The Right to Vote

by Alexander Keyssar

  129 Washington Post, 21 May 1992; Elizabeth Palmer, “Motor Voter Drive Succeeds but Promised Veto Awaits,” Congressional Quarterly Weekly Report (20 June 1992): 1795; Richard Sammon, “Motor Voter Bill Stalls in Senate,” Congressional Quarterly Weekly Report (20 July 1991): 1981; the text of the veto message was printed in Congressional Quarterly Weekly Report (4 July 1992).

  130 New York Times, 18 March 1993; Congressional Quarterly Almanac 49 (1993): 199-201.

  131 New York Times, 21 May, 3 September 1995, 16 and 19 October 1996, 7 February 1996, 7 November 1996, 30 June 1998, 4 and 5 November 1998; Durham N.C. Herald-Sun, 27 March 1995. The law was challenged in the courts by several states, including California and New York, but the challenges ultimately were rebuffed by the Supreme Court.

  132 Stephen Knack, “Drivers Wanted: Motor Voter and the Election of 1996,” PS: Political Science and Politics 32 (June 1999): 236-243; Raymond E. Wolfinger and Jonathan Hoffman, “Registering and Voting with Motor Voter,” PS: Political Science and Politics 34 (March 2001): 90; Benjamin Highton, “Voter Registration and Turnout in the United States,” Perspectives on Politics 2 (September 2004): 510-512; U.S. Election Assistance Commission (hereafter U.S. EAC), “Voter Registration and Turnout—2000,” 20 March 2007, http://www.eac.gov/clearinghouse/docs/voter-registration-and-turnout-2000.pdf; U.S. EAC, “Voter Registration and Turnout—2002,” 20 March 2007, http://www.eac.gov/clearinghouse/docs/voter-registration-and-turnout-2002.pdf.

  133 House Subcommittee on Elections, “National Voter Registration Act, Section 7: The Challenges that Public Assistance Agencies Face,” 110th Cong., 2nd sess., 1 April 2008; “Voting Groups Sue Missouri Department of Social Services Over Registrations Decline,” St. Louis Daily Record, 24 April 2008; Miles Rapoport, “Striving for a Smooth Election,” Boston Globe, 29 October 2008; “Justice Department’s Failure to Enforce National Voter Registration Act Underscored by New Report,” Project Vote Press Release, 4 July 2007; Brian Kavanagh, Steven Carbó, et al., “Ten Years Later A Promise Unfulfilled: The National Voter Registration Act in Public Assistance Agencies, 1995-2005,” Project Vote, 14 September 2005, especially pages 1-9; Lisa Danetz and Scott Novakowski, “Expanding Voter Registration for Low-Income Citizens: How North Carolina is Realizing the Promise of the National Voter Registration Act,” Demos, April 2008, http://archive.demos.org/pubs/NVRAupdated.pdf; Douglas R. Hess and Scott Novakowski, “Unequal Access: Neglecting the National Voter Registration Act, 1995-2007,” Demos, February 2008; Vermont House of Representatives, Government Operations Committee Public Hearing, testimony of Brenda Wright, 5 February 2008, http://www.demos.org/pubs/brendawrighttestimony.pdf; Brian Mellor and Brenda Wright to Arizona Secretary of State Jan Brewer, 29 January 2008, http://www.demos-usa.org/pubs/AZNVRASection7Notice012908.pdf ; Brian Mellor and Brenda Wright to Florida Secretary of State Kurt S. Browning, 29 January 2008, http://www.demos.org/pubs/FLSection7Notice012908.pdf; “Democracy Dispatches,” Demos.org, April, May, and November 2008, on file with the author.

  134 “Voters Win with Election Day Registration,” Demos, 19 November 2007 (updated Winter 2008), http://archive.demos.org/pub1280.cfm; Steven Carbó, “Anatomy of a Successful Campaign for Election Day Registration in Iowa,” Demos, Winter 2008, http://www.demos.org/pubs/iowaanatomy.pdf; Los Angeles Times, 12 October 2007; Worcester Telegram & Gazette, 21 February 2008; Craig Brians, “Election Day Registration’s Effect on U.S. Voter Turnout,” Social Science Quarterly 82 (March 2001): 170-183; “About Election Day Registration,” Demos, accessed January 2008, http://archive.demos.org/page52.cfm; “Election-Day Registration: A Case Study,” Pew Center on the States: electionline.org, February 2007, http://www.pewcenteronthestates.org/report_detail.aspx?id=32754; “2007 Election Day Registration Legislation,” electionline.org, last visited 2 January 2008, on file with the author.

  CHAPTER NINE

  Note to the reader: All Web addresses for this chapter were checked as of December 2008.

