A Diagnosis of Election Day Chaos, Prescription for Change

Posted November 1, 2004 at 3:11pm

Some immediate eve-of-election observations, which may invite further elaboration down the road if events demand it:

• This has been an unusual election, in many ways. First is the intensity level. Polls show this: The numbers of people deeply interested in the election are up sharply from 2000, and interest is greater than any election since at least 1960. Editorial writers, academics and other political observers have lamented low turnout and lack of deep interest in politics for decades. So here is another good example of the old adage, be careful what you ask for, you just might get it. [IMGCAP(1)]

The intensity of this election has moved the conflict almost beyond simple partisanship, at least for a large core of activists and elites, including lawmakers. Take another old adage: Politics is war by other means. This campaign has resembled a tribal conflict, reminiscent of the wars in the former Yugoslavia, pitting Serbs against Croats. The harsh negativity of the campaign may not be close to the boundaries set in the 19th century, but it has gone beyond what we are used to, especially in the subterranean campaign aimed at turning out base voters. When some Christian conservatives hear that a President John Kerry will ban their Bibles, and some African-Americans hear that the Bush administration will act like Bull Connor in the old segregationist South, it makes the odds of building a new consensus post-election much longer.

• That is true even if the election today results in a clear-cut victory with the results known before midnight. But it will, of course, be even more true if we end up with a long delay in learning the identity of the next president. A delay could come, as in 2000, because a state is divided by 1/100th of 1 percent of the vote in a state, within any margin of error. But this year, for a variety of reasons, we could have a major delay even if no state ends up that close.

We may find several states with a clear cut leader by late tonight or early Wednesday — but with far more than enough provisional ballots, votes-by-mail and overseas absentee ballots to alter the results. If a large state is in this predicament, that may mean tens of thousands of provisional ballots — each possibly requiring a quasi-judicial proceeding to determine its validity. In other cases, it may take a couple of weeks simply to open the envelopes of the mail ballots. And many states allow two weeks or more for votes-by-mail, including overseas military ballots, to arrive so long as they are postmarked by Election Day. A number of battleground states will have 20 percent to 50 percent of their votes cast by mail. Consider what happened in Washington state’s tight Senate contest in 2000, with 50 percent mail ballots leading to almost a month-long delay in deciphering the result.

As for provisional ballots, if Republicans are very aggressive in Ohio and other states in challenging large numbers of voters, and succeed in making many file provisional ballots, the number could be 30,000 to 50,000 or more in that state alone. It is not out of the realm of possibility that President Bush could have a lead of 10,000 votes in Ohio later this week, but with enough provisional ballots, most cast in Democratic areas, to reverse the outcome later on. Would that play as Florida 2000 did, where Bush’s initial narrow edge worked to his psychological advantage as his team portrayed Al Gore as trying to use shady means to reverse the election outcome? If the same thing happens in another state on the other side — with Kerry ahead on Thursday but enough votes by mail and provisional ballots to alter the outcome — we could have the unique experience of both candidates for president declaring victory. And here let me refer readers back to an earlier column — while all these things are going on, the electoral clock will be ticking, with key dates looming leading up to the inaugural on Jan. 20.

• The sharp increase in early voting may have one salutary effect, acting as a safety valve to reduce the pressure on many polling places on Election Day itself. But in many states, including those with early voting, there will be huge surges in voting today, accompanied by something akin to chaos. One of the more embarrassing aspects of our localized, decentralized election system is that it is woefully underfunded. We have too few polling places, too few machines and way too few poll workers. This is especially true in minority areas. In many places, we will see the problem that surfaced in St. Louis in 2000, with three-hour lines two hours before the polls are scheduled to close. Should voters be denied the chance to vote when they got to their polling places two hours or one hour before the deadline? But efforts to keep the polls open beyond the appointed hour will trigger bitter litigation.

Clearly, we need to revisit the Help America Vote Act, including a sharp infusion of funds to expand polling places and hire more (and younger) poll workers, not just add fancy machines. And it is time to move to a new voting day. I continue to favor the 24-hour period from noon Saturday to noon Sunday, eliminating the Sabbath problems. If Wal-Mart can stay open 24/7/365, surely America can afford to open its polls 24/1/once every two years.

• Pete Rose has been banned from baseball and denied admission to the Hall of Fame because he bet on baseball, including his own team. Baseball appropriately has protected its fundamental integrity by acting aggressively to remove any trace or taint of conflict from those playing, managing or umpiring its games.

Shouldn’t the same principle apply to American elections? It makes no real sense for most of our states to make the chief decision-makers, umpires and arbiters of elections partisan figures with their own clear ambitions. But most states have elected secretaries of state. Whenever there are close contests or serious issues involving voting and voters, election counts and procedures, those secretaries of state (as well as county and local officials who are often in parallel positions) make decisions that are immediately called into question because of their conflicts of interest, even if the decisions are perfectly appropriate.

So this year, we have in Ohio Secretary of State Ken Blackwell, who is a conservative Republican, clearly a candidate for governor the next time, co-chairman of the Bush campaign — a nice and smart man (he once was a student of mine in a Salzburg Seminar) who has plunged right into the middle of a series of controversies, often infuriating Democrats who accused him of overt partisan bias. In Iowa, Secretary of State Chet Culver issued a ruling on provisional ballots that infuriated Republicans who accused him of overt partisan bias. Ditto rulings by Missouri Secretary of State Matt Blunt, current GOP candidate for governor, co-chairman of the Bush campaign and son of House Majority Whip Roy Blunt. And then there is Glenda Hood, appointed by Gov. Jeb Bush (Florida changed its process after the Katherine Harris brouhaha in 2000) but who is a strong partisan Republican with clear ambitions for higher office and who has also issued controversial rulings that have enraged Democrats. Many or most of these rulings may have been perfectly appropriate.

But that is not the point. Rose may have played hard on every pitch and managed perfectly in every game, but the fact that he gambled itself threw the integrity of baseball into question. So does the sharply partisan identity of election officials.

It is past time for states to revamp this process. How? Simple gubernatorial appointment is not enough, as Jeb Bush’s choice of a partisan makes clear. A good model may be to have a gubernatorial appointment from a list of options compiled by a group of nonpartisan election experts. Or maybe a gubernatorial appointment with confirmation by the state legislature — with a requirement that the secretary of state be a nonpartisan official. Perhaps a model like the comptroller general would work. But it is also clear, even as states change this terrible problem, that another part of HAVA reconsideration has to be stronger and clearer national standards for presidential and Congressional elections, taking much of the discretion out of the hands of partisan local and state officials.

• As television pundits have pointed out frequently this last two weeks, there are several possible scenarios in play for a 269-269 electoral vote tie. True. But everybody has assumed that, since the vote for president in the House is by state, and Republicans have majorities currently in 30 state delegations, Bush would win. Maybe not. If Kerry under that scenario won the popular vote by any significant margin — Gore’s one-half percent, a half-million votes, or more — there would likely be tremendous popular pressure for states to vote for the popular vote winner. It is one thing to have an election in which one candidate gets the popular vote but loses the presidency by losing the electoral vote. Americans accepted that outcome in 2000 as an artifact of the rules. It is another if a candidate wins the popular vote, does not lose the electoral vote, and loses the presidency because of a partisan reaction by the House.

My guess is the backlash would be a hundred times greater than it was four years ago, and would give pause to a number of House Republicans.

Norman Ornstein is a resident scholar at the American Enterprise Institute.