35 New York Times, 24 March 2004; ibid., 14 November 2004; ibid., 18 January 2004; ibid., 15 July 2004; ibid., 6 January 2008; electionline.org, HAVA at 5, 13-20; Angela Gunn, “E-Voting State by State: What You Need to Know,” ComputerWorld, 1 November 2006, http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9004591; Tere Negrete and Noaki Schwartz, “Voting Glitches Found in 6 Recent Elections,” Miami Herald, 31 March 2005, online edition.
36 Richard Celeste, Dick Thornburgh, and Herbert Lin, eds., Asking the Right Questions About Electronic Voting, National Academies Press (Washington, D.C., 2006), 4; Clive Thompson, “Can You Count on These Machines?” New York Times Magazine, 8 January 2008, 43; electionline.org, HAVA at 5, 13-18; statistics regarding the breadth of use of DRE machines are from U.S. EAC, 2006 Survey, 23-24, 68-69; many of the counties surveyed utilized more than one type of voting system. According to Election Data Services, only 37 percent of counties were utilizing DRE machines in 2006; that compilation as well as one by electionline.org indicated that 39 percent of voters lived in jurisdictions utilizing DRE technology; 49 percent lived in counties that used optical scan technology. Election Data Services, “Voting Equipment Summary by Type,” 11 November 2006, http://www.electiondataservices.com/images/File/VotingEquipStudies%20/ve2006_report.pdf.
37 Shambon, “Implementing,” 438-439; Thompson, “Machines,” 42-46; electionline.org, HAVA at 5, 18-20; New York Times, 9 November 2003.
38 Deborah Hastings, “Electronic Voting Machines Come Under Legal Attack from Activists,” Associated Press, 13 July 2006; Daniel Turner, “How to Steal an Election: Princeton University Computer Scientists Expose the Weakness of a Diebold Voting Machine,” Technology Review 109 (November 2006): 26; see also “Colorado Voters File for Injunction to Halt Use of DRE Computerized Voting Systems in November Elections,” Voter Action, press release, 28 June 2006; New York Times, 15 December 2007; ibid., 31 January 2004; ibid., 13 June 2004; ibid., 12 May 2006; see also The Brennan Center for Justice, NYU School of Law, “The Machinery of Democracy: Voting System Security, Accessibility, Usability, and Cost,” 10 October 2006, 18-35, http://brennan.3cdn.net/cb325689a9bbe2930e_0am6b09p4.pdf; Thompson, “Machines,” 44-46. Although the manufacturers of DRE machines maintained that their systems had been tested by independent laboratories, the laboratories’ procedures were far from transparent and they were paid for their services by the manufacturers themselves. New York Times, 30 May 2004.
39 Charles Stewart III, “Measuring the Improvement (or Lack of Improvement) in Voting Since 2000 in the U.S.,” Caltech/MIT Voting Technology Project: Working Paper #36, August 2005, 26, http://web.mit.edu/cstewart/www/papers/measuring_2.pdf.
40 Hastings, “Electronic Voting”; Washington Post, 8 November 2006; electionline.org, HAVA at 5, 15; New York Times, 31 January 2004.
41 Anita Miller, ed., What Went Wrong in Ohio: The Conyers Report on the 2004 Presidential Election (Chicago, 2005), 50-51; Thompson, “Machines,” 42-46.
42 Shambon, “Implementing,” 439; Hastings, “Electronic Voting”; USA Today, 4 June 2006; Thad E. Hall and R. Michael Alvarez, “American Attitudes About Electronic Voting,” Caltech/MIT Voting Technology Project, September 2004, http://vote.caltech.edu/drupal/node/69; Lehigh University/Muhlenberg College Institute of Public Opinion, “2006 Survey of Public Attitudes Toward Electronic Voting in Pennsylvania,” 3 October 2006, http://www.cse.lehigh.edu/~lopresti/Other/EvotingSurvey.pdf. Several lawsuits were also filed charging manufacturers with providing misleading or false information to potential customers; the state of California claimed that Diebold had installed uncertified hardware on many machines. New York Times, 24 April 2004.
