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Why It's Controversial


Tuesday, Nov. 05, 2002

Last week, President Bush signed the "Help America Vote Act." The law is designed to overhaul state voting systems and prevent the kind of errors that cast a shadow over his own election two years ago.

In the wake of the 2000 presidential election fiasco, a few states made serious attempts to revamp their registration and voting systems. Most, though, waited for Congress to take the lead (and provide the money).

Congress finally did so with the new act, which authorizes $3.86 billion to upgrade antiquated voting equipment, improve the administration of elections, and change the way Americans register and vote. None of these changes will be in effect for the elections held today, but they will directly affect registration and voting practices starting as early as next year.

While the new act only applies to federal elections, most states will probably enact the federal requirements into law for state and local elections as well. It is simply too troublesome and potentially confusing for the states to maintain two sets of election rules.

How will the Help America Vote Act change things? And most importantly, will the act truly help America vote - avoiding confusion such as that which plagued the notorious 2000 Florida election?

Aiding Uniformity, But Not Necessarily Increasing the Number of Votes Counted

It is unclear whether the new law will actually increase the overall number of eligible voters casting accurately counted ballots. The act will help ensure that voters who show up at the polls cast ballots that accurately reflect their intentions. But unfortunately, new registration requirements may keep many eligible voters away from the polls in the first place.

In the end, the law may simply make election administration more uniform. Given the experience in Florida last time around, uniform election laws are nothing to sneeze at.

But uniformity alone certainly isn't significant enough to tout the act, as Senator Chris Dodd recently did, as the first civil rights law of the Twenty-First Century. A true civil rights law would help disadvantaged or less-educated voters both register and vote - not make voting easier while making registration harder.

For many voters, their first encounter with the new law will take place when they register to vote. Those registering must provide a driver's license number or, for those without a driver's license, the last four digits of your Social Security number. (Those without either will be assigned a unique identifier by the state.) Then states must set up a means of verifying the accuracy of that information.

Almost every state already has some mechanism for verifying voter identity. But most require something less than identification of the sort mandated by the new law.

In some states, for example, you must simply provide a signature that matches either a signature on file, or one on a piece of identification. Other states merely require you to sign the poll book. And in several states, you only need to state your name in order to vote. Obviously, these lesser requirements make voting fraud easier than it will be under the Help America Vote Act - but in truth, voting fraud is far from our worst voting problem. (It wasn't, for instance, of any real significance in Florida 2000).

Under the new law, first-time voters who register by mail will have to provide proof of their identity - either with their registration materials or when they show up at the polls. And mail-in registration forms must include the questions "Are you a citizen of the United States of America?" and "Will you be 18 years of age on or before election day?" If the answer to either question is no, the voter will be instructed to stop filling out the form.

The Controversial Part of the Act: The New Registration Requirements

These new registration requirements are the most controversial provisions in the new law. They pit anti-fraud crusaders (mostly Republicans) against civil rights activists (mostly Democrats).

Proponents (mostly Republicans) argue that the requirements will lessen the number of illegal votes. They are probably right - but as noted above, this isn't the problem that should be first on our list.

Nothing in our recent history indicates the presence of widespread voting fraud of this sort; the days of votes being "cast" by deceased persons are largely gone. But we still see high number of instances where legal voters are erroneously removed from voter rolls and denied the right to vote. Our national problem is getting legal votes counted, not getting illegal votes discounted.

That's where the arguments of opponents (mostly Democrats) come in. They point out - accurately, I believe - that the more onerous registration requirements create additional hurdles that might screen out eligible voters and disproportionately disenfranchise certain groups, such as low-income, minority, and foreign-born voters.

No wonder, then, that Republicans insisted on the requirements, and Democrats reluctantly compromised on them in order to get the rest of the law passed, and some kind of uniformity imposed.

