Asking for Trouble
Despite the relatively smooth 2004 election,
our voting system is ripe for another debacle
by Michael Waterstone

In one sense, the 2004 presidential election was a success. Regardless of which candidate one wanted to win, we were all happy not to relive the debacle of “Florida 2000.” After Sen. John Kerry conceded, we sighed in relief and went about our business. Many of us will not think about elections until the next time around. That would be a big mistake. The fact that we did not have another Florida 2000 this time around was a result of luck and mathematics, not good laws or policies. For those of us who study election law, these elections demonstrated that we need reform. We need uniform standards and procedures for provisional ballots, uniform standards for voting machinery, nonpartisan election officials, and true access and equality for people with disabilities.

This year’s provisional ballots were almost the hanging chads of 2000. The Help America Vote Act provides that voters who are not on the official list of eligible voters, or whose qualifications are otherwise challenged, are allowed to cast “provisional ballots.” But HAVA gives no procedures for tabulating provisional ballots; it provides only that they shall be counted “in accordance with state law.”

In Ohio, for example, state law provides relatively little guidance on the standard for counting provisional ballots. On Election Day, there was litigation as to whether Ohio’s state law was so unclear that it violated the Bush v. Gore equal protection guarantee for counting votes. If the margin of Bush’s victory in Ohio had been 36,000 votes instead of 136,000 (a small statistical difference) it is very possible another election would have been decided by the courts.

We need more uniformity and consistency regarding voting machines. In elementary school, when we chose a class president, we all voted the same way. We raised our hands, wrote down names on paper, etc. But when we pick the president of our country, we all vote in different ways, even within the same state. This happens even though some of these voting machines are predictably less reliable than others. In Ohio, for example, more than 70 percent of votes were cast on punch card ballots (of hanging chad notoriety). There were 92,672 Ohio ballots for which no vote for president was cast. Of these, 76,068 were punch cards, 9,994 were

optical scan, and 6,610 were electronic. Punch cards had almost double the rate of “no vote for president” as electronic voting. This disenfranchisement of voters, which invariably occurs in poorer areas, is intolerable.

As we saw in Florida 2000, the very officials who administer elections often have huge political stakes in their outcomes. Partisan secretaries of state issued several rulings on or in advance of Election Day that favored their parties’ positions. Even assuming that these individuals believed they were doing the right thing, this creates a perception of unfairness that undermines people’s belief in our election system. We need neutral election administrators who do not actively support either candidate. As Loyola law professor Rick Hasen, an election law expert, put it, “We need Alan Greenspan running our elections, not Katherine Harris.”

People with disabilities too often are denied the right to vote by inaccessible polling places, in clear violation of federal law, which ensures accessibility. According to the General Accounting Office, in the 2000 presidential election, 80 percent of polling places had one or more barriers to access for people with disabilities. This noncompliance with federal law has reached shocking proportions. In Tennessee this year, the Shelby County Election Commission was forced to take out a half-page advertisement in The Commercial Appeal giving notice that more than 120 polling places did not meet the Americans with Disabilities Act’s accessibility standards.

Even when people with disabilities are able to vote, they are not able to vote secretly and independently; or, stymied by inaccessible polling places, they are told to vote absentee. But absentee ballots usually have to be received in advance of Election Day, which means people with disabilities may be forced to vote without the benefit of considering late-breaking news. And having people with disabilities perform such an important civic function in a different, less public way sends a harmful message about their full inclusion into larger society.

If we want our voting system to remain the envy of the world, we must have some overdue discussions about the “nuts and bolts” of our elections. After the Supreme Court’s decision in Bush v. Gore, the idea that the administration of elections is purely a state and local matter is forever gone.

This discussion will raise painful questions about resource allocation and the relationship between federal and state power. And no doubt both political parties will want to keep parts of the voting process that they perceive as benefiting them. But ignoring this issue would be the biggest problem of all. After all, nobody wants another Florida 2000.

UM law professor Michael Waterstone teaches civil rights law and disability law. He is a co-author of the book Disability Civil Rights Law & Policy.

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