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Election Law Manual
Chapter 6: Election Administration

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Table of Contents

Subchapter 1: Introduction

States administer elections for local and state ballot measure elections and local, state, and federal offices. State election administration requires regulations that inevitably burden rights.1 Nonetheless, important state regulatory interests justify reasonable and non-discriminatory restrictions.2

Courts have identified numerous state electoral interests supporting the regulation of elections including, for example:

  • combating fraud, 3
  • fostering an informed and educated electorate,4
  • preserving the overall integrity of the electoral process,5
  • avoiding overcrowded ballots,6
  • avoiding voter confusion,7 and
  • being able to clearly identify the winner of each election.8

In early U.S. history, political parties managed the bulk of election administration. After progressive reforms beginning in the late 1800s (including universal adoption of the secret ballot), states took over responsibility for administering elections.9 Some of the responsibilities states undertake in election administration include:

  • 1) ballot creation,
  • 2) absentee voting,
  • 3) polling place selection,
  • 4) poll worker selection and training,
  • 5) voting technology selection, and
  • 6) as necessary, rescheduling an election because of a disaster or emergency.

States establish requirements that must be fulfilled before candidates, political parties, and voters can participate in an election or before ballot measures can appear on the ballot.

This chapter discusses some of the main areas of state election administration.

Subchapter 2: Ballot Creation

Ballots are the means voters use to record and communicate their candidate and ballot measure preferences. States regulate ballots through statutes that govern the ballot’s form, content, and layout. 10 Ballot requirements vary by state. Variables include whether the ballot is used in a primary, general, special, or run-off election;11 whether the ballot is paper or electronic;12 or whether it is used for early or absentee voting versus polling place voting on election day;13 and how candidates are listed on the ballot (e.g., with or without party affiliation).14 Statutes that do not themselves establish ballot criteria may delegate this responsibility to designated state or local officials.15

This section discusses the most common types of state regulation of ballots and their associated legal challenges.

 

A. Ballot Form Requirements

Ballot form requirements may regulate the size, weight of paper, and type of ink 16 used for paper ballots. If the ballot is electronic, statutes may specify whether the ballot scrolls or is presented as complete on a single screen.17 They may also specify the font size used on the screen.18


B. Ballot Content Regulations

Ballot content regulations control the information ballots must or may contain. Depending on the state, these regulations may address the appropriate use of:

  • 1) candidates’ and political parties’ names,
  • 2) political party emblems, and
  • 3) ballot measure descriptions.

Ballot content regulations may also specify whether any mandatory additional language—such as certifications,19 voter instructions, 20 or voter options in judicial retention elections 21 —should be included on the ballot. Ballot content statutes may also address the information that can be omitted from the ballot, such as\ uncontested offices.22

Finally, jurisdictions covered by the Section 203 minority language provisions of the federal Voting Rights Act must provide ballots using the required additional languages. 23

 

1. Candidate and Political Party Names

As for candidate names, commonly known derivations of a candidate’s given name are usually acceptable,24 while misleading and deceptive names may be kept off the ballot.25 Some states may allow, but not require, a candidate’s nickname to be listed.26

Unless expressly authorized by statute, professional or courtesy titles and other characterizations or designations generally are not permitted on an official ballot,27 even if they appeared on the nominating certificate.28 Exceptions are frequently made when two or more candidates have indistinguishable names or when additional information is necessary to avoid voter deceit, deception, or confusion,29 such as distinguishing between father and son candidates.30

In addition to ballot regulations governing candidates’ names, state statutes commonly regulate political party names. For example, similar or confusing party names can be prohibited.31 If different candidates or groups of candidates claim the same party affiliation, the order in which the potential nominees file the required papers may determine which candidate gets to use the party name.32


2. Political Party Designations and Emblems

Some states allow party designations and emblems to appear on the ballot, although their use may be restricted to specific elections.33 Where party emblems are allowed, they must usually satisfy the following criteria:

  • • be a proper symbol,34
  • • not be misleading,35
  • • not be words or phrases,36 and
  • • not constitute electioneering. 37

In general, intra-party disputes over which faction is entitled to use the official emblem are settled within the party and do not involve the courts.38


3. Ballot Measure Descriptive Language

State statutes may require that ballot measures be limited to one question and that voters be provided sufficient information on the ballot measure to know what they are being asked to decide.39


C. Ballot Layout

Although the concept is simple—place the names of the candidates on the official ballot so that voters may select among them—the laws governing ballot layout are detailed, complex, and varied.40 Ballot layout statutes regulate the order in which the elective offices and political parties appear on the ballot,41 the order in which political parties appear under each elective office,42 the order in which candidates’ names appear,43 and the location and order in which ballot measures appear.44

Ballot order requirements vary not only between states but may also vary depending on whether an election is a primary 45 or general election, and whether the ballots are paper or machine-based.46

Common statutory methods of determining the order in which the candidates’ names will be placed on the ballot are by random drawing of names 47 and alphabetical order.48 Once the initial ballot order has been determined, all ballots may retain that order,49 the order of the names may rotate throughout the list,50 or new drawings may be held to randomly select the order of the names in other voting areas.51 Election officials may need to hold a new drawing to affix the candidates’ name order on run-off election ballots.52 Some states also place candidates on the ballot in order based on political party—with a lower place given to independent candidates and higher places given to major parties.53

State statutes may explicitly list the order in which offices should appear on the ballot.54 In general, ballots list the elections for political offices in descending order based on the size of the political jurisdiction.55 Thus, in state elections, a gubernatorial election is listed before a state legislative election, which is listed before a mayoral election, and so on through all available local offices.56 States may allow candidates with similar political beliefs to group themselves together, “bracket[ing],” on the ballot.57 However, some states do not allow county clerks to give preferential treatment in placement on the ballot to those who are bracketed or who are not bracketed.58

Perhaps the most well-known ballot design challenge occurred during the 2000 Bush v. Gore presidential election. The design of ballots used in Palm Beach County, Florida, caused much confusion and led to numerous legal challenges.59 These “butterfly,” punch card ballots were organized with two columns of names separated in the middle by a line with dots corresponding to alternating candidates in the two columns.60 Some of these ballot cards were not adequately punctured for the ballot reading machines to register the votes—either because the perforated section that was supposed to be pushed out was still attached (commonly referred to as a hanging chad) or the dot was only indented.61

When these challenges finally reached the Florida Supreme Court, the Court held that the technical deviations the butterfly ballots showed from the statutorily prescribed ballot form did not rise to the level of substantial noncompliance—a threshold issue plaintiffs had to prove to void the election results due to unintentional misconduct by election officials.62

Subsequently, some state legislatures have changed or added ballot design measures.63


D. Ballot Creation Deadlines

State statutes or administrative regulations may establish a deadline by which the ballot must be finalized,64 be made available for public inspection prior to the election,65 and be made into distributable samples.66

If a general election includes a federal office, absentee ballots must be made available to deployed uniformed military and overseas voters thirty days before the election or the state must accept a standardized federal write-in absentee ballot for federal office. 67

Statutory deadlines to create and disseminate absentee ballots pressure the timeframe for, and limit a court’s ability to hear, many pre-election lawsuits.


E. Legal Challenges

Ballot-related challenges include claims of statutory non-compliance 68 or violations of a candidate’s constitutional rights.69 Ballot-related objections should be filed before the election. Pre-election challenges are time-critical because of looming statutory deadlines governing ballot printing 70 or set up, posting sample ballots,71 and mailing absentee and military ballots.72


1. Compliance-Based Challenges

In designing the ballot and placing candidates, ballot measures, and political parties on it, election officials perform non-discretionary 73 ministerial duties.74 Ballot-related compliance lawsuits allege that election officials did not follow statutory or administrative requirements when creating the ballot. Election officials may have approved an incorrect party emblem, listed the candidate’s name improperly, placed a candidate or political party’s name in the wrong location, or failed to follow candidate name order statutes.75 In addition, the descriptive language used for initiatives, referenda, and amendments, bond or debt authorizations, and judicial retention elections may be challenged. Before filing a ballot order-based court challenge, aggrieved candidates or registered voters may be first required to pursue administrative remedies.76

Plaintiffs generally ask the court to order election officials to create ballots that remedy the deficiencies the plaintiffs’ identified. They may also ask the court to enjoin the election until the ballot is reworked.77 The court’s ability to do so may be limited, especially when the electoral board did not abuse its discretion or exceed its statutory authority.78 A court may decline to order corrective action if it is not satisfied that acceptable changes can be made within the time available and at a reasonable cost, considering how egregious the administrative error is.79 In general, trial courts order non-compliant ballots reprinted when their form violates statutory requirements and sufficient time exists to reformat and distribute them.80

