Although all the interest surrounding the Nov. 4, 2008, elections currently is directed at the presidential candidates, the state election systems on which we’ll rely that day also require greater attention.
The act of voting is vital to preserving America’s democracy. Yet the election systems that the United States will use to cast and count votes, resolve disputes, and select our next president remain flawed.
From voting machines to provisional ballots to voter identification requirements, the “nuts and bolts” of the country’s election systems have generated bipartisan concern and a variety of reform efforts over the past seven years. We eliminated punch cards and implemented provisional balloting to protect against disenfranchisement from errors in the voter rolls. But vulnerabilities remain that could cause serious problems in future elections.
We have just completed a yearlong study of the election systems of five Midwestern states: Illinois, Michigan, Minnesota, Ohio and Wisconsin. These states embody a variety of approaches to election administration, emblematic of the administrative structures and election procedures found in similar systems across the country. Most of these states have the potential to be “battleground” states in 2008, and each had a 2006 gubernatorial election that we examined. Their quality of election policies and procedures spanned a wide spectrum — some were relatively sound (Minnesota and Wisconsin), while others were not (Ohio and Illinois).
Among the problems we found: poll workers who were unaware of or unable to enforce regulations; partisan election administrators issuing inconsistent or illogical rulings; arcane policies that prevented some voters from registering; and inconsistencies in administering rules, resulting in voters receiving unequal treatment.
Our study leads us to make several suggestions for legislative leaders, as well as state and local election officials. Mindful that too much reform too quickly presents its own dangers, we tailor our recommendations to those that would be less likely to cause inadvertent disenfranchisement resulting from polling place confusion. Here are our main proposals:
States should improve access by reducing barriers to registration. Making it easier to register to vote is one of few reforms that have proved to increase voter turnout. One way of increasing voter turnout is Election Day registration, when eligible citizens whose names do not appear on the list can register on the spot and vote. Minnesota and Wisconsin are among several states that have achieved great success with EDR. Although these states do not suffer from fraud that would undercut the use of EDR or discourage its use elsewhere, other states reluctant to embrace this reform might consider Michigan’s system of affidavit voting, which protects voters whose names are not on the voter rolls even though they have attempted to register.
States need to ensure polling places have enough well-trained poll workers. This was a problem in each state we studied. Such issues inevitably lead to voting delays, increase the number of provisional ballots issued and possibly create security questions.
States should expand in-person early voting instead of no-excuse absentee voting. No area presents a greater risk of voter fraud than the absentee ballot process. If states wish to make voting more convenient, we suggest they implement the more secure, in-person early voting.
State legislatures must provide the tools necessary to enforce consistency across counties and municipalities. Our study confirmed that state election laws were not always being followed on the local level. Consistent treatment of voters and votes is essential to sound election administration. To better enforce compliance with uniform state policies, state election officials should condition state funding on local compliance and conduct audits of local practices.
States need to re-examine their post-election dispute procedures. States need to make sure they have clear, bipartisan and transparent processes for canvasses, recounts and contests. They also should consider creating specialized election courts — structured to be bipartisan — to deal with post-election disputes. Ideally, judges resolving election disputes should be above the partisan fray, as well as able to act with unusual speed. In our five-state study we are concerned that each state’s judiciary would be perceived by its citizens not as neutral, but rather as political allies of one side or the other.
Congress should allow states more time to complete recounts and resolve election contests in presidential elections. The current presidential election calendar does not give states enough time to resolve disputes and could potentially leave the selection of a state’s presidential electors to the House of Representatives. By simply delaying the Electoral College meeting to Jan. 3, states would have an additional three weeks to resolve issues like those that arose in 2000.
These are just a few of the reforms that we suggest. If our political representatives are to serve with their electorate’s full confidence, the processes used to select those representatives must be sound. As a nation, we must continue improving our election systems to promote greater access, integrity and finality. Our democracy depends on it.
Steven F. Huefner, Daniel P. Tokaji and Edward B. Foley are professors at The Ohio State University Moritz College of Law and faculty of Election Law @ Moritz, a nonpartisan organization that analyzes election law issues. The three are co-authors of “From Registration to Recounts: The Election Ecosystems of Five Midwestern States.”