This wouldn't be the first time in our history that an attempt to disenfranchise voters masqueraded as an "anti-fraud" measure. Southern Democrats in the late nineteenth century employed a variety of similar devices in order to keep blacks and lower-class whites away from the ballot box.

Some states, for example, required periodic registration and the presentation of registration receipts at the polls, which kept away lower-class voters unaccustomed to keeping records. Others demanded detailed information from voters upon registration.

The new identity requirements pose the same sorts of dangers as these other requirements - requirements that were also ostensibly designed to uphold the sanctity of the ballot box.

Changes You May See When You Vote: Mostly Good Ones

Meanwhile, over the next two to four years, states will be making a variety of changes in their polling places to comply with the new law. Most of these changes are for the best (and long overdue).

Some involve the voting systems and technology, designed in direct response to the problems experienced by Florida in the last presidential elections. The act earmarks $650 million for buyouts of punch-card and lever voting machines.

Voting systems will have to recognize certain voting errors, such as when one casts a vote for two candidates (over-voting). They will also have to provide voters with the opportunity to review and correct their ballot before finally casting their vote. (That might help voters address another notorious problem - the undervote, in which the vote isn't recognized by the machine; voters seeing they have undervoted can then fix the problem.)

The law also includes some measures designed to ensure that all eligible voters are given an opportunity to vote. For example, they mandate accommodations for disabled voters. In addition, they require a provisional voting system.

This should help prevent another aspect of the Florida disaster from recurring. There, eligible voters were turned away from the polls after their names were mistakenly purged from voter rolls. Under the new system, that shouldn't happen - everyone should be able to vote, on the rolls or not, and those not on the rolls can have their votes considered later to see if they are valid. No one should be turned away.

Finally, you may notice that the workers in your local precinct are a bit younger than they used to be. The new law provides $10 million for programs to encourage high school and college students to volunteer as poll workers.

Changes You May Not See At All

Finally, there will be a variety of changes that take place behind the scenes. These include new requirements for voter registration systems, and uniform regulations for counting votes. Like the changes you'll see when you vote, these changes ought to be positive ones, unless there are problems in implementation.

The new law directs states with voter registration to establish centralized computer registration systems, containing a list of every legally registered voter. The systems must be interactive; that is, local officials must enter data at the time it's received, and all state and local election officials must have access to the system.

The list must also be coordinated with other agency databases within the state. This will allow states to coordinate their voter registration list with felony and death records - in order to remove ineligible (or dead) voters from the list. The only real worry here is that states may mistakenly purge eligible voters from the rolls en masse, but the ability to cast provisional ballots may alleviate that concern - as long as states make sure they do not simply use the exact same system to later purge provisional ballots.

States must also adopt uniform systems for determining what counts as a legal vote. This is quite clearly in response to one of the central problems the Supreme Court had in Bush v. Gore with Florida's election system.

The Court criticized, in particular, the fact that a "pregnant" or a three-cornered chad (remember those?) was counted as a legal vote in some Florida counties, but not in others.

A Glimpse into the Future

The states also play a crucial role. Though the law spells out some minimum standards that must be met, states are given quite a bit of leeway in how they meet those standards. The law's enforcement provisions are not as strong as some other federal voting rights laws - which means that some states may fall behind or fail to implement the required changes. And unfortunately, the lagging states may be the very ones that have the worst voting systems, and the fewest resources, in the first place.

Some Changes You May Even See When Voting or Watching Results Today

We may not have to wait until 2006, or even 2004, to see how well some of these reforms work. Most states put off serious election reform and waited for federal leadership (and money). But some actually went ahead on their own. In Georgia, for example, voters will make history today when they become the first in the country to cast their ballots on a uniform statewide touchscreen voting systems.

So as you stay up late tonight watching election results, pay close attention to who won and lost. But be sure to keep an eye on how some of the new state election reforms fared, for that may give you a glimpse into our future under the Help America Vote Act.

Grant Hayden is an associate professor of law at Hofstra Law School, where he teaches Voting Rights, among other subjects.

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