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Eight Years After Bush v. Gore, Why is There Still So Much Election Litigation and What Does This Mean for Voter Confidence in the Electoral Process?


Monday, Oct. 20, 2008

With Election Day just a few weeks away, newspapers and blogs are filled with reports about election litigation. In Ohio, Michigan, Indiana, and other battleground states disputes are working their way through state and federal courts-with one already leading to a Supreme Court decision. Why is this happening, eight years after the 2000 Florida debacle in which public officials promised to fix the way we conduct elections? And what does it mean for future public confidence in the electoral process?

The short answer to why this is occurring is this: We haven't made some important changes in election laws that should have been made soon after Florida 2000, and some of the post-2000 changes that were put into place have actually made things worse. Add to that some very heated partisan rhetoric about voter suppression and voter fraud, and we have the recipe for continued legal battles over election administration. These battles are troubling, as they undermine voter confidence in the process, and pose a small, but serious, risk of election meltdown in the case of a close election.

What Happened After 2000: Only a Partial Fix, and Some Changes for the Worse

In Bush v. Gore (2000), as readers will recall, the United States Supreme Court put an end to a statewide recount of undervotes ordered by the Florida Supreme Court, thereby insuring the election of George W. Bush over Al Gore for president. In that opinion, the Court expressed the hope that "[a]fter the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting."

In some ways, things did get better in the wake of the Court's call for change. Congress passed the Help America Vote Act (HAVA), providing money for states to get rid of their antiquated voting machines, such as those inaccurate punch card ballots (Goodbye, hanging chads!). One study found that there were 1 million fewer lost votes in 2004 compared to 2000.

But we still have seen a number of balloting snafus since the changes, including a ballot design problem in a 2006 congressional race from Florida that likely led to a change in the outcome of the election. As a response to public lack of confidence in electronic voting, Florida and other places have now junked the machines they recently purchased. With places like Palm Beach County on their third set of voting machines in three elections, we should not be surprised that we are now hearing horror stories of missing votes and botched recounts in Palm Beach-stories that chronicle events occurring now, in 2008, not back in 2000.

HAVA itself also is partially responsible for the new mess. The law was a compromise between Republicans who voiced concerns about "ballot integrity" and Democrats who were worried about voter access. Some of the provisions of the law are (unsurprisingly) unclear---representing the kind of fudging necessary for legislative compromise. But some of the most important lawsuits from 2004 and this cycle concern alleged violations of HAVA. Significantly, on Friday the Supreme Court ruled that at least one provision of HAVA likely does not create a right for individuals to sue when it is violated.

As Partisanship in Election Administration Has Heated Up, Election Law Litigation Has Also Risen

One of the other lessons from Florida 2000 is that there is a danger when elections are being run by people whose allegiances are to the political parties to which they belong, rather than to the political process itself. Since 2000, however, partisan battles over election administration have only become more intense.

Consider, for example, the partisan debate over whether voter identification should be required to prevent voter fraud. The 10 voter ID bills proposed in state legislatures from 2005 to 2007 were supported by over 95% of Republican legislators and about 2% of Democratic legislators. Meanwhile, the current disputes over voter registration fraud and ACORN only fuel the partisan mistrust.

Election law has become part of a political strategy; every campaign needs an election lawyer in case the election is within the "margin of litigation." Candidates are not shy about suing to overturn close election results. For this reason, and because of uncertainty regarding the changes in election laws, the number of election cases has gone up from an average of 96 cases per year before 2000 to about 230 cases per year since 2000:

Voters Now Increasingly Lack Confidence in the Fairness of the Electoral Process

The upshot of all of this litigation and talk of voter fraud and voter suppression is that many voters are losing confidence in the fairness of the electoral process.

In 1996, a study by the University of Michigan's National Election Studies found that about 10% of voters thought that the way the presidential election was conducted was somewhat or very unfair. Unsurprisingly, the number spiked at 37% in 2000, and it fell to 13.6% in 2004.

But we now see a partisan and racial skew. In 2004, 21.5% of Democrats saw the system as unfair, compared to just under 3% of Republicans. And according to a Pew study, the number of African Americans not at all confident that their votes would be accurately counted has more than doubled from 11% in 2004, to 24% in 2006.

Part of what is going on here is a loser's effect: If my candidate wins the election, it must have been conducted fair-and-square, but if my candidate loses, there must have been some chicanery. The point is reinforced by a survey done after the contested 2005 Washington state gubernatorial race: In that election, the Republican was initially declared the winner, only to have the results reversed by the state supreme court after an election contest. After that election, 68% of Republicans thought the election process was unfair, compared to 27% of Democrats.

Accordingly, we can predict with confidence that if Sen. Obama wins the election next month (as current polls show he is likely to do), our figures on voter confidence will be reversed: Many Republicans will believe that the election was "stolen" and the results somehow tainted by fraud, while Democrats will believe the rightful winner prevailed.

If the election is very close and Senator Obama is ahead, I expect that Republicans will raise voter fraud as a reason to contest the election. Thanks to the prevalence of overheated rhetoric on the issue, many people will be tempted to believe that voter fraud is rampant and can affect the outcome of the election - even when the evidence is all to the contrary.

Solving the Problem: An Election Administration "Bailout"

What can be done about these problems? The answer, I believe, is that we need a government bailout of our broken electoral system -- just like the one we've seen for our broken financial system. But this bailout won't be about money, or at least won't be primarily about money. It will be more centrally about ensuring uniformity and fairness in the election process.

We can start with a uniform ballot for federal elections, applicable in all elections. To eliminate voter registration fraud and incompetence, we can move to a national, universal voter registration model. More ambitiously, too, states should consider creating the conditions for nonpartisan election administration, and cleaning up ambiguities and holes in the rules for running our elections.

The swings in voter confidence in the electoral process are troubling, and present a real national crisis. Once this election is over, we need to move to fix the process. Unfortunately, once the election is over, the press will doubtless stop paying attention to our election problems, only to return to election experts, just before the 2012 election, to ask us why things haven't been cleaned up yet. Part of our reply should and will surely be that coverage of these problems shouldn't follow the election cycle; it should persist until they are fixed.

Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles and writes the Election Law blog.

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