Primary Problem? Election Lawsuits and Voting Laws

“First rule of politics, the ballots don’t make the results, the counters do. Keep counting.”

    — “Boss” Tweed

This has likely been the most controversial and hotly-debated primary season a presidential election has seen in a long time. The arguments have been vitriolic, the debates have been personal and the protests have occasionally been violent. But something else has been far more common in this election cycle, perhaps more than any other except for the 2000 election: lawsuits. To be candid, lawsuits during elections aren’t new. What makes these different, however, is the subject matter and the validity of each one.

In Ohio, Massachusetts, Arizona and New York, lawsuits have been filed for various reasons all relating to voting irregularities and suppression. In a democratic country, it would seem unfair and odd that someone may be denied their right to vote, or perhaps be pressured into swaying their vote, but that is what these lawsuits are contending. Laws regarding elections are confusing to say the least, and they of course can vary greatly by each state, which is why it usually takes an entire team of lawyers to decipher them.

What Are Election Laws? How do they differ from voting laws?

Contrary to what many people may believe, the Federal Election Commission (FEC) only handles the finance portion of elections. This alone is incredibly complicated and there are a lot of laws governing how a candidate can make money, ask for money and from whom they can receive this money. From everything we’ve been able to find, the Justice Department handles cases of election or voting fraud.

There is a big difference between voter fraud and election fraud. Every lawsuit mentioned in this article will have to do with election fraud. Voter fraud usually involves someone trying to vote twice or at all if not registered, whereas election fraud generally deals with the interference of the process of an election, usually by a candidate or those overseeing the election. This is an important distinction of terminology, and one that illustrates the baseless claims of fraud which were used to pass voter ID laws. This will be discussed later.

We’ll get into the details of each lawsuit, but it’s important to have a general understanding of how primaries and caucuses work in order to comprehend the meaning behind them. In a primary, it depends on whether it is open, closed or mixed.

• Open Primary: This means that anyone, no matter their registered political affiliation, can vote for whichever candidate they please. This can lead to “party crashing” and “crossover” voting, in which members of one party will vote for the candidate of the other. Depending on the candidate’s perspective, this could either be a blessing or a curse.
• Closed Primary: This means that you have to be registered with a party to vote for that candidate. If you’re a registered Republican but want to vote for the Democrat, you won’t be able to in one of these states unless you change your registration in time.
• Mixed Primary: Unaffiliated voters (i.e., if you’re a registered Independent) can vote for either candidate, but affiliated voters can only vote for that party’s candidate.

These similar rules govern caucuses as well. As of now, less than half the states allow 17-year olds to vote in primaries as long as they’ll be 18 by the general election. Registration deadlines for primaries and the general election alike have also shown to be a big deal because of how much they vary from state to state. For example, in Iowa, you could wait until the day of the caucus to register to vote. However, in New York, the registration deadline was three weeks before the primary. This was not the cause for that state’s lawsuit though.

Why Are These States Being Sued?

Each state is being sued for a different reason, but they all closely relate to voting rights (or lack thereof). While states as a whole aren’t the only ones at the forefront of a lawsuit, the majority of those filed have been against the state. It’s difficult to determine what, if any, punishment there will be, but these lawsuits each contend that election fraud and voter suppression were rampant.

In Ohio, Bernie Sanders sued to give 17-year olds the right to vote if they’re going to be 18 by the general election. As previously noted, half of the states do not allow 17-year olds to vote, but the contention here was that the Ohio Secretary of State arbitrarily changed the law just before the primary. The suit took only four days to come to a conclusion, and ruled in favor of Sanders just before the state held its primary. It did not change any results for Sanders, as he still lost by about 165,000 votes, but the principle of allowing those who will be 18 before the general election to vote is good democracy.

In Massachusetts, a different sort of lawsuit was brought for something that rarely comes into play. Bill Clinton, armed with charisma and a bullhorn, came within 150 feet of a polling place in New Bedford, Massachusetts. The problem is, this is expressly forbidden by Massachusetts state law, where “nothing intended to influence the action of a voter” is allowed within that distance. While this is clearly a violation of state law to many (some claim they were blocked from entering the building) others doubt whether he broke the law at all. The penalty for such a grievance is, and we’re not kidding here, “no more than twenty dollars.” So, even if found guilty of breaking state election law, Clinton would probably make twice the penalty back in the time it takes him to write out the check.

In Arizona, a lawsuit on a far grander scale was filed on behalf of the state’s voters. Allegations insinuating intentional voter suppression were brought forth. People reported having to wait as long as five hours just to vote; in Phoenix, they only had one polling place for every 108,000 people; in Genesee County, they reported a shortage of ballots. When you consider that this year has been the most hotly contested primary season in recent election memory, it seems at the very least strange that Arizona would have so many fewer polling places than they did in 2012. A judge is hearing testimony in the case, and one poll worker testified that incorrect ballots were given to democratic voters.

The most recent lawsuit to be filed was in New York, and it involves the widespread reporting of voter disenfranchisement. It stipulates that 125,000 registered Democrats had suddenly been dropped from voting eligibility since November of 2015. On top of that, anyone who wanted to change the party with whom they are registered must have done so in October, six months before the primary. This is very important, because New York is a closed primary. How can anyone be expected to know who they’re voting for six months before the primary?

But the main reason for the lawsuit was the alleged “purging” of voters. Forged signatures, changed or disappearing registrations and a difficult voting process have all been cited by tens of thousands of voters in the city of New York. Many are calling for a recount of the votes, but many more would rather have a re-vote to ensure fairness. Most recently, two Board of Elections officials have been suspended due to allegations of the purge of voters. This shows that it wasn’t an isolated or minuscule problem; if more than 100,000 people were not able to vote at all for sketchy reasons, that is conspicuous at worst and a problem that needs fixing at the very least.

Why is the Voting Process So Difficult?

It shouldn’t be that hard to vote, and it shouldn’t be that hard for said votes to be counted. But clearly this is just not the case. Why? Why have there been so many problems this year when it comes to voting? One reason could be that we are now seeing the effects of Shelby County v. Holder, which broke apart a crucial section of the Voting Rights Act, and gave states total autonomy when it comes to voting laws.

There are some out there who would, on the surface, agree with letting states determine their own laws when it comes to voting. But given a chance to examine the fine print, we can see how problematic this is. For starters, the disparity in voting regulations is very confusing, and creates unnecessary difficulty for voters who are just trying to figure out what they need to do to get registered. That is just the tip of the iceberg, however. Since Section Five of the Voting Rights Act was undone by the Supreme Court ruling, new voter ID laws have been put in place in a few states that are abhorrently racist, and have clear motives of denying lower class people the ability to vote.

This is particularly evident in North Carolina, which passed voter ID legislation that stipulated early voting be cut in half, same day registration be discontinued and the use of student ID to vote not be allowed. Other states have passed similar laws, but it should be noted that voter fraud is about as rare as being struck by lightning. Voter suppression has been about the only thing these ID laws have accomplished.

It should be easy for an eligible voter in this country to exercise that right. It should also be easy for those votes to be counted accurately. A solution that works is unlikely to be found anytime soon, and no one is insinuating that there shouldn’t be some rules when it comes to voting. But it’s clear that these allegations of election fraud are not just coincidence. Federal regulations that make voting in every state uniform and hold every citizen to the same requirements could be the answer.

• Featured Image By Ohio State University Moritz College of Law