How The Chad Changed
The National Image Of The State Of Florida,
And What It Means To Voters
by Tim Humphries
Jokester: Have you seen the Florida quarter
yet?
Innocent bystander: No.
Jokester: [pulls a nickel out of his pocket and hands
it to innocent bystander]
Innocent bystander: But, this is just a nickel.
Jokester: Count it five times!
[Guffaws all around.]
The 2000 presidential election focused
unprecedented attention on the election operations of the State of Florida.
As poll workers and election officials sweated through recount after
recount, and legions of lawyers swarmed courthouses from Tallahassee
to Palm Beach to Washington, D.C., the nation alternately derided the
state for having such an unseemly system for running its elections and
wondered - could it happen here? The answer for almost any jurisdiction
was "yes." That the nation's system for electing its presidents
(as well as its congressmen, governors, or aldermen) was so fragmented
and fragile seemed to shock most Americans. That it took a month to
elect a president because of perceived flaws in one state's voting operations
made them downright angry.
"Florida." For most of us, the
word conjures visions of sandy beaches, sunshine, sea breezes, citrus
groves, swaying palms, good times. Among those who administer, study
and regulate elections, however, the word "Florida" has a
much different connotation. For them, in the aftermath of the 2000 presidential
election, it stands for chaos, confusion, searing public scrutiny, bad
publicity and around-the-clock, weeks-on-end vote counting. At the January
2001 meeting of the Arkansas County Clerks Association a state elections
official opened her comments noting that the previous November's elections
in Arkansas had been difficult for some, but that "I'll bet you're
glad you aren't in Florida." In response the clerks, who are on
the front lines of elections in Arkansas, nodded unanimous agreement.
Sandy beaches and warm sunshine never entered their thoughts when the
word "Florida" was mentioned, even though they, along with
most other Arkansans, had spent a good portion of that winter shivering
in their cold dark houses during day after day of ice storm power outages,
after which they paid $400 gas bills occasioned by the highest natural
gas prices ever encountered. To election officials "Florida"
is like "Pearl Harbor." The words are synonymous with disaster,
and the good things about the places are not recalled by the words.
There is no need in elections circles to say "the debacle in Florida"
or "the election nightmare in Florida"; simply "Florida"
will suffice as a reference to the episode that ultimately resulted,
after weeks of recounts, litigation and recrimination, in the selection
of George Bush as president.
"Florida" stirred up a great
deal of much needed scrutiny of the election systems in this country.
The plural "systems" is used advisedly here, for the states
are given a great deal of latitude in tailoring elections to local custom
and practice and the federal government has been politically unable
(or perhaps just disinterested) to standardize elections to any great
extent. Thus, when the critics surveyed the terrain in the aftermath
of "Florida" they found, among other things: chads (hanging
and dimpled); optical scan voting devices; clunky old mechanical lever
voting machines; sleek, new touch-screen computer voting machines; paper
ballots counted by hand; voting by mail in some places; no-excuses,
in-person absentee voting in other places; differing standards for recounts;
differing interpretations of what constitutes a vote; various levels
of training of election officials; various systems for maintaining voter
registration rolls; and various levels of voter education (how do you
use that consarn computer thing, anyway!?) And this crazy-quilt pattern
was not confined to state lines. Inconsistency within the states is
the order of the day as local voting jurisdictions use all sorts of
different voting equipment and interpret and apply state laws differently,
as the Supreme Court and various news organizations pointed out to us
in "Florida."
"Florida" immediately spawned
a cottage industry of blue ribbon panels that would study the nation's
voting systems. It also brought new and welcome light to a few existing
studies, and spurred a spate of bills in Congress to address the woes
brought to light by "Florida." In Arkansas, the Election Improvement
Study Commission was created to study a wide range of issues arising
from "Florida." The Commission is due to make its report this
summer.
The organizations that studied the fallout
from "Florida" came up with a grab bag of reforms, many of
which had been anticipated by various groups like the National Association
of Secretaries of State (NASS) and the National Association of State
Election Directors (NASED).1 Their recommendations fell into
three main categories: voting eligibility and procedures, voting equipment,
and systemic standards. How does Arkansas fare with regards to these
recommendations?
Voting Eligibility and Procedures
This category includes recommendations regarding the process of casting
the vote, the number of days when and the places where elections should
be held.
