With election 2004 behind us, we are at a safe distance to reflect on the state of our electoral system without the bluster and conjecture of partisanship. Immediately following the election, advocates across the nation tried to identify the cause of a failed candidacy by pointing fingers at the deliberate or derelict maladministration of elections. Memories of Florida just four years earlier were still fresh, and similarities soon emerged in Ohio. The characters seemed to be the same: an election official motivated more by partisanship than by fairness, inaccurate and/or unsecured voting machines, registered voters somehow absent from the rolls. When the dust cleared, however, the tragedy of the 2004 election was not that someone other than the democratically chosen candidate occupied the highest office in the country. It was that Congress’s effort to provide the substantive election reform promised just two years earlier had further confused an already unresponsive process. While American tax dollars flowed to the Middle East for the development and support of emerging democratic systems and U.S. service people risked their lives training Iraqi security forces to guard polling places in Baghdad, U.S. voters cast ballots using an antiquated, underresourced election system that continued to disenfranchise countless eligible voters.
What Went Wrong?
Despite media reports to the contrary, all was not well on November 2. Many of the voting problems that Americans faced in 2000 were never fixed, and the ineffective mandates of the Help America Vote Act (HAVA), implemented for the first time in 2004, only created new frustrations. Due in large part to a lack of political importance placed on the successful functioning of the electoral process, election officials were drastically underfunded and understaffed.
In many cases, this lack of resources resulted in voter registrars who were unable to process the record numbers of voter registration applications. More than two weeks before the registration deadline, the supervisor of elections in Duval County, Florida, declared that his office would be unable to process any more applications in time for those Floridians to show up on the voter registration rolls on Election Day. In Cleveland, Ohio, and San Bernardino, California, voter registration organizations called attention to significant registration backlogs that threatened to disrupt the functioning of the election. Even in counties that could manage to record new registrants, many voters never received registration confirmation, never were told where to vote, or never received other critical information necessary to cast an effective vote.
Partisans and election administrators alike publicized the use of absentee balloting as an alternative to voting in person. Many voters were persuaded to vote absentee by critics of electronic voting machines, who argued that absentee ballots produced a paper record of each vote, as opposed to the much maligned voting machines. Yet the increase in absentee voting was disastrous for an already overburdened election administration. In states across the country, voters who requested absentee ballots either never received a ballot or received one too late to cast it.
Officials at all levels suffered from a lack of resources. The Election Assistance Commission, a federal agency set up by HAVA to guide states in implementing the new law, was not fully formed until just months before the election. Even then, the commission’s effectiveness was severely limited by a prohibitively small budget. By the time it received any sizable funding, states were well into the HAVA implementation process. Unfortunately, without commission guidance, many states implemented the new law in ways that limited access to the ballot box.
Although the mandates of HAVA create a structure for election administration, the compromises that made the law politically palatable allowed broad deference to state administrative authority in its implementation. Provisional ballots—one of the most important features of the bill, according to the voting rights advocacy community—were designed to aid countless voters who go to the polls but are not listed on voter registration rolls. Specifically, provisional ballots were intended to react to Florida’s purge of voter rolls in 2000, when thousands of validly registered voters were removed from the rolls and identified as people with felony convictions because the state used dramatically flawed matching criteria connecting the voter registration rolls with lists of criminal offenders. Yet thirty states exercised their HAVA authority by proposing indefensibly narrow standards for counting provisional ballots. Doing so transformed a well-intentioned tool designed to broaden the franchise into an exercise in futility.
HAVA’s interpretation has been problematic as well. The law requires that states provide a provisional ballot to any voter who comes to the polls and is not on the voter registration list or who does not have the required identification. If it is later determined that the provisional voter is validly registered in that jurisdiction, the vote will be counted. For provisional balloting purposes, however, many states interpret “jurisdiction” to mean “precinct.” Therefore, in practice, a voter in these states may go to a polling place that has multiple precincts, get in line at the wrong precinct table (where he or she will not be on the registration list), and cast a provisional ballot that will not be counted for any office, even though that voter was merely ten feet away from the table at which he or she was supposed to vote.
Widespread unfamiliarity with the provisional balloting system further undercut HAVA’s promise. Across the country, poll workers made no attempt to determine where voters were registered and made no effort to tell voters the consequences of casting a provisional ballot in the wrong precinct. Also, because of pervasive problems notifying voters of their registration information, many never received any communications from their registrars about where they were supposed to vote. Together, these factors forced many validly registered voters, through no fault of their own, to cast provisional ballots that were never counted.
In response to the restrictive interpretation of HAVA, partisans and advocates across the country filed lawsuits. While plaintiffs were successful in some district courts, the Sixth Circuit Court of Appeals held that a state’s prerogative under HAVA included narrowly interpreting the provisional ballot requirement.
