The Thicket at State Legislatures

Elections and Emergencies: Being Prepared

By Wendy Underhill

Thanks to Hurricane Sandy, election experts are considering how the nation can prepare for any number of natural disasters or emergencies. Check out the perspectives at Election Updates, The Election Academy, and ElectionLaw@Moritz.

Fortunately, 2012 is not the first time anyone has thought about this. Contingency plans have been a regular part of elections shop talk since September 11, 2001, when the attacks brought to the nation's attention the need for backup plans for all kinds of key services, including elections. Four years later, Hurricane Katrina reminded us of the same.

Many states have statutes that deal directly with how elections are to be handled in the face of emergencies. Louisiana offers a particularly detailed statutory plan.

Even with good statutes, state and local election administrators need more resources to create good plans. Here are just three:

• The U.S. Election Assistance Commission's chapter on contingency planning in its guidelines for election management.
• The Congressional Research Service's 2004 report, Postponement and Rescheduling of Elections to Federal Office.
• Report on Election-Related Contingency Planning, a 2007 report from the Wisconsin State Elections Board. It takes a national perspective, and gives a nice summation of at least a dozen states' plans.

And here is one more resource: The Elections Center. Doug Lewis, the executive director, sent an email out last night to the nation's election officials. In it he says:  

To all of you who are our colleagues, we are thinking of you, sharing your heartbreak and hoping that you and your family will recover in the near future.

While it is difficult to share resources during the heavy requirements of a Presidential election, we will do what we can to assist with your needs.  As you are able to get back into your professional duties, if you discover that you need help with the necessities of election related items, let us know.

I can't promise that you will get all that you need, but I can promise that election administrators throughout America will do what they can to be sure your voters are well served whenever you determine your priorities and your needs.

Now that is an excellent offer.

State Legislative Election Preview 2012: An Upside Down Solid South?

Note: This is one of four stories previewing the 2012 election in each of the nation's major regions. The complete series:

2012 State Legislative Election Preview: In the West, it’s Even-Steven on Election Eve
2012 State Legislative Election Preview: In the Northeast, Democrats go on Offense in Their Strongest Region
2012 State Legislative Election Preview: Democrats Trying to Claw Back in the Midwest
State Legislative Election Preview 2012: An Upside Down Solid South?

For a national perspective, see "A Wave or a Ripple?" and check StateVote regularly during election week. 

By Karl Kurtz

As a result of next week's election, it's (almost) conceivable that the "solid South," which historically refers to the Democratic party's unbroken hegemony over all southern state political offices from the 1880s through 1990, could return in the form of Republican control of all state legislatures in the region. What would it take to turn this pre-election map of southern state legislative control solidly red after the election?

• The only state that has had unbroken control of both chambers by Democrats since Reconstruction would have to switch to Republican control.
• We would have to recognize one tied southern legislative chamber that does not have an election this year as being under effective Republican control.
• Gov. Mitt Romney would have to have long coattails in two border states.
• We would have to move one state out of the region into the East.

OK, that last one involves a bit of trickery, but it's not legerdemain without justification. The Census Bureau, whose regional breakdowns we are using for this analysis, counts solidly Democratic Maryland as a southern state, but the Old Line State participates in the Council of State Government's Eastern Legislative Conference, not the Southern Legislative Conference. So a little redefinition of the region would erase that fingertip of blue in the northeast portion of the region. Maryland is one of five states in the region that has no election this year.

What are the other changes that would have to occur? First and foremost, Republicans would have to win control of the Arkansas House and Senate, which Democrats have controlled continuously since 1874. The Democrats' margin in the House is 53-46 (one vacancy) and in the Senate 20-15, so it would take only a small swing in seats to turn the Natural State blue. The prospect of this switch in party control has attracted a lot of outside political money, especially on the conservative side, but the redistricting map favors the Democrats. A month ago, veteran Arkansas reporter Max Brantley wrote:

Predictions? Got none. Going to be close. I've had consultants I respect on both sides insist their party will wind up with control. Republicans are buttressed at the outset by evidence that Arkansas is joining Dixie's red tide, enhanced by the proven anti-black-man vote here. It gives Republicans a generic edge in polling, which they now believe is solidly entrenched down the ballot.

