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Winning By One: Why Understanding Election Rules and Regulations Matters

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By Nathan Henderson-James

If yesterday's civic lesson was that every vote counts, today's civic lesson is that it's the rules of voting that counts. Two stories out of small-town northern Indiana in the past two weeks serve as excellent examples of the impact the rules of the game have on the outcome of elections.
On" target="_blank">click here April 14, 2007 the Marion Chronicle Tribune, reported on a court decision to allow for the counting of a provisional ballot, handing the race for a county commissioner in Grant County, IN spot to the challenger by a single vote.

Just a week later, April" target="_blank">click here 22, 2007, the Northwest Indiana Times, reported on a tied primary election in Crete Township, IN which will come down to the counting of provisional, absentee, and "grace period" ballots.

The money quote from the Times is:
 ""After that, if it's still a tie, we have to go to a lottery or draw straws," Schultz Voots said. "We won't know for sure until the election judges come in and open those ballots and determine if (they are) valid."

The story from the Tribune is more complicated, but is essentially a story of voter persistence in the face of confusing and constricting rules governing voter ID. An indigent voter, lacking the resources for the required ID, was forced under Indiana law to cast a provisional ballot. However, the law requires that voters using the indigent provision to vote must sign an affidavit within 15 days at the County Clerk's office. In this case, though, the Clerk's office sent the affidavits to the polls on Election Day and the voter signed one on the spot, rather than in the office. This mistake threatened to disqualify his ballot.

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Fortunately, the Tribune article reports,

"Essentially the court agreed with our argument that any mistake involved here was made by the clerk's office rather than by the voter and that the voter should not be penalized by not having his vote counted because of a mistake made by the clerk's office," Groth said. "The voter here had done everything that could have been expected of him."

How and when provisional ballots are counted is subject to rules and procedures that vary from state to state and, occasionally, from county to county depending on how they choose to implement the Help America Vote Act's provisional voting requirement. The elections in Crete township and Grant County will be determined not by who voted but by the rules established by local election officials.

In other words, local officials have an extraordinary amount of discretion to decide the rules under which an election is conducted and votes are counted (or not). These rules are often made away from the public eye, despite their immense potential impact on who wins and losses an election and, by extension, which public policies enter or do not enter the public debate.

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An essential guiding principle of all rules, regulations, and laws pertaining to the implementation of elections should be that they are constructed to favor counting ballots from eligible citizens rather than constructed to disqualify eligible voters through myriad requirements, such as voter ID. If a democracy depends on giving everyone an equal opportunity to participate, then we need to build rules and regulations that favor counting every vote. Americans need to understand these issues and act to make changes that ensure that access to the franchise is expanded, not narrowed.

Project Vote has a wealth of information on just about every issue related to election administration on its website, runs a website that tracks election-related legislation in 24 states called Election" target="_blank">http://www.electionlegislation.org/">Election Legislation (registration required), and maintains a blog" target="_blank">blog" target="_blank">http://www.projectvote.org/blog">blog related to voting rights and election administration issues.

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