Crisis of Trust Over Voting Difficulties
Must Be Addressed
January 10, 2005
It is two months after Election Day, and we
not know with certainty the winner of the gubernatorial election in
Washington state or the mayoral race in San Diego. Meanwhile, the
Internet is swimming with conspiracy theories that Republicans, mostly
in Ohio and Florida, stole the presidential election for George W.
Post-election controversies are usually the stuff of
elections, and this year is no exception: The Washington state
gubernatorial race, for example, features a 130-vote margin out of
almost 3 million votes cast. But this year’s election season is
qualitatively different from earlier ones, in that those on the losing
side of close elections increasingly are alleging fraud in the election
These claims, in turn, appear to be undermining the
faith in the electoral process, creating a much more dangerous
situation than most people realize and requiring some radical changes
in the way we run elections in this country.
Both Democrats and Republicans have compared our most
election to the Nov. 21 Ukranian presidential election invalidated by
the Ukrainian Supreme Court amid fraud allegations. James Galbraith
wrote that “if the Ukraine standard were applied to Ohio — as it should
be — then the late lamented U.S. election was certainly stolen.”
Protesters in Washington state, who did not want the state Supreme
Court to order 573 erroneously rejected ballots from Democratic-leaning
King County to be counted, held signs reading “Welcome to Ukraine.”
Some fraud apparently did occur in the 2004 election but
far only related to voter registrations. No one has yet found any
evidence of fraud substantial enough to change election outcomes. (Mary
Poppins, it seems, doesn’t turn out to vote even if she is registered
Much of what gets called fraud these days is rather
fashioned incompetence by election administrators. The 573 contested
King County absentee ballots were originally not counted because
election workers had erroneously coded them as lacking a signature on
Election administration problems are widespread, though
recently they were virtually unreported. Consider election officials in
North Carolina, who lost more than 4,500 votes because they thought a
computer disk could hold more data than it did. The state now must hold
a new election for a statewide office where those votes could have made
Despite the widespread belief that the election in
a success, the state continued to experience voting problems, including
ballots lost because of a power failure, computer problems in
tabulating votes, and 270 ballots found in one county two weeks after
Imagine if these problems had occurred at the same time
(as in 2000) a 537-vote margin separated the Democratic and Republican
candidates for president in Florida. Some of those on the losing side
would have had an incentive — even absent any evidence — to undermine
the legitimacy of the election by pointing to these incidents and
claiming voter fraud. Many supporters of the losing candidate would
have been inclined to believe it, if only as a means of wishful
thinking that the results could be reversed.
In no place has this election been subject to more
vocal fraud allegations than Ohio. Yet extensive investigations
recently by The Washington Post and The New York Times and scholarly
investigations by the Social Science Research Council and the
Caltech-MIT Voting Technology Project have debunked many of the claims
of the conspiracy theorists.
Though it is mostly Democrats alleging fraud now in
to the presidential vote, Republicans clearly were getting ready to
play the fraud card had President Bush lost by a narrow margin — even
if such fraud allegations have in the past proven spurious.
Allegations of fraud are adversely affecting Americans’
of the electoral process. According to a recent NBC News/Wall Street
Journal poll, more than a quarter of Americans worry the vote count for
president was unfair. And there is a partisan and racial dimension to
the issue. John Harwood reports that just “one-third of
African-Americans call the vote ‘accurate and fair,’ while 91 percent
of Republicans do.”
It is hardly surprising that the winners have more faith
the process than the losers. But just before the election, a Rasmussen
Reports poll showed 59 percent of American voters believing there was
“a lot” or “some” fraud in American elections.
It should go without saying that free and fair elections
essential to a well-functioning democracy and that an eroding public
faith in the electoral process is worrisome. Had the margin in Ohio
been 100,000 votes closer and the outcome determined by a set of
provisional ballots to be judged and counted post-election by partisan
election officials, we would have seen crowds in the street as we saw
in the Ukraine.
Part of the solution to the fraud-and-legitimacy problem
additional resources to minimize election administration incompetence.
But the more fundamental question is that of trust.
In many parts of the United States, the chief elections
of the state is a secretary of state who runs in a partisan election
and is involved in partisan activities. This is intolerable. How can
Democratic voters in Ohio trust Kenneth Blackwell, the Ohio secretary
of state, who co-chaired the Ohio campaign to re-elect President Bush?
How can Republican voters in California trust Kevin Shelley,
California’s secretary of state, who is accused of taking federal money
earmarked for voter education to promote Democratic causes?
The issue of trust in election administration is
important when it comes to electronic voting, which is increasingly
being used in the United States. Those of us lacking technical
sophistication cannot judge how secure such systems are from hackers.
Although an auditable paper trail may help, the real solution is a
cadre of professional election officials with loyalty to the process,
not the candidates. Professionalism and nonpartisanship is the model
used in Australia and Canada, and that’s how we should do it in the
We cannot eliminate close elections, and, since Bush v.
we cannot avoid post-election litigation as part of a strategy for
losing candidates. But there are steps we can take to restore the
people’s faith in the democratic process and make allegations of fraud
laughable again. We can start by taking the politics out of the
administration of elections.
Richard L. Hasen, a professor at Loyola Law School in
Los Angeles, writes electionlawblog.org.