Primary Education. Election Reform and the 2004 Presidential Race

Transcription

1 Primary Education Eection Reform and the 2004 Presidentia Race

2 PrimaryEducation Eection Reform and the Presidentia Race C2

3 Executive Summary Miions of voters wi return to the pos in the coming weeks to cast baots in the 2004 primaries. This is the first presidentia contest since the 2000 eection, which exposed major faws in America's voting process, and the first federa eection since passage of the Hep America Vote Act. For a number of states, this is the first test of substantia changes to their system of eection administration. Voting Machines The most controversia and widey-covered aspect of eections the voting machines wi continue to be controversia around the country. Whie HAVA s $325 miion optiona buyout program to repace two frequenty criticized systems punch cards and ever machines is underway nationwide, the report found that in the primaries: The Hep America Vote Act, passed by Congress in 2002, authorized $3.86 biion in federa money to be distributed to the states for eection upgrades, incuding the purchase of new voting machines, the creation of statewide voter registration databases and other voting improvements. It aso required that states this year offer provisiona baots, verify the identity of firsttime voters who register by mai, post voting information at the poing pace and have an administrative compaint procedure in pace to address probems at the pos. In this report, eectionine.org and The Century Foundation examined nationa eection reform issues around the country that wi have an impact on the 2004 primary eection season. It aso specificay examines changes to voting procedures and potentia voting probems in the 22 eary primary states that wi be the key battegrounds as the Democratic contenders seek to secure their party s presidentia nomination. The information beow pertains ONLY to key primary states and does not represent a nationwide survey of eection administration changes. Punch cards wi be used in seven states Mississippi, Missouri, Ohio, South Caroina, Tennessee, Texas and Virginia. Lever machines wi be used nine states Connecticut, Louisiana, Massachusetts, Mississippi, New York, Tennessee, Texas, Virginia and Wisconsin. Just as significanty, many voters in key primary states wi cast baots on new voting systems they did not use in Ten states Arizona, Caifornia, the District of Coumbia, Forida, Georgia, Louisiana, Maryand, Massachusetts, Ohio and Wisconsin have repaced machines in some or a of their voting precincts. Voter Identification Per HAVA, a key primary states wi ask firsttime voters who register by mai for some form of identification when registering or casting baots. Additionay: In a, 19 of the 22 key primary states (incuding Massachusetts though it has a rarey-used oca option for voter identification) did not have identification Primary Education Eection Reform and the Presidentia Race 1

4 requirements prior to 2000 and wi require identification of some voters at the pos. Ony South Caroina, Louisiana and Deaware had ID requirements in pace in Seven key primary states have opted to enact more stringent voter identification procedures that wi require more voters to show some form of verification before voting. 1 Those are Connecticut, Forida, Louisiana, Missouri, South Caroina, Tennessee and Virginia. Provisiona Baots Five other key primary states have made revisions to their provisiona voting rues, some quite significant. Those changes mosty entai revising rues that aowed for chaenge or affidavit baots that are used somewhat differenty than provisiona baots as defined by HAVA. This does not incude the HAVA requirement for a notification to-free number or Web site for voters to find out if their provisiona baots were counted, which most states must put in pace. Those key primary states that enacted or wi be required to enact significant changes to their provisiona baot rues are Connecticut, Massachusetts, Mississippi, Texas and Virginia. Primary Education Eection Reform and the Presidentia Race 2 Two-thirds of the key primary states wi have either revised rues for provisiona voting or wi offer provisiona baots for the first time in a presidentia eection. Eight states are introducing provisiona baots for the first time (since the 2000 presidentia eection Deaware, Forida, Louisiana, Missouri, Okahoma, Rhode Isand, Tennessee and Vermont). For More Information: Dan Seigson (dseigson@eectionine.org) or Tova Wang (wang@tcf.org).

5 Tabe of Contents Executive Summary State-by-State Listing by Primary Dates Introduction Federa Eection Reform at a Gance Avoiding Mistakes: HAVA and the News...9 Nationa Issues in Eection Reform Endnotes/Methodoogy January 13, 2004 District of Coumbia January 27, 2004 New Hampshire February 3, 2004 Arizona Deaware Missouri Okahoma South Caroina February 10, 2004 Tennessee Virginia February 17, 2004 Wisconsin March 2, 2004 Caifornia Connecticut Maryand Massachusetts New York Ohio Rhode Isand Texas Vermont Primary Education Eection Reform and the Presidentia Race 3 March 9, 2004 Forida Louisiana Mississippi

