We used to think the voting system was something like the traffic laws — a set of rules clear to everyone, enforced everywhere, with penalties for transgressions; we used to think, in other words, that we had a national election system. How wrong a notion this was has become painfully apparent since 2000: As it turns out, except for a rudimentary federal framework (which determines the voting age, channels money to states and counties, and enforces protections for minorities and the disabled), U.S. elections are shaped by a dizzying mélange of inconsistently enforced laws, conflicting court rulings, local traditions, various technology choices, and partisan trickery. In some places voters still fill in paper ballots or pull the levers of vintage machines; elsewhere, they touch screens or tap keys, with or without paper trails. Some states encourage voter registration; others go out of their way to limit it. Some allow prisoners to vote; others permanently bar ex-felons, no matter how long they’ve stayed clean. Who can vote, where people cast ballots, and how and whether their votes are counted all depends, to a large extent, on policies set in place by secretaries of state and county elections supervisors—officials who can be as partisan, as dubiously qualified, and as nakedly ambitious as people anywhere else in politics. Here is a list—partial, but emblematic—of American democracy’s more glaring weak spots.
#1 The New Poll Tax
In 2005, Georgia state legislators passed a bill requiring voters to present either a driver’s license or a state-issued photo ID that costs between $20 and $35 and is available only from Department of Motor Vehicles offices. Supporters claimed this was necessary to keep people from casting votes in someone else’s name, even though Georgia secretary of state Cathy Cox noted that her office had no evidence of this happening. Either way, the measure is likely to have a dramatic effect on who can vote. Two-thirds of the state’s counties don’t even have a DMV office; Atlanta, the state’s largest city, has just one, where waits at the ID counters often run to several hours. In late June, the secretary of state issued a report finding that more than half a million active-status, registered voters in Georgia don’t have valid photo IDs. Fully 17.3 percent of African American voters, and one-third of black voters over age 65, wouldn’t be able to cast a ballot under the law. When the federal Department of Justice had five experts examine the ID legislation in 2005, four of them objected to it, as the Washington Post discovered. But higher-ups at Justice overruled them and the measure (pushed by conservative think tanks such as the American Center for Voting Rights) went on the books. In October of last year a judge blocked its implementation, and the law — along with another version that offers free voter IDs — remains in limbo as appeals continue.
At least two other states, Wisconsin and Missouri, have passed similar ID legislation. (Wisconsin’s governor has since vetoed it.) University of Wisconsin-Milwaukee professor John Pawasarat has found that fewer than a quarter of 18-to-24-year-old black men in that state have valid driver’s licenses, the most common state-issued ID. In Indiana, a new law requires valid IDs to bear an expiration date, ruling out Veterans Affairs cards, among others.
“In my view it’s an orchestrated vote-suppression strategy by less scrupulous strategists in the Republican Party,” says Dan Tokaji, associate director of election law at Ohio State University’s Moritz College of Law. “It’s pretty clear to me that these are disenfranchisement strategies. I try not to use that word too often, but in this case it fits.”
Runner-up: Arizona voters in 2004 passed Proposition 200, which requires “proof of citizenship” when a person registers to vote. There’s no evidence that noncitizens had been flocking to the polls, but the measure is bad news for Native Americans, the poor, and the elderly, who often don’t have the requisite documents. Driver’s licenses issued prior to 1996 don’t count — a not-insignificant fact, given that Arizona licenses are valid until a person turns 65. Officials say that 14,000 voter registrations in Phoenix and environs have already been rejected because of the law.
#2 Machine Meltdowns
Beaufort, North Carolina; Fort Worth, Texas; Philadelphia, Pennsylvania (tie)
In 2004, a touch-screen voting machine in Beaufort, North Carolina, erased 4,439 ballots cast during early voting two weeks before Election Day; they were never recovered. A similar problem in Burke County, North Carolina, resulted in several thousand votes for president not being counted. And, according to the San Francisco-based Electronic Frontier Foundation, a voting machine in Ohio managed to add 4,000 extra votes for Bush. But those episodes, voting experts say, are just a preview of balloting debacles to come: The federal Help America Vote Act requires most counties to replace punch-card or lever machines with newer technology by the end of this year, and election officials are scrambling to meet the deadline. Already during this spring’s primaries, reports of trouble multiplied: Initial results in Fort Worth, Texas, showed 150,000 votes being tabulated in a county where only about 50,000 people voted. In Pottawattamie County, Iowa, machines suddenly began counting some candidates’ votes backward. In Philadelphia, more than 5 percent of voting machines broke down on primary day.