43 Hastings, “Electronic Voting”; Thompson, “Machines,” 46; New York Times, 12 September 2004; ibid., 12 May 2006. Manufacturers did update their software to increase security in response to specific flaws pointed out by experts, yet they tended to resist investigations by independent experts. For an example of such resistance, by Sequoia, in New Jersey, see New York Times, 22 March 2008.
44 Brennan Center, “Machinery of Democracy,” 46-78; New York Times, 11 June 2004. DRE machines were also considered more accessible to language-minority voters.
45 New York Times, 29 February 2004; ibid., 24 April 2004; ibid., 18 September 2004; ibid., 16 January 2008; Thompson, “Machines,” 42-46; HAVA at 5, 18-20. Observation of polling places indicated that many voters did not actually check the paper trail that was generated. One study of actual VVPATs from an Ohio election (reported in HAVA at 5, 20) concluded that 10 percent of the paper records were damaged or compromised; regarding opposition to VVPATs, see also VotersUnite, “Essential Revisions to HR 811,” (13 February 2007), http://www.votersunite.org/info/HR811EssentialRevisions.htm. Congressman Holt initially sponsored legislation that would have made paper trails mandatory in all federal elections; opposition was widespread, especially among state officials. In the spring of 2008, he introduced a bill offering federal funds to states to convert to paper-based systems before the elections in November; it was not passed. New York Times, 4 April 2008.
46 “Colorado Voters File for Injunction to Halt Use of DRE Computerized Voting Systems in November Elections,” Voter Action, press release, 28 June 2006, http://voteraction.org/node/210; see also “Pennsylvania Voters Seek Injunction to Block Purchase of Electronic/Touchscreen Voting Systems,” Voter Action, press release, 25 January 2008, http://www.voteraction.org/node/330; Tim Padget, “Voting Out E-Voting Machines,” Time, 3 November 2007; HAVA at 5, 20; see also Dan Tokaji blog, 2 March 2008, http://moritzlaw.osu.edu/blogs/tokaji/2008_03_01_equalvote_archive.html; “Ohio ‘Paper’ Vote System Debuting With Flaws, Researchers Say,” Science Daily, 4 March 2008, http://www.sciencedaily.com/releases/2008/03/080303145236.htm.
47 “Conroy Plaintiffs Applaud Legislators’ & Governor’s Decision to Support Optical-Scan Paper Ballots as Solution for 2008 Election,” Voter Action, press release, 25 January 2008, http://voteraction.org/node/331; New York Times, 15, 19, and 24 December 2007; ibid., 4 January 2008; The Gazette (Cedar Rapids), 2 April 2008; Mandalit del Barco, “20 California Counties Scrap Electronic Vote Machines,” NPR.org, 4 February 2008; Nancy Cook, “Key States’ Plans to Overhaul Voting Systems,” NPR.org, 24 January 2008; Hastings, “Electronic Voting Machines.” In the fall of 2007, a bill was introduced into the Senate that would ban DRE voting in federal elections beginning in 2012. Padget, “Voting Out.” Regarding New Jersey, see Angela Delli Santi, “Voting-Machine Trial Too Late for Election,” Philly.com, 26 March 2008; regarding Colorado, see Denver Post, 24 March 2008; regarding California, see Sacramento Bee, 4 August 2007 and the website of the secretary of state’s office, http://www.sos.ca.gov/elections/elections_vs.htm; for Ohio, see Dan Tokaji blog, 15 December 2007, http://moritzlaw.osu.edu/blogs/tokaji/2007_12_01_equalvote_archive.html and 2 March 2008.
48 See, for example, Pam Fessler, “Several States Abandon Electronic Voting for Paper,” NPR.org, 25 January 2008. In addition to the purchasing costs, the states had made significant investments in hiring information technology staff and in training local officials to use DRE machines.
49 HAVA at 5, 15-19; U.S. EAC, 2006 Survey; Election Data Services, 2008 Voting Equipment Study, 17 October 2008, 3. The National Association of Secretaries of State remained opposed to federal efforts to mandate more uniform technology. See “NASS Coalition Letter to Congress Regarding 2007 Federal Legislation,” National Association of Secretaries of State (NASS), 16 March 2007, http://www.nass.org/index.php?option=com_docman&task=doc_view&gid=41.
