On the eve of an election in a great nation trying to sell the idea of democracy to the rest of the world, it is a scandal that so many Americans are wondering whether judges and lawyers not voters will decide the outcome. It is a scandal that one side suspects the other of trying to depress turnout in the name of fighting fraud. It is a scandal that all this talk of a disputed election may discourage some voters from going to the polls. It is a scandal that we have taken a basic act of citizenship and turned it into a complicated, litigated, chad-infested, technologically convoluted and anxiety-ridden act.
Voting should be simple. Voting should not be turned into some version of the SAT. Counting votes should not be rocket science. Our goal at home should be the same as it is in developing democracies: to increase participation. A concern over potential fraud should not be an excuse for raising barriers against legitimate voters. Americans of all stripes, regardless of party or ideology, should be able to have confidence in the results.
Blaming the lawyers for our fix is fun and easy, but it's not their fault. The massing of legal warriors in close proximity to polling places is a symptom of the problem, not the cause. Our political system is undergoing a revolution. We are passing from an era of moderate party feeling and relatively low turnouts to a moment of intense partisanship likely to breed higher voter turnouts. Our electoral structure is built for low-intensity conflict, not for high-tech all-out war. We need a system that doesn't make voters feel as if they must dodge subpoenas. We've always had election problems, but we lost our naiveté in 2000.
To understand where we are, we need to understand how we got here. The American electoral system has undergone two great changes in the last century, one democratizing and one not.
The democratizing change was to open voting to previously excluded groups, notably women and blacks. We often forget that while many Western states extended the vote to women beginning in the 1890s, all women didn't get the right to vote until the 19th Amendment in 1920 and African Americans didn't achieve full inclusion until the Voting Rights Act of 1965.
But we also forget the other major change: Restrictive registration rules. Roughly a century ago, many states began developing voting laws designed to limit the participation of the least powerful and least literate members of society, notably including blacks in the South. Michael McGerr, a historian at Indiana University, notes that in the post-Civil War years, before these restrictions came into force, the American system was remarkably open as long as you were a man. "There wasn't a cumbersome registration system," said McGerr, a proponent of the theory that we're now going through another political revolution.
Often, you didn't have to register at all. You just showed up on Election Day. Some jurisdictions, McGerr notes, even allowed immigrants then coming to America in droves to vote, as long as they declared their intention to become citizens. "The system was willing to risk a certain amount of corruption in order to make sure that anyone who had the right to vote did vote," McGerr said. "We've made a different tradeoff in the last 100 years. In order to protect against potential corruption, we've made it too hard for the less educated and less well-off to vote."
That's the whole debate in a nutshell. You will hear variations on it this election night if the contest is close. In our time, Democrats are primarily concerned with expanding the vote particularly in the inner cities. Republicans worry more about voter fraud, particularly in those traditionally Democratic strongholds.
So we have the spectacle of a Republican secretary of state in Ohio telling local officials to enforce a state law requiring registration applications to be made on 80-pound paper stock (he later relented). We have had allegations and lawsuits over the validity of tens of thousands of new registrations in Florida, Michigan, Ohio and other battleground states. We have GOP challenges to the eligibility of students registered where they attend college, battles over the fate of provisional ballots, arguments over the purging of voter rolls.
And that's before Election Day.
Democrats see a specific strategy in the Republican focus on fraud in urban areas. Dan Trevas, the communications director for the Ohio Democratic Party, said the idea is "to slow up the system so people are back in line, looking at their watches and saying, 'Do I have time?'"
One would like to hope that a president whose central foreign policy claim is that he wants to spread democracy around the world would think twice before winning reelection through complicity with such tactics. Republicans insist that fraud suppression, not voter suppression, is their intention. Shrewd conservatives are already preparing the intellectual groundwork for such arguments. If the election's outcome is in doubt, count on seeing a lot of Republicans brandishing the book "Stealing Elections: How Voter Fraud Threatens Our Democracy," by John Fund, the Wall Street Journal opinion writer.
With party feelings running so high, we just can't afford the sort of mistrust that's created when one party or another is seen as being in effective control of the electoral machinery in a given state or locality. It was a scandal in 2000 that Florida's top election official was a partisan Republican chosen by a GOP governor whose brother was one of the candidates and that she made all the critical decisions in her party's favor. This did nothing to inspire confidence among non-Republicans. The same critique would apply to a Democratic official in a comparable situation.
Running elections is not one of those sexy subjects in public management schools. I mean no disrespect to hard-working election officials around the country. On the contrary, I have strong affection for them my late uncle was a longtime city clerk who cared passionately about accurate results. A number of local election administrators have tried for years to improve the process. But let's face it: Except in places where local political machines wanted to be sure the vote got counted "right," election management has never been a high priority for city, county or state governments or their taxpayers.
