Resolving election error: the dynamic assessment of materiality.

• Author: Levitt, Justin
• Position: Introduction to III. The Materiality Principle B. The Meaning of Materiality in the Election Context, p. 83-118

ABSTRACT

The ghosts of the 2000 presidential election will return in 2012. Photo-finish and error-laden elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election's winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an election error should turn on its materiality: whether the error is material to the eligibility of a voter or the determination of her ballot preference.

In developing this argument, this Article offers the first trans-substantive review of materiality as a governing principle. It then introduces the insight that, unlike the evaluation of materiality in other contexts, the materiality of a voting error may be reassessed over time. This dynamic assessment of materiality best accommodates the purposes of a decision rule for election error. Indeed, the insight is most powerful when the stakes are highest: when an election hangs in the balance. Finally, this Article discusses the pragmatic application of the materiality principle, including the invigoration of an underappreciated federal statute poised to change the way that disputed elections are resolved, in 2012 and beyond.

RESOLVING ELECTION ERROR

TABLE OF CONTENTS INTRODUCTION I. ERRORS IN RECENT ELECTIONS II. THE NEED FOR A PRINCIPLE TO RESOLVE ERRORS A. The Democratic Function of an Election B. Decision Rules for Error III. THE MATERIALITY PRINCIPLE A. Materiality in Other Contexts B. The Meaning of Materiality in the Election Context 1. Materiality of the Underlying Regulatory Provision 2. Materiality of the Error Itself 3. The Dynamic Reassessment of Materiality C. Implications of the Materiality Principle 1. Accommodating a Dynamic Assessment of Materiality 2. Counting Votes Pursuant to the Materiality Principle 3. The Value of the Materiality Principle 4. Potential Concerns a. Opportunistic Behavior b. Cost c. Bias d. Due Process e. Bush v. Gore f. Perceived Politicization IV. SOURCES OF LAW FOR THE MATERIALITY PRINCIPLE A. The Federal Constitution B. The Civil Rights Act of 1964 C. State Law CONCLUSION INTRODUCTION

Twelve years ago, the U.S. Supreme Court's decision in Bush v. Gore (1) shocked a nation and catalyzed an academic field. In many ways, the controversy of 2000 marked the rebirth of the study of election law. But with all of the ink spilled on the law of democracy in the last decade, the difficulty at the heart of this catalytic event has been sorely neglected.

Humans are imperfect. This is no less true in our ability to execute election instructions than in any other arena. In Florida in 2000, citizens made mistakes, inter alia, in registering to vote, completing and mailing absentee ballots and requests for those ballots, and most notoriously, indicating their preferred choices on ballots. (2) Citizens made similar mistakes elsewhere around the country, in 2000 and long before. The only meaningful difference is that in Florida the mistakes happened to be outcome determinative, and spectacularly so.

These mistakes and opportunities for others have not vanished, and with surprising frequency, they continue to represent the difference between those who prevail in an election and those who do not. (3) The fundamental problem of what to do with these mistakes remains curiously unresolved. Particularly when minor errors--by voters and by election officials--exceed the margin of victory, courts are placed in the unenviable position of deciding which, if any, of these errors to discount or excuse, with the knowledge that their judgment will likely determine the election's winner.

Courts have had little help in this endeavor thus far. Though scholars have noted that the aggregation of election errors will likely cause another national meltdown, (4) the most prominent analytical frameworks in the field, and particularly the prevailing frame of rights-based constitutional adjudication, provide little useful guidance for decision makers charged with averting crisis wrought by the aggregation of individual mistakes. (5) Authors have examined methods for determining the extent of election-related error, (6) the design of institutions to review claims of error, (7) and remedial options to salvage an election when all hope for directly confronting the error is lost. (8) But very little scholarship offers a consistent principle or set of principles for addressing the appropriate legal impact of an error in the first instance. (9)

Absent such principles, some decision makers have attempted to intuit whether errors are "large" or "small" in order to determine whether the associated ballots should be counted. (10) Others have turned to an assessment of responsibility or fault: voters are relieved from errors made by others but held to their own mistakes or deficiencies. (11) Neither approach has faced significant scholarly scrutiny; on further examination, both prove to be substantially flawed. (12) In this Article, I suggest a principle better suited to the purposes of the voting process.

The principle I propose is materiality: particularly, the materiality of an error to an assessment of the affected individual's eligibility or ballot preference. Materiality plays a critical role in contract, in tortious and criminal fraud, in the law of securities, and in many other legal contexts, separating predicates of legal consequence from those that the law ignores. (13) Yet I am aware of no methodical trans-substantive examination of this notoriously flexible idea. This Article offers such an examination, setting forth a taxonomy of materiality designed to assist in the identification of the election errors that should preclude the counting of a ballot.

Moreover, this Article unearths a feature of the concept that proves pivotal in the election context: the materiality of a voting error may change. This, too, is a notion mostly overlooked. Little work in the field of voting rights has addressed the impact of the ability to assess and reassess determinative rulings at different points in time within the election cycle. (14) Today, errors in the election process are generally evaluated at the time they are committed, and the voter is saddled by that evaluation despite the fact that the error may later become wholly unimportant. (15) The recognition that materiality may change over time highlights the inadequacy of the existing approach to the assessment of error in the election context.

Furthermore, the insight into the dynamic nature of materiality is most powerful when the stakes are highest. When errors leave the result of an election in question, there often appears to be a conflict between two fundamental precepts: the rule of law and majority rule. A proper appreciation for the changing materiality of an election-related error can help to resolve this perceived, but ultimately artificial, conflict. (16)

Finally, I explain how the materiality principle may be implemented in practice. The most tangible manifestation of the principle currently exists in a surprisingly underappreciated provision of the landmark Civil Rights Act of 1964, which prohibits disenfranchisement on the basis of some errors or omissions that are not material to a voter's qualifications. (17) Few courts or commentators have recognized the power of this provision, and none have done so with an appreciation of the dynamic quality of materiality; indeed, proper application of the statute might well have yielded different results in several recent elections, (18) Yet even the Civil Rights Act does not apply the materiality principle as thoroughly as would be beneficial. I therefore suggest that states explicitly incorporate the principle into their own election codes.

The Article proceeds as follows. Part I demonstrates the recurring nature of the problem with a brief review of notable and often outcome-determinative errors that have materialized in recent elections. Part II explores some of the potential decision rules for confronting these errors. Part III offers the materiality principle that I propose as superior. Of particular note, I introduce for the first time the insight that in the voting context, an assessment of materiality may change over time. Recognizing the dynamic nature of materiality, moreover, better serves the rationales supporting the election process than any of the available alternatives for confronting error. Finally, Part IV describes how the materiality principle may be implemented in practice, including the first sustained scholarly review of the Civil Rights Act's materiality provision, a ready vehicle for applying the concept in many circumstances.

1. ERRORS IN RECENT ELECTIONS

   The prospect that the balance of an election might turn on the resolution of errors did not die with Bush v. Gore. In 2010, the election for a U.S. Senate seat in Alaska was cast into controversy when incumbent Senator Lisa Murkowski lost the Republican Party primary and announced her intention to run as a write-in candidate. (19) In many states, write-in candidates distribute stickers that their supporters can affix to a ballot to avoid any potential ambiguity in their choice. (20) But a few years prior, the Alaska legislature outlawed such stickers after determining that they would foul the state's new optical scan readers. (21) Suddenly, in a race polling well within a comfortable margin of error on the eve of the election, (22) there was a substantial likelihood that the election result might turn on the spelling and/or penmanship of Murkowski's supporters. Sure enough, voters actually cast a healthy number of ballots...