Reexamining Crawford: Poll Worker Error as a Burden on Voters
Lauren Watts · Washington law review · 2014
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 EAC1INTRODUCTIONElections 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 is registered.2 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.3Second, 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.4 The U.S. Congress has enacted several such as the Voting Rights Act of 19655 and the Help America Vote Act of 2002,6 which govern this right. State and local laws also play a significant part in election administration by detailing how each votes. For example, those laws dictate the form of the ballot7 and whether the votes on an electronic voting machine.8 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,9 and state and local election codes provide detailed guidance to day-of-election staff and volunteers.10 Also, in the last decade, many states have enacted photo identification laws as part of their election codes.11 These often called voter ID laws, require voters to show a specific form of photo identification prior to voting. 12Third, 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.13 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.14 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.15Poll workers' Election Day responsibilities also include screening voters by checking poll lists and, when required, checking a voter's photo ID.16 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 cast a provisional ballot, if the poll worker is unable to locate the individual's name or confirm his or her identification.17But 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 Elections18 and Northeast Ohio Coalition for Homeless (NEOCH) v. Husted 19 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.20 In NEOCH v. Husted the Sixth Circuit attributed poll worker error to a complicated election administration scheme.21 To remedy the repeated occurrence of poll worker error in executing this particular law, the panel invalidated the election administration laws on constitutional grounds.22This 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 ID laws. …