First in a series on election problems in battleground states.

Most polls show that President Bush and Senator John Kerry are in a dead heat in the race to win Ohio. This means that Ohioans are not only overdosing on campaign ads and visits by the candidates, they also now live in a state where it is especially important that the rules of the election are clear, new voters are welcomed into the system, and all the votes are accurately counted.

Unfortunately, a number of actions have been taken in recent weeks that threaten to undercut those goals. In many instances, election administrators have been using provisions of the Help America Vote Act—enacted in the wake of the 2000 election debacle to improve the voting process—to actually impede eligible citizens from voting.

Registration

A few weeks ago, the secretary of state of Ohio, Kenneth Blackwell, issued a directive that all voter registration forms be on heavy, eighty-pound paper stock, saying that lightweight cards could be shredded by postal equipment. The secretary since has retreated from that stance, but there is concern that some election offices may have thrown out registrations that were on the lighter paper while the directive was in effect.

Under HAVA, new voter registration forms are supposed to include a box for the registrant to enter his driver's license number of the last four digits of his social security number. If the registrant has neither, the state must assign him a unique identifier. This is for the purpose of setting up a statewide voter registration database which Ohio, like most states, has not set up yet.

Blackwell ordered election boards to reject any form submitted in person that did not include the voter's driver's license number or last four digits of the voter's Social Security number. The only way a registrant's form would not be rejected is if he or she wrote the word "none" in the box requiring the number. Since he did not require this for mail-in registrations and the information is not required by HAVA this year, the Democratic Party sued . A judge ruled in favor of Blackwell, primarily because, "There simply is no time to develop the factual record before the election to determine why people did not complete box 10 in spite of the clear indication on the form that the information was required."

Voter ID

Under the Help America Vote Act, only a very small segment of the electorate is required to show identification when registering or voting. Nonetheless, in the Ohio presidential primary in March, the Cleveland Plain Dealer reported that the voter empowerment coordinator for the NAACP received at least fifty phone calls from black voters who were required to present identification in Cuyahoga County—a suspiciously high number considering that, according to the Cuyahoga country board of elections, a total of only 185 voters in the whole jurisdiction were required under HAVA to present identification. A leader of the Greater Cleveland Voter Registration Coalition also received such calls from black voters. For several hours, all voters in one polling place were mistakenly required to show identification before being allowed to vote.

The League of Women Voters challenged a directive by the secretary of state that if a first time voter who registered by mail does not have identification when voting, that voter's provisional ballot will not count unless the voter somehow produces ID by the end of Election Day. HAVA states that the decision as to whether a provisional vote will count or not is subject to state law. Ohio state law does not require identification. Nonetheless, a federal judge upheld the ID requirement because voters can comply by verbally providing a drivers license number or the last four digits of their social security number.

Provisional Ballots

Under HAVA, any voter who does not appear on the voter list or is told by the poll official he or she is not eligible to vote, but believes he is a registered voter in that jurisdiction, has the right to cast a provisional, or paper ballot, the legitimacy of which will be determined later. The purpose of the provision was to ensure that no voter would be turned away from the polls.

The Secretary of State of Ohio issued a directive that provisional ballots should not be given to voters who appear in the wrong polling place. The Democrats sued. A federal judge ordered the Secretary of State to develop a new directive that would permit Ohio voters who show up at the wrong precinct to cast a provisional ballot. He also ruled that Ohio must count these ballots in all statewide races, including the presidential race, if the voter is registered elsewhere within the same county.

When the Secretary of State submitted his new directive, the judge responded by saying, "The exigencies requiring the relief being ordered herein are due to the failure of the defendant to fulfill his duty not only to this Court, as its injunction directed him to do, but more importantly, to his failure to do his duty as Secretary of State to ensure that the election laws are upheld and enforce…The proposed directive is every bit as much in violation of HAVA [as the first one]… [Secretary] Blackwell apparently seeks to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000."

Nonetheless, late Saturday night, the Sixth Circuit reversed this decision and the Democrats decided not to appeal. Provisional ballots cast in the wrong polling place will NOT be counted in Ohio. More than 100,000 provisional votes were cast in the 2000 election.

Machines

HAVA provided $325 million for the replacement of punch card and lever machines. Ohio originally planned on replacing all punch card voting machines in time for this November's election, but just four of thirty-one Ohio counties did so. Not only are punch card machines known to fail to count votes more often than any other machine, a recent study by the Columbus Dispatch found that black voters in the state were three times more likely to have their vote go uncounted in 2000 using the punch cards.

The latest development to deter legitimate voters is a plan to challenge peoples' right to vote when they arrive at the voting booth. Last Friday, the Republican Party preemptively filed challenges to over 35,000 new voter registrations in Ohio. The basis for the challenges is that a postcard sent to the registrants by the Party was returned as undeliverable.

However, according to the Columbus Dispatch, it now appears many of the filed will be rejected "because of a glitch in the computer program used to prepare the filings. In many cases, addresses for voters were incorrect or the challenges were filed in the wrong precinct." The Republicans have withdrawn thousands of challenges.

Moreover, the paper says, in Cuyahoga County, a heavily Democratic area, "Where the largest number of challenges were filed, officials also have found problems. In a 'really limited' review of some of the 17,717 challenges there, officials found a number with outdated addresses… In Franklin County, beyond the challenges with incorrect information, it appears Republicans included some legitimately registered voters, including members of the military."

Meanwhile, according to the New York Times, both parties have been recruiting poll site monitors to make and defend challenges. "Republicans said they had enlisted 3,600 by the deadline, many in heavily Democratic urban neighborhoods of Cleveland, Dayton and other cities. Each recruit was to be paid $100. The Democrats, who tend to benefit more than Republicans from large turnouts, said they had registered more than 2,000 recruits to try to protect legitimate voters rather than weed out ineligible ones."

Even if not a single one of these challenges is successful, the heightened challenge process will be successful in causing long lines at polling sites and wait times that some voters cannot abide.

Tova Andrea Wang is a program officer and Democracy Fellow at The Century Foundation. She is most recently the author of an issue brief entitled Playing Games with Democracy, on how the Help America Vote Act is being used to disenfranchise voters.