Ghosts of Ballots Past

“It’s not the voting that’s democracy; it’s the counting.” —Tom Stoppard, Jumpers

Voting rights are in the news again, and they’re back as a national issue. In Florida, Texas, Pennsylvania, and several other states, the coming election showdown on November 6 has been shadowed by a rising concern among Democrats over voter-ID requirements, restrictions on vote canvassing, and changes to early voting. How many of those worrying this year know that it was a series of late-19th-century political battles that helped decide how we cast and count our ballots? Or that this strange, only dimly remembered history leads straight to the mess we’re in today?

In the years after the Civil War, Republicans who had fought for the Union continued to struggle with Democrats over how to implement a great democratic achievement. It was a first in world history. Black adult men, someone else’s property only a few years before, were now to be citizens—and being citizens meant they were supposed to be able to vote. 

Cartoon Courtesy of Harpweek

Thomas Nast's cartoon about the presidential standoff of 1876 uses a football analogy.

Easier said than done. In the postwar Reconstruction, a strong cabinet agency would be needed to direct criminal enforcement of new federal elections statutes in the South. In 1870, Congress created the Department of Justice, and President Ulysses S. Grant appointed to it strongly pro-voting--rights lawyers. Southern Democrats saw this as federal interloping. Their massive resistance grew into the presidential standoff of 1876 between Democrat Samuel Tilden and Republican Rutherford B. Hayes. Hayes had the support of Southern blacks, but in Louisiana, South Carolina, and Florida, amid turmoil on the ground, getting an undisputed vote count proved impossible. The Electoral College, the presidency, and Reconstruction itself hung in the balance.

Just how both sides eventually arrived at the so-called Compromise of 1877, after months of impasse, is still an active research question for scholars. But a compromise was reached, and its consequences were clear. President Grant ordered federal troops in the South back to the barracks. Republican control in the three contested states collapsed. In return, by the 8–7 decision of an electoral commission, Rutherford B. Hayes—Democrats soon dubbed him “Rutherfraud”—was sworn in as America’s 19th president.

Though it’s commonly assumed that the Republican retreat from Reconstruction marked the effective end of Southern black male suffrage, in fact, for the next eight years, attorneys general under Republican presidents continued to prosecute elections violations. Under an 1871 statute that survived into the early 1890s, the federal government even deployed elections marshals in Northern urban areas and criminally prosecuted local interference. It may surprise our modern ears—used to hearing that the government’s entry into voting-rights protection was a 20th-century first—to learn that long ago, federal enforcement enjoyed the firm backing of the United States Supreme Court.

America’s first great round of voting battles was serious, sometimes murderous, business. By 1888, the Republican Party had elevated “a free ballot and a fair count” in the South to the top plank in its platform. In 1889, a Republican congressional candidate in Arkansas trying to prove he had won was assassinated in a far corner of that state. 

During the 51st Congress and the presidency of Benjamin Harrison, Republicans, who had unified control of the federal government, set out to establish a national system of federal canvassing boards, supervised by U.S. Courts of Appeal. The system would have operated mainly in the South, but it would have offered the first national institution for supervision of federal elections. Had the bill passed—and it came amazingly close—it might have meant the beginning of a national system for administering our elections.

 

We never got that system. Instead, in America today we have 50 secretaries of state working with at least 8,000 local boards (5,000 township, 3,000 county) to conduct federal elections. Some scholars believe that count is as high as 10,000. It speaks volumes about America’s hyper-localism that a definitive number is hard to come by. The administrative competence of these state agencies and local boards unsurprisingly varies from very good to haphazard. The weaker jurisdictions may fail to replace defective machinery or software or lack the knowledge to choose wisely among vendors of elections technology. They may rely on poorly trained volunteer poll workers or offer too few voting locations, leading to lines that fail to clear by the end of the day. 

Sometimes, of course, local administrators do a terrible job of ballot design. This was the notorious case in 2000 in Palm Beach County, Florida, where voters’ choices were spread like butterfly wings across two pages in an absurd visual mishmash, almost certainly disenfranchising voters who had not intended to support Pat Buchanan. That bad ballot was just one memorably fraught element in Bush v. Gore, the epic legal showdown spawned by the country’s first hung election since 1876.

