Long Lines at the Polls Violate Equal Protection and Require Judicial and Legislative Action
UNIVERSITY OF ST. THOMAS LAW JOURNAL
Long Lines at the Polls Violate Equal Protection and Require Judicial and Legislative Action
Boe M. Piras 0
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LONG LINES AT THE POLLS VIOLATE EQUAL
PROTECTION AND REQUIRE JUDICIAL AND LEGISLATIVE ACTION
BOE M. PIRAS*
“Just as a state may not directly condition the franchise on one’s
place of residence, one’s place of residence cannot cause his or her
vote to be cheapened or devalued.”1 Sadie Rubin was not about to
allow her vote to be cheapened or devalued when she arrived at her
polling place in Gambier, Ohio and found a wait of over nine hours.2
Her polling place, on the campus of Kenyon College, started the day
with only two voting machines for 1,300 voters, only to have one of
those machines break down.3 The final votes at Kenyon College were
not cast until 4:00 the following morning.4 While many are inspired
by the perseverance of these voters,5 it is also evidence of a broken
electoral system that effectively denies millions the right to vote.6
Long lines at polling places, such as those experienced by the
voters of Ohio in 2004, violate the Equal Protection Clause of the
Fourteenth Amendment7 and need to be addressed through both
litigation and legislation. The United States Supreme Court established
that the right to vote is “undoubtedly” fundamental and is protected
by the Equal Protection Clause of the Fourteenth Amendment.8 As
such, election officials have an affirmative duty to create an election
system that provides an adequate and substantially equal opportunity
to vote for all voters and any breach of this duty will be subject to a
strict scrutiny analysis.9 A number of cases, which will be discussed
below, have been very protective of voters’ rights—holding that
waits of up to two hours, in combination with other factors, violate
the Equal Protection Clause. However, these cases have left
prospective plaintiffs with a fair amount of ambiguity over when a strict
scrutiny analysis is triggered and what factors will be analyzed under
such an analysis. This paper proposes both judicial and legislative
solutions to provide some clarity to the protections established in
these disenfranchisement cases.
Section I of this paper will describe the prevalence of long lines
at polling places across the country and how they act as barriers to
voters attempting to cast ballots—effectively denying millions of
people their fundamental right to vote. Section II will describe the
history of utilizing the Equal Protection Clause to protect voters from
long lines at the polls. Section III will advocate that a number of
actions be followed by the courts and by the legislature to ensure
protection of voters’ fundamental right to cast a ballot. First, the
courts must (
) explicitly reaffirm that unreasonably long lines as
short as two hours indicate a breach of the election officials’ duty to
provide for fair elections and would trigger a strict scrutiny
analysis—which would encourage litigation to prevent further
) require, under strict scrutiny analysis, that
election officials consider precinct-specific factors in the allocation of
resources on Election Day. Secondly, to ensure fairer elections, the
legislature must adopt the Count Every Vote Act or similar
legislation that (
) requires consideration of precinct-specific information in
the distribution of resources, (
) requires remedial measures for states
with long lines, and (
) increases the availability and use of early and
absentee voting to ensure that all voters have an equal opportunity to
shape the future of our country.
I. THE PROBLEM: LONG LINES AT THE POLLS CONSISTENTLY LEAD TO
THE DISENFRANCHISEMENT OF A SIGNIFICANT NUMBER OF VOTERS
Long lines of voters waiting to get into their precincts to vote have
made headlines in every national election in recent history. For all voters
who encounter them, long lines present an obstacle to voter participation,10
but for a significant number of voters, long lines are not merely an obstacle,
they are a complete bar to their ability to vote. Nowhere is this problem
9. Ury v. Santee, 303 F. Supp. 119, 119 (N.D. Ill. 1969).
10. Martha R. Mahoney, “Democracy Begins at Home” — Notes from the Grassroots on
Inequality, Voters, and Lawyers, 63 U. MIAMI L. REV. 1, 8 (2008).
more evident and more urgent than in poor and minority neighborhoods.11
While the disenfranchisement of any person or group is unacceptable, the
continuous and widespread disenfranchisement of those populations with
the most on the line is unconscionable. This section will describe the
disenfranchisement that occurs as a result of long lines and highlight the
unfortunate fact that the concerns of the most vulnerable populations in our society
are being silenced on Election Day.
Even if most voters are able to stand in lines for hours like Sadie
Rubin and ultimately cast their ballots, in each election, hundreds of
thousands of voters across the country will have to leave their precincts
without voting.12 In the 2004 presidential election, despite lower than
expected turnout, many lines in Ohio were reported to be two to three hours
long, some were reported to be seven to nine hours long, and there was one
that was as long as twenty-two hours.13 In that election, an estimated 15,000
voters left their polling places in Columbus, Ohio without voting because of
long lines.14 On the same day, only 173 miles northwest of Columbus, in
Youngstown, a pastor estimated that an additional 5,000 would-be voters
left before they were able to vote.15 This unfortunate phenomenon is not
limited to Ohio and the history books. According to a study conducted by
the Massachusetts Institute of Technology and the California Institute of
Technology (MIT/Caltech Study), 44 million registered, eligible voters did
not vote in 2008, the most recent federal election.16 Four percent of those
would-be voters cite long lines as the primary reason for not voting.17 Of
the voters who actually attempted to vote but did not cast a ballot, the
number jumps to 8.1% who cite long lines as the primary reason for not casting
a ballot.18 Overall, in 2008, 1.67 million voters were prevented or deterred
from voting in one of the most historic presidential elections in our nation’s
history due to long lines.19 One commentator described preparing for long
lines as something “so mundane that no one thought to focus on it.”20 While
that may slightly overstate the problem, it is clear that, even if preparations
were made to reduce the length of lines, it is clear that election officials
across the country have much more work to do in preventing long lines at
polling places—at least in some precincts.
Such widespread disenfranchisement alone is enough to trigger a strict
scrutiny analysis under the Equal Protection Clause of the Fourteenth
Amendment. However, the problem is underscored and made all the more
urgent considering the marginalized populations that are most often
disenfranchised. Poor quality precincts—the qualities of which will be discussed
in Section III—resulting in long lines, are not distributed equally among the
electorate and, in fact, have a disproportionate impact21 on the poor and on
minorities. Neighborhoods still today often reflect the effects of racial and
ethnic segregation, including unequal educational levels of voters and
smaller numbers of poll workers.22 Research shows that voters in
low-income and minority neighborhoods are more likely to have low-quality
polling places and misinformed poll workers23—both key factors in causing
long lines.24 In fact, a survey “commissioned by the Elections Assistance
Commission (“EAC”) reported that jurisdictions in which residents had
lower incomes and levels of education tended to have ‘fewer poll workers
per polling place and higher incidences of inadequately staffed polling
places.’ ”25 “In contrast, jurisdictions with higher levels of income and
education [generally] had many poll workers and [reported] few staffing
problems.”26 The result is staggering—white Ohio suburbanites waited an
average of twenty-two minutes to vote in 2004, while urban blacks waited
an average of three hours and fifteen minutes.27 While low-income and
minority communities were already more likely to have lower rates of voter
turnout, the prevalence of low-quality polling places28 and long lines29 in
these communities only further depressed turnout among those populations.
