Less than a year later, George Bush was a private citizen, and his successor, Bill Clinton, signed the National Voter Registration Act of 1993 into law. The bill was passed by large majorities in the House and Senate after several key compromises ended weeks of acrimonious partisan wrangling. In its final form, the bill required the states to provide three procedures for registration (in addition to any the state already possessed) in federal elections: the simultaneous application for a driver’s license and voter registration; registration by mail; and registration at designated public agencies, including those offering public assistance and services to the disabled. The law did not apply to state and local elections, but it would obviously affect them—since, as had been true with federal age regulations, maintaining a separate registration system for nonfederal elections would be difficult and expensive.130
The Motor Voter bill, as it was called, took effect on January 1, 1995. Its impact on registration levels was rapid. Millions of voters availed themselves of the opportunity to register or reregister at motor vehicle bureaus or through the mail. In less than two years, there was a net addition of nine million registrants (slightly less than 20 percent of the unregistered) to the electorate. Fulfilling Democratic hopes and Republican fears, the new registrants were disproportionately young, black, high-school educated, and Democratic, although in the South the law also seemed to stimulate registration in Republican strongholds. But this surge in registration did not quickly translate into higher turnout at elections. In 1996, half of all potential voters stayed home: turnout was lower than it had been in any presidential election since 1924. The 1998 congressional elections were no better at sparking the interest of voters.131 Turnout levels did bob up during some elections after the turn of the century (particularly the sharply fought presidential contests of 2004 and 2008), but the impact of the NVRA was, at best, modest and confined to those states that actively promoted registration at the specified agencies. Among the less-educated and less-affluent, both registration and turnout figures remained well below average—although they might have been even lower had the NVRA never been implemented.132
These disappointing results led some analysts to conclude that obstacles to registration were not, in fact, the key to low turnout, that other maladies were afflicting the body politic. Numerous reformers, however, continued to press for more vigorous implementation of the NVRA and for new registration laws. A 2005 study conducted by a consortium of advocacy groups concluded that in most states, after 1996, “a serious failure to incorporate voter registration into the services” of public assistance agencies had led to a significant decline in the number of persons being registered at those offices. Reformers urged all states to adopt the successful practices that had been developed in several locales, and in April 2008, a lawsuit was filed against Missouri’s Department of Social Services demanding that public assistance clients be offered the opportunity to register. These efforts bore some fruit, with five states, including Missouri, dramatically increasing the number of registrants at public assistance agencies in 2008.133
Meanwhile, several advocacy organizations, including Demos and Common Cause, sought the passage of state laws (and even a federal law) that would permit voters to register on election day itself. They pressed the case with statistical evidence indicating that turnout was significantly higher in the half dozen states that permitted election day registration than it was elsewhere. Most states, however, resisted this appeal. In California, in 2007, for example, Governor Arnold Schwarzenegger vetoed an election day registration bill because it posed “both logistical and security concerns.”134
The persistence of unimpressive turnout levels ought not obscure the significance of the NVRA, nor should its nickname, the Motor Voter bill, be allowed to trivialize the legislation’s meaning. The NVRA was the final twentieth-century act in the drama that had begun in the 1960s; it continued a lurching, yet immensely important, thirty-year process of nationalizing voting laws and removing barriers to the ballot box—many of which had been erected between the 1850s and World War I. As a consequence of that process, the legal protections of the right to vote were far stronger at the end of the twentieth century than they had been at any earlier moment in the nation’s history.
NINE
The Story Unfinished
November 2000
The twenty-first century began with the most disputed presidential election in the United States in more than a hundred years. Americans went to the polls on November 7, 2000, and, as usual, turned on their televisions that evening to witness the quadrennial ritual of news networks reporting the vote tallies and projecting winners based on early returns and exit polls. This election night, however, proved to be highly unusual—and it lasted for more than a month.
By the morning of November 8, the outlines of a political deadlock—and an emerging electoral crisis—were becoming clear. Vice President Al Gore was leading former Texas governor George W. Bush in the national popular vote by more than 200,000 votes (a figure that would rise in subsequent weeks, as tallies were finalized). In the Electoral College, Gore had won, or was ahead, in states that would cast 267 electoral votes while Bush had 246; 270 were needed for victory. All eyes were on the state of Florida, where nearly six million votes had been cast and Bush was leading by fewer than 2,000. The margin was tiny (0.03 percent) and easily reversible in a recount or through challenges. Whoever was officially judged to be the winner in Florida—and the recipient of its 25 electoral votes—would become the president of the United States.1
Determining the winner in Florida was no simple matter. An automatic recount (mandated in close elections by Florida law) was completed by November 10 and narrowed Bush’s lead to a few hundred votes. But that recount—which in many counties consisted simply of re-checking the totals reported by voting machines—hardly settled the issue. There were thousands of ballots that had potentially been miscounted or not counted at all because of inappropriate or ambiguous markings. Others were of questionable legality, including absentee ballots from members of the armed services that lacked the postmarks required by law. In addition, implausible totals from individual precincts or even counties—indicating, for example, that many people had cast ballots for local offices but not for president—suggested that human or technological errors may have been widespread. The Florida election was, in effect, a statistical tie: the margin of victory for either potential claimant was smaller than the margin of error of the vote-counting apparatus.2
Yet somehow the tie would have to be broken, and doing so demanded decisions about whether and how to count or recount by hand votes in different parts of Florida. Those decisions became the subject of an extraordinary legal and partisan conflict between the two major candidates’ political parties and campaign organizations. The conflict played itself out in state and federal courts, as well as in the news media and, occasionally, in the streets or crowded hallways of public buildings in Florida. In so doing, it focused national attention on the issue of voting rights more dramatically than at any time since the 1960s.