Richard Hasen, professor of law and political science at the University of California, Irvine, and founder of Election Law Journal, the leading scholarly venue in the field, has a knack for taking byzantine details of voting technicalities gone awry and the incredibly complex, multistage legal battles that follow and unfurling it all as a riveting story. His new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown, offers the clearest short discussion of Bush v. Gore in print. It goes on to explain how Republicans launched a campaign to make election fraud a major public issue, how with far-reaching consequences the Supreme Court validated voter ID in 2008 in Crawford v. Marion County Election Board, a case from Indiana, and how seemingly minor incidents in contests around the country over the past decade have ratcheted up distrust between the two parties. 

“In the years since the Florida debacle,” Hasen writes, “we have witnessed a partisan war over election rules. The number of election-related lawsuits has more than doubled … and election time invariably brings out partisan claims of voter fraud and voter suppression … campaigns deploy armies of election lawyers and the partisan press revs up whenever high-stakes elections are expected to be close. We are just one more razor-thin presidential election away from chaos and an undermining of the rule of law.” 

One realizes early on in the book just how weird an action the Supreme Court took in Bush v. Gore. By a 5–4 majority, it stepped in to decide a presidential election. It did so on the basis of a perfectly good principle—treat equal voters equally—but in utter denial of our ramshackle, decentralized voting system, which inevitably handles voting in hundreds of slightly different ways. Moreover, the majority opinion said the standard couldn’t be applied again. The Court left a vacuum. To fill it, Congress enacted the Help America Vote Act of 2002, meant to improve ballot technology. But over time this, too, has inadvertently promoted partisan distrust because of the profusion of new hardware and software that have sometimes broken down. 

 

***

In the meantime, while it’s true that not every election is close, the probability in any given cycle that there will be a dramatically close race—if not nationally, then on the state level—has been growing. That historic development, together with the nation’s institutional legacy of electoral administrative weakness, has made it harder to fulfill a key requirement of the democratic process: finality. When news surfaces of miscounts or missing ballots, or when before a recount either party wants to argue how votes should be tallied, both sides increasingly jump first to state and then, if they can find a claim, to federal courts. Hasen cleverly gives us the new equation driving American politics: If the margin of error in counting votes exceeds the initially reported margin of victory, there is a margin for litigation.

The parties can usually find good legal advice. Election law once hardly existed as a profession. But the Department of Justice started to reincorporate electoral expertise into its purview in the 1940s, and the demand for knowledgeable lawyers increased with the Voting Rights Act of 1965 and each of its four renewals. By the mid-1990s, casebooks on American election law were appearing for the first time. As Hasen shows, state judiciaries have further developed their election law, the professional mastery of which has become extremely valuable to both parties.

The emergence of election law as a field is a good thing—a sign that it has not just been the government striving to expand protection of voting rights in recent decades. There have been private lawyers, working hard to bring cases. The downside of all this expertise is an electoral variant of what political scientist Robert Kagan has dubbed “adversarial legalism”—constantly using the courts instead of forging durable legislative compromises. How constantly? “I track the court action on the Election Law Blog,” Hasen writes, “and I’ve posted more than thirty thousand items since 2003.” 

Besides being error-prone, the American way of administering elections, Hasen argues, is deeply partisan. “Other modern democracies … put nonpartisan officials in charge of their elections,” he writes. We instead get a soldier like Katherine Harris, Florida’s secretary of state in 2000, who during the electoral fiasco in her state “also served as the co-chair of the Bush for President election committee in Florida.” In 2004, the secretary of state in battleground Ohio, Kenneth Blackwell, was a state Bush campaign official; his seemingly trivial decision that voter-registration forms must be turned in on paper of a certain thickness—a move likely to burden Democratic registration drives—was rescinded after a public outcry.