6 Primary Education Eection Reform and the Presidentia Race 4

7 Introduction More than a year ago, Congress passed a package of the most sweeping changes to American eections since 1965, when President Lyndon Johnson signed the Voting Rights Act. The Hep America Vote Act (HAVA) was enacted in 2002 in the wake of an eectora fiasco in Forida that reveaed not ony widespread is in that state s eection administration, but endemic probems around the country. Antiquated voting machines ost baots; outdated and isoated voter registration databases were boated with peope who no onger ived in voting jurisdictions where they were registered, peope who no onger ived at a, and in some rare but we-pubicized cases, pets. Worse yet, some voters who showed up to cast baots were turned away, despite being eigibe and registered, disenfranchised by an eection administration system in cash-strapped states that had seen no federa investment in its infrastructure in more than 200 years. HAVA s centerpiece a $3.86 biion authorization for states to improve eections aso came with a price. States must fix their voting systems by 2006 or face action from the U.S. Justice Department. As the next presidentia eection approaches, however, the impact of HAVA is aready being fet as states prepare to buid new registration databases, enact rues such as provisiona voting and voter identification for some first-time voters and in some cases, repace the maigned punch-card and ever voting machines. With the dramatic changes promised in HAVA come questions how wi eections change around the country? How soon wi those changes be fet? How wi new rues in eection administration affect the outcome of the 2004 races? Wi there be chaos again when America returns to the pos? How wi the required eection changes impact state budgets? eectionine.org and The Century Foundation teamed up to find the answers to those questions. eectionine.org is the nation s eading nonpartisan, non-advocacy organization devoted to providing eection reform news, information and anaysis. It was estabished by The Pew Charitabe Trusts in the wake of the 2000 presidentia eection with a grant administered by the University of Richmond. HAVA s centerpiece a $3.86 biion authorization for states to improve eections aso came with a price. Primary Education Eection Reform and the Presidentia Race 5

8 Primary Education Eection Reform and the Presidentia Race 6 The Century Foundation is a nonprofit, nonpartisan organization that conducts pubic poicy research and anayses of economic, socia, and foreign poicy issues, incuding inequaity, retirement security, eection reform, media studies, homeand security and internationa affairs. In this pubication, both organizations seek to provide journaists, poicymakers and interested members of the pubic with an objective framework for ooking at the administration of the 2004 primaries. It wi not focus on candidates, campaigns nor offer predictions of winners. It wi, however, provide detais on how eections are set to change in a of the crucia primary battegrounds and how those might affect the overa experience at the pos in the upcoming eections. The first section covers the key components of the Hep America Vote Act of 2002, incuding a point-by-point breakdown of the federa government s new mandates and the timeine for state and oca compiance. In the second section, readers wi find exampes of misconceptions about How wi new rues in eection administration affect the outcome of the 2004 races? Wi there be chaos again when America returns to the pos? How wi the required eection changes impact state budgets? eection reform using news reports with erroneous information. The third section examines major eection reform issues around the country, incuding the impact of past and possibe future itigation, the impact of new voting machines and the controversy over eectronic voting and voter-verified audit trais, new mandates in states, incuding voter identification and provisiona voting and the ramifications of Caifornia s gubernatoria reca eection, during which a federa court considered deaying the vote because of continued punchmachine usage around the state. The fina section takes a state-by-state ook at eection administration changes in 22 eary primary states, focusing specificay on where the potentia for eection-day probems might occur. Research for the report in most cases came from primary source documents. Other information about how the information was obtained can be found in the methodoogy on page 42.

9 Federa Eection Reform at a Gance The Hep America Vote Act is designed to improve our eection system in two ways: by requiring the states to make certain voting reforms and by providing the states with ampe cash to do that and more. The aw addresses the probem of fawed technoogy through both mandates and money. Machines Since the punch-card baot crisis of 2000 sometimes known as the Forida fiasco of 2000 voting machines and particuary punch cards have been the center of pubic attention. The aw addresses the probem of fawed technoogy through both mandates and money. Beginning January 1, 2006, a voting systems used in federa eections MUST permit voters to verify their seections on the baot, notify them of over-votes (voting for more than one candidate in a singecandidate contest), and permit them to change their votes or correct any errors before casting the baot (jurisdictions using paper baot, punch-card, or centracount voting systems may instead use voter education for notification of over-votes); produce a permanent paper record for the voting system that can be manuay audited and is avaiabe as an officia record for recounts; provide to individuas with disabiities, incuding the bind and visuay impaired, equa access to using an independent and secret baot, through use of at east one directrecording eectronic (DRE) or other accessibe voting system at each poing pace; provide aternative anguage accessibiity as required by aw; and compy with the error-rate standards (the percentage of votes ost by the voting system) in the federa voting system standards in effect on the date of enactment. 2 Punch-card baot machines and ever machines are specificay targeted for repacement. 3 HAVA aocates $325 miion to those states that have those machines and want to repace them. However, if a state accepts money specificay for machine repacement, it must repace a the punch-card and/or ever machines in the state. Other money provided by the aw may be used by states to repace and improve their machines, no matter what type of system they empoy. States that do not repace machines are not eigibe for a share of the $325 miion. Primary Education Eection Reform and the Presidentia Race 7

