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Resolving election error: the dynamic assessment of materiality.

ABSTRACT

The ghosts of the 2000 presidential election will return in 2012. Photo-finish and error-laden elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election's winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an election error should turn on its materiality: whether the error is material to the eligibility of a voter or the determination of her ballot preference.

In developing this argument, this Article offers the first trans-substantive review of materiality as a governing principle. It then introduces the insight that, unlike the evaluation of materiality in other contexts, the materiality of a voting error may be reassessed over time. This dynamic assessment of materiality best accommodates the purposes of a decision rule for election error. Indeed, the insight is most powerful when the stakes are highest: when an election hangs in the balance. Finally, this Article discusses the pragmatic application of the materiality principle, including the invigoration of an underappreciated federal statute poised to change the way that disputed elections are resolved, in 2012 and beyond.

RESOLVING ELECTION ERROR
TABLE OF CONTENTS

INTRODUCTION
I. ERRORS IN RECENT ELECTIONS
II. THE NEED FOR A PRINCIPLE TO RESOLVE ERRORS
    A. The Democratic Function of an Election
    B. Decision Rules for Error
III. THE MATERIALITY PRINCIPLE
    A. Materiality in Other Contexts
    B. The Meaning of Materiality in the
       Election Context
       1. Materiality of the Underlying
          Regulatory Provision
       2. Materiality of the Error Itself
       3. The Dynamic Reassessment of Materiality
    C. Implications of the Materiality Principle
       1. Accommodating a Dynamic Assessment of
          Materiality
       2. Counting Votes Pursuant to the
          Materiality Principle
       3. The Value of the Materiality Principle
       4. Potential Concerns
          a. Opportunistic Behavior
          b. Cost
          c. Bias
          d. Due Process
          e. Bush v. Gore
          f. Perceived Politicization
IV. SOURCES OF LAW FOR THE MATERIALITY PRINCIPLE
    A. The Federal Constitution
    B. The Civil Rights Act of 1964
    C. State Law
CONCLUSION


INTRODUCTION

Twelve years ago, the U.S. Supreme Court's decision in Bush v. Gore (1) shocked a nation and catalyzed an academic field. In many ways, the controversy of 2000 marked the rebirth of the study of election law. But with all of the ink spilled on the law of democracy in the last decade, the difficulty at the heart of this catalytic event has been sorely neglected.

Humans are imperfect. This is no less true in our ability to execute election instructions than in any other arena. In Florida in 2000, citizens made mistakes, inter alia, in registering to vote, completing and mailing absentee ballots and requests for those ballots, and most notoriously, indicating their preferred choices on ballots. (2) Citizens made similar mistakes elsewhere around the country, in 2000 and long before. The only meaningful difference is that in Florida the mistakes happened to be outcome determinative, and spectacularly so.

These mistakes and opportunities for others have not vanished, and with surprising frequency, they continue to represent the difference between those who prevail in an election and those who do not. (3) The fundamental problem of what to do with these mistakes remains curiously unresolved. Particularly when minor errors--by voters and by election officials--exceed the margin of victory, courts are placed in the unenviable position of deciding which, if any, of these errors to discount or excuse, with the knowledge that their judgment will likely determine the election's winner.

Courts have had little help in this endeavor thus far. Though scholars have noted that the aggregation of election errors will likely cause another national meltdown, (4) the most prominent analytical frameworks in the field, and particularly the prevailing frame of rights-based constitutional adjudication, provide little useful guidance for decision makers charged with averting crisis wrought by the aggregation of individual mistakes. (5) Authors have examined methods for determining the extent of election-related error, (6) the design of institutions to review claims of error, (7) and remedial options to salvage an election when all hope for directly confronting the error is lost. (8) But very little scholarship offers a consistent principle or set of principles for addressing the appropriate legal impact of an error in the first instance. (9)

Absent such principles, some decision makers have attempted to intuit whether errors are "large" or "small" in order to determine whether the associated ballots should be counted. (10) Others have turned to an assessment of responsibility or fault: voters are relieved from errors made by others but held to their own mistakes or deficiencies. (11) Neither approach has faced significant scholarly scrutiny; on further examination, both prove to be substantially flawed. (12) In this Article, I suggest a principle better suited to the purposes of the voting process.

The principle I propose is materiality: particularly, the materiality of an error to an assessment of the affected individual's eligibility or ballot preference. Materiality plays a critical role in contract, in tortious and criminal fraud, in the law of securities, and in many other legal contexts, separating predicates of legal consequence from those that the law ignores. (13) Yet I am aware of no methodical trans-substantive examination of this notoriously flexible idea. This Article offers such an examination, setting forth a taxonomy of materiality designed to assist in the identification of the election errors that should preclude the counting of a ballot.

Moreover, this Article unearths a feature of the concept that proves pivotal in the election context: the materiality of a voting error may change. This, too, is a notion mostly overlooked. Little work in the field of voting rights has addressed the impact of the ability to assess and reassess determinative rulings at different points in time within the election cycle. (14) Today, errors in the election process are generally evaluated at the time they are committed, and the voter is saddled by that evaluation despite the fact that the error may later become wholly unimportant. (15) The recognition that materiality may change over time highlights the inadequacy of the existing approach to the assessment of error in the election context.