Finally, where ballot-related statutes have not kept pace with changes in voting technology, the court may be asked to interpret the statutory ballot requirements in light of the existing capabilities.81


2. Constitutional Challenges

In general, most courts have not found constitutional violations when ballot order statutes did not require rotation of a candidate’s name.82

Subchapter 3: Absentee Voting

Absentee voting, which the Constitution does not require the states to offer,83 allows registered voters to cast their ballots early, by mail or in person, when the voter will be unable to vote in person on election day because of out-of-town travel,84 illness or disability, or other state-approved reasons. 85 The availability of absentee voting dates back to the Civil War.86 Its use has dramatically increased in the modern era.87

Absentee voting that occurs outside a polling location or administrative office is usually unsupervised, giving rise to concerns about fraud.88 These concerns prompt states to regulate absentee voting more extensively than in-precinct voting, including limiting its availability.89 States regulate some or all of the following aspects of absentee voting:90

  • eligibility requirements, including the information that must be included on an absentee ballot application,
  • how, and by whom, absentee ballots are distributed to voters and how they are returned to election officials,
  • who, if anyone, can assist an absentee voter in voting,
  • whether and how an absentee ballot must be witnessed, and
  • the postmark or receipt deadline for the returned ballot to be counted.

In addition to following state absentee voting regulations, election officials must also comply with federal absentee ballot regulations in federal elections. Federal statutes require states to:

  • permit former residents who moved out-of-state less than thirty days before a presidential election to vote by absentee ballot for President and Vice-President only,91
  • limit the amount of medical information voters must provide to qualify for absentee voting,92
  • permit absentee voting by uniformed and overseas voters in general, special, primary, or runoff elections for federal office,93
  • accept the standardized federal write-in absentee ballot in general elections for federal offices,
  • notify federal election absentee ballot applicants if their applications are rejected and provide the reason for the rejection,94 and
  • accept as valid write-in votes for federal office candidates if the ballot meets UOCAVA criteria, including the standardized federal oath or affirmation if the state requires one of these.95

Courts become involved in absentee voting issues when a plaintiff challenges some aspect of the state’s absentee ballot process. Direct attacks on state absentee ballot processes and regulations generally occur in various forms. First, the plaintiff may claim that election officials failed to follow proper state or federal procedures in approving, issuing, or denying voters’ ability to cast absentee ballots. As with other compliance-related election law claims, state statutes or regulations may require that the initial challenge be filed as an administrative complaint, with court review available only on limited grounds. Courts can issue writs of mandamus to compel election officials to grant absentee ballots to qualified individuals who were improperly denied absentee ballots 96 or may issue injunctions to prevent election officials from approving or distributing absentee ballots in contravention of governing statutes.97

Second, plaintiffs may challenge the constitutionality—usually on equal protection grounds—of a state absentee ballot regulation. Federal constitutional challenges to state absentee voting regulations are typically reviewed under the rational basis test.98 These challenges succeed when the plaintiff proves that no rational basis supports the state’s distinctions. For example, absentee ballot statutes that allowed absentee voters to vote a replacement ballot if the voter picked up the ballot from the election office or if the voter went to the polls to vote but did not allow replacement ballots to be mailed to housebound absentee voters violated equal protection guarantees by treating similarly situated voters differently without a rational explanation.99 Another type of challenge to absentee voting administration involves states sending absentee ballots and ballot applications automatically (i.e., without the voter first submitting a request).

Plaintiffs have successfully challenged the practice of automatically mailing absentee ballot applications to all registered voters 100 and invalidated votes cast by absentee ballot when automatically sent to voters.101

The third way absentee voting can spur litigation is when a candidate dies, withdraws, or otherwise becomes ineligible after the absentee ballots have been mailed, but before election day itself.102 Under these circumstances, courts may need to decide how to count, if at all, the ballots cast for the now ineligible candidate and the circumstances.103 If absentee ballots cannot be reissued with a replacement candidate’s name, the court may be asked to consider whether an absentee voter can void his earlier ballot by appearing at the polls and voting in person.104

Absentee ballot considerations may play a role in many pre-election legal challenges, even when they are not the central issue.105 The deadline to print and mail absentee ballots, which may be as much as a month prior to election day, may operate as a de facto deadline on court decisions that may directly affect the ballot or voting.106 In addition, certain absentee ballot deadlines may affect a court’s ability to grant relief in lawsuits involving other aspects of the election.107

A few courts have heard cases challenging state law and procedure as to when to begin counting early and absentee voting. In 2020, plaintiffs sought to prevent the New Jersey Secretary of State from canvassing ballots starting ten days before the election, as permitted by state law, claiming federal law does not grant States discretion on the timing of the uniform election day and that canvassing must take place only on election day.108 A federal district court denied the plaintiffs request for a preliminary injunction and held that the Federal Election Day statutes did not prevent all election-day processing activity prior to election day, including the canvassing of mail-in ballots, so long as the activity did not reveal the final results of the canvassing until after the close of polls on Election Day.109

The use of ballot drop boxes 110 to collect absentee ballots expanded during the 2020 presidential election due to the COVID-19 pandemic. That year, plaintiffs lodged a number of challenges related to absentee ballot drop boxes. 111 For example, the Ohio Court of Appeals interpreted a state statute concerning the return of absentee ballots to give the Secretary of State authority to restrict or increase the number of absentee drop boxes installed to collect absentee ballots.112 Also in 2020, the U.S. District Court for the Western District of Pennsylvania held that plaintiffs claiming the use of drop boxes without mandated security was unconstitutional because it could lead to election fraud did not have standing because the chance of potential voter fraud was not a concrete, imminent injury. 113 Additionally, the court held that even if plaintiffs did have standing, the court found that the claim would fail on the merits, as “suggest[ing] election improvements” is outside the sphere of federal judge decision making.”114 When state statutes require local governments providing election services to supply more drop boxes, the local government cannot refuse to comply because they do not have the available funds. 115

In cases where the state fails to provide absentee ballots to those entitled to them, the deadline for receipt may be extended.116 However, courts are split about when absentee ballot receipt deadlines can be extended in light of other emergencies such as the COVID-19 pandemic.117 The Supreme Court has not weighed in on the question of whether a court can extend an absentee ballot deadline without interfering with the legislature’s power over elections.118

Subchapter 4: Election Observation

Election observers can be deployed by parties, candidates, citizen groups, or independent organizations to watch the electoral process. State statutes often provide access to pre-election and post-election processes in addition to Election Day activities.119 In 2008, the Supreme Court of Ohio granted a writ of mandamus to compel the Secretary of State to direct that duly appointed observers were permitted in all active polling places, so long as they met statutory requirements, despite the Secretary of State’s recently-issued advisory opinion stating that boards of elections were not required to allow election observers during the 35-day, in-person absentee voting period for the November 4 election.120 In some circumstances, judges may be required to interpret statutes governing election observer access to election processes not explicitly covered by statute.121 For example, the Pennsylvania Supreme Court held in 2020 that the plain meaning of the applicable state statute did not set a minimum distance between observers and the election process they were watching.122 Election observers must establish statutory or common-law standing.123

State statutes outlining who can observe and what observers can do and see vary widely. Almost all states allow for partisan citizen election observers appointed by political parties, candidates, or issue groups.124 Often partisan observers must go through an appointment process in which their names are submitted to officials.125 In addition to partisan observers, most states allow nonpartisan citizen observers.126

The VRA also allows for the appointment of federal observers to monitor election in localities or states that have been certified by the Attorney General when there are concerns about compliance with federal laws.127 The Department of Justice can also send its own staff to observe elections if granted permission from the local jurisdiction where they are observing.128

Subchapter 5: Polling Place Selection

Local election officials should comply with state and federal laws when they select polling locations. Among other requirements, state law may set standards for how many voters should be allocated to vote at a facility 129 and may prohibit the use of some buildings as polling locations.130 Federal laws require that polling locations be accessible to physically disabled voters, with some exceptions if alternative voting opportunities, such as curbside voting, are provided. 131

Although court challenges to polling place selection are rare, they do occur.132 Complaints and legal challenges have occurred over the following polling location-related issues:

  • the use of a new, different polling location specifically for a special election,133
  • the reduction in the number of polling places or the moving of a polling place along race lines,134
  • the use of churches as polling locations generally,135
  • the use of buildings that are inaccessible to those with mobility disabilities,136
  • the selection of a building outside of city limits for that city’s only polling place, 137
  • the failure to establish polling locations on Native American reservations,138 and the consolidation of polling locations.139

