Can America Run a Fairer Election?

In the early hours of Nov. 7, 2006, the midterm elections in Sarasota County, Fla., seemed to be going smoothly. But that didn't last. By late evening, it was clear something was wrong. The touted new touch-screen electronic voting machines seemed to be losing track of thousands of votes in the key congressional race to replace Republican Rep. Katherine Harris. Republican candidate Vern Buchanan eventually declared victory with a 369-vote lead—and now serves in Congress—but Democrat Christine Jennings refused to concede because the voting machines apparently failed to record approximately 18,000 votes.

This kind of confusion wasn't supposed to happen, not after the 2000 presidential election debacle—with its furor over butterfly ballots and hanging chads—sparked measures to reform the nation's voting process. Congress stepped in by passing the upbeat-sounding Help America Vote Act of 2002, requiring many states to improve how they conduct elections. So far, Congress has provided $3 billion for new voting machines, updating voter registration databases, and other reforms.

But while these measures have been implemented around the nation, the recent Florida experience highlights the continuing problems, which go beyond quirks in voting machines. Voting rights advocates are frustrated that not enough is being done to ensure that next year's voting will go off without major problems. "Progress has been inadequate," says Robert Pastor, executive director of the Commission on Federal Election Reform, a panel cochaired and created in 2005 by former President Jimmy Carter and former Secretary of State James Baker in response to the insufficiency of the 2002 reforms.

To be sure, the list of proposed reforms is daunting—and, in part, controversial. From paper audit trails and stiffer penalties against voter intimidation to efforts to revamp federal election oversight, a lot needs to be worked out before the 2008 presidential elections, say election experts, if voters are to have confidence in the validity of the outcome.

Touch-screens. The Help America Vote Act required states to move from the old lever-voting machines and punch cards to modern electronic voting machines. In the 2006 midterm elections, more than 80 percent of the nation's voters cast ballots using some type of electronic voting machine. Yet early experience, as Sarasota discovered, is showing that touch-screens can be problematic. Similar machine malfunctions have changed vote tallies in 30 states in recent elections, according to Common Cause, a nonpartisan watchdog. In Sarasota, the cause of the voting machines' malfunction is still unknown and under investigation. Election Systems & Software, the company that made those machines, denies charges that the machines caused the votes to be lost.

Thirty-six states now require or use paper trails to back up electronic voting machines or optical scan machines, which rely on paper ballots read by a computer. Both of these machines provide a paper trail so that elections can be audited for accuracy. Yet only 15 states require manual post-election audits as an authoritative check on the numbers.

A paper ballot that can be verified and audited by election officials, most reformers agree, is the best way to ensure that votes are counted fully and accurately. Democratic Rep. Rush Holt of New Jersey has introduced legislation that would require that all machines used in federal elections produce paper trails and that those documents be audited. "Without a voter-verified paper ballot," he says, "the results of our elections will always be uncertain." Many local and state officials argue, however, that Holt's requirements would block needed flexibility at the state and local level. In any event, they add, Holt's requirements couldn't be met in time for the 2008 presidential primaries, the first of which is scheduled for January.

Not all voting problems can be blamed on machine error, of course. Blatant voter intimidation, say voting rights advocates, as well as the more subtle impact of new voting identification laws and registration rules disenfranchises thousands of Americans. Before the 2006 midterm elections, for instance, fliers distributed to voters with Latino surnames in Orange County, Calif., incorrectly said it is illegal for naturalized citizens to vote. And in Virginia, Colorado, and New Mexico, voters received automated calls allegedly giving out intentionally incorrect information about voting requirements and locations. The Senate Judiciary Committee in September approved legislation to punish such deceptive practices, but it awaits further action by Congress. "For too many elections, misinformation and intimidation have kept thousands of Americans from voting," Democratic presidential hopeful Sen. Barack Obama, the measure's sponsor, said in a statement.

While the Orange County fliers case is particularly flagrant, voting rights activists say some new state laws designed to eliminate voter fraud also prevent eligible voters from casting ballots. The 2002 election reform law was supposed to settle the controversies surrounding voting registration by requiring computerized statewide voter lists. But disputes have erupted over state efforts to manage the voter registration process. Known as "voter purges" by their opponents, these new laws attempt to update registration lists by comparing voter lists with information in other government databases, including the state's motor vehicle database or the federal Social Security database. But these measures have erroneously eliminated thousands of eligible voters—most often, critics say, minorities and women.

Disputed rules. The NAACP filed a federal lawsuit challenging a new voting law in Florida, which prevents voters from registering if their driver's license or Social Security card does not match what is on the registration form. The suit argues that people could be prevented from voting because of simple discrepancies, such as two transposed numbers on a driver's license or if a woman's driver's license or Social Security card still has her maiden name after she is married. Several other states, including Ohio, Maryland, Georgia, and Missouri, have enacted similar regulations in recent years.

