Lawmakers Target Individual Voters, While Failing to Address Systemic Problems

Cross-posted at Project Vote's blog, Voting Matters

Weekly Voting Rights News Update

By Erin Ferns

Recent analyses of the 2008 general election find that overall participation increased on November 4, with a significant surge in voter participation among historically underrepresented Americans. Yet, while some lawmakers have been inspired by the recent voter turnout to propose election reforms that expand access to voting rights, others continue to focus on creating additional barriers to voting.

While new legislation aims to create additional hurdles to prevent one of the rarest election crimes--individual voter fraud-- some more serious election administration problems have still not been addressed a month (and, in some cases, years) after they were identified as Election Day problems,  and little to no legislation to improve the way states manage voter rolls or distribute provisional ballots has been filed to date.

"I know there's a perception out there that this election proceeded more smoothly than the one four years ago," said election law expert at Ohio State University, Dan Tokaji in a recent Associated Press report. "But it's also clear from this election that we've got serious problems that remain," he said.

The inconsistency among states in interpreting federal election law is proving problematic in the administration of elections. Provisional ballots, for example, which are granted to voters who encounter "voter registration problems or because a person had signed up to vote by mail but wanted to cast their ballot at the polls," are counted differently from state to state, rendering many legitimate ballots ineligible if not cast within the correct county or even precinct.

In Colorado, a recent lawsuit to look into the questionable purging of 44,000 voters led to the investigation of whether 69 rejected provisional ballots were actually legitimate, according to Rocky Mountain News reporter, Myung Oak Kim.

"The analysis is being done as a result of a lawsuit filed last month by state and national voter-rights groups against Secretary of State Mike Coffman," Kim wrote. "The plaintiffs claimed that Coffman inappropriately removed scores of people from the voter rolls in violation of a federal law that prohibits purging of voter files within 90 days of a federal election. Coffman contends that it was legal to remove 44,000 voter files since May."

About 365 voters with canceled registrations cast provisional ballots, wrote Kim. Statewide, more than 53,000 provisional ballots were cast, about 80 percent of which were actually counted.

In 2004, acceptance rate of provisional ballots varied from 96 percent in Alaska to 6 percent in Delaware, according to a Project Vote report, Maximizing the Effectiveness of Provisional Voting.

These kinds of inconsistencies are also being challenged in Ohio for their potential to violate "citizens' equal protection and due process rights," according to the Associated Press . The report announced the court's decision to move forward with a lawsuit challenging the state's voting system after the 2004 presidential election.

"The Ohio lawsuit cites examples of voters in some counties who were misdirected by poll workers, believe their votes were miscounted or not counted at all, found broken or not enough voting machines at their polling sites, and it also alleges misuse of provisional ballots. It claims the irregularities fell disproportionately on minority voters," AP reports.

The case, filed by the League of Women Voters three years ago, cites election system issues that date back to 1971. And yet the problems persisted in 2008, according to Pete Johnson of The Free Press. According to this story, a coalition of Election Day observers from The Columbus Institute for Contemporary Journalism and the Ohio Green Party found an "outrageous" number of provisional ballots being distributed in inner city precincts due to misinterpretation of voter ID law and even data errors on voter rolls. Malfunctioning machines were also reportedly a serious voting inhibitor.

Despite state compliance issues with state and federal election law to protect and facilitate voting rights, from registration to ballot casting, several states are attempting to institutionalize barriers instead.

After instituting Same Day Registration during the early voting period this year to the dismay of state partisans, Ohio Republican lawmakers are attempting to halt the practice by passing a bill (SB 380) that would require voters to be registered 30 days before the early voting period, according to the Cincinnati Enquirer. Most states require voters to register 30 days before the actual election.

Proposals in other states to implement Same Day or Election Day Registration are being met with resistance from election officials. In West Virginia, for example,   according to local newspaper, Beckley Register-Herald, "a proposal before a legislative interims panel would allow potential voters to come by Election Day, get registered and promptly mark ballots, all in one convenient trip."

