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Congress failed to heed the lessons of the 2000 election fiasco.

Election Daze

The Help America Vote Act may do just the opposite

BY John Nichols

The most incredible thing about the 2000 presidential election debacle was not that the wrong guy “won.” Any serious scholar of electoral politics will tell you this actually happens more frequently than most Americans have been led to believe.

Neither is it all that incredible that, after securing his “win,” the wrong guy proceeded to govern as if he had been elected by a landslide, rather than as the product of a dubious 5-to-4 mandate from a conflict-of-interested Supreme Court. Getting away with the subversion of democracy at election time tends to inspire confidence in the culprits.

No, the incredible thing is that, with all that has been revealed about the chaotic, corruption-prone and chronically underfunded electoral process, Americans will return to the polls on November 5 without having made even minimal steps to address this crisis of democracy. The measures of the failure are many, but the most dramatic came in mid-October, when the Washington-based Center for Democracy—which historically has worked with emerging democracies such as Russia and Guatemala to establish effective electoral systems—announced it would for the first time monitor an election in the United States.

Following a disastrous September 10 primary election in which closed polling places, non-functioning voting machines and fouled-up registration lists appear to have disenfranchised thousands of Florida voters—and called into question the result of the Democratic primary for governor—Miami-Dade County asked the Center for Democracy to send in as many as 20 experts to try and get things straightened out for November.

But Miami-Dade is just one of more than 3,000 American counties. And in the vast majority of them, little in the way of meaningful reform has taken place. Thus there is every reason to believe that, as in 2000, millions of American adults who want to vote will be denied the right to do so, and millions who do vote will not have their ballots counted for the candidate they intended to elect. “We still have not even guaranteed that people have a right to vote—the most basic right of all in a democracy,” says Rep. Jesse Jackson Jr. (D-Illinois). “I honestly do not know how we say that we respect democracy, that we are willing to go to war to defend democracy, but as a country we have such trouble making the defense of democracy at home a priority.”

Jackson is promoting a simple measure that would rectify most of what ails American democracy—a constitutional amendment to guarantee the right to vote and the right to have votes counted. But don’t expect it to pass anytime soon.

The best that Congress has been able to accomplish in the two years since shenanigans in Florida prevented Al Gore from becoming president has been a reform plan that may not even be in place in time for the 2004 presidential election. And, depending on whom you listen to, the so-called Help America Vote Act of 2002—which was cobbled together by a House-Senate conference committee and then passed by overwhelming votes in both chambers in early October (and is awaiting President Bush’s signature)—might actually make things worse.

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That is not, of course, how leaders of Congress and most of the media have been “spinning” the new law. In their desperation to claim that they had actually done something to repair the obviously decaying and in some cases destroyed democratic structures of America, even members of Congress who know better have been busily patting themselves on the back for ushering in an era of reform. “Election Day 2000 was not a proud day for our democracy, but that day was also a gift,” declares Sen. Chris Dodd (D-Connecticut), the reasonably liberal chairman of the Senate Rules Committee, who really did try for a time to enact sweeping reforms. “Had there never been a contested election, the problems likely would never have been addressed.”

Republican opposition to many of the most needed reforms slowed progress to a halt for the better part of a year, however, and only when Dodd and others agreed to serious compromises was the legislation enacted. Still, recalling the 2000 crisis, Dodd argues that the Help America Vote Act “goes a long way toward righting those wrongs.”

Dodd and other Democratic backers of the legislation celebrate its positive aspects:

  • It allows registered voters to cast “provisional ballots” even if their names are excluded from voter registration lists provided to poll workers. The provisional ballot can then be counted if confusion regarding registration is later resolved.
  • It requires states to develop and maintain centrally managed voter registration lists designed to ensure the accuracy of and consistency of standards in voter registration records.
  • It requires states to guarantee that in every polling place there is at least one voting machine that is accessible to the disabled.
  • It requires that states ensure that voters can verify and correct votes before casting them, a provision that could rectify the problem that came to light in November 2000, when Palm Beach County, Florida, voters knew they had mistakenly cast confused “butterfly” ballots for Reform Party candidate Pat Buchanan rather than their actual choice, Al Gore, but could not change the mistake.
  • It sets up mechanisms for getting as much as $3.8 billion in federal money to election supervisors over the next three years, so that they can purchase better equipment, develop improved registration lists and train election officials and poll workers.

Dodd’s optimistic view of the new law’s potential to set things right is echoed by the measure’s Republican co-sponsor, Kentucky’s Mitch McConnell, the scourge of campaign finance reformers and one of the least likely leaders for democratic renewal. But their enthusiasm is not shared by civil rights and civil liberties activists. As Wade Henderson, executive director of the Leadership Conference on Civil Rights notes, “The final House-Senate agreement on election reform contains a number of badly needed improvements.” The problem, he explains, is that “it takes several steps backward as well.”

In a scathing analysis of the legislation’s flaws, Laura W. Murphy and LaShawn Y. Warren of the American Civil Liberties Union wrote: “This legislative cure to the severe voting rights problems seen in the 2000 presidential election could be even worse than the disease. In many respects, the conference report rolls back many of the voting rights victories achieved over the past three decades. … Instead of making sure that the voting process is as inclusive as possible, this agreement would exclude people, negatively impacting the elderly, the disabled, racial and ethnic minorities, students and the poor. Not only would this bill make it more difficult to vote, it would make it more difficult to register to vote.”

