Legal Fights, Policy Debates Deepen Over Voting Problems and Solutions

With one week to go before the 2008 presidential election, the differences between the political left and right over what is wrong in American elections – and the solutions for Election Day – may be at their most stark and divisive in decades.

On the political right, led by Republican officials and officeholders, is an ever-increasing drumbeat that illegal voters are poised to steal the election. This claim is not hyperbole, but the opening line of a new radio ad by the Ohio Republican Party that began airing Tuesday. Meanwhile, in Lake County, Illinois, a Chicago suburb, the Illinois Republican Party is suing to force all voter registration forms turned in by a low income advocacy group – not ACORN – to be separated, flagged and treated as a second-class of ballots that would have to be validated after Election Day before being counted.

The legal action comes after Lake County Clerk, Willard Helander, a Republican, said that she had received about 1,000 questionable voter registrations from this group, in a county with 400,000 registered voters. Nevermind that the number of voter registrations in question, at least when Helander was interviewed two weeks ago, was .25 percent of her county’s total voters, or as Stephen Weir, President of the California Association of Clerks and Elected Officials, said in a recent e-mail, for registration drives the “rough rule of thumb, (is) 44 percent are new registrants, the others are change of name, change of party, change of address, and some are just duplicates.”

The point is that Republicans, first and foremost, see an American electorate that is more interested in voting than at any time since the civil rights era of the 1960s, and instead of embracing those voters, their response has been to demonize the citizenry, vilify voter registration groups, and go to court to create bureaucratic obstacles to block a free and fair vote.

On the center-left, led by voting rights groups whose philosophical roots are in the civil rights movement, are lawyers and voting rights activists who believe that the historic promise of American democracy is based on expanding the right to vote and engaging Americans in elections. Their priority is to ensure the widest possible voter turnout, especially among new voters. This places them at philosophical odds with today’s Republicans — who are not exactly emulating the party of Lincoln.

These modern civil rights groups have been fighting — and winning — most court battles with the GOP in recent weeks over who can vote and which ballots will count. But there are new concerns in recent days that have overtaken their attention. Groups such as the NAACP, Advancement Project, Voter Action, Demos, and others now believe some swing states are not prepared to accommodate a big turnout on Election Day. Moreover, when scrutinizing plans — such as voting machine and poll worker assignments and new voter registration data — they see many instances of white communities receiving a disproportionate share of resources when compared to minorities.

In Pennsylvania, this conflict is seen in litigation filed this week against that state’s Democratic secretary of state for a failure to provide back-up paper ballots if voting machines fail. On a more local level — because county officials run elections — are machine allocations may have drastically underestimated minority precincts.

The NAACP this week sued the state of Virginia, which has a Democratic governor, urging election officials reallocate voting machines and poll workers. Here is how a Washington Post op-ed by Christopher Edley, Jr., Dean of the U.C. Berkeley Law School, summed up the voting rights community’s philosophy and the current situation on the ground, which was extensively documented by the Advancement Project:

Suppose in your neighborhood there are 600 registered voters per machine, while across town there are only 120 per machine. (That’s a 5 to 1 disparity, which is what exists in some places in Virginia today.) On Election Day, your line wraps around the block and looks to be a four-hour wait, while in other areas lines are nonexistent.

This ought to be a crime. It amounts to a "time-tax" on your right to vote, and some of your neighbors will undoubtedly give up and go home. This scenario raises three questions: Nationwide, will it discourage tens of thousands, or untold millions? Which presidential candidate and down-ballot candidates might benefit from this "tax"? And what can be done in the next few days?

These voting rights advocates are at odds not just with the GOP in courtroom battles in swing states, but also with election officials, some of who are Democrats. But there is yet another slice of the political spectrum that has its own views about what is wrong with American elections. This is a segment of the activist left, which almost exclusively focuses on the problems associated with computerized voting machinery.

As early voting has begun across the country, there has been a rising tide of reports about voting machine failures and corresponding cries of alarm aimed at the election officials, the mainstream media and the Democratic Party for not taking these problems seriously — because voting machine failures mean an inability to accurately record and count votes. Two websites that have chronicled the machine failures are VotersUnite.org, which has a daily digest of news reports, and Bradblog.com, which increasingly predicts a massive meltdown will occur on November 4.

There are several real questions with the electronic voting problems. The first concerns magnitude or scale: how many votes will be affected. A news account of a vote jumping between candidates only tells of one or two voters, but if that machine stays in use it could affect hundreds. The second concern is whether public officials — or the private contractors they hire to run the voting machines — are able to fix the problems before Election Day, when turnout will spike. Finally, the machine-related problems that have surfaced thus far have not involved counting the vote, only recording it. Thus, a larger and more significant test of these machines is yet to come.

As John Gideon, the editor of VotersUnite’s Daily Voting News wrote in his October 28th report, the Election Day prognosis is not good:

This morning is the revelation that some Georgia polling places have had lines with as long as 8 hours waiting time due to their voter registration data base being slow. The state claims that the problem is the turnout but that explanation does not make sense in the real world. The number of poll site computers feeding into the central data base computer dictates how fast that system is; not the number of voters. On Election Day there will be many, many more poll site computers all feeding into the central computer at the same time. Things will probably get much, much slower and lines will grow longer.

The key question is what can be done in the next few days to prevent a meltdown on Election Day. In some cases, the answers — or obstacles — will follow partisan lines, most notably where the GOP is still seeking to litigate, such as in Lake County, Illinois, or in Ohio where the White House has even asked the Justice Department to intervene on the behalf of the Ohio Republican Party. In other cases, the question of what positive steps can be taken may be more one of political will than available answers.

On Tuesday, though some legal questions remain, Florida’s Republican Governor, Charlie Crist — perhaps the most progressive national figure in his party on voting issues — ordered early voting hours be extended to accommodate voters. In Georgia, another GOP state, more early voting centers opened, despite a computer crash that delayed voting for hours.

These responses underscore that there is still time left for some common sense solutions in battleground states like Virginia and Pennsylvania. However, it is notable that those two states do not have early voting. That means that the mistakes and problems that have emerged in early voting in 34 other states — which theoretically can be addressed by Election Day — will not surface in these two states until next Tuesday.

“This is new territory and remedies must be pushed through Election Day,” said Eddie Hailes, an Advancement Project Senior Attorney, speaking of the need for proactive steps in those two states. “We have more voter advocates and resources than ever before to push for creative, meaningful alternatives to disenfranchising people who are unable to stand in long lines while others in different zip codes breeze through their voting experiences.

“Election officials can permit voters in DRE (paperless voting machine) jurisdictions to opt for paper ballots if they are in lines for longer than 45 minutes, provide additional ballots with clip boards for voters who don’t demand privacy booths, and convert demonstration machines into machines that are available to all voters on Election Day.”

No matter what happens between now and Election Day, voting and voting issues are now before the American public with a depth that has not been seen in decades. The lines that are being drawn by partisans will not go away after Election Day. Whatever unfolds between now and next Tuesday will frame upcoming battles in Congress and in state legislatures starting next January.

Yet beneath all the partisan fury and legal and technical details are a few basic questions that frame the conflicting viewpoints: are new voters being welcomed or rejected; what more do election officials need to do to accommodate voters; and can the technology be trusted to accurately record and count votes.

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