Also In This Issue Related stories are available to subscribers only: Going Too Far: A Historical Look At Power Shifts Related Resources On NationalJournal.com National Journal: "Of Close Calls and Chaos" (10/21/06) · National Journal: "Getting Carded" (9/23/06) · Rules of the Game: "What Fixes? Voting Problems Still Loom on Election Day" (10/30/06) · Rules of the Game: "Poll Tax Revisited" (9/25/06) · National Journal: "Close Races Spotlight An Ugly, Broken Mess" (6/11/05) · National Journal: "Ballot Box Blues" (9/11/04) · Rules of the Game: "Paper Trails Are No Panacea" (6/14/04) Additional Resources On The Web Testimony of American Enterprise Institute Scholar Norman Ornstein before the Commission on Federal Election Reform (6/30/05) [PDF] · Ohio Secretary of State Kenneth Blackwell Testifies on the 2004 Election and the Help America Vote Act before the Committee on House Administration (3/21/05) · Cuyahoga County Board of Elections Director Michael Vu Testifies before the Committee on House Administration (3/21/05) · Introduction to John Fund's "Stealing Elections" -- National Review Online (9/13/04)

By Brian Friel, National Journal
© National Journal Group Inc.
Friday, Nov. 3, 2006

Democracy's dirty little secret: Vote counting is a messy business. In nearly every election, votes that shouldn't be counted are, and votes that should be counted aren't. In the 2004 election, at least 850,000 ballots cast somewhere in the nation were never counted, the federal Election Assistance Commission estimates.

Some voters inadvertently invalidated their absentee ballots by failing to sign them. Other absentee ballots were signed but weren't counted because scanners failed to detect a signature.

But voters who showed up at a polling place didn't necessarily have better luck: Some lacked proper identification, or were directed to the wrong precinct. Others discovered that they weren't registered, that their names had been purged from voter rolls, or that someone had already voted in their name. Most of these frustrated folks were allowed to cast provisional ballots, but many of those ballots were not counted.

When a race isn't tight enough for contested ballots to matter, or when the results are not within what election experts call "the margin of litigation," election officials and the political parties' official observers generally accept the imperfections and move on. That's what happens in most races. It's quite a different matter when the vote count for an important office is very close.

The 2004 governor's race in Washington state was ultimately decided by 133 votes out of 2.8 million cast. After losing two recounts to Republican Dino Rossi, Democrat Christine Gregoire was finally pushed over the goal line by the discovery, during recount No. 3, of several hundred absentee ballots that a faulty scanner had missed. A state judge upheld her victory, despite also ruling that more than 1,600 ballots were cast illegally, many by felons without voting rights. The court couldn't determine how many of those illegal votes had been cast for each gubernatorial candidate.

With the 2006 general election fast approaching, some election observers are predicting widespread chaos at the polls. "We may be only three weeks away from repeating the 2000 Florida voting debacle," John Fund, a Wall Street Journal columnist who wrote a book on election fraud, told the U.S. Commission on Civil Rights on October 13. He warned that not one but several states could see "allegations of voter fraud, intimidation, and manipulation of voting machines [in addition to] the generalized chaos that sent that presidential election into overtime."

Others, including Texas-based political consultant Ray Martinez, argue that the nation's voting systems have improved since 2004, thanks to a 2002 federal law that established numerous new guidelines for conducting elections and poured $3 billion into state and local election administrators' coffers for new voting machines and voter-registration databases. "Elections are intensely human," said Martinez, a former vice chairman of the Election Assistance Commission, which administered the $3 billion in federal funding under the 2002 Help America Vote Act. "When you add so much complexity -- federal mandates, state mandates, new equipment, statewide databases -- to an endeavor so dependent on human interaction, you're bound to get mistakes. But I certainly believe our democracy is strong enough to survive some necessary bumps along the way to achieve an effective election system in the long run."