10 Voter Identification Beginning January 1, 2003, the aw requires firsttime voters who register by mai to present identification either when registering or when voting in a federa eection if the state does not have a statewide voter registration database. 4 Accepted identification incudes a copy of a current, vaid photo identification (the origina if voting in person), utiity bi, bank statement, or government document that shows the name and address of the voter. 5 to cast a provisiona baot and the voter must be abe to find out what happened to his or her vote after the eection. A sampe baot and other voter information must be posted at poing paces on Eection Day. Mai-in voter registration forms must incude questions requiring voters to verify that they are U.S. citizens and od enough to vote. Primary Education Eection Reform and the Presidentia Race 8 Other Provisions Other important provisions of HAVA incude the foowing: Beginning January 1, 2004 (with an automatic waiver unti 2006) states must have an interactive and centraized statewide computerized voter registration ist accessibe to a eection officias in the state. The system must share information between voter registration and motor vehice authority databases. Voter registration appicants must provide a driver's icense number or the ast four digits of their Socia Security number on their registration appications. The states must assign a unique identifier (typicay a randomy-generated number) to individuas who do not have a vaid driver's icense number or a Socia Security number. Beginning January 1, 2004, peope who caim to be registered to vote but are not on the officia ist of registered voters must be abe It estabishes the Eection Assistance Commission, which is responsibe for the distribution of the funding, conducting studies, and generay administering the program. It requires that states receiving funding to deveop procedures for state-based administrative review and aternative dispute resoution of compaints about the aw s impementation. Funding HAVA authorized a tota of $3.86 biion over three fisca years, incuding $2.16 biion in FY03 and $1.045 biion in FY04. In eary 2003, Congress appropriated $1.5 biion for FY03. That represented a funding eve of approximatey 70 percent of the origina authorization. The buk of the money is to be spent by the states on impementing the aw s requirements and on other activities to improve eections, such as po worker training, voter education and improving poing pace accessibiity for the disabed.

11 Avoiding Mistakes: HAVA and the News Despite and perhaps because of the sweeping nature of HAVA, there are pitfas to avoid when covering it. As with any arge and compicated issue, opportunties to misinterpret abound. And unike issues that reguary make headines, such as Socia Security, heath care or crime, major eections come around once a year or ess, meaning the news appetite for the issue resembes the cichéd cyce of feast or famine. Officias misstate budget numbers and campaign workers overstate HAVA requirements, deadines and procedures. Loca eection workers give information that is exaggerated, if not outright incorrect. Mistakes can be avoided, however, with an understanding of what errors have been made frequenty and with a working knowedge of HAVA s requirements. Important and boring; important and interesting There s itte about the phrase statewide voter registration database to capture the imagination of the journaist or their audience. Databases are compicated, abstract, and most of a, boring. They invove computers, not peope, and whie the information a database disseminates can be extremey important, interest in the system itsef is amost excusivey the purview of bureaucrats, software vendors and, obviousy, database administrators. Yet, good databases can aeviate many of the probems that pague eections, incuding voters eft off ists, eection fraud and ost mai, incuding baots and other important materias. Conversey, there is no more visibe or handson prop for democracy and potentia controversy than the simpe voting machine. Pam Beach County s butterfy baot confused thousands of voters. Broward and Miami-Dade s punch-card baots ed to ambiguous votes and memorabe images of eection judges hoding baots up to forescent ights to decide whether votes shoud have been counted at a. As a resut, coverage of HAVA and resuting eection changes around the country focuses heaviy on machines. This dichotomy resuts in some imbaanced and fauty reporting. HAVA is much more concerned with the way voter information is introduced into a registration system, tracked in states and identified at the pos than it is with how voters cast their baots. 6 This section ooks at mistakes made in the ast year by topic and expains how to avoid them in reporting on the primary, the genera eection and HAVA. Voting Machines p error: The most frequent errors of fact focus on HAVA s requirements for voting systems. Under the Act, each state must repace punchcard voting systems. (The Associated Press, June 17, 2003.) h fact: HAVA specificay targets ever machines and punch-card machines for repacement. To that end, the Act estabished a $325 miion fund for Primary Education Eection Reform and the Presidentia Race 9

12 Primary Education Eection Reform and the Presidentia Race 10 The federa government is NOT phasing out punch-card machines. They are targeted for an optiona repacement program. states to repace the systems. But, the program is not mandatory. States can take the money and purchase machines that meet HAVA standards for voting technoogy. If they do, however, the entire state must repace its punch cards and/or ever machines. Hand-counted paper baots, punch cards, ever machines and a other voting systems in pace for the 2000 eection and earier can sti be used, in perpetuity, by any state that chooses to continue using the system. Those continuing to use forms of voting systems that do not identify voter errors at poing paces must devise an education program that teaches voters how to identify potentiay baot-spoiing errors and are not eigibe for the $325 miion. p error: The Fayette County Board earned ast week that the federa government is phasing out punch-card voting systems through the Hep America Vote Act passed ast year that federa aw is requiring that new machines be in operation for the next genera eection. (The Leader-Union, June 18, 2003.) h fact: There are two major factua errors in the artice. First, as previousy noted, the federa government is NOT phasing out punch-card machines. They are targeted for an optiona repacement program. Tweve states have reported their intention to repace punch-card and ever machines. Officias in other states are undecided. 7 The other reated error concerns new machines. Voting systems must meet federa standards by Even if states choose to take the money, many wi not have the new machines in poing paces in A states must have one voting machine accessibe to voters with disabiities per poing pace in pace by Accessibe means a machine with an audio output, aowing a visuay-impaired voter to cast a secret and independent baot. 8 Money Issues p error: A number of artices that have come out in the past year concerning HAVA have faied to note the differences between an authorization and an appropriation. The distinction is critica to an understanding of the impementation of the Act. The stories beow demonstrate how reporting errors can contribute to the pubic s ack of understanding about the federa government s intention for eection changes. Federa awmakers have appropriated neary $3.9 biion for states and oca governments. (The Coumbus Dispatch, Apri 5, 2003.) Punch-card baots were at the center of the 2000 presidentia fiasco in Forida, which prompted ast year s Congress to appropriate $3.9 biion to hep states repace voting machines and make other improvements. (The Washington Times, June 17, 2003.) h fact: The bi authorizes $3.86 biion. By the end of October 2003, Congress had appropriated ess than haf of the money, or $1.5 biion. The President proposed $500 miion for the Hep America Vote Act for FY 04. Sen. Christopher Dodd, D-Conn., secured passage of a Senate amendment increasing funding to $1.5 biion. In November, House and Senate budget conferees