When election officials have clearly violated a statutory provision in the selection of a polling location, courts can order them to select a more appropriate location.140 However, if election officials have not violated a statutory provision in selecting a polling location, then their choice can be reviewed for abuse of discretion,141 but generally only if the decision was “arbitrary, unreasonable, and capricious.”142 Finally, where the established precincts are of substantially unequal size, federal equal protection violations may occur if the size disparities led to a number of voters being unable to vote.143

Subchapter 6: Poll Workers

Election officials select and train poll workers. State statutes 144 may provide guidance in this area, as well as establish working hours,145 job responsibilities,146 pay scales,147 and training requirements.148 Where inadequate training of poll workers continues to occur in the face of known problems with it, state and local elections officials may be civilly liable for any ensuing constitutional rights violations.149 Poll worker error may not save the state from allegations of constitutional violations.150

State election officials have routinely faced poll worker shortages in modern elections.151 The 2020 pandemic election witnessed particular concerns about poll worker shortages.152

Subchapter 7: Voting Technology

State election officials choose the method voters will use to cast their ballots. The Help America Vote Act (HAVA) set minimum requirements that must be met by voting equipment used in federal elections. This equipment must:

  • allow the voter to verify the voter’s selections before the ballot is cast,
  • allow the voter to change the ballot or correct errors, and
  • notify the voter if an over vote 153 exists and allow it to be corrected.154

HAVA also requires states to offer voting equipment with an audit capability,155 and to make one voting station per polling location accessible to individuals with disabilities 156 for use in federal elections. States must also offer voting systems that can satisfy the alternate language requirements of the Voting Rights Act. 157 Finally, HAVA requires states to use voting technology that complies with error rate standards set by the Federal Election Commission.158

Even within the broad standards set by HAVA, election officials can choose from different voting systems.159 Their choice of voting method—as well as the subsequent ballot designed for that method—can affect an election because different voting technologies have been shown to have different residual vote rates.160 Residual vote rates measure the difference between the number of voters and the number of valid votes cast for a given contest. 161

Courts may become involved in challenges to voting equipment selection decisions.162 Several courts have allowed equal protection challenges to voting technology with different residual vote rates to proceed.163 One court characterized the use of voting technologies with different error rates in different precincts as allowing local election officials to assign different levels of importance to different voters unequally based on the choice of voting equipment. 164 Yet, questions remain as to the effect of the Supreme Court’s admonishment that states cannot value one person’s vote over another’s in the voting technology arena. 165 Additionally, it is unclear on what scale votes must be “equally weighted” before an Equal Protection violation no longer exists. Courts may also find that due process violations exist if a law allows election officials to impose significantly inaccurate voting systems on some portion of the voting public without a rational basis.166

Some election security experts have recommended phasing out electronic voting without a paper trail, believing that it can be difficult to detect errors in voting machine counting because there is a lack of redundant records to verify the vote totals.167 Most states use paper ballots 168 or provide some other auditable form of paper trail.169 However, it is not necessarily an equal protection clause violation when states use electronic voting systems that do not provide a paper trail and also allow for paper ballots. 170

Straight-ticket, or straight-party, voting enables voters to vote for an entire party’s roster of candidates by pushing one button or making one ballot mark. Only seven states 171 allow for straight-ticket voting, with a few abolishing the practice in recent years.172 In some states, the secretary of state does not have the authority to unilaterally reinstate straight-ticket voting in a general election.173

Subchapter 8: Rescheduling an Election Due to Disaster

Sometimes disasters that strike before Election Day 174 lead to requests to postpone an upcoming election.175 State law may govern when an election can be postponed,176 who has the authority to postpone it,177 and how quickly the election must be rescheduled.178 State or local law may also specify how the offices to be voted on during the postponed election will be filled in the interim.179

If a disaster 180 strikes shortly before an election, the election’s outcome may be altered no matter what action is taken. The disaster may affect the logistics of registering qualifying voters before an election 181 or holding an orderly election as scheduled because polling places may be unusable,182 election workers may be unavailable,183 and voters may be displaced or otherwise unable to get to the polls.184 If the election is postponed, however, voter turnout may still be low,185 and poorly-funded candidates disadvantaged.186 In the absence of controlling statutes or case law, courts that hear cases concerning the scheduling of elections following a disaster may need to balance competing concerns of voter disenfranchisement and concerns related to the government’s legitimacy if the election’s postponement leads to office holders carrying over past their terms because their successors have not been elected.

Subchapter 9: Conclusion

States have a clear interest and duty in the appropriate administration of local, state, and federal elections. This includes ballot creation and layout, choice and upkeep of voting technology, selection of polling places, and training of election workers. All of these responsibilities are managed in different ways across the states. As described above, courts are frequently called upon to address election administration issues to ensure that elections are administered in accordance with state and federal law.