50 Regarding machine performance on election day and during early voting, see The Brennan Center for Justice, NYU School of Law, “Statement on Election Day,” press release, 5 November 2008, http://www.brennancenter.org/content/resource/statement_on_election_day; Tova Wang, “Voting in 2008: Lessons Learned, November 10, 2008,” Common Cause; Steven Rosenfeld, “Machine Problems Worsened 2008 Voting Woes,” AlterNet, November 13, 2008; www.alternet.org/demo
cracy/107034; Greg Gordon, “Glitches, Machine Breakdowns Hamper Voting in 5 States,” McClatchy Newspapers, 4 November 2008; CBS News, “Voting Problems: Much Ado About Nothing,” 5 November 2008; Chicago Tribune, 5 November 2008; Washington Post, 5 November 2008; Naples News (Florida), 9 November 2008; Dayton Daily News (Ohio), 12 December 2008. The months leading up to the November election were filled with legal skirmishing over voting technology (particularly where DRE machines were in use) and the use of back-up systems such as the provision of paper or absentee ballots at polling places. For examples, see Newark Star-Ledger, 7 October 2008; press releases from VoterAction, 23 and 29 October 2008, http://www.voteraction.org.
51 Tim Padgett, “Voting Out,” Time, 3 November 2007.
52 Boston Globe, 2 August 1997; Boston Herald, 3 August 1997.
53 Boston Herald, 3 August 1997; Boston Globe, 13 August 1997; ibid., 30 July 1998; ibid., 29 June 2000; ibid., 29 October 2000; Herald-Sun (Durham, N.C.), 10 September 2000; Secretary of the Commonwealth of Massachusetts, “Massachusetts Statewide Ballot Measures: 1919-2004,” Office of the Secretary of the Commonwealth Elections Division, 53.
54 Manza and Uggen, Locked Out, 192, 286. See also Chapter 8 herein.
55 Manza and Uggen, Locked Out, 69-76, 95-102, 251-253.
56 Manza and Uggen, Locked Out, 223-225, 247; regarding the reintegration of ex-felons, see 113-164.
57 Manza and Uggen, Locked Out, 286-287; “Felony Disenfranchisement Laws in the United States,” The Sentencing Project, March 2008, http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=335; The Sentencing Project, news release, 20 June 2008, http://www.sentencingproject.org/NewsDetails.aspx?NewsID=644; Sarasota Herald-Tribune, 6 April 2007; Baltimore Sun, 25 April 2007; St. Petersburg Times, 27 September 2007; Ray Henry, Associated Press (Providence, Rhode Island), 8 November 2006; Lexington Herald-Leader, 6 February 2008, ibid., 4 March 2008; Orlando Sentinel, 27 and 28 August 2008; Miami Herald, 28 August 2008; New York Times, 30 August 2008; see also a compilation by the ACLU, “State Legislative and Policy Reform to Advance the Voting Rights of Formerly Incarcerated Persons,” http://www.aclu.org/votingrights/exoffenders/statelegispolicy2007.html; ACLU, Press Release, “Tennessee Legislature Simplifies Voting Restoration for Ex-felons,” 17 May 2006; for the most complete account of legal changes in the states through 2006, see Ryan S. King, “A Decade of Reform: Felony Disenfranchisement Policy in the United States, 1997-2006,” The Sentencing Project, October 2006, 3-21. In October, 2008, the Sentencing Project released a new report entitled “Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2008.” The American Civil Liberties Union of Florida has also published and posted detailed accounts of developments in that state.
58 Manza and Uggen, Locked Out, 287; Hattiesburg American, 4 March 2008; Erika Wood, Restoring the Right to Vote, Brennan Center, 26 February 2008, 6, 15-16, 27; New York Times, 22 July 2004; ibid., 14 September 2008; USA Today, 1 June 2006; The Sentencing Project, “Disenfranchisement News,” 3 January 2008; Wall Street Journal, 31 March 2008; Greg Gordon, “As Balloting Nears, Officials Confused About Who Can Vote,” McClatchy Newspapers, 1 October 2008.