Provisional ballot. One recommendation
frequently mentioned by the reformers is the provisional ballot, which
allows a voter to cast a specially marked ballot when her name is not
found on the voter registration rolls on Election Day. Arkansas is one
of 20 states2 that have such ballots. Fail safe voting, as
it is known in Arkansas, requires election officials to allow persons
whose names do not appear on the registration rolls at the polling place
to cast a ballot, called a "challenged ballot" here. That
ballot is then segregated from the other ballots and marked and will
be counted only upon the election commission's verification that the
voter is registered and eligible to vote in the precinct where she appeared.3
Fail safe voting serves the obvious purpose
of hedging against mistakes by the voter registrar. It also helps promote
orderliness at polling places on often-hectic election days as it provides
a potentially disgruntled voter the ability to cast his ballot without
the necessity of engaging in tense and time-consuming disagreements
with poll workers.
In the age of "Motor Voter,"
such procedures are almost essential. In 1993, Congress passed the National
Voter Registration Act, or "Motor Voter," to make voter registration
more accessible and to make it more difficult to purge voters from the
rolls. With Motor Voter anyone who visits a revenue office for a driver's
license or automobile registration (as well as other specified governmental
offices) is automatically given the opportunity to apply to the chief
registrar (the county clerk) for registration to vote.4
Many such would-be registrants believe
that the mere act of filling out the voter registration section of the
licensing form registers them to vote. To the contrary, the form must
be sent first to the Secretary of State's office and then to the county
clerk, and the county clerk must verify the registrant's eligibility
to register and notify the voter that he is registered before the registrant
becomes eligible to vote. A would-be voter who has not received such
notification from the clerk and who has failed to otherwise follow up
on the registration process may find that his name is not on the rolls
at the polling place. As noted above, the voter may vote a challenged
ballot. That ballot will not be counted, though, unless the county election
commission determines that the voter was properly registered.
Early Voting and No-Excuse Absentee
Voting. Many reformers favor early voting, which allows the voter
to vote in person at a designated polling place before Election Day.
They also like no-excuse absentee voting. This twist on absentee voting
allows a person who votes absentee to do so without having to state
a reason such as illness or absence from the jurisdiction on Election
Day. No-excuse absentee voting is essentially voting by mail.
Arkansas has early voting but requires
an excuse (illness or absence from the jurisdiction) to vote absentee.
Arkansas early voting law allows any voter to vote at the County Clerk's
office in their county of residence beginning 15 days before the election.
In Pulaski County, the Election Commission has the authority to establish
a number of additional polling sites in convenient locations around
the county.5
No-excuses absentee voting is among the
recommendations being considered by the Elections Improvement Study
Commission.
Early voting and absentee voting are convenient
for voters and help alleviate congestion at the polling place on Election
Day. Another recommendation heard in some quarters, internet voting,
would further the same goals, but most seem to recognize that use of
cyber technology in voting is yet a ways off.
Voter Education. If Florida taught
us one thing, it was that some voters just don't get it. The importance
of completely dislodging that chad was just completely lost on a fair
number of people. It is not surprising, then, that many have recommended
trying to educate voters to use the machines and furthermore to inform
voters about issues and candidates on the ballot before they ever get
to the voting booth. The former might encompass having uniform ballot
instructions appropriate to each system used, and providing these instructions
to each voter by mail or, at least, by posting them at polling sites.
The latter would require mailing each voter a sample ballot, as well
as instructions on voting, and a list of voters' rights and responsibilities.
There is no specific, formal voter education
requirement in Arkansas. Sample ballots are published in some newspapers,
but there is no requirement that county election commissions do so.
The texts of initiative measures and a list of candidates must be published
in newspapers of general circulation in each county and posted at polling
places.6 A voter who is confused or intimidated by the task of figuring
out a particular kind of voting machine must rely on the election clerk
for assistance.7
Poll Workers. The front lines of
elections are manned by poll workers who are, for the most part, retirees
(who else can get a day off in the middle of the week in November to
work for minimum wage?) who spend 12 hours a day in the trenches processing
voters. They are responsible for identifying the person before them
as a registered voter at their particular polling place; if that person
is not registered in that precinct, to find out where the voter is registered
and direct them there; for making sure that proper voters receive the
correct ballot; for processing challenged ballots; and generally overseeing
compliance with laws such as those that prohibit campaigning within
100 feet of the polling place. They help voters (who vote challenged
ballots) fill out voter registration forms, they deal with poll watchers
(representatives of candidates and issue groups) and they secure the
ballots and ballot boxes. Sometimes, in low turnout elections, they
sit and wait. Their contribution to the election process far outweighs
the meager compensation they receive for their time and efforts.