The second condition—that we recognize that Republicans control the tied Virginia Senate through the casting vote of the Republican lieutenant governor—is easy to meet. We list the Senate as tied—and therefore the legislature as under split control—merely as a formality.

Third, the two border state legislatures that would require a huge Republican sweep to switch to GOP control are the Kentucky House and the West Virginia House and Senate. In Kentucky, Republicans would have to pick up 10 seats to gain control. Republicans are cautious but hopeful, as reported in Bluegrass Politics:

Capitols After Dark: A Haunting Prospect

 

The Oregon Pioneer statue sits atop the Oregon State Capitol / The Associated Press

 

By Mark Wolf

Why should we be surprised that state capitols are haunted? Grand old buildings whose histories overflow with tales of heartbreak, passion, dastardly and sometimes deadly deeds would seem the perfect repository for those caught between worlds -- and we don't just mean undecided voters.

Footsteps in the hall, a shiny figure of a man in a 1970s-style leisure suit (now THAT is scary) and other purported paranomal activity is recounted in a new video produced by Oregon Legislative Media.    

Nebraska lore has it that an invisible man can be heard sobbing atop the State Capitol Building in Lincoln. No proof that the sobbing correlates with a Cornhuskers football loss.                                     

Louisiana's Old State Capitol has long been suspected of harboring a number of very active ghosts, including this report of a Ghostbusters-style investigation:

Many tests and machines were used during the visit of the paranormal team including a recorder that records what it hears. As they were all sitting in the dark kitchen  they started to hear words coming out of the recorder. Sylvest states “ As we were sitting around listening, we started to hear something or someone  apologizing saying sorry over and over. We also heard words and phrases like homicide and hospital, sickness and injuries. During the battle of the war when the North captured Baton Rouge, the basement of the Capitol was used as a hospital and a prison for soldiers.”  

If You Like Maps...and Elections?

By Tim Storey

This has to be one of the coolest maps I've seen in a long time. It plots the 2008 vote for president by election precinct. This amazing map tells the story of political divisions and voting patterns in the United States; patterns that will very likely play out again next week. Be sure to zoom in on your state and look for anomalies. (No data for Oregon, which I assume is because they use all mail-in voting.)

Click here: Stanford Map of 2008 Presidential Vote by Precinct. 

 

Turning the Tables: International Observers Watch American Elections

By Wendy Underhill

On November 6, polling places may be crowded with all kinds of people. The voters, of course, are at the heart of the operation. Then there are the election workers, mostly temporary employees hired to check voters in, distribute ballots and assist voters as needed. Technicians come in and out during the day, seeing to the health of the voting equipment. Poll watchers may be on hand, watching the action to ensure that proper policies are followed. The qualifications for partisan watchers (aka poll challengers), and what they may or may not do is spelled out in state law.

And, in a tiny portion of polling places, international election observers will be on hand. Fifty teams of two observers, hailing from Europe and Central Asia, will fan out to states willing to have them. These folks are all parliamentarians or electoral experts in their own right. They come under the auspices of the Organization for Security and Co-operation in Europe (OSCE), a 56-country international organization and the leading voice on election observation in the Northern Hemisphere.

"We are not coming to judge a result but to report about the process," says Joao Soares (MP, Portugal) who has been appointed to lead the observation mission. "The United States, and all of our 56 countries, agreed in 1990 to allow one another to observe their elections, and we look forward to seeing how the U.S. election system upholds that and other commitments to fair elections."

Will you be lucky enough to spot a rare international observer? Because they are so few and our nation is so huge, it is unlikely. There's another reason, too: only a select few states explicitly make mention of international election observers in statute: Missouri, New Mexico, North Dakota and South Dakota, plus the District of Columbia. Other states may permit international observers on a jurisdiction-by-jurisdiction basis.

