American Voice 2004: Could the upcoming election end up being decided by the Supreme Court?

Date: 1 Jun 2004 | posted in: From the Desk of David Morris, The Public Good | 0 Facebooktwitterredditmail

Q. I’m worried. I’m seeing more and more stories about ballot box snafus and voter registration lawsuits. Is this election going to be fair? Could it wind up again being decided in the U.S. Supreme Court?


You’re right to be worried. Many are. Several dozen lawsuits have already been filed and decided in the last few weeks before the election. These largely have to do with state rules regarding voter registration and vote counting. For those interested, has a Litigation Update that gives the status of all election-related litigation of the last four years.

One very recent development might have a very significant impact on election-related cases in federal courts. The Bush Administration is arguing that only Attorney General John Ashcroft, not the voters themselves, has the right to sue to enforce voting rights. Justice Department briefs filed in connection with election-related in Florida, Michigan and Ohio argue that the Help America Vote Act expressly gives the Justice Department exclusive power to bring lawsuits to enforce its provisions.[1]

Election law and civil rights experts maintain that this represents a major change in the Justice Department’s approach to voting rights cases. In the past, the department “almost uniformly” argued in favor of the rights of individual voters “to enforce statutes that regulate state and local government,” says Pamela Karlan, a law professor at Stanford University.[2] In 1969, and more recently in 1996, the Justice Department supported and the Supreme Court upheld voters’ right to sue.[3] In the 1969 ruling on the Voting Rights Act of 1965, it was the court’s opinion that “the achievements of the act’s laudable goal would be severely hampered…if each citizen were required to depend solely on litigation instituted at the discretion of the attorney general.”

Depending on what happens November 2nd, it is possible that the U.S. Supreme Court will be the final arbiter on whether Attorney General Ashcroft’s position is correct.

The 2000 election, and the potential for even further voting breakdowns in this election, has elicited unprecedented international interest.

International election observers sent by the human rights group Global Exchange issued a preliminary report on the general elections on October 22.[4] They pointed out problems including: partisan administration of elections, which is not the international norm; private financing of campaigns that give an edge to the wealthy; and disenfranchisement through the complex voter registration process. The 20 observers from 15 countries have spent time in Arizona, Florida, Georgia, Missouri and Ohio, and will be present during voting and vote counting on election day.[5]

The Organization for Security and Cooperation in Europe (OSCE) will be deploying 160 election monitors across the country. The OSCE sees election observation as an opportunity for observers from emerging democracies to learn from elections in long-standing democracies. This is not the first time OSCE has been invited by the State Department to observe our elections.[6] But this is the first time it has accepted the invitation. The organization will issue an initial assessment within days of the election, and a more comprehensive review several weeks later.[7]

Here’s my judgment. A perfect storm is in place that could give our image of this country as a democratic nation a terrific battering. The storm has six elements.

First, the 2000 election was won by razor-thin margins in many states. Bush triumphed in Florida by 537 votes. Gore took New Mexico by 365 votes. Gore’s margin of victory in Iowa was 4200 votes, in Wisconsin 5,000 and in Oregon 7,000. In 11 populous states the margin of victory was less than 50,000 votes.

The 2004 election promises to be equally close. Thus, the time-honored adage is particularly true this time around. Every vote counts.

Second, we have witnessed an unprecedented influx of new voters. In Iowa, for example, 80,795 new voters registered this year, up from a paltry 828 new registrants before the 2000 elections. Florida’s voting rolls have swelled by nearly 1 million since early February of 2004.[8] Curtis Gans of the Center for the Study of the American Electorate predicts a turnout rate of 58-60 percent, or 116-121 million people. This is an increase of 12-15 million people over the 2000 election.[9] If Gans is right, we could have the highest voter turnout since 1968, another year marked by a country polarized by an unpopular overseas war.

Third, many voters will be using new technologies. Some 30 percent of the voting population will be using electronic voting machines this year, triple the number in 2000. (For a full explanation of the issues involved in these technologies see Ask Dr. Dave – Electronic Voting).

In early voting[10] efforts this year, these new touch screen devices are proving unreliable and perhaps open to manipulation. Ominously, there have been instances where a person pressing a box on the screen to vote for one candidate discovers that the machine has added the vote to the other candidate.

Fourth, the nation will be operating under new voting procedures. Because of the problems in the last presidential election, Congress passed the Help America Vote Act (HAVA) in late 2002. Among its many provisions, HAVA requires that poll workers see an ID from new voters who registered by mail and didn’t provide proof of identity.