The most sensational claims about voting technology have to do with the possibility of actually programming the machines to manipulate elections; computer scientists have warned that viruses could, for example, be inserted into vote-counting programs to delete a set number of votes and then erase themselves. So far no smoking guns have been found to prove such vote-fixing. But there have been myriad well-documented instances of human error and machine failures, and of extreme reluctance on the part of machine manufacturers to make their software accessible to outside experts. “Elections in this country are becoming proprietary,” explains Lillie Coney, coordinator of the D.C.-based National Committee for Voting Integrity. “Vendors are saying, ‘You can’t investigate our technology, or our software.’ They’ve put the technology in place, but the mechanisms for public officials to manage the technology, they’re just not there.”
When Ion Sancho, the elections supervisor in Leon County, Florida, discovered last year that Diebold’s machines could easily be tinkered with, the company responded by refusing to service or upgrade the county’s voting equipment so long as Sancho remained in charge. Since then, researchers in Florida and California have discovered more problems with Diebold technology, finding that the machines could accidentally allow one person to cast multiple votes, could be tricked into terminating an election count before all the votes had been tallied, and could permit changes to election results without detection.
Even some of the “paper trail” systems for electronic voting are deeply flawed. On some machines, logs have been designed so badly that auditors are at risk of counting “tentative” votes instead of the voters’ final choices; on others, a voter wanting to check whether her choice has registered must lift an inconspicuous door and then peer, through a plastic screen, at a tiny printout, with the actual vote often not even scrolling into view.
#3 Line Forms Here
Franklin County, Ohio
Like many states, Ohio theoretically requires equal treatment of voters in all parts of the state; in practice, it frequently ignores its own requirements, especially in urban, predominantly Democratic, neighborhoods. In Franklin County, for example, more than 2,500 voters in the city of Columbus found themselves crammed into a single precinct in 2004, even though the state’s guidelines call for no more than 1,400—apparently because officials assumed that in a poor neighborhood, turnout would be low. The state only partially reimburses counties for buying electronic voting machines, so Franklin, like many poor counties, didn’t have enough machines on hand to start with. When record numbers of voters showed up, massive lines snaked toward the handful of machines. The Lawyers’ Committee for Civil Rights Under Law has sued Ohio; among the complainants was an elderly woman with arthritis who had to leave because no one could find a place for her to sit.
Runners-up: New Orleans and St. Louis have long been plagued by long lines in poor neighborhoods; in 2000, so many polling places failed to open on time in St. Louis that a judge ordered the polls be kept open late, a ruling that Republicans battled to the last minute. In Broward County, Florida, waits stretched to four hours even during early voting in 2004; on Election Day at least one polling station didn’t open until the early afternoon, and poll workers frantically calling the county elections office got nothing but busy signals.
Cuyahoga County, Ohio
Dominated by the city of Cleveland and its Democratic machine, Cuyahoga County has a stunning history of poll-worker incompetence and technology failures, resulting in de facto disenfranchisement on a massive scale. In primary elections this spring, so many poll workers failed to show up for work that numerous polling places opened more than an hour late, some because they didn’t have extension cords or three-prong adapters. Once voting began, it was promptly undermined by a shortage of voting machines, confusion over precinct voter lists, and paper jams that poll workers did not know how to fix (some asked random voters to repair the machines). Though only 20 percent of registered voters turned out for the primary, it took more than a week to count their votes. Around the nation, says Brenda Wright, managing attorney at the Boston-based National Voting Rights Institute, election administration is massively underfunded, with poll workers paid mere pittances, trained only marginally, and overseen bystate officials who don’t provide “any meaningful check on recurrent problems at the local level.”
#5 Foul Play
Intimidation, deception, and assorted trickery have long been staples of American elections, practiced with equal aplomb by both parties and by operatives working with (or without) a nod and a wink from party leaders. In Milwaukee, Wisconsin, in 2004, fliers from the nonexistent Milwaukee Black Voters League were distributed in black neighborhoods, warning residents that “if anyone in your family has ever been found guilty of anything, even a traffic violation, you can’t vote in the presidential election,” and that “if you violate any of these laws you can get ten years in prison and your children will get taken away from you.”