Long lines impose significant—and often insurmountable—barriers on
voters trying to cast their ballots. The number of voters in the past two
elections who have been prevented from voting is staggering. We cannot sit
idly by and let millions of voters—especially those on the margins of our
society—continue to be silenced year after year in the most important
decisions we make as citizens. We need to be proactive in solving this problem
through both litigation and legislation.
UTILIZING EQUAL PROTECTION TO PREVENT LONG LINES AT
Attorneys have successfully utilized the Equal Protection Clause
framework to protect the right to vote since the 1960s. The arguments
utilized by attorneys in the equal protection cases have changed very little in
forty years. Because the right to vote is fundamental, election officials have
a duty to provide adequate and substantially equal voting facilities.30
Because long lines effectively deny voters their fundamental right to cast a
ballot, a wait of over two hours has been held to be a breach of that duty.
Like all denials of a fundamental right, breaches of election officials’ duty
are analyzed under strict scrutiny—meaning that the government must then
show that it was acting out of necessity to advance a compelling state
interest or else its actions will be ruled unconstitutional.
The foundation for this framework began with Ex parte Young, a 1908
landmark U.S. Supreme Court case that empowered citizens with the right
to sue the government to prevent unconstitutional deprivations of their
rights.31 The framework evolved in the early 1960s to establish strong
Equal Protection Clause precedent providing for the protection of the
electorate from vote-dilution and poll taxes. Since 1969, this equal protection
framework has been used to protect the electorate from inadequate voting
facilities that lead to long lines, which effectively deny voters their
fundamental right to vote. This section will analyze the development of this equal
protection framework from 1908 until 2008. First, it will describe how the
electorate may utilize an exception to sovereign immunity, established in
the Eleventh Amendment, to seek an injunction against a state to prevent
further disenfranchisement. Second, it will analyze the development of the
strict scrutiny standard under the Equal Protection Clause of the Fourteenth
Amendment specifically dealing with long lines at the polls. Finally, this
section will conclude by emphasizing the fact that there is strong precedent
under the Equal Protection Clause upon which plaintiffs may rely to compel
states to take remedial action specifically to prevent long lines at the polls.
Utilize Exception to Sovereign Immunity to Seek an Injunction
While asserting an equal protection claim against the government, a
plaintiff must establish his or her right to sue the state to prevent further
violations.32 Before 1908, sovereign immunity, enshrined in the Eleventh
30. Ury v. Santee, 303 F. Supp. 119, 126 (N.D. Ill. 1969).
31. Ex parte Young, 209 U.S. 123 (1908).
32. While it is clear that millions of voters have been prevented from voting as a result of
long lines and that elections could possibly have come out differently in the absence of such
Amendment, prevented citizens from bringing actions against state
governments.33 Ex parte Young created an exception to this rule. In this case, the
State of Minnesota passed a law that fixed the rates at which railroads could
charge to carry merchandise within the state.34 The stockholders of the
railroad companies sued the railroads and Minnesota’s Attorney General to
prevent compliance with, and enforcement of, a law that they believed to be
a violation of the Constitution.35 This case presented a situation where the
Eleventh Amendment’s establishment of sovereign immunity conflicted
with the Fourteenth Amendment’s equal protection and due process
protections. The Supreme Court ultimately held that a suit may be brought against
a public officer who has “some duty in regard to the enforcement of the
laws” to enjoin that officer from enforcing an unconstitutional law.36
Plaintiffs in equal protection cases utilize this exception to sovereign immunity
to assert their claim against the state that election officials violated their
duty to conduct fair elections when voters were unconstitutionally
disenfranchised at the polls.
Establish an Equal Protection Claim for Long Lines and Inadequate
The Ex parte Young exception to sovereign immunity empowered
citizens with the ability to utilize the Equal Protection Clause to protect their
right to vote. Vote-dilution cases like Reynolds v. Sims37 and poll tax cases
like Harper v. Virginia State Board of Elections38 establish the equal
protection standards that set the stage for plaintiffs to utilize the Equal
Protection Clause in preventing long lines on Election Day. The constitutional
protection against long lines in voting received its first significant holding
in Illinois in Ury v. Santee.39 In Ury, the court dramatically invalidated a
city election that was wrought with inadequate voting facilities that caused
long lines and disenfranchised a portion of the city’s electorate.40 Nearly
forty years later, League of Women Voters of Ohio v. Brunner utilized the
same equal protection principles in addressing the barriers to voting that
plagued the 2004 presidential election in Ohio.41 The court of appeals in
disenfranchisement, the focus of this paper is to ensure that remedial action, as was prayed for in
League of Women Voters of Ohio v. Brunner and will be explained in more detail below, is taken.
As such, it will not address the remedies of ordering new elections or damages as a result of
widespread disenfranchisement. League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th
33. See Hans v. Louisiana, 134 U.S. 1 (1890).
34. Ex parte Young, 209 U.S. at 127.
35. Id. at 129-30.
36. Id. at 155-56.
37. Reynolds v. Sims, 377 U.S. 533 (1964).
38. Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966).
39. Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969).
40. Id. at 127.
41. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 466 (6th Cir. 2008).
that case affirmed the analysis in Ury, holding that inadequate voting
facilities and lines as short as two hours could indeed violate the Equal
Protection Clause.42 This string of cases creates the precedent upon which courts
must rely in finding that long lines violate the Equal Protection Clause
because they effectively deny voters their fundamental right to vote.
