Wall Street Journal

October 5, 2004

Four years after electoral chaos in Florida sent the Bush-Gore presidential battle to the Supreme Court, sparring is erupting around the country over the very procedures intended to prevent a repeat, even as some familiar problems loom just weeks before Election Day.

A new federal election law that was meant to bring more uniformity to locally run elections is itself spawning a patchwork of inconsistent policies in different states. Language in the law allowing voters to cast "provisional votes" when their registration is in doubt has already set off legal battles over which provisional ballots will ultimately be counted. New voting technology has sparked debates over the possibility of computer hacking, even as the infamous punch-card machines, outlawed in Florida and elsewhere, are still in use in parts of 22 states.

Compounding all this is the challenge of training poll workers for new machines and new legal questions, and the likelihood of record crowds at the polls, amid unprecedented efforts to mobilize new voters.

With this year's presidential race tight, and Senate control at stake as well, both parties have legal teams ready to fight in states where controversy erupts -- raising the prospects of another Florida-style mess. That's especially true in the closest battleground states, including New Mexico, Nevada, Iowa, Michigan, Pennsylvania, and Florida itself.

Election experts agree that Ohio holds the greatest potential for trouble. The state is not only the one most hotly contested by President Bush and Democratic Sen. John Kerry of Massachusetts. It also faces "just about every issue that's come up in election reform," says Doug Chapin, director of Electionline.org⁴, a nonpartisan watchdog group.

Battles over provisional ballots and voting machines, the sharing of federal election-reform dollars and even the weight of paper used to register voters have already broken out in the state. Ohio Democrats have filed suit against the Republican secretary of state, while county officials are begging him for help to hire pollworkers and marshals and to send out voter information. "The largest election we might ever be faced with has left us with big holes to fill," laments Jan Clair, elections director in Ohio's Lake County, east of Cleveland.

Here is a look at the four biggest voting dangers as Election Day nears:

Provisional Voting:

Untold thousands of newly registered voters will learn when they arrive at the polls that because of new antifraud mandates they aren't properly registered. Even if they are, they may be asked to present photo identification for the first time.

But unlike some Floridians, who were turned away four years ago when their names were mistaken for those of felons, would-be voters this year can't simply be dismissed. The Help America Vote Act passed by Congress in late 2002 -- HAVA for short -- requires all polling places to provide "provisional ballots" to voters whose status is in dispute. Those ballots will be cast on the spot and counted later if voters' eligibility checks out.

The provisional-voting concept, which some states already had in place, has enjoyed widespread support. But in practice, questions of which voters get the ballots and which of those actually will be counted could make provisional votes crucial in the event of a photo finish.

Like absentee votes, provisional ballots aren't counted until after election night. Procedures vary by state, but generally officials have up to 14 days to determine whether a voter is valid. Ohio, which has allowed provisional voting since 1990, illustrates the stakes. Florida's 2000 election was decided by 537 votes. By contrast, in Ohio's Franklin County alone, which includes Columbus, about 10,000 provisional ballots were cast last time. Al Gore beat Mr. Bush in the county by just half that number.

Ohio's Republican Secretary of State J. Kenneth Blackwell, the state's top election official and a leader of the Bush state campaign, has been forced to alter his position on how the state will handle provisional votes. He first said Ohioans could get provisional ballots only at their correct precinct. Yet confusion over which polling place to go to -- especially for younger people and lower-income renters who move more often -- is a big reason some voters need the ballots in the first place. Also, post-census redistricting has thrown many voters into polling places different from the ones they've voted in for years, and many cash-strapped counties haven't sent notices of changes.

Besieged by election officials seeking clarification, Mr. Blackwell issued a new directive Sept. 17 that only added to the furor. The directive acknowledges that under federal law, all voters anywhere are entitled to a provisional ballot if they can't get a regular one. But, he held, under state law Ohio won't count the ones cast by voters in the wrong precinct. Ohio Democrats last week sued in federal court.

"Ohio law, longstanding, is clear," Mr. Blackwell says. "Voters must vote in the precinct they reside." When told that county officials say they have counted some out-of-precinct provisional ballots in the past, he snapped, "That's an open admission that they violated Ohio law. I'll deal with it when I see who's saying they intentionally violated the law."

In the interests of making every vote county, many election officials favor counting provisional ballots of voters, even in the wrong precinct, and the League of Women Voters has been lobbying for that stance.

About half the states say they won't count provisional votes from the wrong precinct. Among them are the battleground states of Iowa, Michigan, Florida, Nevada, West Virginia and Missouri, according to Electionline.org. Florida and Missouri face lawsuits over the matter. In contrast, the League of Women Voters points to other states -- including Pennsylvania, New Mexico and North Carolina -- where out-of-precinct provisional ballots are counted for national contests but not for local races in which the voter was ineligible, such as a local school board.

Mr. Blackwell and other officials in states that say they won't count out-of-precinct ballots insist that mistaken voters will be informed of the right precinct, so they can go there. But others say it's unrealistic to think poll workers can pull that off on a hectic Election Day -- or that some voters won't be dissuaded by the added hassle.

And problems may not end on Election Day. By law, voters later can learn whether their ballots were counted by checking a Web site or toll-free phone number. In Arizona's spring primaries, Steven Littleton, a 55-year-old waiter, had to cast a provisional ballot when his name wasn't on the rolls, perhaps due to a registration error. He later checked the state Web site and found it wasn't counted. "Now there's a question mark. I don't know where I am in the system," he says.

