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Voting Reform Legislation
Languishes in Congress

The presidential election of 2000 revealed a variety of voting problems that, according to the Caltech/MIT Voting Technology Project, disenfranchised an estimated four to six million Americans. People who were registered could not vote because of purged or mistaken lists of registered voters. Some, primarily in poorer communities, were discouraged from voting because a large police presence intimidated them.

Voters inadvertently voted for the wrong candidate because of the complexity of the ballot. Many votes were not counted because of flaws in voting technologies, such as hanging chads and misaligned machines. Whole ballot boxes were misplaced or lost. Many registered voters gave up, discouraged by the long lines or broken machines.

Sample of a butterfly ballot.

In his dissent to the U.S. Supreme Court decision Bush v. Gore, which ended the count in Florida and named George W. Bush the winner, Supreme Court Justice John Paul Stevens observed, "Although we may never know with complete certainty the identity of the winner of [the 2000] presidential election, the identity of the loser is perfectly clear. It is the nations confidence in the judge as an impartial guardian of the rule of law." The nation learned how voting procedures across America can prevent voters from having their say, and, in particular, that working families of color, immigrant citizens and older Americans are disproportionately disenfranchised by the failure of voting systems.

The Supreme Courts flawed decision in Bush v. Gore nevertheless supported the principle that differential treatment of voters violates the equal protection clause of the Fourteenth Amendment. Fair application of that principle would require many salutary changes in how votes are cast and counted across the country.

Conducting elections has historically been a state and local function. Comprehensive, national reform can only be achieved through federal action. This action should include providing financial support to states as they modernize and standardize their voting systems.

Guiding Principles
for Election Reform

Several election reform task forces have recommended various measures that could help ensure fair and open elections. Many of those recommendations are condensed into the following four "guiding principles."

First, voter registration should be simple and easy, designed to encourage voting. We should promote voter registration at age 18 and, for Election Day, same-day registration and voting. Also, we need to establish more uniform and effective systems to maintain and update voter registration lists.

A major complaint about the Florida election was that voters with voter identification cards went to their assigned polling places and discovered their names were not on the voter lists. In Jacksonville (Duval County), the supervisor of elections admitted that "motor voter" applications filled out in the last weeks of the registration period had not been processed. Thousands of other eligible voters appeared to have been purged at the last minute by the secretary of states office using faulty lists.

The National Voter Registration Act of 1993 ("Motor Voter Act") provided for national standards for voter registration by mail, when applying for a drivers license and at designated government agencies. However, there are no penalties for noncompliance and no provisions allowing people to vote after Election Day if their right to vote was denied because of a violation of the act. No uniform federal provisions govern identification requirements or the right to a provisional vote if there is a question about a voters eligibility. The experience of people of color trying to vote in Florida but being excluded for various reasons suggests a need for national registration standards. Any person denied the right to vote because of a violation of the Motor Voter Act standards should be permitted to vote if he or she files a timely complaint, and there should be tough penalties for violations of the Motor Voter Act.

Second, voting should be easy.

A few states have mail-in ballots or provide for early voting. Otherwise, voting in national elections is conducted during set hours on a workday, the first Tuesday in November. The result is that the bulk of the votes are cast during the first few and the last few hours the polls are open. Limited polling hours are a problem for working people, particularly those who work mandatory overtime and, in some cases, have to work until after the polls close. A more serious problem is the delay involved during the crush of voters in the last few hours. Confronted by long lines at the polls in the evening, many people choose not to vote rather than neglect their families or jeopardize their jobs.

When voting-list irregularities exist, limited voting hours lead to the effective collapse of the system for assisting voters who have a problem trying to vote. In some counties in Florida, voters with such problems were told to go home and wait to be called back to vote when the precinct workers could get through to the County Supervisor of Elections office. Polling places in minority communities in some states reported long lines due to a single list of eligible voters, while other communities were equipped with multiple copies.

Among the recommended solutions are time off from work for voting (either a full-day holiday or paid leave during the day), extended voting hours, multi-day elections or weekend elections. Election Day in many democratic countries falls on a weekend or is a holiday. In fact, Election Day in the United States in the 19^th century was generally treated as a holiday much like the Fourth of July.

Obstacles in the voting process itself should be removed. For example, voters should have an absolute right to cast provisional ballots if their names do not appear on the list at their designated polling place. In addition, uniform and reasonable identification requirements and procedures should be established and enforced equally.

Third, we must ensure that every vote gets counted.

Voting should not be treated as a series of traps where the role of election officials is to disqualify those who make mistakes. Furthermore, we need common procedures to safeguard ballots during the time between the closing of the polls and the counting of the votes.

In Florida, out-of-date equipment, confusing ballots and the failure of election officials to provide adequate assistance led to tens of thousands of votes not being counted. American citizens deserve guarantees that in light of the imperfections of any given voting system, election officials will have the opportunity to look at ballots to determine voter intent. Since voters come to the polls to vote, election officials should not look for reasons to discard their ballots, but should ensure that they are able to register their choices.

The experience in Florida and other parts of the country demonstrated that some types of voting systems are more likely than others to result in uncounted ballots. In particular, punch-card machines are problem-prone and must be replaced. Also, variations in ballot design and in sample ballots and actual ballots led to tens of thousands of voters in Florida being disenfranchised. Error-prone systems were used primarily in poorer areas, and people of color and senior citizens were less likely to have their ballots counted.

One solution to these problems is a common ballot format in federal elections and a common voting technology nationwide, with appropriate training for poll workers. The reliable voting machines currently in use in many affluent communities should be provided to voters everywhere. Such changes should be phased in as quickly as possible with federal financial assistance.

In addition, recount procedures and timetables in federal elections should be specifically described to avoid the chaos that ensued in Florida through ill-defined recount procedures and deadlines for recounts.

Fourth, voting rights laws should be aggressively enforced with penalties stiff enough to act as a meaningful deterrent.

The federal Voting Rights Act of 1965 prohibits the enactment of any election law that denies or abridges the voting rights of minorities. To enforce this prohibition, the act requires certain states with a history of discriminatory voting practices to get clearance from the U.S. Department of Justice for any proposed change in their election laws or regulations. However, the Voting Rights Act does not have provisions explicitly allowing retroactive relief except in certain circumstances (where a federal monitor has already been appointed).

Voting Reform Needed Now!

Congress must act now to ensure that the wholesale disenfranchisement of voters in Florida and elsewhere is never repeated. American citizens deserve election reform that is anchored in basic principles fundamental to any democracy chief among them that the right to vote is guaranteed to all citizens and not a privilege reserved just for the affluent.

Note: Several federal legislative proposals addressing "election reform" incorporate provisions on campaign finance reform. This  article mentions bills that deal primarily with proposals to reform the election process itself and provide funding to the states to help implement the relevant provisions.