Vote-Dilution and Poll Tax Cases
In the vote-dilution case, Reynolds, the U.S. Supreme Court laid a
strong foundation under the Equal Protection Clause for protecting the
fundamental right to vote in an unequivocal opinion in 1964—holding in no
uncertain terms that “[w]eighting the votes of citizens differently, by any
method or means, merely because of where they happen to reside” violates
the Equal Protection Clause of the Fourteenth Amendment.43 In this case,
voters in an urban county filed suit, claiming that their votes were being
diluted because the Alabama legislature refused to reapportion state
legislative districts based on constitutionally required, up-to-date population
information.44 The inaccurate apportionment gave the counties with higher
population growth the same number of representatives as the rural counties
with smaller population growth—creating a situation, for example, where
one county with 50,718 residents was represented by one seat in the
Alabama House and another county with 13,462 residents was represented by
two seats in the Alabama House.45 The opinion stated that this was a
violation of equal protection, relying, in part, on the principle that “voters cannot
be classified, constitutionally, on the basis of where they live.”46 In
determining what a valid ratio between population and representatives should be,
the court stated, “[w]e are cautioned about the dangers of entering into
political thickets and mathematical quagmires. Our answer is this: a denial of
constitutionally protected rights demands judicial protection; our oath and
our office require no less of us.”47 The Court ultimately ordered a
reapportionment of the Alabama legislature.48
In 1966, Harper v. Harrison, building off of the equal protection
analysis in Reynolds, overturned a poll tax imposed on voters in the State of
Virginia.49 The Supreme Court held that “once the franchise is granted to
the electorate, lines may not be drawn which are inconsistent with the Equal
Protection Clause of the Fourteenth Amendment.”50 The Court went on to
specify that “a State violates the Equal Protection Clause of the Fourteenth
Amendment whenever it makes the affluence of the voter or payment of
any fee an electoral standard.”51 To counter arguments that this holding and
the holding in Reynolds were just the decisions of activist judges, Harper
states, “[o]ur conclusion . . . is founded not on what we think government
policy should be, but on what the Equal Protection Clause requires.”52
The vote-dilution cases like Reynolds and the poll tax cases like
Harper lay a strong precedent for the holdings in Ury and Brunner—that
the Equal Protection Clause is violated when long lines and inadequate
voting facilities deny voters their fundamental right to cast a ballot. The
argument utilized in more recent cases against long lines and inadequate
facilities, as described below, is that, like the poll tax and vote-dilution
cases, the right to vote, once granted, cannot be denied arbitrarily.
Ury v. Santee resulted from a voters’ contest of a city election that was
marred with inadequate facilities and long lines. Prior to Election Day in
1969, the Village of Wilmette consolidated the number of precincts from 32
to 6 to save money.53 The precincts were equal in land area, but not equal in
the number of registered voters assigned to each precinct—the “two largest
precincts contained roughly two and a half times as many voters as the
smallest precinct.”54 On Election Day, voting was extremely hard for many
residents. Lines were often intolerable. The court found that in many
instances “voters . . . were required to wait for periods of two to four hours to
cast their ballots and were forced to attempt to vote three, four and, in one
case, five times . . . by reason of the excessively crowded conditions at the
polling places.”55 After the election, affidavits were collected from 397
voters—over two percent of all registered voters—stating that each of them
attempted to vote on Election Day but were unable to do so.56
The court in Ury held that the election officials had a duty to provide
adequate and substantially equal voting facilities to all of the citizens of
Wilmette.57 The court found that the officials failed to perform this duty.58
As a consequence of their failure to provide adequate voting facilities, the
disenfranchised voters were denied their fundamental right to vote.59 The
court held that the election was invalid and ordered that there be a new
election at the earliest possible date.60
51. Id. at 666.
52. Id. at 670.
53. Ury v. Santee, 303 F. Supp. 119, 122 (N.D. Ill. 1969).
54. Id. at 123.
55. Id. at 124.
56. Id. at 125.
57. Id. at 126.
59. Ury v. Santee, 303 F. Supp. 119, 126 (N.D. Ill. 1969).
60. Id. at 127.
League of Women Voters of Ohio v. Brunner
Brunner arose out of the 2004 presidential election in Ohio, where
voters had to overcome a variety of barriers in order to cast their
ballots. Among the problems that voters experienced, the League of Women
Voters of Ohio (the League) asserted specifically that the number of voting
machines was inadequate to prepare for the predicted number of voters who
were expected to show up on Election Day and those machines that were
available were misallocated among the precincts and counties.61 The
League stated that the inadequate preparation caused long wait times, which
“caused 10,000 Columbus voters not to vote; caused voters to wait for
hours in the rain; caused one voter to faint in line; and caused many voters
to leave without voting to attend work, school, or provide care to family
Based on these egregious results, the League alleged that the Secretary
of State and Governor established a “voting system [which] denies [voters]
equal protection of the law . . . guaranteed them by the Fourteenth
Amendment to the United States Constitution.”63
Accordingly, the League [sought] preliminary and permanent
injunctive relief requiring the Secretary and Governor “[t]o promulgate, adopt,
and enforce uniform standards” related to various aspects of Ohio’s election
system including voter registration, absentee ballots, voting machines,
ballots, voting procedures, recruiting and training of poll workers, and
assistance for disabled voters.64
The court of appeals held that, “[i]f true, these allegations could
establish that Ohio’s voting system deprives its citizens of the right to vote or
severely burdens the exercise of that right depending on where they live in
violation of the Equal Protection Clause.”65 This holding is solidly based in
the equal protection precedent established in Reynolds and Harper and
brings the Ury protections against long lines and inadequate voting facilities
into the new millennium.
This long string of equal protection cases—from 1964 through 2008—
establishes and affirms a voter’s right to bring a claim against government
officials for establishing a voting system with unreasonable barriers to
voting—such as long lines—that ultimately disenfranchise voters based on
where they live. As demonstrated above, in the last three presidential
elections, inadequate facilities create long lines, and long lines disenfranchise a
significant number of voters—and the impact largely tends to be
disproportionately more severe in poor and minority neighborhoods. This is
unac61. League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 463 (6th Cir. 2008).
62. Id. at 468-69.
63. Id. at 469.
64. Id. at 469-70.
65. Id. at 478.
LONG LINES AT THE POLLS
ceptable for any nation, but it is made all the more indefensible for a nation
that holds itself out to be a beacon for democracy.66 Only after a number of
court cases and judgments similar to those in Ury and Brunner will states be
forced to ensure that the vote of every eligible voter is protected, regardless
of where they live.
III. THE JUDICIARY AND THE LEGISLATURE MUST ACT TO PREVENT
LONG LINES THAT RESULT IN DISCRIMINATORY
The remainder of this paper will outline a number of actions that need
to be taken both by the judiciary and the legislature to ensure that all voters
are afforded an equal opportunity to cast their ballots, regardless of where
they live. First, the judiciary must clarify the standard for utilizing the
Equal Protection Clause in cases where long lines disenfranchised voters. A
clear, unambiguous standard will ensure that plaintiffs continue to bring
these cases and judicially force change in how elections are conducted. The
legislature must also be proactive in solving this crisis. The legislatures
both in Washington, D.C. and in the states must first affirm their
commitment to voter rights and ensure that all neighborhoods—especially
neighborhoods of poverty and color—are equally represented by our elected
officials. The following section will describe in greater detail the need for a
clear judicial standard and legislative reform.
