Tova Andrea Wang reveals that in many jurisdictions around the country, the Help America Vote Act is being implemented in ways that will disenfranchise voters rather than ensure that every eligible citizen can vote and that every vote is counted. View the press release (PDF).

Introduction

When the Help America Vote Act (HAVA) was passed in October 2002, there was great hope in the election reform community that, though by no means ideal, it was a good first step toward improving the elections process and expanding accessibility to voters who had been historically disenfranchised. There certainly were concerns, particularly regarding the new voter identification provision of the law. Nonetheless, other measures regarding provisional ballots and voting technology—as well as the fact that the federal government was for the first time infusing the states with a great deal of cash for the purpose of running elections—were seen as progress.

Yet somehow, so much has gone so wrong.

Indeed, while our fears about voter identification have been realized, provisions of HAVA that we thought would make things better are now being used and abused in ways that are designed to disenfranchise voters rather than ensuring that everyone can vote and every vote is counted.

At every point in the process, from voter registration to vote counting, elections officials and elected leaders have exploited HAVA to prevent Americans from exercising the right to vote.

Registration

The first step in the elections process is registration. Many other countries do not even require voter registration, and in six U.S. states, voters can register on Election Day. However, in most of the United States, citizens are required to register about thirty days before the election.

In order to register legally to vote, the applicant must be eighteen-years-old at the time of the election and be a citizen of the United States. Incarcerated felons are not able to vote, but in many states once that person has served his or her sentence, the voter can have voting rights restored. A citizen must register to vote using the address of the citizen’s domicile.

While the process of voter registration always is more onerous than necessary, there are numerous ways in which the system is being made more difficult this year.

The Form

HAVA requires that mail-in voter registration forms developed under the National Voter Registration Act (“Motor Voter”) include questions requiring voters to verify that they are U.S. citizens and old enough to vote, and requires states to notify voters who fail to complete the question on citizenship and provide the applicant with an opportunity to correct the form prior to the next election for federal office. While there was some objection to this provision in the law, it received little attention at the time of passage.

In many counties, including some in Florida, the voter must correct the information on a faulty registration application before the voter registration deadline in order for that registration to be processed and the voter placed on the rolls.

Election officials say thousands of people across the country who registered to vote this year failed to check the citizenship box. But most forms also require a signature on a statement making the same affirmation. Voting rights advocates have urged states to accept applications that had a signature on the oath but lacked a check in the box, and recently Ohio and a few other states decided to do so.

However, Florida elections officials have concluded that both affirmations have to be made, or the registration will be rejected and returned to the applicant. Potentially thousands of registrations in Florida may be rejected, and with the registration deadline being twenty-nine days before the election, some of those applicants will not be allowed to vote. Elections officials say the problem has arisen mainly on forms submitted by groups doing voter registration drives. Both the Florida Democratic Party and a coalition of unions sued to try to compel elections officials to accept the forms, arguing that the citizenship box omission is not a “material error.”

This policy is raising particular concern in that it is likely to disenfranchise a disproportionate number of African Americans. For example, in Duval County, over 31,000 blacks have been added to the voter rolls since the 2000 election. The board of elections has already flagged almost 1,500 registration forms as incomplete, and a Washington Post analysis found there were nearly three times the number of flagged Democratic registrations as Republican, and that no group had more flagged registrations than African Americans. [1] In Miami-Dade County, African Americans comprise more than 35 percent and Latinos more than 25 percent of applications rejected as incomplete. [2]

In addition, in another potential swing state, Arizona, it is required that both the checkbox and the oath be completed, and registrations are returned if they do not comply.

Other technicalities have been invoked to disqualify voter registration forms. The most notorious is a directive from the secretary of state of Ohio that all voter registration forms be on heavy, eightypound paper stock, saying that lightweight cards could be shredded by postal equipment. This meant if someone downloaded a registration application from the Board of Elections website and submitted it, that registration had to be rejected. The secretary since has retreated from that stance, but not until sowing much confusion and concern, and jeopardizing the status of numerous applications. Democrats fear that some election offices may have thrown out registrations that were on the lighter paper while the directive was in effect.

