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Professor Jon Gould
George Mason University
JURIST Guest Columnist

Two years ago many of us were glued to our television sets watching the train wreck of the presidential recount play out in Florida. Since that time we have come to learn that Florida was not an anomaly - it was simply the first state to have its flaws exposed. Several other states have been sitting on similar problems that just as easily could have exploded across the headlines.

The aftermath of the 2000 vote has drawn considerable and much needed attention to election reform. In 2001, for example, The Century Foundation organized a National Commission on Federal Election Reform and funded four studies to assess the state of election administration nationwide. I was fortunate to participate in this process and wrote one of the reports. What we found should give all of us pause. Although a number of states have made significant progress, too many jurisdictions continue to use outdated voting machines that miscount ballots; several localities lack the funds to educate potential voters or serve the special needs of non-English speakers or disabled voters; and the entire process is administered on election day by poorly paid and inadequately trained poll workers. It is no wonder that a recent New York Times story found 殿 widespread sense of vulnerability among elections officials about the exactness of their voting systems.

Other researchers have identified similar problems. A joint study between Cal Tech and MIT found that two percent of the ballots for president in 2000 went uncounted. Even subtracting those voters who presumably did not intend to vote for a candidate, voting machines failed to count 1.5 percent of the people who thought they had voted for president.

This is small-fry, you say. Elections rarely turn on such minimal differences, right? Wrong. In 2000, eleven House races and four Senate contests were decided by two percent of the vote or less, sufficient numbers to have changed control of Congress if counting errors were as extensive as some of the research suggests. Moreover, problems in voter registration have turned away additional voters. According to the research organization Demos, 25 states had inaccurate or purged voter lists in 2000 that prevented voters from casting ballots. Indeed almost 3 million voters told Census workers in 2000 that they failed to vote because of difficulties they experienced in registering.

These are far from insignificant problems. Under the U.S. Constitution voting is a fundamental right, perhaps the most basic right in a democracy. When it is so threatened we should expect swift action.

Unfortunately, the political process has been slow to respond. In an agonizing game of political "chicken," Democrats and Republicans finally agreed this fall on a bill to reform election administration, which President Bush just signed into law on October 29th. The legislation is a promising start, although it comes too late to affect the 2002 elections. The measure encourages states to replace outdated voting machines and requires new mechanisms that will permit individuals to check their ballots and correct any erroneous marks before voting. The statute also provides for uniform, centralized and computerized state voter registration databases; it calls for provisional voting and alternative language access; and it requires states to define lawful votes for each type of voting machine used in their jurisdictions. Most significantly, the legislation provides funds to states to replace old voting machines, improve access for disabled voters, educate voters, or train election workers. The priorities are up to each state.

Many people both in and outside of Congress have worked hard to pass this legislation, and they have done so with fine intentions. But the bill is not a panacea, nor will it bring needed change immediately. In fact, contrary to its intentions, the measure may never truly reform election administration. Under the legislation, states are guaranteed at least $5 million to improve their election processes, the funds rising in proportion to a state痴 voting age population. Yet these amounts will not be nearly enough to replace outdated machines, let alone help states to train poll workers or educate voters. New York, for example, stands to reap $60 million in new federal funding, but officials there estimate it will cost $140-160 million just to update their voting machines. Where will the difference come from? In my own state of Virginia the governor just slashed agency spending by up to 15 percent, and many other states are struggling with financial crises that surely will prioritize other state functions over election reform. Without additional federal support, the bill is in danger of becoming an underfunded federal mandate.

The legislation also risks 斗ocking in states to voting technologies currently on the market. Although the statute authorizes $10 million to test new voting systems and equipment, the money to buy new machines is available now. If we ever hope to test Internet voting or improve existing technologies, Congress will have to appropriate these funds again. For that matter, the legislation reflects a tendency to favor new machines over voter education and better training for poll workers. Surely, improved machinery is important, but as the National Commission on Federal Election Reform has noted, many election administrators report 鍍hey can get more improvements, dollar for dollar, from voter education and poll worker training than they can from investments in new equipment. Just as enhanced political knowledge raises voter turnout, better voter education may draw additional first-time voters to the process and encourage them to remain engaged. It is surprising that the bill did not emphasize these priorities.

The new legislation has been criticized on other grounds, most particularly from House Democrats who fear it may dampen minority turnout. Since the bill requires first-time voters to show identification at the polls if they registered by mail, some among the Congressional Hispanic Caucus voted against the legislation for including a 電iscriminatory obstacle to voting. Here the effects are more speculative. Certainly, some voters may rebel at measures that appear to question their legitimacy, but a number of states have instituted similar measures without driving down minority turnout. This issue deserves to be followed.

In the end, the federal legislation is a good start, and Congress deserves credit for stepping up to the plate to address election reform. But by itself the new law is not enough truly to reform America痴 electoral practices. Additional resources are needed, as is specific attention to the greater, human problems of elections poorly informed voters and inadequately trained poll workers. Most of all, though, the issue will require continuing public attention to ensure that reform does not wane. The 2000 presidential recount may have galvanized our interest, but it was only one symptom of a much larger ill that must be cured.

Jon Gould is assistant professor of public and international affairs and visiting assistant professor of law at George Mason University, where he is also assistant director of the Administration of Justice Program. In 2001 he wrote a report on election reform for The Century Foundation, which helped to create the National Commission on Federal Election Reform.

November 5, 2002


JURIST Guest Columnist Jon Gould is assistant professor of public and international affairs and visiting assistant professor of law at George Mason University, where he is also assistant director of the Administration of Justice Program. He studies law and politics and has written on electoral reform, free speech, human rights, judicial administration, and criminal procedure. Before entering academe, he worked on the staffs of two presidential campaigns, served as counsel for a national party committee, and chaired the election law committee of the American Bar Association's Young Lawyers Division.