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The Mass Confusion Act
The push for loose elections standards.


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Peter Kirsanow

The Democratic National Committee issued a report last week delineating purported irregularities in the voting process in Ohio during the 2004 presidential election. The alleged problems ranged from long lines to poorly trained elections officials.

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The conclusions of the report were far less dramatic than the characterization given to them by DNC Chairman Howard Dean, who stated:

It’s been widely reported over the past several years that Republicans do target African Americans for voter suppression. It is very clear here that while there was no massive voter fraud, and I concur with the conclusion–it’s also clear that there was massive voter suppression.

When one of the report’s authors challenged Dean’s statement, he softened the suppression allegation somewhat–contending that there was an “appearance of impropriety” regarding the election.

If Republicans were attempting to suppress the black vote as Dean suggests, they did an abysmal job. There were 84,000 more black voters in Ohio in 2004 than in 2000–a 25-percent increase. Moreover, the number of blacks in Ohio who voted for the Republican presidential candidate increased between 2000 and 2004 by 100 percent.

The report makes a number of recommendations, including the adoption of “no excuse required” standards for absentee voting, discontinuation of punch-card voting systems, the enforcement of a voter’s right to vote without showing identification, and the adoption of uniform standards for the counting of provisional ballots.

Dean called on Republicans to cooperate in implementing election reforms. In fact, several of the suggested reforms outlined in the DNC report are addressed in the Count Every Vote Act (“CEVA”) introduced earlier this year by Senators Barbara Boxer (D., Ca.), Hillary Clinton (D., N.Y.), and John Kerry (D., Mass.). Congresswoman Stephanie Tubbs Jones (D., Ohio) is its leading advocate in the House.

CEVA is an uncommonly mischievous piece of proposed legislation. As National Review’s Byron York has noted, shortly after CEVA’s introduction, its loose voter-eligibility standards are a recipe for electoral chaos.

In promoting CEVA, Senator Clinton asserts that “the smooth functioning of our democracy depends on voters having faith in the fairness and accuracy of our voting system, and the Count Every Vote Act is an important step in restoring this covenant.” Congresswoman Jones claims that “this legislation seeks to combat the tremendous voting irregularities that plagued both the 2000 and 2004 elections.”

Contrary to Clinton-Jones assertions, a review of CEVA’s major features plainly shows that passage of the legislation will produce widespread voting inaccuracies and rampant irregularities that guarantee a proliferation of vote recounts and court challenges:

Voter Registration and Eligibility: “Trust Me–I’m eligible”

The Help America Vote Act (“HAVA”) passed after the 2000 Election requires mail-in registration forms to ask the following of the applicant:
1. Are you a citizen of the U.S.?
2. Will you be 18 on or before the election date?

CEVA amends HAVA by permitting a mail-registration applicant to submit an affidavit simply asserting that the applicant is a U.S. citizen and 18 or over. CEVA mandates that election officials accept such affidavits unless they contain material omissions that affect voter eligibility. A material omission however, doesn’t include failure to provide a social security number or driver’s license number. In fact, a mail-registration applicant needn’t provide any information regarding date of birth or citizenship other than an attestation that the applicant meets voter eligibility requirements.

While CEVA states that the presumption should be in favor of registration, its lack of mail-registration eligibility standards would allow illegal aliens, persons under 18 and those using the names of the deceased to easily register by mail. Furthermore, nothing prevents someone with a little time on his hands from submitting multiple attestations of eligibility. CEVA’s proponents will assert, no doubt, that each applicant will be assigned a four-digit code so that registrants can be reconciled with voter lists. That assertion is, to put it politely, a joke. CEVA’s lack of standards coupled with the millions of ballots cast in a federal election promise logistical nightmares for canvassing boards.

Election-Day Registration: Vote Early and Often

CEVA permits a person to show up at a polling place on Election Day, register on the spot and cast a vote. CEVA requires the vote to be counted like any other.

Again, an individual (or busloads of individuals) with a bit of extra time could appear at multiple polling places, register at each and cast a series of votes in the same election. And as noted below, CEVA assures that lots of people will have plenty of extra time on Election Day.

