Democratic Congress to Voters: What Election Problems?

By Art Levine, AlterNet. Posted May 5, 2008.

Will Congress be able to overcome the specter of Florida in 2000 and Ohio in 2004 haunting our election system in time for the 2008 vote? That question takes on new importance because of the Supreme Court decision last week upholding Indiana's draconian photo ID law, which is likely to increase support for a host of GOP-led initiatives designed to limit voting and combat the mythical epidemic of "voter fraud."

In recent weeks, a flurry of hearings has given the impression that the Democratic-led Congress is starting to crack down on assorted vote suppression schemes -- from voter "caging" to unchecked purges of voting rolls -- that have been encouraged by the Bush Justice Department. And progressives, as shown by a unique $350 million voter mobilization campaign launched in mid-March by a coalition of liberal and labor groups, including both the AFL-CIO and the non-partisan ACORN, appear finally ready to overcome these voting rights barriers by adding millions of voters to back their causes or candidates. At long last, it might seem, the federal government could be moving to allow fair voting and full participation -- essential to any election victories for progressives this year.

Appearances, unfortunately, can be deceiving. Despite a series of House and Senate hearings probing voter restrictions based on the myth of voter fraud and mostly GOP dirty tricks, it now seems virtually certain that not a single piece of major election reform legislation will pass Congress in time for the November, 2008 elections. "The outlook is somewhat bleak," concedes Tanya Clay House, the public policy director of People for The American Way (PFAW).

The likely voting crisis was given new urgency not only by the Supreme Court ruling but by serious election problems that have surfaced in Pennsylvania and other primary states as well. Admittedly, few, if any, Republican-dominated states, such as Missouri, are likely to pass any new photo ID laws in time for November. But a chilling new report in mid-April by the Election Protection coalition, released by the National Campaign for Fair Elections, found everything from machine breakdowns to vote-suppressing deceptive practices in the primary season before the April 22 Pennsylvania primary. Election Protection, Voter Action and Common Cause reported finding machine breakdowns, harassment and voter registration foul-ups in their monitoring of the Pennsylvania primary two weeks ago. Voter Action even filed an unsuccessful lawsuit to force the Philadelphia election board to provide emergency paper ballots to voters who were turned away after machines broke down.

Just don't expect any help from the federal government to solve such problems. Few election reform advocates on Capitol Hill or in national advocacy groups openly admit that their legislative reform agenda is dead for this year. But some reformers in such key battleground states as Pennsylvania and Ohio are "preparing for the worst," as Pennsylvania PFAW coordinator Celeste Taylor puts it. For Pennsylvania voters, some will likely face being purged from rolls because of database errors while most will be voting on paperless electronic machines that don't allow for reliable recounts.

"The election system isn't ready for a potentially historic election," especially with the expected huge turnout, observes Jonah Goldman, the director of the National Campaign for Fair Elections. "There's a potential for chaos any place there's a close election," he says. "And there are certain operatives who could care less [about election laws] and will do whatever it takes to get their candidates elected -- and I'm not sure the Justice Department is going to do anything about it."

No Action in Congress

Equally troubling, a variety of bills aimed at halting some of the most egregious abuses and fixing unreliable electronic voting machines have essentially stalled in Congress -- primarily due to Republican opposition in the Senate in an election year. "It's a difficult environment to pass any legislation," one knowledgeable Senate staffer admits. "The challenge is being able to frame the debate so it's not fraud [the GOP concern] vs. access [the Democratic concern], so that we find some policies that are seen as just good public administration practices."

But such bipartisan agreement has been nearly impossible to achieve, even though Republican candidates were also undermined this year by failed voting machines or deceptive smear campaigns that legislation pending in Congress could remedy. As a result of Congressional inaction, look for more long lines, failed machines, questionable voter purges, election-day dirty tricks, GOP challenges to minority voters and ill-trained poll-workers who, following this week's court decision, are even more likely to a> where it's not required, among other voting obstacles. In fact, as Jonah Goldman points out, "In every primary contest we found voters who were disenfranchised with identification requirements. This ruling is going to further confuse voters and poll workers." And it could likely limit the ability of elderly, poor and minority voters to cast their votes in Tuesday's Indiana primary.

On top of vote suppression resulting from the Supreme Court ruling, the hard truth is at least four of the major problems that have surfaced in our election system since 2004, despite some state reforms, will remain unaddressed by the federal government during this close election:

1) Voter "caging" lists and lax challenging rules will still be used by largely GOP political operatives, and even some local election officials, to challenge the right to vote of potentially hundreds of thousands of mostly minority voters. As Project Vote reported in "Caging Democracy," at least 77,000 mostly African-American voters had their eligibility challenged between 2004 and 2006 out of nearly 500,000 targeted voters. "Caging" is the practice of sending non-forwardable mail to registered voters, usually African Americans, and then using the returned mail to compile "caging lists" to challenge those voters' eligibility. At a Senate Rules Committee hearing in March, Sen. Sheldon Whitehouse (D-RI), testified about his bill to ban caging that's widely seen as unlikely to get past Senate Republicans. Yet Darren Fenwick, ACORN's legislative representative, isn't deterred by that prospect: "It's a good education piece to make people aware, and our goal is to build co-sponsors and slip this into a bill."

2) Unaccountable, mistake-prone purges and database matching rules could prevent countless voters from getting registered and casting a ballot that counts.