59 Manza and Uggen, Locked Out, 14; Sarasota Herald-Tribune, 6 April 2007; Chattanooga Times Free Press, 2 October 2006; The Sentencing Project, News Update, 18 April 2008; The Washington Times, 15 February 2006; New York Times, 11 July 2004.
60 Manza and Uggen, Locked Out, 223; John Fund, “My Felon Americans,” New York Sun, 8 March 2005. The bill introduced by Feingold and Conyers was entitled The Democracy Restoration Act of 2008 (S.3640 and H.R. 7136), 110th Cong, 2d sess. (26 September 2008). Regarding legal challenges, particularly those claiming that felon disfranchisement violated the Voting Rights Act, see Manza and Uggen, 225-227. In the state of Washington, a suit was filed challenging the requirement that ex-felons remain disfranchised until they had paid off all of their legal financial obligations. The claim was rebuffed by the Washington Supreme Court. Madison v. Washington, 78598-8, (Washington Supreme Court 2007). See also Chapter 8, note 113.
61 Wood, Restoring the Right to Vote, 4, 27; the states with the most exclusionary provisions tended to be in the South. Data regarding European practices are presented on p. 6. In April 2008, the House of Representatives of Kentucky (one of the two states that retained lifetime disfranchisement) voted to restore the rights of some ex-felons. Louisville Courier-Journal, 1 April 2008. In California, people in jail awaiting trial are permitted to vote. San Jose Mercury-News, 4 February 2008, online edition.
62 Pew Center on the States, “One in 100: Behind Bars in America 2008,” 5-9, www pewcenteronthestates.org/report_detail.aspx?id=35904; New York Times, 29 February 2008; ibid., 23 April 2008; Washington Post, 12 June 2008; United Nations Committee on the Elimination of Racial Discrimination, Seventy-second session, Geneva, 18 February-7 March 2008, http://www2.ohchr.org/english/bodies/cerd/docs/co/CERD-C-USA-CO-6.pdf. Wood, Restoring the Right to Vote, indicates (p. 6) that the UN Human Rights Committee in 2006 had taken a similar step. The 5.3 million figure, now widely cited, is an estimate for 2006, developed by Manza and Uggen, Locked Out, 94. According to the Sentencing Project (27 December 2007), roughly 630,000 persons had regained their voting rights as a result of the legal changes in 16 states over the preceding ten years.
63 New York Times, 10 July 2004; Wood, Restoring the Right to Vote, 14-15.
64 New York Times, 10 June 2004; ibid., 16 and 20 August 2004; ibid., 30 September 2004; ibid., 7 October 2004; ibid., 27 October 2006; National Commission on the Voting Rights Act, Highlights of Hearings Of the National Commission on the Voting Rights Act 2005, February 2006, 11, 12, 44-50; Spencer Overton, Stealing Democracy, 149-150, 160; Louisville Courier-Journal, 30 July 2004; Detroit Free Press, 16 July 2004; Associated Press, 10 June 2004; ibid., 21 July 2004; Washington Post, August 26, 2004. See also Laughlin McDonald, “The New Poll Tax,” The American Prospect, 30 December 2002, 62, and Mark C. Miller, testimony to the U.S. House of Representatives, Committee on the Judiciary, 15 May 2008. Regarding Native-American voting issues in general during this period, see Daniel McCool, Susan M. Olson, and Jennifer L. Robinson, Native Vote: American Indians, the Voting Rights Act, and the Right to Vote (New York, 2007).
65 New York Times, 28 April 2008; ibid., 13 June 2008; Washington Post, 6 October 2004. Los Angeles Times, 29 March 2007. Florida’s 2006 law was prompted by widely circulated reports that the community organization, ACORN, had engaged in multiple acts of fraud while conducting a registration drive in the state, including failure to turn in registration forms filled out by Republicans; subsequent litigation suggested that these acts of fraud had not occurred. Minnite, Voter Fraud, 24.