Also in Ohio, Secretary of State Kenneth 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. Since he is not requiring this information for mail-in registrations and the information is not required by HAVA this year, the Democratic party has sued.

In Nevada, downright illegality has been alleged. According to press reports, a private voter registration company, “largely, if not entirely funded, by the Republican National Committee,” doing registration targeted at Republicans actually had its employees rip up and throw in the trash forms filled out by Democrats. As a result, thousands of voters who think they are registered will show up at the polling sites on Election Day to find out they are not. Two former workers of the company “say they personally witnessed company supervisors rip up and trash registration forms signed by Democrats.” A local television station obtained a pile of shredded registration forms all signed by Democrats and found that they had not been filed with the county as required by law.[3] A state judge refused to reopen or extend the registration deadline for those citizens whose registrations might have been illegally destroyed.

Similarly in Oregon, the same company’s workers allegedly asked voters which candidate they were voting for and only registered Republicans to vote. If they said they were democrats, the workers allegedly did not register them or later destroyed their voter registration forms.

Both state’s allegations are linked to a Phoenix political consulting firm called Sproul & Associates run by Nathan Sproul, former head of the Arizona Republican Party. Sproul & Associates has received nearly $500,000 from the Republican National Committee this election cycle, according to the Center for Responsive Politics. [4] The Democratic Party filed a lawsuit in Nevada seeking to force the board of elections to reopen voter registration, that is extend the deadline, so that people who had their applications destroyed can now register. [5] A state judge has refused that request.

Although many states allow felons to register to vote again once they have served, some states make it easier to do than others. Mostly due to relatively recent drug laws, a disproportionate number of ex-felons are people of color.

This year in Florida, the state ordered the implementation of a “potential felon” purge list. Florida already has a troubled history in this department stemming from the 2000 election, when the state removed thousands of actually eligible voters, primarily African Americans, from the rolls. This year, the state was forced to withdraw its purge list after news media investigations revealed that the list included thousands of people who, again, were eligible to vote. Moreover, the list clearly included a disproportionate number of African-American versus Hispanic voters. Indeed the felons list provided by the state would have disqualified 22,000 African Americans (likely Democrats) and only 61 Hispanics (likely Republicans). [6]

In Ohio, anyone convicted of a felony is taken off the voting rolls. They are allowed to reregister once they have completed their terms. However, many states, including Ohio, fail to inform exfelons of their voting rights or mislead them about their voting rights. After discovering that county boards were misleading ex-felons about their rights, prisoner rights groups sued the Ohio secretary of state. State officials agreed to send written notice to ex-felons, settling the case. However, now the state is reneging on that promise by claiming that it is unenforceable, as the prisons department was not a party to the suit.

Student Disenfranchisement

Students are, by law, allowed to use their school residence as the address at which they register to vote. Nonetheless, elections officials have made several attempts to prevent students from registering to vote.

For example, in Texas this year, a county district attorney threatened to prosecute students from Prairie View A&M; University if they tried to register. The students had to file a lawsuit before he withdrew the threat and apologized. A student at Hamilton College in Clinton, N.Y., was told that he was not a “permanent resident” and had to vote from his parents’ home in another state. At Ouachita Baptist and Henderson State Universities in Arkansas, 916 students were denied the right to register because a county judge ruled their permanent residency was at home not school—the students sued and won. [7]

Voter Identification

If a voter has gotten through all the obstacles to getting a voter registration application, he or she may yet get caught in the next tripwire.

HAVA states that beginning January 1, 2003, first-time voters who register by mail must present identification either when registering or when voting. Accepted identification includes a copy of a current and valid photo identification (the original if voting in person), utility bill, bank statement, or government document that shows the name and address of the voter. Alternatively, the voter may cast a provisional ballot.

When HAVA was being debated in Congress, the most controversial issue was the identification requirement. Some regarded it as a sensible antifraud measure, while others saw it as an avenue to disenfranchisement, particularly of minorities, the poor, young people, and the disabled. Nonetheless, all states now have some form of identification requirement, and some states took the opportunity of HAVA to require all voters to show identification.

The identification requirement has continued to be a point of contention. Civil rights advocates continue to argue that it will have—and did have in the primaries—a disenfranchising effect on minorities.

