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Election Reform Finally Limps Into Port
By Steven Hill
October 31, 2002

Nearly two years after our presidential un-election in which the world's "lone remaining superpower" demonstrated to the world our alarming level of election administrative incompetence, finally Congress has passed an electoral reform bill. To understand the pros and cons of this bill -- and there are many on both sides of that equation -- let us recall some of the more glaring blunders that erupted in November 2000.

Not only did we fail to allow all willing voters to cast a valid ballot (due to the faulty "butterfly" ballot design, error-prone felony lists, long poll lines, and more), or to properly count all the votes cast (due to defective voting equipment, hanging chads, confusion over recounts, etc.), but we also failed to employ an electoral method that avoided "spoiler" dilemmas and non-majority winners. There's little question that most Floridians who tried to vote preferred Al Gore over George W. Bush. Moreover, in Florida and nine other states, as well as nationally, the winning candidate did not reach a 50 percent majority of the vote. Our rusty old "democracy technology" broke down in numerous ways and in numerous places, and that's what the federal electoral reform bill was supposed to fix.

So how did the final version of the "Help America Vote Act" address our considerable democratic shortcomings?

Some of the bill's provisions are major steps forward in bringing election administration into the 21st century, setting a course that eventually may put us on a par with, say -- Brazil. For instance, Brazil now uses computer-based voting for all local, state and federal elections, with plenty of safeguards in place. Voters see a list of candidates on the computer screen and type in the number of their desired candidate. Then the name, party, and photo of the candidate appear on the screen, so the voter is sure she's voting correctly, thereby preventing the overvotes and undervotes that plagued the Florida presidential election.

Not to knock Brazil, but the fact that we are playing catch-up with a nation that has a fraction of our federal budget and about a fifth of our per capita income is an indicator of how far we have to go. And how long we have neglected our national electoral infrastructure. The new U.S. bill was not so daring as to mandate a national or modern system of vote tabulation, with state-of-the-art equipment and nationwide standards. Instead, in keeping with an American tradition of "home rule" -- which conservatives in Congress wrap in the Red, White, and Blue when it suits them, and this bill was no exception -- implementation of most provisions was left up to county election administrators in over 3,000 counties. Unfortunately, that scattershot approach has been the source of much of the problem.

Nor did the federal bill follow the lead of most civilized democracies and take the bold step of establishing a national electoral commission to oversee the integrity of the electoral process. Instead, Congress took a timid step of establishing a national "election assistance commission" that has limited powers to "assist" states and even issue some voluntary guidelines. That's about as good a first step as this Congress could muster, and in the current "take what we can get" climate, hopefully will be the basis to build upon over the coming years.

Also, Congress established a few important national standards, such as: States will develop statewide computerized voter lists that will help prevent certain kinds of fraud and make administration more streamlined and efficient -- a task that until now mostly has been left up to the hodgepodge of county officials. Also states now will have to allow voters an opportunity to correct their ballots, which amazingly has not been the case -- previously, if you made a mistake on your ballot you were out of luck. And states must now provide at least one voting machine per precinct that is accessible to the disabled.

Of significance, states now must allow voters to cast what is known as a "provisional ballot" if for some reason they are not on the voter list in their precinct. If this law had been in place in Florida, the notorious blacklist that barred alleged felons -- with its overly-wide net that snared, for instance, the chief elections administrator of one Florida County as well as other mistaken identities -- would have been mostly moot because voters could have cast a provisional ballot. Election officials must research each provisional ballot and either validate or deny it after the polls have closed before certifying any winners.

Also of great significance, Congress allocated $4 billion in funding for the states to replace antiquated machinery. This includes an immediate allocation of about $800 million to replace punch-card and lever machines, to improve election administration and train poll workers, and to purchase voting machines for disabled voters. The catch is that after this initial allocation of less than a quarter of the overall money, the other $3.1 billion will have to be allocated each year, and its future funding is in no way guaranteed. The partisan battle and foot-dragging, particularly by Republicans, may become an annual event we all can anticipate.

But the bill also included some alarming provisions that have voting rights and civil rights advocates up in arms. Congress continued the long-standing American practice, which is copied by virtually no other democracy in the world, of making it difficult for citizens to register to vote. To put this in perspective, realize that in most established democracies, if a person breathes and has a pulse they are automatically registered to vote. But as authors like Alexander Keyssar and others have pointed out, the time-honored tradition in the United States is to erect barriers to democratic participation. The result is that only about two-thirds of adults in the United States are registered to vote (while a small number of these are noncitizens and ineligible to register, most are eligible). Far be it from this Congress, which many political observers have pegged as a "do-nothing Congress," to break with this tradition.

Thus, a new provision in the final bill requires that individuals registering to vote must provide a driver's license number or Social Security number on their registration form. Voters lacking both license numbers will be assigned a unique identifier. Also, quite ridiculously, voter registrants will be required to check a specific small box on the form certifying that they are citizens -- no check-off, no valid registration. In addition, the law requires first-time voters who register by mail to provide specific forms of identification like a driver's license or electric bill when they show up at the polls. Imagine the confusion on Election Day as some voters are required to provide IDs and others are not, particularly given how poorly trained poll workers generally are.