13 agreed to incude ony the $500 miion suggested by President Bush when they passed the $88 biion Treasury-Transportation bi. However, House Minority Whip Rep. Steny Hoyer, D-Md., an origina sponsor of HAVA, said at that time that he had a promise from Sen. Ted Stevens, R-Aaska, chairman of the Senate Appropriations Committee, to address additiona funding in the omnibus spending bi. Representative Hoyer said he woud be seeking "at minimum" an additiona $1 biion. At the time of this writing, both the Treasury-Transportation bi and the omnibus spending bi were awaiting fina passage. p error: Based on a federa formua, Virginia wi get $4,000 per machine to repace each of the 2,253 mechanica ever machines and the 2,638 punch-card machines that in 2000 served 62 percent of the voting precincts in the state. (The Richmond Times-Dispatch, May 9, 2003.) h fact: According to estimates, states wi receive $4,000 per precinct or, more ikey, ess, depending on how many ocaities nationay take federa money to repace punch-card and ever voting machines. The writer in this case as in many cases was given the wrong information by an officia source. Voter Identification Certainy the most poiticaycharged of a of HAVA s requirements, the rues for voter identification neary scutted the bi in the U.S. Senate unti a compromise was reached. Repubicans sought strong measures that they said woud prevent fraud. Democrats argued an identification requirement woud disenfranchise some groups of voters. 9 p error: The federa aw mandates that states require proof of identity ony from new voters. [Gov. Katheen] Sebeius argues that the state shoud not go beyond that requirement. (The Lawrence Journa-Word, June 17, 2003). h fact: HAVA does estabish identification requirements beginning in 2004, but those rues appy to far fewer voters than this excerpt woud impy. Whie the story is amost correct, HAVA requires ony first-time voters who register by mai to show one of a number of forms of verification that do not necessariy incude a photograph. The number of voters who wi have to show identification is a smaer group than those that woud have to under the erroneous reading of the bi presented in the story above. Some first-time voters register in person, at state agencies, eection offices or other ocations, where they wi show identification. If they have presented ID, they won t have to again. The fight over voter identification has raged in state egisatures around the country for years. Repubican egisatures have pushed through bis over Democratic objections in a number of states. In Virginia, for exampe, a piot program in 1999 to require ID in 10 counties was rejected. The egisature, with the backing of the Repubican governor passed statewide poing pace identification requirements during the 2000 session. Certainy the most poiticay-charged of a of HAVA s requirements, the rues for voter identification neary scutted the bi in the U.S. Senate unti a compromise was reached. Primary Education Eection Reform and the Presidentia Race 11

14 In New Hampshire and New Mexico, Repubican-majority egisatures passed universa voter ID bis. Democratic governors vetoed the egisation in both cases. Primary Education Eection Reform and the Presidentia Race 12 With the passage of HAVA, however, a number of awmakers intent on estabishing voter ID rues found the momentum necessary to pass bis in 2003 that went beyond the federa Act s mandate. A voters wi be asked to show identification at poing paces in Aabama, Coorado, North Dakota and Montana. Voters in South Dakota wi have to show identification before receiving an absentee baot. 10 With the passage of HAVA, however, a number of awmakers intent on estabishing voter ID rues found the momentum necessary to pass bis in 2003 that went beyond the federa Act s mandate.

15 Nationa Issues In Eection Reform As the primaries approach, a few critica issues of nationa importance merit examination. Poing pace identification requirements, voterverified audit trais for eectronic machines, the continued use of punch cards and recent awsuits coud a have a marked impact on voter confidence, experiences at the pos and perhaps the outcome of some state primaries. Voting Machines Perhaps the most widey covered of a eection reform issues the question of whether eectronic voting machines shoud have a voterverified paper trai has grown from a Web site supported by Caifornia academics and computer scientists to a nationa effort and a bi in Congress. At issue: whether voters can trust the resuts on machines that cast votes without paper. Opponents of paperess voting argue that the machines are susceptibe to hacking, mafunctions or other probems that coud chaenge the integrity of the vote. They aso object to the secretive nature of the software that coects and tabuates the votes. 11 Supporters of eectronic voting, a ist which incudes eection officias, advocates for peope with disabiities and some civi rights organizations, argue that pre-eection testing as we as backup systems and carefu inspection of a machines by certified testing aboratories insures the accuracy of the vote. 12 Eection gitches and investigations seem to increase skepticism about eectronic voting. In Opponents of paperess voting argue that the machines are susceptibe to hacking, mafunctions or other probems that coud chaenge the integrity of the vote. Maryand, a Johns Hopkins University study critica of Diebod touch-screen voting machines prompted the state to conduct an investigation of its own into the system s security. 13 A November 2003 eection in Fairfax County, Virginia, conducted on new DREs raised concerns about the reiabiity and security of data transmitted over a wireess Internet network. Rep. Rush Hot, D-N.J., introduced H.R. 2239, the Voter Confidence and Increased Accessibiity Act of If enacted, Hot s bi woud require a voting machines to produce a paper record of each vote that eection officias can use to verify votes in the event of a computer mafunction, hacking, or other irreguarity. 14 Just as the debate over paper trais began in Caifornia, the Goden State was the first since the passage of HAVA to mandate their use. A recent decision by Secretary of State Kevin Sheey mandates voter-verified audit trais for a of the state's DRE machines by Lega chaenges are expected from groups incuding those representing voters with disabiities, who say it wi take away their ony recenty-gained right to a secret, independent baot. PrimaryEducation Eection Reform and the Presidentia Race 13

