These remarkable sentences, half buried in a long and complex document, did not garner much public attention; understandably, they were overshadowed by other features of the decision (such as Justice John Paul Stevens’s sharp criticism of the Court) and by the huge, simple fact that the drama was over and George W. Bush was about to become president. Most Americans, nonetheless, would have been shocked to learn that their right to vote in presidential elections was far from absolute and not at all guaranteed .12
What Is to Be Done?
Americans can and should expect their electoral system to be a source of national pride and a model to all the world.
—NATIONAL COMMISSION ON FEDERAL ELECTION REFORM, 200113
Not surprisingly, the 2000 election debacle generated a strong wave of interest in improving and reforming the conduct of American elections. Teams of experts, sponsored by foundations and universities, carried out detailed studies of voting technology; a blue-ribbon commission, headed by former presidents Jimmy Carter and Gerald Ford, conducted a broad inquiry into the shortcomings of election processes and administration; and the United States Commission on Civil Rights probed the racial dimensions of what had transpired in Florida.14 Organizations with longstanding commitments to strengthening democratic institutions (like the League of Women Voters and Common Cause) reinvigorated their efforts, and they were joined by scores of new, or relatively new, advocacy groups promoting specific reforms (such as election-day registration) or defending the interests of particular groups of citizens (such as Asian Americans or ex-felons).15 Meanwhile, local, state, and federal officials, both elected and appointed, pressed for new legislation and new resources: no one wanted “Florida” to happen again.
Three different types of reform were advocated, and debated, in the wake of the election. The first was aimed at making elections more efficient and their results more reliable by improving both the technology of voting and the administration of elections. (Some retrospective studies suggested that inaccurate registration lists had caused more problems than faulty machinery in 2000.) A second cluster of proposals was designed to increase participation and even enlarge the electorate through the removal of legal and procedural obstacles to voting—by holding elections on a holiday, for example, or eliminating the lifetime disfranchisement of ex-felons. The third, and most controversial, type consisted of structural changes to political institutions, such as abolishing the Electoral College or instituting “instant runoff voting,” a mechanism that would permit voters to express ranked preferences for multiple candidates. (This mechanism would likely have permitted Al Gore to win in Florida despite the thousands of ballots cast for Green Party candidate, Ralph Nader.)16 Some of these proposals were direct responses to problems that had become visible in 2000, while others sprang from the agendas of reformers who hoped to take advantage of an auspicious moment to enact long-sought-after changes. All were advocated as methods of protecting, and making more meaningful, the right to vote.
Yet despite “Florida,” the national political climate was not wholly receptive to electoral reform. The fight over the presidency had inflamed partisan passions, and acrimony remained high through much of George W. Bush’s presidency, especially in Washington. Some of the acrimony, moreover, was grounded in the two major parties’ distrust of one another’s commitment to fair and honest elections. Among Democrats as well as progressive activists, there was a widespread conviction that the Republican Party was deliberately seeking electoral advantage by promoting laws, administrative procedures, and even “dirty tricks” that would keep Democratic voters—particularly poor and minority voters—from the polls. Evidence from Florida (including the purging of registration lists) lent credence to these claims, even if it did not support the more extravagant visions of conspiracy that surfaced immediately after the election. Democrats accordingly approached election reform with one eye on the goal of neutralizing Republican efforts at “voter suppression”—which they construed as a new form of de facto disenfranchisement. Indeed, the phrase “voter suppression” was itself a fairly new one in political debate, coming into common use only during this period.17
Republicans, not surprisingly, denied any such antidemocratic intent in Florida or elsewhere. They insisted that actions that they had taken, such as purging the voter roles and preparing lists of convicted felons, stemmed entirely from a desire to prevent fraud. Some Republicans, in fact, reversed the accusations, arguing that the Democrats routinely cheated in all elections and had tried to steal the 2000 contest. “Manufacturing votes, bribing electors, intimidating local officials. . . . This is the only way Gore can win,” claimed operative Mary Matalin during the heat of the battle in November 2000. “Democrats steal 2 percent to 3 percent of the vote in a typical election,” insisted another Republican pundit. Little concrete evidence was ever offered to support such claims, but that seemed largely irrelevant to many combatants in the political wars.18
These clashing partisan perspectives colored the early debates over reform and remained salient into the electoral campaign of 2008. Although some problems, such as voting machines with high error rates, had little partisan valence, numerous others were potentially freighted with political baggage. The climate of distrust made it particularly difficult to resolve the many problems of electoral conduct and administration that involved trade-offs between maximizing access to the polls and minimizing the possibilities of fraud. Requiring citizens to present identification documents when voting, for example, could make fraud more difficult while also keeping legitimate voters from casting their ballots. As Democratic representative Steny Hoyer would observe in 2002, “You can do things that make it easier to vote, but also make it easier to cheat. Or you can do things that make it harder to cheat, but can also impede voting.” Throughout these years, both in Congress and in state legislatures, Democrats were inclined to remove, or minimize, procedural obstacles to voting, while their Republican counterparts weighed in consistently at the “fraud prevention” end of the spectrum.19
One other legacy of the 2000 election also complicated the prospects for reform: its demonstration that elections—even national elections—could be extremely close, with outcomes dependent on tiny numbers of votes. As a result, any proposals for change were certain to be closely vetted for their partisan implications: would holding elections on a holiday, for example, help Democrats or the Republicans? Professional political operatives had long known (and the history of voting rights had long demonstrated) that elections could hinge on which potential voters actually got to the polls and cast legal ballots. If every vote counted, then it mattered deeply who voted, and any proposal with discernible partisan consequences was certain to encounter resistance.