The reformers note, though, that with
increased emphasis on voter education and assistance, and increasingly
complex election laws, the seasoned citizens who man the polls, usually
as a public service (it's surely not for the money), should be supplemented
by a cadre of younger, energetic, organizationally savvy people. This
better mix of poll workers might increase participation in all aspects
of government amongst the younger set and relieve a shortage of poll
workers in many areas. Toward this end, the reformers propose to use
high schoolers and teachers as poll workers by making election day a
school holiday. They would further encourage businesses to give some
of their workers election day off to work the polls in the spirit of
public service.
Most proposals also include the element
of increased poll worker training and even poll worker certification
programs. Some would summon residents to serve as poll workers the same
as jury duty; others recommend allowing split shifts, and many would
encourage dropping residency requirements for election workers.8
In Arkansas, the State Board of Election
Commissioners has offered poll worker training for a number of years,
but, until the upcoming election, such training was strictly voluntary.
Act 1822 of 2001, though, requires that at least two poll workers at
each polling site receive training pursuant to curriculum provided by
the State Board of Election Commissioners. There is no certification
requirement. Other proposals to broaden recruitment of poll workers
are being studied by the Election Improvement Study Commission.
Military and Overseas Voters. It's
hard to vote when you are on a ship in the middle of the Persian Gulf,
or chasing terrorists through remote mountain caves. In order to accommodate
such voters, some recommendations favor making voter registration easier
for servicemen, allowing absentee ballot applications for overseas voters
to be valid for a year, allowing extra time after Election Day for overseas
absentee votes to be counted, and allowing such voters to use "fill-in-the-blanks"
absentee ballots.
In Arkansas, an Arkansas resident stationed
overseas is not required to register to vote, and when they make an
informal request for an absentee ballot they are also sent a voter registration
form.9 Also, absentee ballots from overseas voters are counted if they
are received within 10 days after Election Day.10
Voting Equipment
Ah, the chad. Voters in Arkansas probably
didn't know what the talking heads were talking about during "Florida"
unless they happened to live in one of the seven counties that use punch
card voting equipment, or, perhaps, visited Ray Winder Field or a major
league ballpark during All-Star voting. Now, everyone knows that when
the chad is not fully dislodged, all hell breaks loose at least
in big states in close presidential elections.
Punch card voting was roundly vilified
during "Florida" and as a result, the State of Florida has
decertified punch card voting and provided $24 million to its counties
to replace punch cards, paper ballots and lever machines.11 Georgia,
Maryland, North Carolina, Indiana, California and Texas also passed
measures to eventually eliminate punch cards. Other states where legislatures
are just now beginning to meet in the aftermath of the "Florida"
commissions may well follow suit. Congress has entered the fray now
with two major bills pending that would, among other things, allocate
billions of dollars in matching funds for states to eliminate punch
cards, lever machines, paper ballots and old electronic machines.12
Despite the widespread scorn directed
at old-fashioned voting equipment, not many studies actually recommend
standardizing voting equipment. Most want standard rules for what constitutes
a vote on particular kinds of equipment, benchmarks for voting system
performance, or requirements that any voting equipment allow the voter
to correct errors.
In Arkansas, most counties (49) use automatic
tabulation equipment (also know as "optical scan") where the
voter marks the ballot with a marker and then either places it in a
ballot box to be fed into the optical scan counting machine at the courthouse
or actually feeds it into the counting machine at the polling site.
The latter procedure is used in almost all of the 49 counties that use
optical scan. Other counties use lever voting machines (7), punch cards
(7), computer voting devices (3) and paper ballots counted by hand (9).