  1 Julian M. Pleasants, Hanging Chads: The Inside Story of the 2000 Presidential Recount in Florida (New York, 2004), 2-10; see also the compilation of news articles from the New York Times, published as 36 Days: The Complete Chronicle of the 2000 Presidential Election Crisis (New York, 2001).

  2 Pleasants, Hanging Chads, 2-12; 36 Days, 8-39.

  3 New York Times, 9 November, 23 November, 29 November, 30 November 2000; ibid., 1 December, 7 December, 9 December and 12 December 2000.

  4 For recent statistics, see The Impact of Felony Disenfranchisement Laws in the United States, a report by The Sentencing Project of Human Rights Watch, available at www.hrw.org/reports98/vote/usvot98o-01.htm. John Lantigua, “How the GOP Gamed the System in Florida,” Nation, 30 April 2001, 11-17; Washington Post, 30 May 2001; John Lantigua, “Blacklisted in Florida,” Independent Weekly (Durham, NC), 9-15 May 2001, 23-29; Angela Behrens, Christopher Uggen and Jeff Manza, “Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002,” The American Journal of Sociology 109 (November 2003): 563. For the most comprehensive study of felon disfranchisement, see Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York, 2006).

  5 Lantigua, “How the GOP,” 11-17; Washington Post, 30 May 2001; Lantigua, “Blacklisted,” 23-29; Spencer Overton, Stealing Democracy: The New Politics of Voter Suppression (New York 2006), 58-59. In fact, the Florida attempt to match the names of felons with voters was based on a computer program that utilized only the first four letters of a person’s first name, 90 percent of the last name, and an approximate date of birth. Lorraine C. Minnite, The Politics of Voter Fraud, Project Vote, 5 March 2007, 25, http://projectvote.org/fileadmin/ProjectVote/Publications/Politics_of_Voter_Fraud_Final.pdf.

  6 Alex Keyssar, “Reform and an Evolving Electorate,” New York Times, 5 August 2001; Glenn W. Rainey Jr. and Jane G. Rainey, “The Electoral College: Political Advantage, the Small States, and Implications for Reform,” in Robert P. Watson, ed., Counting Votes: Lessons from the 2000 Presidential Election in Florida (Gainesville 2004), 174-176.

  7 United States v. Mosley, 238 U.S. 383, 386 (1915); see also United States v. Classic, 313 U.S. 299 (1941).

  8 Carolyn Jefferson-Jenkins, “Let Every Voice Be Heard, Let Every Vote Be Counted,” in Counting Votes, xii, xv; David C. Kimball, Chris Owens and Katherine M. Keeney, “Unrecorded Votes and Political Representation,” ibid., 135-147; Alex Keyssar, “The Right to Vote and Election 2000,” in Jack N. Rakove, ed., The Unfinished Election of 2000 (New York 2001), 92-94; Paul M. Schwartz, “Voting Technology and Democracy,” New York University Law Review 77 ( June 2002): 625-647; Los Angeles Times, 11 December 2000; New York Times 24 May 2004.

  9 TeResa C. Green, Rhonda S. Kinney and Jason Mitchell, “Voting Technology and Voting Access in Twenty-first-century America,” in Counting Votes, 110-118; Martha E. Kropf and Stephen Knack, “Balancing Competing Interests: Voting Equipment in Presidential Elections,” ibid., 121-133, 277-278; Los Angeles Times, 12 December 2000; National Commission on Federal Election Reform (hereafter NCFER), To Assure Pride and Confidence in the Electoral Process (August 2001), 1; New York Times, 20 October 2003.

  10 Los Angeles Times, 11 December 2000.

  11 New York Times, 23 November, 29 November and 30 November 2000; ibid., 1 December, 7 December, 9 December and 12 December 2000; George W. Bush v. Palm Beach County Canvassing Board, oral arguments (1 December 2000), 55; Bush v. Gore, 121 S. Ct. 526, 529 (2000); 36 Days, 183-185, 195-196, 303; New York Times, 5 December 2000; Albert Gore, Jr. and Joseph I. Lieberman v. Katherine Harris, 772 So. 2d 1243 (Fla. 2000).

  12 Pleasants, Hanging Chads, 23-25.

  13 NCFER, To Assure, 1.

  14 Caltech/MIT Voting Technology Project, Voting: What Is, What Could Be (2001); Henry E. Grady, et al., Counting All the Votes: The Performance of Voting Technology in the United States, University of California, Berkeley, 2001, http://ucdata.berkeley.edu/pubs/countingallthe
votes.pdf; NCFER, To Assure, entire; U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election (2001). Other reports from the Caltech/MIT Project are also valuable; for a listing, see http://vote.caltech.edu/drupal/.

