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Ten Years After Bush v. Gore, Five Unfinished Election Reforms

Ten years after the US Supreme Court barred a real recount of Florida ballots and handed the presidency to the candidate who had lost the popular vote of the republicin the original sin of the last decade—the United States still has an unstable and unequal election system that is ripe for gaming by political insiders and that too frequently rewards money and power rather than fostering democracy.

The Florida fight exposed some of the worst pathologies of the electoral process: ill-defined and inconsistent rules for resolving disputes over voter eligibility, different ballot designs from county to county, different voting technologies (ranging from paper ballots to the most advanced scanners) from jurisdiction to jurisdiction, unclear requirements for when and how recounts should occur, partisan control of the process and uneven timelines and requirements for getting a result and certifying it. The result was an imagined chaos—not genuine chaos, as all the challenges could have been addressed and resolved if Florida officials had been motivated to do so—that provided an opening for an activist high court majority to intervene on behalf of its preferred candidate.

After Al Gore (the Democratic contender who won the national popular vote by more than 500,000 ballots and was the clear choice of the plurality of Floridians who went to the polls on November 7, 2000) announced on December 13, 2001, that he was giving up the fight to have all of Florida’s votes counted, there was a good deal of talk about getting things right. New laws were written. New money was expended. New technologies were developed. And meaningful, if not definitional progress was made on some issues and in some states.

But, a decade on, we still have the old problem of an uneven and unequal election map that allows for more democracy in some states and less in others.

As Fair Vote’s Rob Richie notes, the United States still lacks some of the most basic standards and practices when it comes to voting and elections.

“Upholding fair voter access and protecting voting rights should not be a partisan issue,” he explains. “In our decentralized system however, some states do a better job at protecting these rights than others.”

For instance, in nine states, citizens can register and vote on Election Day. In 41 others, they must go through an often complex process weeks before the election, and then hope that the paperwork was processed correctly and delivered to the right polling place. Needless to say, states that allow Election Day voter registration have significantly higher voter turnout patterns—and significantly fewer problems making sure that eligible voters are able to cast ballots.

There is no universal standard for voter registration, no universal standard for counting votes, no universal standard for recounting votes and no universal standard for resolving too-close-to-call elections. Some states are models of efficiency and good practice (Minnesota, for instance), while others are disasters waiting to happen.

What this means is that, in any given election cycle, millions of Americans who would like to vote are disenfranchised—either because of barriers to registration, confusing rules, uneven standards for resolving disputes over eligibility, machinery that does not alert voters when a bad ballot is cast and practices that undermine the ability of voters to assure that their sentiments are recorded. In close presidential elections, this creates an uneven circumstance where voters in states that maintain best practices are significantly more likely to influence the result than voters in states that are less serious about democracy. It also means that members of the House and Senate are elected by different rules—even though their authority is equal once they arrive in Washington.

Of course, some of them arrive in Washington via the ballot box while others come via political appointment—since states have different rules for filling Senate vacancies.

With all due respect to federalism, there remains a crying need for reforms that address what is now separate but unequal democracy.

What sort of reforms?

Here are 5 that make practical and democratic sense:

1. Guarantee the Right to Vote in the Constitution

As Justice Antonin Scalia noted in the Bush v. Gore deliberations, Americans have no constitutionally-defined right to vote or to have those votes counted. As a result, we have no universal standards for holding elections or tabulating results. There are no guarantees from state to state, and sometimes even from jurisdiction to jurisdiction within a state, that Americans will be able to cast a ballot or that their sentiments will be registered in support of the candidate they want to see elected. This makes the United States an international outlier, and allows for many of the challenges we continue to face with regard to elections.

Congressman Jesse Jackson, D-Illinois, proposed a Right-to-Vote Amendment to the Constitution in 2001 and has continued to submit it in each new Congress. It is time for every member who takes democracy seriously to sign on as a cosponsor.

The Liberty Tree Foundation for the Democratic Revolution does a great job of promoting the Right to Vote Amendment.

2. Enact Universal Voter Registration

Fair Vote says: “Universal voter registration would modernize voter registration in the US so the government shares responsibility for registration with its citizens to ensure full and accurate voter rolls. Complete registration will significantly reduce duplications and omissions on the voter rolls and help create a system that balances the twin goals of election accessibility and security.”

"[While] complete and accurate voter rolls are the international norm, in the US nearly 1 out of every 3 eligible citizens are not registered and thus unable to vote on Election Day. To some this might sound shocking, but a simple examination of our voting system reveals why so many Americans are not registered to vote. Voter registration is a voluntary act, much like voting itself. Neither the federal, state nor local governments are required to register citizens. Instead, state and local boards of election rely on individual citizens, non-partisan and partisan voter registration organizations, and political parties to register voters. Not surprisingly, this decentralized system leaves many unregistered," FairVote continues.