Furthermore, the insight into the dynamic nature of materiality is most powerful when the stakes are highest. When errors leave the result of an election in question, there often appears to be a conflict between two fundamental precepts: the rule of law and majority rule. A proper appreciation for the changing materiality of an election-related error can help to resolve this perceived, but ultimately artificial, conflict. (16)

Finally, I explain how the materiality principle may be implemented in practice. The most tangible manifestation of the principle currently exists in a surprisingly underappreciated provision of the landmark Civil Rights Act of 1964, which prohibits disenfranchisement on the basis of some errors or omissions that are not material to a voter's qualifications. (17) Few courts or commentators have recognized the power of this provision, and none have done so with an appreciation of the dynamic quality of materiality; indeed, proper application of the statute might well have yielded different results in several recent elections, (18) Yet even the Civil Rights Act does not apply the materiality principle as thoroughly as would be beneficial. I therefore suggest that states explicitly incorporate the principle into their own election codes.

The Article proceeds as follows. Part I demonstrates the recurring nature of the problem with a brief review of notable and often outcome-determinative errors that have materialized in recent elections. Part II explores some of the potential decision rules for confronting these errors. Part III offers the materiality principle that I propose as superior. Of particular note, I introduce for the first time the insight that in the voting context, an assessment of materiality may change over time. Recognizing the dynamic nature of materiality, moreover, better serves the rationales supporting the election process than any of the available alternatives for confronting error. Finally, Part IV describes how the materiality principle may be implemented in practice, including the first sustained scholarly review of the Civil Rights Act's materiality provision, a ready vehicle for applying the concept in many circumstances.

I. ERRORS IN RECENT ELECTIONS

The prospect that the balance of an election might turn on the resolution of errors did not die with Bush v. Gore. In 2010, the election for a U.S. Senate seat in Alaska was cast into controversy when incumbent Senator Lisa Murkowski lost the Republican Party primary and announced her intention to run as a write-in candidate. (19) In many states, write-in candidates distribute stickers that their supporters can affix to a ballot to avoid any potential ambiguity in their choice. (20) But a few years prior, the Alaska legislature outlawed such stickers after determining that they would foul the state's new optical scan readers. (21) Suddenly, in a race polling well within a comfortable margin of error on the eve of the election, (22) there was a substantial likelihood that the election result might turn on the spelling and/or penmanship of Murkowski's supporters. Sure enough, voters actually cast a healthy number of ballots for "Murcowski," "Morcowski," and "McCosky," with corresponding controversy as to the outcome of the race. (23)

Two years earlier, another U.S. Senate election left at least 4,797 absentee ballots of disputed validity--far more than the 312-vote margin of victory. (24) These absentee ballots were rejected in the initial election canvass, and most remained uncounted even after a thorough recount and vigorously disputed contest proceedings. (25) Officials rejected many of the absentee ballots because of alleged errors. (26) Some voters failed to sign absentee ballot materials (27) or signed them in the wrong place. (28) Others completed their own materials accurately, but witnesses observing the process submitted flawed information. (29)

Though the Minnesota race drew the most attention, ample errors also arose elsewhere. Palm Beach County, Florida--no stranger to election controversy--also rejected absentee ballots with legitimate signatures written in the wrong location. (30) Officials in Waller County, Texas--home to Prairie View A&M College (a "historically black university") and a history of alleged voting rights abuses (31)--rejected registration forms with complete addresses but without ZIP codes. (32) Waller County also rejected versions of registration forms that were not the most recent forms produced; (33) some counties in Indiana did the same. (34) Colorado rejected voter registration forms on which applicants provided the last four digits of their Social Security number but did not check a box explaining that they had no driver's license or state identification number to provide instead. (35) Ohio rejected absentee ballot applications for citizens who did not check a box indicating their status as a qualified elector, (36) and rejected some provisional ballots from voters who signed but did not print their names or who signed and printed their names in the wrong place on the ballot. (37)

The litany from 2008 is no anomaly. In every single election cycle, errors occur. Some are major, some are minor; some are novel, some familiar. And in every single cycle, these errors prove outcome determinative somewhere. (38) For William Davignon and Michael Carney, lightning struck twice. In both 2001 and 2003, Davignon beat Carney by one vote for a county legislative seat; the first time, the election depended on an absentee ballot signed on the wrong line, and the second time, a timely ballot with a missing time stamp. (39) To be sure, it is unusual to see outcome-determinative errors in consecutive races between the same candidates. But for most election participants, once is more than enough.