Helping Americans Vote
In early February of 2001, a task force of the National Association of Secretaries of State convened in Washington to issue a preliminary blueprint for election reform in the states. (Secretaries of state commonly had responsibility for the administration of elections.) The blueprint urged state officials to take advantage of the historic moment to promote legislation that would facilitate acquisition of the best available technology while promoting equal access to polling places, improved voter education, and better training for election officials. At the same time, the task force fired a shot across the bow of Congress: election administration, it maintained, was a state and local matter, and what the states needed from Washington was not interference but money.20
Most states, however, were slow to seize the opportunity for significant reform. Florida, understandably, undertook a major overhaul of its election laws in 2001, renovating its equipment, registration system, counting procedures and ballot designs; Georgia and Maryland took similar action. But elsewhere, despite the introduction into legislatures of hundreds of reform measures (roughly 2000 in total by the end of 2002), changes were generally modest, reflecting partisan deadlock, the complexity of the issues, and a reluctance to increase expenditures. Near the end of 2
001, Scott Harshbarger, the president of the nonpartisan citizens-advocacy group Common Cause, complained that “looking at what’s happened in state legislatures in the past year, you’d never know that we had a genuine electoral crisis on our hands just a year ago.” Many state officials, in fact, were waiting to see what would transpire in Washington.21
Congress moved forward with something less than the alacrity that many had anticipated. Both the House and the Senate had slim Republican majorities, and the leadership, particularly in the House, was uncertain about how best to approach a volatile issue that would touch raw nerves yet still demand bipartisan cooperation. By late February, African-American members of the House were so disturbed by what seemed to be the foot-dragging of the leadership that the Congressional Black Caucus itself held a widely publicized hearing on election reform and the protection of voting rights. Although several Democrats and Republicans introduced major bills in the winter of 2000-2001, Congress did not seriously focus on election reform until the late spring.22
In part because of the delays in Congress, the principal arena for consideration of the federal government’s role in election reform became the National Commission on Federal Election Reform, co-chaired by former Presidents Jimmy Carter and Gerald Ford. Formed in late January, privately funded by several foundations, this bipartisan panel of notables (including many former public officials) held hearings around the country and formed a set of task forces that collected information and issued reports on election-related issues. The commission released its final report, entitled To Assure Pride and Confidence in the Electoral Process, in August 2001, personally delivering a copy to President Bush who, in a Rose Garden ceremony, praised its “key principles” and urged Congress to pay heed to the report’s guidelines.23
The Carter-Ford commission’s recommendations were cautious and clearly designed to win bipartisan support. It urged the states to permit “any voter who claims to be qualified to vote” to cast a “provisional” ballot (that would be counted only if the voter proved to be eligible); to develop statewide systems of voter registration; and to establish benchmarks for voting-system performance as well as standards for determining what constituted a vote on different types of voting machines. It urged the federal government to create a new agency, an Election Administration Commission, to develop and implement voting equipment standards and to serve as a clearinghouse of information on both technology and election administration. The commission also recommended that Congress appropriate $1-2 billion for matching grants to assist the states in election administration, suggesting that these grants be conditional on the states meeting certain criteria or standards. Most boldly, perhaps, the commission recommended that all states restore voting rights to felons who had “fully served their sentences” and that Congress pass legislation to hold federal elections on a national holiday (probably Veterans’ Day).24
The Carter-Ford report was also notable for what it did not do. To the consternation of many congressional Democrats, as well as six dissenting members of the commission itself, To Assure Pride and Confidence did not recommend any new federal mandates or rules governing the conduct of elections. Although the states would be offered the “carrot” of a short-term infusion of funds if they adopted certain reforms, there would be no “stick” of new federal requirements, and the states would remain in complete control of the administration of federal elections. The commission also declined to even broach the larger issues of structural reform raised by the 2000 election, most notably reform of the Electoral College. Indeed, as revealed in a dissent filed by commissioner John Siegenthaler, the panel had agreed at the outset not to even discuss the Electoral College or any other changes that would require constitutional amendment. To some advocates of reform, such as Washington Post columnist William Raspberry, the commission had missed an opportunity to promote bold ideas and had instead produced “a mouse of a report, calculated to produce consensus but precious little reform.”25
