Broken Elections, Stolen Votes – Part Five
What impedes election reform efforts
BY Susan Q. Stranahan | July 07, 2008
With another Election Day bearing down on an electorate whose trust has been shaken by the spectacular disarray of the 2000 and 2004 presidential elections, what is being done to fix what’s broken, and what’s impeding reform efforts?
First, what needs fixing has long been in dispute. Democrats have traditionally supported efforts to simplify voting and registration; Republicans have warned that loosening the rules will encourage fraud.
In 1977, President Jimmy Carter called on Congress to reform the national electoral system, saying that “millions of Americans are prevented or discouraged from voting in every election by antiquated and overly restrictive voter registration laws.” Carter proposed a method of universal voter registration, in which citizens could register to vote in a federal election on Election Day; as a safeguard against fraud, Carter said, new voters should be required to show identification. The proposal won little support, and in 2005, as co-chair of a presidential commission to investigate the integrity of the nation’s voting procedures in the aftermath of the 2004 election, he tried again. He and his co-chair, Republican former Secretary of State James Baker III, issued a similar call for voter IDs and streamlined election rules, but they had just as little backing.
With the 2008 election less than six months off and the general election campaign gathering steam, political passions are running extraordinarily high and millions of new voters have been registered. What they experience at the polls has yet to be seen. The every-four-year fundraising process, “the buying of the president,” presses on, with the parties knowing that they may have to plan to spend hundreds of thousands of dollars in legal fees in Election Day-related challenges.
Voter registration lists are messy. They’re not coordinated between states; they often list the names of the departed long after those voters have been buried; they’re subject to misspellings and other administrative slips. And they’re subject to mischief.
Says journalist Andrew Gumbel: “The [election] system functions not on the principle of the common good, but on how much its participants think they can get away with. There is nothing virginally pure about American democracy, and there never has been.”
Several reasons make voting reforms like those Carter proposed difficult to achieve, according to the political scientist Lorraine Minnite of Barnard College. “Chief among them,” she writes, are “the benefits the status quo bestows on politicians in charge of making the rules.”
Former President Jimmy Carter, a Democrat, joined with former Secretary of State James Baker III, a Republican, to propose a series of steps toward election reform. (Jimmy Carter Library)Another roadblock to reform is the dearth of agreed-upon facts and quality data about problems during elections. Biographies of Boss Tweed’s fabled Tammany Hall machine in New York City and treatises asserting how the last election was stolen may be readily available, but nonpartisan research into the administration of elections and their vulnerabilities is thin. At the launch in May of the Brookings Institution’s new book on election fraud, one of the editors, Thad Hall, held up a copy of a worn, brown book, a copy of Joseph P. Harris’s Election Administration in the United States, published in 1934. This volume, according to Hall, was the only book written on the subject for decades.
It’s not clear how often voter fraud or voter suppression actually takes place, either. Advocates on the liberal side often point to the dearth of election fraud prosecutions as a sign that conservatives are wringing their hands over nonexistent problems. But the low numbers of prosecutions may have more to do with the difficulty of tracking down the tricksters responsible. Similarly, Craig Donsanto, a career lawyer at the Department of Justice, who wrote the manual on prosecuting election fraud, has talked about his department’s fruitless search for the distributors of misleading flyers, for instance, which might give incorrect information about polling locations or times, or claim that drivers with outstanding parking tickets are liable to be arrested when they show up to vote.
“We have investigated every one of those that came to our attention last election cycle,” he wrote in a 2006 e-mail providing comment to the federal Election Assistance Commission on the commission’s study on voter fraud and voter intimidation. “We were not able to identify the persons responsible for printing the misleading flyers in any of these. But we sure as heck tried.”
“Those are the kinds of things that [are] very hard to tie down,” agrees Vincent Fry, a former head of the DNC’s Voting Rights Institute. “There is not really a smoking gun.”
Election manipulation can grow spontaneously from that last, desperate moment at the end of a close race, when the outcome is unclear. If the campaign’s coffers hold $10,000 or so to spare, Fry explained to the Center: “They think — where can I spend this $10,000 in a way that will show that I have used the money? . . . You can buy some radio or some autocalls, that kind of thing.”
Fry speculated that, with off-the-books funds, “the same situation could happen with the flyers. Someone has got $10,000 cash and they want to use it to be helpful. . . . Nobody can really trace that, and so I think [voter intimidation and suppression] thrive in a low-dollar environment, because fewer people are paying attention.”
A record 126 million Americans voted in the 2004 election, a jump of 15 million over 2000, made possible in part by a net increase of 12.5 million in the number registered. According to one estimate, nonprofit and civic organizations filed nearly 50 million new-voter registrations in advance of the election, with millions of people signed up as part of local registration and get-out-the-vote drives. Many of those drives targeted minorities and low-income neighborhoods that traditionally vote Democratic.
Offsetting this surge in new voters have been restrictive regulations enacted by state legislatures that have shut down or severely curtailed registration activities. Requirements in different states include registration of each individual who will collect registrations and deadlines as short as 48 hours for turning in completed forms. Violations carry hefty fines and criminal penalties. Rules Florida enacted before the 2006 election, for example, were so onerous that the League of Women Voters abandoned its registration efforts; the rules did not affect political parties in the state.
The League has been fighting the law ever since. In 2006, it joined with a consortium of voting rights groups to obtain a temporary injunction against the law, and in 2007, Florida’s legislature amended the law to reduce the fines for violations. In April, after Secretary of State Kurt Browning unveiled the rules he would use to implement the revised legislation, the League of Women Voters again put a moratorium on its voter registration activities and filed a new suit against the secretary of state.