Observers generally agree that the voting process will encounter bumps on November 7. In close races, those bumps could lead to extended legal battles to determine the outcome of congressional and gubernatorial contests. Indeed, in anticipation of Election Day problems, legal battles have been raging all year over who will be allowed to cast ballots on November 7. "The most significant voter disenfranchisement happens not in November but in October and September and all year round," said Michael Waldman, executive director of the Brennan Center for Justice at New York University.

Sources Of Friction
Elections in the United States are carried out by some 10,500 local jurisdictions operating under a myriad of local, state, and federal rules. The 2000 presidential recount in Florida laid bare a host of problems with the way elections were being run and led to the Help America Vote Act. The money it provided helped election officials upgrade their voting systems and create statewide voter-registration databases. As a result, Martinez predicts that voting will go relatively smoothly this year. "I have a great deal of confidence in our state and local election administrators," he said.

Electioneers-In-Chief Before the 2000 presidential contest, many Americans didn't know that partisan officials run most states' election systems. Then they met Katherine Harris. As Florida's secretary of state, the Republican Harris became a lightning rod for Democratic charges of partisanship during the state's presidential recount. Florida is one of 35 states that have partisan, elected or appointed secretaries of state who serve as chief election officers, according to the National Association of Secretaries of State. Many election reformers argue that the top voting official in each state should be a nonpartisan professional. "There's too much pressure to make rulings, tilt, do things that will help one's own party," said Miles Rapoport, the former Democratic secretary of state for Connecticut, who is president of Demos, a New York City-based group that focuses on election issues. But the idea of making each state's chief elections post nonpartisan hasn't caught on. In 2004, Democratic criticism about election overseers centered on Ken Blackwell, Ohio's Republican secretary of state, after reported irregularities resulted in a recount even though President Bush's margin of victory in the battleground state was much higher than it had been in Florida in 2000. This year, if races are close, Democratic Secretary of State Robin Carnahan of Missouri could face similar charges of partisanship, as could Republican Secretary of State Todd Rokita in Indiana. Carnahan successfully fought a Missouri law requiring photo identification at the polls, while Rokita supported a similar Indiana law that remains in effect. Whatever happens, 2006 looks to be a mixed year for secretaries of state seeking higher office. It appears likely that former Ohio Secretary of State Sherrod Brown, a Democrat, will defeat Republican Sen. Mike DeWine. But Blackwell, whose tenure as secretary of state is ending, is trailing badly in the race for Ohio's governorship. And Harris, now serving her second term in the House, is far behind in her run against Democratic Sen. Bill Nelson. -- Brian Friel

Whatever troubles do arise, most will probably come from one of the four chief sources of friction for election officials: voter identification, voter rolls, ballot counting, and new machines. Already party lawyers are skirmishing -- for example, over what signs will be allowed outside the polling places where the name of former Rep. Mark Foley, R-Fla., will be on the ballot. A vote for him will be counted as having been cast for the replacement Republican candidate.

• Voter ID. The Help America Vote Act forced states to revisit many of their own election laws. In the process, several states added rules requiring voters to show photo identification at the polls. Advocates of such requirements argue that they will cut down on fraud. Opponents say that black voters are less likely than their white counterparts to have driver's licenses, the most common form of photo ID, and that the requirement disenfranchises legitimate voters. The Democratic Party, the Brennan Center for Justice, and the League of Women Voters have challenged ID requirements in court, while Republican secretaries of state and the American Center for Voting Rights, a Virginia-based group, have defended them.

Only Indiana will have a strict photo ID requirement in effect on Election Day; the legal challenge to that rule is not expected to be settled by then. Georgia's and Missouri's photo ID rules were struck down in court, so other forms of identification -- such as utility bills -- can be presented at polling places. Arizona voters must bring a photo ID or two other forms of identification. On October 20, the U.S. Supreme Court lifted [PDF] a lower-court injunction that had kept Arizona's identification requirements from taking effect. The Court stressed that it was not yet ruling on whether the controversial rules are constitutional.

