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

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.