In the weeks leading up to Election Day, the hand-wringing over voting irregularities reached a fever pitch. Rolling Stone published a feature by Greg Palast and Robert F. Kennedy, Jr., warning that Republicans may have already stolen the election. The McCain campaign highlighted accusations that the civil rights group ACORN was trying to commit voter fraud by fabricating voter registrations. Voting rights groups sent nearly daily e-mail blasts to reporters obsessing over every state and local incident of voter intimidation or suppression. Even "The Simpsons" had a segment on possible electronic machine malfunctions.
And yet after Election Day, the stories seemed to have vanished. What happened? Did America's patchwork of voting systems that caused so much consternation in Florida in 2000 and Ohio in 2004 suddenly get fixed?
In fact, the 2008 election was rife with the same problems that have bedeviled others in recent years. It was only because Barack Obama's margin of victory was so healthy that the country was not waiting with bated breath to see how many provisional ballots were counted. So while the White House will soon be filled with someone who has been a leader on addressing voting rights in the Senate, the public pressure needed to move legislation through the meat grinder on Capitol Hill is noticeably absent. "It's a lot easier to illustrate the impact of these problems when there are 537 votes separating the presidential candidates," notes Jonah Goldman, Director of the National Campaign for Fair Elections in the Lawyers' Committee for Civil Rights Under Law's Voting Rights Project. But as seen by the haphazard, frantic rush to fix voting problems leading up to this year's election, it is imperative that lawmakers not wait until 2012 to address these challenges. There are numerous measures that the Obama administration, together with a Democratic Congress, could enact in the coming months.
Under the Help America Vote Act (HAVA), 2008 was the first presidential election for which each state was required to match its voter rolls to other state records, such as those from the Department of Motor Vehicles. People whose residency was not confirmed were purged from the rolls--but many legitimate voters were removed in the process. "There are all sorts of reasons an eligible voter may not come up," says Daniel Tokaji, an election law expert at Ohio State University. One can be a citizen and not have a driver's license or even, in some cases, a Social Security number. Many people were purged due to data entry errors, such as misspelling their names. This problem famously bedeviled even the 2008 campaign's overnight sensation Joe the Plumber, whose name was misspelled on his voter registration.
All those voters who unknowingly got knocked from the rolls had to cast provisional ballots if they tried to vote on Election Day. But the rules for when and how provisional votes get counted vary widely, and some are so strict that many legitimate voters may fail to meet them. In California, for example, a voter who does not have an I.D. and votes provisionally gets his or her vote counted as long as he or she is a registered voter. In Ohio, however, a voter who does not present proper identification on Election Day may cast a provisional ballot--but for it to be counted, he or she must appear in person at the Board of Elections with an I.D. within ten days.
One way to solve the problems of voter purges and provisional ballots--as well as concerns about fraudulent registrations--would be a universal registration system, in which a national program automatically registers every American citizen when they turn 18, just as Selective Service currently enrolls every American male when they reach that age. Skeptics, such as Allison Hayward, a professor at George Mason Law School, suggest that the political will to spend federal dollars on a national voter database instead of, say, education, simply does not exist.
An alternative that has gained popularity in recent years is Election Day registration. Nine states currently allow eligible voters to register at the polling place, boosting turnout in each one of them--most notably this year in North Carolina, which experienced the biggest increase in turnout of any state. Some conservatives fear that Election Day registration increases the risk of fraud because someone with, say, residences in two states could vote in both. But there has not been any credible evidence of increased fraud in the states that have adopted it, according to most experts. Election Day registration has already been proposed in Congress, pushed particularly strongly by Senator Hillary Clinton (who, it seems, has other plans than to stay and guide it through). But Goldman, the voting rights expert, expressed confidence that other legislators will take up its banner in Clinton's absence.
