2004: A Report Card
Our election system is badly broken
by Tova Andrea Wang
The American Prospect magazine,
Americans know the 2000 election was a
fiasco. What they don't know is that the 2004 election, in many
ways, might have been even worse. The purported margin of victory
in November has led many to believe that the process went relatively
smoothly. But the appearance of a smooth election obscured troubling
developments, from simple human errors to likely felony violations
of federal law. In addition to the ineptitude and faulty machinery
that led to the problems of 2000 (both of which persisted), 2004
should be remembered as the year that a number of partisan election
officials and party leaders usurped the process and manipulated
the new federal voting law in ways that disenfranchised voters.
When Congress passed the Help America
Vote Act (HAVA) in 2002, Americans rightly believed it represented
a step forward in improving our broken voting process. We now
realize that the combination of flaws and gaps in that law, plus
a highly charged campaign season, led in many ways to more obstacles
to voting. In fact, had the popular vote been closer in just one
state, 2004 could have been a legal battle royal that would have
made 2000 look like a court hearing for a traffic ticket.
At every step of the way, election officials
in key states threw up unnecessary barriers to voting. Voter registration
was made more difficult than ever. Officials misconstrued and
abused identification and provisional-ballot rules. There were
far too few voting machines in some places, leading to unacceptable
wait times, and there were suspicious voting-machine "errors?'
And not surprisingly, given the atmosphere, there were numerous
allegations of voter intimidation and vote suppression.
That is not to say that nothing in the
system went right. But credit for what did go well goes mostly
to the voters themselves, and to volunteer lawyers, monitors,
and poll workers.
Long before 2004, the process of voter
registration was unnecessarily onerous in this country. It was
made an even bigger barrier to participation this time, with election
officials using various technicalities to keep people off the
For example, HAVA required that mail-in
voter-registration forms include a check-off box verifying that
the voter is a U.S. citizen. It required states to notify voters
who failed to "answer the [citizenship] question" and
provide them with an opportunity to correct the form prior to
the next federal election.
Under existing federal statute (the "Motor
Voter" law), registration forms already include language
above the signature line requiring the applicant to affirm his
or her citizenship, making the new citizenship box redundant.
Nonetheless, some election officials last year decided to reject
the applications of thousands of people who signed the affirmation
but failed to check the citizenship box. To complicate matters,
they insisted that registrants correct their forms before the
original voter registration deadline-a month before the election.
As a result of this double-barreled mandate in Florida, for example,
thousands of registrations were rejected and those voters were
disenfranchised. It should surprise few readers to learn that
the burden fell heavily on minority voters. In Miami-Dade County,
for instance, 35 percent of the applications rejected as incomplete
came from African Americans, who comprise 20 percent of the county's
Other technicalities were invoked to disqualify
voter registration forms. Most notorious was a directive (since
rescinded) from Ohio's secretary of state that all voter-registration
forms be on 80-pound paper stock, because lightweight cards could
be shredded by postal equipment. This meant that if someone downloaded
an application from the Ohio Board of Elections' Web site and
submitted it, that registration may have been rejected.
HAVA states that beginning in 2003, first-time
voters who register by mail must present identification (a current
and valid photo ID, utility bill, bank statement, or government
document with name and address) when registering or voting. Advocates
of such measures argue that they are necessary to prevent fraud,
though there is no evidence that such election fraud is a serious
problem. Indeed, voting experts agree that the real problem in
America is that far too few of us vote, not too many.
Civil-rights advocates, meanwhile, predicted
that the new requirement would chill the exercise of voting rights
and would especially burden minorities, the disabled, young people,
and the poor, who too often lack driver's licenses or other forms
of identification the law requires. A Latino family I met while
doing nonpartisan get-out-the-vote work in Pennsylvania was a
case in point: Although family members had received valid voter-registration
cards, they were still afraid to vote because they had no other
ID and all their household bills came in the name of another family
Sadly, some state legislatures saw this
new HAVA provision as a great opportunity to go even further.
As a result, 17 states now have laws that require all voters-not
just new ones-to show identification at the polls. And four of
those states require photo identification, according to electionline.org.
