Competing Values or False Choices: Coming to Consensus on the Election Reform Debate in Washington State and the Country

Publication year2004
CitationVol. 29 No. 02


Competing Values or False Choices: Coming to Consensus on the Election Reform Debate in Washington State and the Country

Tova Andrea Wang

I. Introduction

The 2000 election debacle in Florida, with its butterfly ballots, hanging and pregnant chads, seemingly endless counts and recounts, and court battles ending only at the Supreme Court, was heralded at the time as a wake-up call to the American public about the weaknesses of our election system. In the aftermath of the election, the public, advocacy groups, and elected officials demanded reform of the election system. Commissions were formed and lawsuits were filed. Finally, after almost two years of debate and several negotiating sessions, Congress passed the Help America Vote Act of 2002 (HAVA).(fn1) This new law led to upgraded voting machines, the expanded use of provisional ballots, new procedures for voter registration, the additional counting of ballots, and, in some places, increased voting accessibility for the disabled.(fn2)

These various efforts promoted by HAVA, however, did not completely address the concerns raised in 2000, nor did they entirely avoid a repetition of familiar polling place problems four years later. In some states, the reforms and their implementation created new voting problems. These problems arose in part because HAVA does not require the implementation of some of its provisions until January 1, 2006.(fn3) Voting problems also arose because HAVA left some areas of implementation vague and too much discretion was given to the states as to how they would accomplish the goals of the new federal voting law.(fn4)

The disagreements surrounding current election procedures and the implementation of election reforms seems to be caused by a philosophical divide that often splits along partisan lines. The divide centers on two goals, which sometimes conflict: making voting as easy and as accessible as possible for all Americans, and protecting the integrity of the vote and the voting process against fraud and malfeasance. A different, though related, split among election goals is the goal of making voting rights and the counting of every valid vote paramount, versus the desire for finality-having elections decided at the ballot box, not in the courtroom. This latter split has emerged with greater force over the last few years as political parties, candidates, and others have engaged in increasing amounts of post-election litigation where contests have been close, or where there are suspicions of major irregularities in the voting process itself.

This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this article, I argue that those who claim choices must be made among these values are often trying to force a false choice, and that where a genuine choice must be made, the right to vote and to have that vote counted ought to be paramount to the extent that the administrative process can bear. Under such a standard, the right choice to make is usually very evident.

Part II provides background information on the development of election reform law and election policy since the 2000 presidential election. Most important are the provisions of the Help America Vote Act of 2002, which provided the framework for both the election improvements of 2004 and the new difficulties that occurred in 2004. Part III provides a national overview of current election reform, focusing in particular on the effect of HAVA's requirements during the 2004 election on issues of (1) voter registration, (2) statewide voter registration databases, (3) voter identification, (4) provisional ballots, and (5) voting machines. It also discusses the issues of (6) felon disenfranchisement, and (7) voter intimidation and suppression through statutory challenges and other means. Part IV compares and contrasts the problems encountered by Washington election officials and voters with the problems encountered in other states on the issues of (1) felon disenfranchisement, (2) voter identification, (3) absentee ballots, (4) provisional ballots, and (5) voting machines. By comparing Washington's experience to the experience of other states, it becomes evident that forcing a choice between administrative values on some of these issues creates a false dilemma, and that on other issues the balancing of values should fall heavily on the side of the right to vote and have one's vote counted. Finally, Part V concludes with a summary of how these problems, disagreements, and proposed solutions reflect a larger philosophical and political debate over the competing values in election administration.

II. Background: The Help America Vote Act

In a truly revolutionary move, HAVA's enactment was the first time in American history that the federal government pledged funding for elections.(fn5) HAVA promised $3.9 billion to the states for election improvements; $3.1 billion has been appropriated thus far.(fn6) In response to the Florida election debacle of 2000, HAVA specifically allocated $325 million to states to replace punch card and lever voting systems.(fn7)

Other important provisions of HAVA include the following:

A. Voting Systems Standards

Beginning January 1, 2006, HAVA requires all voting systems used in federal elections, while maintaining voter privacy and ballot confidentiality, to:1. Permit voters to verify their selections on the ballot, notify them of overvotes, and allow them to change their votes and correct any errors before casting the ballot, though jurisdictions using paper ballot, punch card, or central-count voting systems (including absentee and mail-in ballots) may instead use voter education and instruction programs for notification of over-votes;2. Produce a permanent paper record for the voting system that can be manually audited and available as an official record for recounts;3. Provide individuals with disabilities, including the blind and visually impaired, with the same accessibility to voting as provided to other voters through the use of at least one Direct Response Electronic Voting device (DRE), or properly equipped voting system at each polling place, and to this end, any voting system purchased with federal funds made available under Title II on, or after, January 1, 2007 must provide accessibility;4. Provide alternative language accessibility as required by law; and5. Comply with the error rate standards (the percentage of votes lost by the voting system) in the federal voting system standards in effect on the date of enactment.(fn8)

HAVA also requires each state to adopt uniform standards defining what constitutes a vote and what will be counted as a vote for each certified voting system.(fn9)

B. Voting Information Requirements

HAVA requires that a sample ballot and other voter information be posted at polling places on election day.(fn10)

C. Computerized Statewide Voter Registration List Requirements

Beginning January 1, 2004-or 2006 if a state certifies for good cause that it cannot meet that deadline(fn11)-HAVA requires states to implement and maintain an interactive, centralized, and official computerized voter registration list,(fn12) accessible to all election officials in the state,(fn13) that contains registration information on every registered voter in the state.(fn14) HAVA also requires the sharing of information between voter registration and motor vehicle authority databases.(fn15)

D. Provisional Ballots

Beginning January 1, 2004, HAVA requires that persons who claim to be registered to vote in a federal election but who are not on the official list of registered voters or who are otherwise alleged to be ineligible to vote be offered and permitted to cast a provisional ballot.(fn16)

E. Identification Requirements

1. The Revised Registration Form

HAVA requires voter registration applicants to provide their driver's license number or the last four digits of their Social Security number. The state will assign a unique identifier to individuals who have neither a valid driver's license number nor a Social Security number.(fn17)

2. Mail-in Applications

Beginning January 1, 2003, HAVA requires first-time voters who register by mail to present identification either when registering or when voting. Accepted identification includes a copy of a current and valid photo identification (if voting in person, the identification must be the original), a utility bill, a bank statement, or a government document that shows the name and address of the voter. Alternatively, the voter may cast a provisional ballot.(fn18)

F. The Election Assistance Commission

HAVA establishes the Election Assistance Commission (EAC),(fn19) which is responsible for distributing funding, conducting studies, and...

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