II. THE NEED FOR A PRINCIPLE TO RESOLVE ERRORS

Election errors like those above are the inevitable consequences of election procedures. These procedures serve a critical purpose: they help a community arrive at a reliable shared understanding of the individuals empowered to represent and govern it, which in turn--at least classically--secures the consent of those governed. (40) Election procedures regulate who can vote for whom, when, and how, and the means by which those preferences are acknowledged and tallied to produce a representative vested with the authority of the state. Some of these procedures aim to protect the integrity or perceived integrity of the election against attempts to manipulate the results; others aim to make the election easier for a bureaucracy with limited resources to administer. It is not possible to run a reliable election without pervasive procedural regulations. (41)

Consider, for example, just some of the regulations affecting a would-be absentee vote in California: officials must prepare a specific application form, with particular notices and particular requests for information; (42) the voter must complete the application with specified information in specified locations on the specified form; (43) the voter must ensure that the application is received by specified officials within a designated period; (44) officials must process the application according to specific criteria; (45) officials must prepare the actual ballots, with specified notices and instructions; (46) officials must deliver the appropriate absentee ballot, enclosure envelope, and ballot pamphlet to the voter at a specified address within a designated period; (47) the voter must complete the enclosure envelope, with specified information in specified locations; (48) the voter must complete the absentee ballot itself; (49) the voter must enclose the absentee ballot in the proper manner within the enclosure envelope; (50) the voter must ensure that the ballot and envelope are delivered by specified means to specified officials within a designated period; (51) officials must compare information on the envelope with information on other election records in a specified manner; (52) and officials must transmit the envelopes to the entity responsible for counting ballots within a specific time frame. (53) My point is not that these regulations are undue or onerous, but rather that the regulations are plentiful. (54) This, in turn, breeds plentiful opportunities for error.

Some departures from the prescribed procedures may be the result of attempts to manipulate the system--intentional cheating by those who believe that violating the procedures is more likely to lead to their desired outcome. Some departures may be the result of misunderstanding or mistake by voters or officials who are not familiar with each element of the rules, or who, pressed for time, inaccurately complete a procedure. Whatever the cause, errors are inevitable. And that leaves the problem of what to do when they occur.

A. The Democratic Function of an Election

Acknowledging the imperfection of human endeavor, an election system needs some decision rule to determine the extent to which deviations from the procedural ideal should be accommodated. Such a rule should be grounded in the rationales for holding elections as an initial matter. Thus, before discussing the candidates for a rule resolving election errors, it is useful to review exactly what it is that we as a society seek to accomplish through the election process.

First and foremost, the purpose of an election is to allow a community to approve particular individuals to represent and govern the community and, when repeated, to ensure that those chosen are responsive to the community's wishes. In this sense, the point of an election is to produce an agreed-upon winner or set of winners. An identified winner, however, does not alone suffice; otherwise, we could toss coins or roll dice to determine our representatives. (55) Instead, we expect the winner of an election to accurately represent, as best we can ascertain, the collective leadership choice of the polity. This, in turn, requires that an election aggregate the individual preferences of those who comprise the community. (56)

However, choosing a winner--even choosing the "right" winner-is not an election's sole purpose. Modern survey science allows us to poll a comparatively modest representative sample of the eligible electorate to arrive at a statistically certain victor the vast majority of the time; instead of holding an election for governor or senator, we could simply ask several thousand randomly selected electors on Election Day whom they preferred, and we would quite often be confident that we could get the statewide answer precisely right. (57) Yet even with full confidence that it would produce the correct result, a poll seems an unacceptable substitute for an election. This is because elections fulfill an additional societal function: they allow each eligible member of the community to participate in the act of choosing a representative, and thereby not only foster the strength of the community as a community, (58) but also secure community members' consent to be governed. (59) Indeed, as scholars have long recognized, the expressive and participatory elements of an election explain each citizen's decision to cast a ballot far better than the remote possibility that her ballot would change the final instrumental result. (60)

Elections as we know them also fulfill a third purpose: cost-efficiency. If we wished to gather the preferences of the eligible electorate while also ensuring an opportunity for each member of the electorate to participate, we could send trusted government teams to canvass the eligible electors one-by-one. The duration and expense of such an enterprise, with safeguards for accuracy and the prevention of coercion, would be significant. Elections, while costly, are a comparatively efficient means to (theoretically) assess the preferences of the legitimate electorate while (theoretically) permitting participation by all such electors.

Thus, elections have at least three aims: to accurately select community representatives by aggregating the preferences of the eligible community members, to allow participation in that endeavor by as many of the eligible members of the community as possible, and to accomplish these two objectives in a cost-efficient manner. When errors occur in the course of an election, a principle to address those errors should track the reasons for holding the election in the first instance. It should, that is, promote the most accurate assessment of eligible community members' preferences, with the broadest participation by eligible members of the community, at the least cost.

B. Decision Rules for Error

Unfortunately, the most straightforward decision rules for the resolution of errors are also the least adequate under these conditions. At one pole, for example, a decision rule might call for the counting of every ballot for which it is possible to count a vote, no matter how egregious the departure from prescribed regulations. Such a rule would allow substantial cause to question the reliability of the election's aggregation of preferences--ballots would be counted when cast by unknown individuals, from unknown addresses, which might or might not represent the lone votes of eligible members of the community. Indeed, such a rule would call for the counting of multiple ballots cast by the same individual or by individuals who acknowledge that they are not within the contemplated jurisdiction. This is not a principle for resolving errors that inspires confidence in the election results.

