The 2008 Election: Could It Be A Repeat of 2000?
The Legal Problems that Still Persist

By DANIEL TOKAJI

Tuesday, Nov. 30, 2004

Those flaws can best be understood by imagining the situation the country would have faced, had Bush's lead been smaller when Americans woke up on the morning after the election. In the State of Ohio, upon which the outcome of the election turned, Bush's lead was about 136,000 votes out of almost 5.6 million cast. Suppose Bush's morning-after lead in Ohio had been half of that - around 68,000. In that event, the country would almost surely have been forced to endure another litigated election.

In this column, I'll discuss some of the most serious issues that emerged in Election 2004. I'll also suggest what needs to be done, if we're to avoid another post-election meltdown in 2008 or some other future election.

Uncertainty Over Provisional Voting: The Problem with 2002's Congressional Fix

What sort of issues would have been litigated if the election had been closer? The most likely would have been provisional voting, one of the cornerstones of the Help America Vote Act of 2002 (HAVA).

Studies conducted after the 2000 election showed that some 1.5 to 3 million votes were lost due to problems with voter registration lists. In order to remedy this problem, HAVA requires that voters whose names aren't on the list must be allowed to cast "provisional" ballots. If a given voter's eligibility is confirmed after the election, his or her ballot will be counted; if not, then it won't.

Some states have had a provisional voting system in place for many years, but for many others, this requirement is new. And even some states, such as Ohio, that have had a system of provisional voting in place, have used a system much more limited than HAVA's -- and thus have struggled to administer HAVA's new requirements.

2004's Litigation Over Provisional Ballots

One problem with the requirements is that Congress failed to specify clearly, in HAVA, the rules for determining which provisional ballots should be counted. As a result, in the weeks leading up to the election, voting rights advocates in Florida, Colorado, Ohio, and other swing states brought lawsuits challenging the states' rules for counting provisional ballots - arguing that the rules were inconsistent with HAVA. (Some of the suits also included equal protection claims and due process claims under the Fourteenth Amendment. There was also litigation in Florida under the state constitution.).

These lawsuits focused on provisional ballots cast by voters who mistakenly show up at the "wrong precinct" - including new voters who aren't sure where to vote, and voters whose precinct may have changed. Two different district judges required states to count these "wrong precinct" ballots. But both orders were reversed on appeal in the days leading up to the election.

The Provisional Ballot Litigation That Didn't Happen - and Might Happen in 2008

If the election had been closer, other fights over provisional ballots would have been a near certainty. In Ohio, over 155,000 provisional ballots were cast statewide. With precious little guidance over how to go about assessing provisional voters' eligibility, different counties would have been left to their own devices in determining which ballots should be counted.

An Equal Protection challenge would have been inevitable - arguably, it was just this kind of arbitrary county-by-county counting that provided the rationale for the Court's holding in Bush v. Gore.

In fact, a lawsuit is presently pending -- Schering v. Blackwell, filed in the U.S. District Court for the Southern District of Ohio -- that makes just this kind of argument: over whether the absence of adequate standards for counting provisional ballots violates equal protection, under the Supreme Court's ruling in Bush v. Gore. The case seeks an injunction forcing the Ohio Secretary of State to set detailed standards for counting provisional ballots.

Whether or not this lawsuit is successful, it's crucial that the states fill the gap created by Congress. They must provide clear guidance to local election officials on how to count provisional ballots, preferably by passing state statutes setting out clear rules.

Absent such standards, post-election litigation over the counting of provisional ballots is bound to occur in future elections.

Long Lines at the Polls: A Serious Election 2004 Problem That Could Recur in 2008

Provisional voting is just one of the problems that emerged in Election 2004. An even more glaring problem is the long lines caused by the heavy voter turnout.

The good news is that the intensive get-out-the-vote efforts engaged in by groups across the ideological spectrum worked. The bad news is that, in many places, our system couldn't handle the stress placed upon it by all the voters who showed up.

In Columbus, Ohio, voters waited in lines up to five hours long. And near Kenyon College, some voters waited until 4:00 a.m. Wednesday morning to cast their votes - eight and one-half hours after polls were supposed to have closed - due to the long lines.

These lines prompted a federal judge to issue an emergency court order on Election Day, requiring county boards of election to make special accommodations for voters in two Ohio counties. In a closer election, we might well have seen further litigation on behalf of voters who were, in effect, prevented from voting because they couldn't wait in line for several hours.