In addition, an unanticipated dispute has recently arisen: What constitutes a “mail-in” registration? Some argue this means only registrations that are sent by the voter through the U.S. Postal Service, while others say it includes any registration not filed in person at the board of elections or other government agency. It is a critical question, because if the latter is true, all of the many thousands of registration forms collected by various voter registration groups would be considered subject to the identification requirements.

Seventeen states already had or since HAVA have passed laws that require all voters to show identification at the polls. Six states enacted universal voter identification laws in 2003: Alabama, Colorado, Montana, North Dakota, South Dakota, and Tennessee.

The Republican-controlled legislature passed South Dakota’s new law requiring all voters to show a photo identification in the wake of the narrow defeat of Republican John Thune in the 2002 U.S. Senate race. Votes from the reservations were credited with pushing Democrat Tim Johnson to victory, but allegations of voter fraud were made both before and after the 2002 election.

Between 5 percent and 10 percent of South Dakota’s American Indian population lack a photo identification due to poverty. Those people do not have cars and have not paid to have a tribal identification made. [8]

In 2004, voters in primarily Native American polling sites were turned away from the polls during the primary because they did not have identification. They were not offered affidavit ballots as required by law. In some locations, signs were posted instructing voters that they must present photo identification without providing the affidavit option.

Colorado

The Colorado legislature passed a state law in 2003 requiring voters to present a driver’s license, utility bill, or other form of identification at the polls. Common Cause of Colorado has sued. Election officials say the rule is needed to prevent people from voting twice, as they say has happened in Colorado.

The Common Cause complaint states,

The Colorado polling place identification requirements on their face unlawfully restrict the right to vote. As with the other methods of disenfranchisement in American history, such as literacy tests and poll taxes, the identification requirement presents barriers to voting and restricts voter participation. There are qualified electors in Colorado who do not have identification and requiring them to purchase identification is tantamount to requiring them to pay a poll tax. As a disproportionate number of racial and ethnic minority voters, the homeless, as well as voters with disabilities and certain religious objectors, do not have the required identification nor the financial means to acquire it, the burden of this requirement is likely to fall disproportionately and unfairly upon them.

A federal judge ruled against Common Cause, upholding the identification requirement. [9] He said that it did not violate HAVA and did not significantly infringe on voting rights.

In the Ohio presidential primary in March, according to the Cuyahoga County Board of Elections, a total of only 185 voters in that jurisdiction were required under HAVA to present identification in order to vote—they were first-time voters who registered by mail but did not include any verification with their registration applications. Yet 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. A leader of the Greater Cleveland Voter Registration Coalition said she also got 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.

On October 5, the League of Women Voters and other groups challenged in court 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 identification 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.

In Ohio, voter registration applications submitted by voter registration groups will be considered mail-in applications and those voters will have to show identification at the polling site. Given the huge numbers of new voters in Ohio and across the country this year through voter registration drives, this too could lead to great disenfranchisement.

In New Mexico, the issue has been who is subject to the identification rule. New Mexico is following the HAVA requirement that only first-time voters who register by mail need to show identification when registering or voting. Controversy arose over whether voters who had filled out registrations with voter registration groups should be considered to have “mailed in” their applications. Republicans said yes and filed suit to require the secretary of state to so direct; Democrats said no. Just a month before the election, a state supreme court ruled that voters who signed up through a voter registration drive were not mail-in registrants and thus were exempt from the voter identification requirement. This issue has not been resolved in many states.

Provisional Ballots

Once a voter has actually gotten through the process of registering to vote, on Election Day the voter needs to go to where he or she believes is the correct polling place—where more obstacles may stand in the way.

Under HAVA, if an individual declares that he or she is a registered voter in a jurisdiction and eligible to vote for federal office, but the name does not appear on the list of eligible voters for the polling place, the voter must be offered a provisional ballot.

HAVA establishes that the right to cast a provisional ballot and to have it counted depends on being a registered voter in the jurisdiction, which is defined differently in different places. However, as defined by the National Voter Registration Act, jurisdiction traditionally has meant the county, not the precinct or polling site.

