Thursday, September 6, 2012

The Vote Only Counts When Votes Are Counted

Ghosts of Ballots Past

“It’s not the voting that’s democracy; it’s the counting.” —Tom Stoppard, Jumpers

Voting rights are in the news again, and they’re back as a national issue. In Florida, Texas, Pennsylvania, and several other states, the coming election showdown on November 6 has been shadowed by a rising concern among Democrats over voter-ID requirements, restrictions on vote canvassing, and changes to early voting. How many of those worrying this year know that it was a series of late-19th-century political battles that helped decide how we cast and count our ballots? Or that this strange, only dimly remembered history leads straight to the mess we’re in today?

In the years after the Civil War, Republicans who had fought for the Union continued to struggle with Democrats over how to implement a great democratic achievement. It was a first in world history. Black adult men, someone else’s property only a few years before, were now to be citizens—and being citizens meant they were supposed to be able to vote. 

Easier said than done. In the postwar Reconstruction, a strong cabinet agency would be needed to direct criminal enforcement of new federal elections statutes in the South. In 1870, Congress created the Department of Justice, and President Ulysses S. Grant appointed to it strongly pro-voting--rights lawyers. Southern Democrats saw this as federal interloping. Their massive resistance grew into the presidential standoff of 1876 between Democrat Samuel Tilden and Republican Rutherford B. Hayes. Hayes had the support of Southern blacks, but in Louisiana, South Carolina, and Florida, amid turmoil on the ground, getting an undisputed vote count proved impossible. The Electoral College, the presidency, and Reconstruction itself hung in the balance.

Just how both sides eventually arrived at the so-called Compromise of 1877, after months of impasse, is still an active research question for scholars. But a compromise was reached, and its consequences were clear. President Grant ordered federal troops in the South back to the barracks. Republican control in the three contested states collapsed. In return, by the 8–7 decision of an electoral commission, Rutherford B. Hayes—Democrats soon dubbed him “Rutherfraud”—was sworn in as America’s 19th president.

Though it’s commonly assumed that the Republican retreat from Reconstruction marked the effective end of Southern black male suffrage, in fact, for the next eight years, attorneys general under Republican presidents continued to prosecute elections violations. Under an 1871 statute that survived into the early 1890s, the federal government even deployed elections marshals in Northern urban areas and criminallyprosecuted local interference. It may surprise our modern ears—used to hearing that the government’s entry into voting-rights protection was a 20th-century first—to learn that long ago, federal enforcement enjoyed the firm backing of the United States Supreme Court.

America’s first great round of voting battles was serious, sometimes murderous, business. By 1888, the Republican Party had elevated “a free ballot and a fair count” in the South to the top plank in its platform. In 1889, a Republican congressional candidate in Arkansas trying to prove he had won was assassinated in a far corner of that state. 

During the 51st Congress and the presidency of Benjamin Harrison, Republicans, who had unified control of the federal government, set out to establish a national system of federal canvassing boards, supervised by U.S. Courts of Appeal. The system would have operated mainly in the South, but it would have offered the first national institution for supervision of federal elections. Had the bill passed—and it came amazingly close—it might have meant the beginning of a national system for administering our elections.

We never got that system. Instead, in America today we have 50 secretaries of state working with at least 8,000 local boards (5,000 township, 3,000 county) to conduct federal elections. Some scholars believe that count is as high as 10,000. It speaks volumes about America’s hyper-localism that a definitive number is hard to come by. The administrative competence of these state agencies and local boards unsurprisingly varies from very good to haphazard. The weaker jurisdictions may fail to replace defective machinery or software or lack the knowledge to choose wisely among vendors of elections technology. They may rely on poorly trained volunteer poll workers or offer too few voting locations, leading to lines that fail to clear by the end of the day. 

Sometimes, of course, local administrators do a terrible job of ballot design. This was the notorious case in 2000 in Palm Beach County, Florida, where voters’ choices were spread like butterfly wings across two pages in an absurd visual mishmash, almost certainly disenfranchising voters who had not intended to support Pat Buchanan. That bad ballot was just one memorably fraught element in Bush v. Gore, the epic legal showdown spawned by the country’s first hung election since 1876.

Richard Hasen, professor of law and political science at the University of California, Irvine, and founder of Election Law Journal, the leading scholarly venue in the field, has a knack for taking byzantine details of voting technicalities gone awry and the incredibly complex, multistage legal battles that follow and unfurling it all as a riveting story. His new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown, offers the clearest short discussion of Bush v. Gore in print. It goes on to explain how Republicans launched a campaign to make election fraud a major public issue, how with far-reaching consequences the Supreme Court validated voter ID in 2008 in Crawford v. Marion County Election Board, a case from Indiana, and how seemingly minor incidents in contests around the country over the past decade have ratcheted up distrust between the two parties. 

“In the years since the Florida debacle,” Hasen writes, “we have witnessed a partisan war over election rules. The number of election-related lawsuits has more than doubled … and election time invariably brings out partisan claims of voter fraud and voter suppression … campaigns deploy armies of election lawyers and the partisan press revs up whenever high-stakes elections are expected to be close. We are just one more razor-thin presidential election away from chaos and an undermining of the rule of law.” 

One realizes early on in the book just how weird an action the Supreme Court took in Bush v. Gore. By a 5–4 majority, it stepped in to decide a presidential election. It did so on the basis of a perfectly good principle—treat equal voters equally—but in utter denial of our ramshackle, decentralized voting system, which inevitably handles voting in hundreds of slightly different ways. Moreover, the majority opinion said the standard couldn’t be applied again. The Court left a vacuum. To fill it, Congress enacted the Help America Vote Act of 2002, meant to improve ballot technology. But over time this, too, has inadvertently promoted partisan distrust because of the profusion of new hardware and software that have sometimes broken down. 

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