As we head into the final stretch of the election season, alarming reports of dysfunctional voter registration, purges of the rolls, and possible voter suppression are surfacing weekly, if not daily. The National Campaign for Fair Elections’ hotline (866.OUR.VOTE / 866.687.8683) is already receiving roughly a thousand calls a day; while the majority of these are requests for information, some concern problems with registration. The New York Times reports that tens of thousands of voters may have been illegally purged from the rolls in swing states. Other news sources speculate there are 600,000 voters at risk of disenfranchisement in Ohio alone. What goes unreported upon amid all this turmoil is how effective the response has been, and what can still be done.
Take Montana. On October 8th, US District Court Judge Donald Molloy issued a scathing ruling denouncing the state Republican Party’s effort to challenge the registration of 6,000 voters: “The timing of the challenges is so transparent it defies common sense to believe the purpose is anything but political chicanery.” The Montana Republican Party and its leaders, he wrote, “are abusing the process.”
The real danger is that the process itself is flawed. “We have an election system that’s exquisitely designed for low rates of participation,” says Tova Wang, Vice President of Research for Common Cause. “We’re expecting increased turnout and we have a system that’s not designed to handle it.” While these problems are endemic throughout our fractured electoral system, three states–Virginia, Florida, and Ohio–present both the challenges we face and the measures we might take to solve them. All three are closely contested, and an Obama victory will require every one.
Virginia has emerged as one of the crucial battlegrounds of the election, and voters are clearly excited. In 2004, there were 4,517,980 voters on the state’s rolls when the registration period ended; this year there are 4,890,393, an increase of nearly 400,000. The 2008 primary saw turnout rise a staggering 266 percent over 2004 (although still only a little more than a quarter of the electorate made it to the polls). If this is any indication of what to expect on election day, advocates fear that the state’s laws and protocols are insufficient to handle the high turnout.
A recent report from the Brennan Center for Justice at NYU identified Virginia as one of the least prepared states in the country. The report rated the state’s contingency plan in the event of voting machine failures as in need of improvement, and pointed out that Virginia law requires neither a voter-verified paper trail nor a post-election audit of the results. Virginia doesn’t even require every poll worker be trained, and allows for a minimum of three poll workers at a given polling place, a standard advocates are concerned is too low (although Board of Elections officials in the state assure them there will be more poll workers than required manning the polls). The state’s laws also require that there be only one voting machine for every 750 voters, a ratio Common Cause’s Tova Wang calls “enormous.”
More disturbingly, Virginia voters have been subject to misinformation campaigns in the recent past. In 2007, Virginia became one of the few states to pass a law banning deceptive practices, making it illegal to deceive voters as to the time and place of the election or their registration status. In an election year that has seen massive increases in turnout among 18-29 year olds (more than 100 percent in at least 11 states, and 95% in Virginia), Obama will need every one of the nearly 138,000 18-29 year olds, many of them presumably students, who turned out to vote in the Democratic primary if he’s to overcome Bush’s 250,000 vote margin of victory in 2004. So it’s worrisome that student registration has been contested in the state, with county registrars reportedly rejecting dorm addresses out of hand or insinuating (inaccurately) that registering to vote in Virginia might affect a student’s scholarships or tax status. The Virginia Board of Elections website still sports a residency questionnaire that includes potentially misleading questions.
It’s not too late to mitigate, if not overcome, these problems. In the words of Common Cause’s Tova Wang: “I don’t think it’s too late to plan on having emergency paper ballots at the polling place. And I don’t think it’s too late to ask counties to provide some transparency for their provision of polling machines. And I don’t think it’s too late, in Virginia or any place else, for the chief elections officer to issue a statement making clear the right of students and others to vote.”
In the words of more than one election reform advocate: ‘Florida is the new Florida.’ The state that was decided by 537 votes in 2000 is once again a crucial battleground, with recent polls giving Obama no more than a 5 point lead.
“Florida has this pride in not learning the lessons of the last election,” declares Jonah Goldman, director of the National Campaign for Fair Elections. As opposed to Virginia, Florida simply lacks a standard for the allocation of voting machines. Furthermore, any registered voter (or poll watcher) of a county can challenge the right of anyone from that county to vote, a common standard among swing states that Common Cause’s Wang declares “is not very effective at preventing the abusive use of caging and challenges.” And like Georgia and Indiana, Florida also has a strict voter ID law.
