Reexamining Crawford: Poll Worker Error as a Burden on Voters

• Publication year: 2021

REEXAMINING CRAWFORD: POLL WORKER ERROR AS A BURDEN ON VOTERS

Lauren Watts(fn*)

We've made more election reform in the last six years in this country than we had in the 230 years before it.

-Paul S. DeGregorio, former chairman of the EAC(fn1)

INTRODUCTION

Elections are large undertakings for those who administer them for three primary reasons. First, the sheer volume of individuals voting on a single day presents logistical challenges. Most Americans vote on the first Tuesday in November at a polling place close to the home where the voter is registered.(fn2) In the 2008 presidential election, nearly 134 million people voted, and over 80 million of those voters cast their ballots on November 4 in a physical polling location.(fn3)

Second, a complicated network of state and federal law governs election administration. For example, the Federal Constitution protects the right to vote, and states may not overly restrict that right without good reason.(fn4) The U.S. Congress has enacted several laws, such as the Voting Rights Act of 1965(fn5) and the Help America Vote Act of 2002,(fn6) which govern this right. State and local laws also play a significant part in election administration by detailing how each voter votes. For example, those laws dictate the form of the ballot(fn7) and whether the voter votes on an electronic voting machine.(fn8) Federal, state, and local laws also govern the people who administer in-person voting. For example, election administrators may not apply election law in a way that violates a voter's constitutional right to vote,(fn9) and state and local election codes provide detailed guidance to day-of-election staff and volunteers.(fn10) Also, in the last decade, many states have enacted voter photo identification laws as part of their election codes.(fn11) These laws, often called "voter ID laws," require voters to show a specific form of photo identification prior to voting.(fn12)

Third, most of the people who administer elections are not professional staff. Rather, they are poll workers: individuals recruited by states and localities for the particular purpose of helping people vote on Election Day.(fn13) Indeed, states do not have professional election staff sufficient to assist the many thousands of people that vote on Election Day, so they have no choice but to rely on poll workers for assistance.(fn14) On Election Day, poll workers are generally responsible for setting up and breaking down the polling location, verifying the identity of each voter, helping voters by providing a ballot or directing them towards the voting machine, and generally keeping the polling location running smoothly.(fn15)

Poll workers' Election Day responsibilities also include screening voters by checking poll lists and, when required, checking a voter's photo ID.(fn16) This is one of a poll worker's most important tasks on Election Day because poll workers may turn away a voter, or request that the voter cast a provisional ballot, if the poll worker is unable to locate the individual's name or confirm his or her identification.(fn17)

But even in important tasks such as this, poll workers are far from perfect in their administration of elections. Recent litigation highlights how complicated state voting laws increase errors in election administration. In Hunter v. Hamilton County Board of Elections(fn18) and Northeast Ohio Coalition for Homeless (NEOCH) v. Husted(fn19) the Sixth Circuit Court of Appeals documented extensive poll worker error in Ohio elections. In both cases, separate Sixth Circuit panels held that poll worker error substantially burdened Ohio citizens' right to vote.(fn20) In NEOCH v. Husted the Sixth Circuit attributed poll worker error to a complicated election administration scheme.(fn21) To remedy the repeated occurrence of poll worker error in executing this particular law, the panel invalidated the election administration laws on constitutional grounds.(fn22)

This Comment explores whether and how poll worker error burdens the right to vote. It asserts that poll worker error does burden the right to vote and argues that courts should consider this burden when evaluating the constitutionality of voter ID laws. In Part I this Comment explores the sources of election law in the United States. In particular, it discusses voter ID laws and the Supreme Court's test for upholding such laws in the face of a constitutional challenge. Part II acquaints the reader with the American poll worker and discusses the importance of poll workers for election administration. Here, this Comment describes the recruitment, training, roles, and demographics of poll workers. It also describes how American elections depend on poll worker participation. Part III introduces the reader to an important problem in election law administration. Specifically, it discusses how voter identification laws- such as Indiana's law-create an election environment that is ripe for poll worker error. This Part also describes recent litigation regarding poll worker error. In Part IV this Comment proposes a solution to this problem. Namely, this Comment argues that, when considering the constitutionality of difficult-to-administer laws such as voter ID laws, courts should factor in the likelihood of poll worker error as a burden on voters. Doing so would give courts a more robust picture of how these laws actually impact voters and would enrich and contextualize the court's constitutional analysis.

I. THE LEGAL FOUNDATIONS OF ELECTION LAW IN AMERICA

Election law in the United States has its roots in federal constitutional law, federal statutory law, state constitutional law, state statutory law, and local ordinances and rules. Election law is distinctive among major legal doctrines in that it is both intensely local and controlled by federal law and constitutional principles.(fn23) This can present a series of problems for those responsible for administering elections because they must abide by several layers of laws.

A. Federal Constitutional Law and Delegation to the States

Article I, Section 4 of the U.S. Constitution gives initial responsibility for the mechanics of federal elections to the States by directing that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the legislatures thereof . . . ."(fn24) Article I, Section 4, however, also assigns Congress the power to preempt state election law,(fn25) noting that "the Congress may at any time by Law make or alter such Regulations . . . ."(fn26) This distinctive brand of federalism creates an election law system that is decentralized,(fn27) but also influenced by overarching federal statutes. Furthermore, many of the federal statutes set general goals that require implementation by state and local laws and ordinances.(fn28)

In addition to Article I, Section 4, states' power to regulate federal elections is restricted by each citizen's right to vote. Though the right to vote is implicitly guaranteed by Article I, Section 2 and the Fourteenth Amendment,(fn29) this right is not immune from regulation by the states.(fn30) To this effect, the U.S. Supreme Court has noted that the right to vote in a particular manner is not an absolute right.(fn31) Indeed, the Constitution directs the states to regulate the conduct of elections, subject to congressional review.(fn32) The constitutional scheme governing election law envisions that states may pass laws that in some way implicate the right to vote. For this reason, the Supreme Court does not always apply strict scrutiny to laws that implicate the right to vote because, "if strict scrutiny were applied to each law that limited the exercise of that right, it would be impossible to write rules for the orderly administration of elections."(fn33) Instead, the Court recognizes that a lesser standard is appropriate when considering the constitutional validity of at least some election laws.(fn34)

To ensure that states attempting to regulate federal and local elections are not hamstrung by strict scrutiny review, the Supreme Court developed a sliding-scale review of state election laws.(fn35) This scale calibrates the standard of review to the law's burden on voters' First and Fourteenth Amendment Rights.(fn36) Accordingly,[a] court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."(fn37) The Court announced this test in Anderson v. Celebrezze(fn38) and further developed it in Burdick v. Takushi.(fn39) Thus, it is commonly referred to in election law as the Anderson/Burdick test.(fn40)

Under Anderson/Burdick, when a law's burden on voters' rights is severe, that law is only constitutional if it is narrowly tailored to advance a compelling state interest.(fn41) In contrast, when the imposition on voters' rights is reasonable and non-discriminatory, the law must only serve some identifiable state interest to pass constitutional muster.(fn42) For this reason, even reasonable, nondiscriminatory regulations presenting less-than-severe burdens on the right to...