To address the problem, FairVote has developed a list of seven common-sense recommendations that can be adopted on a federal, state or local basis to move the United States closer to 100 percent registration.

They include:

* Use existing government databases to automatically register all citizens to vote.

* 2. Create a fail-safe policy to ensure voters left off the rolls can register and vote on Election Day.

* 3. Set a uniform voter registration age of 16-years-old to systematically register youth. Tie this policy with a national "voting curriculum" in every high school.

* 4. Require US citizens to register to vote when completing taxes or actively opt-out of the process.

* 5. Tie Post Office Change of Address forms to the voter registration database

* 6. Require state or local governments to send every residence a notice of those registered at that location. Residents may then make changes as needed and return the updated form. 

* 7. Provide every US citizen, upon birth or after naturalization, a voter registration number similar to a social security number to be used in all elections and activated when a voter turns 18.

3. End Discrimination Against Ex-Felons

Former Florida Secretary of State Katherine Harris famously developed a variety of strategies to disenfranchise ex-felons in the state prior to the 2000 election. Harris was so “successful” that she ended up disenfranchising innocent voters who happened to have the names similar to those of ex-felons.

Harris took advantage of uneven and confusing laws in states across the country regarding the voting rights of ex-felons. While two states (Maine and Vermont) allow all felons to vote even when they are incarcerated, many other states go to extreme lengths to deny voting rights to men and women who run into trouble with the law. In two states, Virginia and Kentucky, individuals who are convicted of felonies are permanently disenfranchised.

What’s the bottom line? “Nationally,” according to the Sentencing Project, “an estimated 5.3 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions. Felony disenfranchisement is an obstacle to participation in democratic life which is exacerbated by racial disparities in the criminal justice system, resulting in an estimated 13% of Black men unable to vote.”

The Sentencing Project and the American Civil Liberties, working with many other groups, have succeeded in addressing some of the worst abuses. According to a new Sentencing Project report, an estimated 800,000 people with felony convictions have gained the right to vote as a result of changes in felony disenfranchisement policies in 23 states. Chicago Tribune columnist Stephen Chapman observes that “in a period of often bitter divisions, we have a rare case of simple good sense overcoming partisan impulses.”

That’s true. But much more needs to be done at the state level to end not just the specific disenfranchisement of those who have paid their debts to society but the broader use of ex-felon disenfranchisement as a voter suppression tool.

4. Address Voter Suppression and Intimidation

The National Association for the Advancement of Colored People and other groups documented multiple instances of voter suppression and intimidation in Florida in 2000. In addition to Harris’ official scheming, there were incidents outside polling places that recalled the worst days of the “Jim Crow” south.

Since 2000, there has been more attention to voter suppression and intimidation. But the problem persists. Karl Rove even got Republican-appointed US Attorneys into the act.

Legislators in some states have begun crafting legislation to make it illegal to intentionally deceive voters about their eligibility and to launch coordinated campaigns of suppression and intimidation.

To keep abreast of efforts to assure that every citizen knows their voting rights and feels comfortable exercising them, check out the Brennan Center’s important work on this front.

5. Eliminate the Electoral College

If the United States elected presidents by popular vote, Al Gore would have assumed the presidency in January, 2001. After all, he won by 543,816 votes—a margin almost five times that of John Kennedy over Richard Nixon in 1960. Unfortunately, America actually elects its presidents by Electoral College votes. That’s the only reason that the Florida recount mattered in 2000; Governor Jeb Bush and Secretary of State Katherine Harris needed to game the system to deliver the necessary Electoral College votes to Jeb’s brother.

A vestige of the compromises at the founding of the American experiment that allowed slavery to continue, the Electoral College was never a good idea. Now, it is now widely identified as one of the more anti-democratic (and incomprehensible) institutions on the planet.

Efforts to eliminate the Electoral College go back more than a century and have been supported by leaders of both major parties. Unfortunately, it has been difficult to get the Constitutional amendment through Congress—since small- and medium-size states see maintenance of the Electoral College as a tool to maintain influence in presidential elections.

An innovative campaign, the National Popular Vote Interstate Compact, seeks to reduce the influence of the Electoral College by cobbling together an agreement among the states that would effectively replace the Electoral College with a direct, nationwide vote of the people. According to the National Popular Vote campaign: "Nationwide popular election of the President can be implemented if the states join together to pass identical state laws awarding all of their electoral votes to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia. The proposed state legislation would come into effect only when it has been enacted, in identical form, by enough states to elect a President—that is, by states possessing a majority (270) of the 538 electoral votes."

Hawaii, Illinois, Maryland, Massachusetts, New Jersey and Washington—with 73 electoral votes—have formally joined the compact, while many other states are considering doing so.

For more on the campaign, go to the National Popular Vote campaign website.

To follow all the campaigns for fair elections. visit the FairVote site.

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