In this month's issue, read about lawmakers who are authors, key cases affecting states before the U.S. Supreme Court, the state of civics knowledge, website ideas to steal and more.
Issue 44 | December 2013
Compilation of election returns and validation of the outcome that forms the basis of the official results by a political subdivision.
It’s axiomatic: the older you are, the more likely you are to vote.
Approximately 70 percent of people over 65 vote in presidential elections, compared to 45 percent of the voting age population overall. (Less than 40 percent of 18-to-24-year-olds voted in 2012). However, this truism breaks down as voters reach 75 and above, according to the U.S. Census Bureau. At that point, voting drops off. SEE CENSUS BUREAU RESOURCES
Why? As we age:
Sometimes, “all of the above” can apply.
There’s reason to believe the decline is particularly steep for people living in long-term care facilities (LTC), such as nursing homes and assisted living facilities. Often, access to a ballot is a problem, but the issues relating to voting for LTC residents are complicated. READ PRO PUBLICA STORY
To simplify matters, the Canvass will address these questions:
(Note: LTC residents are not just the frail elderly. Veterans with serious injuries and others with disabilities can face the same physical, logistical and cognitive barriers to voting. See article below for more on veterans and voting.)
Whether suffering from traumatic brain injury, as is the case for many veterans in residential care, or from age-related forms of cognitive decline, many LTC residents are grappling with diminishing mental capacities. Does that mean these people can’t vote?
Not necessarily. Most state constitutions require mental competency for a person to be an eligible voter, but mental competency decisions must be made in the context of voting, not based on a blanket ruling on competence. “The fact that people can’t balance their checkbooks is not an indicator of their ability to make a value judgment” for voting, says Nina Kohn, a Syracuse University law professor who specializes in elder law. READ GUIDE TO VOTING RIGHTS OF THOSE WITH DISABILITIES
Who decides on competency? Judges. Not family and not long-term care facility staff.
Every state permits voters who can’t get to the polls, including residents of LTC facilities, to “vote absentee.” And yet, people who need help with daily tasks are likely to need help getting a ballot, too.
This year, Oklahoma enacted SB 276, a bill sponsored by Representative Joe Dorman (D) that makes it easier for a person in a LTC facility to get an absentee ballot. “We had an individual who delivered an absentee ballot request to the county election board on behalf of a nursing home resident,” but the law didn’t allow for hand-delivery of a request, Dorman said. “That wasn’t common sense, so we changed it so any individual who is incapacitated could have an agent deliver a request. It won’t be a lot of cases, but for those who are in that position, it matters a great deal.” READ SB 276
Help doesn’t begin or end with obtaining a ballot. Voters also may need help updating voter registration information, keeping track of key election dates and even remembering how to complete a ballot. Voting isn’t a daily task, after all.
The options on who can help are limited and vary according to state law, but often include family members; agents appointed by the voter; staff at the facilities or staff or volunteers from the local election office.
A recent study, "Voting by Senior Citizens in Long Term Care Facilities," looked at voting in 246 Virginia nursing homes and assisted living facilities. Not surprisingly, facilities that offered the most support for voter registration and casting a ballot had the most residents voting. Less support meant less voting. Institutions that provide more voting assistance are to be commended. Read the Senior Citizens study
And yet relying on facility staff means that “voting access becomes idiosyncratic based on the facility and its practices,” said Kohn. “No one wants to empower facilities to decide who in your community votes, and that’s what we’re doing in this country.”
“My belief is that states should be providing polling in the place of residence for people in institutions,” Kohn said. This goes by the name of “mobile polling” or “supervised voting. ” With this plan, bipartisan teams of election officials go to LTC facilities and offer voter registration and voting (with assistance as needed). It has proven popular with residents, staff and local election officials. Read about mobile polling
In Oregon, these teams have used tablet computers to facilitate marking ballots because it requires less dexterity to touch and swipe a screen than to write with a pen. Read about Oregon's Tablet test
How do local jurisdictions decide when to provide in-facility mobile polling? State law plays a role. For instance, in South Dakota, the law states “If the county auditor might reasonably expect five or more asentee applications, he or she will provide for supervised voting at the facility.” Read the south dakota law
“The wrong way to do it is to base it on the number of requests for ballots and that’s because there are barriers to even making that request,” said Kohn. “Do it on the number of registered voters.”
Voting for people in LTC facilities “is an access and integrity question,” said Rebecca Green, director of the Election Law Program at William and Mary Law School. “Absentee voting, which by definition takes place when no election officials are present, is a real focus of concern. Processes should be put in place to ensure that nefarious actors or people who aren’t helping in the ways they should are prevented from distorting or disrupting eligible LTC residents' ability to cast a valid vote.”
When does “helping” become “voting on behalf of …?” “Reports of residents pressured by partisan poll workers, absentee ballots lost or incorrectly marked, or votes cast by seniors too cognitively impaired to have made an independent choice are common,” according to the “Voting by Senior Citizens” study.
In Wisconsin, Senator Glenn Grothman (R) introduced SB 297 in September 2013 specifically to forestall nursing home fraud. The bill would require special voting deputies (bipartisan teams) to not just go to nursing facilities but also to other residential facilities, and provide five days notice. Read SB 297
Mobile polling sounds good, but “without bipartisan teams of volunteers, the program is not going to work,” said Neal Erickson, deputy secretary of State for Elections in Nebraska. The lack of sufficient paid staff to visit facilities during election season makes mobile voting impractical on a uniform basis. (In Nebraska most LTC residents vote by mail.)