Troubling anecdotal evidence suggests
that these new requirements have indeed led to some being denied
the right to vote; lacking ID, they were either wrongfully turned
away or forced . to cast provisional ballots that may or may not
have been ' counted. Several reports of abuse . during the presidential
primary elections foreshadowed the problem. In South Dakota, for
example, primary voters at heavily 3 Native American polling sites
were turned away because they lacked photo identification. And
ç during Ohio's primary, the NAACP and other voting-rights
groups received numerous complaints r from African American voters
in Cleveland who said that they were wrongfully asked for ID.
Similar grievances arose in the general
election. In New York City, for instance, some Asian American
voters were "subjected to racial profiling at the polls,
since they were routinely asked for identification in order to
establish their eligibility to vote, even when it was not required,"
reported Margaret Fung, head of the Asian American Legal Defense
and Education Fund. As a New York Times editorial put it on November
4, "Voter identification requirements were arbitrarily, and
often incorrectly, enforced?' All of the organizations running
voter hotlines received complaints about ID enforcement.
As with every other aspect of the process,
election officials aggravated the possible disenfranchising effects
of the law. In Ohio, officials decreed that if a first time voter
who registered by mail lacked identification when he or she showed
up to vote and cast a paper provisional ballot, the ballot wouldn't
count-unless he or she somehow produced ID by the end of election
day. HAVA states that provisional ballots are to be verified and
counted after the election according to state law, which in Ohio
does not require identification. A month before the election,
the League of Women Voters and others challenged Ohio's directive
in court-and lost. Elsewhere, according to Demos, a research and
advocacy group, two states refused to give provisional ballots
to voters who could not provide ID, and 10 others gave such voters
provisional ballots but automatically threw them out if the voter
could not present identification by the end of election day.
The 2002 election reforms under HAVA included
an important new protection: the right of a voter who was not
on the registration list to cast a provisional ballot that would
be counted once election officials could confirm its validity.
This fail-safe measure was designed to avoid a repeat of the terrible
scenes of 2000, in which many eligible voters were turned out
of polling sites because their names did not appear on the rolls.
Specifically under HAVA, the right to
cast a provisional ballot and to have it counted depends on being
a registered voter in the. jurisdiction. As defined by the National
Voter Registration Act, jurisdiction means the geographic area
responsible for voter registration (usually the county), and not
the precinct or polling site. Sadly, that's not how many state
officials this area interpreted the new rules, and in this area
they misused their powers to great effect. Several state election
officers ordered counties to reject provisional ballots cast in
the wrong polling place. According to electionline.org, states
threw out provisional votes cast in the wrong precinct-even with
respect to selection of candidates for statewide offices such
as governor or U.S. senator. And only 17 states counted partial
ballots cast by voters in the wrong precinct.
In Ohio, Missouri, Colorado, Michigan,
and Florida, Democrats and voting-rights organizations challenged
these directives in court. In many cases, the U.S. Department
of Justice took the unusual step of intervening and telling the
judges that provisional ballots cast in the wrong place should
not count for any office, leading the chairman of the Michigan
Democratic Party to say, "The Department of Justice's eleventh
hour request reeks of partisan mischief and is an abuse of our
justice system?' After several rounds of litigation, the courts
rebuffed the challenges and upheld the directives in every one
of these states.
There are many legitimate reasons why
a voter might appear in the wrong polling location, especially
in an election like 2004 with its millions of first-time voters.
Voters who have moved recently may show up at their old site,
polling locations change and voters aren't notified, or a voter's
registration is filed in the wrong place through administrative
error. Moreover, it's not as if provisional ballots are sorted
and counted at the precinct; that happens at the board of elections.
Nonetheless, many election officials were
successful in their mission. For example, according to the Palm
Beach Post, the vast majority of provisional ballots cast in Florida
were disqualified, many because the voter was at the wrong polling
site. In the Cleveland area, one-third of the provisional ballots
were invalidated in 2004, compared with only 17 percent in 2000.
And in that decisive state, fully 155,000 provisional ballots
were cast last November. We can only wonder how many of those
weren't counted because they were cast in the wrong place. Multiply
that across 50 states and the number of votes cast provisionally
and tossed out might have been enormous.
Although worries about the security and
accuracy of electronic voting machines were the focus of pre-election
anxiety, the biggest machine problem on election day ended up
being simply the number of machines employed. Although they knew
to expect extraordinarily high turnout, election officials in
many jurisdictions nationwide failed to supply adequate numbers
of voting machines, leading to lines and wait times that were
not just unacceptably high; they were possibly an unconstitutional
denial of voting rights.