In furtherance of establishing benchmarks
for voting device performance, the state now requires that the number
of overvotes (ballots on which the voter voted for more than one candidate,
say, both Bush and Gore, for an office) and undervotes (ballots on which
the voter did not cast a vote for a particular office) be reported by
county election officials to the State Board of Election Commissioners.13
That board is also currently developing regulations regarding the definition
of a vote with each type of voting device used. [this reg may have been
adopted by press time]
Systemic Standards
The part of the system that the Supreme
Court examined in Bush v. Gore involved recounts ("count it five
times" get it?). Recall that the original tally showed Bush
leading by about 1,700 votes. Because the margin of victory was less
than one half percent, an automatic statewide "machine" recount
was triggered by statute. Bush came out on top after this recount, too,
but by a smaller margin. Gore sought a manual recount in certain jurisdictions,
and the hanging, dimpled and other kinds of chads came into play. In
Miami-Dade County, for instance, about 9,000 undervotes had been noted.
Gore wanted those ballots examined manually to determine if the voter's
intent could be divined from the way the chads were hanging or pooching.
The Supreme Court found that such a recount
for the purpose of determining the "intent of the voter" violated
the equal protection clause in the absence of "specific standards
to secure its equal application."14 The vote counters in the various
recount jurisdictions had applied differing standards for counting a
dimpled chad on a ballot where every other chad was completely dislodged,
for example. Without clear standards, the court held the recount unconstitutional.
This holding set the reformers to thinking
of ways to standardize election procedures, especially those governing
recounts.15 As noted above, Arkansas is defining "what is a vote"
through regulation by the State Board of Election Commissioners. But
the reformers further demand that the triggering circumstances for recounts
be more clearly defined.
The Arkansas code specifically provides
a recount when "[a]ny candidate" is "dissatisfied with
the returns from any precinct" upon petition to the county board
of election commissioners by the dissatisfied candidate.16 The recount
is done by machine if the vote was originally counted by machine, or,
if the county board decides that there may have been a mechanical malfunction,
it may recount the vote by hand.17 The dissatisfied candidate pays for
the recount unless she wins, in which case the upfront payment is refunded.18
Arkansas law allows only one recount.
Other aspects of the elections system
also received scrutiny from the reformers, especially voter registration.
Most encourage the use of statewide voter registration systems, which
Arkansas already provides. Some advise making the statewide database
available electronically at each polling place, an expensive proposition
that may take some time to accomplish here.
Other recommendations looked at uniform
reporting of absentee and precinct voting results, which Arkansas law
already addresses.19 Many encourage lengthening the certification period
to as many as 21 days. Arkansas gives county election commissions about
10 days to certify results, but requires that they report unofficial
results immediately to the Secretary of State so that the unofficial
numbers can be posted on the Secretary's website.20
Felons. In many states, convicted
felons permanently lose their right to vote. Several reformers recommend
that voting rights be restored when felons have served their time and
otherwise paid their debt to society. When this is done those reformers
further recommend that notice be given to felons that their voting privileges
can be restored.
In Arkansas, felons who have discharged
their sentences may register to vote.21 There is no formal requirement
for notice of voter eligibility.
Where Do We Go From Here?
The average voter seemed concerned, even
angry, in the aftermath of "Florida" that voting was not the
same everywhere. There have been calls from some quarters to implement
federal standards for elections, so that Florida does use the same equipment,
the same definition of a vote, the same standards for recounts, etc.
as every other jurisdiction. Local control of elections is deeply embedded,
though. While the U.S. Constitution does give Congress broad powers
to regulate federal elections, and while Congress has exercised that
power to enact proscriptions against discrimination in voting and to
regulate voter registration (Motor Voter), Congress has hesitated to
go much further into what has traditionally been the domain of the states.
Indeed, since the dust has settled on "Florida," the legislative
focus has been on providing funds to states to upgrade their voting
equipment.22 These bills also contain provisions for minimum standards
for equipment, requirements of statewide-centralized voter registration
and ensuring access for disabled voters to secret ballots.
It's the money, however, that will get
the attention of states. But will it lead to standardization? Probably
not, since there is no widespread agreement about what kind of voting
is best. Many favor computer-age touch-screen voting machines, but others
favor optical scan at every precinct. And the debate is not over. The
counties that use punch cards in Arkansas seem to like them just fine.
The Saline County Election Commission even appeared at a hearing of
the Senate State Agencies Committee during the 2001 legislative session
and demonstrated their punch card apparatus, bragging that its error
rate was no worse than that of optical scan. Of course, those counties
that use punch card systems now realize that any federal money that
becomes available will be matching funds. State and local money will
have to be used, and, given projected costs of $5-8000 per precinct
and the current governmental financial crunch, that money will be hard
to find.