The purpose of a provisional ballot is to avoid disfranchising voters and allowing their vote to count if the board of elections confirms that the person is a registered eligible voter.

There are a number of problems with the ways that election officials are preparing to handle provisional ballots in the upcoming election. Some states are stating they will refuse to count provisional ballots that are cast in the wrong polling place. Many states have said they will not count provisional ballots if the voter does not present identification and he or she was required to do so, and some have even said they will not provide those voters with an opportunity to show their identification at a later time. (Some other states plan to assess each voter’s eligibility on a case-bycase basis, using signature verification or driver license databases, and most states will at least allow voters to provide identification later.)

Three states—Idaho, Minnesota, and North Dakota—will not offer provisional ballots to first-time, newly registered voters who cannot show identification. Eleven others will not allow provisional voters without identification an opportunity to substantiate their identity after Election Day or verify their eligibility through other means. These provisional ballots instead will be automatically discounted. [10]

Twenty-eight states will invalidate provisional votes cast in the wrong precinct—even when voters are selecting candidates for statewide offices such as governor or U.S. senator. Only seventeen states will count partial ballots cast by voters in the wrong precinct. (Five states allow Election Day registration.) [11]

There will be many first-time voters who may get their polling location wrong, and many voters who have moved in the past few years who will show up at their old site or the wrong site. Many polling site locations have changed since the last election. Notification of such changes is notoriously inconsistent. Sometimes a voter’s registration is filed in the wrong place through administrative error, not the fault of the voter. In 2000, voter registration information frequently was not processed in a timely fashion by the supervisor of elections or transmitted by the Department of Motor Vehicles where the person registered to vote.

The Michigan secretary of state has instructed the counties that if a voter casts a provisional ballot in the wrong polling site, that provisional ballot must not be counted. Moreover, the director of elections has said that a provisional ballot “cannot be counted if the elector failed to provide” photo identification or documentary proof of residence at the polls. [12]

Democrats and voting rights groups, in a consolidated case, have sued, arguing that such a ballot should be counted for the races in which the voter was eligible to vote, that is, statewide races and the presidential election. Michigan Democratic party chairman Mark Brewer said HAVA allows voters to cast provisional ballots if they are in the correct city, village, or township. [13] The groups further argue that under federal and Michigan law, provisional ballots are to be the fail-safe mechanism for voting by first-time voters who have registered by mail but arrived at their polling place without the required identification. [14]

State Bureau of Elections director Chris Thomas said HAVA does not require the state to count the provisional ballots of voters who are in the wrong polling location and refuse to go to the correct one. [15] Moreover, elections officials assert that state law does not allow citizens to vote anywhere but the polling site where they live. [16]

The Colorado secretary of state has ordered that if a voter casts a provisional ballot in the wrong precinct, only the vote for president will count—not the vote for senator. Moreover, he has ordered that any voter who requested an absentee ballot and casts a provisional ballot will have that provisional ballot disqualified. Common Cause has sued, arguing that these directives violate the state constitution and HAVA. In 2002, 27,000 provisional ballots were cast by voters who had lost or spoiled their absentee ballot—88 percent were counted as valid. [17] A federal judge upheld that secretary of state’s directive regarding provisional ballots cast in the wrong precinct, but struck down the provision regarding voters who requested an absentee ballot.

Missouri state law mandates that provisional ballots be thrown out if the voter cast the ballot in the wrong polling place. The state Democratic party filed a federal suit against the Missouri secretary of state alleging that these provisions violate HAVA and defeat the purpose of provisional ballots. They also argue, in an equal-protection claim, that in Missouri’s 2002 election, African Americans were significantly more likely than whites to have their provisional ballots thrown out. A district court judge ruled on October 12 that provisional ballots cast in the wrong precinct must be discarded provided the voter was given the correct polling site by a poll worker. The state Democratic party may appeal.