  15 Prominent among the advocacy organizations were the Center for Voting and Democracy, Demos, and the National Voting Rights Institute. In 2003, when the Center for Voting and Democracy (now re-named FairVote) called for a national conference of advocates and activists (called the “Claim Democracy” conference), more than sixty organizations from around the nation co-sponsored the event.

  16 Instant runoff voting (IRV ) would have permitted left-leaning voters to mark Nader as their first choice and Gore as their second choice, rather than leaving them in the classic dilemma of having to choose between “wasting their votes” or voting for the “lesser of two evils.” IRV is widely believed to make it easier for third parties to gain influence and political strength.

  17 The phrases “vote suppression” and “voter suppression” did not appear at all in the New York Times or the Washington Post in the 1980s. In the 1990s, they appeared thirty-six times (in the two newspapers combined); from 2000 thru February 2008, they appeared ninety-nine times. Some Democratic concerns about Republican strategies dated back to the 1980s when the Republican National Committee hired off-duty policemen to monitor the polls in minority neighborhoods in New Jersey and Louisiana; the public outcry compelled the RNC to sign a consent decree promising not to repeat such actions. John Fund, Stealing Elections: How Voter Fraud Threatens Our Democracy (San Francisco, 2004), 6-7. Regarding Democratic anxieties about Republican conspiracies in 2000, see (among many possible sources) Michael A. Genovese, “This is Guatemala,” in Counting Votes, 247-260; see also Mark C. Miller, Fooled Again: How the Right Stole the 2004 Elections and Why They’ll Steal the Next One Too (New York, 2005), 92-106.

  18 The broadest statement of the Republican perspective can be found in Fund, Stealing, entire; see also Miller, Fooled Again, 89-111.

  19 Congressional Quarterly Weekly Report (27 July 2002): 2034; Fund, Stealing, 12-13.

  20 Greg McDonald, “State Officials Meet on Election Reform,” Stateline.org, 2 February 2001, http://www.stateline.org/live/printable/story?contentId=14256.

  21 Sarah F. Liebschutz and Daniel J. Palazzolo, “HAVA and the States,” Publius: The Journal of Federalism 35 (Fall 2005): 499; Daniel J. Palazzolo, “Election Reform after the 2000 Election,” in Daniel J. Palazzolo and James W. Ceaser, eds., Election Reform: Politics and Policy (Lanham, MD, 2005), 4-7, 13-14. See also Chapters 3-5 of that collection for detailed studies of Florida, Georgia, and Maryland.

  22 Testimony of Roy Blunt, U.S. House of Representatives, to the National Commission on Federal Election Reform, vol. 147 (26 March 2001), http://www.tcf.org/Publications/ElectionReform/NCFER/h1/hearing1_p3.pdf; Amsterdam News (New York), 1 March 2001; Herald-Tribune (Sarasota), 5 March 2001; UPI Wires service report, 27 February 2001.

  23 NCFER, To Assure, entire; Washington Post, 1 August 2001.

  24 NCFER, To Assure, 5-14.

  25 NCFER, To Assure, 78-82, 85; William Raspberry, “A Flawed Fix,” Washington Post, 3 August 2001; Keyssar, “Reform and an Evolving Electorate”; David Broder, “Election Report Delivered to Bush,” Washington Post, 1 August 2001. The commission’s reluctance to deal with the Electoral College may have reflected former President Carter’s personal pessimism on the subject; as president, he had lent considerable support to a failed effort at abolishing the institution. See Jack N. Rakove, “The E-College in the E-Age,” in Unfinished Election, 201-234.

  26 Leonard M. Shambon, “Implementing the Help America Vote Act,” Election Law Journal 3 (September 2004): 424-428; Liebschutz and Palazzolo, “HAVA and the States,” 499-505.

  27 Shambon, “Implementing,” 426-428; Liebschutz and Palazzolo, “HAVA and the States,” 500-506; Daniel Seligson, “Senate Power Shift Could Revive Election Reform Effort,” Stateline.org, 6 June 2001, http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=14362; Robert Tanner, “Election Reform Foes Square Off,” AP Online, 4 August 2001; Larry Lipman, Cox News Service, 7 November 2001; Daniel Seligson, Stateline.org, 8 November 2001; Washington Post, 30 November 2001; Congressional Quarterly Weekly Report (13 April 2002): 957; Congressional Quarterly Weekly Report (27 July 2002): 2034; New York Times, 7 September 2002.