Turning everything over to professionals and creating uniform national standards is not always the best route for a democracy. But given the enmity that now exists across party lines, I think the alternatives are worse, and we've seen why.
Say "national standards," of course, and lots of people shout back about states' rights or local autonomy (though neither principle seemed to bother the conservative Supreme Court justices who wrote the majority opinion four years ago in Bush v. Gore). Akhil Amar, a Yale law professor, says it's time we faced up to the consequences of leaving so much discretion to local officials in national elections. While "there's something appealing" about localism, Amar says, "it works against the strong idea of equality."
Take the case of "provisional" ballots. The Help America Vote Act of 2002 created these ballots to prevent legitimate voters from being turned away because of an administrative glitch. If a voter proved later to be eligible, the provisional ballot would be counted. If not, it would be discarded. But eligible exactly where? Some states have said they would throw out all provisional ballots not cast in the proper precinct. Is that fair to a voter who was eligible, but whose specific polling place was a few blocks away, perhaps because it was moved between elections? Can you imagine the brawl we'd have if this election were decided by provisional ballots counted differently in different states?
And what if legitimate voters, because of partisan challenges, find themselves forced to cast provisional ballots that might be litigated after the election? Democrats especially are worried that Republicans will try to create huge piles of provisional ballots in inner-city precincts, taking them out of the broader count in order to fan doubts about their legitimacy.
Surely the rules on provisional ballots cry out for clear national standards. And surely the GOP should want to fight, not foster, the suspicion that it is unduly interested in challenging votes in African American districts
Another matter of national concern is the requirement that first-time voters who registered by mail show identification at the polls. This, too, is a product of the Help America Vote Act, and it would seem a simple barrier against fraud affecting relatively few voters. But as Alec Applebaum reported recently in the New Republic, some election officials are interpreting the provision to mean that all voters must present ID. An estimated 5 percent of Americans have no photo ID, and they tend to be "poorer, less educated and more urban," Applebaum writes. In the absence of explicit national rules, a well-intended but loosely written law might become, in some places, the Help Some Americans Not to Vote Act.
What can be done to prevent an election meltdown? That is really two questions: one for the short term, one for the long run.
For this year, it is impossible to ignore the specter of Bush v. Gore. It has vastly increased Democratic fears that Republicans are all too willing to have the election end up in the Supreme Court, on the theory that Bush will get the same majority as last time. You may call this paranoia. Others might see it as realism. But fear of a repeat is one reason why so many lawyers will get so little sleep in the next three days and possibly for weeks to come. Pray that the Supreme Court doesn't get the opportunity to decide the election again.
Massive challenges of voter eligibility will also endanger the legitimacy of this election and call our democracy into question around the world. After the fiasco of 2000, another disputed election could hamper the winner's ability to govern at home and lead abroad. Real fraud, of course, should be publicized and prevented. But concern about fraud can never be an excuse for disenfranchising lawfully registered voters or for encouraging them to walk away from the process.
For the long haul, we must enact uniform federal standards. This is an election for president of the entire nation, not for state treasurer. The system is only as strong as its weakest link. A few states with particularly flawed systems can hold the rest of the country hostage. We need these standards not only for provisional ballots and identification rules, but also for registration, absentee voting (including overseas and military ballots), voting machines and purging voter rolls.
The proliferation of electronic voting systems without verifiable paper trails undermines the public's confidence. Voting equipment, in poor as well as wealthy areas, should minimize the chance for error. As for purges, uniform rules ought to be welcomed by both Republicans, who worry about rolls that carry the names of the ineligible and the dead, and Democrats, who worry that legitimate voters, especially African Americans, are too easily removed from the books.
We also need voting hours that match our lifestyles and work habits. Most of us aren't farmers now, and many farmers hold two jobs. It's silly that most states open the polls primarily during the work day. We either need weekend voting, a practice in some European countries, or we need to keep the polls open for 24 hours.
And then there's the big one: Getting rid of the electoral college and electing the president by popular vote. Honestly, it would solve a lot of problems. Every vote would count equally, whether it's cast in Republican Utah or Democratic Rhode Island. Candidates would have an incentive to campaign outside so-called battleground states. Voters everywhere would have an incentive to cast a ballot. States would have an incentive to increase participation in order to increase their clout.
Yes, if the popular vote got really close, we could face calls to recount the entire country. But how often would that happen? Only one election in the last century 1960 ended with a popular vote margin of less than 500,000. (Even in 2000, Al Gore tallied 540,000 more votes than George Bush.) If the French can manage to elect their president by popular vote, surely we can figure out how to do it.
No, this won't happen anytime soon. But getting our electoral system right is imperative. We ask our men and women in uniform to die to bring free and fair elections to other countries. Surely we can work harder to make our way of voting a model and not risk turning it into a laughingstock.