For instance, between 2000 and 2006, over 470,000 mostly African-American voters were purged from the rolls in Columbus, Toledo, Cincinnati and Cleveland (nearly 25% of the entire city). Meanwhile, precinct surveys and public hearings led by journalist and political scientist Robert Fitrakis found that as many as 20% of the purged voters, often forced to cast under-counted provisional ballots, had actually lived in their homes for years. "There's selective purging of voters without any accountability," Fitrakis, co-author of What Happened in Ohio, contends. Two federal laws, the 2002 Help America Vote Act (HAVA) and the 1993 National Voter Registration Act (NVRA, also known as the "Motor Voter Law"), require states to prune ineligible voters and to create accurate centralized statewide databases.

But those actions are too often done inaccurately without proper notification.

At hearings in late February, the top Justice Department civil rights official was also grilled about why the agency spent more effort trying to promote voter purges rather than expanding voter registration as the NVRA requires.

A sweeping election reform bill offered by Senator Diane Feinstein (D-CA) creates new safeguards against overly aggressive voter purges by states. But the bill, which also bans paperless electronic voting by 2010 and protects voting registration drives, has yet to be scheduled for a committee vote. "It's off the table," one voting reform lobbyist admits, but there's a faint hope that a provision mandating states to provide emergency paper ballots could pass in some form because it's also included in an elections assistance bill that passed the House Administration Committee in early April.

3) Deceptive election practices, reported to the Election Protection coalition since 2004 in 30 states, will be allowed to flourish because there's still no federal law banning misleading tactics designed to suppress the vote, especially among minorities. (Threats, as opposed to vote-suppressing tricks, are illegal under the Voting Rights Act, but the Justice Department hasn't prosecuted a single case of intimidation of black voters in seven years.) Among the dirty tricks used in the 2006 election: Latino voters in California received warnings that any immigrants, including naturalized citizens, could be arrested for voting; and in Virginia, voters received warnings from a phony "Virginia Elections Commission" claiming that they were ineligible to vote.

Senator Barack Obama co-authored legislation to bar such practices last year, impose new criminal penalties, and to create an early warning system to provide accurate information. Last fall, a companion bill introduced by Rep. Rahm Emanuel (D-IL.)  passed the House on a voice vote, and Obama's legislation emerged from the Senate Judiciary Committee on a *6-to-3 vote. Unfortunately, the Senate Democratic leadership hasn't been willing to force a floor vote and risk a filibuster that it would likely lose, although such a challenge would force Republicans to defend deceptive practices. "It's incredibly frustrating," says one House supporter of the bill. (An indirectly related bill -- to limit abusive robo-calling -- also might pass the House, but would surely die in the Senate, staffers say.) "It's important to lay down a gauntlet," adds civil rights attorney Jonah Goldman about the deceptive practices bill. "How can you oppose something that's going to stop more people from being disenfranchised?"

But politics in an election year illustrate one of the bill's major obstacles. "It's hard to find ten Republicans to line up behind any election-related bill proposed by Obama, the likely Democratic nominee," one Senate staffer observes.

4) There's a growing consensus among election officials and computer experts that touch-screen machines are dangerously unreliable and prone to tampering.

The most notorious recent incident of a system meltdown was the "undervote" of 18,000 votes in a 2006 Congressional race in Sarasota on paperless machines. (A new GAO report indicates that ballot design may have been the more likely culprit, thus weakening Congressional urgency for change.) But even a scaled-down reform bill proposed by Rep. Rush Holt (D-N.J.) to reimburse localities that seek to switch to paper-based systems has faced cross-currents of interest group opposition that make it nearly impossible to pass Congress in time.

An even more limited version of Holt's bill passed the House Administration Committee in early April. It offers reimbursement not only to states that want to shift to paper-based optical scan systems, but, as a sop to disabled voters, it also would provide aid to states that retrofit paperless touch-screen machines with often balky printers. But even though House Speaker Nancy Pelosi is pushing to fast-track the bill, there's virtually no chance it can get through the Senate in time to make a difference in voting machines used in November. "It's irrelevant," says one voting reformer. "We're rapidly running out of time. Other key provisions that could help ensure fair elections, such as support for emergency paper ballots and post-election audits verifying the accuracy of electronic machines, could have an impact -- in the unlikely event it passes the Senate.

Activists Derail Congressional Action?

So "voting-integrity" advocates are going to be disappointed again this year. But as one knowledgeable lobbyist points out, "If you want more than a pretty bill that's not going to get passed, you have to deal with the disabled." The final committee bill reflected the concerns of many disability rights proponents who viewed the Holt bill as pushing states towards optical-scanners at the expense of the independence they claim touch-screen machines offer. An earlier version of the Holt legislation that aimed to mandate a ban on most touch-screen machines by 2008 ran into opposition from some disability rights groups and local election officials.

The resulting Congressional inaction on touch-screen voting, according to researcher Warren Stewart of VerifiedVoting.org, will mean that at least 25% of the American public will be voting in 40,000 precincts on totally paperless machines in most of 14 states. These include such battleground states as New Jersey, Virginia and Pennsylvania. "This should rise to the level of a national emergency that we can't do a recount there," observes Susannah Goodman, the director of Common Cause's election reform campaign.

Whether Pennsylvania, Florida or Ohio will be the most trouble-plagued state is still an open-question, but Ohio legacy of vicious political operatives and Republican-dominated election boards makes it the front-runner for abuses again this year.

Unfortunately, without meaningful reforms from Congress, the national picture is almost as grim. As Robert Fitrakis observes, "The system is still broken and instead of voting being a universally guaranteed federal right, it lingers under the shadow of Jim Crow and states' rights."

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