HAVA also requires all polling places to provide “provisional ballots” to voters whose status is in dispute.[11] Ballots are cast on the spot and counted later if the voter’s eligibility checks out. However, Congress left state and local polling officials a great deal of discretion in deciding how to carry out HAVA’s provisions. This has resulted in, as we shall see, much mischief and more than a dozen lawsuits.

Fifth, there is a shortage of poll workers. Because of the increased complexity and turnout, the Election Assistance Commission, created by HAVA, estimates that the nation’s 200,000 polling places will need 2 million poll workers this year, up from 1.4 million in 2000. But there is a shortage of volunteers. Indeed, the increasing burden and time involved in this volunteer job has led many experienced poll workers to inform election officials they don’t intend to serve this year.[12]

Sixth, there is a great incentive for the political parties to manipulate the voting turnout. Democrats benefit by increasing voter turnout. Republicans benefit by dampening turnout. This last storm element deserves more detailed discussion since it is at the heart of most of the litigation and controversy around the country.

“Beyond a certain increment in turnout, the increase in turnout benefits Kerry,” says Gans. “The Republicans can look to potential increases amongst the 4 million Evangelical fundamentalists…They can look to increases in the military vote and perhaps in the rural vote…Almost every other demographic group that might increase their turnout is likely to help the Democrats. So that if turnout is 112 million, the Republicans are likely to benefit. If turnout is 118 million, the Democrats are likely to benefit.”[13]

The Los Angeles Times reports that Kerry holds double-digit margins for newly registered voters and an even greater lead among voters 29 and younger.[14]

Republicans charge that grass roots organizations favoring Democrats are swelling voter rolls by adding illegitimate names.

This may be a problem in states that allow voter registration workers to be paid by the signature collected rather than by the hour.

Two people in Denver have been charged with filling out multiple voter registration forms. Similar investigations are underway in other Colorado counties.[15] The GOP has filed a complaint alleging as many as 5,600 addresses on the Milwaukee voter rolls do not exist, but the challenges were turned down in a unanimous decision by the county’s bi-partisan election board.[16]

Democrats charge that Republican state officials are using a variety of strategies to reduce voter registration and turnout in Democratic strongholds.

Sometimes the strategies for discouraging potential Democratic voters border on the bizarre.

  • Two temporary employees of Voter Outreach of America in Las Vegas, a Republican party financed effort, claim the company was destroying Democrats’ registration forms. In Oregon, the Secretary of State is investigating similar claims from three of the company’s employees.[17]
  • In Ohio, until late October, Republican Secretary of State J. Kenneth `Blackwell required voter registrations to be “on thick-80-pound-weight paper for handling purposes.” He retreated, but in the meantime some registrations had been returned to would be voters. “This much is certain: Thousands will go to polls Nov. 2 thinking they are registered and find they’re not,” says the Wall Street Journal.[18]
  • In Colorado there is a tight race between Republican Pete Coors and Democrat Attorney General Ken Salazaar. On September 13, Donetta Davidson, Colorado’s Republican Secretary of State, ruled that if a voter goes to the wrong precinct and gets a provisional ballot the state will only count the ballot’s presidential and vice presidential vote, not that for U.S. Senator.[19]
  • Student eligibility has been an issue in Maine, New Hampshire, Texas and Virginia. New Hampshire’s state election web site informs students that if they intend to vote in the state, they are required to re-register their cars in state and obtain a new driver’s license. It warns that health and auto insurance, tax status and scholarships could be affected.[20]

A key issue in the election is the interpretation by states and local poll workers of certain provisions of HAVA.

For example, under the federal law, registration forms have two boxes for voters to check to confirm that they are U.S. citizens and age 18 or older—even though a separate oath that registrants sign on the forms attests to the same facts. According to the League of Women voters, about l0 percent of registrations are coming in without the boxes checked. About half the states accept them anyway and will let voters correct the forms at the polls. The rest reject them. Even within states, policies on this issue vary.

Iowa Attorney General Tom Miller, a Democrat, has ruled that Iowa residents are eligible to vote even if they did not check the citizenship box. He insists, “Common sense tells us that if someone doesn’t check the box, indicating they are a U.S. citizen, but they attest under penalty of perjury on the same form that they are a citizen, the registration should be valid and the person should be allowed to vote.”[21]

A federal judge has ruled in Florida that approximately 10,000 voter registration forms are incomplete and will not be processed. At issue was the requirement that voters check a box indicating that they are U.S. citizens in addition to signing an oath to the same effect.[22]

Another provision of HAVA, as noted above, requires a new voter to have an ID if they gained their registration by mail without proof of identity. Some states have required forms of ID more restrictive than those allowed by the federal law, and have required them of all new voters, not just those who registered by mail.

For example, a 2003 South Dakota law allows signed affidavits as IDs, but voters on or near Indian reservations have testified that local polling officials barred them from a June l primary for not carrying photo ID documents.