The converse rule is more often proposed, but just as flawed. This rule permits zero tolerance for error, with no ballot counted upon any departure from prescribed procedures. Such a leaden emphasis on formalities would extend not only to errors like a voter's failure to register or indicate a choice of candidate on the ballot, but also to voter errors like entering both a given name and surname in the space designated for one or the other, and to official errors like failing to initial an absentee ballot or hitting the wrong key in data entry. Indeed, true zero tolerance suggests that, in the California absentee ballot described above, (61) the ballot should not be counted if the election official failed to include a ballot pamphlet in the mailing packet. (62) Procedural violation, by any actor for any reason, would lead inevitably and uniformly to default. This sort of hard line fails for the same reason as its considerably softer counterpart above: it does not inspire confidence in the election's results. Given the number of regulations and the number of minor violations of those regulations that are inevitable in any large-scale election, a true zero-tolerance rule would exclude too many ballots of eligible electors to constitute a reliable representation of the community's aggregate preferences.

The prevailing method in practice is to muddle along under a third approach, which neither courts nor commentators have recognized as inadequate. This approach embraces the rough intuition that some errors should not be "charged" to the voter in counting her ballot. (63) The states have developed different names for this concept. When state legislatures create such a rule, they usually do so by statutory declarations that election regulations are to be construed liberally in favor of the voter. (64) When the judiciary imposes such a rule in the absence of legislative guidance, they usually frame the issue in terms of "substantial compliance" with the election regulation in question, distinguishing between major and minor errors. (65) Professor Rick Hasen has identified this approach as the "Democracy Canon" of construction, in which ambiguous statutes are to be construed in voter-friendly fashion. (66)

The central critique of such a decision rule is that there is little to ground the rule beyond the preferences of the decision maker. "Minor" errors are not self-defining, nor is "substantial" compliance with a regulation. The words give no guidance to determine whether failure to notarize an absentee ballot is a minor error or a major one. The same is true for other errors: mistakenly writing today's date rather than one's date of birth on a voter registration form, or transposing two digits of a twenty-digit driver's license number; casting a ballot at a pollsite table next to the one representing the precinct to which the voter is assigned; or missing the deadline to register--or to vote--by a day, or an hour, or a minute. All are errors. But no principle inherent in the concepts of "minor" error or "substantial" compliance indicates when the error in question crosses the line at which the error is to be regarded as particularly consequential. (67) As a result, judicial decisions to disregard error, or to refuse to disregard error, appear dangerously ad hoc. (68)

Moreover, the magnitude of an error is unlikely to be the best measure of whether that error is significant to the appropriate resolution of an election. A tiny slip of the finger during data entry, changing a birth year from 1987 to 1997, makes a twenty-five-year-old look fifteen--and ineligible to vote. A big mistake, such as leaving the date of birth entirely blank, yields a similar question about eligibility. In this context, size really does not matter.

Some jurisdictions and commentators have tacked on a principle for resolving errors based on the fault of the offender. (69) Errors that are the voter's "fault" become preclusive; those that are not are forgiven, when it is possible to do so and still log a vote in favor of an identified candidate. It should first be noted that such assessments, when they occur, are fairly rudimentary, with little analysis of comparative contribution to the error; after all, as with most wrongs, rarely is one actor the exclusive causal agent. (70) For example, if the instructions on a form are ambiguous, and a voter completes that form incorrectly, accurate allocation of fault for the resulting error will be difficult at best.

Even if it were possible to assign blame clearly and cleanly to either voter or nonvoter, as I have investigated elsewhere, "fault" is

Commw. Ct. 2002) (excusing misspellings of a write-in candidate's name and attempts to write a candidate's name on the improper ballot line, but refusing to excuse a failure to mark a box next to the name of a write-in candidate); see also Adkins v. Huckabay, 755 So. 2d 206. 216-18 (La. 2000) (reviewing past Louisiana decisions that were ostensibly issued under a uniform "substantial compliance" standard but yielded wildly variant results). at best an imperfect decision rule for the resolution of most of these errors. (71) The frame of fault implies that voters should be punished for errors for which they are primarily responsible, by refusing to count their ballots. (72) But for the many election errors reflecting mistake rather than malfeasance, such punishment seems out of place, given the precepts on which punishment is normally justified.

For example, precluding the counting of a ballot cast by an eligible elector has little retributive merit. An error in the completion of a form or in the marking of a ballot delivers little psychic damage to the body politic; there is correspondingly little retributive value in punishing voters for mistakes they did not intend to commit. Mistakes in complying with election regulation seem an unduly slight target for social vengeance. (73)

A more serious argument may be premised on use of "fault" as a means to avoid externalization of the cost of a wrong. Election officials presumably rely on voter compliance with election regulations in order to develop efficient protocols of their own. When a voter errs, officials' attempts to compensate for that error may incur administrative costs; punishing that error by refusing to count the associated ballot may be a means to avoid the extra cost. Indeed, it may even be a sufficiently stark punishment to deter voter carelessness in general.