Erickson reports that in the past, the social director for a nursing home would bring in a set of absentee ballot applications, and would receive a stack of blank ballots. “I put a stop to that. We now mail ballots individually, and the mail has to be delivered unopened.” From receipt of an absentee ballot, it is “voter’s choice” on who assists with actually casting and returning the ballot.
First, lawmakers can use NCSL’s Voting in Long Term Care Facilities to see what the law dictates in their own state and then can consider other states’ policies to:
Helping LTC residents to vote isn’t just a mom-and-apple-pie nice thing to do. Because voting is a right, providing reasonable assistance is a duty. As our population ages, careful policymaking to protect voting rights throughout all life’s stages will become crucial to ensuring a voice in democracy to those who need the most help expressing it.
— Wendy Underhill
Does voting for veterans differ from voting for other stateside citizens?
Not for those who have returned to their normal civilian lives. But for the 50,000 servicemembers who have been wounded since 2001, voting can be different—and difficult, said Chip Levengood, of Operation BRAVO Foundation. It can even differ between disabled veterans and other disabled people. That’s because the “signature injury” for wounded warriors is traumatic brain injury (TBI), which affects cognitive functioning.
“When these men and women are injured and are still on active duty they have a tremendous support system from the Department of Defense,” said Levengood. “We expected that once a wounded warrior becomes a civilian again, they would continue to get a high level of support.” Not necessarily so.
When Operation BRAVO, which is committed to making voting easier for U.S. vets, heard there were unique voting difficulties for wounded warriors, it determined to investigate. The result is the 2012 report, "Making Voting More Accessible for Veterans with Disabilities." The report is based on data gathered from 48 out of 55 states, territories and the District of Columbia. The results showed that “no state does something specifically targeted toward voting for severely wounded warriors,” Levengood said.Read the Veterans Report
Special help is needed not just because the injuries are unique. Additionally, “many (wounded warriors) are undergoing medical treatment and rehabilitation in facilities away from their place of residence; thus they are separated from their families and support networks, and must vote absentee, following the same procedures as other civilians. To do this, they must navigate a complex and varied set of state requirements to request, receive, mark, and return their ballot,” the report found.
Levengood would like to see at least two proven avenues used more often: expanding mobile polling, where local election officials bring voting to rehabilitation and long term care residences, and fully harnessing the best of assistive technology and good design. For instance, he said voters with cognitive difficulties do better with an electronic screen instead of a cluttered paper ballot, with simple how-to instructions and with just one question or race per screen.
Richard “Dick” Smolka, a leading expert on elections and the founder of the bi-weekly newsletter Election Administration Reports, died Nov. 5 at his Mesa, Ariz., home. He was 81.
He taught at American University, served as an election observer in developing democracies, and was widely sought after for his analyses of races that ranged from the 2000 U.S. presidential election to local races in Washington.
“Dick was such an important part of modernizing the world of elections,” John Willis, current editor of Election Administration Reports, said.
Smolka, who guided Election Administration Reports as its editor for more than four decades, was careful to ensure that his life’s work through the newsletter would endure, Willis said, adding that the publication is strong and will continue on with its work.
A memorial service to celebrate his life will be held on Monday, Dec. 30 at Holy Cross Catholic Church in Mesa, Ariz. In lieu of flowers, contributions can be made in Richard Smolka’s name to the Annual Fund at St. Ignatius High School, 1911 W. 30th St., Cleveland, Ohio 44113. Contribute to the fund
— Michael D. Hernandez
Alabama Senator Bryan Taylor understands the importance of public service. Before his current role as chair of Alabama’s Senate Committee on Constitution, Campaign Finance, Ethics and Elections, Taylor served in the Army and was deployed during the Iraq War. The small business owner and practicing attorney continues to serve as a major in the Alabama National Guard. The Canvass interviewed Senator Taylor on Dec. 16.
For more with Senator Bryan Taylor, read the full interview
Election season still has not faded in Virginia where the race for attorney general has sparked a statewide recount. This month, Linda Lindberg, the general registrar for Arlington County, and her staff have unsealed hundreds of voting machines and re-tallied results for her community of 218,000 just outside of Washington. The Canvass spoke with Lindberg on Dec. 6.
For more with Linda Lindberg, read the full interview
One Big Number: 7
That’s the number of states participating in the Electronic Registration Information Center (ERIC), which aims to improve voter registration rolls by enhancing access to registration and by improving the accuracy of voter rolls through regular list maintenance. A new report about ERIC shows that participating states had an increase in new voter registration rates and a drop in the number of people reporting registration problems. Visit the Electronic Registration Information Center website
Colorado, Delaware, Maryland, Nevada, Utah, Virginia and Washington are part of the project that is facilitated by The Pew Charitable Trusts. Key findings of the report include that participating states showed a net improvement in registration of 1.23 percent over states not participating in the project, and a net increase in voter turnout of 2.36 percent over non-participant states.
NCSL is pleased to welcome Michael Hernandez to our elections team. He comes to us directly from the Texas House Research Organization. Equally exciting, he’s a former newspaperman from the El Paso Times. Between his legislative and journalism skills, we’re expecting good things as Michael takes over the lead role in producing The Canvass. You can callhim at 303-856-1474 or send him an email at Michael.Hernandez@ncsl.org.
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