On September 27, Ohio Democrats sued the Ohio secretary of state seeking to block his instruction that provisional ballots will not be given to voters who appear in the wrong precinct. The directive states that “under no circumstances shall precinct pollworkers issue a provisional ballot to a person whose address is not located in the precinct, or portion of the precinct, in which the person desires to vote.” Instead, if voters show up at the wrong polling place, poll workers must find out their correct voting places and tell them the location, the directive says. More than 100,000 provisional votes were cast in the 2000 election. [18]

The validity of provisional ballots is supposed to be determined after the election. Democrats argue that the directive violates the purpose of HAVA mandate regarding provisional ballots, which was to ensure that voters are not wrongly turned away at the polls because their registrations were misplaced or misfiled. In 2002, about 54,000 voters in Ohio voted by provisional ballot. [19] Many voting precincts were redrawn after the 2000 census.

Cuyahoga County has stated that it will defy the order and give a provisional ballot to any voter who requests one. If a voter in Cuyahoga County insists on casting a ballot, even at the wrong polling place, the board will allow it but only after telling the voter that the vote may not be counted. Secretary of State Kenneth Blackwell sent election board chairman Bob Bennett, who also heads the Ohio Republican party, a letter Tuesday warning him that, by giving provisional ballots to all who request one, the board was acting in violation of the directive and that action could be taken to remove board members and its director, Michael Vu. Blackwell is a Republican; Vu is a Democrat. Bennett sent a response to Blackwell, telling him the board “will not, if the provisional ballot was cast in the wrong voting precinct, count the ballot.” [20]

In 2000, 23,000 provisional ballots were cast in the county alone.

On October 5, the League of Women Voters and other groups also sued regarding counting of provisional ballots cast in the wrong polling site. The lawsuit also challenges a directive by the Ohio 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 identification 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. However, Ohio state law does say that votes cast outside the voter’s precinct will not be counted.

On October 14, a federal judge ordered the Ohio 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. In an important development nationally, the judge based his decision on the meaning of the word “jurisdiction” in HAVA, saying that it corresponded to the use of the same term in the federal Motor Voter law, and therefore meant county rather than precinct. It is unclear as of now whether the secretary of state will appeal this decision.

Florida also has stated that provisional ballots cast in the wrong polling place will not be counted. In August, labor unions filed suit against the state Division of Elections and the Leon County Canvassing Board in the Florida Supreme Court arguing that the law prohibiting counting of provisional ballots cast in the wrong precinct is unconstitutional because it denies qualified voters their right to have their vote counted in the county where they are registered. However, despite arguing that hurricanes already have caused confusion in setting up the polls, Leon County Judge Ralph Smith refused to make counties count provisional ballots that get cast in the wrong precincts.

The unions appealed to the Florida Supreme Court. They argued that if a voter goes to the wrong precinct and gets the wrong provisional ballot for local races, his or her votes for president, Congress, the state legislature, countywide offices, and constitutional amendments should still count. The Supreme Court also rejected the union’s argument.

The state Democratic party filed suit in federal court, arguing that the provisional ballot instructions violated HAVA. A federal judge has refused to order the Florida secretary of state to rescind the instruction.

In addition to problems caused by the multiple hurricanes Florida recently endured, many precinct boundaries in Florida have shifted for other reasons since the 2000 election. Miami-Dade County went from 614 precincts in 2000 to 744, Broward County changed polling places for 125,000 voters, and two-thirds of precinct lines in Leon County have changed. [21]

Overseas Voters

Local election offices in at least eight of fifteen swing states failed to mail out their ballots to overseas voters by September 19, the cutoff for ensuring that those ballots can be mailed back in time to be counted.

At the same time, the Pentagon has established a system that will enable military voters to obtain their regular ballots from their local election offices instantly through the Internet. The Pentagon said that it could not open the system to civilians because it was employing a military database to confirm the identities of users and did not have the means to check civilians.

Sixty percent of the overseas military voted in the 2000 election, up from 53 percent in 1996, according to a Pentagon report. At the same time, voting by civilians dropped to 22 percent from 29 percent, the report said. [22]

The concern about states not getting their overseas ballots out in time surfaced most recently in a report by the Election Assistance Commission. The report stated that eighteen states did not have systems in place to mail ballots at least forty-five days before the election.

Of the eight swing states that missed the forty-five day mailing mark, only three will accept ballots that arrive after Election Day. Overseas voters have until November 10 to send their ballots to Florida, which experienced problems four years ago that prompted widespread calls for improvements to overseas balloting.

