One could be forgiven for being confused about where things stand with voter ID laws in this fall’s midterm elections. A slew of federal-court orders, some of them still unresolved, have altered voting practices and procedures in a number of states, just weeks before voters go to the polls. Already, election officials and candidates have vowed to make a special effort to educate voters about what exactly awaits them on November 4. But there is a larger concern that has received much less attention: whether state election authorities can prevent confusion among poll workers themselves—the people who have the de-facto last word in determining whether you are eligible to vote.
Consider the conflicting rulings that have been issued in the last few days alone. On Monday, a federal appeals court reversed a decision by a district court and put Wisconsin’s stringent voter-ID requirement back into effect—a ruling that would require voters to show state-approved identification when they vote in November. But on Thursday, the Supreme Court put the Wisconsin law on hold again. Meanwhile, in Texas, it remains unclear whether a law requiring photo identification will apply, following a decision by a federal judge, also on Thursday, that is now being appealed by the Texas state attorney general.
Nor are these isolated cases. In the past two weeks, the Supreme Court has overturned lower court decisions effecting voting practices in Ohio and North Carolina. In late September, a federal court in Alaska required state election officials to provide bilingual voting materials to Native-American voters. The Kansas Supreme Court, also in late September, ordered the Kansas Secretary of State to remove the Democratic nominee for Senate from the ballot. Litigants in Arkansas await decisions on the state’s contested voter-ID laws.
However these laws play out in court, most crucial will be the rules that poll workers themselves are prepared to apply on election day. Past elections have shown that poll workers can become especially confused by controversial criteria such as whether a voter must present identification. All too often, poorly-trained poll workers don’t follow their state’s voter-ID rules, demanding identification when none is required, failing to request an identification when the law requires them to do so, accepting an impermissible form of identification, or rejecting a state-approved form of identification. These issues become all the more concerning when there are last minute changes to the law. In Wisconsin, for example, if the Supreme Court had not stayed this week’s ruling, the voting rules on election day would have been different than those in effect in the August primary. In fact, there would have been two different sets of rules for Wisconsin ballots next month. As Justice Samuel Alito conceded in his dissent to the Court’s order on the Wisconsin law, state election officials had already mailed absentee ballots without asking for proof of photo identification, as the new law required.
As a former federal election observer for the Justice Department, I have seen the extent to which the ability to vote often comes down to the discretion of the poll worker or workers at the polling place in question. For five years, I travelled across the country, monitoring polling places on election day. I talked to voters, to poll workers, to election supervisors. Most voters feel powerless to appeal a poll worker’s decision to deny them a ballot, regardless of whether the decision has any legal basis. In most instances, a frustrated voter simply doesn’t know whom to contact to challenge disenfranchisement. In mid-sized jurisdictions, election supervisors, monitoring operations from a central municipal office, are often too overwhelmed to discuss and investigate the complaints of a single unhappy voter; instead, these supervisors spend their election day addressing larger, more-systemic issues: broken machines, long lines, complaints from campaigns and candidates. In theory, a disenfranchised voter can seek help from a state or federal court, but, as a practical matter, a lawsuit won’t provide immediate relief on election day.
To be clear, in most cases I have witnessed, poll workers who wrongfully declare a voter ineligible are not motivated by malice. Most poll workers are not driven by the ability to exercise power; most don’t seek to discriminate against voters. To the contrary, wrongful turnaways appear to result overwhelmingly from poor training. In too many parts of the country, training for poll workers is either insufficient or entirely absent.
Still, under normal circumstances, there is at least continuity from one election to the next on what voting laws are in play. Following the recent court decisions, however, there is a real possibility that poll workers in some jurisdictions will not be clear on which rules apply. In many states whose laws have been subject to multiple recent changes or court orders, there is a strong likelihood that poll workers will not have received adequately up-to-date training. The federal government has little control over training, and each state sets its own training policies. Alaska, for example, does not have a state law mandating that each poll worker receive training. Ohio requires instruction for all first-time poll workers, with re-instruction for most workers every three years. North Carolina began training weeks ago, long before Wednesday’s US Supreme Court order permitting that state, among other things, to eliminate same-day registration.
Many states mandate training for poll workers in the week before the election, but states also vest local election officials with the discretion to decide the length and scope of such training. In most jurisdictions, training focuses on practical skills necessary to operate a polling place: voting-machine assembly, voter check-in, shut down procedures. Trainers often fail to offer in-depth instruction about essential criteria used to disqualify a voter, and this failure leaves poll workers uncertain about the law. Rather than seeking guidance from their supervisors, some confused poll workers may simply make policy on the spot.
These problems have not gone unnoticed by federal lawmakers. In 2002, Congress enacted the Help America Vote Act (HAVA), in part, to address poll-worker mistakes. The law gives turned-away voters an opportunity to cast a provisional ballot, a paper ballot that the poll workers set aside and later submit to election supervisors to determine the eligibility of the voter who casts it. Twelve years after HAVA’s enactment, compliance with the law remains uneven. Counties do not tend to prepare for mishaps, and, accordingly, fail to provide precincts with sufficient numbers of provisional ballots. In 2012 voters complained about a shortage of provisional ballots at a dozen polling places in Nashville, Tennessee. That same year in New York City, a polling place exhausted its supply of provisional ballots an hour before the polls closed. But, here too, the biggest obstacle to HAVA compliance remains training. Many jurisdictions simply fail to properly instruct poll workers to offer a provisional ballot to a voter whose eligibility to vote is uncertain.
There is no easy solution to these problems. Election officials, who face tight budgets and shortages of poll-workers, correctly argue that more-thorough training costs money and discourages volunteers. But there’s little likelihood that federal appellate courts will hesitate, on the eve of an election, to reverse lower court orders. After all, federal judges aren’t inclined to sacrifice sacred constitutional principles in order to secure greater election-day certainty. Our best hope, then, may be to devote more attention to training poll workers, who are an essential—if too often overlooked—part of the voting process.