Footnotes

  1. For example, signature or residency requirements that burden the right of candidates to run for office; registration rules that burden voters’ right to cast ballots; and campaign contribution limits that burden the rights of contributors to give money to their favorite candidates.
  2. Peace and Freedom Party v. Shelley, 8 Cal. Rptr. 3d 497, 503 (Ct. App. 2004); see also Bullock v. Carter, 405 U.S. 134, 141 (1972) (holding the state’s regulatory power must be exercised consistent with equal protection).
  3. Burdick v. Takushi, 504 U.S. 428, 440 n.9 (1992) (citation omitted).
  4. Id.
  5. Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986).
  6. Id.
  7. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997).
  8. Id.
  9. See RICHARD P. MCCORMICK, THE HISTORY OF VOTING IN NEW JERSEY: A STUDY OF THE DEVELOPMENT OF ELECTION MACHINERY 1664–1911, 114 (1953).
  10. See, e.g., ALA. CODE § 17-6-24 (2007); see also MONT. CODE ANN. § 13-12-202 (2019) (directing the secretary of state to adopt uniform ballot form requirements).
  11. See, e.g., Nikolits v. Nicosia, 682 So.2d 663 (Fla. Dist. Ct. App. 1996) (noting statutory authorization for an incumbency designation on a ballot applied only to primary election and not general election ballots).
  12. See, e.g., TEX. ELEC. CODE ANN. § 52.001-.008 (Vernon 2003 & Supp. 2006) (paper ballots) and TEX. ELEC. CODE ANN. § 124.001-.006 (Vernon 2003 & Supp. 2006) (electronic ballots).
  13. See, e.g., VT. STAT. ANN. tit. 17, § 2535 (2014) (allowing for variations in the ballot for certain absentee voting purposes); see also ARIZ. REV. STAT. ANN. § 16-545 (2017) (requiring ballots used in early voting to be marked “early”).
  14. See, e.g., VA. CODE ANN. § 24.2-613(B) (2019) (“For elections for federal, statewide, and General Assembly offices only, each candidate who has been nominated by a political party or in a primary election shall be identified by the name of his political party.”).
  15. See, e.g., VT. STAT. ANN. tit. 17, § 2471 (2014) (stating circumstances under which the town clerk may become involved in determining the color or layout of a ballot); N.M. STAT. ANN. § 1-10-3 (West 2007) (authorizing the secretary of state to determine a uniform ballot layout); S.C. CODE ANN. § 7- 13-320 (2006) (noting the ballot’s size and color are set by the State Election Commission); ALASKA STAT. § 15.15.030 (2013) (requiring the director to prepare all official ballots).
  16. See VT. STAT. ANN. tit. 17, § 2471 (2014) (requiring black ink).
  17. See, e.g., CO. CODE ANN. § 1-5-704 (2020).
  18. See, e.g., id. (requiring a minimum of fourteen points to a maximum of twenty-four points).
  19. See S.C. CODE ANN. § 7-13-320(C)(b) (2006) (requiring an identified facsimile of the State Election Commission Executive Director’s signature to be printed at the bottom of the ballot); TEX. ELEC. CODE ANN. §52.064 (Vernon 2003) (requiring “Official Ballot” to be printed on ballots); IND. CODE § 3-11-2-7 (West 2007) (requiring a “cautionary statement” that it is a crime to falsify the ballot or violate election laws); see also VT. STAT. ANN. tit. 17, § 2472 (2020).
  20. See N.J. STAT. ANN. § 19:14-4 (2019).
  21. ALASKA STAT. § 15.15.030 (2007).
  22. Sometimes only one candidate runs for the office or only the primary election is contested. In those instances, some states do not include the office on the general election ballots. If the office is a Congressional seat, however, the candidate’s name must appear on the general election ballot even though the election is a foregone conclusion, because omitting the candidate’s name violates uniform Federal Election Day requirements. See Foster v. Love, 522 U.S. 67, 73 (1997).
  23. See 52 U.S.C.A. § 10503 (2021).
  24. Stevenson v. Ellisor, 243 S.E.2d 445 (S.C. 1978) (upholding decision allowing a candidate with a given name of “Ferdinan” to use “Nancy” because “Nancy” was a properly acquired derivative name the candidate had been using in good faith for honest purposes).
  25. None of The Above v. Hardy, 377 So.2d 385 (La. Ct. App. 1979) (holding that despite meeting other qualifications to run for governor, the candidate’s new legal name—“None of The Above”—could be kept off the ballot because it was misleading and deceptive).
  26. State ex rel. Sterne v. Bd. of Elections of Hamilton County, 252 N.E.2d 641 (Ohio 1969) (requiring a showing that election officials abused their discretion in not printing a candidate’s nickname on the ballot before the court will order it included).
  27. Sooy v. Gill¸ 774 A.2d 635 (N.J. Super. Ct. App. Div. 2001); Lewis v. N.Y. State Bd. of Elections, 678 N.Y.S.2d 809 (App. Div. 1998); Douville v. Docking, 501 P.2d 778 (Kan. 1972); People ex rel. Richter v. Telford, 242 N.E.2d 464 (Ill. App. Ct. 1968).
  28. Tiogo v. Columbia Bd. of Elections, 273 N.Y.S.2d 781 (Sup. Ct. 1966) (prohibiting the use of a candidate’s title and academic degree).
  29. Sooy, 774 A.2d. 635.
  30. Foley v. Donovan, 144 N.W.2d 600 (Minn. 1966).
  31. McCarthy v. Lawley, 314 N.Y.S. 2d 626 (App. Div. 1970) (holding “Conservation Party” too similar and confusing to “Conservative Party”).
  32. Fenerty v. Lawrence, 27 Pa. D. & C. 640 (Ct. Com. Pl. 1936).
  33. Some states will not allow party emblems to be used in general elections for judicial offices, even if the emblems are available for use in judicial primary elections. See State ex rel. MacHale v. Ayers, 105 P.2d 686 (Mont. 1940) and Suessman v. Lamone, 862 A.2d 1 (Md. 2004).
  34. Steinberg v. Meisser, 314 N.Y.S. 2d 717 (Sup. Ct. 1970) (holding that a picture of a skyscraper, surrounded by a circle with a slash through it, was not a proper symbol).
  35. In re Ingraham, 201 N.Y.S. 765 (Sup. Ct. 1923) (holding a pointing hand was not a proper emblem and gave the candidate an unlawful advantage).
  36. Sadler v. State ex rel. Sanders, 811 N.E.2d 936 (Ind. Ct. App. 2004) (finding that the phrase “The A Team,” was not a proper party emblem).
  37. McNulty v. May, 387 N.Y.S.2d 489 (App. Div. 1976); Sadler, 811 N.E.2d 936; Schiff v. Griffin, 639 N.W.2d 56 (Minn. Ct. App. 2001); Robinson v. Hare, 145 N.W.2d 254 (Mich. Ct. App. 1966). See infra Chapter 7: Election Day for additional information on electioneering.
  38. Am. Indep. Party of Michigan (Morse-Smith Faction) v. Sec. of State, 247 N.W.2d 17 (Mich. 1976).
  39. See, e.g., ALASKA STAT. § 15.45.040 (2021); Ohio Revised Code, Title XXXV, Chapter 3519.01(A); see also Chapter 4: State Regulation of Ballot Measures for more information on ballot measure requirements.
  40. Yet sometimes they are not complex enough given the political climate. See Brown v. DeGrace, 751 N.Y.S.2d 150 (Sup. Ct. 2002) (deciding a ballot order deadlock where the state law permitted overlapping minor party endorsements which resulted in a ballot that did not conform to “tradition” that the court decided was not “legally sacrosanct…[and] not of legal moment”).
  41. Two common ballot formats exist. Under the “Indiana” or “party-column” format, party affiliation constitutes the first grouping, with all offices for which the party is running a candidate appearing underneath the party column. This arrangement facilitates voting by party. The second common ballot format is the “Massachusetts” or “office block” format, in which candidates are grouped based on the offices they seek. See Sadler, 811 N.E.2d at 939.
  42. See VA. CODE ANN. § 24.2-613 (2003) (requiring in non-primary elections, political party order determined by lot with “recognized political parties” order determined before independent candidacies).
  43. See MONT. CODE ANN. § 13-12-205 (2005).
  44. See MONT. CODE ANN. § 13-12-207(4) (2005).
  45. See CAL. ELEC. CODE § 13112 (West Supp. 2007) (requiring three separate drawings for a randomized alphabet to held per year, with provisions for additional randomized drawings as necessary to accommodate special elections).
  46. See, e.g., Ariz. Rev. STAT. ANN. §16-446 (2017).
  47. See Bradley v. Perrodin, 131 Cal. Rptr. 2d 402 (Ct. App. 2003); CAL. ELEC. CODE § 13112 (2007); ARK. ELEC. CODE § 7-5-207 (2021).
  48. See NEV. REV. STAT. ANN. §§ 293.256-2565 (LexisNexis 2007) (noting exceptions are allowed when the candidates have same or similar names); VA CODE ANN. § 24.2-613 (2021).
  49. See NEV. REV. STAT. ANN. § 293.256-68 (LexisNexis 2007) (making no provision to rotate names).
  50. See CAL. ELEC. CODE § 13111 (West Supp. 2007).
  51. See id.
  52. Guiliano v. Richardson, 266 A.2d 154 (N.J. Super. Ct. Law Div. 1970) (holding clerk’s failure to select new candidate designations and bracketing in a run-off election amounted to impermissible discretion).
