Legal wars stirring over election 2004
Concerns about voter enfranchisement and the system's integrity have lawyers busy already.
For weeks, reports of potential trouble have been trickling in from around the country. There are the suspicious - or clearly fraudulent - signatures on voter registrations. There are the allegedly unreliable electronic voting machines, controversies over lists of ex-felons, and conflicting court rulings over provisional ballots. And, as always, there is human and mechanical error.
Chances are, the 2004 election will not be close enough in key states to produce a rerun of 2000, when the outcome hinged on 537 votes in Florida. But no one can rule that out, either for Florida or other battleground states. Both major parties have dusted off their copies of Bush v. Gore and "lawyered up," just in case.
There is no evidence of a broad conspiracy on anyone's part to steal the election this fall, election analysts say. But what if, on Nov. 3, there is no clear winner, and the outcome is again disputed? How will that affect faith in American democracy, bruised after the 2000 vote but not broken?
"You get a collision between people very, very concerned about enfranchising people and equal concern about maintaining the integrity of the system," says Susan MacManus, a political scientist at the University of South Florida in Tampa. "[This] looks to be the election where the two will collide with each other in a big way."
Indeed, she adds, the initial problems with early voting in Florida, which started on Monday, can be viewed positively. By spreading the election over two weeks, instead of just one day, election workers have time to sort out issues - from missing voter registrations to confusion over new machines to questions about placement of polling places - before Election Day, not during or after. Long lines, a subject of much grumbling, show how intensely voters view this election.
"I am hoping for the best, but I suspect if it is a very close election you are going to have a repeat of the anxiety of 2000," says Carlos Reyes, a member of the GOP's election legal team in Florida's Broward County, where most of the postelection chad-counting took place four years ago.
"There is some procedural clarity [this year], but I suspect not enough," he says. "And since everyone is so partisan and committed to their candidate, if there is anything - even an inkling of the issues of 2000 - they will be pressing their case."
Florida is now a chad-free zone, though some other states still use the machines that produce the little punched-out tabs from voting cards. Still, this time around, voters and poll workers should know how to use a punch card and keep the machines clear of chads. If anything, the "hanging chads" of the 2004 election could be provisional votes, a key feature of the Help America Vote Act of 2002, which aimed to improve the mechanics of US voting.
Provisional ballots are for people who show up at a polling place but don't find their name on the rolls; the validity of their registration is confirmed after the election. Already, four states have ruled on provisional ballots, with differing outcomes. In Florida, for example, the State Supreme Court ruled on Monday that such ballots can be submitted only in a voter's home precinct. In Ohio, another central battleground state, and Michigan, federal judges ruled that voters don't have to file such ballots in their home precinct.
"So if the vote comes down to a 5,000-vote difference in Ohio and there are 10,000 provisional ballots that need to be counted under one way of reading the federal law and not be counted under the other way of reading the federal law, it is going to be a big mess," says Richard Hasen, an election law expert and law professor at Loyola Law School in Los Angeles.
The provisional ballot controversy holds particular significance among African-American voters, many of whom were turned away from the polls in 2000 when their names did not appear on registration lists. Perceptions of minority disenfranchisement also feed into the question of faith in American democracy: According to a July poll by CBS News, 85 percent of African-American voters believe George W. Bush did not win the presidency legitimately, versus 32 percent of white voters.
Many election experts believe HAVA addressed only some of the problems with the 2000 vote but not others, such as the continuing presence of partisan election officials at the state and local levels. In 2000, Florida Secretary of State Katherine Harris doubled as chairwoman of the state Bush-Cheney campaign. The current Florida secretary of state, Glenda Hood, was appointed by Gov. Jeb Bush in 2003 and was a Bush-Cheney elector in 2000. Such partisan affiliations can contribute to some voters' sense that elections are not handled completely straight.
In the end, though, election lawyers are confident that most officials are working hard to make sure the 2004 election is fair. "We have issues, no doubt, this time," says Mitchell Berger, a Fort Lauderdale lawyer and general counsel of the Kerry legal team in Florida. "[But] I would emphasize that for the most part, on the local level, the supervisors of elections are overworked, underpersoned, and are doing really a Herculean job to ensure the franchise."
Another feature of American elections is their highly decentralized nature, with major differences among states. Take Oregon, for example. Unique in the nation, Oregon has voted entirely by mail since 1998. Despite initial concerns about mail tampering and other forms of fraud, the process has operated smoothly and voter participation increased as a result. This year may be different.
Though it has only seven electoral votes, Oregon is very much in play and of great interest to both parties. Voters received their ballots last weekend, so what amounts to a two-week election has drawn political activists, partisan poll watchers, and others suspicious of a process that has not been fully combat-tested. Around the state, county election offices are becoming crowded with such observers eagle-eyeing official vote counters and each other.
Meanwhile, officials in Oregon are investigating reports that a Republican canvasser may have thrown away some voter registration cards. Election officials also have received reports of canvassers urging people to register Republican lest the canvasser not be paid for his or her work.
The canvassing company in these cases - Sproul & Associates - is run by the former head of the Republican Party in Arizona. A GOP spokesman says the party has "a zero-tolerance policy for anything that smacks of impropriety in registering voters." Still, the charges sharpen the ongoing criticism of out-of-state canvassers being paid by the number of signatures they gather.
Officials in Oregon also have complained of mailers sent to voters that are meant to look like the official voters' pamphlet but actually come from those trying to influence a ballot measure that would cap jury awards in medical malpractice cases - a position in line with what the Bush/Cheney ticket advocates.
Another concern is voter intimidation at ballot drop-off sites the evening of the Nov. 2 deadline. A Republican manual instructs GOP volunteers to take video cameras. Party officials say this is to make sure no ballots are collected after the 8 p.m. cutoff, but Democrats worry that it could frighten away some voters.
Officials also warn voters not to give their ballot envelopes to party workers who volunteer to collect ballots and turn them in.
"Treat your ballot like you would treat your mortgage or your rent check," Secretary of State Bill Bradbury said this week. "Don't hand it over to strangers. Hand it in yourself."
• Warren Richey in Fort Lauderdale and Brad Knickerbocker in Ashland, Ore., contributed to this report.