16 Primary Education Eection Reform and the Presidentia Race 14 Voter Identification HAVA requires that voters casting a vote in a jurisdiction for the first time who register by mai provide one of an enumerated ist of identification documents, either with the registration form or at the poing pace. Civi rights and iberties organizations, sef-procaimed government watchdogs and some awmakers opposed incuding this provision in the aw. When the issue came up in Congress, a partisan divide deveoped Democrats amost universay opposed it, whie most Repubicans supported it that amost sunk the egisation. Both of New York s senators, Hiary Cinton and Chares Schumer, voted against the bi because of its identification requirements. It was incuded mosty at the insistence of Repubican awmakers, Sen. Christopher Bond in particuar, R-Mo., who argued it was a fair and effective means to prevent vote fraud. 15 Civi iberties advocates and others contend that there is a significant risk of eection officias and po workers seectivey asking for identification or appying the requirement incorrecty by demanding identification from voters who are not mandated to present it. Those who oppose any identification requirements say the compromise version is no ess troubesome. Civi iberties advocates and others contend that there is a significant risk of eection officias and po workers seectivey asking for identification or appying the requirement incorrecty by demanding identification from voters who are not mandated to present it. They are aso concerned that po workers might fai to te voters the compete ist of identification options when they arrive at the pos. In states that aready have photo ID requirements simiar to the new federa provision, civi rights advocates argue there has been a discriminatory impact on racia and ethnic minority voters, persons with disabiities, the edery, youth and the homeess. 16 To mitigate the possibe detrimenta effects of the new ID requirement, advocates are asking state egisatures to expand the types of identifications accepted beyond what HAVA provides. 17 Their cas have been unsuccessfu; no state has yet expanded the avaiabe identification aternatives beyond what is specified in HAVA. There is aso a dispute over what registrations received by mai means. Civi iberties advocates argue that if an organization conducts a voter registration drive and hand deivers the resuting forms to a registrar, those are not registrations by mai and the ID requirement does not appy to those appicants, even if the mai-in form is used. 18 This appears to sti be an open question. Finay, awmakers in some states have used the passage of HAVA to require a voters to present identification in many cases, as a way to address concerns about propery identifying which voters have to show verification and which ones do not. 19 States that have attempted to pass such egisation since HAVA incude Aabama, Arizona, Caifornia, Indiana, Iowa, Kansas, Maryand, Massachusetts, Mississippi, Nebraska, North Caroina and Rhode Isand. States that have actuay enacted such a provision since HAVA incude Coorado, Montana, North Dakota, and South Dakota.

17 Litigation After Bush v. Gore, the first presidentia eection to be decided by a court, it seemed to foow ogicay that the aftermath woud invove the ega system as we. Organizations brought a furry of awsuits aeging voting rights vioations in that eection and others. In eary 2001, the ACLU and other groups fied awsuits in Georgia, Forida and Iinois, aeging African American voters were prevented from having their votes counted because of irreguarities in the voting process. 20 The ACLU of Forida sued the state in 2001 to hat some provisions of the state s new eection reform aw. 21 They aso setted with the state in a case that utimatey ed to thousands of ex-feons having their voting rights restored. 22 In 2002, the ACLU sued Ohio over its aeged unequa use of punch-card baot machines in some parts of the state. 23 Groups representing peope with disabiities have aso been active. The American Association of Peope with Disabiities and the Disabiity Rights Counci sued the District of Coumbia aeging its voting equipment and poing sites were inaccessibe to the disabed. 24 The Nationa Organization on Disabiity and nine disabed citizens fied suit in federa court in Phiadephia. 25 In the recent Caifornia reca eection, the ACLU sued the state before the eection arguing there was a high ikeihood that voters sti voting on punch card baot machines woud be far ess ikey to have their vote counted than voters in other parts of the state using more advanced voting technoogy. 26 Indeed, as a resut of an earier awsuit brought by the ACLU and others, the state was compeed to repace a of its punch-card machines by The organization utimatey ost the case, and since it decided not to appea to the Supreme Court, there is sti no definitive answer as to whether using what some contend are inferior machines in some parts of a state but not others The Caifornia reca case is a warning sign for what might happen nationwide a few months from now when the presidentia primaries begin. vioates the Constitution. As became evident in the aftermath of the reca (see sidebar), the ACLU s concerns were not unfounded. If the reca eection had been at a cose, there is no doubt severa awsuits on the same vioation of equa protection grounds woud have been mounted. As a resut, the Caifornia reca case is a warning sign for what might happen nationwide a few months from now when the presidentia primaries begin. Is the door now open to itigation in every state that has more than one type of voting machine and where the eection is at a cose? Missouri, which votes on February 3, is an eary and important Midwestern test for the candidates. It was the site of controversy and itigation in 2000, rivaed perhaps ony by Forida. Thirty-seven of its counties use punch-card baot machines, and 70 counties use optica-scan machines. In the 2000 genera eection, ess than 79,000 out of amost two and a haf miion votes cast separated George Bush and A Gore. In the aftermath of Bush v. Gore and Caifornia, if the margin is simiary cose in the 2004 genera eection, the prospects for itigation woud appear to be high. Ohio votes on the crucia Super Tuesday, March 2. In that state, 66 counties use punch-card machines, whie the other 22 use a variety of other types of systems. In 2000, George Bush beat A Gore by a sma margin. A state study of voting systems after the 2000 eection found that the 29 counties with the highest number of spoied baots a used punch cards. Likewise, the seven counties with the owest percentage of spoied baots did not use punch-card baot machines. The state is Primary Education Eection Reform and the Presidentia Race 15