HAVA says that voters who mailed in their registration forms without proof of identity need an ID when they come to the polls: either “a current and valid photo identification or…a copy of a current utility bill, bank statement, government check, paycheck or other document that shows the name and address of the voter.”[23] But the Republican Party in many states argues that all new voters need a photo ID. According to John Mark Hansen, a University of Chicago scholar who researched voter IDs for the 2001 Presidential Election Commission, roughly 5 percent of all Americans lack a photo ID.[24]

South Carolina’s election workers manual, authorized by the state elections commission, which is chaired by a Republican, seems to contradict HAVA by requiring, “If a person presents himself…without a valid [photo ID or registration certificate]…he/she should not be allowed to vote.” Colorado’s chief election officer, also a Republican, says new voter registration forms “require” for identification a driver’s license or state issued ID. In South Carolina’s coastal Georgetown County, the list of acceptable IDs excludes entitlement cards like social security and Medicare.

Some states have provisions that allow third parties to challenge voters’ eligibility before the election or at the polls. Republicans have already brought challenges against 35,000 voter registrations in Ohio.[25] Hearings were scheduled in 65 of Ohio’s 88 counties, but on October 27 a federal judge blocked boards of election in six counties, including the two with the most challenges, from proceeding. The following day, Ohio Secretary of State Blackwell instructed the state’s attorney general to recommend that challengers be excluded from polling places. The attorney general refused.[26]

Ohio Republicans say that challenging is an important way of preventing voter fraud, and point out that even successfully challenged voters have the opportunity to cast provisional ballots. Democrats say that large numbers of challenges will create confusion and delay at the polls, and the laws on how to count provisional ballots are unclear.[27]

Early on November 1, U.S. District Judge Susan Dlott ruled that Ohio’s practice of allowing challengers in voting places could intimidate voters, and is unnecessary because other procedures exist to prevent fraud. “Voter intimidation severely burdens the right to vote, and prevention of such intimidation is a compelling state interest,” wrote Judge Dlott.[28] In a similar case, U.S. District Judge John Adams of Akron ruled that “significant harm will result not only to voters, but also the voting process itself, if appointed challengers are permitted at the polls.”[29] Judge Dickenson R. Debevoise of the Federal District Court in Newark ruled that the settlement in a1982 case, in which the Republican National Committee was ordered not to use so-called ballot security measures to frustrate minority efforts to vote, was national in scope and still in effect.

These two lower court rulings were overturned by the 6th Circuit Court of Appeals before polls opened on November 2nd, election day. In a 2-1 decision, the majority ruled that the on balance, the public interest in “smooth and effective administration of voting laws…mitigates against changing the rules in the hours immediately proceeding the election.” Justice John Paul Stevens of the U.S. Supreme Court rejected a request to delay enforcement of the 6th Circuit Court’s decision.

Republicans were able to put 3,500 challengers in Ohio polling places. Democrats also sent about 2,000 monitors to the polls, but not to challenge voters. Republicans said they plan to challenges 10,000 voters in a predominantly black area of Philadelphia, at least 1,700 voters in Florida, and held out the possibility of challenging voters in New Mexico.

Another issue is the interpretation of HAVA regarding provisional ballots. Remember, provisional ballots, according to the federal law, must be given to anyone who is in a disputed voting situation. These include voters who may have been improperly purged from the rolls, or those who registered under a slightly different name, or who failed to fill out their registration forms completely.

No one can predict how many provisional ballots will be cast this year. But in Los Angeles County, which has allowed them for years, about 100,000 were cast in 2000. In Ohio, where Republicans have challenged some 35,000 new voters’ eligibility to cast votes, the number of provisional ballots cast could be quite high. In 2000, about 100,000 Ohio voters cast provisional ballots, and 91 percent were held valid.[30] In Florida, 2,000 provisional ballots were cast in the 2004 primaries, and 60 percent were held valid.[31]

HAVA is silent on how to handle provisional ballots. What happens if the person winds up in the wrong precinct? He or she must be given a provisional ballot. But will it be counted? This is a key question because post-census redistricting has thrown many voters into polling places different from the ones in which they have voted for years. Many new voters, especially the young and low-income renters who move very often, may be confused as to where they vote. And many cash strapped counties haven’t mailed notices of changes.

Many states, including Florida, do not yet have rules on the steps election judges should take to determine whether a voter is eligible.[32]

Ohio’s Republican Secretary of State, J. Kenneth Blackwell ruled that Ohioans could get provisional ballots only at their correct precinct. The federal Department of Justice filed a brief in support of Blackwell.[33] His ruling was upheld on appeal in the 6th Circuit U.S. Court of Appeals.[34] Similar cases in Michigan and Florida had the same outcome.

