Equal Vote Is One!
The first post of this blog was one year ago today. As set forth in that post, the blog's original purpose was to address the debate surrounding voting technology, focusing on its implications for people of color, citizens with disabilities, and those whose first language is not English.

Since then, the blog's focus has expanded considerably. While the voting technology remains a vital subject, over which the public debate is as lively as ever, it's just one aspect of our elections system. Actually, "system" should probably be pluralized, since the last election season showed that, for better or for worse, the administration of elections remains highly decentralized in the United States, with responsibility vested in literally thousands of state and local officials dispersed throughout the country. We have not one election system but many election systems. Enactment of the Help America Vote Act was an important stage in the transformation of these systems. But it was only one step in the process of election reform, and that process is far from complete.

As Equal Vote moves into its second year, it will continue to address the implementation of HAVA. It will also address other areas of our election administration systems in need of scrutiny or repair, with a special eye toward those that effect traditionally disenfranchised or underenfranchised groups. The problems that emerged or continued in the 2004 election, upon which I intend to focus on in this space in coming months include:

1. Voting Technology. States that received money under Title I of HAVA are required to replace their punch card and lever voting equipment. That deadline was originally set for 2004, but almost all the states requested waivers extending the date to 2006. That means that there's a whole lot of work yet to be done in the next year. In addition, HAVA requires that every polling place have at least one electronic or other disability accessible voting unit in place by 2006. Many states will struggle to meet that requirement, particularly those that have enacted laws requiring a contemporaneous paper record (the voter-verified paper audit trail or "VVPAT"). Speaking of which, there will undoubtedly be continuing pressure to require a VVPAT in Congress and several states.

2. Provisional Voting. The bumpy implementation of provisional voting was arguably the story of the 2004 election. HAVA required provisional ballots to protect the votes for those who, due to administrative error or for some other reason, appear at the polls on election day to find their names not on registration lists. Civil rights advocates in a number of states were outraged, when state and county election officials refused to count provisional ballots cast out of precinct. This led to litigation in Missouri, Florida, Ohio, Michigan, Colorado, and Arizona. In addition, the failure of some states to promulgate clear rules for counting provisional ballots has led to equal protection claims based on Bush v. Gore. We've not heard the last of provisional ballots, which are only likely to become more important in the coming year due to . . .

3. Statewide Registration Databases. One of the most important changes wrought by HAVA is the requirement that each state have a statewide voter registration database. Until now, voter lists have been administered at the local level in most places. This requirement was supposed to be in place by 2004 but, as with the voting equipment requirement, most states got waivers extending the effective date until 2006. Statewide registration databases are a good idea, since they'll make it easier to keep track of voters who move from county to county within a state. But in the short run, expect them to cause more problems than they solve. There will undoubtedly be a lot of problems with the lists the first time through. Don't be surprised if a lot of voters show up at the polls in 2006 to find that their names aren't on the rolls. And for those states that have felon disenfranchisement laws, there will undoubtedly be voters who appear at the polls only to find that their names have been purged -- some because they really are ex-felons, but others by "mistake."

4. ID Requirement. Another big change effected by HAVA was the imposition of a limited identification requirement. In particular, first-time voters who registered by mail on or after January 1, 2003, and didn't produce some form of identication at the time of their registration, were required to bring with them photo ID, a utility bill, or other proof of name and address. There was considerable confusion on the part of both election administrators and members of the public as to this requirement. And in some states, there were controversies over laws purporting to impose even stricter ID requirements, with proponents citing the need to prevent fraud. Expect considerable attention over the imposition of stricter ID requirements, if not in Congress then in several of the states.

5. Challenges to Voter Eligibility. One of the major issues that blew up in the weeks preceding the 2004 general election was the plan to challenge voter eligibility. Republicans indicated their intent to place challengers at the polling places in several states, where loosely written laws still on the books allow voter eligibility to be challenged -- sometimes without even a minimal showing of good cause. Many people, particularly in communities of color, saw this as part of a concerted strategy of voter intimidation. In Ohio, civil rights advocates and the Democratic Party went to court to challenge the challengers. Four different trial courts issued orders limiting the challenges, yet each of these four court orders was reversed on appeal. In coming months, look for civil rights advocates to seek the repeal or revision of vaguely worded challenge laws. There may also be calls to strengthen these laws, on the ground that they're needed to prevent fraudulent voting.

6. Long Lines at the Polling Place. Many voters waited for hours on or before November 2, 2004 in order to exercise their right to vote. The problems appeared to be particularly bad in some urban precincts, where voters reported waiting for up to four or five hours. And at one polling place near Kenyon College in Knox County, Ohio, voters waited as long as ten hours. Almost everyone agrees that such lengthy wait times are inexcusable. What's less clear is what to do about it. Is it as simple as mandating that a certain ratio of machines to voters -- say 150:1 -- not be exceeded? But how would such a requirement be enforced, given the uncertainty that sometimes exists about how many people will actually show up on election day? And might the ratio vary, depending on the type of voting equipment used? Are equipment shortages the only thing that might have caused long lines at the polling place? Could poll worker shortages or other glitches at the polling place be to blame? That there's a problem is clear enough, but there's a need for further research on what's causing it, whose most severely affected, and what to do about it.

7. Recounts and Contests. Many people across the political spectrum are as upset about what happened after the results were announced as what came before. In Ohio, advocates (but not the Kerry campaign) first sought a recount of the vote and then filed a petition contesting the result. Many others believed that the recount and contest were a waste of time -- and taxpayer money -- given the over 100,000 vote margin of victory in that state. County election officials were particularly upset by the administrative burden imposed by the recount request. What both sides largely overlooked is the fact that, if the election had been closer, there might well have been a complete meltdown. That's because Ohio's recount and contest laws don't allow enough time for post-election controversies to be completed by the time the Electoral College meets. Thus, had the election been closer, the voters might have been disenfranchised entirely and the election effectively handed to Congress. That's something that people of every ideological persuasion should be concerned about -- and that should prompt a reexamination of recount and contest laws throughout the country.

Finally, there's an overarching problem implicated by each of these controversies. That's the partisanship that affects the administration of elections, particularly at the state level. In the 2000 election, Katherine Harris was viewed as the villain by many for interpreting and applying the rules in favor of her preferred candidate (allegedly). Similar allegations were levelled against Ohio's Secretary of State Ken Blackwell in 2004. But it's not just those on the left who are irritated by partisanship, real or perceived, in the administration of elections. California Secretary of State Kevin Shelley, a liberal Democrat, resigned under fire just a few days ago. One of the most serious allegations against him is that he misused HAVA funds for partisan purposes. There are of course disagreements about whether election officials in this state or that one are really acting in a partisan manner. What can't seriously be disputed is that there's a perception of unfairness, one that threatens voter confidence in the integrity of election results.

In the long run, moving toward nonpartisan election administration is one of the most substantial challenges facing our systems of democracy. But as with so many of the other issues noted above, identifying the problem is a lot easier than understanding its causes and figuring out what the best solution ought to be. I hope that this blog can help in that process in the months to come.

Thanks for reading!
- posted by Dan Tokaji @ 10:38 PM