Meanwhile, in (again) Franklin County, Ohio, fliers purporting to be from the county Board of Elections announced that because of high voter registration, Republicans would be voting on Election Day, and Democrats would cast their ballots the next day; they ended with the inspired line, “Thank you for your cooperation, and remember voting is a privilege.” In the same county, a group of out-of-state Republicans known as the Mighty Texas Strike Force made phone calls from a hotel warning ex-prisoners that they could be returned to the slammer if they dared to vote, and reportedly telling other voters that their polling places had changed. Congressional investigators later discovered that the Ohio Republican Party had paid the Strike Force’s hotel bills.
The dirtiest-trick award, however, goes to New Hampshire, where the state Republican Party — its executive director, a veteran, working on the military principle of disrupting “enemy communications” — hired a Virginia-based company named gop Marketplace to jam the Democrats’ phone bank system during the 2002 U.S. Senate election. Republican John Sununu won the close contest; three men are serving prison terms as a result of the endeavor, and a fourth is under indictment, with evidence still surfacing that the action may have been approved by senior party officials in Washington.
Travis County, Texas
In recent elections, 95 percent of members of the U.S. House of Representatives have been reelected; the vast majority ran in districts drawn to be entirely noncompetitive in the general election. In these districts, registered Republicans or Democrats may have a say in the primaries, but everyone else’s vote is for all intents and purposes meaningless.
Gerrymandering got a major boost with the advent of redistricting software in 1991. The new algorithms were first used to boost the chances of black and Latino candidates; soon, both parties realized that you didn’t need the fig leaf of minority representation, and they began slicing and dicing districts at will. In Texas, Travis County, which includes Austin, has long dominated a congressional district that reliably sent a Democrat to Washington. But in 2003, the Texas Legislature snipped off various chunks of Travis and attached them to a series of jagged-edged districts snaking north-south and east-west through strongly Republican areas outside the county. This, and a series of other creatively shaped districts in Texas, would be the ultimate legacy of Tom DeLay, who in 2002 launched a push to create a Republican majority in the Statehouse that would redraw the state’s electoral map and thus cement the GOP’s hold on Washington. Last June, the U.S. Supreme Court ruled that this was constitutional, even though Travis and other areas were carved up “with the sole purpose of achieving a Republican congressional majority.”
At the state level, the redistricting game has also taken the uncertainty out of politics in many places. The New York Public Interest Research Group estimates that only 11 percent of New York’s 212 legislative districts are competitive, and that 27 of the state’s 62 Senate districts have been engineered to create Democratic advantages of at least 40,000 votes per district. Similarly, researchers at Claremont McKenna College in Pomona, California, have found virtually 100 percent of California legislative districts to be noncompetitive thanks to gerrymandering, and The Economist estimates that November’s election outcome is uncertain in only one of the state’s 53 congressional districts. Redistricting has produced crazy-looking, swirling districts whose shapes make sense only under an increasingly complex political calculus. In one notorious instance, in 2001, then-Senate leader John Burton, a Democrat, went out of his way to have a specific dis-trict’s boundaries redrawn to weaken the election prospects of Fred Keeley, a Democrat from Santa Cruz whom Burton viewed as a troublemaker and who had announced interest in the Senate seat. The Senate district, which previously included all of Santa Cruz County, migrated north, extending a thin southward finger through the city of Santa Cruz. So effective was the maneuver, Keeley didn’t even bother to run.
#7 No Felons Allowed
Since the 2000 election, when the state of Florida disenfranchised thousands of people by falsely tagging them as felons, half a dozen states have gotten rid of laws permanently barring felons from voting, but felon bans still affect more than 5 million Americans. In Florida, close to 1 million people, or about 9 percent of adult citizens, cannot vote because they have felony records. In 2000 and 2004 the state went to the trouble of hiring private companies to “scrub” the rolls of suspected felons who had registered to vote; both times, it became apparent that because of shoddy database criteria the companies were flagging many people who either weren’t felons or had had their voting rights restored.
But perhaps the nation’s most scandalous disenfranchisement law is found in Mississippi, which in the early days of Jim Crow crafted its felon codes with the specific intent of disenfranchising only those convicted of “black crimes.” In the Delta, about a quarter of African American men are for all practical purposes disenfranchised, and even more assume that they are: Though not everyone convicted of a felony is automatically barred from voting — in fact, people convicted of drug felonies retain their voting rights — corrections and election officials have made no effort to get that information out. One ex-con in Jackson told me that she knew people who were terrified of voting because they had become convinced that any interaction with authority would put them at risk of losing their welfare payments.