States also implemented unnecessarily restrictive identification provisions. HAVA requires that first-time voters who registered by mail prove their identity either by providing a copy of their identification with their application or providing identification to poll workers on Election Day. However, HAVA sets a floor, not a ceiling, allowing states to implement more restrictive identification provisions. Although HAVA encourages states to allow voters to prove their identity through an expansive list of acceptable identification—including utility bills, bank statements, and government checks—efforts in Congress and in states are under way to limit acceptable identification to government-issued photo identification cards. In the 2004 election, for example, many southern states required all voters to show identification at the polls.
While further study is necessary to determine the effect that identification provisions have on the electorate, experts estimate that 10 percent of eligible voters do not have government-issued photo identification. Most without identification are poor or fall into traditionally disenfranchised classes, such as students and young voters. College students, for example, often have no identification proving their residency in college towns or rely on their student identification cards to prove their identity to poll workers. This particular restriction frustrates one of the central purposes of higher education: to produce productive civic participants. Making it harder for students to register and vote disengages young people at a critical time in their political development.
In addition to administrative obstacles, some voters in the 2004 election faced deliberate barriers to the polls. On the eve of the fortieth anniversary of the Voting Rights Act, minority communities were still subject to coordinated misinformation and suppression efforts. In Milwaukee, for example, black neighborhoods were littered with fliers claiming to be from the Milwaukee Black Voters’ League, telling voters that they could be thrown in jail for ten years if they attempted to vote but had voted in any election in the past year, been convicted of a crime (even a traffic violation), or were related to anyone ever convicted of a crime.
Elsewhere, fliers suggested voters could vote on either Tuesday, November 2, or Wednesday, November 3. Voters received calls telling them they could vote over the phone or providing incorrect polling place information. Voter protection efforts, such as Election Protection—a national volunteer effort led by the Lawyers’ Committee for Civil Rights Under Law and other civil rights organizations that matched tens of thousands of poll monitors with thousands of pro bono attorneys and answered a nationwide voter protection hotline—received many complaints from voters who did not cast a ballot because of this “information” or did so only after receiving assurances that it was incorrect.
Other problems surfaced as well. Some voters with disabilities were forced to vote at inaccessible polling places, violating the Americans with Disabilities Act, or were not allowed to take a person of their choice into the polling booth to assist in casting a ballot, violating the Voting Rights Act. Voters with limited English proficiency faced unnecessary obstacles in polling places because jurisdictions did not fulfill their responsibilities to provide multilingual ballots and informational material. Electronic voting machines malfunctioned in a number of states and some punch card ballots were not counted.
Our democracy deserves better. Since the election, members of Congress from both sides of the aisle have introduced legislation that attempts to address problems at the root of the system. Most proposals focus on strengthening representation through provisions that expand the franchise, such as Election Day registration, early voting, no-excuse absentee voting, and criminalizing unfair and deceptive practices. While noble, these efforts are unlikely to muster the political resources necessary to pass this Congress. Other initiatives concentrate on nebulous accusations of voter fraud and will almost certainly make it more difficult for Americans to exercise the right to vote.
While the former may place too little emphasis on preventing fraud, the latter may stress it far too much. The truth is that while we need to know more about fraud in the electoral system, it does not have as significant a role in hindering electoral successes as do antiquated and unresponsive electoral structures. Many in the fraud camp point to isolated, shocking incidents of abuse in the registration system. They hold up registration cards for Mary Poppins or Mickey Mouse as sufficient evidence that the system is corrupted and needs dramatic remedies. Although there are isolated incidents of ineligible citizens registering to vote or voters casting multiple ballots, these problems appear not to be widespread, and the possibility that this type of fraud influences the outcomes of elections is exceedingly remote. Moreover, evidence that the fraud-obsessed often focus on to bolster their point, like poll books showing more votes than voters, is often explained by a poorly administered system executed by undertrained, underresourced poll workers and election officials, not by malevolent conspirators.
Even where fraud exists, many of the proposed solutions are draconian and react to the wrong situations, leading to understandable skepticism and allegations that they merely cater to partisan predilections, not to substantive problem solving. Proposals such as requiring universal government photo identification at the polls could disenfranchise up to 10 percent of the electorate, mostly in minority and traditionally disenfranchised communities. While it is important to ferret out fraudulent voters from the system, these proposals will inevitably disenfranchise a significantly larger number of eligible, legitimate voters than they will fraudulent voters. In addition, the evidence of fraud that we have seen—fraudulent voter purges, “stuffed” ballot boxes, manufactured votes—tends to be a product of deliberation on the part of election officials and poll workers, not voters. Identification requirements and restrictions on voter registration organizations do not address this type of fraud at all.
To fulfill this country’s constitutional democratic promise, we need real reform aimed at broadening the franchise, not political proposals that will narrow it. While the system has been in shambles for decades, the past two national contests have highlighted its shortcomings and focused national attention on the need for change. This is a silver lining and a moment that should not be lost. But we must proceed with logic and facts to a goal of expanding, not restricting, access to the system.
Jonah H Goldman is an attorney with the Lawyers’ Committee for Civil Rights Under Law’s Voting Rights Project.