a. Judicial Solution: Reaffirm and Clarify the Standard for Equal
Protection in Voting Specifically Relating to Long Lines
Following the precedent established in Ury and Brunner, it is clear that
courts have the constitutional authority to intervene to remedy the persistent
problem of long lines that lead to the disenfranchisement of voters. The first
remedy proposed in this paper is that the courts must clarify its standard for
voting rights under the Equal Protection Clause. A clearer standard will (
inform members of Congress that long lines are unconstitutional
deprivations of equal protection under the law, which they have a duty to remedy;
) encourage disenfranchised and unconstitutionally burdened voters
to bring cases like Ury and lead to more injunctive relief that forces change
in how election officials prepare for elections, as was prayed for in
Brunner. Evan Davis, former President of the New York City Bar and counsel to
New York Governor Mario Cuomo, argues that, if not for cases like these,
there is “no other way that change [is] going to occur.”67
This paper submits that courts must be explicit in affirming that a wait
that exceeds two hours strongly indicates a breach in the government
UNIVERSITY OF ST. THOMAS LAW JOURNAL
cials’ duty to provide an election system that does not deprive voters of
their fundamental rights and would trigger a strict scrutiny analysis. Until
this point, courts have found that long lines (lines as short at two hours), in
conjunction with a variety of other factors, can violate the Equal Protection
Clause.68 However, the more certainty that the courts provide in stating that
long lines specifically evidence a breach in election officials’ duty, the
more confidently plaintiffs can bring their cases and real change can be
made. This section will (
) explain that two hours is the correct standard for
the courts to continue to use because, in addition to the precedent
established in Ury and Brunner, it accounts for the economic, practical, and
psychological barriers long lines have on the electorate’s ability to vote; and
) recommend that election officials’ actions be analyzed under a strict
scrutiny analysis based on how they utilized a number of precinct-specific
criteria to ensure adequate and substantially equal voting facilities on
i. Two Hours is the Correct Standard Because it Takes into
Account the Economic and Practical Barriers Long Lines
Impose on Voters
In applying the equal protection standard, courts must, in addition to
the two-hour precedent, acknowledge the increasingly significant economic
and practical barriers that voters will face as the length of time that they are
required to wait at the polls increases.
From economic and practical standpoints, a majority of voters in the
United States are not able to devote two to nine hours in any single day to
voting due to responsibilities that cannot be abrogated. The following
paragraphs will outline two of the most common responsibilities that voters
would not have the luxury of abandoning, even for one day. First, the
majority of voters are required to be working during a significant portion of
time that the polls are open, and second, both before and after work, a large
number of voters (both men and women) are responsible for providing
primary childcare to one or more children. In considering these
responsibilities, it is easy to see how unreasonably long lines at polling places have the
real potential to create economic and practical burdens on many employed,
voting parents by requiring that voters either miss work or refrain from
providing essential childcare in order to vote.
A study by the Bureau of Labor Statistics (BLS) shows that the vast
majority of voters are required to work during the normal workweek.69 In
fact, eighty-three percent of all employed members of the electorate worked
68. Brunner, 548 F.3d at 477-78; Ury v. Santee, 303 F. Supp. 119, 124 (N.D. Ill. 1969).
69. BUREAU OF LABOR STATISTICS, AMERICAN TIME USE SURVEY (2008), available at http://
www.bls.gov/tus [hereinafter BLS SURVEY].
on weekdays.70 The number of people who worked during the normal
workweek increased to eighty-nine percent for those who worked multiple
jobs71—a statistic that is more common among lower income voters.
Because only a small percentage of the employed workforce worked from
home,72 the vast majority of employed Americans had to be present at their
workplace during the normal workweek. Since Election Day is always a
weekday, nearly every employed American is required to schedule voting
around his or her work schedule.
Scheduling voting around the average work schedule is not an easy
task. The BLS states that “on days that they worked, more than
threequarters of employed individuals age 15 and over worked between 8 a.m.
and 4 p.m.”73 Unfortunately, the hours that polling places are open are not
significantly different from the average working day of most Americans. In
Minnesota, polling places open between 7 a.m. and 10 a.m. and close at 8
p.m.74 In Ohio, polling places are open between the hours of 6:30 a.m. and
7:30 p.m.75 This means that if a Minnesota voter (who has to be at work at
8:00 a.m., like a majority of the electorate) arrives at her polling place
fifteen minutes before the polls open at 7:00 a.m., but has to wait three hours,
she will be required to miss two hours of work in order to vote. Waiting in
such a long line to vote and showing up to work late would, at a minimum,
impose an economic burden of two hours in lost wages and, at worst, cost
the voter her job.
For many voters, the hours immediately before and after work are just
as valuable as the hours they are at work because that is the time during
which they must provide primary care for their children. Because a
significant segment of the population must spend a portion of each day caring for
children as well as working,76 courts should take childcare, in addition to
employment, into consideration in applying the equal protection standard.
A BLS study demonstrates that fourteen percent of mothers and nearly
seven percent of fathers are responsible for providing primary childcare
before work—between the hours of 6 a.m. and 8 a.m.77 Those numbers
UNIVERSITY OF ST. THOMAS LAW JOURNAL
increase to nearly seventeen percent of mothers and twelve percent of
fathers who are responsible for providing primary childcare after
work—between the hours of 6 p.m. and 8 p.m.78 According to data compiled by the
BLS, the average voter with children spends between eight and nine hours
per day79 at work and spends an additional one half hour to one and one
half hours providing primary childcare to one or more children.80
According to the same data, nearly all of these hours—spent at work and spent
caring for children—occur during normal voting hours, between the hours
of 6 a.m. and 8 p.m.81 This leaves the “average voter with children,” if he or
she does nothing else during normal voting hours, with 3.5 hours
theoretically free to vote on Election Day. Because these statistics are averages,
however, there are just as many people spending more time than average
doing these tasks as there are people spending less time. It is for this reason
that the constitutional standard of two hours to establish a breach in election
officials’ duty, and not three and a half, is appropriate for the courts to
affirm. There are no statistics available that specifically address the amount
of time people have on Election Day to spend attempting to vote, however,
the best information that the U.S. government has regarding how people
spend their time clearly suggests that the amount of time that many voters
with children have available to wait in long lines during voting hours is
somewhat fewer than three and a half hours.
Statistics show that for a significant percentage of voters, a wait time
at a polling place that exceeds two hours would likely cause them to either
abrogate their duties as an employee or as a parent. This paper submits that,
at a minimum, if a voter is forced to abrogate his or her responsibilities as a
parent or as an employee—even for one day—in order to vote, such
evidence must conclusively demonstrate a breach in election officials’ duty to
provide adequate and substantially equal voting facilities.