66 What Went Wrong in Ohio: The Conyers Report on the 2004 Presidential Election, introduction by Gore Vidal, edited by Anita Miller (Chicago, 2005), 3-4, 17-34, 37-43; New York Times, 30 September 2004; ibid., 27 October 2006; ibid., 20 March 2007; Robert F. Kennedy, Jr., “Was the 2004 Election Stolen?” Rolling Stone, 15 June 2006, 46-114; Christopher Hitchens, “Ohio’s Odd Numbers,” Vanity Fair, March 2005, 214. These investigations also recount details of irregularities with the state’s voting machines and with its preliminary recount (the latter led to jail sentences for two officials). Most studies of the irregularities in Ohio, however, concluded that they were not on a scale large enough to have affected the outcome of the election. Henry E. Brady, Guy-Uriel Charles, Benjamin Highton, et al., Interim Report on Alleged Irregularities in the United States Presidential Election of 2 November 2004, Social Science Research Council, 22 December 2004, http://www.verifiedvoting.org/downloads/InterimReport122204.pdf; R. Michael Alvarez, Henry E. Brady, Guy-Uriel Charles, et al., “Challenges Facing the American Electoral System: Research Priorities for the Social Sciences,” Social Science Research Council, 1 March 2005, available from the SSRC or from the author.
67 Fund, Stealing, 20-22. An extensive list of Republican charges regarding Democratic voter suppression is contained in a report from th
e American Center for Voting Rights Legislative Fund, dated August 2, 2005, and entitled Vote Fraud, Intimidation and Suppression in the 2004 Presidential Election: see both the letter of introduction and the section entitled “Charges of Voter Intimidation and Suppression Made Against Democratic Supporters.” The ACVR, as noted below, was the creation of Republican activists. Both the organization and its website were dismantled in 2007; the archival address for this report is http://www.foxnews.com/projects/pdf/Vote_Fraud_Intimidation_Suppression_2004_Pres_Election_v2.pdf. More information about ACVR can be found on the website of one of its adversaries, Brad Friedman; see http://www.bradblog.com/?page_id=4418.
68 Fund, Stealing, 41-110; testimony of Mark F. (Thor) Hearne, II, Committee on Administration, House of Representatives, 109th Cong., 1st sess., 21 April 2005; New York Times, 11 April 2007. The outcome of the Miami election had been reversed, months after the election, when it was determined that numerous absentee ballots were fraudulent. The issues in Missouri included fraudulent registrations, felon voting, and the necessity of keeping the polls open beyond normal hours. Regarding the allegations of fraud in South Dakota and elsewhere among Native Americans, see McCool, Olson, and Robinson, Native Vote, 142-143.
69 See, for examples, Fund, Stealing; Overton, Stealing Democracy; the report of the ACVR cited above, and a study sponsored by Demos, Securing the Vote: An Analysis of Election Fraud, by Lori Minnite and David Callahan (New York, 2003). Minnite published an updated and enlarged version of her study as The Politics of Voter Fraud (see note 5 above) and further updated her report for Demos in September, 2007, with the new title of An Analysis of Voter Fraud in the U.S.
70 New York Times, 11 April 2007; Will Lester, “Report: Voter Fraud May be Overstated,” Associated Press Online, 11 October 2006; “Election Assistance Commission’s Voter Fraud Report,” USFed News, 13 December 2006; Washington Post, 22 June 2007; Tova A. Wang, “A Rigged Report on U.S. Voting,” Washington Post, 30 August 2007; U.S. EAC, Election Crimes; Matthew Murray, “EAC Blasted Again for Burying Study,” Roll Call, 9 April 2007 and “Durbin, Feinstein Slam EAC Over Voting Studies,” Roll Call, 16 April 2007; “Statement by Commissioner Gracia Hillman U.S. EAC Regarding Release of Voter Fraud Consultant Report,” States News Service, 16 April 2007; a detailed critique of the EAC report can be found in Ralph G. Neas, “Whitewashing the Facts: EAC Report Ignores Key Data,” People for the American Way Foundation, December 2006; Serebrov, in an email to an EAC staff member in October 2006, claimed that he and Wang had “worked hard to produce a correct, accurate, and truthful report. . . . Neither one of us was willing to conform results for political expediency.” New York Times, 11 April 2007. See also, J. Gerald Hebert, “‘He Said, She Said’ at the EAC,” Campaign Center Legal Blog, 13 March 2008, http://www.clcblog.org/blog_item-216.html.
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