But many elections clerks are against the proposal out of unsubstantiated fear of voter fraud.
"They don't realize what a monster they're trying to create," Raleigh County, W. Va. Clerk, Betty Riffe said of proposed EDR in the state. "They should, with other states trying it and all the problems they've had. I don't think it's a good idea." According to public policy group, Demos, voter fraud in EDR states is rare. Over three federal election cycles (1999-2005), "only 10 discrete incidents of voter fraud or alleged voter fraud that appeared
to have some merit [were found]. Of these, there was only one case of voter impersonation at the polls--ironically one of the most frequently claimed abuses when fraud enters the public debate."

And the isolated voter fraud problems that led to federal investigation "were directly attributable
to clerical errors, poll worker shortages and incompetence, not any organized scheme or intent on the
part of voters to scam the system," according to the report.

The Orlando Sentinel criticizes the "movement brewing to overhaul the nation's system of elections through a series of federal mandates." The editorial not only slams the prospect of federally mandated Election Day Registration because of the "chaos" that uninformed voters would bring to the polls, but inexplicably dismisses the idea of providing high school graduates the opportunity to register to vote.  

"In Florida, the deadline is about one month before the general election. It's hard to muster much sympathy for someone who doesn't start paying attention until a few weeks before Election Day."

The editorial trivializes the need for such reforms by pinning the problem on the voter who, presumably, could not take the time to register before Election Day. In reality, voters who do not have stable residences and set incomes face more hurdles when it comes to registering to vote and staying on the rolls. Young, low income, and minority voters change residences at much higher rates than the national average of 14 percent, according to recent Census Bureau data. This requires them to go through the often untimely process of re-registering whenever they change residences and the headache that may result from overzealous list maintenance procedures (as illustrated in Colorado). Election Day Registration would help ameliorate those problems.

Like the argument against EDR in West Virginia, unsubstantiated claims of voter fraud are also perpetuating the demand for voter ID by lawmakers in numerous states for the 2009 legislative sessions.

In Mississippi, secretary of state and longtime voter ID advocate, Delbert Hosemann hopes to resurrect nine failed voter ID bills from 2008 by supporting early voting as long as it involves voter identification in 2009, according to the Northeast Mississippi Daily Journal. However, House Apportionment and Elections Committee Chairman Tommy Reynolds said the two reforms are unrelated and should not be tied together.

Maryland, another state hoping to pass a voter ID law, is also making headlines.

"Republican Delegate Nic Kipke drew headlines earlier this month when he said he would propose the requirement for Anne Arundel County during the 2009 General Assembly session," according local  publication, the Frederick News-Post. However, lawmakers say that the law, which is criticized for its potential to "disenfranchise poor voters because there is a fee for state-issued identification such as a driver's license" is unlikely to pass.

Finally, one state actually has a voter ID bill filed and ready to be heard in 2009. The Oklahoma bill will be carried over from the 2008 session, according to the Associated Press. "Senate Bill 4 changes the types of documents that would be required, but still requires voters to provide identification. The new measure requires a photo identification that is issued by the federal government, state government or a tribe. If one of those items is not available, the voter can show a county-issued voter ID card."

Seemingly ignoring numerous lawsuits and reports that point to systemic problems in recent elections, lawmakers continue to point the finger at individual voters--not the state election system--as the biggest threat to election integrity.  Enacting laws to prevent the rare crime of voter fraud does not alleviate the real issue of long lines, misuse of provisional ballots, data errors on voter rolls, or voting machine malfunctions. Until states get the system right, and remove state-to-state inconsistencies and barriers to participation, shouldn't the real focus be on reforms that create easier access to voting such as EDR?

Quick Links:

In Other News:

Some confusion over motor-voter - Fredericksburg Free Lance Star [Va.]
A Virginia driver's license is not a ticket to vote.

OPINION: Where Are The New Voters? Look Closer: Overall Turnout Increased, But Some Sections Of The Population Took A Giant Leap Forward - National Journal
Given voter registration spikes and widespread predictions that this year's turnout would shatter records, it's tempting to look at exit polls and ask: Where did all the voters go?

Tags: 2009, Colorado, election day registration, election integrity, election reform, Florida, legislative session, Mississippi, Ohio, Oklahoma, Project Vote, provisional ballot, voter id, voter purge, voter registration, Voting Rights (all tags)


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