The Common Good
June 2007

Free and Fair?

by Meg E. Cox | June 2007

When it comes to defending the vote, democracy is in the details.

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It was a Twilight Zone moment. At a conference last summer commemorating the 40th anniversary of the Chicago Freedom Movement, veteran activists sat on stage alongside young people ready to start a movement of their own. Just days before the conference, the U.S. Senate had unanimously approved extension of the Voting Rights Act of 1965.

The panel was taking questions from the audience. I stepped up to the mike.

"I'd like to hear the panelists comment on the situation with voting rights."

The moderator repeated his earlier instructions: "The panelists will only be fielding questions on current issues so the young people can answer too."

Voting rights no longer current? This was the last thing I expected to hear. I trembled as I challenged the moderator. "But this is a current issue. There's Ohio 2004 and all the problems detailed in the Conyers report, and the Georgia Voter ID bill."

"No, didn't you hear?" the moderator insisted. "Voting rights renewal passed. It's not an issue anymore." Chastened, I took my seat.

What is so pernicious about the present assault on voting rights is that it remains invisible to those who don't believe it exists. The butterfly-ballot debacle of Florida 2000 was a massive case of "document illiteracy," according to a guest on NPR's Fresh Air. Vote flipping—when you touch the screen for one candidate and a vote appears to register for another—is caused by user error. Election administration is neutral, and anyone who says otherwise is just crying over a lost election.

If only it were that simple.

AFTER THE PANEL moderator's perplexing dismissal, I was glad to be heading to a session on voting rights. But the workshop was poorly attended. Four young people joined the few adults for a short time, then left when the most vocal of them made it clear that they already knew all they needed to know. As they headed for the door, workshop co-moderator Gary Flowers of the Rainbow PUSH Coalition pressed on them an information sheet asserting that there is no constitutional right to vote.

The 15th Amendment, for example, gave voting rights to African-American men at the end of the Civil War but did not guarantee them the vote. It simply said that they couldn't be denied the vote on the basis of "race, color, or previous condition of servitude." So for the next century, people who wanted to keep blacks from the polls instituted restrictions that weren't explicitly racial but that would disproportionately affect African Americans. The Voting Rights Act put the brakes on such practices but didn't eradicate them entirely.

To find out how this question plays out in constitutional law, I asked Spencer Overton, law professor at George Washington University, member of the Carter-Baker Commission on Federal Election Reform, and author of Stealing Democracy: The New Politics of Voter Suppression. "We have several cases that mention the 'fundamental' right to vote," he explained, but there are also passages in Supreme Court opinions "by people like Justice Scalia that suggest that no constitutional right to vote exists. Jesse Jackson Jr. agrees; we simply have these categories—like race and gender—that are explicitly protected."

Overton's own position is that there is a fundamental right to vote but that "there have to be some rules to organize the vote." The question is, "How far is too far in terms of state regulation before we start to infringe on voting liberty? Jurisprudence is not developed enough to give us consistent guidance," Overton said.

Jackson, a Democratic member of Congress from Illinois, has proposed a constitutional amendment explicitly affirming the right to vote; of course, the amendment recognizes the necessity of federal and state regulation—the rules election administrators are supposed to live by. But when distorted in legislation or practice, such regulation is where many of the disfranchising problems lie.

LAST SUMMER'S VOTING Rights Act (VRA) renewal was important. The original landmark legislation restored to African Americans in the South a right that had been snatched from them in the ironically labeled "redemption" era of the late 19th century. But this powerful law has limits.

One requirement of the VRA is that if certain jurisdictions (mostly in the South) make changes to their election rules, those changes must be submitted to the Justice Department for approval before they take effect. This is called preclearance. The Justice Department is supposed to reject any rules that are racially discriminatory.

But this works only if the Justice Department is doing its job. Lately some very strange rules have made it through preclearance. The Georgia voter ID law is one of them.

In 2005 Georgia closed down the Department of Motor Vehicle Safety (DMVS) offices in many of its counties, including Fulton County, where Atlanta is located. That same year Georgia passed a law saying that voters in the state must have a photo ID that could be obtained only at the DMVS. Many residents would have to travel relatively long distances to obtain an ID before they could vote. According to Georgia's secretary of state, Cathy Cox, the requirement would be a "very significant obstacle to voting on the part of hundreds of thousands of Georgians, including the poor, the infirm, and the elderly." Cox also asserted that the bill was unlikely to receive Justice Department preclearance. Surprisingly, a Justice Department official, in contradiction to his own staff's recommendation, determined that the requirement was not racially discriminatory and let it go through.

Imperfect as preclearance can be, in parts of the country not subject to it, discriminatory rule changes are difficult to challenge at all before they've done their damage.

COURT INJUNCTIONS eventually stopped the Georgia law and a similar measure in Missouri, but Indiana's photo ID requirement has taken effect. More states aim to follow Indiana's lead, especially now that the Carter-Baker Commission has recommended that photo ID be required for voting nationwide.

The House of Representatives tried to turn that recommendation into federal law with a bill requiring voters to present a government-issued photo ID that shows citizenship status. Currently that usually means a passport, which only 25 percent of Americans have. Fortunately, the Senate did not take up the measure.

