Guest Observer

Crisis of Trust Over Voting Difficulties Must Be Addressed

By Richard L. Hasen
Special to Roll Call

January 10, 2005

It is two months after Election Day, and we still do 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. Bush.

Post-election controversies are usually the stuff of close 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 process.

These claims, in turn, appear to be undermining the public’s 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 recent 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 so 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 100 times.)

Much of what gets called fraud these days is rather good, old 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 file.

Election administration problems are widespread, though until 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 a difference.

Despite the widespread belief that the election in Florida was 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 the election.

Imagine if these problems had occurred at the same time that (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 frequent and 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 relation 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’ views 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 in 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 are 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 is 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 officer 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 especially 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 United States.

We cannot eliminate close elections, and, since Bush v. Gore, 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.