2004: A Report Card

Our election system is badly broken

by Tova Andrea Wang

The American Prospect magazine, January 2005

Americans know the 2000 election was a fiasco. What they don't know is that the 2004 election, in many ways, might have been even worse. The purported margin of victory in November has led many to believe that the process went relatively smoothly. But the appearance of a smooth election obscured troubling developments, from simple human errors to likely felony violations of federal law. In addition to the ineptitude and faulty machinery that led to the problems of 2000 (both of which persisted), 2004 should be remembered as the year that a number of partisan election officials and party leaders usurped the process and manipulated the new federal voting law in ways that disenfranchised voters.

When Congress passed the Help America Vote Act (HAVA) in 2002, Americans rightly believed it represented a step forward in improving our broken voting process. We now realize that the combination of flaws and gaps in that law, plus a highly charged campaign season, led in many ways to more obstacles to voting. In fact, had the popular vote been closer in just one state, 2004 could have been a legal battle royal that would have made 2000 look like a court hearing for a traffic ticket.

At every step of the way, election officials in key states threw up unnecessary barriers to voting. Voter registration was made more difficult than ever. Officials misconstrued and abused identification and provisional-ballot rules. There were far too few voting machines in some places, leading to unacceptable wait times, and there were suspicious voting-machine "errors?' And not surprisingly, given the atmosphere, there were numerous allegations of voter intimidation and vote suppression.

That is not to say that nothing in the system went right. But credit for what did go well goes mostly to the voters themselves, and to volunteer lawyers, monitors, and poll workers.

VOTER REGISTRATION

Long before 2004, the process of voter registration was unnecessarily onerous in this country. It was made an even bigger barrier to participation this time, with election officials using various technicalities to keep people off the rolls.

For example, HAVA required that mail-in voter-registration forms include a check-off box verifying that the voter is a U.S. citizen. It required states to notify voters who failed to "answer the [citizenship] question" and provide them with an opportunity to correct the form prior to the next federal election.

Under existing federal statute (the "Motor Voter" law), registration forms already include language above the signature line requiring the applicant to affirm his or her citizenship, making the new citizenship box redundant. Nonetheless, some election officials last year decided to reject the applications of thousands of people who signed the affirmation but failed to check the citizenship box. To complicate matters, they insisted that registrants correct their forms before the original voter registration deadline-a month before the election. As a result of this double-barreled mandate in Florida, for example, thousands of registrations were rejected and those voters were disenfranchised. It should surprise few readers to learn that the burden fell heavily on minority voters. In Miami-Dade County, for instance, 35 percent of the applications rejected as incomplete came from African Americans, who comprise 20 percent of the county's population.

Other technicalities were invoked to disqualify voter registration forms. Most notorious was a directive (since rescinded) from Ohio's secretary of state that all voter-registration forms be on 80-pound paper stock, because lightweight cards could be shredded by postal equipment. This meant that if someone downloaded an application from the Ohio Board of Elections' Web site and submitted it, that registration may have been rejected.

VOTER IDENTIFICATION

HAVA states that beginning in 2003, first-time voters who register by mail must present identification (a current and valid photo ID, utility bill, bank statement, or government document with name and address) when registering or voting. Advocates of such measures argue that they are necessary to prevent fraud, though there is no evidence that such election fraud is a serious problem. Indeed, voting experts agree that the real problem in America is that far too few of us vote, not too many.

Civil-rights advocates, meanwhile, predicted that the new requirement would chill the exercise of voting rights and would especially burden minorities, the disabled, young people, and the poor, who too often lack driver's licenses or other forms of identification the law requires. A Latino family I met while doing nonpartisan get-out-the-vote work in Pennsylvania was a case in point: Although family members had received valid voter-registration cards, they were still afraid to vote because they had no other ID and all their household bills came in the name of another family member.

Sadly, some state legislatures saw this new HAVA provision as a great opportunity to go even further. As a result, 17 states now have laws that require all voters-not just new ones-to show identification at the polls. And four of those states require photo identification, according to electionline.org.