Photo ID is a sound-bite campaigner's dream: "You need an ID to rent a video or get on a plane. Isn't voting more important than that? You don't want some illegal immigrant canceling out your vote, do you?"

The prevailing counterargument isn't so easily reduced to sound bites, but it's not terribly complicated either. It goes like this:

1. Strict photo ID requirements are intended to stop voter impersonation, voting by noncitizens, and double voting, forms of fraud that are very rare, to the tune of less than .001 percent of votes.

2. An estimated 20 million Americans don't have the right kind of ID, and many lack the documents necessary to obtain one. Elderly and disabled people, poor people, and college students are the most likely to be affected.

3. Existing identification requirements are sufficient to prevent the kinds of fraud that photo ID is meant to address.

"While a small amount of voter fraud hypothetically could determine a close election," Spencer Overton writes, "the exclusion of 20 million Americans who lack photo identification could erroneously skew a larger number of elections." (Overton's dissent from the Carter-Baker ID recommendation is at carterbakerdissent.com.)

WHILE VOTER ID proponents are sounding the alarm about individual vote theft, the potential to steal entire elections is right under their noses.

The key term here is DRE. A DRE is a direct-recording electronic voting machine. You touch the screen, and the machine records your vote. When the polls close, the machine reports the vote totals. Simple.

But what if you touch the screen for Mary Jones and the DRE records a vote for John Smith? Is there any way you would know? All over the country there have been cases in which voters touch the screen for one candidate, and the other candidate pops up as their choice. They try again and again until the screen tells them what they want. But who knows what the machine is recording?

What if the DREs say that thousands of people declined to vote in a key race? That happened last November in Florida's 13th congressional district, home of former Florida secretary of state Katherine Harris, who lost her primary bid for the seat in 2006. The supposed winner in the general election, a Republican, squeezed past his opponent by fewer than 400 votes in the official count—but some 18,000 voters in heavily Democratic Sarasota supposedly ignored the congressional race. With no paper records to compare to the computer tally, no one knows what those 18,000 voters intended.

In 2008 Sarasota also will have paper records, thanks to a successful citizens' referendum. But such records are useful only if they're counted and compared to the machine tally, which usually happens only in a recount. Some activists say we should scrap DREs altogether. Others say they are okay if there are mandatory audits in every election to bring discrepancies to light before it's too late.

If we abandoned DREs, would we have to go back to punch cards or hand counting? No. A viable alternative is the optical scan ballot, where the voter uses a pen to fill in an oval or connect two parts of an arrow. Of course, these should also be audited with a partial hand tally to be sure the ballot scanners are counting correctly.

Most of the DREs and ballot scanners in the U.S. are made by two companies, Diebold and ES&S, headed in part by brothers Bob and Todd Urosevich, respectively, who were helped into the voting-machine business by Christian dominionist and financier Howard Ahmanson. While Diebold was cranking out thousands of machines for the 2004 presidential election, CEO Walden O'Dell, a supporter of the Bush-Cheney ticket in Ohio, wrote in a fund-raising letter that he was "committed to helping Ohio deliver its electoral votes to the president."

Two years later it came to light that the parent company of another major voting-machine maker, Sequoia, is a Venezuelan firm called Smartmatic. Democrat Ed Burke, a 38-year Chicago alderman, insisted that local vote-counting problems in the 2006 primary were the result of an international conspiracy. I was glad that a prominent elected official was saying publicly that voting machine companies with ulterior motives could compromise our elections, but wondered why few politicians of either party were raising Cain over suspect domestic ownership patterns.

WHY DO WE SUDDENLY have all of these electronic voting machines? After the Florida 2000 meltdown, legislators made a way for states to replace their voting equipment. The Help America Vote Act of 2002 (HAVA) authorized hundreds of millions of dollars for new equipment and mandated that one "system" at each polling place be accessible to language-minority voters and people with disabilities. According to the law, that "system" can be a single machine, but with so much money flowing, many jurisdictions replaced all their old equipment. Some converted entirely to DREs.

There are some ironic elements of this otherwise laudable drive for accessibility. One is that states acquired the new and often untested technology more quickly than the agency charged with overseeing the process—the U.S. Election Assistance Commission—could get up and running. This is partly because of the compressed timeline for HAVA compliance and partly because of foot-dragging in Washington.

Another irony is that some localities are responding to the increased costs and logistical challenges of electronic voting by creating a smaller number of vote centers and eliminating neighborhood polling places, making accessible machines inaccessible to people who can't drive.

And you know those long lines in Ohio in 2004? There were too few voting machines in those precincts. With no alternative way to cast a ballot, people who didn't have the stamina to stand for hours in line had little choice but to go home without voting.

At another conference I attended last summer, Bob Fitrakis of The Free Press of Columbus, Ohio, ran through a long list of things that went wrong in the 2004 election in his state. "They call us conspiracy theorists," he said of his critics, "but you know what they are? Coincidence theorists!"

Whether the cause is conspiracy or coincidence or something in between, it's clear that all is not well with our election system—and that is a current voting rights issue.

Meg E. Cox is a freelance writer and editor in Chicago.

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