Two Hours is the Correct Standard Because it Takes into
Account the Psychological Barriers Long Lines Impose on
In addition to the economic and practical barriers that long lines
impose on voters, psychological implications of waiting in long lines have a
significant impact on the amount of time someone is able to spend in a line
waiting to vote.82 Psychologists have studied for years the implications of
long lines on a person’s propensity to remain in a long line. Psychologist
78. Id. Primary care is defined as “physical care of children; playing, reading or talking with
children; travel related to childcare; and other childcare activities.” Id. at 3.
79. Id. at 7.
81. BLS SURVEY, supra note 69, at 14-15.
82. See Theodore Allen & Mikhail Bernshteyn, Mitigating Voter Waiting Times, CHANCE,
Fall 2006, at 25, 26.
Thierry Meyer, from the Universite´ Paris X, states that, psychologically,
“waiting in line is often experienced as an obstruction . . . .”83 In fact, it is
such a significant burden that a sizeable portion of the population either
foregoes voting after standing in a line that is too long, or is deterred from
attempting to vote altogether because of long lines.84 Psychologists refer to
the former as “reneging” and the latter as “balking.”85 Either situation leads
to an unacceptable result: “reduced voter turnout, or ‘deterred’ votes.”86
Psychologists have found that a variety of characteristics tend to
increase a person’s anxiety about waiting in line—which thus makes waiting
in line psychologically more burdensome.87 This section outlines three
primary characteristics associated with waiting in line—uncertain,
unexplained, and unfair—that are particularly relevant to polling places and will
ultimately impact a voter’s propensity to join, or remain waiting in, a long
line on Election Day.
“Uncertain waits” have a negative impact on a voter’s ability to wait in
a long line to vote.88 In fact, former Harvard Business School professor
David Maister states that “the most profound anxiety in waiting is how long
the wait will be.”89 Polling place workers have a variety of levels of
experience90 that may or may not equip them with the skills to judge how long of
a wait it will be for people to vote at any given time. Even if they do have a
general understanding of how long a wait it will be, it is possible that they
will not have the time to explain this information to those in the line. Many
long lines develop as a result of inadequately staffed precincts.91 Even
where there is time, the poll workers will often nonetheless be unable to
convey this information to people who see or hear about the lines before
they arrive at the polling facility and are immediately deterred from
voting.92 The stress due to an uncertain wait at a polling place would likely
only increase if a voter only has a limited amount of time before he or she
has to return to one of the responsibilities discussed above that they are
unable to abrogate—work or childcare.
“Unexplained waits” also have a negative impact on a voter’s ability to
wait in line to vote.93 David Maister illustrates this notion of unexplained
waits with an example from his own life, saying that it is psychologically
UNIVERSITY OF ST. THOMAS LAW JOURNAL
less burdensome waiting longer for a taxi to arrive during inclement
weather than on a clear, summer day.94 This is particularly relevant to
polling places because long waits in line to vote are often unexplained. As
demonstrated below, there is a long list of factors that have an impact on
wait times, each of which has the potential to independently cause long
lines.95 This means that the wait at some polling places can be very
uncertain because the true cause of the long lines may be unknown at the moment
they form. Even hold ups that have an obvious solution, such as running out
of ballots, can take an indeterminate amount of time to resolve. For
example, poll workers may not know why it is taking so long for more ballots to
arrive. All of the potential problems that cause long lines also lead to
uncertainty, and uncertainty leads to both balking and reneging and discourages
voters from ultimately casting their ballots.96
“Unfair waits” have a negative impact on a voter’s ability to wait in
line to vote as well.97 This notion is particularly relevant to polling places
with long lines because the perception of the inequity in waiting for hours
to vote is commonly held among most of the electorate, especially those
voters who are actually standing or sitting in a long line waiting to vote. To
explain the general idea, David Maister uses the example of customers
waiting in line while a receptionist answers the telephone.98 He explains
that a feeling of inequity arises out of a situation where customers perceive
others being given priority or being helped first.99 Voting lines, and the
quality of polling places generally, are largely dependent upon the
neighborhood in which the polling place is located.100 During every election,
news stories publicize this inequity by showing some polling places where
voters are able to walk right up to the ballot box within a matter of minutes
and other polling places where voters have to wait for hours in lines that
extend for blocks. The undeniable inequity of the circumstances will surely
impact a voter’s psyche and his or her ability to survive a long line to vote.
Psychologists have determined that each of these psychological factors
has an independent, negative impact on people as they wait in a line. While
waiting in long lines to vote, one might feel the effects of any or all of these
elements and casting a ballot may ultimately prove to be unbearable due to
the stress of waiting in the line. In fact, according to the MIT/Caltech study,
three percent of all registered and eligible voters who did not attempt to
vote on Election Day cited the prospect of long lines as the primary reason
for not attempting to vote.101 While some may argue that choosing not to
stand in a voting line for psychological reasons is a choice102 that each
voter has to make, it is clear from the MIT/Caltech study that the mere
prospect of waiting in unreasonably long lines is so psychologically
burdensome to some U.S. voters that many of them will not even attempt to go
vote.103 In fact, Alexander Belenky and Richard Larson, mathematicians
from MIT who studied the impact of long lines on the 2004 and 2008
presidential elections, cite both balking and reneging as having a substantial
impact on elections.104 Among the people who attempted to vote, but
ultimately did not, eight percent cited long lines as the reason for them not
casting their ballots.105 These statistics are staggering and support the
notion that the psychological impact of waiting in lines is real and it deters a
substantial number of voters in every election. Not only do long lines have
psychological implications for the elections in which they occur,
psychological implications of long lines can also have significant lasting effects:
Long lines are not just a quadrennial problem: they leave lasting
scars on the democratic process. The cost of voting encourages
people to become habitual non-voters, to rationalize voting as too
much trouble and ineffective, to not register for elections they
won’t participate in, and to become cynical about the idea of
elected representation. Whole communities, and minority
communities in particular, gain reputations for low participation. This
fact is duly noted by the political establishment, which attends to
the needs of those communities accordingly.106
Psychologists have yet to study specifically how long people are able to
stand in line to vote, but it is clear that these psychological barriers become
significantly more burdensome as the wait time increases. As the
psychological burden on voters increases, the number of people who cast ballots
decreases. This adds even more weight to the holdings in the string of cases
UNIVERSITY OF ST. THOMAS LAW JOURNAL
cited above stating that waits in line to vote that exceed two hours are an
unreasonable barrier to voting.
