After the November 2014 general election, Battleground Texas used the data from its Election Day voter hotline to summarize and describe the problems that voters faced in the election. That public report is available as a .pdf file through Battleground Texas. You can read the report here.
Among other things, the report finds that (1) the statewide voter registration list is riddled with errors (and the fact that the statewide database went down on Election Day was frustrating), (2) compared to the experience in other states, provisional ballots in Texas are used disproportionately in response to registration problems, (3) The Texas Department of Public Safety has a deserved reputation for particularly poor handling of “motor voter” registrations, a responsibility of the state agency that administers drivers’ license issuance and renewal as mandated by the National Voter Registration Act, and (4) voting systems in Texas are showing their age – equipment is breaking down, touchscreens are getting misaligned, and the availability of back-up machines is declining.
Another significant problem lay in the organization and staffing of polling places – as with almost every election, there were a number of precincts across the state that just couldn’t seem to get their act together. Polls opened late, failed to manage lines of voters properly, enforced nonexistent proof of identity requirements, failed to accommodate voters who needed accessible voting due to limitations on movement or other disabilities, didn’t bother to provide sufficient ballots, turned voters away, or otherwise disenfranchised eligible voters. Poor treatment of voters tended to disproportionately affect minority voters and voters with limitations on movement.
Materiality in the eyes of the beholder, and voting rights
One could imagine an officeholder responding to the report with an air of jaded acceptance. “Of course we infuriate voters, leave people angry and frustrated, and sour the voting experience. But our poor management of elections didn’t have a material effect on the outcome of the election.”
With respect to specific races, such a statement might not be true – targeted mistreatment or neglect of voting rights might well have tipped election results; the potential that such miscarriages of suffrage might be prosecuted in civil court is relatively slight, and given that voters traditionally and consistently have been ruled to lack standing to file election contests (because unlike candidates, voters are deemed to lack a justiciable property right in the assignment of public offices), the burden and expense of arguing that an election came out “wrong” falls on the candidates’ shoulders.
But even when an election turns out “right” (i.e., after discounting all other factors, including discouraged voters, voters who were pressured or coerced, voters who were disenfranchised, etc., the number of “clean” votes in favor of the winner were sufficient to overcome the number of “clean” votes in favor of the loser), one can still trespass on the rights of individual voters.
And so in one sense, focusing on the “materiality” and “proportionality” of the harm done by disenfranchising voters is looking at the problem of badly-run elections through the wrong end of the telescope. The act of voting (independent of the choices made by the voter on the ballot) is the voter’s formal participation in government. A voter who isn’t able to vote has therefore not formally given his or her consent to the acts of that government, and lives in a state of subjugation to totalitarian whims.
For that reason, prosecution of violations of voters’ civil rights, as well as prosecution of election-related crimes is not based on whether the election came out “right” or “wrong,” but on the experience of the individual victims. It is no defense for the entity or person responsible for a voter’s bad experience to argue that the voter’s vote “wouldn’t have changed the outcome.”