Troubling anecdotal evidence suggests that these new requirements have indeed led to some being denied the right to vote; lacking ID, they were either wrongfully turned away or forced . to cast provisional ballots that may or may not have been ' counted. Several reports of abuse . during the presidential primary elections foreshadowed the problem. In South Dakota, for example, primary voters at heavily 3 Native American polling sites were turned away because they lacked photo identification. And ç during Ohio's primary, the NAACP and other voting-rights groups received numerous complaints r from African American voters in Cleveland who said that they were wrongfully asked for ID.

Similar grievances arose in the general election. In New York City, for instance, some Asian American voters were "subjected to racial profiling at the polls, since they were routinely asked for identification in order to establish their eligibility to vote, even when it was not required," reported Margaret Fung, head of the Asian American Legal Defense and Education Fund. As a New York Times editorial put it on November 4, "Voter identification requirements were arbitrarily, and often incorrectly, enforced?' All of the organizations running voter hotlines received complaints about ID enforcement.

As with every other aspect of the process, election officials aggravated the possible disenfranchising effects of the law. In Ohio, officials decreed that if a first time voter who registered by mail lacked identification when he or she showed up to vote and cast a paper provisional ballot, the ballot wouldn't count-unless he or she somehow produced ID by the end of election day. HAVA states that provisional ballots are to be verified and counted after the election according to state law, which in Ohio does not require identification. A month before the election, the League of Women Voters and others challenged Ohio's directive in court-and lost. Elsewhere, according to Demos, a research and advocacy group, two states refused to give provisional ballots to voters who could not provide ID, and 10 others gave such voters provisional ballots but automatically threw them out if the voter could not present identification by the end of election day.

PROVISIONAL BALLOTS

The 2002 election reforms under HAVA included an important new protection: the right of a voter who was not on the registration list to cast a provisional ballot that would be counted once election officials could confirm its validity. This fail-safe measure was designed to avoid a repeat of the terrible scenes of 2000, in which many eligible voters were turned out of polling sites because their names did not appear on the rolls.

Specifically under HAVA, the right to cast a provisional ballot and to have it counted depends on being a registered voter in the. jurisdiction. As defined by the National Voter Registration Act, jurisdiction means the geographic area responsible for voter registration (usually the county), and not the precinct or polling site. Sadly, that's not how many state officials this area interpreted the new rules, and in this area they misused their powers to great effect. Several state election officers ordered counties to reject provisional ballots cast in the wrong polling place. According to electionline.org, states threw out provisional votes cast in the wrong precinct-even with respect to selection of candidates for statewide offices such as governor or U.S. senator. And only 17 states counted partial ballots cast by voters in the wrong precinct.

In Ohio, Missouri, Colorado, Michigan, and Florida, Democrats and voting-rights organizations challenged these directives in court. In many cases, the U.S. Department of Justice took the unusual step of intervening and telling the judges that provisional ballots cast in the wrong place should not count for any office, leading the chairman of the Michigan Democratic Party to say, "The Department of Justice's eleventh hour request reeks of partisan mischief and is an abuse of our justice system?' After several rounds of litigation, the courts rebuffed the challenges and upheld the directives in every one of these states.

There are many legitimate reasons why a voter might appear in the wrong polling location, especially in an election like 2004 with its millions of first-time voters. Voters who have moved recently may show up at their old site, polling locations change and voters aren't notified, or a voter's registration is filed in the wrong place through administrative error. Moreover, it's not as if provisional ballots are sorted and counted at the precinct; that happens at the board of elections.

Nonetheless, many election officials were successful in their mission. For example, according to the Palm Beach Post, the vast majority of provisional ballots cast in Florida were disqualified, many because the voter was at the wrong polling site. In the Cleveland area, one-third of the provisional ballots were invalidated in 2004, compared with only 17 percent in 2000. And in that decisive state, fully 155,000 provisional ballots were cast last November. We can only wonder how many of those weren't counted because they were cast in the wrong place. Multiply that across 50 states and the number of votes cast provisionally and tossed out might have been enormous.

VOTING MACHINES

Although worries about the security and accuracy of electronic voting machines were the focus of pre-election anxiety, the biggest machine problem on election day ended up being simply the number of machines employed. Although they knew to expect extraordinarily high turnout, election officials in many jurisdictions nationwide failed to supply adequate numbers of voting machines, leading to lines and wait times that were not just unacceptably high; they were possibly an unconstitutional denial of voting rights.