18 Primary Education Eection Reform and the Presidentia Race 16 trying to repace its machines, but wi not compete the job in time for the 2004 primary. Moreover, disparate use of voting machines is ony one of many possibe grounds for ega action in an eection. In a poitica environment where poitica issues increasingy find their way into the judicia system, 2004 wi give us a strong indication as to whether this wi continue to incude eections. Provisiona Voting Under HAVA, a states must provide provisiona baots for voters whose names do not appear on the registration ist or for those who need to bring identification and have not done so. Whether that vote is actuay counted is another matter. The decision to count or not count an individua baot must be made, vaguey stated, in accordance with State aw. Civi iberties advocates and the Nationa Commission on Federa Eection Reform have argued that provisiona baots cast in the wrong jurisdiction within a state shoud nonetheess be counted for those races the voter is eigibe to vote in such as a U.S. Senate race even if he or she is not eigibe to vote for a oca office because he or she is not a resident of a particuar ward or district. 28 Moreover, there is aso concern about the impementation of the provisiona baot requirement, especiay in those states that have never used them before. Even jurisdictions that have for years empoyed a form of provisiona baoting report po workers who have not actuay provided them to voters who shoud receive them. 29 The issue is now of greater concern given the new identification requirements HAVA imposes. Punch Cards and the Caifornia Reca by Dan Seigson Reprinted from Campaigns & Eections Magazine In ate spring 2003, Los Angees Registrar Conny McCormack invited reporters to a retirement party for the county s punch-card voting system. Whie tongue-in-cheek, the occasion nonetheess marked a turning point for the nation s argest voting jurisdiction the neary 4 miion registered voters woud never again use the voting system after the June 2 municipa eection. Aas, there was no such fanfare when the system was un-ceremoniousy un-retired four months ater, as the Caifornia gubernatoria reca eection sent McCormack and eection officias in four other popuous counties scrambing to fetch their punch cards out of warehouses. They woud be used in one fina eection and a big one at that. Three years after the November 2000 eection made the system synonymous with eectora dysfunction in South Forida and beyond, punch cards again made headines, this time for awsuits before an eection. One such awsuit brought by the ACLU which aeged that the punch-card system was responsibe for disenfranchising those who ive in jurisdictions that use them neary succeeded.

19 The ramifications of the decisions by the U.S. Ninth Circuit Court of Appeas to deay and then reinstate the Oct. 7 vote, were fet by eection officias a over the country who currenty conduct eections on punch cards. At the time, I asked eection officias [in punchcard jurisdictions] if they coud put in a new system in a hurry if the court made them. A ot said no, they coudn t, said Doug Lewis, director of the Houston-based Eection Center, an umbrea organization of state and oca eection officias. It is possibe that they might have to. Whie the wide margins of victory for both candidates and baot questions eiminated post-eection suits contesting the outcome of the October vote, questions were again raised about the voting systems. U.C. Berkeey poitica scientist Henry Brady said after the eection that 176,000 votes were ost on the first baot question whether to reca Gov. Gray Davis because of the punch card system. Loca officias, incuding McCormack, contested those numbers. McCormack said the voters were undecided on the race and expressed their trepidation about the reca by abstaining from voting on the question. For McCormack and eection officias in the other Caifornia counties that used them, the punch-card controversy is over. New machines wi be used next year as the resut of a state aw banning the oft-maigned punch cards. Outside the state, however, one out of five Americans wi cast a baot for president on a punch card. According to Eection Data Services, 30 percent of voters in the country cast baots on punch-card machines in That number dropped to 21 percent in 2002, argey due to new touch-screen machine purchases in Georgia and parts of Forida. With miions of federa doars promised under the 2002 Hep America Vote Act sti in fux, it is uncertain now how many states that pan to scrap punch cards wi do so in time for the 2004 eections. And courts have sti not given any cear signa whether punch cards coud potentiay cause Caiforniaike controversies outside of the Goden State. Those opposed to the continued use of the voting system say eection officias using the system next year shoud regard the ega troubes before the reca eection as an omen. The Caifornia case is a warning sign for what might happen a few months from now when the presidentia primaries begin, said Tova Wang, a senior program officer at the Century Foundation, which studies eection issues. Since there was no to appea to the Supreme Court in the Caifornia case, there is sti no definitive answer as to whether using inferior machines in some parts of a state but not others vioates the Constitution. There was no cear signa from Congress either when it passed HAVA. Whie the act specificay targets punch cards and ever machines for repacement with a $325 miion buyout program, it does not seek to get rid of the system. In fact, officias in ony 12 out of 27 states currenty using the system tod eectionine.org they were definitey taking federa money to get rid of punch cards. Ohio State aw professor Dan Tokaji represented the paintiffs in Common Cause v. Jones, the case that ed to Caifornia s decertification of punch cards by Tokaji said counties sti using the controversia machines were committing eectora mapractice. In a cose eection, there are certain to be chaenges by candidates in eections using punch-card machines risking a repeat of the sorry Forida 2000 spectace, Tokaji said. Worse sti, the continued use of hanging chad punch-card machines is an affront to the citizens who take time out of their day to go to the pos, denying them the right to vote with assurance that their vote wi be counted. Lewis, however, said awsuits to repace punch cards coud be detrimenta to voters. Disenfranchisement coud be caused by an uneducated voter unaware of how to use a new voting system or a po worker unsure how to operate it. There are a kinds of possibiities about what might happen [in the courts], he said. Just because you can push the enveope, does it mean you shoud? Do you serve the voters by making exampes of systems? What more ikey wi happen is that in some of those paces where you force changes in a hurry you wi disenfranchise voters because the jurisdictions and the voters don t know how to hande the new system in pace. Primary Education Eection Reform and the Presidentia Race 17