Unreasonably long waits in line to vote on Election Day act as real
economic, practical, and psychological barriers to a significant number of
voters. The result of these burdens is the complete disenfranchisement of a
statistically significant portion of the electorate. Courts must affirm and
clarify that a wait of over two hours to vote is conclusive evidence of a
breach of the government officials’ duty to provide an adequate election
system on Election Day under a strict scrutiny analysis required by the
Equal Protection Clause of the Fourteenth Amendment. This conclusion is
) by the notion that no person should have to suffer the
economic burden of missing work or have to abrogate their duties as a parent to
care for their children in order to cast their vote; (
) by the fact that there is
no “average voter” and that indeed a significant number of parent voters
will be required to spend a majority of the normal voting hours working and
providing primary childcare to their children; and (
) by the fact that, in
addition to economic and practical barriers, potential voters face strong
psychological pressures as a result of waiting in long lines that lead to reneging
or balking from standing in line.107
Edward B. Foley, an election law expert from Ohio State University,
confirmed the court’s standard of an unreasonable wait stating that, despite
the frequency of lines upwards of seven or eight hours in the 2004 election,
even “[w]hen your line gets to two or three hours, it’s system failure.”108
Election officials across the nation are charged with ensuring that complete
“system failures” do not occur. When they do (and voters are burdened by
economic, practical, and psychological barriers), courts should be clear in
holding that people are effectively denied their right to vote and that
election officials have breached their duty to provide an adequate election
How Should Courts Evaluate the Government’s Actions?
When a fundamental right is infringed upon by the government, courts
must undertake a strict scrutiny standard of review—weighing the
government’s interest against the right that is infringed upon.109 Reynolds held, in
no uncertain terms, that the right to vote is fundamental under the Equal
Protection Clause and infringement upon that right must be subject to the
strictest of scrutiny:
107. The two hour constitutional standard asserted in this paper is more lenient than what
many members of Congress deem to be an “unreasonable” amount of time to have to stand in line
to vote. The Count Every Vote Acts of 2005 and 2007 require precincts where waits were over 90
minutes in any election for a federal office to undertake “remedial” measures. Count Every Vote
Act, S. 450, 109th Cong. § 301 (2005).
108. Liptak, supra note 13, at 37.
109. Reynolds v. Sims, 377 U.S. 533, 562-63 (1964).
LONG LINES AT THE POLLS
Undoubtedly, the right of suffrage is a fundamental matter in a
free and democratic society. Especially since the right to exercise
the franchise in a free and unimpaired manner is preservative of
other basic civil and political rights, any alleged infringement of
the right of citizens to vote must be carefully and meticulously
Under this standard, unless election officials can demonstrate that the
decisions they made in allocating resources (which ultimately resulted in
unreasonably long lines at the polls) were necessary to achieve a compelling state
interest, a court should find that the government officials breached their
duty and the Equal Protection Clause was violated. This section will outline
some of the most important decisions made by election officials that impact
the length of lines at the polls and advocate that a number of
precinctspecific criteria be used in evaluating how those decisions were made under
a strict scrutiny analysis.
Election officials have a duty111 to provide “adequate and substantially
equal voting facilities” to all voters, regardless of how much money they
have or where they live.112 To fulfill this duty, they must ensure that a
multitude of factors are addressed in the preparation of every polling place
for every election. As described above, any number of factors can
independently lead to long lines at the polls.113 Alexander Belenky and Richard
Larson, the professors at MIT who studied long lines in the 2000 and 2004
elections, created a list of the top nine government actions that they found
to cause long lines in presidential elections.114 Of the nine causes, five are
the direct result of an affirmative act by the government—establishing an
insufficient budget, utilizing inefficient voting machines, not allowing early
voting, not providing adequate instructions to voters about how to operate
the voting machines, and utilizing unscientific methods to deploy voting
machines and poll workers among the precincts.115 The remaining three
causes of long lines stem from an error in the government’s preparation for
readily predictable issues that arise on Election Day—underestimating voter
turnout, being unprepared for an electorate that is mobilized to vote, and
110. Id. at 561-62.
111. Election officials have an affirmative duty to adequately prepare for and conduct
elections in a way that is consistent with the Constitution. Because of this affirmative duty, a plaintiff
is not required to demonstrate intent to discriminate. The court in Ury held:
[I]t is not necessary to allege or prove that the defendants intended to deprive plaintiffs
of their constitutional rights or that they acted wilfully [sic], purposefully or in
pursuance of a conspiracy. It is sufficient to establish that the deprivation of constitutional
rights or privileges was the natural consequence of the actions of defendants acting
under color of law, irrespective of whether such consequence was intended.
Ury v. Santee, 303 F. Supp. 119, 126 (N.D. Ill. 1969).
113. Belenky & Larson, supra note 104.
UNIVERSITY OF ST. THOMAS LAW JOURNAL
being unprepared for various weather difficulties.116 With an understanding
of what causes long lines, election officials have a duty to act to address
each of them to ensure that they provide adequate and substantially equal
The Count Every Vote Acts of 2005 and 2007 assert a number of
specific factors that election officials must consider in distributing resources
among the precincts to account for the causes of long lines outlined by
Belenky and Larson. The factors outlined in the Count Every Vote Acts are
as follows: the voting age population, voter turnout in past elections, the
number of registered voters, the number of voters who have registered since
the most recent federal election, census data for the population served by
each voting site, the educational levels and socio-economic factors for the
population served by each voting site, the needs and number of disabled
voters and voters with limited English proficiency, and the type of voting
systems used.117 Consideration of these factors is essential in ensuring that
Election Day will run smoothly at each and every precinct. It is not enough
for election officials to be satisfied with decent election results that are
acceptable only because of averages compiled from data from all of the
precincts. If voters are disenfranchised in only one precinct, the officials have
failed to fulfill their duty and their actions in preparing that precinct will be
analyzed with strict scrutiny.
Election officials have a duty to adequately consider a number of
precinct-specific factors, such as those outlined in the Count Every Vote Acts,
in the decisions that they make in preparing the precincts for Election Day.
This is not an unreasonable burden. Consideration of these precinct-specific
factors is essential to election officials’ duty to ensure the administration of
fair elections in every precinct. If a plaintiff is able to demonstrate that any
of these or other essential factors were not taken into consideration or were
misapplied and long lines and disenfranchised voters resulted, a court
should find that the government officials in charge of the election breached
their duty to provide adequate and substantially equal voting facilities.
b. Legislative Solution: Adequately Prepare for Elections to Prevent
Long Lines at the Polls
If the legislatures in Washington, D.C. and in the states are proactive
in protecting the peoples’ right to vote, these matters would never have to
see the inside of a courtroom. The Count Every Vote Act addresses many of
the leading causes of the persistent problem of long lines and their
discriminatory impact on voters. While that particular Act does not necessarily have
to pass, three of its elements need to be addressed in any future voter
117. Count Every Vote Act, Senate Bill 450, at § 299; Count Every Vote Act, S. 804, 110th
Cong. § 299 (2007).
LONG LINES AT THE POLLS
tection legislation—requiring the consideration of precinct-specific
information in distributing resources, requiring remedial action for precincts
where lines of over ninety minutes have occurred in the past, and increasing
the availability and use of early and absentee voting.