Even the League of Women Voters, a group rarely known for its radicalism, is concerned. According to President Kay Maxwell, the legislation “weakens and undercuts several of the hard-fought voter protections established in current law.”

For example, the Privacy Act of 1974 makes it unlawful for local, state or federal agencies to deny individuals a right provided by law if those individuals refuse to disclose to authorities their Social Security number. Yet the Help America Vote Act requires that citizens seeking to register to vote provide a driver’s license number or, if they are among the millions of adult Americans who do not have a license, to disclose the last four digits of their Social Security number. As the ACLU notes, “Any voter who has either number but does not provide it—even for privacy reasons—would not be registered.”

Another provision in the new law requires first-time voters to produce specific forms of identification, with a clear prejudice toward photo identification. This rule, a favorite of House Republicans, conflicts with the National Voter Registration Act, which prohibits requirements that driver’s licenses or Social Security numbers be used to authenticate voter registration forms. It is also dramatically biased against people of color and low-income Americans. A 1994 Department of Justice study conducted in Louisiana found that African-Americans were four to five times less likely than white citizens to have driver’s licenses or other forms of official identification that include photos. And the Federal Election Commission in 1997 noted that, because obtaining and maintaining photo identification can be costly, such requirements create undue and potentially discriminatory burdens for Americans seeking to exercise their right to vote. So great is the burden that it could even amount to a violation of the Voting Rights Act, according to a number of analysts.

The identification requirements are just some of the new hoops that the bill requires citizens to leap through. At the behest of Republican negotiators, the House-Senate conference committee added a mandate that new voters check off a box on registration forms confirming their citizenship. If the box is left unchecked, by mistake or because a local election official fails to point out the new requirement, the state is prevented from registering the voter. “The need for this additional ‘check off’ box is highly questionable and it is obvious that the detrimental consequences, intended or not, will be visited upon Hispanic and Asian-American communities,” argues Raul Yzaguirre, president of the National Council of La Raza, an umbrella organization of more than 270 Hispanic groups.

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Even the good the law might do is elusive. The legislation fails to address fundamental concerns arising from the Florida fight of 2000. For instance:

  • It does not guarantee that necessary funding will actually be allocated in a timely fashion—or at all. “The real impact of the new law will be determined by its implementation,” says Henderson. “Many of these changes will be meaningless until Congress actually delivers on the funding.” Considering the budget deficits Congress will be looking at when it returns after this election, there are no guarantees that the dollars will flow from Washington to where they are needed.
  • It doesn’t bar the sort of voter registration list “maintenance” activities that Florida Secretary of State Katherine Harris’ office used to knock the names of thousands of eligible voters of polling lists in a “felon purge.” More significantly, the legislation fails to enforce any sort of uniform standard for allowing ex-offenders who have “done their time” to again participate in American democracy. Fourteen states still maintain laws, generally legacies of the segregation era, which deny the right to vote to people who have been convicted of felonies. According to a Sentencing Project study, African-American men are disenfranchised at seven times the national average under these laws. In Florida, 31 percent of African-American men are still denied the right to vote because of this archaic form of discrimination.
  • It establishes ridiculously weak enforcement provisions that rely entirely on Attorney General John Ashcroft’s Department of Justice to enforce the voter protections in the federal courts. According to an analysis by the Lawyer’s Committee for Civil Rights Under Law, the new legislation is written so as to “deny aggrieved voters the ability to seek a remedy in our nation’s courts.”
  • It doesn’t establish any real parameters for whether provisional ballots will be counted. Thus, as the ACLU notes, “although this legislation requires election officials to permit a voter whose name does not appear on the voter registration list to cast a provisional ballot, it gives complete discretion to the state to decide when and if provisional ballots will be counted, even in federal elections. As we have seen in the past, these ballots can determine the outcome of an election.”
  • It establishes minimum standards for voter machinery but then includes an exemption for the sort of punch-card machines that created some of the most severe problems in the 2000 Florida voting—preventing tens of thousands of ballots from being counted for the candidate the voter intended. In fact, the legislation is thick with exemptions and waivers that call into question whether most of the law’s protections will ever be made real in the regions where those protections are most needed.
  • And, of course, it does not begin to address rapidly declining rates of voter participation, which have seen turnout levels dip to record lows as citizens choose not to leap registration and voting barriers because, increasingly, they do not see their vote as mattering much in a money-driven, winner-take-all system where voting minorities get little respect and, as Florida proved, the system cannot even deliver on the promise of majority rule.

So, two years after Florida made George W. Bush president, the radical revamping of a failed electoral system that seemed like such an obvious—and necessary—response has yet to come. And the promise of democratic renewal that some saw in the crisis of 2000 remains a dream deferred.

John Nichols is a fellow with The Nation Institute who writes “The Beat” column and covers national politics for The Nation. He is also an associate editor for the Capital Times in Madison, Wisconsin and a regular contributor to In These Times and The Progressive. He is the author, most recently, of Jews for Buchanan: Did You Hear the One About the Theft of the American Presidency?

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