According to the Government Accounting Office, 8.1 percent of overseas ballots were not counted in 2000 because they were late or contained errors. [23]

Machines

Now let’s say the voter actually gets to cast his or her vote on a voting machine. The next question is, Will that vote get counted?

HAVA requires that, beginning January 1, 2006, all voting systems used in federal elections must permit voters to verify their selections on the ballot, notify them of overvotes, and permit them to change their votes and correct any errors before casting the ballot. Machines must produce a permanent paper record for the voting system that can be manually audited and is available as an official record for recounts (this is not a requirement that the voter see a paper copy of his or her vote and is not to be confused with the voter verified paper audit trail). They must provide to individuals with disabilities, including the blind and visually impaired, the same accessibility to voting as other voters, through use of at least one direct recording electronic (computerized) or other accessible voting system at each polling place. Finally, the machines must provide alternative language accessibility and comply with HAVA error rate standards (the percentage of votes lost by the voting system).

Through HAVA, $325 million was available to states that wanted to replace their punch card or lever machines, demonstrably the least effective types of voting technology.

As a result of these requirements, in 2004, the estimated proportion of voters using electronic equipment will surge from 13 percent to 29 percent. At the same time, only 4 percent fewer voters will use lever machines than did in 2000—13 percent, down from 17 percent. And 0.6 percent may use hand-counted paper ballots, down from 1 percent in 2000. All together, 28 percent of counties still will use punch-card, lever-machine, or hand-counted ballots in 2004.[24]

Translated into numbers of voters, for the 2004 elections more than 50 million voters will be in jurisdictions using electronic voting equipment, 55 million will be in optical scan areas, and 32 million voters will be in places where punch cards are used. Up to 1 million voters nationwide will use old-fashioned pen and paper. About 22 million voters may use lever machines.

There has been much said and written about the security, or lack of security, of new voting technologies. This is a legitimate issue, and voters rightfully will be concerned that their votes on these machines will be accurately cast and counted, and not be subject to computer bugs or hacking.

However, there is also great peril that has resulted from the electronic voting machine backlash—the continued use in key states of punch-card ballot machines.

The continuing problems punch cards cause was demonstrated most recently in the California recall election last year. After the election was held studies showed that 384,000 votes were lost in that election. A majority of those “missing” votes came from counties using the punch-card ballot machines. Almost half—over 175,000—came from Los Angeles County alone. Fully nine percent of voters in Los Angeles, where punch cards are still used, had no vote recorded on the question of whether the governor should be recalled. [25]

Moreover, there have been studies conducted by newspaper reporters and academics focusing on particular jurisdictions such as Florida and Chicago, studies of national voting patterns, and studies of elections from 1988, 1996, and 2000, and virtually all come to the same conclusion: punch-card machines mean that far fewer African-American votes will count relative to uncounted votes by white citizens. The evidence is overwhelming.

Even with optical-scan machines—usually regarded as the most trustworthy of the technologies to date—a problem arose in Milwaukee, Wisconsin. The county executive, a local chairman of the Bush campaign planned to give the city only 679,000 ballots—less than were provided in the 2000 election, and far less than the number the mayor requested given the surge in voter registration. The mayor, a Democratic cochair of the Kerry campaign, other Democrats and citizens, many of them African American, cried foul, alleging that the county executive’s refusal to provide a sufficient number of ballots would cause voter disenfranchisement, especially in the inner city where voter registration drives have been taking place. [26] The county executive is relenting and will provide additional ballots.

Thirty-two million voters throughout the country, including many in key battleground states, still live in jurisdictions that will use punch-card ballots. In Ohio—which originally planned on replacing all punch-card voting machines in time for this November’s election—just four of thirty-one Ohio counties eligible to replace punch card machines actually will do so by Election Day. This means that once again, in 2004, in Ohio and throughout the country, African Americans are at particular risk of not having their votes counted. [27]

The Backdrop

In addition to all of these specific places in the voting process where a voter can be thwarted, there also have been events taking place that created the environment for voter disenfranchisement to transpire.