In many places, voters had to wait in line for five, six, or even 10 hours. Observing early voting in a Broward County, Florida, shopping mall, I encountered numerous voters, some elderly, who had waited six hours to vote. Those I talked to were undeterred, but who knows how many others gave up and went home?

As closing time approached on election day in Ohio, a federal judge ruled that the continuing long waits were an abridgement of the right to vote and ordered paper ballots distributed to voters still in line. The judge said, "Participation in this democracy should not be as onerous as it is being made today." According to The Columbus Dispatch, thousands of voters remained in line when the polls closed at 7:30 p.m.

The worst of it evidently was on the campus of Kenyon College, where there were only two voting machines, and at least one student reportedly waited 10 hours-until 2 a.m.-to vote. When the federal-court ruling came down, the students demanded to vote on the machines, chanting, "No paper!" Educated as they were, they feared that paper ballots would not be counted. "The students understood right away that this was a partisan effort to suppress voting," said Lincoln Mitchell, an election observer.

Notably, the distribution of voting machines within states and even within counties varied widely. Huge disparities in the number of voting machines per capita might even present an equal-protection problem under Bush v. Gore, the Supreme Court's final verdict on the 2000 election. The Court there said that equal protection applies not only to who is allowed to vote but also to the manner in which people vote.

According to Ned Foley of the Moritz College of Law at the Ohio State University, "This principle would seem easily to cover voting-machine disparities that have the effect of imposing differential barriers to the voting booths for citizens in different parts of the state."

In the months leading up to the 2004 election, computer scientists, politicians, and concerned citizens warned that new computer voting machines might be vulnerable to hacking, manipulation, or malfunctions. Many called for a voter-verifiable paper trail allowing voters to double-check their computer vote and election officials to manually audit them. But only Nevada managed to implement this technology in time, and just two states have vowed to require a verifiable paper trail by 2006.

The security and effectiveness of the computer machines remains a huge question mark-and a source of furious speculation on the Internet in the election aftermath. Unquestionably there were mechanical problems on election day, including allegations of voters' choices being switched by the computer. In one such case, nearly 4,000 computer votes in suburban Columbus, Ohio, were mistakenly given to President Bush.

Meanwhile, pervasive mistrust of the computer systems caused another problem: States and localities that had planned to get rid of the notoriously unreliable punch-card machines stopped in their tracks, leaving tens of millions of voters dependent on them yet again in 2004. Of the 93,000 votes lost by machines in Ohio last November, 76,000 were from punch-card machines, according to The Columbus Dispatch. It remains a national outrage that different voters, depending on where they live, use different voting machines of widely varying accuracy and efficacy. It is not just a fairness question; it is now, in light of the Bush v. Gore ruling, a potential constitutional question.

VOTE SUPPRESSION

As Steve Carbo details in this report, cynical efforts to block certain groups from voting-through manipulation of rules and less subtle means-re-emerged in this election. One tactic was the aggressive use of previously obscure rules allowing for "challenges" of a person's right to vote. In Ohio, GOP officials got an early start, preemptively challenging 35,000-plus new registrants-in mainly Democratic and minority communities-solely on the grounds that a postcard mailed to them was returned as undeliverable. Challenged registrants were required just days before the election to attend a hearing and to prove their eligibility. This went on in some areas until the courts put a stop to it.

The Ohio GOP also announced that it would hire people to go to the polls on election day to challenge the rights of preselected registrants to vote. Technically, a voter can only be challenged on specific grounds such as age or citizenship. Knowing this, partisan officials surely had an additional motive: tying up the lines to make wait times unmanageable for many working people. The plan set off a rush of last-minute lawsuits, conflicting rulings and appeals, leading to great uncertainty about what would happen on election day. In one case the plaintiffs called Ohio's law a "Jim Crow-era statute" being used to disenfranchise African American voters again. The Justice Department intervened, telling the court in one case that challengers should be allowed. While the district court judges said that the challenges were unconstitutional one saying that they were meant to intimidate black voters-a federal appeals court ultimately ruled the challenges lawful. The Democrats made plans to post their own people at the polling sites to challenge the challengers.

