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TomPaine.com
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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