First, a number of incidents of voter intimidation are already being reported, even before the election has taken place.

More than 80 percent of the population of Detroit is black. John Pappageorge, a white Republican state legislator in Michigan recently stated, “If we do not suppress the Detroit vote . . . we’re going to have a tough time in this election.” [28]

State police officers went into the homes of elderly black voters in Orlando and interrogated them as part of an “investigation.” The officers, from the Florida Department of Law Enforcement, which reports to Governor Jeb Bush, say that they are investigating allegations of voter fraud that came up during the Orlando mayoral election in March.

The state police officers, armed and in plain clothes, have questioned dozens of voters in their homes. Some of those questioned have been volunteers in get-out-the-vote campaigns. [29]

A series of billboards have suddenly appeared around the Twin Cities declaring “DON'T VOTE,” angering civil rights activists. Fifteen of the billboards are in Minneapolis–St. Paul and its suburbs. Several are in areas with large minority populations, including the Phillips neighborhood in Minneapolis. [30]

Moreover, there is the sorry history of the Election Assistance Commission, established by HAVA as the federal entity that would be in place to help ensure the states ran smooth, fair and effective elections.

Under HAVA, the Election Assistance Commission was designated to give federal money to states and advise states and localities on technology, election standards, and other steps to improve voting. But the Commission has been used as a political football from the start, with delays in establishing its very being and ongoing battles to even get sufficient funding to function.

First, due to foot dragging by the administration, and to some extent Congress, the commission got off to a slow start. Scheduled to be in place by February 2003, commissioners were not appointed until last December. Up until this year, funding for the commission has been constantly wanting in the president’s budgets. This year, the commission was authorized to have a $10 million budget, but only $1.2 million was appropriated. That left the panel struggling to do even as much as rent office space. “We’ve promulgated no rules. We’ve worked hard to get stationery, office space, business cards. We’ve had one public hearing,” DeForest B. Soaries, chairman of the Election Assistance Commission, told a House appropriations subcommittee in May. The commission has yet to hire key staff.[31]

After months of delay, the commission was able to distribute $2.3 billion appropriated to states to buy new voting machines and make other improvements, but this was hardly in time to make any marked upgrades for this November’s election. Twenty-four states will not have received full funding in time for the 2004 election. [32] Moreover, calling it an unfunded mandate, many states held off on making certain improvements until the money was in hand.

The bottom line is that the commission has not been able to accomplish any of its core goals— advising the states on best practices and how to implement HAVA, and provide guidelines and assistance on the best voting technology—in time for this year’s election. As a result, states and localities have gone in all sorts of directions in implementing voting reform without any guidance.

The commission’s budget this year is yet to be determined.

Finally, the General Accounting Office, the independent, nonpartisan watchdog for Congress, issued a report documenting that the Department of Justice is ill prepared to handle and address voting rights complaints that might arise out the November 2 election. [33]

What Now?

Put simply, the future probably holds more litigation, extending beyond Election Day itself. Democratic lawyers, Republican lawyers, nonpartisan lawyers, nonpartisan election observers, international observers, and reporters probably will outnumber voters in many polling sites. Both the Kerry and Bush campaigns have battalions of lawyers lined up to work throughout the country, and act on any possible Election Day problems and ready to fight over ballot counting. Lawyers involved in this effort and outside experts seem to believe that the issue of which provisional ballots are counted is the most likely candidate for a legal dispute. Pre-election shenanigans and litigation already instigated make it almost a self-fulfilling prophecy.

What does this say about where our democracy is headed? No one believed that HAVA would solve all of our problems, and indeed it should be remembered that many of its provisions do not even kick in until 2006. Clearly, however, the law was not supposed to make matters worse. While our lack of knowledge of what went on in elections prior to 2000 makes it impossible to make such a comparison, it is sad to note that it is the deliberate actions of elections and elected officials that threaten to make this one of the most troubled elections in U.S. history—again.

NOTES

[1] Jo Becker, “Pushing to be Counted in Florida,” Washington Post, October 13, 2004.

[2] The Advancement Project, “State of Florida Sued to Prevent the Disenfranchisement of Thousands of Voters,” press release, October 12, 2004.