Ohio, meanwhile, had plans to impose an additional requirement on some voters. A state law would have forced naturalized citizens, if challenged, to show proof of citizenship before they could vote. A federal court struck down [PDF] that mandate.

Because many legal challenges are unresolved, election observers worry that voters and poll workers will be confused about what requirements are in force on Election Day -- and that their confusion could produce chaotic situations and still more lawsuits. Mary Wilson, president of the League of Women Voters, said that her organization is trying "to make sure voters know where to go to vote and the types of identification they need to go to the polls."

• Voter rolls. States are struggling to comply with the Help America Vote Act's insistence that they create statewide voter-registration databases. Traditionally, such databases have been kept at the local level, so there was nothing to prevent voters from being registered in more than one locale simultaneously. Duplicate registration is normally just the result of a voter's moving from one district to another and not being dropped from the first locale's voter lists. However, deliberate fraud can happen: Fifty-two people have been convicted of federal election fraud since 2002.

Earlier this month, Thor Hearne, counsel for the American Center for Voting Rights, told the U.S. Commission on Civil Rights that in some Missouri counties, the number of registered voters exceeds the number of voting-age residents. States have begun culling ineligible voters from the rolls by checking their new databases for dead voters, felons who have forfeited their voting rights, and duplicate registrations. Illinois and Missouri election officials in the St. Louis area have been working together to prevent voter fraud after discovering that 10 people had voted in both states in the 2004 general election.

Kentucky's attorney general and secretary of state battled in court this year over the latter's effort to purge 8,000 voters from the rolls because they were also registered in Tennessee or South Carolina. The attorney general argued that the action would disenfranchise some eligible Kentucky voters. Both sides claimed victory when a state judge ruled on October 2 that voters can be purged if they don't show up and prove their residency in this election or the next.

According to Tova Wang, a fellow at the Century Foundation, a New York City-based think tank, some states have become too aggressive in culling their voter rolls. As a result, some people who should be eligible to vote will discover on Election Day that their names have been purged. The accuracy of the state lists, she added, varies dramatically. Some states try to verify a voter's residence by checking the name against motor vehicle records. Such checks can be particularly unreliable if they depend on strict matches that don't account for typos or the fact that, surprisingly, some voters share a name and a birth date, Wang said.

Four states -- Alabama, Maine, New Jersey, and New York -- are so far behind in creating statewide databases that the Justice Department has sued them. Justice sparked a partisan firestorm in Alabama because control of the database -- and the power to purge names from it -- was given to the Republican governor, not the Democratic secretary of state. Even though fraud-hunting Republicans led the push for statewide voter rolls, one national Republican Party official recently told National Journal, "It's a sound system in theory, but in practice it has multiple bugs and is nowhere near ready to be declared a success."

• Ballot counting. In the 2004 election, at least 1.9 million provisional ballots were cast. And 676,000 of them were never counted. Provisional ballots are supposed to be offered to would-be voters whose names don't appear on the polling place's registration list, who don't bring the proper ID, or who show up at the wrong precinct. Provisional voters are allowed to return later to prove their eligibility. If they do so, their ballots are supposed to be counted.

But other rules for counting provisional ballots vary dramatically. Demos, a New York City-based group that focuses on election issues, reports [PDF] that 31 states and the District of Columbia don't count provisional ballots cast in the wrong precinct. Demos calls ballots that election officials allow to be cast but have no intention of counting "placebo" ballots. "Many provisional voters think they are being given the vote, when in fact they are receiving a false promise," a Demos report warned.

In a close election, the rules for counting provisional ballots could become a legal issue, just as the rules for counting absentee ballots played a role in Washington state's 2004 gubernatorial race. Because of the new voter ID laws, more people may end up casting provisional ballots. But most states have only recently decided on procedures for counting provisional ballots, and those procedures have not been tested in court. "Hundreds of thousands of votes in places where there may be close elections are going to be contested as to whether they should be counted or not," predicts Demos President Miles Rapoport, the former Democratic secretary of state for Connecticut.