It will likely be left to the states to
figure out the best response in each given case to the issues that came
out of "Florida." Arkansas is ahead of the game in many respects,
but its election officials realize that it could have happened here
in 2000. The trick for the Election Improvement Study Commission and
the 2003 General Assembly is to figure out how to keep a "Florida"
from happening here in '04 and beyond.
End Notes:
1. See, To Assure Pride and Confidence in the Electoral Process,
The National Commission on Federal Election Reform (2001) [this is sometimes
referred to as the Ford/Carter report; contact The Miller Center of
Public Affairs, University of Virginia, P. O. Box 400406, Old Ivy Road,
Charlottesville, VA 22904-4406, or The Century Foundation, 41 East 70th
St., NY, NY 10021; see the web at www.reformelections.org ]; Building
Consensus on Election Reform, The Constitution Project, Forum on Election
Reform (2001) [for copies contact The Constitution Project, 1717 Massachusetts
Avenue, NW, Washington, D.C. 20036]; NASS State-by-State Election Reform
Best Practices Report: Review of Existing Law (Best Practices), National
Association of Secretaries of State (2001) [for copies contact NASS,
444 N. Capitol St., NW, Suite 401, Washington, D.C. 20001]; Election
2000: Review and Recommendations by the Nation's Elections Administrators,
National Task Force on Election Reform, The Election Center (2001) [for
copies contact The Election Center, 12543 Westella, Suite 100, Houston,
TX 77079]; Voting in American, Final Report of the NCSL Elections Reform
Task Force, National Conference of State Legislatures, (2001) [for copies
contact the NCSL, 1560 Broadway, Suite 700, Denver, CO 80202]; Updating
the Voting Systems Performance and Test Standards: An Overview, Federal
Election Commission (2001) [available on the
web at www.fec.gov/pages/standardsoverview.htm ]; Voting: What is, What
Could Be, Voting Technology Project, Caltech, MIT (2001) [contact Jill
Perry at jperry@mit.edu or Patricia E. Richards at prichards@mit.edu];
Legislative Recommendations, National Association of State Election
Directors (2001) [for copies contact NASED, 444 N. Capitol St, NW, Suite
401, Washington, D.C. 20001].
2. Voting in America, Final Report of the NCSL Elections Reform
Task Force, pg 19, National Conference of State Legislatures, (2001).
3. Ark. Const. amend. 51, §13; Ark. Code Ann. §§
7-5-306, 7-7 308.
4. Ark. Const. amend. 51, §5.
5. Ark. Code Ann. § 7-5-418.
6. Ark. Code Ann. § 7-5-202(a).
7. Ark. Code Ann. § 7-5-309.
8. Voting in America, Final Report of the NCSL Elections Reform
Task Force, pg 114, National Conference of State Legislatures, (2001).
9. Ark. Code Ann. § 7-5-406.
10. Ark. Code Ann. § 7-5-411 (a)(1)(B)(ii).
11. See Anya Sostek, The Immortal Chad, "Governing,"
pg 26 (January 2002).
12. Id. at 27. (The two major election reform bills pending in
Congress are S565, known as the Equal Protection of Voting Rights bill
or the Dodd bill for its sponsor; and HR3295, the Ney-Hoyer bill, which
was recently adopted by the House.)
13. Ark. Code Ann. § 7-5-707(b).
14. See, Bush v. Gore, 531 U.S. 98, 101 (C 2000).
15. Among the reports making recommendations concerning recounts
are: To Assure Pride and Confidence in the Electoral Process, The National
Commission on Federal Election Reform (2001); Building Consensus on
Election Reform, The Constitution Project, Forum on Election Reform
(2001); NASS State-by-State Election Reform Best Practices Report: Review
of Existing Law (Best Practices), National Association of Secretaries
of State (2001); Election 2000: Review and Recommendations by the Nation's
Elections Administrators, National Task Force on Election Reform, The
Election Center (2001).
16. Ark. Code Ann. §7-5-319(a)(1).
17. Ark. Code Ann. §7-5-319(c)(1).
18. Ark. Code Ann. §7-5-319(e).
19. Ark. Code Ann. §7-5-701.
20. Ark. Code Ann. §7-5-701(a).
21. Ark. Const. amend. 51 §11; AG Op. 2000-133.
S565 (Dodd bill) and HR3295 (Ney-Hoyer
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