The Supreme Court is currently considering whether Indiana's photo ID law unfairly discriminates against the poor and minorities, who often do not have driver's licenses. The state of Indiana argues that the law combats voter fraud. But critics have pointed out numerous problems with ID restrictions—most notoriously, that in 2006 Ohio Rep. Steven Chabot was turned away from the voting booth because the addresses on his ID and his registration did not match, and South Carolina Gov. Mark Sanford was turned away after forgetting his identification. Seven states require photo ID to vote, and 17 others require identification without photos, according to the Pew-funded Electionline.org.

Democratic Party officials say their candidates are most often handicapped by these and other voting rules, although it's not entirely one-sided, as Republicans Sanford and Chabot found. And some experts say the real problems often may be less partisan than mundane. Cecelia Martinez, executive director of the nonpartisan Reform Institute, a nonprofit that advocates for election reform, argues that many more voters are disenfranchised by a lack of basic information, such as poll location or registration status, than by machine error, fraud, or intimidation. About 65 percent of the calls made to a national voter hotline during the 2006 midterm elections, she says, were from callers trying to find their polling location. "Partisan quarreling over vote tampering and intimidation allegations have received the most attention when it comes to election administration," says Martinez, "but providing better information to voters in an easily accessible manner must be a major focus of efforts to increase voter participation and improve election administration."

Few people paid much attention to the office of secretary of state until the 2000 elections, when Katherine Harris, the then Florida secretary of state, became something of a household name. Like most secretaries of state, Harris was her state's top election official. Yet while she made decisions about the contentious presidential recount, she was also serving in a partisan role as cochair for the George Bush campaign in Florida.

Despite the outcry over her double role, she's not unique. Several secretaries of state (and other state officials who oversee elections) are still involved in partisan politics, even endorsing presidential candidates. Indiana Secretary of State Todd Rokita and Lt. Gov. Gary Herbert of Utah—the top election officials—are backing former Massachusetts Gov. Mitt Romney. Rhode Island Secretary of State A. Ralph Mollis is endorsing Sen. Hillary Clinton, and Arizona Secretary of State Jan Brewer has stumped for Sen. John McCain. Democratic Sen. Frank Lautenberg of New Jersey characterizes this kind of situation as a "blatant conflict of interest." Lautenberg introduced legislation in 2005 that would prohibit state election officials from participating in the political campaign of a candidate running for federal office. But Brewer disagrees. "I don't believe that when I became secretary of state," she says, "that I gave up my First Amendment rights."

State actions. While efforts to pass federal rules regulating election officials and partisan activities have failed, a few states have taken action. Colorado, Georgia, Louisiana, Wisconsin, Nebraska, Maine, Ohio, and Virginia now ban their chief election officials from participating in certain partisan politics, such as serving on political campaign committees and publicly endorsing candidates. And some secretaries of state—including those in Oregon, Connecticut, Minnesota, Nevada, Pennsylvania, New Hampshire, North Dakota, South Dakota, and Vermont—have voluntarily pledged not to serve on political campaign committees or to publicly endorse candidates, according to a recent survey by the National Association of Secretaries of State.

The 2002 reform law created the U.S. Election Assistance Commission to assist states in improving their voting procedures. (This is different from the Federal Election Commission, which oversees campaign finance laws.) But the assistance commission lacks any regulatory power and so has focused mostly on collecting information for states. "It's really now a clearinghouse, which is a great idea," says Yale Law School Prof. Heather Gerken. "But it's gotta be a good referee."

Yet recently, the commission has drawn complaints of partisanship. For instance, researcher Tova Andrea Wang says that a report on voter fraud and intimidation that she cowrote for the commission in 2006 was significantly altered. Wang, whose approach to election issues is more closely aligned with Democrats, was paired with a Republican coauthor for balance. But she says that the commission's final report excluded much of the discussion of voter intimidation and all references to questions she raised about the Justice Department's handling of complaints of voter fraud and intimidation.

After some members of Congress inquired about the handling of the report this spring, Commission Chair Donetta Davidson, a Republican who was formerly Colorado's secretary of state, asked its inspector general for a review of what happened. The investigation is still pending, without a target date for completion.

This is not the first time questions have been raised about the Election Assistance Commission's balance. The Carter-Baker commission has been critical of its partisan nature and has recommended that Congress approve legislation that would add as its chair a fifth nonpartisan member, who would serve alongside the two Democratic and two Republican commissioners.

Without clear direction from the federal government, election reforms that have taken place have been an uneven patchwork of legislation passed at the state and county level. Sarasota, for example, has approved spending $3 million to replace the touch-screen voting machines with optical scanners that provide a paper trail. Officials hope to have the new machines in place for the 2008 presidential election.