Resolving election error: the dynamic assessment of materiality.

• Author: Levitt, Justin
• Position: III. The Materiality Principle C. Implications of the Materiality Principle through Conclusion, with footnotes, p. 118-158

3. Implications of the Materiality Principle

   Recognizing the dynamic nature of materiality, particularly for questions involving a voter's eligibility, would yield tangible consequences for the election system. In this Section, I first give more robust shape to the materiality principle by reviewing some of the practical adjustments necessary to give it life in the election context. I then explain the benefits and potential concerns of evaluating --and reevaluating over time--election errors through the lens of materiality.

   1. Accommodating a Dynamic Assessment of Materiality

      In practice, several aspects of the administrative process would change if election errors were evaluated under a dynamic materiality principle. In pre-election and Election Day administration, officials would favor procedures allowing them to reassess the materiality of an error as available information changes. Such procedures would preserve the flexibility of the decision process, avoiding the conversion of early assessments into premature "final answers."

      Provisional ballots, for example, are an existing expression of this principle that account fairly well for a limited set of errors. Consider a voter at the polls whom the volunteer pollworker cannot readily find in the precinct's register of voters, often known as a pollbook. Federal law provides that she should be offered a provisional ballot. (122) On election day, her provisional ballot is collected and segregated, and later evaluated to determine whether she was actually on the rolls when the ballot was cast.

      If at the moment a voter presents herself to vote her name cannot be found in the pollbook, all that is certain is that an error occurred. At that moment, the error is material to determining whether the voter is eligible, because a reasonable decision maker would find a substantial question about the voter's eligibility: she may not be a resident of the jurisdiction, she may never have attempted to register, or the registration may have been legitimately canceled. Yet her valid registration may later be found, improperly purged or entered with a typographical error making it difficult to find in the pollbook. Allowing the voter to vote a provisional ballot at the polls provides an opportunity to effectuate a valid vote if an error in the precinct book appears material at the time but is later found to be immaterial.

      The existing provisional ballot regime in most states, however, is insufficient to realize the potential of a dynamic assessment of materiality in other circumstances. At present, an error in the registration process is often frozen in place at the end of the registration period. If the error is uncorrected at the end of the registration period, the would-be voter's application is rejected, leaving her unregistered. This freeze has consequences down the road. If the voter ventures to the polls, she will not be listed in the pollbook; she may be given a provisional ballot, but state law rarely allows such ballots to be counted, no matter what evidence of eligibility the voter provides. Many states deem invalid a provisional ballot cast by a voter whose earlier attempt to register has been rejected. (123)

      A different approach to errors in the registration process would better permit a dynamic assessment of materiality, in which initial errors may be resolved later. Some states perform data entry on registration forms despite potential flaws and preserve those records for future revision, often in some sort of "provisional" or "pending" status. (124) This practice permits the reevaluation of a registrant's eligibility in the event that material flaws become immaterial at a later point.

      In such a system, errors can be corrected based on new information, whenever that information arrives. Consider our elector who substitutes the current date for her birthdate on a registration form. (125) Her proper birthdate may become clear before the election, on Election Day, or in some sort of postelection proceeding. Preserving the provisional status of the registration allows the earlier error to be recognized as inconsequential whenever it becomes immaterial in determining her eligibility.

      In this context, it is important to distinguish the voter's legal status under the materiality principle from administrative procedures designed to facilitate the smooth conduct of the election. Just as the obligation to accept corrective information when it is presented does not imply an obligation for officials to seek that information out, (126) so too the obligation to accept corrective information does not imply an obligation to immediately reflect that new status in every pre-election procedure.

      For example, voter registration is not only a means to test eligibility but also a means to facilitate planning for Election Day. Many states will use the rolls as they exist at the registration deadline to print pollbooks of voters whose eligibility is unquestioned. If a voter presents information rendering a registration error immaterial, but does so during a period that would interfere with the printing of the pollbooks, there is no need driven by the materiality principle to reflect her updated status on the pollbooks themselves. The important thing is that the change in the materiality of her registration error makes it possible for her to cast a ballot, albeit a provisional ballot, that is legally valid and will be recognized as such by the end of the election cycle.

      The absentee ballot system presents another opportunity for application of the dynamic nature of materiality. Preserving absentee ballot materials for a limited period after Election Day would allow jurisdictions to recognize changes in the materiality of errors over time. If a jurisdiction preserves even ballot envelopes with flaws that cast doubt on the voter's qualifications, and information rendering the flaws immaterial comes to light in a postelection process, the absentee ballots within could be counted.

      Absentee ballot applications present a more difficult problem. While federal law requires that provisional ballots be provided to every voter who arrives at the polls and claims to be eligible and registered, (127) absentee ballots are not usually delivered in response to flawed applications. That is, in most circumstances, a flawed application will end the absentee process, with no opportunity to reflect the elector's substantive preferences if the error is later overcome. (128) It should be possible, however, for jurisdictions to avoid prematurely closing off the absentee process at the application stage, if they wish to avoid disqualifying voters on the basis of flaws that might later become immaterial. In the event of an absentee ballot application with a flaw sufficient to call the voter's qualifications into question, the equivalent of a provisional absentee ballot might still be sent to the applicant to preserve that potential voter's preference. The return envelopes of such absentee ballots could be clearly labeled and segregated when they arrive. They would remain segregated until the original flaw is resolved or explained (and the ballot is rendered valid), or the vote becomes final (with the ballot still invalid), whichever comes first. Such a procedure would preserve the ability to resolve uncertainties about eligibility until the last possible decision point in the election.

   2. Counting Votes Pursuant to the Materiality Principle

      The changes above would preserve administrative flexibility to evaluate and reevaluate the materiality of errors throughout the election cycle. When errors are revealed to be immaterial, I argue that the corresponding ballots should be counted.

      Using the materiality of errors as a standard for counting ballots --even without a dynamic reassessment of that materiality--would have significant consequences. For example, in the event of an error on the ballot's face, many jurisdictions now usually determine whether that error is "technical" or "substantial." (129) Materiality regularizes the inquiry. If the error renders the voter's choice ambiguous, the error would be material and the ballot invalid; if it does not, the error would be immaterial and the ballot countable. Similarly, an error on a prerequisite form, such as a registration form, need not jeopardize the vote's validity if that error is not material in determining the voter's eligibility to vote for the election in question. The same would follow for a prerequisite procedure, like the casting of a provisional ballot in the proper precinct. In each case, by definition, the only votes to be counted are those for which no reasonable decision maker would have a substantial question about either the voter's eligibility or the voter's ballot preference.

      Allowing for the dynamic reassessment of an error's materiality would have greater consequences still. In assessing the validity of a provisional ballot, officials now normally compare the material accompanying the provisional ballot to registration records. (130) They discern whether the voter in question was validly registered; if there is a flaw in the registration, the officials may have to assess the magnitude of the flaw or the party at fault for the flaw. (131) Processing an absentee ballot adds the extra step of assessing whether the voter in question submitted a valid application, and is properly identified as the applicant, by the relevant deadline; there too, in the event of a flaw in the absentee procedures, officials may have to assess the magnitude of the flaw or the party at fault for the flaw.132 A dynamic conception of materiality would, without adding to the quantum of investigation, shift the focus of the relevant inquiries: in the event of a flaw, officials would assess whether the other information newly available renders that flaw immaterial. If a reasonable decision maker would no longer question the voter's eligibility or ballot preference...