Possible HAVA Violation in Georgia's Provisional Balloting

elections, news, chilling effects, problems, policy, legal

Yesterday, I read Ron Rivest's write-up of his elections observation experience in Georgia this past November ("Trip Report: Election Day 2006: Visit to Atlanta Georgia on 11/7/2006 for election observing" (PDF)).

I was dismayed, as Ron was (page 3), to hear that voters who were not on the rolls were not offered provisional ballots. Under HAVA, all voters who believe they are entitled to cast a vote should at least be permitted to cast a provisional ballot (of course, it's a different question as to whether those ballots would subsequently count).

Georgia's procedures seem to be illegal under HAVA and constitute a HAVA violation. That is, HAVA says in the section that established provisional voting (302 or 42 USC 15482):

(a) PROVISIONAL VOTING REQUIREMENTS.-If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot [...]

There is one exception in this part of the statute that says certain states don't have to have provisional balloting.:

States described in section 4(b) of the National Voter Registration Act of 1993 (42 U.S.C. 1973gg-2(b)) may meet the requirements of this subsection using voter registration procedures established under applicable State law.

However, that part of the NVRA exempts states that have (1) no registration requirements or (2) same-day registration. Georgia definitely has voter registration and doesn't, as far as I can tell, have same-day voter registration (or these voters could have registered and just voted).

David Becker, former senior Trial Attorney in the Voting Section of the US DOJ, remarks on the election-law list that even the DOJ recognizes this is a HAVA violation:

Most will recall that early last year the DOJ sent Arizona a letter telling them it was OK, under HAVA and other laws, to deny a voter without ID compliant with Prop. 200 a provisional ballot. This position at the time was very controversial, appearing to contradict the express language of HAVA, and many commentators, including some on this list, expressed surprise at the DOJ's position. Less than six months later, the DOJ issued a "clarification" that completely rejected their earlier position, and made clear that Arizona MUST offer provisional ballots to any voter who claims they are entitled to vote, but who otherwise is not entitled to a regular ballot. Thus, even the DOJ at this point recognizes HAVA's requirement that provisional ballots be offered to any voter who claims to be eligible.

Dan Tokaji had a great post about this back in September of 2005 (" DOJ "Clarifies" Position on ID & Provisionals"):

Today's letter makes clear that the DOJ's April 15 opinion letter was incorrect, and that voters are entitled to receive and to cast a provisional ballot, even if they lack ID. The new letter states that "HAVA requires State to allow voters who meet certain specified conditions the opportunity to cast a provisional ballot." Specifically, voters who execute a written affirmation that they are registered and eligible to vote are entitled to cast a provisional ballot.

Post-Election Manual Auditing of Paper Records Bibliography

elections, reform, research, policy

In order to make sense of all the post-election auditing proposals currently out there, I've created a bibliography of all the post-election audit work that I know of. Please let me know if I've left anything out; my intention is to include everything out there. (I will update my bibliography and this post as changes are made.)

(The current version of this document in PDF form is available here: http://josephhall.org/papers/auditing_biblio.pdf.)

Post-Election Manual Auditing of Paper Records Bibliography (ordered by date)

Joseph Lorenzo Hall (joehall@berkeley.edu), PhD Student, UC Berkeley School of Information. This material is based upon work supported by the National Science Foundation under Grant No. CNS-0524745 (NSF ACCURATE; http://www.accurate-voting.org/).
version 2.4, 2007-03-07T08:18:41

Diebold whistleblower pleads guilty and pays $10K

elections, vendors, copyright, news, secrecy, chilling effects, litigation, legal

Truly sad. I wish he had had the right criminal defense to wash his hands of this. Whistleblowing has to be done right. Jones Day is a bunch of really scummy lawyers.

E-voting `hero' pleads guilty to computer crime in Diebold case

By Ian Hoffman, STAFF WRITER

A Van Nuys actor who became a hero to electronic-voting critics and digital-rights activists pleaded guilty this week to a felony computer crime, paid $10,000 restitution to lawyers for Diebold Election Systems and tried going back to his quiet life. [...]