After the damage wrought by Katherine Harris, some Democrats and liberal groups tried to even the playing field by supporting more secretaries of state for office. But their side is not free from the appearance of bias. Ohio’s secretary of state in 2008, Democrat Jennifer Brunner, instructed local elections officials to reject a large number of Republican absentee--ballot requests (many displayed an extremely minor clerical error). One of the surprises of Hasen’s book is being able to see decisions such as Brunner’s from the GOP point of view and to grasp that the bigger need here is not for partisan balancing but for competent and officially nonpartisan administrators. 

 

Hasen dismantles one concern that has gripped some on the left, notably the worry that manufacturers of new voting hardware and software—mandated by the Help America Vote Act—are somehow corporate Trojan horses installing machinery that can be programmed or hacked to produce phony Republican victories. (Far too many people would have to be involved to actually carry out such a conspiracy.)

To his right, Hasen takes aim at the pressure Karl Rove put on the Justice Department during George W. Bush’s presidency to find evidence of vote fraud, rather like the Bush national-security team’s ill-starred quest for evidence of Iraqi weapons of mass destruction. Drawing on the work of Rutgers University political scientist Lorraine Minnite, Hasen figures that in the end, the Justice Department found only 35 cases of Election Day fraud, some of it inadvertent—out of hundreds of millions of votes cast from 2002 to 2005. In recent years, after the Bush administration’s overreach on this front blew up into a scandal, the effort has moved elsewhere. Since 2010, Republican-held state legislatures have generated, according to the Brennan Center for Justice at the New York University School of Law, 180 new and restrictive election regulations. 

 

***

The political context here is crucial. At the start of the 20th century, Republicans, even though they had ceded the South to Democrats, still enjoyed national dominance. Then, from the 1932 election of Franklin Delano Roosevelt into the late 1960s, Democrats dominated, to such a degree that America developed something close to a one-party system. That age, too, is long over. The Reagan revolution remade the South, and Republicans have come to match the Democrats in organizational and electoral strength. America hasn’t seen this degree of parity, or expectation that elections could turn out to be cliff-hangers, since the late 19th century. 

Nonetheless, the Republican Party is deeply insecure as America grows more diverse. There is, therefore, some logic to the obsession with voter ID. Regarding the effects of voter-ID legislation, Hasen reviews the existing analyses from cases in which an ID requirement has been implemented on a smaller scale. Some studies show that the practice depresses voter turnout by 1 percent to 2 percent. But the laws have also inspired compensatory training and organizing to meet the requirements. The results might seem to be a wash. In any event, firm statistical proof of an impact is impossible to arrive at with the turnout data available.

But with state rule changes recently upping the election-integrity ante, liberal election lawyers and civil-rights groups are worried that this year will be different. Hasen quotes a Clinton-appointed judge on the Seventh Circuit Court of Appeals, Terence Evans, reacting to Indiana’s voter-ID legislation: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” This view is now widespread among Democrats. Since Hasen finished his book, Pennsylvania has passed its own restrictive voter-ID law, and in June we heard the Pennsylvania Republican House majority leader, Michael Turzai, as he looked ahead to the election, tell his state party committee: “Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania, done.” (At press time, the law was making its way through the courts.)

While a modest federal ID requirement—for first-time voters registering by mail—has been in place since 2002, this is the first year many states will require an ID for voting, testing on a massive scale the administrative capacities of election officials and voters’ abilities to prove they are who they say they are. We are, as a country, doing a trial run to discover whether these requirements will impair the citizenry’s right to vote. It’s essential to recognize that the tryout is not being performed in defiance of public opinion. On the contrary, the public supports voter ID. The election of 2012 is nonetheless an experiment, based in part on an ahistorical assumption: that we have turned the corner on voting-rights issues, and our painful history of struggles over the right to vote is behind us.

 

The federal elections bill of 1890 may be one of the most intriguing what-ifs in American history. It was during the fight for its passage in the House that the Reed Rules, which still regulate House procedure, permitting the speaker to perform such basic tasks as count a quorum and schedule legislation, were born. To make a go of the bill in the Senate in 1891, the Republicans even succeeded—astonishingly—in passing a resolution to abolish the ultimate senatorial gambit, the filibuster. 

A few days later, though, the filibuster question was put to a revote. Uncertain over the outcome, two senators, one pro and one con, raced north by train from Washington, D.C. Their mission: to find the absent Senator Leland Stanford, a California Republican, at his Manhattan mansion and determine where he stood.