Provisional Ballots: No I.D. Required

Under HAVA, provisional ballots may be cast by voters who don’t have an I.D., whose names don’t appear on the registry for the polling place, or who are recorded as having requested an absentee ballot. The ballots are held “provisionally” until such time as the voter’s eligibility to vote is verified.

CEVA amends HAVA so that a provisional ballot will be counted regardlessthe location at which it’s cast and regardless of whether I.D. has been presented to the election official at such location. A person may, therefore, go to several polling places and cast provisional ballots at each despite the fact that the person’s name doesn’t appear on that precinct’s list of registered voters. The person needn’t provide a license number, Social Security number, utility bill, bank statement, or any other form of I.D.–and his vote will be counted.

Felon Enfranchisement: Blue Overall?

CEVA provides that felons who’ve served their sentences, including probation or parole, can’t be denied the right to vote.

Most states have restrictions on the rights of felons to vote. Section 2 of the 14th Amendment grants to states the ability to restrict such right. The restrictions vary from state to state. The most common disenfranchisement provision provides an administrative procedure for felons to regain the right to vote after they’ve completed their sentences. Although eight states disenfranchise felons for life, most state disenfranchisement laws don’t have blanket prohibitions against felon voting. Distinctions are made between inmates, releasees, parolees, probationers, etc.

Various estimates place the number of disenfranchised felons at approximately 4 million (CEVA states that there are 4.7 million). It’s estimated that if voting rights were restored to all felons, approximately 30 percent would vote (approx. 1.2 million). But perhaps the statistics that most intrigue CEVA’s sponsors are contained in a study by Northwestern University professors Jeff Manza and Marcus Britton and University of Minnesota professor Christopher Uggen: In 1992, Bill Clinton received 86 percent of the felon vote; in 1996, he received 93 percent. In fact, Manza, Britton and Uggen calculate that Clinton received 99.7 percent of the felon vote in southern states in 1996. If the Democrat presidential candidate in 2008 were to receive similar percentages of the votes of newly enfranchised felons, a few red states would probably turn blue.

Federal Election Day: A Whole Day’s Work

CEVA declares the first Tuesday in November in even numbered years a federal holiday. The ostensible reason for this is that millions of voters don’t have enough time to get to the polls on an average work day. As Howard Dean stated earlier this month at the Take Back America 2005 Conference:
I think, frankly, we ought to have voting on–either make the Tuesday a holiday or else move it to another day where people don’t–can get out and vote.

You know, the idea that you have to wait in line for 8 hours to cast your ballot in Florida–there’s something the matter with that. You think people can work all day and then pick up their kids at child care or whatever, and get home and then have a–still manage to sandwich in an eight-hour vote? Well, Republicans, I guess, can do that, because a lot of them have never made an honest living in their lives. But for ordinary working people, who have to work eight hours a day, they have kids, they got to get home to those kids, the idea of making them stand for eight hours to cast their ballot for democracy is wrong. We ought to make voting easier to do.

Many employers already grant employees reasonable time off to vote. Voters pressed for time can even vote by absentee ballot or early voting. Moreover, a number of major union contracts already designate Election Day a paid holiday. This has allowed thousands of union workers to man telephone banks, courtesy shuttles and other get-out-the-vote efforts for Democrats. CEVA would add tens of thousands of additional troops to that effort. Private employers probably wouldn’t (couldn’t) recognize yet another holiday. That means that most of the people with the entire day off on Election Day would be either unionized and/or government employees whose party affiliation is more likely to be Democrat than Republican. To add to this imbalance, tax dollars would be subsidizing the GOTV efforts.

But CEVA doesn’t stop there. It even directs the Election Assistance Commission to study “appropriate methods” to get government employees to serve as poll workers. Furthermore, CEVA requires that each jurisdiction in which a substantial number of voters had to wait more than 90 minutes to vote on November 2, 2004, comply with a remedial plan to reduce such waiting times. If CEVA requires elimination of 90-minute waits, why the need for a full day off on Election Day?

The DNC Ohio Election report is right that the elections process needs improvement. But CEVA leaves unaddressed the primary cause of elections problems–voter error. Instead, the act’s provisions guarantee an increase in errors by both voters and elections officials. More recounts and court contests will erode the electorate’s confidence in the integrity of the electoral process–and, consequently, in the legitimacy of government as well.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.



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