While many states cap the number of people that make up a precinct,
the specific needs of the people that make up each precinct are not always
analyzed.118 To illustrate this point, the GAO found that eighty-four percent
of all voting facilities in 2000 had one or more impediments for people with
disabilities—and twenty-eight percent of voting facilities did not allow for
curbside voting to remedy the situation.119 The Count Every Vote Act
would require election officials to consider precinct-specific information in
the distribution of election resources.120 The Act would require
consideration of both general demographic information and voting-specific
information unique to each precinct. Consideration of the following demographic
information suggested by the Count Every Vote Act, if used appropriately,
will be essential in eliminating the discriminatory impact that long lines
have on voters: age, educational level, socio-economic status, number of
disabled voters, English proficiency and other census data.121 Consideration
of the following voting-specific qualities of each precinct will assist
election officials in reducing long lines at all precincts: turnout in past elections,
number of registered voters who have registered since the most recent
federal election, and type of voting systems used.122 With a better
understanding (or some understanding at all) of who will be showing up to vote on
Election Day and their specific needs, election officials can better allocate
the necessary resources and prevent long lines before they form.
Long lines have a discriminatory impact on voters and the Count
Every Vote Act would limit the wait for voters to ninety minutes.123 While
this paper asserts that, at a minimum, two hours is the point at which the
government officials have breached their duty, the legislature can—and
should—establish a standard that protects more people and ensures equality
in the electoral process. The bill specifically states that if, in a past federal
election, a precinct has seen waits that exceed ninety minutes, it must
comply with a remedial plan that would be established by the Election
Assistance Commission. Ideally, the Commission would ensure that
precinctspecific information was used and that resources were allocated
accordingly. A structure such as this is essential in identifying the problem
precincts and targeting the federal government’s attention and energy on
118. Alvarez & Hall, supra note 24, at 498.
119. U.S. GEN. ACCOUNTING OFFICE, VOTERS WITH DISABILITIES: ACCESS TO POLLING PLACES
AND ALTERNATIVE VOTING METHODS 23 (2001), http://www.gao.gov/new.items/d02107.pdf.
120. Count Every Vote Act, Senate Bill 804, at § 299.
123. Id. at § 304.
UNIVERSITY OF ST. THOMAS LAW JOURNAL
finding an adequate remedy for each of them. Because this is a
precinctspecific problem, it will only be solved with precinct-specific solutions and
that is exactly what the Count Every Vote Act provides.
A significant barrier to voters and a leading factor in causing long lines
is the fact that nearly the entire country is required to vote in a twelve-hour
window on a single day. To solve this problem, the Count Every Vote Act
would require all states to allow for early voting.124 Early voting is an
incredible tool in reducing the number of voters attempting to vote on
Election Day and may actually increase voter turnout.125 In 2004, twenty-two
percent of all voters cast early ballots, significantly lightening the burden on
those states that allowed it on Election Day.126 The Count Every Vote Act
should go beyond this, however, and require states to allow for no-excuse
absentee voting as well. Many states currently allow for absentee voting
only if a voter is going to be out of the precinct on Election Day or for a
short list of other reasons.127 These states need to drop these limitations,
allow anyone to vote absentee, and encourage them to do so. Oregon, for
example, conducts all of its statewide elections solely by mail ballot.128 The
result in that state has been very positive—only two percent of voters
reported having any difficulties at all.129 If election officials in every state can
increase the number of people who do not have to show up at the polls at
all, as well as increase the number of people who have voted prior to
Election Day, they will clear a tall hurdle in reducing the pressure on precincts
on Election Day. As of 2008, thirty-one states allow for some type of early
voting and twenty-eight states allow for no-excuse absentee voting.130 Both
of these solutions need to be promoted and expanded to all states to ensure
equality in our electoral process.
Opponents of these legislative measures cite security concerns with
allowing people to vote early and vote by mail. Concern for security in
voting is certainly valid and should not be taken lightly, however, all states
already allow absentee voting in some circumstances. There would be few
people who would argue that the right to an absentee ballot should be taken
away completely. Mail fraud is already a crime in the United States.131
Legislation should not be drafted on the assumption that any benefit that would
result would be outweighed by people rampantly committing felonies.
Political scientist and law professor, David Schultz, has concluded that voter
fraud is actually less common than one would think:
Overall, despite some episodic and sporadic accounts, the best
available evidence shows that voter fraud is a minor issue in
American elections. There is little hard evidence that it occurs,
even less evidence that it is widespread, and almost no indication
that it has altered election outcomes.132
With the necessary precautions in place, no-excuse absentee and early
voting are safe tools that ensure that everyone will have their votes counted on
Election Day, no matter where they live.
By enacting these three legislative measures, Congress will make great
strides in eliminating the barrier that long lines have to voting and their
disproportionate impact on poor and minority neighborhoods. More funding
will certainly be necessary in certain precincts, but the three measures
described above do not necessarily result in the need for significant increases
in overall spending. In fact, early and absentee voting reduce administrative
burdens and are less costly methods of voting than requiring voters to vote
in person on Election Day.133 These three legislative measures encourage
the reallocation of resources to where they are needed most, which will
surely lighten the burden on precincts on Election Day and lessen the
discriminatory impact of long lines at the polls.
It is clear that long lines continue to be prevalent in elections year after
year and are inherently disenfranchising—and discriminatory in the impact
that they have on poor and minority communities. In each election, the
voices of millions of eligible voters are silenced as we debate the most
important issues of our time. There are specific actions that need to be taken
by the judiciary and by the legislature to ensure that this trend does not
continue. The judiciary has developed a clear equal protection standard over
the past forty years that protects the voters from having their right to vote
denied. This precedent needs to be clarified so that it applies specifically to
long lines to encourage plaintiffs to bring cases that force state officials to
ensure equality among the precincts. However, because it is ultimately the
responsibility of the legislature to ensure equality in elections, Congress
must pass the Count Every Vote Act or similar legislation that specifically
addresses the causes of long lines and ensures that the disenfranchisement
of millions will not occur in another election.
* University of St. Thomas, BA 2006 , JD 2009 .
1. League of Women Voters of Ohio v . Blackwell , 432 F. Supp . 2d 723 , 728 (N.D. Ohio 2005 ).
2. League of Women Voters of Ohio v . Brunner , 548 F.3d 463 , 467 ( 6th Cir . 2008 ).
5. Kenyon College News Room: Onslaught of Kenyon Students Voting Makes National Headlines , http://www.kenyon. edu/x22499.xml (last visited May 4 , 2009 ).
6. Adam Cohen , Editorial, No One Should Have to Stand in Line for 10 Hours to Vote, N.Y. TIMES , Aug. 25 , 2008 , at A18, available at http://www.nytimes.com/ 2008 /08/26/opinion/ 26tue4.html.
