As with the – duh – 2000 election, the actual mechaincs of voting will be once again crucial to the outcome of the election, with literal and psychological implications for the nation and for the legitimacy of the next president.
Mac Diva writes about concerns in Florida here.
The Note is again a must-read today:
- On Election Day, around 110 million people will vote in thousands of polling places, at tens of thousands of voting machines, attended by tens of thousands of poll workers — all of which will produce literally billions of separate transactions.
There will be mistakes, errors, and maybe even purposeful wrongdoing — any and all of which might affect the outcome of the presidential race and the down ballot stuff.
By our count, there are nearly a dozen significant lawsuits pending right now that could drastically effect the franchise in Florida, Ohio, Colorado, and other key states.
….Many states have totally revamped their election tabulation and ballot casting machines since the last presidential hoedown.
States have reformulated their recount procedures; implemented federally mandated provisional ballot laws; spent millions to recruit more poll workers and train them better; and worked to clarify arcane and often conflicting state rules.
Still — several states continue to use outdated punch card machines. The legal precedents from Bush v. Gore are unsettled and confusing. Literally millions more voters will cast absentee ballots this year compared to four years ago, potentially delaying the count.
They are four crucial areas to watch:
1. Equal protection. Most states have tried to adopt some semblance of equal protection in order to fend off Bush v. Gore challenges. If counties handle provisional ballots differently — or if they count absentees differently — or if they reject voters differently — or if optical scan counties again do a better job of reducing undervotes — will there be an actionable case against an important election jurisdiction on Nov. 2 or beyond?
2. Voter intimidation. Yes, the GOP is still under enhanced scrutiny for decades-ago shenanigans around the country. And there remain mean people who do nasty things every election on both sides. Some top GOP officials wonder whether some “stupid” independent activists — that is their characterization , not ours — will make it hard for them on Election Day by doing “stupid” things unilaterally, like checking identifications at the door to the polls, printing flyers saying Election Day is on Nov. 3, or paying for last minute push polls that aim to confuse some voters.
We know that GOP lawyers in their -pre-election briefings take pains to warn their soldiers away from doing anything like this. And we believe Ed Gillespie when he says he won’t stand for that kind of stuff this year. And Democrats will also go out of their way to sniff out intimidation, raising its profile and masterfully enlisting the media in their communications plans. But ignore any flippancy — voter intimidation is real and can have real effects. As can . . .
3. Voter fraud, rule breaking, and human error. With so many new voter registration groups — the 527s and the (relatively under the radar) 501(c)3s, will fraud be enough to tip the balance on Election Day? What about with provisionals? With absentees? Challenges at polls? Confused poll workers? It all could happen, has happened, and will be monitored very closely by Republican attorneys.
4. Electronic voting machines. Let’s stipulate that these things work very well and voters seem to like them but that the technology is not nearly as perfect as it needs to be for election administrators to be assured of an entirely failsafe (or reasonably failsafe) election with them.
….Suffice it to say, it is vitally important to the country that the final election results — particularly for the presidency — be seen as fair and legitimate by all Americans.
So we’re seeking YOUR help — and by “you” we mean citizens, journalists, activists, party officials and consultants, election administrators, and interested observers.
ABC News is kicking off our 2004 Watchdog project today, and The Note — and Noted Now — will be its canvass. Between now and Election Day, look for regular reports on all ABC News programs.
If you want to help, or if you’re concerned, all it takes is an e-mail to The ABC News Political Unit: email@example.com.
You might encounter problems or issues with the mechanics of casting and tabulating your ballot, from rules about absentee votes and voter IDs, to problems with electronic machines in your county, to poll workers who don’t know the law.
….To submit material to our casting and counting watchdog corps, just e-mail us — firstname.lastname@example.org.
You can and should start writing us right now — and all the way through Election Day.
Vigilance is the key – make sure your vote counts.
Richard Hasen has an interesting and disturbing look at what COULD go wrong with the election:
- Nightmare Scenario No. 1: Litigation Following Voting Glitch
The one lesson you would have thought everyone learned from Florida 2000 is that we need to use reliable equipment to cast ballots. After all, it was Florida’s antiquated punch-card voting system—along with legal wrangling over whether and how punch-card votes should be counted—that led to the Supreme Court’s decision in Bush v. Gore ending the Florida recounts and handing that election to George W. Bush.