  53. Sarvis v. Judd, 80 F. Supp. 3d 692 (E.D. Va. 2015), aff'd sub nom. Libertarian Party of Virginia v. Alcorn, 826 F.3d 708 (4th Cir. 2016) (holding that the state’s assignment of a lower place on the ballot for independent candidates and candidates from smaller parties does not violate the First and Fourteenth Amendments).
  54. See VT. STAT. ANN. tit. 17, § 2471(a) (2002).
  55. See N.C. GEN. STAT. § 163-165.6 (2005).
  56. Amarino v. Canary, 480 N.Y.S.2d 920 (App. Div. 1984) (noting county officers are listed before candidates before town boards).
  57. Gillen v. Sheil, 416 A.2d 935, 938 (N.J. Super. Ct. Law Div. 1980) (citation omitted).
  58. Andrews v. Rajoppi, No. A-4005-07T1, 2008 WL 1869869 (N.J. Super. Ct. App. Div. Apr. 29, 2008).
  59. Steven J. Mulroy, Substantial Noncompliance and Reasonable Doubt: How the Florida Courts Got It Wrong in the Butterfly Ballot Case, 14 STAN. L. & POL'Y REV. 203, 205 (2003). Some legal challenges alleged the ballot design departed from state statutory requirements. See Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240 (Fla. 2000), No. CL 00-10965 AB (filed Nov. 8, 2000); Gibbs v. Palm Beach County Canvassing Board, No. CL 00-11000 AH (filed Nov. 9, 2000); Horowitz v. LePore, No. CL 00-10970 AG (filed Nov. 9, 2000); Rogers v. Election Canvassing Commission, No. CL 00-10992 AF (filed Nov. 9, 2000); Elkin v. LePore, No. CL 00-10988 AE (filed Nov. 12, 2000); “The People” (Boswell) v. Bush, No. CL 00-11240 AB (filed Nov. 13, 2000); Adrien v. Department of Elections, No. CL 00-11146 AB (filed Nov.14, 2000); Haitian American Bureau & International Liason v. Palm Beach County Canvassing Board., No. CL 00-11084 AH (filed Nov. 14, 2000); Lichtman v. Bush, No. CL 00-11098 AO (filed Nov. 14, 2000); Katz v. Election Canvassing Commission, No. CL-11302 AD (filed Nov. 17, 2000); and Green v. LePore, No. CL 00-11290 AB (filed Nov. 17, 2000). Others challenged the standard of ballot computation.
  60. Mulroy, supra note 59, at 205-06. Designed to allow larger type and to keep all candidates for one office on the same page.
  61. Bush v. Gore, 531 U.S. 98, 105 (2000).
  62. Id. at 209 (2003).
  63. See Martha Kropf, The Evolution (or Not) of Ballot Design Ten Years After Bush v. Gore, in ELECTION ADMINISTRATION IN THE UNITED STATES 157-74 (Cambridge Univ. Press 2014). See, e.g., N.D. CENT. CODE ANN. § 16.1-06-07.1 (West); ALASKA STAT. ANN. § 15.15.030 (West); ALA. CODE § 17-6-24; DEL. CODE ANN. tit. 15, § 4502 (West).
  64. See, e.g., N.J. STAT. ANN. § 19:14-1 (West 1999) (requiring a copy of ballot to be ready for the printer on or before the forty-third day before the election); see also N.J. STAT. ANN. § 19:14-18 (West 1999) (requiring county clerks to have the printed ballots on hand no later than noon on the fifth day preceding the general election); N.M. STAT. ANN. § 1-10-4 (West 2007) (requiring county clerk to prepare the ballot no less than forty-nine days before a primary or fifty-three days before a general election) and N.M. STAT. § 1-10-5 (West 2007) (requiring county clerks to have ballot labels no less than thirty days before the election).
  65. See MINN. STAT. ANN. § 204D.16 (2021) (“At least 46 days before the state general election, the county auditor shall post sample ballots for each precinct in the auditor’s office for public inspection and transmit an electronic copy of these sample ballots to the secretary of state.”).
  66. See N.C. GEN. STAT. § 163-165.2 (2005) (“The county board of elections shall produce sample ballots, in all the necessary ballot styles of the official ballot, for every election to be held in the county. The sample ballots shall be given an appearance that clearly distinguishes them from official ballots.”).
  67. 52 U.S.C.A. § 20302 (West).
  68. Mochary v. Caputo, 494 A.2d 1028 (N.J. 1985); Brown v. DeGrace, 751 N.Y.S. 2d 150 (Sup. Ct. 2002) (noting that “case law suggests that where the Board of Elections is claimed to have made an error in establishment of the ballot, an aggrieved candidate may challenge the manner in which the Board constituted the ballot”) (citation omitted).
  69. DeNardo v. Municipality of Anchorage, 105 P.3d 136 (Alaska 2005) (holding plaintiff’s political associational rights were not violated by the randomly drawn, non-rotated order of candidates’ names on the ballot).
  70. See Miss. Code. Ann. § 23-15-649 (West).
  71. See VT. STAT. ANN. tit. 17, § 2522 (Supp. 2006) (requiring sample ballots to be posted no later than twenty days prior to any primary or general elections and no later than ten days before municipal elections); ARIZ. REV. STAT. ANN. § 16-503 (2007) (requiring sample ballot to be available to the public at least ten days before general elections and five days before city or town elections).
  72. Austin v. City of Alice, 193 S.W.2d 290 (Tex. Civ. App. 1946); Brown v. DeGrace, 751 N.Y.S.2d 150 (Sup. Ct. 2002) (indicating that the mailing of military ballots had already been delayed and the timely mailing of absentee ballots was jeopardized).
  73. State ex rel. Smith v. Kozer, 229 P. 679 (Or. 1924); Burr v. Voorhis, 128 N.E. 220 (N.Y. 1920); Stuart v. Carr, 106 N.E. 158 (Ill. 1928).
  74. See State ex rel. Gengo v. Cudden, 168 S.E.2d 541 (W.Va. 1969) (finding that ministerial capacity lies with the board of elections); Stuart, 106 N.E. 158 (holding that ballot printer does not operate in a ministerial capacity); Sadler v. State, 811 N.E.2d 936 (Ind. Ct. App. 2004) (finding that voting technology vendor does not operate in a ministerial capacity).
  75. Litigation over whether candidate order has complied with statutory requirements is motivated by concerns that undecided voters are more likely to vote for the first candidate listed; thus, the first ballot position potentially provides that candidate an unfair advantage. See Daniel E. Ho & Kosuke Imai, Estimating Causal Effects of Ballot Order From A Randomized Natural Experiment: The California Alphabet Lottery, 1978–2002, 72 PUB. OP. Q. 216 (2008), https://imai.fas.harvard.edu/research/files/alphabet.pdf (discussing the supposed effects of ballot order on election results and finding some ballot order affect for first two candidate positions in primary elections); R. Michael Alvarez, Betsy Sinclair & Richard L. Hasen, How Much is Enough? The “Ballot Order Effect” and the Use of Social Science Research in Election Law Disputes, 5 ELECTION L. J. 40 (2006) (finding little evidence that candidates systematically benefit from their name being placed first on the ballot).
  76. See, e.g., ALA. CODE § 41-22-20(a) (1973); CONN. GEN. STAT. § 4-183(a) (1971); GA. CODE ANN. § 50-13-19(a); IND. CODE § 4-21.5-5-4(a) (1947); IOWA CODE § 17A.19(1).
  77. Sadler, 811 N.E.2d 936 (enjoining an election because the electoral board violated state law by changing the ballot’s format without first determining that the voting equipment would not support the prescribed format).
  78. Sooy v. Gill, 774 A.2d 635 (N.J. Super. Ct. App. Div. 2001) (finding failure to do more than place the candidate’s name on the ballot was not subject to judicial review).
  79. Mattson v. McKenna, 222 N.W.2d 273 (Minn. 1974).
  80. Johnston v. Ing, 441 P.2d 138 (Haw. 1968) (holding that courts may leave the sample ballot uncorrected even if they order the official ballots reprinted); see Millman v. Kelly, 410 A.2d 283 (N.J. Super. Ct. Law 1979) (finding that paper-based ballots may be corrected through the use of stickers as an alternative to reprinting the ballot).
  81. Axtell v. Caputo, 204 A.2d 7 (N.J. Super. Ct. App. Div. 1964); Sadler, 811 N.E.2d 936; Millman v. Kelly, 410 A.2d 283 (N.J. Super. Ct. Law Div. 1979) (holding statute applied to paper ballots only in the face of uncontradicted testimony that the statutorily specified “yes” and “no” block was not possible given the voting equipment in use).
  82. See DeNardo v. Municipality of Anchorage, 105 P.3d 136 (Alaska 2005) (holding plaintiff’s political associational rights were not violated by the randomly drawn, non-rotated order of candidates’ names on the ballot); see also Sonneman v. State, 969 P.2d 632 (Alaska 1998) (finding no Equal Protection violation in the statute that required name rotation).
  83. See Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004). Some state constitutions grant a right to vote by absentee ballot. See, e.g., HAW. CONST. art. II, § 4 ("The legislature shall provide for the registration of voters and for absentee voting"); N.H. CONST. pt. I, art. 11 (“The general court shall provide by law for voting by qualified voters who . . . are absent from the city or town of which they are inhabitants, or who by reason of physical disability are unable to vote in person, in the choice of any officer or officers to be elected or upon any question submitted at such election.”).
