Commentary: Crisis Averted -- This Time
In 2000, when Florida's photo finish resulted in the U.S. Supreme Court awarding the state's Electoral College votes -- and the Oval Office -- to George W. Bush, Congress and state officials collectively vowed "never again." But the passion to modernize the creaky election system faded fast. After the 2000 Florida follies, it took nearly two years for a closely divided Congress to adopt the 2002 Help America Vote Act (HAVA), which imposes on the states some of the most ambitious election reforms in a century.
The delay meant that the law's centerpiece -- an election assistance commission to set national voting standards and dole out funds for electronic voting machines and registries -- was not in place in time for the 2004 contest. Congress appropriated only $1.5 billion out of a possible $4 billion authorized by the law this year.
Moreover, the law's other achievement -- mandatory provisional ballots for voters whose registration is in question -- came without operating instructions from Washington. It was left to the states to decide which provisional ballots to count and which to toss. "Congress enacted a [statute] that didn't give enough guidance," says Edward B. Foley, director of election law at Ohio State University's Moritz College of Law. "It could be called the Hinder America Vote Act."
This time, the High Court didn't have to intervene, but that doesn't mean election chaos can't happen again. Given the estimated 120 million voters -- the highest turnout since 1968 -- and the outbreak of pre-election lawsuits, voting experts agree that the country dodged a bullet. Bush's comfortable margin of victory in several battleground states, and a lot of luck, kept in check legal battles over registration, balloting, and vote-counting procedures. But Congress and the states still have much work to do to make sure that every vote counts. "There has to be a massive movement, and it has to be at the grassroots level, to force federal, state, and local officials to find a solution," says Ralph G. Neas, president of People for the American Way, a civil-rights group. "It's going to cost billions of dollars just for the machinery and [to] make sure the training gets done."
Congress could pick up where it left off by cleaning up the provisional ballot mess. HAVA requires states to give such ballots to people who believe they are registered and show up to vote only to discover that their names aren't on the local registry. Of all the issues litigated before Nov. 2, which provisional ballots should be counted was the most divisive. Ohio's 160,000 or so provisional ballots kept the Buckeye State's results up in the air until Democrat John Kerry conceded on Nov. 3.
Why the confusion? When Congress passed HAVA, it failed to say which of those ballots should be counted, resulting in different standards in different states. The lack of guidance was exaggerated by massive voter-registration drives by both parties and allies such as so-called 527 committees. In many cases, low-paid workers or volunteers would help potential voters fill out registration forms. But unless those who signed up took the unusual step of calling the registrar's office to make sure their forms were actually filed, new voters didn't know until Nov. 2 if they were properly registered. Some states decreed that provisional votes cast in the right county would count; others accepted provisional ballots only if cast at the smaller precinct level. "By creating provisional ballots, HAVA has created more problems" than it solved, says Suzanne Haik Terrell, a former Louisiana elections commissioner. Provisional ballots also raise a fairness question: Why should a vote count under one state's rules but not under another's?
While Congress is issuing uniform rules on provisional ballots, it should also allocate more funds for states to build the electronic voter databases that HAVA mandates. Only 15 states have them today. The absence of such statewide rolls, says Doug Chapin, director of electionline.org, a nonpartisan voting reform group in Washington, is the biggest cause of vote-count breakdowns. Unless electronic databases become the norm, voter rolls will remain hit-and-miss, especially in years like 2004, when some 10 million new voters registered. "The underlying root cause of Election Day chaos is a lack of money and guidance from the federal government," says Chapin. "It's not a failure of will."
Another problem Congress must address: vote-counting deadlines. While HAVA now says that states must standardize counting procedures, a dizzying patchwork of absentee, overseas, and provisional ballot deadlines among the states magnified election confusion. Pennsylvania, for example, insisted that overseas ballots must be in by Oct. 29 until it was forced to extend that deadline under threat of litigation. Iowa requires overseas ballots to be postmarked by Nov. 1 and received by noon on Nov. 8. Florida counties have 10 days, until Nov. 12, to count both overseas and provisional ballots, while many states don't start counting until Nov. 12. Confused? So is the rest of the country.
And while voting machinery problems are decreasing as states update their technology, they didn't disappear altogether on Nov. 2. Indeed, some of the newer touch-screen machines came with their own controversy: the lack of a paper record to verify voter choices and audit results. Election-reform groups are even alleging that it's possible to program malicious code to distort the count. Such suspicions convinced precincts in Ohio, California, and other states to stick with low-tech equipment. On Nov. 2, some 30 million voters in 32 states used punch-card machines. "It's incomprehensible to me that the worst problem of the  election hasn't been dealt with yet," says David Boies, who led Al Gore's unsuccessful legal team in 2000. Congress should make sure that all voters are using state-of-the-art machines by 2006 and that funds are available to pay for them.
None of this will be easy and it certainly won't be cheap. But it will be necessary to maintain voters' faith in the system. It would be a shame if the positive gains from this year's election -- high turnout and an intense level of interest in the candidates and their positions -- is frittered away because of another bout of election dysfunction.
By Paula Dwyer with Lorraine Woellert in Washington
— With assistance by Lorraine Woellert