There's no telling how many citizens -- for example, those who had to get to work or pick up their children from soccer practice -- were deterred due to those lines. Some reports have indicated that the lines were especially heavy in urban precincts with large numbers of minority voters, although no systematic study of the length of lines has been conducted to date.

Our democracy owes its citizens better then to make them wait for hours to exercise their right to vote. The first step toward fixing this problem is a thorough investigation of where the long lines were, and what caused them.

If the problem was insufficient voting machines, then election officials need to add more. If the problem is an insufficient number of poll workers, then it may be necessary to consider an election-day holiday, in order to increase the available pool of volunteers.

Another promising reform is early voting, by which voters can show up prior to Election Day and cast their ballots. Early voting was heavily used in Florida and other states. Implementing this and other reforms may help ensure that long lines don't keep anyone from voting next time around.

Antiquated Voting Machines: Punch Card Machines Still Persist In Some States

Despite all the attention devoted to voting equipment in the wake of the 2000 election, a handful of states still use the same infamous punch card machines that caused so many problems in Florida four years ago. In a closer election, the story of Election 2000 -- with its infamous hanging and dimpled chads -- could have been the story of 2004 too.

After Election 2000, social scientists took a close look at the equipment used to cast and count votes. They found that punch cards result in a higher percentage of uncounted votes than other types of equipment. That's because a significant number of people mistakenly "overvote" by punching more than one hole, or "undervote" by failing to punch the chad cleanly. And even when the voter makes no mistake, running punch cards through the counting machine can actually cause additional chads to be dislodged, possibly invalidating that voter's choices. (If it appears that the voter has voted for more than one presidential candidate, for instance, the vote won't be counted.)

Studies have also shown that minority and less-educated voters are more severely affected by the continuing use of punch card voting machines. Better technology can substantially reduce the "racial gap" in uncounted votes, by providing notice and the opportunity to correct errors before votes are actually cast.

For all the criticism that has been directed at electronic voting, these systems do much better when it comes to making sure that every citizen's vote is counted. Unfortunately, while HAVA provided some federal funds for new equipment, it didn't require that punch cards be replaced. The result is that a handful of states continued to use this unreliable system and that, as a result, hundreds of thousands of votes were lost.

In Ohio alone, it's likely that at least 50,000 votes were not counted due to punch card ballots, which were used by over 70% of the states' voters. This wasn't enough to change the result this year. But remember our hypothetical: If Bush had won by less, litigation over a recount would doubtless have followed. In a closer election, then, we would surely have seen a messy post-election battle, with election officials looking through magnifying glasses while partisans haggled over the results in court.

The result: A distraction for the incumbent, and a far shorter transition period for the challenger, before a possible Inauguration Day. Even worse, it's possible that a protracted recount could prevent a state from meeting the "safe harbor" deadline, by which presidential election controversies must be resolved if a state is to ensure that its electors are the ones whose votes are counted in the Electoral College tally. That could mean an election that's decided by Congress rather than the voters.

What's Needed: Provisional Voting Rules, Shorter Lines, No Punchcards, and More Funding

We were lucky to avoid a contested election in 2004. We may not be so lucky the next time around.

It's important that voting rights experts, election officials, and policymakers take a long hard look at HAVA, to assess what worked well and what didn't. It may or may not be necessary to amend federal law. What clearly is necessary, however, is that the states clarify their rules on provisional voting, take steps to reduce long lines at the polling place, and replace unreliable voting equipment.

It's also essential that Congress fully fund the Election Assistance Commission, the new federal agency charged with oversight over election administration. The kind of oversight needed here is time-consuming, costly, and specific; it takes money.

Even more important, we as citizens must keep the heat on election officials, to make sure that the unfinished work of election reform is completed. If we fail to do so, then the ghosts of 2000 may come back to haunt us in 2008.


Daniel Tokaji is an Assistant Professor of Law at the Ohio State University's Moritz College of Law, and is Associate Director of the Election Law @ Moritz project. He is the author of a daily weblog "Equal Vote" which is devoted to discussion of election reform and the Help America Vote Act. Prof. Tokaji is also co-counsel in the ACLU of Ohio's lawsuit Stewart v. Blackwell, which challenges Ohio's use of punch card voting technology.

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