That said, the deterrent value of a "fault"-based approach to election error can be easily overstated. The morass of election rules breeds many opportunities for missteps. Before deciding to pay more attention to any specific regulation, a voter must be able to adequately assess her own capacity for error with respect to the procedure in question. It is far from clear that voters are that self-aware. Furthermore, in the event that an error does occur, the feedback mechanism in most jurisdictions is not sufficiently developed to communicate to the errant voter--or voters generally--when the mistake occurred. Many voters casting provisional or absentee ballots do not know whether those ballots are counted; those who are informed that their ballots have been rejected are rarely told the underlying cause with any specificity. (74) If voters do not understand the circumstances in which errors are likely to occur, it will be difficult to deter mistakes, no matter how stark the punishment.

Without the systemic impact of an effective deterrent, it is not clear that the use of "fault" as a premise for determining the consequence of error actually avoids substantial cost. Once an error has occurred, if that error is to be disregarded only if the voter is not primarily at fault, some procedure is needed to ascertain the proper allocation of blame. Such a fact-finding procedure will inevitably entail incremental cost.

For example, consider a photo-finish election in which hundreds or thousands of provisional ballots have been cast. (75) Somewhere along the way, errors led to these provisional ballots: perhaps a voter registered improperly, or perhaps an official improperly processed an accurate registration form; perhaps a voter arrived at the wrong precinct, or perhaps an official failed to locate the voter in the correct pollbook; perhaps a voter failed to respond adequately to a legitimate challenge of her qualifications, or perhaps her qualifications were improperly challenged. The source of the error is rarely immediately apparent. In order to determine which ballots may be counted in a fault-based regime, records and recollections will have to be reviewed in order to properly apportion fault. This review is not cost-free. (76) And even if impeccably conducted, it still leads to the discarding of a substantial number of ballots cast by voters who are actually eligible to vote, who submitted their materials in timely fashion, and who will not understand how to avoid the same problems--or new ones--in subsequent elections. This Article suggests that those resources might be better spent.

When election errors inevitably occur, rather than focusing on the magnitude of the error or the blameworthiness of the perpetrator, I suggest a different guidestar: materiality. In some respects, this is a simple, almost tautological, proposition: an election error should only matter if it makes a difference in achieving an election's primary purposes. Yet this is not the principle currently driving the resolution of most election errors. The discussion below represents the first extended discussion of materiality in the election context. As it shows, materiality is a principle better suited to resolving inevitable errors than the available alternatives. Indeed, given the opportunity to reevaluate materiality as an election progresses, the concept may have even more utility in the election context than in other legal arenas.

III. THE MATERIALITY PRINCIPLE

A. Materiality in Other Contexts

"Materiality" can be a protean concept. But in developing an operational understanding of materiality as applied to election errors, it is not necessary to start from scratch. The concept has been developed as an important principle in many areas, including the law of contract, (77) tortious (78) and criminal fraud, (79) securities transactions, (80) prosecutorial conduct, (81) legal ethics, (82) employment discrimination, (83) and civil procedure. (84) It is possible to distill from examinations of materiality in these other contexts a few common principles--an exercise that I believe to be the first attempt of its kind. Together, these principles can provide guidance for our voting inquiry.

First, materiality is used as a gauge for the legal significance of an action or piece of information, often a mistake or misdeed. If the action or information is material, certain legal consequences follow; if not, the legal consequences are different. Materiality is thus a toggle switch rather than a spectrum: the question is not whether the item considered is more material or less material, but instead whether it has reached a threshold level of significance, at which point a categorical change in the legal nature of the action or information is triggered.

Second, materiality has a referent. An action or piece of information evaluated for materiality is material or immaterial to a particular decision, such as a decision to make a purchase, (85) perform a service, (86) or deliver a verdict. (87) As such, materiality cannot be evaluated in the abstract; that which is material for some decisions may be wholly immaterial for others. Courts and scholars agree that this renders the materiality threshold heavily context- and fact-dependent. (88)

Third, materiality has an object: a particular fact, a particular statement, a particular action, or a particular change. It is important to keep the discussion of materiality anchored to the particular act or item for which materiality is at issue. In the contractual context, for example, the obligations of a contract between merchants will turn upon whether there has been a material alteration to an offer: that is, whether an alteration that has not expressly been accepted creates a legally recognized change to the offer as a whole. (89) This requires two analyses: whether the term being altered is a material term, and whether the nature of the alteration to that term is material. (90) Neither an insignificant change to an otherwise material term, nor a significant change to an immaterial term, will materially alter the offer as a whole.