In many places, voters had to wait in
line for five, six, or even 10 hours. Observing early voting in
a Broward County, Florida, shopping mall, I encountered numerous
voters, some elderly, who had waited six hours to vote. Those
I talked to were undeterred, but who knows how many others gave
up and went home?
As closing time approached on election
day in Ohio, a federal judge ruled that the continuing long waits
were an abridgement of the right to vote and ordered paper ballots
distributed to voters still in line. The judge said, "Participation
in this democracy should not be as onerous as it is being made
today." According to The Columbus Dispatch, thousands of
voters remained in line when the polls closed at 7:30 p.m.
The worst of it evidently was on the campus
of Kenyon College, where there were only two voting machines,
and at least one student reportedly waited 10 hours-until 2 a.m.-to
vote. When the federal-court ruling came down, the students demanded
to vote on the machines, chanting, "No paper!" Educated
as they were, they feared that paper ballots would not be counted.
"The students understood right away that this was a partisan
effort to suppress voting," said Lincoln Mitchell, an election
Notably, the distribution of voting machines
within states and even within counties varied widely. Huge disparities
in the number of voting machines per capita might even present
an equal-protection problem under Bush v. Gore, the Supreme Court's
final verdict on the 2000 election. The Court there said that
equal protection applies not only to who is allowed to vote but
also to the manner in which people vote.
According to Ned Foley of the Moritz College
of Law at the Ohio State University, "This principle would
seem easily to cover voting-machine disparities that have the
effect of imposing differential barriers to the voting booths
for citizens in different parts of the state."
In the months leading up to the 2004 election,
computer scientists, politicians, and concerned citizens warned
that new computer voting machines might be vulnerable to hacking,
manipulation, or malfunctions. Many called for a voter-verifiable
paper trail allowing voters to double-check their computer vote
and election officials to manually audit them. But only Nevada
managed to implement this technology in time, and just two states
have vowed to require a verifiable paper trail by 2006.
The security and effectiveness of the
computer machines remains a huge question mark-and a source of
furious speculation on the Internet in the election aftermath.
Unquestionably there were mechanical problems on election day,
including allegations of voters' choices being switched by the
computer. In one such case, nearly 4,000 computer votes in suburban
Columbus, Ohio, were mistakenly given to President Bush.
Meanwhile, pervasive mistrust of the computer
systems caused another problem: States and localities that had
planned to get rid of the notoriously unreliable punch-card machines
stopped in their tracks, leaving tens of millions of voters dependent
on them yet again in 2004. Of the 93,000 votes lost by machines
in Ohio last November, 76,000 were from punch-card machines, according
to The Columbus Dispatch. It remains a national outrage that different
voters, depending on where they live, use different voting machines
of widely varying accuracy and efficacy. It is not just a fairness
question; it is now, in light of the Bush v. Gore ruling, a potential
As Steve Carbo details in this report,
cynical efforts to block certain groups from voting-through manipulation
of rules and less subtle means-re-emerged in this election. One
tactic was the aggressive use of previously obscure rules allowing
for "challenges" of a person's right to vote. In Ohio,
GOP officials got an early start, preemptively challenging 35,000-plus
new registrants-in mainly Democratic and minority communities-solely
on the grounds that a postcard mailed to them was returned as
undeliverable. Challenged registrants were required just days
before the election to attend a hearing and to prove their eligibility.
This went on in some areas until the courts put a stop to it.
The Ohio GOP also announced that it would
hire people to go to the polls on election day to challenge the
rights of preselected registrants to vote. Technically, a voter
can only be challenged on specific grounds such as age or citizenship.
Knowing this, partisan officials surely had an additional motive:
tying up the lines to make wait times unmanageable for many working
people. The plan set off a rush of last-minute lawsuits, conflicting
rulings and appeals, leading to great uncertainty about what would
happen on election day. In one case the plaintiffs called Ohio's
law a "Jim Crow-era statute" being used to disenfranchise
African American voters again. The Justice Department intervened,
telling the court in one case that challengers should be allowed.
While the district court judges said that the challenges were
unconstitutional one saying that they were meant to intimidate
black voters-a federal appeals court ultimately ruled the challenges
lawful. The Democrats made plans to post their own people at the
polling sites to challenge the challengers.
