect in time.
Section 6.87(9) of the Wisconsin Statutes provides: "If a municipal clerk receives an absentee ballot with an improperly completed certificate or with no certificate, the clerk may return the ballot to the elector, inside the sealed envelope when an envelope is received, together with a new envelope if necessary, whenever time permits the elector to correct the defect and return the ballot within the period prescribed in sub. (6)." Section 6.87(6) -- the "sub. (6)" in the previously quoted language -- provides: "The ballot shall be returned so it is received by the municipal clerk in time for delivery to the polls before the closing hour. Any ballot not mailed or delivered as provided in this subsection may not be counted."
So, if there's something wrong with the certificate for a mailed ballot, the clerk "may" -- not must -- return the ballot to allow the voter to correct the defect. Because of section 6.87(6), the voter who waits until the last minute to mail a ballot will almost certainly not have an opportunity to correct the defect, even assuming the clerk would exercise discretion in favor of returning the ballot. (Given the budget crunches that many municipalities face, as well as the volume of absentee ballots the clerks will likely receive in some municipalities, I would not be surprised to find out after the election that some clerks, because of budget and time crunches, elected not return defective absentee ballots to voters, even when there might have been time for the voters to correct the defects.)
Here's my suggestion: if you plan to vote by absentee ballot, I *strongly* urge you to exert the extra effort to do so in person at your municipal clerk's office. This won't solve the "accidental overvote" problem, but you'll know that the clerk got the ballot. In addition, because the clerk (or an employee of the clerk's office) will be there to provide instructions about filling out the ballot and envelope and will act as the statutorily required witness for the certificate on the envelope, you'll all but eliminate any risk that there will be a defect in the procedure by which you cast your absentee ballot and, therefore, all but eliminate any risk that a challenge to your ballot will succeed. If you have already received an absentee ballot by mail but have not yet returned it, I believe you can still take that ballot and submit it in person at your municipal clerk's office; check with your clerk to verify this procedure. If you decide to mail the ballot, I suggest using a tracking service (either certified mail with return receipt, or priority mail with delivery confirmation) so you'll have some verification that the ballot actually arrived at the clerk's office.
HELP AMERICA VOTE ACT (HAVA)
This will be the first Presidential election conducted under some of the provisions of HAVA. One section of HAVA causes me particular unease, and it relates to votes cast after the official closing time passes.
Sections 6.78(1) and 6.78(2) of the Wisconsin Statutes specify that polls close at 8:00 p.m. Section 6.78(4), however, declares that "ny elector waiting to vote, whether within the polling booth or in the line outside the booth at the time the polls officially close, shall be permitted to vote." So, if you're standing in line at 8:00 p.m. when the poll closes, you still get to vote.
Section 302(c) of HAVA, P.L. 107-252, provides:
(c) VOTERS WHO VOTE AFTER THE POLLS CLOSE. - Any individual who votes in an election for Federal office as a result of a Federal or State court order or any other order extending the time established for closing the polls by a State law in effect 10 days before the date of that election may only vote in that election by casting a provisional ballot under subsection (a). Any such ballot cast under the preceding sentence shall be separated and held apart from other provisional ballots cast by those not affected by the order.
Here's the potential problem as I see it. Suppose, because of a huge turnout, many people are standing in line at 8:00 p.m. Suppose also that, for some reason, circumstances result in a court order extending polling hours past the 8:00 p.m. closing time so even people who weren't standing in line at 8:00 p.m. could still vote. Because of the supremacy clause of the U.S. Constitution, there's a reasonable argument that HAVA supersedes the Wisconsin statute regarding voting after the statutorily established closing time.
Under the Wisconsin statute, anyone who's in line at 8:00 p.m. but doesn't get to actually vote until after 8:00 p.m. still casts a ballot no different from the one cast by those who actually voted before 8:00 p.m. But if HAVA trumps the Wisconsin statute when there's a court order extending voting hours, voters who cast their ballots during the extended voting period (i.e., any time after 8:00 p.m.), even if they got in line before the statutory closing time, might find themselves required to cast what HAVA calls a "provisional ballot" -- essentially, a ballot that might or might not get counted, depending on the outcome of any challenge to the court order.
In effect, Wisconsin determines your right to cast a regular (i.e., non-provisional) ballot on the basis of the time you got in line to vote. HAVA, however, appears to determine your right to cast a regular ballot on the basis of the time you actually submit your ballot, regardless of when you got in line. So, through no fault of your own, HAVA (if it trumps a Wisconsin voter's rights under the Wisconsin poll-closing statute) could end up converting your Wisconsin right to cast a regular ballot into a federal HAVA obligation to cast a provisional ballot that might not be counted.
Alternatively, in this scenario, HAVA might be interpreted to allow the municipal clerk to separate those voters who were in compliance with a state's statute governing closing times (i.e., in Wisconsin, those who were in line by 8:00 p.m.) from those voters who would get to cast ballots only because of the court order extending the polling hours (i.e., those not in line by 8:00 p.m.) and allow those in compliance to cast regular ballots while all others would have to cast provisional ballots. This approach would, I think, be the better one because it reconciles the statutes with the least amount of damage to either one. But because HAVA's a new and untested statute, there's no way to know in advance which approach the courts will take, or whether they might interpret HAVA in some entirely different way.
Here's my (probably obvious) suggestion for avoiding this potential problem: if you plan to vote at a polling place (and especially if you vote at a location where there's likely to be heavy turnout), VOTE EARLY, and certainly well in advance of the 8:00 p.m. closing time. Until you vote, check periodically during the day for any news about court orders that might affect your polling place. Efforts to extend voting hours by court order are generally remedies of last resort, so an order of this sort might not be issued until late on Election Day, even at the last minute.
If you think this advice makes sense, please pass these suggestions along to other Kerry/Edwards voters. As I wrote at the beginning of this message, these are strictly my opinions. They're offered gratis, and they might only be worth what you paid for them.
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