Fourth, that which is material has probative weight and consequence for the decision in question, beyond mere relevance. Exactly how much consequence the material element must have is a particularly thorny question, and there is little transsubstantive scholarship examining the nature of the significance that an action or piece of information must have before it becomes material. Yet a review of the various substantive silos above indicates a rough consensus. That which is material is not merely pertinent to a decision, but has the realistic potential to influence or affect--that is, change (91)--the decision at issue. (92) It is not necessary to establish "but for" causation to establish materiality; no legal doctrine requires proof that a reasonable decision maker would select a different course absent the action or information to be evaluated for materiality. (93) It is necessary, however, to find at least a substantial question as to whether the reasonable decision maker would do so. (94)

Thus, a disputed fact is material for purposes of summary judgment only if the fact in question "might affect the outcome of the suit." (95) In securities law, information is material, and therefore subject to accurate and public disclosure, "if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote," or that a "reasonable investor" would consider it important in making an investment decision (96)--that is, that the information would "have a significant propensity to affect the voting [or investment] process." (97) A false statement to a government official is material if it has "a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it [is] addressed." (98) Evidence relating to a defendant's guilt or punishment is constitutionally material when "there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." (99) In each of these areas, and others, materiality distinguishes actions or information that reasonably call a given decision into substantial question from those that do not.

Finally, and central to this Article, there have been a few fleeting discussions acknowledging that the materiality of an action or piece of information can change over time. In these other disciplines, actions or pieces of information that are initially immaterial may become material at some later point, based on their aggregate significance or a changed context. For example, in evaluating legal malpractice, a mistake may appear at first to be immaterial, with negligible impact on the client; if contextual factors change, however, the consequences may develop such that the initial error later becomes material. (100) Similarly, a financial misstatement that is immaterial on its own may become material when aggregated with other misstatements. (101) In the voting context, as described more fully in Part III.B.3, the significance of this facet of materiality operates in the opposite direction: errors that once were material may become immaterial at a later point.

B. The Meaning of Materiality in the Election Context

The principles above are helpful in distilling a sophisticated understanding of materiality. This Section applies the above taxonomy to election-related errors.

The translation of the first principle above is straightforward: materiality becomes a toggle switch for determining when an error should prevent the counting of an otherwise valid vote. If an error is material, the associated ballot should not be counted. If, instead, an error is immaterial, it should not cause disenfranchisement.

The second principle above is also relatively straightforward to apply in the election arena. Facts or objects are material to particular decisions. In the election context, as discussed above, the primary purpose of the enterprise is to discern the political preference of eligible members of the political community. (102) The materiality inquiry takes its lead from the same mandate, with two potential referents. First, error generally should be evaluated to determine whether it is material to ensuring that a ballot is cast by an elector who is eligible; second, error on a ballot itself should be evaluated to determine whether it is material to determining the preference of the elector.

The third principle counsels attention to the particular object of the materiality inquiry. The superficial answer, evident from the discussion above, is that the materiality of an error should be the touchstone. But as in contract law, this is usefully separated into two analyses: whether the underlying regulatory provision that has been violated is material, and whether the error or omission itself is material. (103) Neither an insignificant error in an otherwise material regulation nor a significant error in an immaterial regulation should become a material error in the determination of disenfranchisement.

1. Materiality of the Underlying Regulatory Provision

In identifying whether an error is material to determining a would-be voter's eligibility or political preference, the first inquiry is therefore to assess whether the underlying regulatory request or command is material to determining the voter's eligibility or electoral preference. If the underlying regulation is immaterial, then a flaw in that information must also be immaterial, no matter how substantial the flaw.

In some cases, this inquiry is trivial. For example, if the underlying regulation is irrelevant to determining the voter's qualifications, it cannot be material in that inquiry. Consider a voter who refuses to provide her race on a voter registration form. (104) The voter's race --the underlying information sought--is irrelevant to her qualifications to vote. A fortiori, the underlying information must be immaterial to an eligibility inquiry. And afortiori, any perceived flaw in the voter's answer to that immaterial question must itself be immaterial.

In other circumstances, the underlying information will be relevant to a final decision but not necessarily material. A piece of information is relevant if it has even an iota of use in determining a voter's qualifications or deciphering the voter's intended candidate. (105) A voter's telephone number, for example, may be relevant to the determination of her eligibility because it allows an election official to contact the voter directly to ask probative questions; moreover, the number's area code and exchange may increase or decrease the chance that a voter lives in the appropriate district.

However, though a voter's telephone number may be relevant to determining her qualifications, it is not, on its own, material to that determination. As discussed in the fourth principle above, materiality demands more significance. (106) That which is material influences a reasonable decision maker's decision. It need not alone be outcome determinative, but it must have at least enough probative weight to create substantial doubt or uncertainty about the outcome. If the other information on a registration form indicated eligibility, a flaw in a telephone number would not cause a reasonable registrar to substantially question whether the voter in question was eligible to vote.

2. Materiality of the Error Itself

Thus, in applying the materiality principle developed in this Article, decision makers faced with flawed performance in the execution of an election requirement must first determine whether the underlying regulatory objective is material. At this point, however, the analysis is at most halfway complete. There remains the materiality of the error itself. That is, one must determine whether the error in question raises a substantial question for a reasonable decision maker about the voter's eligibility or ballot choice.