About half the states say they won’t count provisional ballots cast in the wrong precinct, even if they turn out to be registered voters. These include Iowa, Michigan, Florida, Nevada, West Virginia and Missouri, according to

Examination and reconciliation of provisional ballots is a time-consuming process. States vary in the amount of time they allow to count provisional ballots. Florida allows only 2 days after the election, while Colorado allows 12 days. In Ohio, state law prevents counting provisional ballots for 11 days after the election. Thus there is the strong possibility the outcome of the presidential election will not be known on November 3rd.

And finally, there are the issues of the absentee ballots. In Florida, U.S. Postal Service investigators are searching for 58,000 absentee ballots that should have been delivered to voters in Broward County. They have not yet confirmed that the ballots were delivered to the postal service. Voters who do not receive their absentee ballot can go to an early voting site, where poll workers can confirm that they have not already sent in their ballot. On election day, however, people who registered to receive an absentee ballot cannot vote unless they have the blank ballot.[35]

The Broward County elections supervisor estimated she would resend no more than 20,000 ballots, by overnight mail to people residing outside the country. But about 76,000 ballots sent out by the county have not yet been returned.[36]

Here’s what the Wall Street Journal say is highly likely, “Untold thousands of newly registered voters will learn when they arrive at the polls that because of new anti-fraud mandates they aren’t properly registered. Even if they are, they may be asked to present photo identification for the first time.”[37]

The orientation of the legal volunteers for the two parties indicates party focus. The Democratic Party will have about 3,000 volunteer lawyers working to assist voters in traditionally Democratic precincts.[38] The Republican Party will have about 3,600 lawyers challenging potential voters in traditionally Democratic precincts.

[1] L.A. Times, October 29, 2004. The Justice Department will send 1,100 federal workers to monitor and observe the election in 25 states. About 840 federal observers and more than 250 workers from the department’s civil rights office will monitor the election in 86 jurisdictions in 25 states, including 27 jurisdictions covered by federal court orders. U.S. Department of Justice, October 28, 2004.

[2] Ibid.

[3] See Allen v. State Board of Elections, 393 U.S. 544 (1969) and Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)

[6] U.S. Department of State, Testimony Before the Congressional Helsinki Commission, September 15, 2004.

[7] New York Times, October 10, 2004.

[8] Daily News (New York). October 26, 2004.

[9] Washington Post, October 25, 2004.

[10] 23 states allow for early voting.

[11] This provision was added because some voters in 2000 who were improperly purged from the registration rolls were not allowed to vote, even though they were eligible and had registered.

[12] Wall Street Journal. October 5, 2004.

[13] Washington Post. October 25, 2004.

[14] Los Angeles Times. October 24, 2004.

[15] Associated Press, October 28, 2004.

[16] Associated Press, October 28, 2004; Washington Post, October 29, 2004.

[17] L.A. Times, October 27, 2004.

[18] Wall Street Journal, October 5, 2004.

[19] The League of Women Voters points out that other states, including New Mexico, North Carolina, and Pennsylvania, more commonsensically allow out-of-precinct provisional ballots to be counted for national contests but not for local races in which the voter is ineligible to vote, such as a local school board

[20] Washington Post, October 27, 2004.

[21] Demos, October 26, 2004.

[22] New York Times, October 27, 2004.

[24] The New Republic, November 1, 2004

[25] New York Times, October 28, 2004.

[26] Associated Press, November 1, 2004.

[27] New York Times, October 28, 2004.

[28] Associated Press, November 1, 2004.

[29] Washington Post, November 1, 2004.

[30] Adam Liptak, “Expect Bush v. Kerry, the Chadless Sequel,” New York Times, October 27, 2004.

[31] Ibid.

[32] Jo Becker and Thomas B. Edsall, “Legal Battle Over Ballots Put Election Rules in Flux,” Washington Post, October 27, 2004.

[33] L.A. Times, October 29, 2004.

[34] Washington Post, October 24, 2004.

[35] Reuters, October 27, 2004.

[36] Washington Post, October 28, 2004.

[37] Wall Street Journal. October 5, 2004.

[38] Florida Sun-Sentinel, October 28, 2004.

David Morris
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David Morris

David Morris is co-founder of the Institute for Local Self-Reliance and currently ILSR's distinguished fellow. His five non-fiction books range from an analysis of Chilean development to the future of electric power to the transformation of cities and neighborhoods.  For 14 years he was a regular columnist for the Saint Paul Pioneer Press. His essays on public policy have appeared in the New York TimesWall Street Journal, Washington PostSalonAlternetCommon Dreams, and the Huffington Post.