  28 Help America Vote Act of 2002, Public Law 107-252, 107th Congress; Shambon, “Implementing,” 428-437; Liebschutz and Palazzolo, “HAVA and the States,” 507-509. The legislation permitted various deadlines to be extended if states had difficulty meeting them. States ended up with rather more latitude in implementation than HAVA originally intended because the belated appointment of EAC commissioners, coupled with significant underfunding of the EAC during its first years, delayed the development of the guidelines that the states were expected to follow. See Ellen Theisen, “Is HAVA Being Abused?” http://www.votersunite.org/info/hava-abuse2.asp. The provision in HAVA regarding a permanent, auditable paper record may have been understood by some members of Congress as requiring a “voter verified paper trail,” i.e., an individual paper record that each voter could consult to confirm that his vote had been correctly recorded. However, most state elections officials chose to interpret this provision as simply requiring an end-of-the-day paper print-out. See “An Open Letter to the House Administration Committee of the U.S. House of Representatives,” from a special committee of VerifiedVoting.org, 19 November 2003, as well as the statement from Senator Chris Dodd in the Congressional Record of the Senate, 3 August 2001 (Page: S8877). This interpretation was confirmed to the author in personal correspondence from John Gideon and Ellen Theisen of VotersUnite, 31 March 2008.

  29 Leonard Shambon observed that HAVA had “the effect of moving from an environment of local control with loose state and limited federal oversight to an environment of strong state control and loose federal oversight.” Shambon, “Implementing,” 431.

  30 New York Times, 17 October 2002. Senator Clinton and her fellow New Yorker, Charles Schumer, cast the only dissenting votes in the Senate. The House approved the measure by a vote of 357-48. For a more severe criticism, warning that HAVA could lead to large-scale purges of minority voters, see Gregory Palast, “Vanishing Votes,” Nation, 17 May 2004, 6. An examination of the difficulties created for voters by implementation of HAVA in different states, as of 2004, is offered in Tova A. Wang, “Playing Games with Democracy,” Reformelections.org, 20 October 2004, http://www.reformelections.org/publications.asp?pubid=494.

  31 Congressional Quarterly Weekly Report (13 December 2003): 3059; U.S. House of Representatives, Committee on Appropriations; Subcommittee on Transportation, Treasury, and Independent Agencies, Hearing on Election Assistance Commission Appropriations, 108th Cong., 2d sess., vol. 150 (12 May 2004); U.S. Election Assistance Commission (hereafter U.S. EAC), Annual Report Fiscal Year 2003 (Washington, DC, 2005); U.S. EAC, statement of Chairman Soaries, 13 July 2004; Roll Call, 25 April 2005; Liebschutz and Palazzolo, “HAVA and the States,” 509-512; Deborah Hastings, “Voting Commission Plagued by Problems,” Associated Press, 15 June 2008; see also note 28 above.

  32 The Pew Center on the States: electionline.org, The Help America Vote Act at 5 (hereafter HAVA at 5), 27 November 2007, 1-30, http://www.pewcenteronthestates.org/uploadedFiles/HAVA.At.5.pdf; U.S. EAC testimony before the U.S. House Committee on Appropriations, Subcommittee on Financial Services and General Government, 110th Cong., 1st sess., 7 March 2007, 1-8; U.S. EAC, testimony before the U.S. House Committee on Oversight and Government Reform, Subcommittee on Information Policy, Census, and National Archives, 110th Cong., 1st sess., 7 May 2007; statement of Vice-Chair Rosemary Rodriguez, House Committee on House Administration, Elections Subcommittee, 110th Cong., 1st sess., 2 August 2007; U.S. EAC testimony before the House Appropriations Subcommittee on Financial Services and General Government, 110th Cong., 2d sess., 27 February 2008, 2-14; Ha
stings, “Voting Commission”; New York Times 18 August 2008; see also U.S. EAC, Election Crimes: An Initial Review and Recommendations for Future Study (Washington, DC, December 2006). Useful data regarding election administration in the states can be found in U.S. EAC, The 2006 Election Administration and Voting Survey: A Summary of Key Findings (Washington, DC, December 2007).

  33 In 2006, provisional ballots were counted in fifteen states even if they were cast outside the voter’s home precinct, while in thirty other states, such ballots were not counted. States with election-day registration were not required to provide provisional ballots. U.S. EAC, 2006 Survey, 4, 18-21, 42-46; other sections of this report document variations by state in diverse dimensions of election administration. For a quick account of some of the ongoing variations in practices and problems in 2006, see Washington Post, 8 November 2006. According to Liebschutz and Palazzolo (p. 513), 97 percent of provisional ballots in Alaska were counted in 2004, while the figure was 6 percent in Delaware. For a 2008 example of complex provisional ballot rules having an impact on a congressional election in Ohio, see The Columbus Dispatch, 18 November 2008.

  34 Optical scan systems, which are known to be relatively reliable, use a machine to read paper ballots which have been marked by voters who fill in small bubbles with a pencil. Regarding Florida’s law, see Washington Post, 5 May 2001, and “Florida Legislature Passes Major Election Reform,” National Conferences of State Legislatures, 4 May 2001, http://www.ncsl.org/programs/legismgt/elect/taskfc/flbill.htm.