How the Election Could Go Wrong

++How the election could go wrong ++
How the election could go wrong
Four years after an election featuring hanging chads and a Supreme Court intervention, the nation is again bracing for the possibility of a disputed presidential election.

Could we really see a repeat of 2000?
Yes—and not just in Florida. If the election is close, it’s nearly a forgone conclusion that there will be serious complaints about how votes were cast and counted in at least one, and probably many states. In recent decades, every presidential election has produced millions of votes that were not counted because of human or mechanical error. Until 2000, an error rate of 2 percent to 3 percent was considered acceptable. This time, no error rate will be considered acceptable by whoever loses. Legal challenges could tie up the results for weeks or longer. “When it’s a close election,” says election expert Douglas Jones of the University of Iowa, “that magnifies all kinds of problems that are normally unnoticed.”

What sorts of problems?
Technical, bureaucratic, political—you name it. About 32 million Americans will still be using the same punch-card equipment that caused the Florida fiasco. The states with the most counties using punch cards happen to include the battlegrounds of Illinois, Ohio, and Missouri. If the results there are close, we may again see battalions of squinting vote counters holding up punch cards to see if chads are hanging or dimpled. At the same time, an unprecedented number of voters, wary of what happened in 2000, are casting their ballots in advance, via write-in, absentee, or early in-person voting. The ballots may make up as much as 25 percent of all votes. Counting such ballots is time-consuming and prone to errors and disputes.

Didn’t officials see this mess coming?
Yes, which is why Congress passed a law called the Help America Vote Act of 2002. The legislation was supposed to establish national standards for voter eligibility, reduce the wide range of voting systems used around the country, and help states phase out error-prone systems, especially punch cards. But funding shortages and bureaucratic delays have blunted the law’s impact, and voting in America continues to rely on a patchwork of standards and systems. HAVA also created an entirely new type of headache for election officials by requiring that all districts allow “provisional” voting.

How can voting be provisional?
When a person shows up at the polls to vote, but is not listed on the rolls, he will be given a provisional ballot. (In 2000, these voters were simply turned away in most places.) Votes cast on provisional ballots will be held aside while officials determine whether the voter was, in fact, registered. But the new law contains many ambiguities. For example, it’s unclear whether a voter who shows up at the wrong polling place, but is eligible to vote in that county, should be allowed to vote at that location. Election officials in about half the states, including Iowa, Michigan, and Florida, say they won’t count provisional votes cast in the wrong precinct. Democratic Party officials have already challenged that ruling, and the dispute is in court, with no assurance that the issue will be resolved by Election Day. Election workers grimly refer to provisional ballots as “the hanging chad of the 2004 election.” But there’s competition for that dubious title—from electronic voting.

What’s wrong with electronic voting?
We’re not sure yet. More than 30 million people—about a third of all voters—will cast votes on new, “touch screen” voting machines that look like ATMs. The technology is new and largely untested, and experts warn that some glitches are inevitable. During a test of electronic voting a couple of weeks ago in Florida, for instance, a computer server that tabulates data from the machines crashed. Officials said the air conditioning in the room where the server was stored might have gone out during one of the September hurricanes. “Heat is a very serious problem for these machines,” said computer engineer Dan Spillane. “These things work in the secretary of state’s office. Outside of that, no one knows.” But heat is only one possible concern.

What else could happen?
Some critics claim the machines can be hacked into by outsiders or programmed by insiders to favor one candidate over another. Democrats have darkly noted that a major manufacturer of touch-screen machines, Ohio-based Diebold Inc., has donated heavily to Republicans. But the biggest complaint about electronic voting is that the machines do not produce a paper trail. That means there’s nothing to recount; if there is a challenge to the results, officials can only ask the electronic machines to regurgitate their original count. Most election officials, though, insist that the electronic machines are more reliable, and more tamper-resistant, than any other voting method. “Creating a paper trail for each voter is unnecessary, except to eliminate the paranoia of the critics,” the Florida Department of State declared this summer. But you don’t have to be paranoid to suspect that Americans may again wake up on the morning after Election Day wondering what’s going on in Florida.

Hasn’t Florida learned its lesson?
Not entirely. After 2000, Florida officials quickly banned punch-card machines, leaving its counties a choice: optical-scan ballots, which require voters to fill in a box next to their choice, or the paperless touch-screen machines. Most of the smaller, less urban counties went for the optical scans, while the larger jurisdictions installed touch screens. Now concerns are being raised about disparities in accuracy rates and verification methods for those two systems—differences that could easily form the basis of another wrenching post-election legal brawl. If a close election triggers a recount in Florida, said Richard Perez, general counsel to the Florida secretary of state, “God save us all.”

The shadow of Bush v. Gore
When the Supreme Court in 2000 halted the recount of votes in Florida, its legal rationale was based on the Constitution’s “equal protection” clause. The justices pointed out that Florida didn’t have a standardized method for recounting questionable ballots from county to county. Any recount, they ruled, would therefore be unfair to some voters. Today, both conservative and liberal analysts are horrified by that rationale; in a nation that uses many different kinds of voting methods, all vote-counting and recounting is subject to varying standards and error rates. In another close election, there’s certainly precedent for either President Bush or John Kerry to invoke Bush v. Gore to make the case that their side was unconstitutionally disenfranchised. “Imagine courts tickling out all the implications of Bush v. Gore,” says columnist George Will, “until enough conclusions are reached to allocate someone 270 electoral votes—in, say, May.”