20 District Of Coumbia PRIMARY DATE: January 13, 2004 REGISTERED VOTERS: 332,211 VOTING SYSTEM(S): Optica scan, DRE KEY ELECTION REFORM LEGISLATION: B : Aows voters to appy for permanent absentee-voter status. Primary Education Eection Reform and the Presidentia Race 18 Overview The District wi ead the nation, hoding its presidentia primary a fu two weeks before New Hampshire in an effort to bring attention to its absence of voting rights in Congress. The catch: the Democratic Party wi not accept the resuts, most candidates wi not campaign and no deegates wi be assigned. (They wi be assigned after a caucus in March.) Sti, when District residents do go to the pos and being amost a singe-party city of Democrats they usuay do in great numbers they wi a vote on HAVA-compiant machines, years ahead of most the rest of the country. As part of a ega settement with groups representing voters with disabiities, the District repaced punch cards with optica scanners in 2002 and purchased at east one accessibe machine per poing pace for use in the primary. Things To Look For VOTING MACHINES: Whie new voting machines were in pace ast year, many more voters wi make the switch from punch cards to precinct-based optica-scanner baots in the high-turnout presidentia primary. Many more voters with disabiities wi be abe to cast secret and independent baots on new audioprompt eectronic machines. Have voter education efforts regarding the new machines been successfu? VOTER IDENTIFICATION: Per HAVA rues, the state wi require firsttime voters who register by mai to show identification when they register or cast baots. Are voters and po workers educated/trained on who shoud show identification? Is the aw eveny appied? POLL WORKERS: This wi mark the first year that each precinct wi have one po worker specificay assigned to hep voters with disabiities use accessibe DRE machines. Does it hep faciitate voting? For the first time, 16 and 17-year-ods wi be permitted to work the pos. Does it hep aeviate difficuties staffing poing paces? Unique Features Of District Of Coumbia Voting As a singe voting jurisdiction, not a of HAVA s requirements appy. Issues concerning the consoidation of eection administration do not appy as it is aready centered in the Board of Eections. The District has a centraized voter registration system, uniform voting machines, provisiona voting and uniform training. Neary 80 percent of eigibe voters are registered in D.C., far higher than the nationa average. Of these, roughy 75 percent identify themseves as Democrats. The District expects to receive $17 miion in HAVA funds. About 60 percent wi be used for purchasing or reimbursing for the purchase of voting machines.

21 New Hampshire PRIMARY DATE: January 27, 2004 REGISTERED VOTERS: 633,230 (as of 2001) VOTING SYSTEM(S): Optica scanners, hand-counted paper baots KEY ELECTION REFORM LEGISLATION IN 2003: HB 319: HAVA impementation incuding estabishing statewide voter registration database. Overview New Hampshire s ate January primary might be the second in the nation, but it wi remain the first in importance for both the Democratic presidentia candidates and the media, both of whom are a but ignoring the contest two weeks earier in Washington, D.C. With hundreds of eected offices and a host of cose races and recounts, eection officias in the Granite State deat with Forida-ike probems incuding vote-counting standards, recount rues and machine issues years before most of the country. Existing state rues ceary define how to operate a recount in the event of a cose race. A negative experience with touch-screen machines in the mid-1990s ed to a ban of paperess eectronic voting, we ahead of the computer scientists and academics who are now caing for voterverified receipts for a DRE machines. Things To Look For VOTING MACHINES: The state wi continue to use paper baots machine-counted optica scan baots and, in a number of jurisdictions, pain od hand-counted paper for the primary. Wi a cose race cause some in the state to chaenge the use of oder voting technoogy? Are voters educated about identifying potentia baot-spoiing mistakes? A NATION WATCHES: A of the probems of the November 2000 race wi be brought back to the fore by the nationa media as it scrambes to cover the first Democratic primary. Wi New Hampshire s voting process successfuy stand up to extra scrutiny successfuy? ADMINISTRATIVE COMPLAINT PROCEDURE: The state intends to provide HAVA money to the state attorney genera to ensure compiance with the act. Is the office aggressive in deaing with eection day compaints? SAME-DAY VOTER REGISTRATION: The state is exempt from HAVA requirements for provisiona voting because of its eectionday registration rues. How wi ast-minute voters affect the outcome of the primary? Unique Features Of New Hampshire Voting A majority of municipaities use hand-counted paper baots. The state currenty has no machine repacement pans and wi instead rey on a voter education pan to compy with HAVA s standards. Sti, the state wi have to change its rues prohibiting the use of eectronic voting machines in order to compy with HAVA requirements for one machine per poing pace accessibe to voters with disabiities. New Hampshire residents can register on eection day by providing proper identification with proof of residency and signing an affidavit. The state pans to spend $20.7 miion on HAVA-reated eection upgrades, more than haf of which wi be used to construct a statewide voter registration database. Paper baots wi continue to be prevaent in New Hampshire voting. Primary Education Eection Reform and the Presidentia Race 19

