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November 11, 2008 12:55 PM

ELECTION 2008: The Voting Problems Aren't Over

Posted by Daphne Eviatar

While the final tallies in this year's presidential election may not have been clouded by controversy--as they were in 2000 and, to a lesser degree, 2004--that doesn't mean there aren't nagging questions about who got to vote and how the votes were counted. 

"Overall, the election ran smoothly in many places, with huge voter turnout," said Wendy Weiser, director of voting rights and elections at the Brennan Center for Justice in a statement released after the election. "But while a lot of people voted, a lot of people also had problems at the polls."

Among the biggest problems: tens of thousands of eligible voters' names not appearing on voter rolls, and a huge turnout--about two-thirds of the electorate--that severely stressed voting systems in some states and led to waits of up to eight hours to vote in some swing states, such as Virginia.

The flaws persist despite new laws such as the Help America Vote Act of 2002 (HAVA) that were passed after the 2000 election in a bid to make voting easier and more reliable. Instead, complications and lawsuits have followed.

In swing states such as Wisconsin, Ohio and Pennsylvania, Republicans warned of massive voter registration fraud, while Democrats and voting rights advocates claimed Republican officials were unfairly "purging" voters from the rolls. Although many of the lawsuits filed in the run-up to the election are likely to be dropped, others will proceed.

Robert Atkins, a partner at Paul Weiss Rifkin & Garrison, worked with the Brennan Center on a lawsuit to prevent Florida officials from purging voters whose registration data didn’t perfectly match other state databases, often because of clerical errors. "The case is by no means over since we believe that there are many eligible voters who were denied the right to cast a valid ballot because of meaningless failed matches," says Atkins.

Such failed matches and other glitches forced thousands of people in Ohio, Florida and elsewhere to cast provisional ballots because their names didn't appear on registration rolls. HAVA requires that a voter who believes he or she is registered and shows up to vote but isn’t on the rolls must be allowed to use a provisional ballot whose validity must be verified later.

“Provisional ballots exist to protect voters from disenfranchisement,” explains Edward Foley, a national elections law expert at Ohio State University. “The problem is when they’re overly relied on.”

The winner of the congressional race In Foley’s Ohio district, for example, won't be known until the provisional ballots are counted. Problems arise, Foley says, because different counties count provisional ballots differently, and HAVA does not provide guidelines for how states should reconcile conflicts or what sort of data matches should be required.

Such inconsistencies "was the problem in Bush v. Gore," says Foley. "In 2000 the problem was counting hanging chads. Now it's provisional ballots."

Long lines and malfunctioning voting machines were the other majors problems to crop up on election day. In Virginia, where the presidential contest was close, "people waited in some cases more than seven hours to vote," says Gerald Hebert, executive director of the nonpartisan Campaign Legal Center and a former federal voting-rights official. "Some people just left. In a very close election, this kind of problem really could turn into a major disaster electorally."

Hoping to avoid such a disaster in the future, Hebert and other voting-rights advocates want the new Congress to act on ballot problems in its first 100 days, preferably by providing far more specific national requirements than HAVA does.

"You’d want a comprehensive bill to address all the problems," says Hebert. "In Virginia we have 20 different machines within the state. There ought to be more uniformity in the way we conduct elections.”

One solution, experts say, is universal registration, under which citizens are automatically signed up to vote at age 18. That registration would then follow them wherever they go and would be maintained in a centralized database. At the same time, the federal government could mandate the use of a particular kind of voting technology for federal elections, which states and counties could adopt for their own local races.

By introducing consistent standards to what is now a helter-skelter system, such a move would eliminate many of the voter-registration fraud claims lobbed by Republicans at groups like ACORN prior to this year's election. It could also have an economic benefit.

“The system is so decentralized in America now," notes Foley. "The purchaser-vendor relationship is at the county level, so bids are relatively small."  When Brazil decided to modernize its election system, he says, it bought equipment for the entire country. "IBM bid on that contract. IBM doesn't bother to bid on voting machines in America because it's too small potatoes."

Richard Hasen, a law professor at Loyola Law School in Los Angeles, argued for universal registration in an article in Slate in late October, noting that if the U.S. is willing to nationalize the banking system, it ought to be able to do the same for voting. In early November, the Brennan Center released a policy paper advocating the same idea.

As Hebert notes, "It's amazing that I can go to the bank and make a withdrawal and touch the screen and it asks me how much I want to withdraw.  Never has it happened to me that I've pressed withdrawal and it makes a mistake and gives me credit instead."

Although some voting rights advocates argue that touch screens alone will never be sufficient without a paper trail to back them up, Hebert is confident that such problems can be solved.

"I can’t understand for the life of me why if we have the technology to be perfect in the financial world," says Hebert, "that we can’t be more perfect in the administration of our democracy." 

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