For more information on election observer teams—both to the U. S. and to many, many other countries—see NCSL's 7-minute video with Neil Simon, communications director for the OSCE's Parliamentary Assembly.

Related post: "International Observers not Welcome Everywhere"

Is Online Voter Registration Secure?

By Wendy Underhill

California Secretary of State Deb Bowen compares a paper voter registration form to the online version. Photo by Rich Pedroncelli, AP, in USA Today.

The number of states using online voter registration is on the rise. Here's the evidence: 

• In 2001, online voter registration hadn't been invented yet.
• In 2002, Arizona became the first state to use online voter registration.
• In 2008, Washington became the second.
• In 2009, Colorado, Indiana, Kansas, Louisiana, Oregon and Utah either enabled or implemented online registration.
• In 2012, California, Nevada and South Carolina got their systems fully up and running, and Connecticut, Delaware and Hawaii passed enabling legislation. (Experts argue about whether New York has online voter registration; its system is paperless from the voters' perspective, but paper is exchanged between the Department of Motor Vehicles and the State Board of Elections.)

How does online voter registration work? Citizens fill in a web-based form to apply for voter registration. The system searches state records--mostly drivers license records--to confirm the voter's identity and applies an existing electronic signature to the voter registration application. If all checks out, then the application is approved, and the voter is registered. If not, the application is kicked out for humans to deal with.

Online voter registration has been a big hit with legislators and election administrators because it reduces costs and increases accuracy. NCSL receives many questions about it, and therefore maintains an Online Voter Registration webpage.

As of last week, there's a new wrinkle on this topic: security vulnerabilities in the online voter registration systems in Maryland and Washington. In those two states it would be possible for a hacker to tamper with someone's registration and thus cause a voter to be incorrectly registered on Election Day. Does this means that online voter registration opens up another channel for elections skullduggery?

Spike in the Use of the Popular Referendum

By Jennie Drage Bowser

There are 12 popular referenda on the ballot in the November 6 election, three times the total of four we saw in 2010, and nearly three times the 2000-2010 average of 4.5. So what exactly is the popular referendum, and why are there so many of them this year? Learn the answers to these questions and more on Prop 50.

Test Your Knowledge of the Finer Points of Parliamentary Procedure

Note: The Mason's Manual Commission, the authors of the revised versions of the parliamentary manual designed for state legislatures, Mason's Manual of Legislative Procedure, have recently had fun conducting college bowl style quizzes for state legislative parliamentarians on some of the more arcane but interesting provisions of the manual. The Thicket asked the Commission and its chair, Alfred Speer, clerk of the Louisiana House of Representatives, to pick out a few of the more intriguing questions to test our readers.

By the Mason's Manual Commission

The first question in our Mason's Manual of Legislative Procedure quiz is a free one—we'll give you the answer without having to skip to the bottom of the page.

Why is it called Mason's Manual?

Paul Mason was assistant secretary and parliamentarian of the California Senate in the 1930s, serving under the legendary Joe Beek, secretary of the Senate for 47 years and founder of the American Society of Legislative Clerks and Secretaries. Mason wrote Mason's Manual of Legislative Procedure in 1935 and published numerous subsequent revised editions. Just before his death in 1985, Mason assigned the copyright for the manual, now used in 74 of the 99 legislative chambers, to NCSL. NCSL published revised editions in 1989, 2000 and 2010 under the direction of the Mason's Manual Commission.

Paul Mason sits high on a stool at right underneath the President Pro Tem of the California Senate. Joe Beek stands at the clerk's podium at left. Photo courtesy of the Office of the Chief Clerk, California State Assembly.

Score yourself on the remaining nine questions in this quiz.