But the most severe threat to the franchise in Florida is the Voter Registration Verification Law, better known as the ‘No Match, No Vote’ standard. The Help America Vote Act (HAVA) mandated that states establish a statewide voter registration database, and then compare that data to state driver’s license databases as well as the Social Security Administration’s database. Florida law dictates that if a voter’s registration fails to exactly match those other records, that voter must provide proof of their identity to their local board of elections. If they fail to do so before the election, they will have to vote by provisional ballot (and if they want their ballot to be counted, they’ll still need to provide the board with proof of their identity within 48 hours). Although Florida’s law is, in the words of Tova Wang, “uniquely harsh,” Missouri, New Mexico, and Ohio–also battleground states where the election will be won or lost–as well as Georgia all have vague matching standards that could disenfranchise voters.
“Database matching is an inherently flawed process that is too imperfect to allow citizens’ right to vote to depend on a successful match,” says Adam Skaggs, Counsel at the Brennan Center for Justice at NYU, which waged a year long legal battle with the state over the law. After the NAACP and the Brennan Center failed to overturn the law in the courts, the Florida Secretary of State declared that as of September 8th, it would be ‘no match, no vote’ for all newly registered voters. Of the more than 375,000 voters who registered in Florida after that date, Skaggs estimates that 15 percent of them (roughly 56,000 voters) initially failed to match. By last Thursday, the Florida Department of State reported that almost 9000 voters had still failed to match. More than half of them are black and Hispanic; more than half are 30 years old or younger; and more than half are Democrats.
All those voters now have just over two weeks to clarify their status, or risk being disenfranchised. But once again, grassroots organizers are on the ground working to preserve the right to vote: Common Cause is undertaking an extensive outreach campaign to reach every one of those voters and assist them in reinstating their registration.
On other hand, Ohio, election advocates agree, is not Ohio. While new Secretary of State Jennifer Brunner has made missteps–her initial refusal to process absentee ballot requests submitted by the McCain campaign because voters failed to check an unnecessary box, for one, although Brunner insisted she was simply obeying the letter of the law–for the most part advocates think she has made great strides in transforming one of the most dysfunctional states of the 2004 election. Advocates cite the state’s poll-worker training program as exemplary, and in stark contrast to Florida, Brunner issued a directive instructing local election boards that they should have one voting machine for every 175 voters as well as make their plan for allocating voting machines publicly available.
What about those 600,000 Ohio voters seemingly at risk of being at risk of disenfranchisement? When a routine Board of Elections mailing earlier this year reportedly could not be delivered to 600,000 Ohio voters–plentiful fodder for caging efforts–Brunner directed local election boards that undeliverable mail alone could not be used as grounds for challenging a voter’s eligibility. Challenging voters is par for Ohio’s course–in 2004, the state Republican Party challenged the eligibility of 35,000 of the state’s voters. Since then, the state legislature reformed the laws regulating challenges so that on election day only poll workers can challenge voters, a change advocates expect will dramatically curtail the most egregious challenges.
With challenges in check, Brunner has also defended Ohio’s rolls from unnecessary purges. Last Friday, the Secretary of State won a major victory, with the Supreme Court issuing a single paragraph decision overturning a District Court ruling delivered earlier in the week. Brunner has insisted that even if HAVA requires states match their statewide voter registration databases against other databases, the act does not dictate what states must do with the inevitable mismatches. Citing the imperfections of database matching, she has declined to direct county election boards to use these mismatches as grounds for purging voters. Although the Supreme Court’s ruling was on fairly narrow procedural grounds–stating that “We express no opinion on the question whether HAVA is being properly implemented”–the Court essentially vindicated Brunner’s stance. The decision, according to the Brennan Center’s Adam Skaggs, “protects more than 200,000 citizens of Ohio from being disenfranchised because of typos.”
So while there has been important and valuable reporting and attention paid to the possibilities of organized voter suppression and election fraud, what may well be a greater threat to a fair and democratic election is legal disenfranchisement and poor preparation. Those in favor of a more just democracy argue that the focus should be on making sure there are suitable numbers of people processing voter registration forms, poll workers, and emergency paper ballots (in the event of voting machine failures) in addition to provisional ballots. Keeping back-up equipment on hand on election day would also be well advised, along with troubleshooting staff that could be dispatched to precincts to deal with problems as they arise.
These common sense measures would go a long way toward insuring that on November 8th we witness a historic election, and not a historic tragedy.
Co-written by Nicholas Jahr, a writer and researcher based in New York who has worked as an international election observer.