The phrase the right to vote was itself on the lips of many actors in the drama. Various groups of Florida citizens protested that they had been deprived of their rights, for reasons that included inaccurate registration records, flawed lists of convicted felons, racial discrimination, and a poorly designed “butterfly ballot” that led many residents of Palm Beach County to mistakenly mark ballots for conservative Patrick Buchanan instead of Al Gore. Both the Republican and the Democratic parties rushed to defend the “sacred” right to vote (particularly of their own supporters), while their lawyers invoked the phrase as a rhetorical prelude to arguments for and against recounting ballots. President Bill Clinton, rising above the partisan cacophony, declared that voting was our most “fundamental right”—although he surely knew, as a former teacher of constitutional law, that voting was not mentioned in the Bill of Rights.3
The prolonged electoral crisis, moreover, cast a spotlig
ht on the patchworked edifice of state and federal voting rights law that had been erected piecemeal over the previous two centuries; in so doing, it illumined imperfections in that legal edifice—holes, soft spots and ragged edges in the right to vote. The spotlight revealed, for example, the extent to which state laws and local practices continued to shape the exercise of the franchise, yielding something less than a uniform national right. Although the federal government had vastly broadened and strengthened its protection of the right to vote since the nation’s founding, the details of voting and election law remained the province of the states—even for national elections. (It was for this reason that much of the drama unfolded in Florida’s state courts and involved the analysis of state statutes.) The presidential election was national, but most of the rules governing its conduct, including those affecting recounts, disputed ballots, and registration procedures, were determined by the states, with numerous procedural details varying by county or by city. Votes that were not counted in Florida might have been counted in other states, and vice versa.
There were, moreover, hundreds of thousands of Florida residents who were legally barred from voting but who could have cast ballots had they resided in most other states: these were men and women who had been convicted of felonies and had already served their prison terms. Florida was one of less than a dozen states that continued to impose lifetime disenfranchisement on convicted felons; the state contained roughly 15 percent of the more than 4 million Americans who were not permitted to vote because of their criminal records. (Floridians could regain their political rights only through a very slow and cumbersome restoration process.) Most of those who were disenfranchised for this reason were African-American or Hispanic; by some estimates, more than 30 percent of all black males in Florida were barred from the polls because of felony convictions. Such statistics raised the specter of a new, or ongoing, form of racial discrimination in a southern state, while also suggesting that Florida’s severe restrictions on the political participation of ex-felons could have decided the 2000 election by diminishing the electoral strength of the African-American community.4
Such concerns only intensified as stories began to appear in the press indicating that some Florida residents who had never committed crimes had been turned away from the polls because they were allegedly ex-felons. Subsequent investigation revealed that Republican officials in Florida, anticipating a closely contested election and presuming that most ex-felons—as members of minority groups—were likely to vote Democratic, had purchased lists of convicted felons from private corporations and had then attempted to match those lists against the names of registered voters. The procedure, part of a broader effort to clean up bloated, out-of-date registration lists, was problematic because the lists of felons were of uncertain accuracy and did not contain social security numbers or other reliable identifiers. Despite complaints from numerous local election officials, thousands of individuals whose names appeared on the felons’ lists were scrubbed from the voting rolls, a fact that some of them learned only when they arrived at the polls and were told that they were no longer registered. Willie D. Whiting, for example, a law-abiding black minister in Tallahassee, was prevented from voting because he was confused with Willie J. Whiting, a convicted felon. Florida’s broad felon-exclusion laws, thus, had permitted partisan state officials in the pursuit of political advantage to deny people their right to vote.5
Americans were also reminded that, in presidential elections, the breadth of the right to vote did not mean that all votes counted equally and that, consequently, the candidate who received the largest number of votes would not necessarily gain office. This was true because of the baroque constitutional apparatus now commonly called the Electoral College (a label that does not appear in the Constitution itself). Not since the late nineteenth century had the Electoral College denied the presidency to the winner of the popular vote, but when the final tallies were compiled in 2000, Al Gore—soon to return to private life—had won a half million more votes than the president-elect, George W. Bush. Bush’s victory could be traced directly to the disproportionate power that the Electoral College system has always given to small states, which cast more electoral votes per capita than do large states. (To take an extreme case, an elector in South Dakota in 2000 represented fewer than half the number of people represented by an elector in New York or California.) George W. Bush was elected to the presidency without winning the popular vote because he won three-quarters of the states that had fewer than ten electoral votes. Had electoral votes been allocated to the states entirely in proportion to their population, Al Gore would have become president regardless of the outcome in Florida. The democratic principle of “one person, one vote”—a principle widely accepted by the American people and embraced by the Supreme Court in the 1960s—did not apply to presidential elections.6