• New machines. Election administrators' response to the "hanging chads" and "butterfly ballots" that became infamous during the 2000 presidential recount has been to switch to electronic voting machines. The federal government provided billions of dollars to help pay for the changeover. Since 2000, 57 percent of counties nationwide have purchased new voting equipment, according to Election Data Services, a Washington, D.C.-based political consulting firm.

	Evolving Landscapes The Help America Vote Act set aside billions of dollars for states to replace aging systems with new electronic voting machines. Which counties in which states have updated their voting equipment since 2000? And which counties are using optical scans, paper ballots or punch cards? Our county-by-county breakdown.

Charles Stewart, a Massachusetts Institute of Technology political scientist, estimates that 1 million more ballots were counted in 2004 than in 2000 because electronic voting machines detected votes that paper-ballot-counting machines would have missed. Nonetheless, many election observers say that the switch to electronic voting machines will cause significant problems: Machines will break down, printers will jam, poll workers will misuse the machines, and technological glitches will arise -- such as in Northern Virginia, where Democratic Senate nominee Jim Webb's surname apparently isn't going to be properly displayed when voters are asked to confirm their choices.

Electronic voting machines are "a problem that's going to cause a lot of anxiety," said Donna Brazile, chairwoman of the Democratic National Committee's Voting Rights Institute. The Rev. DeForest Soaries, the first chairman of the Election Assistance Commission, is downright pessimistic about the reliability of the nation's voting apparatus, despite the billions spent on supposed upgrades. "We have new stuff that does not conform to national standards, because there are no standards," he laments. "We know more about car tires than we know about voting machines."

In some jurisdictions, administrators are backing up electronic machines with paper records -- a move that could cause controversies during recounts if the machine totals don't match the totals on paper. Just as with provisional ballots, state rules governing the resolution of such disputes have not been tested in court and are ripe for being challenged.

The Parties Prepare
In every election, the parties accuse each other of dirty tricks designed to suppress the other side's vote. In Wisconsin, four Democratic operatives recently pleaded no contest to charges that they slashed the tires of Republican get-out-the-vote vans on Election Day 2004. In Louisiana in 2002, Brazile says, she confronted someone attempting to turn voters away by telling them that the election was being held on a different day. In Ohio in 2004, a court battle raged in the weeks before the election over whether the state Republican Party could send operatives to the polls to question the eligibility of would-be voters -- a tactic that Democrats charged was voter intimidation. A federal appeals court ultimately sided with Republicans on Election Day.