Several types of errors may be presumptively immaterial. For example, an error may exist in the form of the information conveyed, even when the substance of the information conveyed is clear and unambiguous. Consider a voter registration form requiring the voter's date of birth, XX]XX]XXXX. The regulation exists to extract the voter's age, which is unquestionably material: a voter's age is a substantive element of qualification to vote in every state in the country. Yet the materiality of the underlying information does not automatically render material any flaw in the expression of that information. Writing "November" instead of "11" as the month of birth, even when "11" is clearly called for, is not an error that is material to determining whether the voter is of lawful voting age. As such, it should not serve as an error that enables disenfranchisement.

More controversially, and more contrary to current practice, the same principle applies if a voter marks a candidate's circle on a ballot with an unambiguous check mark when the regulation calls for the voter to fill in the circle, or if a voter both fills in a candidate's circle and unlawfully writes the same candidate's name in the space for a write-in choice. There are certainly circumstances when the improper form of information may in fact create doubt about the substance it intends to convey; for example, if instructions require checking an adjacent box to vote for a candidate, marking an "X" over Candidate Smith's name may not indicate whether the voter intended to vote for Smith or convey her displeasure with Smith. That error would be material. But when the information's form alone is at error, and that flaw does not create substantial doubt or uncertainty about the qualifications of the affected voter or her intended preference, the flaw is immaterial.

An error may also be immaterial if information material to a voter's qualifications or preference does not appear in a particular designated location, even though the information is unambiguously provided elsewhere to the same regulatory actor. For example, a voter who presents the last four digits of her Social Security number in the voter registration form's box designated for her birthdate and presents her birthdate in the Social Security number box has erred --twice. But as long as the information conveyed is unambiguous, neither error casts her eligibility in doubt. Both should therefore be regarded as immaterial.

These are not the only types of immaterial errors. Consider the electors whom Waller County refused to register in 2008 because they failed to provide ZIP codes on their registration forms. (107) As long as the voter provides a street address and city indicating that she lives in a particular location, the lack of a ZIP code does not cast into doubt her qualifications to vote for the candidates running for office in her precinct. No reasonable decision maker would believe that error alone to be material to eligibility.

The ZIP code example above reflects that in election law, as elsewhere, materiality must be evaluated in the context of other information available to the decision maker, (108) Indeed, this principle is not limited to the information on a given form. I suggest that the materiality of a flaw can and should rely on other reliable contextual information readily available to election officials. Such an approach contributes to ensuring that voting regulations focus on substantive qualifications and actual voter intent, rather than procedural hiccups. Consider a seventy-five-year-old elector, physically appearing before an official, with no doubt about her identity. If she mistakenly offers the current date instead of her birthday on a voter registration form, her form will contain a substantial error. The unambiguous visual evidence, however, renders that error immaterial in assessing her qualifications. Reliable evidence that a flaw is immaterial can come from sources other than the immediate vicinity of the flaw itself.

The question of the extent to which context may be considered, of course, is different from the question of a duty to seek that information out. Recognizing that information available to election officials beyond the four corners of a form may render a flaw on that form immaterial does not itself imply the existence of an affirmative duty to seek or elicit the curative information in question. Such a duty might well involve substantial incremental cost and is not necessary to the argument advanced here. My argument on the contextual nature of materiality demands only that when curative information has been presented, an official may not ignore the information that resolves a pending question simply by asserting that her evaluation of materiality is confined to the source of the error itself.

3. The Dynamic Reassessment of Materiality

That realization, in turn, leads to the insight at the heart of this Article: a determination about the materiality of an election error can and should rely on information that becomes available to government actors at different points in time. Thus far, this Article has addressed only errors for which materiality is a known quantity at the time the error is committed. Even with this limitation of the principle, materiality would still be a superior basis for resolving election errors than the available alternatives--more votes would be counted when the eligibility of the elector and her intended candidates were not in doubt, with limited incremental cost for the decision maker. But the materiality principle begins to bear far more serious fruit with the insight that it is dynamic.

The evaluation of the materiality of an election error--at least with respect to a voter's qualifications--should not be confined to the initial appearance of the error in question. At the moment the error is first evaluated, it is material if it creates real and reasonable doubt as to whether the individual in question is qualified. But that which is immaterial at time t--say, a voter's omission of his apartment number on his registration form, which does not create any doubt about his residency in a particular precinct--may become material at time t + 1, if there later arises reliable evidence calling into question whether he lives in his apartment building at all. (109) Conversely, that which is material at time t--say, a voter's failure to affirm his citizenship on his registration form--may become immaterial at time t + 1 if it later becomes clear that the voter is a citizen. At the time when there is no longer a doubt about the individual's qualifications, the earlier error becomes immaterial. In this Article, I suggest that the original error should therefore not provide cause to deprive the individual newly known to be eligible of her valid vote.