1. True or false: A majority of a body has the power to establish a rule that cannot be modified or repealed by a majority vote of the body.
2. True or false: A motion to suspend the rules may be made only at a time when no question is pending.
3. True or false: The vote sustaining the ruling of the presiding officer may be reconsidered.
4. Yes or no: Is it necessary for a substitute bill to be read a first and second time before consideration on third reading and final passage?
5. Yes or no: Do members have to vote to be part of a quorum?
6. True or false: The authority of a house to pass upon a member's qualifications and election may be exercised throughout a term.
7. True or False: A witness' speech to a legislative committee is privileged, insulating the witness from legal action.
8. True or false: A presiding officer can refuse to sign legislation that has been duly passed and thereby kill the legislation.
9. True or False: A motion or amendment to strike the enacting clause from a bill is of the same character as all other amendments to a bill.

Find the answers to the questions below the jump.

Ballot Design Makes a Difference

By Wendy Underhill

Design is not just what it looks like and feels like. Design is how it works. –Steve Jobs

Dean Logan, head of elections for Los Angeles County, shows off four pocket guides to ballot design best practices.

While those words were not intended specifically for the ears of state legislators, they might as well have been—at least when it comes to ballot design. 

Ballot design made news in Florida last week, when it was discovered that 60,000 ballots had been misprinted. The votes recorded on 27,000 absentee ballots in Palm Beach are now being reviewed and hand-transferred onto corrected ballots if necessary.

The Palm Beach difficulty is the result of an error. But even without errors, ballot design can play a surprisingly significant role in elections. The fonts, the print size, the positioning of races on a page, and the use of color and icons all relate to the overall ease-of-use for the voter. If instructions are unclear, the layout is crowded, or the text is hard to read, voters get frustrated and their votes may get lost.

Who's responsible for ballot design? Local election officials do the actual layout of ballots, but they do it under specifications set in state law. Frequently statutes dictate design details, such as what size type to use, whether to use all capital letters (a big no-no for readability), and if party logos are to be included. All of these specifications can be a problem.

The good news is that if design is a statutory problem, there is a statutory solution. "We want legislators to build in flexibility, not rigidity," says Dana Chisnell, an independent researcher who focuses on civic design. That's because expectations around design change over time—and voting technology changes mandate design changes as well. Chisnell advocates that legislatures drop the specifics and instead require usability testing for ballots (and possibly other elections materials). "Usability testing" simply means trying out a draft ballot on potential voters. It can be as simple as asking a handful of willing volunteers to vote a mocked-up ballot.

The Courts Weigh in on Election Laws

By Wendy Underhill

The U.S. Constitution (Art. 1, Sec. 4) says that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof…" And yet it hardly seems that way these days. Sure, legislatures have been busy fine-tuning election laws this year; 2,357 bills have been introduced since January 1, 2012. But the courts have been just as busy reviewing election-related legislation this year—so much so that it begins to feel as though it is judges, rather than state legislators, that are making election decisions.

Indeed, state courts, federal courts and the U.S. Supreme Court have all been working overtime. Just this week, the Supreme Court said it would not get involved in a case involving early voting in Ohio, letting stand a lower court's ruling that early voting must be offered during the weekend before Election Day. Then there's the case from Arizona, dealing with whether voters must prove citizenship at the time of registration. And of course, litigation surrounding voter ID laws just keeps on coming.

NCSL's October issue of The Canvass looked at "Elections and the Courts: A Busy Year;" it's a quick read on many of the hot cases, and provides lots of resources so election geeks can keep up with courtside- action. One key point: legal challenges cause uncertainty for administrators and voters. Its corollary: changes in election law and procedures in the run-up to elections may invite uncertainty and challenge, and it is never good when the words "uncertainty" and "elections" are used in the same sentence.

What to do about that? "Look at the possibility of working with the courts to put a moratorium on election litigation 90 days or so before an election," suggests Doug Lewis, executive director of The Election Center.

Or, divert election cases to a "structurally nonpartisan three-member 'amicus court'—one Democrat, one Republican, and the third chosen by the first two—that would issue opinions in high-profile election cases in advance of the Supreme Court (or whatever court actually had the authority to adjudicate the particular case)." This idea comes from Ned Foley, from the Ohio State University Moritz College of Law.

These ideas will take time to season. And while they do, let's all hope that nothing happens in the November 6 presidential election that adds to the already-full plate for state or federal courts.