  84. See TEX. ELEC. CODE ANN. §§ 106.001-.02 (Vernon 2003 & Supp. 2006) (creating provisions to permit person in space on Election Day the opportunity to vote); see also Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NAT’L CONF. OF STATE LEGISLATURES (July 12, 2022), https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx (last visited Sept. 14, 2022).
  85. Many states offer “no excuse” absentee or early voting wherein any registered voter can vote by absentee ballot or in-person at designated precincts. See States with No-Excuse Absentee Voting NAT’L CONF. OF STATE LEGISLATURES (July 12, 2022), https://www.ncsl.org/research/elections-and-campaigns/vopp-table-1-states-with-no-excuse-absentee-voting.aspx (last visited Sept. 14, 2022)(detailing state no-excuse absentee laws).
  86. Edward B. Moreton, Jr., Voting by Mail, 58 S. CAL. L. REV. 1261, 1261 (1985).
  87. The percentage of ballots cast by mail has been steadily on the rise well before 2020, jumping from 4% in 1972 to 30% in 2008. Patty Ferguson-Bohnee & James Thomas Tucker, Voting During A Pandemic Vote-by-Mail Challenges for Native Voters, ARIZ. ATT'Y, July/August 2020, at 24, 26. That percentage jumped to 46% in 2020, likely due to the COVID-19 pandemic. The Voting Experience in 2020, PEW RESEARCH CENTER (Nov. 20, 2020), https://www.pewresearch.org/politics/2020/11/20/the-voting-experience-in-2020.
  88. John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret Ballot: Challenges for Election Reform, 36 U. MICH. J. L. REFORM 483 (2003). A recent example of absentee voter fraud occurred in North Carolina. The State Board of Elections unanimously voted to hold a new election for the state’s Ninth Congressional District after a hearing revealed a large-scale election fraud operation that involved stuffing the ballot boxes with absentee ballots in one candidate’s favor. See David A. Graham, North Carolina Had No Choice, THE ATLANTIC (Feb. 22, 2019), https://www.theatlantic.com/politics/archive/2019/02/north-carolina-9th-fraud-board-orders- new-election/583369/
  89. See Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004) (noting “working mother” is not a protected classification, thus no equal protection violation occurs when the states does not extend absentee voting eligibility to individuals meeting this description).
  90. Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, NAT’L CONF. OF STATE LEGISLATURES (Sept. 24, 2020), https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx (last visited Feb. 20, 2021).
  91. 52 U.S.C. § 10502 (2021). The state must also allow the former resident meeting these criteria to vote in-person at their old precinct if the former resident prefers that to absentee voting. If the citizen moves to another state thirty or more days before the election, another VRA provisions requires his new state to register him to vote for the upcoming federal election.
  92. 52 U.S.C. § 10502 (2021).
  93. 52 U.S.C. 20301 (2021).
  94. Id.
  95. Id.
  96. See In re State of Texas, No. 20-0394 (May 20, 2020), https://www.txcourts.gov/media/1446711/200394.pdf.
  97. League of Women Voters of S.C. v. Andino, No. 2:20-3537-RMG, 2020 U.S. Dist. LEXIS 203341 (D.S.C. Oct. 27, 2020).
  98. See, e.g., Erlandson v. Kiffmeyer, 659 N.W.2d 724, 733 (Minn. 2003).
  99. Id. at 731-32. See also O’Brien v. Skinner, 414 U.S. 524 (1974) (holding state statutes that allowed absentee voting for county residents who were jailed out-of-the-county but denied absentee voting to county residents who were jailed in-county even though the in-county inmates had no alternative means of voting, were arbitrary and without a rational basis).
  100. State v. Hollins, 620 S.W.3d 400 (Tex. 2020).
  101. Gross v. Albany County. Bd. of Elections, 819 N.E.2d 197 (N.Y. 2004) (voiding absentee ballots sent to voters for special election that were solely based upon voters' absentee ballot application for prior, regular general elections). But see Trump v. Biden, 951 N.W.2d 568 (Wisc. 2020) (denies request to strike “indefinitely confined” voters as class, without regard to whether any individual voter was in fact indefinitely confined, because request lacked basis in reason or law).
  102. See Erlandson, 659 N.W.2d at 731-32 (discussing the effect of the death of incumbent Senator Paul Wellstone eleven days before the election).
  103. See id. (requiring absentee ballots returned before the candidate died to be counted as cast for all offices and issues).
  104. See id.
  105. See infra Chapter 9: Election Contests for additional information on post-election challenges to absentee ballots.
  106. See Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en banc) (per curiam) (holding the election could not be enjoined to hear challenge to voting technology because the election began when absentee voting started); Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 804 N.E.2d 419 (Ohio 2004) (denying candidate’s petition to amend his challenge to another candidate’s qualifications to run for office because the passing of the absentee ballot statutory deadline made laches applicable).
  107. For example, one court dismissed a challenge to a ballot measure in part because the deadline to mail absentee ballots had passed. See State ex rel. Newell v. Tuscarawas County Bd. of Elections, 757 N.E.2d 1135 (Ohio 2001) (per curiam).
  108. Donald J. Trump for President, Inc. v. Way, 492 F. Supp. 3d 354, 367 (D.N.J. 2020).
  109. Id. at 369.
  110. Drop boxes are “secure, locked structure[s] operated by election officials where voters may deliver their ballots from the time they receive them in the mail up to the time polls close on Election Day.” Ballot Drop Box, ELECTION ASSISTANCE COMM’N, https://www.eac.gov/sites/default/files/electionofficials/vbm/Ballot_Drop_Box.pdf. They are emptied regularly, some states requiring drop boxes be monitored by security cameras. See, e.g., MD. CODE ANN., ELEC. LAW § LAW § 2-305 (West) (requiring monitoring by security camera); MICH. COMP. LAWS ANN. § 168.761d (West); MINN. STAT. ANN. § 203B.082 (West).
  111. See Pa. Democratic Party v. Boockvar, 238 A.3d 345, 360-61 (Pa. 2020) (interpreting a Pennsylvania state statute to permit county boards of election to create satellite drop off locations for mail-in ballots but holding that an equal protections claim was premature as the counties had not yet counted any votes or used satellite locations); Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911 (Tex. 2020) (holding that the Governor’s proclamation preventing county officials from designating multiple mail-in ballot hand-delivery sites prior to election day was constitutional and did not discriminate against voters in large counties).
  112. Ohio Democratic Party v. LaRose 159 N.E.3d 1241 (Ohio Ct. App. 2020). See also Pa. Democratic Party v. Boockvar, 238 A.3d 345, 360-61 (Pa. 2020) (interpreting a Pennsylvania state statute to permit county boards of election to create satellite drop off locations for mail-in ballots but holding that an equal protections claim was premature as the counties had not yet counted any votes or used satellite locations).
  113. Donald J. Trump for President, Inc. v. Boockvar, 493 F. Supp. 3d 331, 342 (W.D. Pa. 2020).
  114. Id. at 343.
  115. See Gessler v. Doty, 272 P.3d 1131 (Colo. Ct. App. 2012).
  116. See, e.g., Doe v. Walker, 746 F. Supp. 2d 667 (D. Md. 2010) (granting preliminary injunction extending the deadline for receipt of absentee ballot from absent uniformed services and overseas voters).
  117. Compare DCCC v. Ziriax, 487 F. Supp. 3d 1207, 1231-34 (N.D. Okla. 2020) (holding the absentee ballot receipt deadline was not unconstitutional), and League of Women Voters of Delaware, Inc. v. Dep't of Elections, 250 A.3d 922, 936 (Del. Ch.), judgment entered sub nom. League of Women Voters of Delaware, Inc. v. State (Del. Ch. 2020) (holding that expanding the right to vote by mail but failing to extend the deadline for receipt of ballots did not violate the state constitution because it was not unreasonable), with Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020), cert. denied sub nom. Republican Party of Pennsylvania v. Degraffenreid, 141 S. Ct. 732, 209 L. Ed. 2d 164 (2021) (holding that the three-day extension of absentee and mail-in receipt deadline was warranted).
  118. Republican Party of Pennsylvania v. Degraffenreid, 141 S. Ct. 732, 209 L. Ed. 2d 164 (2021) (Alito, J., dissenting) (“I agree with Justice Thomas that we should grant review in these cases. They present an important and recurring constitutional question: whether the Elections or Electors Clauses of the United States Constitution, Art. I, § 4, cl. 1; Art. II, § 1, cl. 2, are violated when a state court holds that a state constitutional provision overrides a state statute governing the manner in which a federal election is to be conducted. That question has divided the lower courts, and our review at this time would be greatly beneficial.”).