Nightmare Scenarios In August 2003, Diebold Chief Executive Walden O'Dell wrote to President Bush, promising to help deliver Ohio's electoral votes to him in 2004. O'Dell's letter was sent the day before Ohio Secretary of State Ken Blackwell, a Republican, certified Diebold as one of four firms eligible to provide electronic voting equipment to the Buckeye State's jurisdictions for the 2004 presidential election. Until that point, the nightmares of voting-rights activists primarily featured antiquated lever-style voting machines and the "hanging chads" of paper ballots. But the promise by O'Dell, who no longer heads Ohio-based Diebold, set off alarms about the potential dangers of electronic systems, which were widely touted as the best solution to the shortcomings of paper-based voting. "That was the moment when electronic voting went from being a policy fight to being a political fight," said Doug Chapin, executive director of electionline.org. "Concern about electronic-voting security and reliability, up to that point, was largely an issue between computer scientists and voting officials. Then it became a situation where people were afraid that voting machines could be used to steal votes." Since then, a variety of conspiracy theories have surfaced about Ohio's role in Bush's re-election. In an article for Rolling Stone this past summer, Robert F. Kennedy Jr. accused the state's election officials of inappropriately purging thousands of names from voter rolls and intentionally delivering an insufficient number of voting machines to heavily Democratic districts. Ohio is still at the center of the nation's debate over how to ensure fair elections. And Blackwell, who survived a tornado of lawsuits after the 2004 election, is now his party's gubernatorial nominee. The Century Foundation and election line.org [PDF] both released reports in October listing Ohio among the top 10 states where chaos at the polls is most likely this year. Chapin said that if Florida was the original poster child for the need for more accurate vote counting, then Ohio is the "troubled teen." Almost all of Ohio's counties have deployed new voting systems for use this fall. The majority of the Buckeye State's voting jurisdictions have rolled out fleets of brand-new touch-screen electronic machines, all of which are equipped with printers that produce paper audit trails as required by state law. Ohio also has a new voter-identification law that many poll workers are still busy committing to memory. Ohio's struggles to modernize its voting system to comply with the 2002 Help America Vote Act are not unique. But the stakes there are especially high because of the number of competitive races this year. Concerns about the health of Ohio's voting system were not put to rest by the primaries last May. A combination of technical glitches and human errors delayed the release of Cuyahoga County's results for almost a week. Cuyahoga was using its Diebold Accuvote TSX machines for the first time. According to the Election Science Institute, more than 90 percent of Cuyahoga County voters surveyed [PDF] after the primary said that they had good experiences with the Diebold machines and that they were confident their votes were recorded correctly. But ESI also found that the machines' electronic and paper-trail tallies often disagreed. Michael Vu, director of Cuyahoga's Board of Elections, said his county is vigorously preparing for the general election and is scrambling to train as many poll workers as possible. (ESI noted that many poll workers failed to show up for the primary.) Vu defended the Diebold machines' performance in the primary. "We did not lose votes. Period," he said. "Even the insinuation of it is incorrect." The ESI report on the Cuyahoga primaries was scorned by Diebold spokesman Mark Radke, who said that the performance of similar Diebold machines in other Ohio counties contradicted the institute's findings. He also said that ESI rejected Diebold's offer to help with the study. "We were listening," he said. "We just weren't asked to participate." ESI Project Director Steven Hertzberg said that the fallout from the Cuyahoga County primaries has taught election officials elsewhere some important lessons about electronic voting, particularly regarding the value of paper trails. But the weaknesses of certain machines, he said, indicate that the Help America Vote Act has not stimulated sufficient competition among voting-equipment manufacturers. "I don't want legislation to stipulate a solution," he said. "I want legislation to stipulate a set of requirements based on the needs of stakeholders. And then I want to be able to go out to private vendors and say, 'I need this. Build it.' " Election officials in Cuyahoga County and other Ohio jurisdictions are frantically recruiting legions of new poll workers and are putting veterans through refresher courses. They're also bracing for a flood of absentee ballots. But Vu said he is comforted by the knowledge that his county won't have to deal with any hanging chads. -- Michael Martinez

More recently, an aide to the Republican who is challenging Rep. Loretta Sanchez in California's 47th District sent out a threatening letter falsely telling naturalized Latino citizens that they could be jailed or deported for voting in a federal election.

Predictably, the parties are already questioning each other's commitment to clean elections. In a September 29 letter to Republican National Committee Chairman Ken Mehlman, Democratic National Committee Chairman Howard Dean urged Mehlman to join him in calling for "fair and impartial elections." At the same time, Dean issued a release criticizing Republicans for supporting photo ID requirements and accusing them of purging eligible voters from the rolls and inconsistently administering election laws. In an October 9 response, Mehlman said he agreed with the goal of getting every eligible voter to cast a ballot -- and then went on to accuse Democrats of engaging in voter intimidation, making threatening calls to Republican volunteers and voters, and making false claims of voter suppression by the GOP.