7. U.S. CONST. amend. XIV, § 1 .
8. Reynolds v. Sims , 377 U.S. 533 , 562 - 63 ( 1964 ).
11. Robert F. Kennedy , Jr., Was the 2004 Election Stolen? , ROLLING STONE , June 15, 2006 , at 46.
12. Mahoney , supra note 10.
13. Adam Liptak , Voting Problems in Ohio Set Off an Alarm , N.Y. TIMES , Nov. 7 , 2004 , § 1, at 37, available at http://www.nytimes.com/ 2004 /11/07/politics/campaign/07elect.html#.
14. Cohen, supra note 6.
15. Id .
16. Voter Registration: Assessing Current Problems: Hearing Before the S . Rules Comm., 111th Cong . 1 ( 2009 ) [hereinafter MIT/Caltech Study] (Testimony of Prof .Stephen Ansolabehere), available at http://rules.senate.gov/public/index.cfm?FuseAction=CommitteeSchedule. Testimony&Hearing_ID= c33b5ae8 -aee8 - 413e - 85db -a256ce6169f6&Witness_ID=e394ba39-8bf4- 441c-8ed3-6e8c68cf4b23.
17. Id . at 15.
18. Id . at 20.
19. See id.
20. Cohen, supra note 6.
21. See id.
22. Mahoney , supra note 10.
23. “ Nearly seventeen percent of predominantly African American communities reported inadequate numbers of poll workers . ” Id. at 4.
24. R. Michael Alvarez & Thad E. Hall, Controlling Democracy: The Principal-Agent Problems in Election Administration, 34 POL'Y STUD . J. 491 , 497 - 98 ( 2006 ).
25. Mahoney , supra note 10, at 4 ( quoting U.S. ELECTION ASSISTANCE COMM'N , A SUMMARY OF THE 2004 ELECTION DAY SURVEY 3 ( 2005 ), available at http://www.eac.gov/clearinghouse/ docs/eds2004/2004-election-day-survey/attachment_download/file).
26. Mahoney , supra note 10, at 4.
27. Kennedy , supra note 11.
28. Matt A . Barreto et al., Are All Precincts Created Equal? The Prevalence of Low-Quality Precincts in Low-Income and Minority Communities, 62 POL . RES. Q. 445 , 455 ( 2009 ).
29. Kennedy , supra note 11.
66. The Flickering Beacon, ECONOMIST , Feb. 3 , 1990 , at 30.
67. Evan Davis , Why Should I Have To Tell Them? The Necessary Role of the Judiciary in Achieving Reform , 69 ALB. L. REV. 863 , 866 ( 2006 ).
70. Id .
71. Id .
72. Id .
73. Id .
74. Minnesota Office of the Secretary of State Frequently Asked Questions , http://www.sos. state.mn.us/home/index.asp?page=12& select_faq_by_faq_cat=2&record_page=1#30 (last visited May 4, 2009 ).
75. Jennifer Brunner , Ohio Secretary of State: Election Day Procedures, http://www.sos. state.oh.us/SOS/elections/voterInformation/procedures. aspx (last visited May 4 , 2009 ).
76. “In 2008 , 35 . 7 million households (46%) had children under the age of 18 living at home[.]” Jack Gillum, Number of Households with Kids Hits New Low , USA TODAY, Feb . 26 , 2009 , available at http://www.usatoday.com/news/nation/census/2009-02-25 -families-kids-home_ N.htm .
77. Mary Dorinda Allard & Marianne Janes, Time Use of Working Parents: A Visual Essay, 131 MONTHLY LAB . REV. 3 , 8 ( 2008 ).
83. Thierry Meyer, Subjective Importance of Goal and Reactions to Waiting in Line, 134 J. OF SOC. PSYCHOL . 819 , 820 ( 1994 ).
84. MIT/Caltech Study, supra note 16.
85. Allen & Bernshteyn, supra note 82, at 26.
86. Id .
87. See David H. Maister , The Psychology of Waiting Lines, http://davidmaister.com/pdf/ PsycholgyofWaitingLines751.pdf (last visited May 4 , 2009 ).
88. Id . at 5.
89. Id .
90. Alvarez & Hall, supra note 24, at 503-04.
91. Mahoney , supra note 10, at 4.
92. Allen & Bernshteyn, supra note 82, at 26.
93. Maister , supra note 87, at 5.
102. On the Senate floor, debating the Count Every Vote Act, Senator Conaway dismissed long lines as a mere inconvenience: I want us to put that inconvenience [of long waits to vote] into a proper perspective. It goes without saying we should eliminate any barrier to voting that we reasonably can eliminate. That said, one day last year the Afghan people got up early one morning, put on their best clothes and set out to vote for the first time. They left the safety of their homes to vote at the express threat to their safety and very lives. They were threatened with being shot and killed or maimed by bombs. In addition, many stood in line all day to vote. 151 CONG. REC. H126 (daily ed . Jan. 6 , 2005 ) (Statement of Sen . Conaway).
103. MIT/Caltech Study, supra note 16.
104. Alexander S. Belenky & Richard C. Larson, To Queue or Not to Queue? : In a U.S. Presidential Election, That Should NOT be a Question! , OPERATIONS RESEARCH/MGMT. SCI. TODAY , June 2006 , available at http://www.lionhrtpub.com/orms/orms-6-06/queues.html (“ If only 19 potential voters who came to vote in each precinct in . . . 12 counties balked or reneged, one cannot be sure that the 2004 election outcome in Ohio would have been the same .”).
105. MIT/Caltech Study, supra note 16.
106. Michael Peshkin, Are Long Lines the 'New Poll Tax'? , IN THESE TIMES, Nov . 25 , 2008 , available at http://www.inthesetimes.com/article/4068/ are_long_lines_the_new_poll_tax.
124. Id . at § 338.
125. See Paul Gronke, Eva Galanes-Rosenbaum & Peter A . Miller , Early Voting and Turnout , 40 PS: POL. SCI. AND POL . 639 ( 2007 ).
126. Stephen Ohlemacher & Julie Pace , A Third of Electorate Could Vote Before Nov. 4 , Sept . 21 , 2008 , http://abcnews.go.com/Politics/wireStory?id= 5849955 .
127. National Conference of State Legislatures, Absentee and Early Voting ( 2009 ), http:// www.ncsl.org/programs/legismgt/elect/absentearly.htm [hereinafter NCSL].
128. Id .
129. Alvarez & Hall, supra note 24, at 500.
130. NCSL, supra note 127.
131. 18 U.S.C. § 1342 ( 1994 ).
132. David Schultz, Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement, 34 WM . MITCHELL L. REV. 483 , 501 ( 2008 ).
133. Gronke et al., supra note 125 , at 644.