Voter Registration and IDs:

Another major innovation of the new federal law -- requiring statewide voter databases -- won't be ready nationwide until 2006. Forty-one states have gotten federal waivers from the requirement for various reasons, including cost. Ever since the Florida controversy, advocates of databases say poll workers should be able to resolve questions about voters by instantly looking up whether they're registered.

Other federally mandated voter-registration changes also are creating worries. Poll workers must see photo identification from new voters who registered by mail and didn't provide proof of identity. Republicans insist the rule will guard against fraud; Democrats complain that such requirements are more likely to intimidate the poor, elderly and minorities.

Under the federal law, registration forms have two boxes for voters to check to confirm that they are U.S. citizens, and age 18 or older -- even though a separate oath that registrants sign on the forms attests to the same facts. About 10% of registrations are coming in without the boxes checked, the League of Women Voters finds. About half the states accept them anyway and will let voters correct the forms at the polls. But the rest reject them. Even within states, counties' policies vary.

In Washington state's September primary, roughly 3,000 people in just two counties were denied ballots because of missing checks in those boxes. They will be registered for November's vote, officials say. North Carolina has rejected about 3,800 applications since 2003. And Iowa has opened a new twist on the controversy, with Democratic Secretary of State Chet Culver's ruling that those who fail to check the boxes will be registered for local and state elections but not federal.

In New Mexico, a swing state Mr. Bush lost by just 366 votes in 2000, the ID issue is causing fits: In state court, Republicans have argued, so far unsuccessfully, that state law goes further than the federal law and requires all first-time voters to produce IDs regardless of how they registered. Democratic Secretary of State Rebecca Vigil-Giron says only mail-in registrants are covered by the ID requirement.

Ohio until last week had a unique glitch, thanks to Mr. Blackwell's policy requiring voter registrations to be on thick 80-pound-weight paper for handling purposes. While he retreated last week, some registrations had been returned to would-be voters. Some Cleveland-area residents had clipped and mailed in a sample registration form published in the city's paper. Others downloaded from the Internet onto printer paper. Many voter-registration volunteers also used printer paper.

This much is certain: Thousands will go to polls Nov. 2 thinking they are registered and find they're not. In most cases, they'll get provisional ballots -- and have to hope the votes are counted. President Kay Maxwell summarizes the League of Women Voters' nightmare: "We are most concerned about registration problems leading to provisional-voting problems leading to lawsuits."

Voting Technology:

Americans in parts of 42 states will vote on new machines of some sort, Electionline.org figures. Six systems will be in use across America. About a third of registered voters have optical-scan systems, in which they darken spaces with a pencil on paper ballots "scored" by machines. Slightly fewer voters live in areas with touch-screen or keyboard technology. About one-fifth live where punch-card systems remain in use. The rest are in mostly rural areas with paper ballots or some mix of systems.

Among places that still use punch-card machines, some places, such as Cook County, Ill., invested in so-called second-chance or precinct-count machines. These allow poll workers to run ballots through before voters leave, to immediately detect disqualifying "overvotes" like those that plagued Florida. If they do, the voters can try again.

But Ohio didn't buy those machines, even though 68 of its 88 counties use punch cards. It had planned to replace them with up to $20 million in electronic touch screens from Ohio-based manufacturer Diebold Inc. Those plans were derailed by twin controversies: Studies suggested such machines are vulnerable to hacking or breakdowns. Diebold also came under fire for its donations to Republicans and its chairman's vow in a 2003 fund-raising letter to "deliver Ohio's electoral votes to the president."

The issue of electronic machines' security has flared across the country. Groups are challenging the paperless technology, demanding "voter-verifiable paper trails" to reassure voters and to be available in case of a recount. Manufacturers insist the paper isn't necessary for audits. But Nevada nonetheless required its machines to provide paper records, and other states are moving in that direction.

A federal suit in Florida seeks to mandate paper records for 15 counties' machines. Some states, including California, are waiting to act until 2006.

Pollworkers and Voter Education:

"If those two things are working properly, that's going to eliminate most of your problem," says Mark Pritchett, who was executive director of Florida's Special Task Force that investigated the 2000 chaos and proposed changes.

But finding and training enough poll workers is a chronic problem. Now many of these volunteers and low-paid workers will have new responsibilities: checking IDs, deciding on provisional ballots, dealing with new machines and -- another change in law -- guaranteeing access for the disabled. That's on top of likely record turnout and long lines.

The Election Assistance Commission, created by the new election law, estimates that the new demands mean two million poll workers will be needed nationwide Nov. 2, up from 1.4 million in 2000. To add to the problem, many experienced workers have told election officials they don't intend to serve this year. But local administrators complain that federal funds that were distributed to the states to help out haven't trickled down to them.

Recently, county election officials in Ohio summoned Blackwell aides to an emergency meeting in Painesville, east of Cleveland, to gripe about conflicting policy statements and to plead for a share of federal funds for fixing balloting. Soon after, Mr. Blackwell announced much of the funding instead would finance a statewide media campaign to promote voting, including three TV ads featuring him.

The secretary of state says the statewide effort will ensure "message consistency," especially in urging punch-card voters to be careful.

Ms. Clair, Lake County's election director, says she needs $30,000 just to send voters a pre-election postcard with basic guidance, including their precinct locations. Yet she's already $300,000 over budget due to overtime pay for processing voter registrations and hiring costs of extra marshals.

The bottom line, Ms. Clair says: "We are going to have challenges."