Some applications of this concept, though not identified as such, are readily observable in current practice. The easiest such example is an election official's discovery of a mistake, If a data entry clerk hits an errant key while typing a registrant's personal information into a computerized registration system, that keystroke becomes an error in the individual's record. That error may lead to legitimate questions about, for instance, the individual's true identity. The instant that the error is discovered as such, however, it becomes instantly immaterial, because the individual's qualifications are no longer in doubt. The same is true if the error was caused by the applicant instead of an election official; once the error is discovered as an error, and reliable and accurate information is provided instead, the original flaw is no longer material to determining the voter's qualifications.

The example above depends on the direct correction of flawed information. Errors may also be rendered immaterial by new information resolving eligibility questions raised by an original flaw.

Such an example can also be found in current practice, though it is a bit more difficult to spot. The Help America Vote Act of 2002 (HAVA) was a wide-ranging piece of federal legislation. (110) One of its provisions requires voters with a current and valid driver's license to provide that license number on their voter registration form, and requires other voters to provide the last four digits of their Social Security number if they have one. (111) That number, and the voter's name and date of birth, are compared to motor vehicle or Social Security records. (112) For certain voters--those who are registering by mail and have not yet voted in the state--the comparison becomes part of an identity verification requirement: either the information must match, or the voter must show one of several enumerated forms of documentary identification, before the voter may vote a regular ballot. (113)

In this Article's parlance, the HAVA provision establishes a regime to test voter qualifications in a manner acknowledging that the materiality of a piece of information may vary over time. HAVA requires states to test the identity of new voters registering by mail. (114) It establishes one means to do so by demanding that states ask for information--the driver's license number or Social Security digits--used to probe such applicants' identities. If the information on the registration form matches information held in the records of government databases, the applicant's identity is confirmed. (115) However, if an error on the registration form or in a corresponding government database record causes a mismatch, the individual's identity could be called into question.

At that moment, time t, with the error in the record undiscovered, the mismatch is certainly relevant, and perhaps material, (116) to determining the voter's qualifications. Yet HAVA does not contemplate rejecting outright registration forms with a mismatch. Instead, it allows mismatched voters to show a piece of documentary identification, at time t + 1, up to and including at the polls. (117) Once the voter provides her documentary identification, her identity is no longer in doubt. And because the original error in the mismatch, whatever its source, has become immaterial to determining her qualifications, it no longer interferes with the vote: the voter may vote a regular ballot, like all other eligible and registered electors.

Although both of the examples above are drawn from existing practice, the dynamic nature of the materiality decision has never before been articulated as such in the election context. Indeed, present standard operating procedure is to assess election errors only when they occur, ignoring the potential to reassess with more complete information. For example, once an error has occurred in voter registration, or in the absentee balloting process, that error in practice normally proves determinative for the entire election cycle.

This is a lost opportunity. Indeed, the case for the dynamic assessment of materiality is substantially stronger in the election context than in most other legal arenas. In these other environments, the materiality inquiry usually involves a retroactive counterfactual: a hypothetical ex post look at whether a decision maker might have acted differently had a prior action or piece of information been different. (118) The materiality of misinformation in, or information omitted from, a securities disclosure, for example, is often gauged after financial damage has been done; the question is whether different disclosure might have caused an investor or potential investor to act differently. (119) Similarly, the materiality of other wrongful disclosures or failures to disclose--false statements, prosecutorial evidence, tortious misrepresentations--usually depends on a retroactive counterfactual. (120) Because the relevant decision point has already passed, the utility in allowing materiality

to change over time in these circumstances is confined to gauging the magnitude of remedial and/or retributive liability.121

This is not so in the election context, in which an initial evaluation of materiality usually occurs before the ultimate decision point. The decision impacted by the materiality of an error on most required election records is a decision about the eligibility of a would-be voter. The ultimate decision on that issue can usually be either deferred or repeatedly reevaluated, until the vote is certified.

Consider an error on a voter registration form. When the form is submitted, the election official must assess whether that error is material: given the form as submitted, he must ask whether a reasonable decision maker would have a significant question about the would-be voter's substantive qualifications. For some errors, the answer will be yes; for others, it will be no.

In an election cycle, these need not be the final answers. There will be multiple opportunities to reassess the materiality of that error in context, as other information comes to officials' attention. Perhaps the voter later contacts a registrar with additional curative information. Perhaps the error is uncorrected until Election Day, when the voter is able to submit a segregated provisional ballot with additional curative information. Or perhaps she is summoned before a court overseeing a postelection proceeding. All of these represent opportunities to collect additional information and to reassess the materiality of the registration form's original error. Only the fact that the materiality of the error may change over time gives full effect to these multiple decision points. The dynamic reassessment of materiality converts the inquiry from a focus on the accuracy of the election official's initial assessment and consequent assignment of fault, to a focus on the substantive qualifications of the individual in question. As discussed below, this latter focus better serves the values of the voting process as a whole.
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Title Annotation:Introduction to III. The Materiality Principle B. The Meaning of Materiality in the Election Context, p. 83-118
Author:Levitt, Justin
Publication:William and Mary Law Review
Date:Oct 1, 2012
Words:8582
Previous Article:Jurisdictional procedure.
Next Article:Resolving election error: the dynamic assessment of materiality.
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