The “butterfly” ballots of Florida’s Palm Beach County that snarled up the 2000 presidential election with their hanging, pregnant, and otherwise perplexing “chads” have since been replaced by optical scan cards—but a recent test during a local judicial election found that new machines that count them couldn’t come up with the same result twice. As early voting gets underway across the sprawling, decentralized American election system, technical glitches and pre-emptive partisan lawsuits are putting nerves on edge in anticipation of the record throngs expected on Nov. 4. In North Carolina, voters wanting to pick a “straight Democratic ticket” have to remember that they need to vote for Barack Obama on a separate presidential ballot. In West Virginia, some Democratic voters said touch-screen voting machines literally changed their votes from Obama to John McCain before their very eyes. The state’s deputy secretary of state Sarah Bailey told the Charleston Gazette on Friday, “Sometimes machines can become miscalibrated when they are moved from storage facilities to early voting areas.” She ordered a recalibration.
And the election lawyers have been mustering. A Democratic attorney in Fort Lauderdale, Fla., Charles Lichtman, has boasted that he will effectively lead the largest law firm in America on Nov. 4 when he commands close to 5,000 lawyers who will show up at the polls to assist voters, resolve conflicts, and if necessary, sue. Republican lawyers have sprung into action in Ohio, where they sued the secretary of state, Democrat Jennifer Brunner, to provide lists of voters whose registration information does not match information in other state databases. Brunner says most differences are due to clerical errors. (Even Joe Wurzelbacher, aka “Joe the Plumber,” the now famous critic of Obama’s tax plan, has his name misspelled on Ohio voter rolls as Worzelbacher.) The case made it all the way to the U.S. Supreme Court, which found last Friday that the state party did not have standing to bring the lawsuit. No matter, others are in the works.
Distrust permeates the system. Part of the Obama campaign’s strategy is to register legions of new voters—especially among young people and African-Americans, who tend to vote Democrat. Republicans are suspicious of the groups doing the registering. One such group, ACORN, the Association of Community Organizations for Reform Now, handed in registration forms with some false names such as Mickey Mouse and addresses that turned out to be empty lots. The group, which is obligated by law to turn in all the forms, blamed low-wage workers trying to make more money by padding their numbers. But the FBI is investigating, and during the last debate McCain accused ACORN of “maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.” He could be right—if Mickey actually gets to cast a ballot.
It was all supposed to be better this time. After the debacle of 2000, Congress passed a federal law, the Help America Vote Act, to avoid similar mishaps. It included money for new machines to replace problematic systems such as Palm Beach County’s punch-card butterfly ballots, and a system that would allow voters who believe they are wrongly deemed ineligible to cast a provisional ballot and have their cases resolved after the election. But as it turns out, since 2000 things have gotten messier. Before George W. Bush vs. Al Gore, an average of 96 lawsuits involving election law were filed each year; since 2000, the annual average has more than doubled to 231, according to Richard Hasen, an election law expert at Loyola Law School in Los Angeles. “The system wasn’t good before 2000, but in some ways it’s gotten worse,” he says. “Part of the problem is more people are looking for problems. Litigation has become an important piece of campaign strategy for both campaigns.”
The American system is a target-rich environment. It’s not just that the Electoral College system—each state has a prescribed number of electors who cast their votes according to which nominee wins their state—allows certain counties in swing states to play an outsized role in choosing presidents. Instead of a centralized authority like Elections Canada running the elections, there are up to 14,000 separate electoral jurisdictions in the U.S. There are no uniform national ballots. There is no national registry of voters. And most of the process is in the hands of partisans: chief election officials are elected in 33 states. “We think of presidential elections as a national thing but it really is a state government function to figure out who the state’s electors are,” says Edward Foley, director of the election law program at Ohio State University. “The basic architecture of the system is still 18th century.”
Foley says both parties have incentives to create a fuss. “In the election business, the cliché where there is smoke there is fire is not necessarily true,” he says. “There is a political incentive to create smoke or clouds, and it’s important for the media to help clear the air and show there wasn’t fire.” Hasen predicts that “we are pretty much guaranteed there will be problems somewhere in the election.” But the question is where they will matter to the final outcome—and there the answer is more reassuring. The number of disputed ballots would have to be huge—and in a crucial swing state that was too close to call. “It’s unlikely,” says Hasen.
But Foley has been thinking about worst-case scenarios. On Monday he organized a legal experiment that proves it doesn’t take a technological problem to snare up the election. In what Foley calls a “hypothetical (one hopes) scenario,” he imagined a case in which Colorado emerges as the decisive swing state in the election (not impossible). He further imagined that Denver is hit by a severe snowstorm that makes it difficult for voters to reach polling stations (also plausible). In his scenario, the city’s top election official is a Democrat who directs Denver polls to stay open two hours later than elsewhere in the state. Foley’s fictitious Colorado secretary of state is a Republican who immediately seeks a court injunction to prevent the extra votes from being counted. They turn out to be numerous enough to turn the election. What now? Foley brought in top lawyers in Washington to argue the cases, and three retired judges to resolve it. The experiment was supposed to test how a neutral tribunal would deal with such a conflict.
How did it go? So far, slowly. As of press time, the judges were still deliberating.