The Democrats have adopted a national strategy for post-election legal challenges. The Republicans, meanwhile, are relying on their state parties to come up with battle plans. The DNC's Voting Rights Institute has set up a national hotline for voters to report problems on Election Day. The institute is sending what it calls "election protection" staff to 18 states and is providing election protection manuals to its workers elsewhere. The Democrats' National Lawyers Council is recruiting 7,500 lawyers and law students to monitor key precincts. State Democratic parties are also participating in lawsuits challenging voter ID laws.

GOP efforts vary by state. In Missouri, the state party is battling with the Association of Community Organizations for Reform Now over the validity of the group's voter registrations and whether its workers are promoting Democratic Senate nominee Claire McCaskill during supposedly nonpartisan registration drives. The Michigan Republican Party, saying that liberal groups intimidated Republican voters in 2004, has announced a Republicans Safeguarding Voter Rights Program to send thousands of poll observers to election sites on November 7. The Republican National Lawyers Association is preparing a list of volunteers who would be available after Election Day in case of a recount. "We anticipate that, because of how close we expect many elections to be, there will be more than the usually rare one or two statewide recounts occurring," association President Harvey Tettlebaum wrote in the organization's October newsletter.

Republicans also contend that court challenges brought by Democrats and liberal groups will sow confusion on Election Day. "We saw this in '04, and we're seeing it again now -- a nationally coordinated effort on the other side to litigate changes to the election code late in the day, right before an election, to create confusion and make it unclear what is going to govern on Election Day," the national Republican official said.

On the other side of the partisan divide, Brazile told the U.S. Commission on Civil Rights on October 13 that Republicans send mail to voters in Democratic neighborhoods and then challenge the ballot of anyone whose mail was undeliverable. "These intimidating and disenfranchising tactics have been employed by a wide range of Republicans," she said.

When not swapping charges, both parties have identified ballot-counting procedures and electronic voting machines as two factors that they will monitor on Election Day. Rapoport of Demos warned that the diversity and complexity of the election system means that some unexpected problems will occur. "There will be something that no one has even thunk up yet that will go wrong," he predicted, noting that officials failed to anticipate the "pregnant chads" of 2000 and the long lines that many voters encountered at polling places in 2004. Others contend that considerable progress has been made. "We are not as unready as we could have been," MIT's Stewart said.

What is indisputable is that election lawsuits are on the rise. Since the late 1990s, they have jumped from an average of 96 a year to 254, according to a 2005 report by a commission on election reform chaired by former President Carter and former Secretary of State James Baker.

Even election reformers concede that all of the problems that could crop up on November 7 won't capture the public's attention unless they occur during close federal or statewide elections, such as the 2004 governor's race in Washington state that ended in a flurry of recounts. Only 18 states have automatic recounts, according to the National Conference of State Legislatures. Ohio, for example, requires a recount in any statewide race in which the margin of victory is one-quarter of 1 percent or less of the total vote. If, say, 4.5 million votes were cast in the Senate race between Republican Sen. Mike DeWine and Democratic challenger Sherrod Brown, then an automatic recount would occur if the two candidates' tallies were within 11,250 votes. For House races in Ohio, a recount is automatic if the vote tallies are within one-half of 1 percent of the total vote. Arizona, Colorado, Connecticut, and Florida are among the other states with competitive congressional races that have automatic recount procedures.

In 40 states, defeated candidates can request recounts but must pay much of the cost involved unless they end up winning as a result. In Virginia, a candidate can request a recount only if the candidates' vote totals differ by 1 percent or less. In Tennessee and Missouri, a recount request must be based on a claim that there were irregularities, such as fraud or machine malfunctions, that could have changed the election's outcome.

Reform advocates note that voting debacles are the reason for so much nationwide interest in election administration. "We need continuous squeaky wheels to make sure it never falls off the national radar screen," Rapoport said. He and other reformers fret that if none of this year's high-profile contests is close enough to spark controversy, the public's interest in trying to perfect voting systems will fade.

But as election officials from coast to coast would no doubt say: We should have such worries.

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