22 Arizona PRIMARY DATE: February 3, 2004 REGISTERED VOTERS: 2,212,565 VOTING SYSTEM(S): Optica scan KEY ELECTION REFORM LEGISLATION IN 2003: SB 1075: HAVA impementation and repacement of punch-card machines; HB 2197: creates HAVA fund; SB 1023: aows miitary and overseas voters to transmit baots and registration materias eectronicay. Primary Education Eection Reform and the Presidentia Race 20 Overview Arizona s eary primary amost didn t happen. Repubicans in the egisature tried to eiminate the Democratic primary, but the governor vetoed the effort. In 2000, the primary gained nationa attention, for being the first state to hod an eection via the Internet. The state has been a punch-card batteground since 2001, with numerous disputes in the egisature and between top state officias, incuding the secretary of state and the state s attorney genera, about the system s repacement. Those opposed to the continued use of punch cards in pace in nine rura counties won out, and Arizona wi move to a statewide optica-scan system in time for the primary. Things To Look For VOTING MACHINES: Nine counties wi use optica-scan machines for the first time. Has the state adequatey trained po workers and educated voters as to their use? TURNOUT: Democrats turned out in record numbers for an onine primary in Wi the switch back to poing paces depress turnout just as the onine primary dramaticay increased it? VOTER IDENTIFICATION: Per HAVA rues, the state wi require firsttime voters who register by mai to show identification when they register or cast baots. Are voters and po workers educated/trained on who shoud show identification? Is the aw eveny appied? Unique Features Of Arizona Voting In 2004, Arizona wi have a singe, statewide optica-scan voting system. The state eection reform budget is about $51 miion, sighty more than haf of which wi be used to purchase new voting machines, incuding touch screens for voters with disabiities. A quarter of the eection reform budget wi be used to construct a statewide voter registration database. Arizona s top eection officia attempted and faied to rid the state of punch cards in eary 2002, after teing the egisature that more than 10,000 votes were ost in the 2000 eection because of the punch-card system. As attorney genera in 2002, Gov. Janet Napoitano rejected an effort by then-secretary of State Betsey Bayess to decertify the punch cards. Napoitano wrote that Bayess did not have the authority to decertify the system. Arizona Democrats voted onine in the 2000 presidentia primary. The onine eection set the record for the argest turnout in a Democratic primary, as neary 40,000 voters cast baots on the Internet. The previous record was 38,000 tota voters, press reports indicate.

23 Deaware PRIMARY DATE: February 3, 2004 REGISTERED VOTERS: 518,052 VOTING SYSTEM(S): DRE KEY ELECTION REFORM LEGISLATION: SB 153: impements HAVA requirements. Overview Deaware s 2004 primary is tied for third in the country after the District of Coumbia and New Hampshire. As one of the eariest contests, it wi aso be the state s first meaningfu primary in recent memory. That coud mean more attention to detais of the state s eection administration as we as higher turnout. Its modern touch-screen voting system is considered by some to be buky and inaccessibe to peope with certain disabiities because of its size and fu-face configuration. Things To Look For PROVISIONAL BALLOTS: 2004 marks the first year the state wi offer voters provisiona baots. Identification wi be required to cast a provisiona baot. How wi po workers hande the new requirements? How ong wi resuts be deayed if arge numbers of voters need to cast provisiona baots and have their eigibiity determined after the pos cose? VOTER IDENTIFICATION: Per HAVA rues, the state wi require firsttime voters who register by mai to show identification when they register or cast baots. Are voters and po workers educated/trained on who shoud show identification? Is the aw eveny appied? VOTER REGISTRATION: New voter registration appications wi incude questions about age and citizenship, and ask for the ast four digits of a Socia Security number or a drivers icense number. Are voters who provided inaccurate or incompete information on the registration appication aowed to vote? If not, are they provided a provisiona baot as required by HAVA? Unique Features Of Deaware Voting The state is one of the most centraized in the country in terms of eection administration, with state ownership and maintenance of a voting equipment, a state-run registration system and centraized po worker training. New rues wi aow teens ages 16 and 17 to work in poing paces. The state wi have to decide how to manage the HAVA requirement of one accessibe voting machine per poing pace. The state s DREs are not accessibe for voters with visua disabiities. A committee wi decide whether existing machines can be upgraded or whether new machines need to be purchased. Primary Education Eection Reform and the Presidentia Race 21