The law could mean fines as low as $1,000 for the League, or as high as $28,500, the group says. “Its ambiguity puts us in a place where we can’t determine what risk we’re at,” said Dianne Wheatley-Giliotti, a former president of the League’s Florida chapter. On June 18, Giliotti took the stand for an hour and a half, as a key witness for the plaintiffs. The League anticipates in the coming weeks the court’s ruling on whether the state can enforce the new law while the court case proceeds.
Another Florida law barred any Florida citizen from registering to vote if the state cannot match or validate the driver’s license or Social Security number on a registration form, a requirement that critics argue could disenfranchise tens of thousands of voters solely because of typographical errors or other minor discrepancies. This provision is also now under challenge in a lawsuit brought by the Florida branch of the NAACP and other groups.
In 2005, Indiana enacted what has been called the most restrictive voter identification law in America, which requires voters to provide current photo identification. Earlier this year the U.S. Supreme Court upheld the law, 6-3. The decision found “that not only is the risk of voter fraud real but that it could affect the outcome of a close election,” and that the inconvenience of obtaining a photo ID was not a “substantial burden on the right to vote” for most Indiana voters.
The rationale for the decision was far from clear, however. The justices wrote four separate opinions. In the lead opinion, liberal-leaning Justice John Paul Stevens found that the evidence presented was not strong enough to strike down the entire law. He touched on Indiana’s interest in modernizing its election system, but allowed that the voter ID law primarily addresses “in-person voter impersonation,” despite there being “no evidence of any such fraud actually occurring in Indiana at any time in its history.” He pointed instead to the historical record of voter fraud, citing Tammany Hall and a 2004 gubernatorial race in Washington State. Only two other members of the court signed on to Stevens’s opinion. A concurring opinion from three of the more conservative justices came to the same result as Stevens but dismissed the challenge with much stronger language.
The dissenting justices were also divided in their reasoning. All three were unimpressed with Indiana’s argument for the law, but Justice Stephen G. Breyer focused on contrasting Indiana’s law with similar but “significantly less restrictive” statutes in Florida and Georgia.
In 2008, the U.S. Supreme Court rejected a challenge to an Indiana law requring voters to present identification at the polls. (Supreme Court of the United States)Even legal scholars were unsure what to make of the decision. “The good news is that the justices are searching for ways to depoliticize election law cases,” Edward Foley, director of the election law program at Ohio State University’s law school, told the Bloomberg news service. “The less-encouraging sign, as evidenced by the 3-3-2-1 split, is that they aren’t quite there yet.”
The Supreme Court’s ambiguity has not stopped other states from following Indiana’s lead. Democrats in Georgia have filed a lawsuit against Georgia’s restrictive voter ID law, though they now face a harder battle. Governor Kathleen Sebelius of Kansas, a Democrat, vetoed a voter ID bill that quickly made it to her desk after the Indiana decision. And Missouri Republicans pushed unsuccessfully for new voter identification registration laws that would require proof of citizenship.
Indiana’s 2008 primary in May, conducted under the new law, did not produce widespread reports of disenfranchised voters, although one AP story about a dozen nuns who were turned away from the polls made the rounds on blogs and political talk shows. In late June, the League of Women Voters of Indiana filed a new lawsuit arguing that the ID law violates the state’s constitution.
To keep individual states from imposing what many regard as burdensome new “ballot security” rules and to prevent the wholesale purging of voter lists, a group of Democratic senators introduced the Ballot Integrity Act of 2007, which also addresses other problems that plagued the 2000 and 2004 elections.
Another provision bars state election officials from serving on the political campaigns of federal candidates, as Katherine Harris did as secretary of state in Florida in 2000 and Ken Blackwell did while holding the same office in Ohio in 2004. A similar provision in a House bill, sponsored by Representative Susan A. Davis, California Democrat, would ban the dual roles. “You can’t be both a player and a referee at the same time,” Davis told The New York Times. The ban has met with strong resistance from state officials.
Another reform bill represents a 180-degree retreat from the embrace of electronic voting after the 2000 election. Similar House and Senate bills would require voter-verified paper records subject to manual audits. That, sponsors say, would restore badly eroded confidence in the integrity of elections.
“I shudder to think what would happen with another election where millions of Americans don’t believe the results,” Representative Rush Holt, Democrat of New Jersey and a sponsor, told The Associated Press. But the requirement to junk millions of dollars of new electronic voting equipment and replace it with new systems has many worried. “I really am scared we’re waltzing off a cliff here,” said Representative Louise Slaughter, a New York Democrat.
Reformers like Holt hoped to have new legislation in place in time for next year’s voting, but that date has been pushed back until at least 2010. His legislation made it out of committee but has yet to come to a vote before the House. A Senate committee held hearings on the Ballot Integrity Act in 2007; no further action has been taken. In his day job as senator, Barack Obama, the presumptive 2008 Democratic nominee, is a sponsor of the Count Every Vote Act, which would amend the Help America Vote Act of 2002 to address issues like long lines at the polls, and is still in the hands of a Senate committee.
“My sense is there’s no way to get this thing in place by the election of 2008,” said Senator Dianne Feinstein, Democrat of California and co-sponsor of the Ballot Integrity Act to The New York Times. “Without adequate time, we could cause real problems in the election.”