Voting rights advocates fear these provisions will make voter registration drives far more difficult because potential voters, particularly minorities and new immigrants, may be hesitant to give out such information or may forget to check their citizenship box. And the notion of John Ashcroft having in his secret files "unique identifiers" for new voter registrants is chilling. Although supportive of most aspects of the overall bill, some voting rights and civil rights organizations like MALDEF and the National Council of La Raza opposed its final passage due to these voter ID provisions.

The issue of election fraud raised by proponents of these new anti-registration provisions certainly was overstated and, one can't help but suspect, disingenuous. It begs the question: "Why don't other democracies need these draconian restrictions?" And "What is it about the American voter that apparently can't be trusted?" Or "What is it about certain types of American voters that Republicans don't trust?", since the Republicans mostly were the ones insisting on these provisions. Requiring citizens to show a photo or other forms of identification, and requiring states to check drivers' licenses and social security numbers and reject registrations that do not include them or that fail to check a little box affirming their citizenship, is a recipe for potential disaster.

And guess who is charged under the provisions of the law with enforcing it? Mr. Ashcroft himself, which also was a major sticking point for voting rights and civil rights advocates. They fought for a provision that would have permitted individual voters to file suit in federal court to enforce the voting rights provided, much as the current Voting Rights Act works. Unfortunately that provision was left on the cutting room floor, which presents an obstacle to enforcement without the tool of civil litigation against jurisdictions that flout the new requirements.

Reform advocates like Democrats and others have pointed with optimism to one little-noticed provision of the bill, found in Sections 254-256, which requires each state to develop a state plan that lays out how it will meet the requirements of the bill, "carry out other activities to improve the administration of elections," and "provide for programs for voter education, election official education and training, and poll worker training." A preliminary version of each state plan must be made "available for public inspection and comment," and the final plan must take any public feedback into account. These state plans may provide a valuable opportunity for advocates at the state and local levels to work to ensure a broad application of the law that includes more than just buying new voting machines -- such as innovative measures to increase voter participation and open up our moribund democracy.

But even if the federal legislation were better, still there is an elephant in the middle of the living room that few have wanted to talk about, and the federal bill didn't attempt to address. And that is the problem of the electoral system itself, which crash-landed in the November 2000 election. Our current Electoral College allocation method, called "winner take all-by-state," produced a winner that did not have a majority of the popular vote either nationwide or in 10 states including Florida. The winner in fact had fewer national popular votes than his main opponent. The center-left vote reached its highest total since Lyndon Johnson's landslide victory in 1964, and yet the "winner take all-by-state" method produced a split vote that resulted in the spoiling of an Al Gore victory (some speculate that Ross Perot similarly may have spoiled George Bush Sr. in 1992, though the evidence on that is ambiguous).

If we had used France's runoff method, for instance, where the top two finishers in each state lacking a majority winner would face-off in a second election, Gore probably would have been elected. Even better, if we had used instant runoff voting, which is used to elect the president of Ireland and the mayor of London, voters could have voted for their runoff choice at the same time as their first choice by ranking their ballots 1, 2, 3. Instant runoff voting would have produced a majority winner in each state in one round of voting instead of two, including in Florida and New Hampshire, both of which Gore lost in squeakers due to splits among center-left voters.

Or if we had used what is known as a "proportional allocation," whereby candidates receive a percentage of each state's electoral college votes that correspond to their percentage of the popular vote in that state, Gore probably would be president. Millions of black votes all across the South which were mobilized by an impressive NAACP effort -- and which under the current method were wasted since Gore lost every southern state -- could have seen their votes count for something, instead of nothing. The "proportional allocation" method would have come closest to ensuring that the national popular vote matched the electoral college vote, and is very similar to the method currently used by the Democrats and Republicans to nominate their presidential candidates. Voting systems matter, and voting rights advocates ignore them at the peril of undermining their own important efforts.

The U.S. Constitution allows the states to decide how to allocate its electors, and so the battle for a more fair and equitable way of electing our president and other elected officials is left for another day (though one small but important step forward is that the Federal Elections Commission now has included "ranked ballots" in its list of voting systems standards, along with provisional ballots). Overall, the Help America Vote Act was a product of long, hard work and difficult compromises, as well as tireless efforts by election reform advocates around the country. In some ways, the legislation takes historic steps forward, but when you are starting from a place so far back one is stuck with the dilemma of focusing on either "how far we've come" or "how far still we have to go." Kweisi Mfume, President of the NAACP, perhaps summed it up best when he commented that "The tragedy is that after 200 years we're still trying to perfect the process."

The focal point of debate now will shift largely to the states, where advocates will need to fight to ensure that adequate funding is provided over the next several years to states in order to carry out the administrative reforms and upgrades. Also, advocates will need to monitor and challenge implementation of the ID provisions that discriminate against poor voters, new citizens, and people of color. Beyond that, advocates must seek to focus the state debates on ways of opening up our shriveled democracy by including measures that further encourage participation, such as election day voter registration, re-enfranchisement of felons who have lost their voting rights, ballot access laws, and, most fundamentally, reforming the "winner take all" voting system itself to use more modern methods like proportional representation and instant runoff voting.

Steven Hill is a senior analyst for Center for Voting and Democracy and author of a new book, "Fixing Elections: The Failure of America's Winner Take All Politics" published by Routledge Press

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