  119. For a state-by-state breakdown of policies governing election observation access, see Policies for Election Observers, NAT’L CONF. OF STATE LEGISLATURES (Oct. 13, 2020), https://www.ncsl.org/research/elections-and-campaigns/policies-for-election-observers.aspx#; Who Can Observe U.S. Elections?, THE CARTER CENTER (2020), https://www.cartercenter.org/resources/pdfs/peace/democracy/us-observer-policies-2020.pdf.
  120. State ex rel Stokes v. Brunner, 898 N.E.2d 23 (Ohio 2008).
  121. In re Canvassing Observation, 241 A.3d 339 (Pa. 2020), cert. denied sub nom. Donald J. Trump for President, Inc. v. Degraffenreid, 141 S. Ct. 1451, 209 L. Ed. 2d 172 (2021).
  122. Id.
  123. Bickham v. Dallas Cty., 612 S.W.3d 663 (Tex. App. 2020), review denied (Oct. 15, 2021).
  124. Policies for Election Observers, NAT’L CONF. OF STATE LEGISLATURES (Oct. 13, 2020), https://www.ncsl.org/research/elections-and-campaigns/policies-for-election-observers.aspx#
  125. See, e.g., ARK. CODE ANN. §7-5-312 (2015); ARK. CODE ANN. §7-5-904 (2018). A few states also have formal appointment processes for nonpartisan citizen observers. See, e.g., 10 ILL. COMP. STAT. 5/17-23; MD. CODE, ELECTION LAW, §10-311; N.M. STAT. ANN. §1-2-21-27; Wisc. Stat. Ann.§ 7.41 (West 2016). For more information on state laws outlining qualification requirements for poll watchers, please see Poll Watchers and Challengers, NAT’L CONF. OF STATE LEGISLATURES (Oct. 1, 2020), https://www.ncsl.org/research/elections-and-campaigns/poll-watcher-qualifications.aspx
  126. Id. States also allow international and academic election observation. Id.
  127. 52 U.S.C.A. § 10305(a)(2) (West).
  128. U.S. Dep’t of Justice, C.R. Div.,Fact Sheet On Justice Department’s Enforcement Efforts Following Shelby County Decision, https://www.justice.gov/crt/file/876246/download
  129. See Ury v. Santee, 303 F. Supp. 119, 126 n.3 (N.D. Ill. E.Div. 1969) (citing existing state standard as no more than 500 voters per facility unless the election is uncontested).
  130. See Van Lengen v. Town Bd. of Onondaga, 253 N.Y.S.2d 865, 866 (Sup.Ct. 1964) (citing state law prohibiting polling locations on property owned or leased by candidates for public office in primary or general elections).
  131. See N.Y. ex rel. Spitzer v. County of Schoharie, 82 F. Supp. 2d 19 (N.D.N.Y. 2000); 42 U.S.C. § 1973ee-1 (2000) (requiring polling places to be accessible to handicapped and elderly unless it’s an emergency situation; if no polling place can be made accessible, even temporarily, then the locality must provide an alternative voting means on election day).
  132. See Van Lengen v. Town Bd. of Onondaga, 253 N.Y.S. 2d 865 (Sup. Ct. 1964) (challenging the candidate’s office selected as polling location); Application of Held, 363 N.Y.S. 2d 205 (Sup. Ct. 1974) (challenging selection of polling place in contest of village incorporation election); Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969) (voiding election for federal constitutional rights violation in substantially unequal sized precincts when precincts reduced from thirty-two to six in village election); Mirlisena v. Fellerhoff, 463 N.E.2d 115 (Ohio Ct. Com. Pl. 1984) (finding no abuse of discretion in relocation of polling place in contest of councilmanic election); Rabinowitz v. Anderson, No. 06-81117 (S.D. Fla. filed Dec. 1, 2006) (alleging violation of the Establishment Clause over polling place located in church where religious imagery was on display around the voting booth).
  133. Everett Cats, Sandy Springs Cleared but Fulton County Blamed for 2016 Special Election Issues, NORTHSIDE NEIGHBOR (Georgia), Feb. 22, 2021, https://www.mdjonline.com/neighbor_newspapers/northside_sandy_springs/news/sandy-springs-cleared-but-fulton-county-blamed-for-2016-special-election-issues/article_f5427554-7541-11eb-ba47-0bc74aff313b.html
  134. See Prescod v. Bucks Cty., No. CIV.A.08-3778, 2009 WL 3617751, at *1 (E.D. Pa. Nov. 2, 2009); Jacksonville Coal. For Voter Prot. v. Hood, 351 F. Supp. 2d 1326 (M.D. Fla. 2004); Stephen Fowler, Why Do Nonwhite Georgia Voters Have To Wait In Line For Hours? Too Few Polling Places, NPR (Oct. 17, 2020), https://www.npr.org/2020/10/17/924527679/why-do-nonwhite-georgia-voters-have-to-wait-in-line-for-hours-too-few-polling-pl
  135. See Rabinowitz v. Anderson, No. 06-81117 CIV, 2007 WL 9701794 (S.D. Fla. July 31, 2007); Voting While God Is Watching – Does Having Churches As Polling Stations Sway The Ballot?, THE CONVERSATION (Sept. 22, 2020), https://theconversation.com/voting-while-god-is-watching-does-having-churches-as-polling-stations-sway-the-ballot-144709
  136. Kerrigan v. Philadelphia Bd. of Election, No. CIV. A. 07-687, 2008 WL 3562521 (E.D. Pa. Aug. 14, 2008); Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014).
  137. Rangel-Lopez v. Cox, 344 F. Supp. 3d 1285 (D. Kan. 2018).
  138. Sanchez v. Cegavske, 214 F. Supp. 3d 961 (D. Nev. 2016).
  139. Sutton v. Howe, 128 N.Y.S.3d 431 (N.Y. Sup. Ct. 2020).
  140. Van Lengen v. Town Bd. of Onondaga, 253 N.Y.S.2d 865, 870-71 (Sup. Ct. 1964) (finding an error of law in the town board’s selection of a polling location and ordering them to call a meeting, attend the meeting, and designate another polling place).
  141. See Application of Held, 363 N.Y.S.2d 205 (Sup. Ct. 1974); Mirlisena v. Fellerhoff, 463 N.E.2d 115 (Ohio Ct. Com. Pl. 1984). See also, Jonathan Weisman, Ruling Keeps DeLay on Ballot; Judge Sides with Democrats, Says Former Lawmaker Can’t Quit, WASH. POST, July 7, 2006, at A5, and Marc Meredith & S. Christian Wheeler, Can Where People Vote Influence How They Vote? The Influence of Polling Location Type on Voting Behavior (Stanford Graduate School of Business, Research Paper Series, Research Paper No. 1926, 2006), available at https://gsbapps.stanford.edu/researchpapers/library/RP1926.pdf (suggesting that polling locations may influence voting behavior). Currently, whether and how polling place selection, designed to garner a preferred electoral outcome, results in a finding of abuse of discretion is unknown.
  142. Mirlisena v. Fellerhoff, 463 N.E.2d 115, 118 (Ohio Ct. Com. Pl. 1984) (citation omitted).
  143. Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969) (voiding election for Equal Protection violations resulting from precinct overcrowding that led to many voters’ inability to vote where a township had consolidated thirty-two precincts into six precincts, resulting in substantial population deviations).
  144. State-by-State Compendium: Election Worker Laws & Statutes, U.S. ELECTION ASSISTANCE COMMISSION (2020), https://www.eac.gov/sites/default/files/electionofficials/pollworkers/Compendium_2020.pdf.
  145. GA. CODE ANN. § 21-2-405 (West).
  146. UTAH CODE ANN. § 20A-5-605 (West).
  147. ALA. CODE § 17-8-12 (West).
  148. GA. CODE ANN. § 21-2-99 (West).
  149. See League of Women Voters of Ohio v. Blackwell, 432 F. Supp. 2d 723, 729, 730 (N.D. Ohio 2005) (holding that plaintiff’s claim of a constitutional rights violation survives defendant’s motion to dismiss because plaintiff met the threshold test that defendant’s failure to train might amount of “deliberate indifference” because of the history of training problems and the due process violations that were likely to occur as a result) (citation omitted).
  150. See, e.g., Hunter v. Hamilton Cty. Bd. of Elections, 850 F. Supp. 2d 795 (S.D. Ohio 2012) (county elections board's decision not to count some provisional ballots because of poll worker error violated Equal Protection Clause). See contra State ex rel. Painter v. Brunner, 2011-Ohio-35, ¶ 35, 128 Ohio St. 3d 17, 28, 941 N.E.2d 782, 794 (“These statutes do not authorize an exception based on poll-worker error to the requirement that ballots be cast in the proper precinct in order to be counted.”).
  151. Matt Vasilogambros, Few People Want to be Poll Workers, and That’s a Problem, THE PEW CHARITABLE TRUSTS (Oct. 22, 2018), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/10/22/few-people-want-to-be-poll-workers-and-thats-a-problem (citing 2016 U.S. Election Assistance Comm’n report that two-thirds of jurisdictions had a hard time recruiting enough poll workers on Election Day).
  152. See, e.g., Scott Bauer and Steve Peoples, Wisconsin Moves Forward with Election Despite Virus Concerns, AP NEWS, Apr. 6, 2020, https://apnews.com/article/primary-elections-ap-top-news-elections-wisconsin-public-health-97db30e6564b9b5eedfc300234ea6630 (“More than 2,500 National Guard troops were dispatched to staff the polls.”); Davis Winkie, National Guard Election Day Update: More Than 4,700 Troops Active in 18 States, MILITARYTIMES (Nov. 3, 2020), https://www.militarytimes.com/news/election-2020/2020/11/03/national-guard- election-day-update-more-than-4700-troops-active-in-18-states/ (“At least 4,700 National Guard troops in 18 states have been activated as of Tuesday afternoon to support the Nov. 3 general election in several capacities.”).