The drama in Florida also thrust into view a different dimension of the right to vote: the right to have one’s vote counted and counted accurately. Although federal courts had long recognized that the “right to have one’s vote counted” was as fundamental as “the right to put a ballot in a box,” this issue had rarely figured in earlier conflicts over suffrage. Americans had periodically worried about the fraudulent tabulation of votes, but they did not fret much about the technology of voting or the accuracy of voting machines. Those who went to the polls in 2000 took for granted that their votes would be counted.7
Prolonged scrutiny of Florida’s election returns, however, shook that confidence. With a microscope focused on the numbers for every county and even every precinct in the state, it became apparent that thousands of votes had not been counted at all while countless others may have been mistakenly recorded. In some counties, 3 to 5 percent of all ballots were discarded because they were “spoiled” (in predominantly African-American Gadsden County, the figure was 12 percent); “under-votes” (ballots that registered votes for lower offices but not for the presidency) were common; “over-votes” (marked for two different candidates) suggested flaws in the design of the ballots; tabulating machines came up with different totals when they counted the same ballots twice; hand recounts of punched ballots brought to light the problem of “hanging chads” of paper that clung to ballots, often leading to erroneous vote recording. Moreover, Florida’s counties utilized a wide array of different voting technologies, some of which (e.g., punch cards) had significantly higher error rates than did others. (The National Bureau of Standards had urged in 1988 that punch-card ballots be discontinued.) Further investigation revealed that the less-reliable technologies were more often deployed in poor and minority communities, contributing to unusually high “spoilage” rates among ballots cast by minority voters and heightening concerns about racial discrimination.8
These problems, moreover, were not unique to the Sunshine State. As the flaws in Florida’s electoral apparatus became the subject of national commentary and criticism, election officials elsewhere could not but agree with Georgia’s chief election official that “there, but for the grace of God, go I.” The different voting technologies deployed in Florida were all in use in other states, generally with similar error rates. Many of the nation’s voting machines were antiquated, poorly maintained, and prone to breakdowns: New York City’s ancient lever-action machines had 27,000 parts each, and 8 percent of the machines had malfunctioned in 1998. Absentee ballots in numerous states were never counted at all unless elections were unusually close. Election departments were chronically underfunded, while poll workers were minimally trained and frequently unable to fix problems or correctly apply procedural rules. According to one estimate, there were two million votes nationwide that did not get counted, and few states could confidently claim that their electoral systems could guarantee the degree of accuracy required by a very close election. “What happened in Florida is the rule and not the exception,” reported the Los Angeles Times after a nationwide survey of election practices.9
Americans who stayed closely tuned
to the 2000 election, thus, found themselves confronted with a new image of the workings of their own democracy. The United States, it appeared, did not have fully universal suffrage for adult citizens; voting rights and procedures still varied substantially from state to state; not all votes carried equal weight in presidential elections; racial discrimination may have persisted despite the Voting Rights Act; and the nation’s ability to correctly count votes was in question. The administration of elections, moreover, appeared to be in overtly partisan hands: Florida’s secretary of state, Katherine Harris, was also a co-chair of the Bush campaign. “Our democracy isn’t really so sacred,” observed the co-director of the Indiana Elections Division. This was a chastening picture for a country that prided itself on its democracy and frequently sent observers to monitor elections in distant lands.10
One further blow was struck on the last day of the crisis, when the Supreme Court issued its decision in Bush v. Gore. The decision, which halted a hand recount that the Gore campaign had asked for and that the Florida Supreme Court had granted, effectively delivered Florida’s electoral votes and the presidency to George W. Bush. Embedded in the decision was the court majority’s reading of article 2, section 1 of the Constitution, which deals with the process of choosing presidents. The article provides that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors”—who then cast their ballots for president. According to five of the justices, the language of the Constitution meant that “the individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.” Moreover, “the State . . . after granting the franchise in the special context of Article II, can take back the power to appoint electors.” (Florida’s Republican-dominated state legislature was, in fact, planning to “take back” that power and choose electors by itself until it was spared the need to do so by the Court’s decision.) According to the highest court in the land, thus, the nation’s constitutional evolution had left an extraordinary lacuna in the political rights of citizens: Americans may vote in elections for the nation’s most powerful office only if their state legislatures offer them that opportunity. As Justice Antonin Scalia had succinctly asserted in oral arguments before the Court on December 1, there is “no suffrage right” under article 2, section 1 of the Constitution.11
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