[3] George Knapp, “Voter Registrations Possibly Trashed,” KLAS-TV, Las Vegas, Nevada, October 12, 2004.

[4] David Paul Kuhn, “Voter Fraud Charges Out West,” CBS News, Tempe, Arizona, October 14, 2004.

[5] George Knapp, “Voter Fraud Allegations Headed to Court,” KLAS-TV, Las Vegas, Nevada, October 14, 2004.

[6] Ford Fessenden, “Florida List for Purge of Voters Proves Flawed,” New York Times, July 10, 2004.

[7] Rock the Vote, Campus Campaign: Prairie View Report, February 23, 2004, available online at
http://www.rockthevote.com/rtv_campuscamp_pvreport.php.

[8] Denise Ross, “Repeal of Voter ID Law Urged,” Rapid City Journal, July 7, 2004.

[9] Colorado Common Cause v. Donetta Davidson, Secretary of State of the State of Colorado, U.S. District Court, County of Denver,
Colorado, case No. 04CV7709, filed September 20, 2004.

[10] Demos, “Provisional Ballot Roundup,” Democracy Dispatches, October 12, 2004.

[11] electionline.org, “Election Preview 2004,” October 2004.

[12] Brennan Center for Justice, “Federal Court Asked to Strike Down Michigan’s Plan for Provisional Ballots on Nov. 2,”
press release, October 1, 2004.

[13] Associated Press, “Democrats Sue to Allow Provisional Ballots Cast in Wrong Precinct,” September 28, 2004.

[14] Brennan Center for Justice, “Federal Court Asked to Strike Down Michigan’s Plan for Provisional Ballots on Nov. 2.”

[15] Associated Press, “Democrats Sue to Allow Provisional Ballots Cast in Wrong Precinct.”

[16] David Eggert, “Democrats, State Argue Provisional Ballot Strategy,” Associated Press, October 14, 2004.

[17] “Count Every Vote,” Editorial, Daily Camera, October 3, 2004

[18] Associated Press, “Criticisms Mount over Ohio Elections Chief’s Decisions,” October 6, 2004.

[19] Scott Hiaasen and Julie Carr Smyth, “ Dems Sue Blackwell to Block Poll Rule,” Cleveland Plain Dealer, September 28,
2004.

[20] John McCarthy, “Cuyhoga County Defies Ballot Order,” Associated Press, October 6, 2004.

[21] Bill Cotterell, “Judge Won’t Budge on Ballots,” Tallahassee Democrat, September 23, 2004.

[22] Michael Moss, “Democrats Voice Concern about the Overseas Vote,” New York Times, October 2, 2004.

[23] Michael Moss, “Voting Hurdles Remain for U.S. Voters Living Overseas,” New York Times, September 29, 2004.

[24] “New Study Shows 50 Million Voters Will Use Electronic Voting Systems, 32 Million Still with Punch Cards in 2004,”
Election Data Services, Washington, D.C., February 12, 2004.

[25] Rachel Konrad, “Scientific Analysis Turns up 384,000 of ‘Missing’ Votes in Recall,” Associated Press, October 9,
2003.

[26] “Cough Up Those City Ballots,” Editorial, Milwaukee Journal Sentinel, October 13, 2004.

[27] Tova Andrea Wang, “African Americans, Voting Machines, and Spoiled Ballots: A Challenge to Election Reform,”
The Century Foundation, September 15, 2004.

[28] Donna Britt, “Ensuring that Voting’s Sanctity Wins Out,” Washington Post, October 1, 2004.

[29] Bob Herbert, “A Chill in Florida,” New York Times, August 23, 2004.

[30] Patrick Condon, “Billboards Raise Concern of Vote Suppression,” Associated Press, October 1, 2004.

[31] Erica Werner, “New Voting Commission Seeks More Funding,” Associated Press, May 12, 2004.

[32] Larry Bivins, “Concerns Raised over More Voters, New Rules, Few Workers,” Gannett News Service, October 13,
2004.

[33] General Accounting Office, “Department of Justice Activities to Address Past Election-Related Voting Irregularities,”
GAO-04-104R, August 31, 2004.