States to watch on Election Day, and why

Now is the time of the election season where pundits begin producing their “what to watch” lists for Election Day.  Think of the following as the mishigas list for 2010, paying special attention to voting technology and other election administration issues that are bound to arise.

As with any American election, the rule is Be prepared for the unexpected. The presence of numerous third party candidates, the reliance on pre-election polls on models of who the likely voters are, plus efforts to turn out core voters via absentee and early voting means that we could have a few surprises once the votes are counted.  If the elections of 2004 and 2008 are any indication, some people regard pre-election and exit polls as more reliable than actual voting returns.  In any race that violates current expectations, expect for charges of voter fraud to be loud, and for election lawyers to file suits first and ask questions later.  Where might those places be?  Read on.

1.  Close races with lots of electronic voting machines. The presence of direct recording electronic (DRE) voting machines, especially those without voter-verifiable paper audit trails, continues to be controversial.  Assume that any close election in a state with a preponderance of DREs will not only draw especially close scrutiny, but will also be ripe for the type of law suit in the Florida 13th congressional district in 2006 that sought to shake loose voting machine software for scrutiny by the candidates.  Which states might these be?  If we combine current prognostication about Senate elections with data about the prevalence of DRE use in the states, the following states with close Senate races would appear to be worth watching:  Nevada (100% DRE), Pennsylvania (81%), West Virginia (57%), and Colorado (30%).  California has one large county with DREs, but there are other reasons to watch the Golden State (see below).  Ohio has a close gubernatorial election, and half the Buckeye State uses DREs.

2.  Close states with lots of UOCAVA voters. Using statistics from the EAC, the following states had more than 1% of its ballots cast by overseas and military voters in 2008:  Alaska (3.7%), Texas (2.9%), Missouri (2.8%), Washington (1.5%), and Florida (1.1%).  Alaska and Washington already have reputations as states that take a long time to count their ballots, and waiting for overseas voters won’t speed things up.  Florida is, well, Florida.

3.  Close state with lots of provisional ballots. Also using statistics from the EAC, the following states had more than 3% of voters who went to the polls cast provisional ballots in 2008:  Alaska (6%), California (5%), DC (5%), Arizona (5%), Utah (4%), and Ohio (3%).  Changes to election laws since 2008 may change the use of provisional ballots in 2010, but again, Alaska shows up as a particularly vulnerable state to jostling over these ballots, as does Ohio (for the gubernatorial election).

4.  Special cases:

– The hidden story in New York.  The prominent statewide races in New York are unlikely to  be close, although some House elections are highly competitive.  The issue with New York is the first statewide general election use of optical scanning machines.  The city of New York has chosen to implement optical scanning in such a way that almost guarantees elevated over-vote rates.  Don’t expect any elections results to ride on this, but expect it to generate continuing controversy for an election board that needs stability.

– The Alaska Senate race might be contested, depending on what happens with the potential controversy over write-in candidate lists and the counting of write-in ballots.  This, combined with lots of provisional ballots, means Alaska is one to watch.

– In California, errors in ballot language in Fresno County might lead to questions about the outcome of Proposition 23.

– Keep an eye on states where there will be many ballots cast by mail.  Absentee ballots are not only more likely to be misplaced somewhere between the voting and the counting, but they are also prone to more mistakes by voters and vote-counters.  In a recount, the leakiness of the absentee/mail-in ballot channel will come under scrutiny.  In 2008, 13 states had more than 20% of their ballots cast by mail, and all signs are the number will be higher in 2010.  So many states now have a significant number of mail-in ballots that it doesn’t pay to list them all.  Just be assured that if an election is close, ballots cast by mail will be the magnet for campaigns looking for more votes.

5.  Bottom line: here are the states we’ll certainly be writing about for weeks, if not months —  Alaska, Florida, California, Colorado, Nevada, Ohio, Pennsylvania, Washington, and West Virginia, with bonus points for New York City.  That’s a lot of territory to cover.

And speaking of a lot of territory, on Election Day, Thad will be in DC, Charles will be in Ohio, Lonna will be in New Mexico, and Mike will be in southern California, checking out the election scene tomorrow.  Let us know if you stumble on anything interesting.