In other key battleground states, Republican
officials pursued similar plans, filing challenges or deploying
challengers. In Florida, the GOP developed a database of thousands
of voters it wanted to challenge on election day. And in Wisconsin,
Republicans tried to challenge thousands of registrants-but only
in heavily Democratic Milwaukee. While party officials claimed
that this new level of scrutiny was needed to thwart possible
fraud, at least one Republican strategist was more candid after
election day, telling The New York Times that the challenges were
"a big head fake," a way to distract Democrats from
getting out the vote at the crucial last hours.
Another way in which partisan officials
sought to suppress legitimate votes was through felon "purge
lists." In most states, felons are not allowed to vote, and
even after they have fully served their time, many states make
it prohibitively difficult to regain voting rights. Florida officials,
charged with gross malfeasance in this area in 2000, were forced
to withdraw their list when media investigations revealed that,
as in 2000, the list included thousands of eligible voters. The
list of "ineligible" voters provided by the state would
have disqualified 22,000 African Americans (likely Democrats)
and only 61 Hispanics (likely Republicans).
In Nevada, a private canvassing company
funded by the Republican National Committee had its employees
rip up and discard forms filled out by Democrats-a potential crime.
In Milwaukee, a flier purportedly from the "Milwaukee Black
Voters League" was distributed in African American neighborhoods.
It read, in part:
SOME WARNINGS FOR ELECTION TIME
- IF YOU'VE ALREADY VOTED IN ANY ELECTION THIS YEAR YOU CAN'T
VOTE IN THE PRESIDENTIAL ELECTION.
- IF YOU [OR ANYBODY IN YOUR FAMILY] HAVE EVER BEEN FOUND GUILTY
OF ANYTHING, EVEN A TRAFFIC VIOLATION, YOU CAN'T VOTE IN THE PRESIDENTIAL
- IF YOU VIOLATE ANY OF THESE LAWS YOU CAN GET TEN YEARS IN PRISON
AND YOUR CHILDREN WILL BE TAKEN AWAY FROM YOU.
According to local media reports, Pennsylvania
officials received calls regarding leaflets on "official"
county letterhead distributed in a Pittsburgh mall. The leaflets
said that "due to immense voter turnout expected Tuesday,"
Republicans should vote on Tuesday, November 2, and Democrats
should vote on Wednesday, November 3. And in Lake County, Ohio,
some voters received an "Urgent Advisory" on fake Board
of Elections letterhead warning that any voter registered through
the Kerry campaign, America Coming Together, or the NAACP could
In 2006, two of the most important HAVA
mandates will go into effect: technological and accessibility
standards that voting machines must meet and a requirement that
every state have a computerized, interactive, statewide voter-registration
database. Both measures can potentially solve some of the problems
we saw last year.
For their part, states will hopefully
use this as an opportunity to carefully find the best machines
and deploy them statewide. And the statewide registration databases
should help them avoid further incidents of alleged fraud, felon
purge lists, and the disputes over counting provisional ballots.
What's more, over the next several months, the agency created
by HAVA to oversee implementation and funding of election reform,
the Election Assistance Commission, should finally get the money
it needs from Congress to actually function and give meaningful
But as Miles S. Rapoport details in this
edition of the Prospect, there is much more the federal government
must do, too. Voter registration should be made easier, not harder.
Provisional voting rules must be clarified. Voter-identification
requirements must not serve to disenfranchise. Congress must ensure
that the felon purge lists are not abused. Electronic voting machines
must incorporate technology that allows for independent audits
and individualized voter verification, and we must insist on greater
transparency on the part of machine manufacturers and in the testing
system. Federal funding to ensure that our democracy functions
fairly and effectively should be ensured in advance and not subject
to the vicissitudes of annual appropriation, as it is today. And,
very importantly, the system cries out for some sort of nonpartisan
governance of election administration. This alone would go far
to restore the public's faith in our treasured democracy and to
reduce manipulation of the process for political ends.
Americans cannot go through this crisis
of confidence in the election system every four years. Voters
have done their part. Now it is time for our "elected"
leaders to do theirs.
Tova Andrea Wang is a Democracy Fellow
at The Century Foundation in New York and was a staff member of
the National Commission on Federal Election Reform, co-chaired
by former Presidents Gerald Ford and Jimmy Carter.
Reforming the Electoral Process