John C. Fortier
After the Florida debacle, Congress passed the Help America Vote Act (HAVA), states reformed their election codes and local jurisdictions purchased new voting machines. But assessing the progress of election reform is difficult, as elections are still extremely decentralized with very different practices across states and even within states.
One good start is a report released Tuesday by three Ohio State law professors, Steve Huefner, Dan Tokaji and Edward Foley. "From Registration to Recounts" looks at election administration in Illinois, Ohio, Michigan, Minnesota and Wisconsin, but its thorough analysis of these states has lessons for the nation, especially on three sometimes neglected but crucial election issues: provisional voting, statewide registration databases and recounts.
But despite the obvious issues with Florida recount procedures in 2000, state laws are ambiguous, not well thought out, and most states could not complete a recount and contest before the Electoral College meets.
Provisional voting and statewide databases were two of the most important reforms mandated by HAVA. A provisional vote is a safety valve if a voter is told that he or she is not eligible to vote. Take, for example, Fred, who shows up at a polling place and is told that he is not on the registration list. Fred can then cast a ballot, which is placed in a sealed envelope. Election officials then have several days to investigate whether Fred was really eligible to vote. Maybe the clerk never processed his registration form, or he was accidentally purged from the list, or there was a typo in the list entry process. If it turns out that Fred really was eligible to vote, then his ballot will be counted, but if he was not eligible, his ballot is discarded. Provisional voting was available in only a few states before 2000, but HAVA mandated it for all states. A CalTech-MIT study found that 1.5 million to 3 million voters could not vote in 2000 due to registration problems. Provisional votes would reduce this number.
Related to provisional voting is the requirement of statewide computerized voter databases. Prior to 2002, few states had a single statewide registered voter list; localities had their own lists, and often these lists were kept on sheets of paper in the clerk’s office, not in a database. HAVA mandated that states create the statewide computerized lists by 2006. With better lists, states could more easily spot duplicates, errors and non-existent and deceased persons. Once the lists were improved, they would reduce the need for provisional voting, as it would cut down on registration issues.
"Registration to Recounts" found that there is often significant variation from county to county as to whether provisional ballots are counted. As for the databases, there are technical computer issues with merging various lists together, accurately checking the list against other databases and even system breakdowns at inopportune times. In addition, there are structural and jurisdictional issues over whether the state is responsible for the list or if the state merely combines lists that are maintained by counties.
The report also found problems with recount procedures. Recounts are almost by definition contentious. But despite the obvious issues with Florida recount procedures in 2000, state laws are ambiguous, not well thought out, and most states could not complete a recount and contest before the Electoral College meets.
The report recommends pushing back the meeting of the Electoral College to give more time for recounts, an approach also endorsed by H.R. 2628, introduced by Rep. David Price (D-N.C.). But the real work on recounts has to be done by the states in advance of the next close election. Finally, Congress should exercise its oversight authority is in ensuring that states improve their databases and institute more consistent procedures for provisional votes that HAVA promised.
John C. Fortier is a research fellow at AEI.