After the election, the well-respected Caltech-MIT Voting Study found that 1.5 million votes were lost because of punch cards, and there were many other problems caused by both machinery failures and poor ballot design. Yet many jurisdictions dawdled in changing their technology, and some changed it only because of litigation. A great number of jurisdictions waited for congressional funding. Congress, enmeshed in partisan bickering, only finally passed the Help America Vote Act in late 2002, providing such funding. (Congress then failed to fully fund it—but that’s another sad story.)
….Nightmare Scenario No. 2: Litigation Over Whose Vote Counts
The Help America Vote Act, which was supposed to make things better after Florida, may make things much worse in the short term. One HAVA provision requires states to allow voters who believe themselves eligible to vote, but whose names do not appear on the voter rolls, to cast a “provisional ballot,” with election officials later determining whether those ballots should be counted. But HAVA is unclear on whether a voter who casts a vote in the wrong precinct (but the right county) is entitled to have that vote counted.
You would think that with two weeks to go before the election, this ambiguity would have been resolved. But litigation in at least four states on this issue is just getting under way. Courts have reached somewhat conflicting decisions on this issue in Ohio, Florida, Colorado, and Missouri, and further appeals and decisions are coming. The issues may not be finally resolved in time for Election Day.
So, imagine the vote in a battleground state hangs by a few thousand votes before the provisional ballots are examined (itself a time consuming process, by the way). Whether that state goes to Bush or Kerry could then turn on the legal question of HAVA interpretation—an issue that could go all the way to the Supreme Court.
….Nightmare Scenario No. 3: Litigation Over Colorado’s Amendment 36
On Nov. 2, Coloradans will consider Amendment 36—a voter initiative—that, if passed, will change the way that Colorado’s nine electoral votes are allocated from a winner-take-all to a proportional system. This initiative unambiguously states that it is intended to apply to this year’s presidential election. So, the winner in Colorado could end up with 4 or 5 votes rather than 9, and the election could then hang in the balance over a technical legal question: whether Amendment 36 can properly apply to this election.
The major parties so far have stayed out of this particular dispute, but a businessman has just filed suit in federal court claiming that the retroactive nature of the amendment violates the constitutional right to due process (a somewhat dubious argument) and putting forth the more serious argument that Amendment 36 violates Article II of the Constitution, which vests the state legislature with the power to pick the rules for choosing constitutional electors.
The Article II argument was one that appealed to the three most conservative justices on the Supreme Court deciding Bush v. Gore. They believed the Florida Supreme Court’s recount rules made new law (rather than interpreting old ones) that violated the Florida legislature’s power to set the rules for choosing electors. Last June, in a case emanating, ironically, from Colorado, Chief Justice Rehnquist and Justices Scalia and Thomas reaffirmed their position, asking for a hearing on the question of whether the Colorado Supreme Court usurped the Colorado Legislature’s power to set the rules for congressional redistricting. There are some old precedents on the meaning of “legislature” that may be relevant, but their application to the Colorado scenario is unsure. If the issue made it to the Supreme Court, the final call likely would come down to—surprise!—the votes of Justices Kennedy and O’Connor.
….Nightmare Scenario No. 4: Electoral College Woes in Congress
With such a closely fought election, we could see an Electoral College tie. The Twelfth Amendment provides rules for breaking such a tie (the House votes, with each state getting one vote). There may also be disputes over the counting of Electoral College votes (for example, what if we have a “faithless elector” who is pledged to one candidate but wishes to vote for another candidate?). And there are also questions about whether the federal law governing Electoral College disputes—the Electoral Count Act—is clear enough to deal with any controversy and whether it is constitutional in the first place.
One might think Electoral College issues are for Congress, and perhaps the states, to resolve, and not the courts. But one unambiguous lesson following Bush v. Gore is that the Supreme Court will not be afraid to step in, if a court majority perceives a need to avert a national “crisis.”
Nightmare Scenario No. 5: Terrorist Attack That Disrupts Voting
This is the true nightmare scenario. In a forthcoming article in the Election Law Journal, John Fortier and Norman Ornstein consider the myriad ways terrorists could disrupt our elections. Consider just one of them—an attack in a major city in a battleground state, making it physically impossible for voters to get to the polls in part of the city, although voting can take place in the rest of the state and country.
Should the election be postponed, as New York’s primary was postponed on Sept. 11, 2001? Most of the battleground states do not have a statute in place to deal with an Election Day delay, and Congress has done nothing to put any rules in place to deal with such a catastrophe either, assuming (a big assumption) that Congress has the power to do so. [Slate]
All of these issues loom ever larger the closer the election, and this one appears likely to be very close.