Key ingredients of the Carter-Ford commission’s approach did find their way into Congress’s own lurching efforts to achieve consensus. From the outset, most Democrats and Republicans agreed that the federal government ought to provide funding and help develop standards for election administration and new voting technology. However, the first proposals introduced, in the winter and spring of 2001, revealed partisan disagreements on key issues. Democrats, framing election reform largely as a civil rights issue, favored mandatory national standards, the shrinking of procedural obstacles to registration and voting, and a restoration of voting rights to felons who had served their sentences. In contrast, the Republicans—deploying a more managerial lens—preferred voluntary state compliance with national standards as well as additional antifraud provisions, including a requirement that first-time voters present some form of photo identification at the polls.26
Bridging these differences took a year and a half. In the House, Bob Ney, the Republican chair of the Committee on House Administration, and Steny Hoyer, the ranking Democrat, labored for six months to produce a bipartisan bill that finally won passage in December 2001. In the Senate, the dynamics shifted when the Democrats became the majority party in mid-2001, thanks to Vermont Senator James Jeffords’ departure from the Republican Party; a compromise bill, more reflective of the Democratic perspective, was eventually approved in April 2002. Reconciling the House and Senate versions took an additional six months, and, for a time, appeared unlikely to happen at all. The Help America Vote Act (HAVA) was finally signed into law on October 29, 2002, almost exactly two years after the disputed presidential election.27
The legislation provided funds to the states to improve the administration of elections and subsidize the purchase of new voting technology, primarily to replace punch-card and lever machines. It also created an Election Assistance Commission to serve as a clearinghouse of information about voting systems and to distribute, over three years, a total of $3 billion in grants to the states. The funds were provided to facilitate state compliance with a new set of federal requirements for both voting technology and election administration. These requirements addressed an array of past and prospective problems. Voting machines had to be accessible to individuals with disabilities; to permit voters to verify their selections before the ballot was recorded; to notify voters if they had “over-voted”; and to leave a permanent, manually auditable paper record. Machines also had to meet a stringent standard for vote-counting accuracy. In addition, all states were obliged to assemble computerized statewide registration lists, to permit voters to cast provisional ballots if their names did not appear on the official voting lists, and to develop uniform standards regarding what constituted a legal vote on each type of technology in use. In a nod to Republican concerns, HAVA also demanded that residents who registered by mail, and who had never voted before in the jurisdiction, present identification (from a specified list of documents) either when registering or at the polls. Implementation of HAVA, which entailed considerable interpretation of its provisions, was left to the states, although the act did stipulate deadlines for compliance.28
The passage of HAVA signaled a new degree of federal involvement in the conduct of American elections. In addition to providing substantial assistance to the states, both in cash and through the creation of the EAC, the act, like the Motor Voter bill of 1993, obliged the states to conform to a set of important, if limited, federal standards. In so doing, HAVA compelled state officials to tighten control over rules and procedures that had often been left in the hands of individual counties and cities: a key thrust of the act was to promote uniformity in practices not only among but within states. HAVA was a step forward in safeguarding the right to vote because it obliged many jurisdictions to reform practices that could prevent legal voters from casting ballots and having their ballots counted correctly.29
Nonetheless, as the long-awaited national response to what had been a serious electoral crisis, HAVA was a limited, even pale, achievement. HAVA did not addre
ss the more subterranean structural faults that had become so visible in November 2000, like the administrative control of state elections by partisan officials or the absence of a clear constitutional right to vote for president. Nor did it follow the lead of the Carter-Ford commission in seeking to increase turnout and enlarge the electorate by holding elections on non-workdays and restoring the rights of ex-felons. Indeed, to the disappointment of those who hoped for broad-gauged reforms, the legislation that emerged from Congress implicitly promised that the electoral system could be fixed with new machines and narrowly tailored shifts in administrative practices. Some critics, including New York Senator Hillary Clinton and leading Latino organizations, even feared that HAVA included a fatal defect: its photo-identification provision could create an additional obstacle to participation for many new (or recently relocated) voters. Most importantly, perhaps, HAVA gave the states considerable latitude to determine how and when to meet the act’s requirements, opening the door to ongoing partisan jockeying and administrative inertia.30
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