It's not surprising that some of the most restrictive voter registration laws have come from state legislatures controlled by Republicans, such as laws in Indiana and Georgia that require voters to present a state-issued photo identification card at the polling place. (Republican legislatures in Wisconsin and Kansas passed similar laws that were vetoed by their Democratic governors.) People without identification are disproportionately poor, urban, young and non-white. For instance, in Milwaukee County, Wisconsin, nearly three-quarters of African Americans and fully two-thirds of Hispanics aged 18 to 24 did not have a valid driver's license, according to a University of Wisconsin-Milwaukee study. All of those constituencies lean Democratic, so Republicans have a political incentive to support I.D. requirements.
Congressional Democrats could head off the possibility of more stringent state-level requirements by enacting a lower national standard, such as a requirement that voters show any one of a wide array of documents to prove their residency, including a utility bill, and simply sign an affidavit if they do not have any of them. Although the federal government has the authority to do so, it might be unpopular among states that want either greater or lesser requirements, making it unlikely to pass Congress.
Even if all the logistical impediments to voter registration are solved, many voters face other roadblocks to casting their ballots--particularly in the form of misinformation, which was rampant this past November, according to election experts. Some of these efforts are intended to discourage certain people from voting by warning of false penalties for doing so, such as when Virginia Tech students were told, incorrectly, by their local government that voting at school required them to give up tax benefits they may receive from residing with their parents. Other misinformation campaigns tell people to vote at the wrong time or place, such as the numerous complaints Goldman says his group received from Philadelphia about flyers being distributed in predominantly African-American neighborhoods saying that people with unpaid parking tickets might face arrest if they vote. Both of these kinds of tactics are perpetrated by local election officials who may want to disempower a local constituency, such as college students who some may want to exclude from local politics, or by partisan groups that hope to affect the results by disenfranchising people who are likely to vote for one party.
A pair of legislators from Illinois, Barack Obama in the Senate and Rahm Emanuel in the House, introduced bills to address deceptive practices. Neither bill became law, but now that Obama will be president and Emanuel his chief of staff, will they push similar bills from their new perch in the White House? Voting rights activists hope so. "It's really critical at this point," says Goldman. Currently, only "intimidating" practices are illegal under the Voting Rights Act. A deceptive-practices bill would outlaw misleading information, with criminal penalties that could serve as a deterrent, and it would involve the Justice department in informing voters of the correct information where deceptive practices are found.
But getting past the registrars at the doors doesn't ensure a problem-free vote. Some areas that saw a big spike in turnout, such as college campuses, found they had too few machines, or too few that worked. Students at Temple University experienced up to four-hour waits, while those at the University of Southern Florida stood in line for three hours throughout the day, according to Sujatha Jahagirdar, program director of Student PIRG's New Voters Project. "We were told that they didn't have enough voting booths," Jahagirdar says. "They tried to fix it but couldn't because of some technological issue."
In late April, House Republicans stymied a bill that would have provided funds to create a paper trail for electronic machines, or to switch away from them entirely, and to use the paper ballots to check the accuracy of the machines with a post-election audit. The Republicans complained that the bill, which would cost approximately $685 million, would be excessively expensive. The Democrats, 91 of whom were sponsors or co-sponsors in the House, may introduce new legislation with the same purpose. Congressman Rush Holt, the original sponsor of that bill and of an earlier unsuccessful effort to require a paper trail for all electronic machines, intends to reintroduce the stronger measure to create a national standard for verification, according to his office.
Seeing as most of these types of disenfranchisement disproportionately hurt Democrats, voting rights advocates are hoping that full Democratic control of Washington for the first time in 14 years will allow some of the recent bills to finally pass. But whatever options the new Congress and White House pursue, they'd be smart to do it soon. Even people who dedicate their lives to studying electoral reform admit that it is not an issue that captures the popular imagination for long. "When it comes to election administration," says Hayward, "The public cares about it for three weeks out of every four years."
By Ben Adler
Reprinted with permission from The New Republic