In other key battleground states, Republican officials pursued similar plans, filing challenges or deploying challengers. In Florida, the GOP developed a database of thousands of voters it wanted to challenge on election day. And in Wisconsin, Republicans tried to challenge thousands of registrants-but only in heavily Democratic Milwaukee. While party officials claimed that this new level of scrutiny was needed to thwart possible fraud, at least one Republican strategist was more candid after election day, telling The New York Times that the challenges were "a big head fake," a way to distract Democrats from getting out the vote at the crucial last hours.

Another way in which partisan officials sought to suppress legitimate votes was through felon "purge lists." In most states, felons are not allowed to vote, and even after they have fully served their time, many states make it prohibitively difficult to regain voting rights. Florida officials, charged with gross malfeasance in this area in 2000, were forced to withdraw their list when media investigations revealed that, as in 2000, the list included thousands of eligible voters. The list of "ineligible" voters provided by the state would have disqualified 22,000 African Americans (likely Democrats) and only 61 Hispanics (likely Republicans).

In Nevada, a private canvassing company funded by the Republican National Committee had its employees rip up and discard forms filled out by Democrats-a potential crime. In Milwaukee, a flier purportedly from the "Milwaukee Black Voters League" was distributed in African American neighborhoods. It read, in part:

SOME WARNINGS FOR ELECTION TIME
- IF YOU'VE ALREADY VOTED IN ANY ELECTION THIS YEAR YOU CAN'T VOTE IN THE PRESIDENTIAL ELECTION.
- IF YOU [OR ANYBODY IN YOUR FAMILY] HAVE EVER BEEN FOUND GUILTY OF ANYTHING, EVEN A TRAFFIC VIOLATION, YOU CAN'T VOTE IN THE PRESIDENTIAL ELECTION.
- IF YOU VIOLATE ANY OF THESE LAWS YOU CAN GET TEN YEARS IN PRISON AND YOUR CHILDREN WILL BE TAKEN AWAY FROM YOU.

According to local media reports, Pennsylvania officials received calls regarding leaflets on "official" county letterhead distributed in a Pittsburgh mall. The leaflets said that "due to immense voter turnout expected Tuesday," Republicans should vote on Tuesday, November 2, and Democrats should vote on Wednesday, November 3. And in Lake County, Ohio, some voters received an "Urgent Advisory" on fake Board of Elections letterhead warning that any voter registered through the Kerry campaign, America Coming Together, or the NAACP could not vote.

WHAT NOW?

In 2006, two of the most important HAVA mandates will go into effect: technological and accessibility standards that voting machines must meet and a requirement that every state have a computerized, interactive, statewide voter-registration database. Both measures can potentially solve some of the problems we saw last year.

For their part, states will hopefully use this as an opportunity to carefully find the best machines and deploy them statewide. And the statewide registration databases should help them avoid further incidents of alleged fraud, felon purge lists, and the disputes over counting provisional ballots. What's more, over the next several months, the agency created by HAVA to oversee implementation and funding of election reform, the Election Assistance Commission, should finally get the money it needs from Congress to actually function and give meaningful guidance.

But as Miles S. Rapoport details in this edition of the Prospect, there is much more the federal government must do, too. Voter registration should be made easier, not harder. Provisional voting rules must be clarified. Voter-identification requirements must not serve to disenfranchise. Congress must ensure that the felon purge lists are not abused. Electronic voting machines must incorporate technology that allows for independent audits and individualized voter verification, and we must insist on greater transparency on the part of machine manufacturers and in the testing system. Federal funding to ensure that our democracy functions fairly and effectively should be ensured in advance and not subject to the vicissitudes of annual appropriation, as it is today. And, very importantly, the system cries out for some sort of nonpartisan governance of election administration. This alone would go far to restore the public's faith in our treasured democracy and to reduce manipulation of the process for political ends.

Americans cannot go through this crisis of confidence in the election system every four years. Voters have done their part. Now it is time for our "elected" leaders to do theirs.

Tova Andrea Wang is a Democracy Fellow at The Century Foundation in New York and was a staff member of the National Commission on Federal Election Reform, co-chaired by former Presidents Gerald Ford and Jimmy Carter.

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