Cindy Cohn, legal director for the Electronic Frontier Foundation, said the outcome of the case was "a miscarriage of justice."

"I think it's vindictive. It's unfortunate that the lawyers of Jones Day think they can push people around like this and marshal the forces of the legal system to do so," Cohn said. "They should be giving this guy a medal. The secretary of state should be writing him a letter thanking him very much, for helping the people of California and showing a light on what Diebold was really about. Instead what we saw was the prosecutors being really an arm of Jones Day." [...]

One memo warned that Diebold could be prosecuted for illegally handling votes on Election Day. In one draft letter, Jones Day attorneys suggested that California elections officials did not have jurisdiction to test a voting system component that ended up failing in presidential elections. In another document, Jones Day advised Diebold of the need for sweeping civil and criminal defenses, billed at up to $450,000 a month.

Dowd on Pelosi


This may knock me down a few notches in some of your eyes, but I've always liked Marueen Dowd. Her most recent column about Nancy Pelosi is a home-run. This whole week I've been consistently unimpressed with the unleadership skill, strained logic and superficiality of Nancy Pelosi. Dowd describes much of what I have been feeling ("Squeaker of the House" TimesSelect subscription required):

Nancy Pelosi?s first move, after the Democratic triumph, was to throw like a girl. Women get criticized in the office for acting on relationships and past slights rather than strategy, so Madame Speaker wasted no time making her first move based on relationships and past slights rather than strategy.

I fear that Democrats will spend too much time gloating, basking and infighting and not enough time seriously planning for needed changes in public and foreign policy. Here's to hoping there are some motivated good brains in Washington... that aren't staffers.

Offensive Use of Tasers on UCLA Student


An Iranian-American UCLA Student, Mostafa Tabatabainejad, was tased after being unable to produce ID and reacting (irrationally) to being touched by cops at UCLA's Powell Library. Declan has a great summary at politech ("Refuse to show ID, get Tasered by angry cops with an attitude"), but do watch the video.

If you feel strongly about this, especially if you're a UC student, please consider writing acting chancellor Norman Abrams a letter at chancellor@conet.ucla.edu .

Here's the letter I wrote:


I would like to express my dismay at learning that UC police recently used serious force, multiple times, to remove a student from a UCLA library.

From the video that was taken and posted, it is clear that this student was shocked with a stun-gun at least three times because he refused or was unable to stand, not because he was threatening anyone. At the beginning of this affair, it seemed reasonably clear that the student was emotionally affected by how he was being treated and that unnecessary force was used by UC police, multiple times, to remove him. Considering that electric shock tends to hinder mobility, it is completely unreasonable to require someone to stand or perform some other physical action lest they be shocked again.

Further, with the seriousness and intensity of academic work that we students engage in, it is not inconceivable to end up in a Library, working hard on a tight deadline, and to have forgotten one's ID.

Frankly, I am surprised that the officers' conduct during this event did not spark a riot and further injure other students and the officers themselves. That is unsafety. Unfortunately, I think that the way in which this event was handled only increase the insecurity of UCLA students and the possibility that further incidents will not be resolved in a peaceful manner.

Finally, tazing or administering a stun-gun should be used not to motivate an individual to do something, but instead to protect an officer from imminent harm. The tazer or stun-gun should be a non-lethal defensive alternative to the use of an officer's firearm, not an offensive "cattle prod".

I am not proud to be a UC graduate on this day, and I hope that these personnel are reprimanded and that all UC police are required to undergo training in the defensive use of their weapons. If someone needs to be forcibly removed from an area, there are a myriad of persuasive holds that these officers are trained to use. I also think a draconian "kick them out if they don't show their papers" atmosphere is not an environment that promotes safety and scholarly inquiry.

Sincerely, Joseph Lorenzo Hall

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