  153. “Over votes” occur when voters cast votes for more than one candidate for a single office.
  154. 52 U.S.C. § 21081 (2021) (permitting localities whose voting equipment cannot notify the voter of an over vote, to meet federal voting standards if the locality establishes a voter education program which includes information on the effect of an over vote and how to correct the problem if it arises).
  155. 52 U.S.C. § 21081 (2021).
  156. Id.
  157. Id.
  158. Id.
  159. For more information on managing voting technology, see Managing Election Technology, U.S. ELECTION ASSISTANCE COMM’N, https://www.eac.gov/voting-equipment/managing-election-technology (last visited Feb. 14, 2022). For more information on election infrastructure security, see Election Infrastructure Security, CYBERSECURITY& INFRASTRUCTURE SEC. AGENCY, https://www.cisa.gov/election-security (last updated Jan. 31, 2022).
  160. Stephen Ansolabehere & Charles Stewart III, Residual Votes Attributable to Technology, 67 J. POL. 365 (2005), https://www.vote.caltech.edu/documents/168/residual_votes_attributable_to_tech.pdf
  161. In addition to over votes, residual votes include under votes where the voter fails to make a discernable selection.
  162. See, e.g., Banfield v. Cortes, 922 A.2d 36 (Pa. Commw. Ct. 2007) (holding that electors had standing to sue to compel the Secretary of the Commonwealth to decertify various electronic voting systems and to establish uniform testing criteria); Chavez v. Brewer, 222 Ariz. 309, 214 P.3d 397 (Ct. App. 2009) (holding that electors could sue the Secretary of State and county recorders for certifying voting machines that violated state constitution and failed to comply with statutes governing voting machine standards); Curling v. Raffensperger, 493 F. Supp. 3d 1264, 1335 (N.D. Ga. 2020) (granting a preliminary injunction requiring state to conduct expanded review of optical scan hand-marked ballots); Curling v. Raffensperger, 397 F. Supp. 3d 1334 (N.D. Ga. 2019) (denying preliminary injunction mandating election officials to use hand marked ballots in upcoming election and granting preliminary injunction mandating election officials to use hand marked ballots in future elections).
  163. Black v. McGuffage, 209 F. Supp. 889 (N.D. Ill. 2002) (denying most of the defendant’s motions to dismiss voting machinery challenges); see also Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006) (finding an Equal Protection violation in use of punch card and central processed optical scan ballots because of their higher residual vote rates), vacated (after the state abandoned the challenged voting equipment), 473 F.3d 692 (6th Cir. 2007).
  164. McGuffage, 209 F. Supp. at 901 (observing that unless election officials used the same voting equipment through all precincts, some voters would have a greater chance and others would have a lesser chance of their votes counting).
  165. Bush v. Gore, 531 U.S. 98 (2000).
  166. Id. (refusing to dismiss defendant’s motion to dismiss plaintiff’s substantive due process claim).
  167. See, e.g., Raj Karan Gambhir & Jack Karsten, Why Paper is Considered State-of-the-Art Voting Technology, BROOKINGS (Aug. 14, 2019) https://www.brookings.edu/blog/techtank/2019/08/14/why-paper-is-considered-state-of-the-art-voting-technology/.
  168. See, e.g., COLO. REV. STAT. ANN. § 1-5-802; FLA. STAT. ANN. § 101.56075; GA. CODE ANN. §21-2-300; IOWA CODE ANN. § 52.2; MICH. COMP. LAWS § 168.795; MISS. STAT. ANN. § 206.80; MONT. CODE ANN. § 13-17-103; N.H. REV. STAT. § 656:1-a; N.H. REV. STAT. § 656:41; N.M. STAT. ANN. § 1-9-7.1; OR. REV. STAT. § 246.560; R.I. GEN. LAWS § 17-19-3; S.D. CODIFIED LAWS § 12-17B-1; VT. STAT. ANN. tit. 17, § 2478, § 2481, § 2493; WASH. REV. CODE § 29A.12.085.
  169. See, e.g., ALASKA STAT. § 15.15.032 (c); ARIZ. REV. STAT. § 16-446; ARK. CODE ANN. § 7-5-301, § 7-5-532; § 7-1-101, § 7-5-504, § 7-5-532; WEST'S ANN. CAL. ELEC. CODE § 19270; CONN. GEN. STAT. ANN. § 9-242; D.C. CODE § 1-1001.09; HAW. REV. STAT. § 16-42; IND. CODE § 34-2409; 21-A; ME. STAT. tit. 14, § 812; MD. CODE, ELEC. LAW § 9-102; NEV. REV. STAT. § 293.2696, §293B.084, § 293B.103; N.J. STAT. ANN. 19:48-1; N.Y. ELECTION LAW § 7-202 (McKinney 2021); OHIO REV. CODE ANN. § 3506.10; UTAH CODE ANN. § 20A-5-302; W. VA. CODE § 3-4A-9; WISC. STAT. ANN. 5.91. See also Voting System Paper Trail Requirements, NAT’L CONF. OF STATE LEGISLATURES (June 27, 2019), https://www.ncsl.org/research/elections-and-campaigns/voting-system-paper-trail-requirements.aspx
  170. See Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011).
  171. Alabama, Indiana, Kentucky, Michigan, Nevada, Oklahoma, and South Carolina. See Straight Ticket Voting, NAT’L CONF. OF STATE LEGISLATURES (June 25, 2021), https://www.ncsl.org/research/elections-and-campaigns/straight-ticket-voting.aspx
  172. See S.B. 421, 2019-2020 Leg., Reg. Sess. (Pa. 2019); H.B. 70, 63rd Leg., Gen. Sess. (Utah 2020).
  173. Unite New Mexico v. Oliver, 438 P.3d 343 (N.M. 2019).
  174. See infra Chapter 7: Election Day for additional information on disasters which strike on Election Day.
  175. See Ed Anderson, Blanco seeking to put off election; Statewide ballot not feasible now, she says, TIMES-PICAYUNE (New Orleans), Jan. 25, 2006, at 5 (Hurricane Katrina in Louisiana); Jane Sutton, Primary election delayed in devastated Dade, UNITED PRESS INTERNATIONAL, Aug. 29, 1992 (Hurricane Andrew in Florida); Bill Moss, Election is still on, ST. PETERSBURG TIMES (Florida), Aug. 27, 1992, at 4B (Hurricane Andrew in Mississippi and Hurricane Hugo in North Carolina. See also John C. Van Gieson, Dade Sues to Delay Tuesday’s Election; Plaintiffs Say Thousands Wouldn’t be Able to Vote—Judge Hears Arguments, ORLANDO SENTINEL (Florida), Aug. 29, 1992 at A6 (discussing disagreements between the Secretary of State who wanted to hold elections as scheduled and county elections supervisor who wanted them postponed one week).
  176. VA. ELEC. CODE § 24.2-603.1 (2021).
  177. Id.
  178. Id.; see also Chapter 7: Election Day for additional information. See also Press Release, US States News, Gov. Barbour Postpones Special Election, Sept. 3, 2006 (governor postponed elections post- Katrina).
  179. Frank Donze & Robert Scott, Officials May Stay on Past Normal 4 Years; Feb. 4 Election is Latest Storm Victim, TIMES-PICAYUNE (New Orleans), Dec. 3, 2005, at National 1 (noting city law extended the terms of the current officeholders).
  180. Despite the threat of cyber-attacks, most state emergency statutes don’t directly address the possibility of cyber-attacks. See Election Emergencies, NAT’L CONF.OF STATE LEGISLATURES (Sept. 9, 2020), https://www.ncsl.org/research/elections-and-campaigns/election-emergencies.aspx. See also Amanda Zoch, Don’t Sleep on Election Cybersecurity (Cyber Criminals Won’t), NAT’L CONF.OF STATE LEGISLATURES (Apr. 6, 2021), https://www.ncsl.org/research/elections-and-campaigns/don-t-sleep-on-election-cybersecurity-cyber-criminals-won-t-magazine2021.aspx.
  181. Michael T. Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 EMORY L.J. 545, 574 (2018) (noting that 2016’s Hurricane Matthew prevented an estimated “’hundred thousand aspiring eligible Florida voters’ from registering to vote in the 2016 election”).
  182. Id. (noting that even six months after Katrina, 202 of 442 voting precincts in New Orleans remained destroyed and numerous election commissioners “had not reported in with the clerk.”).
  183. Id. at 553 (noting that police, who were required to be at polling places, were called away to aid the Ground Zero evacuation after the 2001 September 11th terrorist attack which occurred roughly three hours after the polls opened for the state’s primary elections).
  184. Id. (noting that after the 2001 September 11th terrorist attack, public transportation was interrupted and voters and inspection workers were not able to get to the polls).
  185. Even years after Hurricane Katrina struck, New Orleans was missing between 27% and 48% of its voting population. Maya Roy, The State of Democracy After Disaster: How to Maintain the Right to Vote for Displaced Citizens, 17 S. CAL. INTERDISC. L.J. 203, 205 (2007).
  186. Morley supra note 181 at 557 (noting that New York City’s campaign finance board candidates by precluded publicly-funded candidates from spending any remaining funds in the weeks leading up to the new election date, except to recreate their election day operations).

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