What’s more, to get re-enfranchised in Mississippi, a felon has to persuade his state senator or representative to author a bill personally re-enfranchising him, has to get the bill approved by both houses, and then has to get the governor to sign it. In reviewing records from January 2001 to December 2004, I could identify just 52 people — in a state with more than 25,000 prisoners, 2,100 parolees, and 21,000 men and women on probation — who had managed to get their voting rights restored.
#8 Voting While Black
Charleston, South Carolina
Though the Voting Rights Act ended many race-based practices, local politicians continue to come up with creative methods to maximize white clout. A favorite is at-large voting, which dilutes minority votes. In Charleston, South Carolina, 38 of the 41 people elected to the county council between 1970 (when the county switched from district-based voting to at-large) and 2004 were white. A lawsuit from the federal government finally ended at-large voting for council seats in 2004. But Charleston still has at-large voting for school board members; in the 1990s, several black candidates nonetheless managed to get elected when the white vote split among a number of candidates. In response, a conservative state senator named Arthur Ravenel Jr., who’d made a name for himself by defending public display of the Confederate flag and mocking his opponents as the “National Association of Retarded People,” pushed through legislation that made the school board election partisan, thus introducing a primary process that ensured a one-on-one fight in the final round. The number of blacks on the nine-member school board went from five in 2000 to one today.
Runner-up: The town of Martin, South Dakota, is sandwiched between two Lakota Sioux reservations; its City Council district map, which according to an aclu lawsuit was drawn specifically to ensure a white majority, was found unconstitutional earlier this year. Voting-rights monitors also allege that voter-registration personnel in South Dakota sometimes “forget” to give registration cards to Native Americans, and that sheriffs harass reservation residents coming into town (often across enormous distances) to vote.
#9 Suspect Students
Waller County, Texas
Prairie View A&M is a black school in the heart of east Texas, where the local leadership has, over many decades, worked to deny the students’ claims to being full-time county residents and thus eligible to vote. In 2003, Waller County district attorney Oliver Kitzman wrote a letter to the elections administrator and the local newspaper warning that any students who tried to vote could face 10 years in prison and a $10,000 fine. The NAACP filed suit, noting that as far back as 1979 the U.S. Supreme Court, ruling on a lawsuit brought by Prairie View students, held that students could register to vote in the communities in which they attended college. Students in Arkansas, Florida, Maine, New Hampshire, and Virginia have also been prevented or discouraged from registering; in Williamsburg, Virginia, William and Mary students were denied permission to register merely for acknowledging that they were going home on vacation.
#10 Failing to Register
Voter registration forms are easily lost. In 2004, for example, headlines focused on a Republican National Committee contractor named Sproul & Associates, which subcontracted with a company called Voters Outreach of America that, in Las Vegas, was found destroying forms filled out by people trying to register as Democrats. Incidents like this would seem to justify a new Florida law that imposes fines of $250 to $500 per form on anyone who registers voters and doesn’t immediately deliver the paperwork to election officials, with no exceptions for difficult circumstances or natural disasters. But since it was already illegal in Florida to deliberately delay handing in voter registration forms, and since the new legislation does not apply to the two main political parties, its only likely effect is to intimidate independent voter-registration organizations; the largest among them, the League of Women Voters, has stopped doing voter registration in the state altogether.
#11 Politicos in Charge
Election activists don’t have Florida’s Katherine Harris to kick around anymore, but in a system where most states’ top election officials are also politicians, there’s no shortage of other nominees for worst secretary of state. The current leading candidate must be Ohio’s Ken Blackwell, now a Republican candidate for governor, who seems intent on making sure as few Ohioans as possible are registered to vote. In 2004 Blackwell achieved national notoriety when he announced that his office would accept only voter-registration forms printed on paper of at least 80-pound weight. Blackwell had to back off that requirement, but a slew of other restrictions remain, including one under which door-to-door registration workers must sign in with county officials, and another requiring them to personally mail in the registration forms they collect. “The constant promulgation of rules and regulations keeps members of the Board of Elections jumping around like cats on a hot tin roof,” says Chris Link, executive director of the Ohio ACLU. “And this essentially hurts Democrats. Who is newly registering? People who’ve just become citizens, young people who’ve just gotten the right to vote.” Meanwhile, Blackwell’s office has done nothing to inform voters that come Election Day this year, they will have to bring photo IDs to the polls — guaranteeing that tens of thousands of mostly Democratic voters will be turned away.