Pending Election Reform in Congress Doesn't Give Citizens Right to Sue

By Steven Rosenfeld, AlterNet. Posted April 13, 2007.

Should citizens explicitly be allowed to sue if they can prove their votes have been stolen or miscounted by electronic voting machines?

As election integrity activists focus their attention on pressuring the House Committee on Administration to ban electronic voting machines when Congress reconvenes next week, the question of whether voters can individually sue -- known as a private cause of action -- has received scant public attention. But that legal right, which was a cornerstone of the federal Civil Rights Act and Voting Rights Act, is not in the panel's bill, H.R. 811. Instead, the bill says citizens can sue under other preexisting laws.

"There is no new private cause of action," said John Bonifaz, a noted voting rights attorney who is now a senior legal fellow with Demos, a New York City-based progressive think tank that focuses on numerous pro-democracy issues, speaking of the bill proposed by Rep. Rush Holt, D-N.J.

"HAVA (the federal Help America Vote Act passed after Florida's presidential election debacle in 2000) didn't provide it," Bonifaz said, referring to an explicit new right for voters to see redress. "Such a provision would provide a whole new means for voters to seek judicial intervention when a jurisdiction is not in compliance with the law."

America's elections are run at the county level. County election administrators decide what voting machines to buy, design and approve ballots, draw precinct lines, train poll workers, conduct the vote and oversee recounts. One of the biggest problems preventing uniform standards in elections -- from the choice of voting machines to how recounts are conducted -- has been the fierce desire by county election boards to maintain "local control" over elections.

While the federal government does establish baseline rules for elections, such as requiring access to voting for voters with disabilities, how those rules are implemented largely is up to counties. That's one reason there is such a variety of voting systems, voting machines and ballots in use -- and why activists who want to ban electronic voting machines, known as DREs, are so flustered. Unless they get a federal ban into law, the machines will remain, peppering county election systems from coast to coast.

The right of individual voters to sue local election administrators and elected officials if problems with electronic voting machines arise is the veritable elephant in the congressional hearing room. Lawmakers know how county officials feel about being sued -- they hate it. And seasoned voting rights campaigners know the value of private action as well. Without it, America's thousands of "separate and unequal" election jurisdictions, as Rep. Jesse Jackson, Jr., D-Ill., put it, could be even less free and fair.

Proponents of H.R. 811 say there is no way the bill would pass if it contained an explicit citizen suit provision. They say the language that's currently in the bill -- saying suits can be brought, but under other preexisting federal law -- was a hard-won compromise. They also say the bill, which regulates electronic voting machines for the first time, is badly needed and represents significant progress despite its imperfections. What they say is pragmatic and true, and may be reason enough to support H.R. 811, but as the House prepares its final markup next week, this is the moment to say what should be on the table.

Citizen suits targeting elections haven't always made the headlines, but they have been making headway. Suits filed in Ohio after the 2004 elections -- using the federal Voting Rights Act's private cause of action -- have had dramatic and notable results. A suit filed last summer that claimed minority voters were intentionally targeted by myriad forms of voter suppression by Republicans in the 2004 election has had positive outcomes. Not only did that action prevent Ohio's 2004 ballots from being destroyed this past fall, but the Ohio attorney general and secretary of state are in settlement talks that are expected to include major revisions to Ohio election laws and state custody of the 2004 ballots.

But that suit was not brought under HAVA. And it would not have been helped by the most recent version of H.R. 811. It was brought under the federal Voting Rights Act, which allowed a local neighborhood association from Columbus to go to federal court.

Including an explicit private cause of action in H.R. 811 is also critical for opponents of electronic voting machines, although few have made that argument. The Holt bill, as now written, would allow electronic voting machines if a durable paper printout of individual votes that citizens could verify was made available. That proposed standard, which the bill's authors hope will regulate many problem-plagued machines out of use, is still dubious for one primary reason: With the exception of optical-scan ballots, where individual voters mark the ballots by hand or by nontabulating ballot marking devices that are then scanned by computers, there is no way to discern actual individual voter intent if an election is contested and goes to a recount. (Never mind that the envisioned durable printers for DREs do not yet exist!)

Thus, the right of individuals to be able to seek legal redress -- especially if electronic voting machines are not banned by H.R. 811 -- is even more important because it is one more safety valve for voters in an increasingly automated election environment. While many election integrity activists oppose DREs and optical-scan systems, saying they've proved both can either malfunction or be hacked, at least with optical-scan systems you can still look at the actual ballots to discern voter intent, if there are meaningful recount and audit procedures.

The political status quo -- numerous county election boards -- have opposed an explicit new private cause of action, just as most have opposed banning DREs, because they now have those systems in place and want to avoid all new costs, whether replacing machines or possible litigation. But what price is too high to pay to truly defend democracy?

After all, look at the billions spent and wasted in Iraq. Most Americans know that venture has little to do with "defending democracy" as the president has claimed. Governments, like people, make mistakes. That's why in a system based on a balance of powers, individual rights must be preserved, extended and balanced against the state. Last summer, voters in Columbus, Ohio, exercised that right -- and today are engaged in settlement talks that will improve Ohio elections.

And that's why there should be a new and explicit private cause of action in H.R. 811, especially, as many people predict, the bill that will emerge in the House will not ban electronic voting machines but instead seek to regulate a divisive new technology.

See more stories tagged with: holt bill, voting rights, hr 811

Steven Rosenfeld is co-author, with Robert Fitrakis and Harvey Wasserman, of "What Happened in Ohio? A Documentary Record of Theft and Fraud in the 2004 Election?," published by The New Press.

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