Ironically, arguing the pro-filibuster, anti–federal elections bill case to Stanford was none other than Senator William Stewart, the man credited more than 20 years earlier with managing Senate consideration of the 15th Amendment, which guaranteed black men the right to vote. Hailing from a mining state, Stewart had joined a faction of Republicans whose top priority was now silver. Arriving first in New York, Stewart persuaded Stanford to give him his vote. The filibuster was restored, and the bill that might have laid the groundwork for a federal elections system was history.

In 1893, enjoying their first unified control of national government in decades, Democrats under Grover Cleveland set about repealing Reconstruction-era elections statutes. Even so, there was one great battle left to fight in this early round of voting wars. Alarmed by the resilience of black electoral participation, even in states where it had declined, a hard-line Southern Democratic faction determined to push black voting and office-holding to zero. Poll taxes, literacy tests, and residency requirements were all in place by 1907 and wielded, along with private violence, by white supremacists looking to shut down black suffrage. The disenfranchisers also reduced a lot of voting by poor, white farmers as they turned the South into the lower-turnout region that it still is. 

One of the great 20th-century transformations of the party system, of course, saw Democrats take up the cause of civil rights and drive through the Voting Rights Act that finally redeemed the promise of the 14th and 15th amendments. Republicans meanwhile adopted a “color blind” approach to affirmative action, civil rights, and voting rights. But until recently, the two sides were not so drastically far apart. In 2006, following clear signals from the Bush White House, the parties coalesced to renew and fix up the Voting Rights Act yet again. Since 2006, many Republicans have distanced themselves from that renewal, in large part because of their intense support for voter ID.

 

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That brings us to today and a reality, two highly competitive parties, that many political scientists once ardently wished for, with the unintended consequence that we risk elections too close to call. 

Victor Gillam's cartoon above, from July 16, 1892, depicts Democratic opposition to the federal elections bill, which remained a potent campaign issue during the 1892 election.

On June 27, the Associated Press reported that the Obama campaign had “recruited a legion of lawyers to be on standby. … Four years ago, the teams of lawyers organized by Obama and Republican candidate John McCain … went largely unused since the election wasn’t very close. But this year may be different given all the changes to voting laws—and the closeness of the race.” 

As the “armies” gather for 2012, there appears to be no legal, institutional, or technical solution to America’s voting problems on the near horizon—no basis, as yet, for a ceasefire. The Supreme Court botched the chance it had with Bush v. Gore to write a decision that might eventually have paved the way for a central agency or uniform instructions from the federal courts. The Election Assistance Commission, established as an information-gathering agency by the Help America Vote Act of 2002, also could have made a difference. But once it tried to address vote fraud, its basic research functions were politicized. Another option that might someday be viable is Internet voting, based, perhaps, on the Pentagon’s efforts to develop secure distance voting by military personnel. But as Hasen succinctly shows, Internet voting turns out so far to be easy to hack.

A repeat of the 2000 crisis in Florida, either this year or in 2016 or 2020, is a low-probability event, in the same sense that a nuclear-reactor meltdown is a low-probability event. Nonetheless, late in his book Hasen urges us to take seriously the warning of Charles Stewart, MIT’s nationally prominent expert on election technology and administration. Stewart has hypothesized that 2000 was a harbinger of alarming disputes to come: “I actually think the chances of a large-scale meltdown in many parts of the country are greater now than they were,” he writes. “I at least expect ‘another Florida’ in my lifetime.”

Election disputes are not just prone to litigation these days, Hasen worries—they’re wired to the new social media in ways that can inflame tempers. In the language of one theorist of the sociology of disasters, the two have become “tightly coupled.” A repeat of 2000, were it to happen, would be even more stressful. We just have to be ready for the possibility. (And patient: Only in 2001 did the San Diego State political scientist Ronald King, using cutting-edge techniques that exploited census reports and past voting records, show convincingly that Rutherford B. Hayes most likely did win Louisiana in 1876 and may also have won South Carolina.) 

Still, it’s important to keep in mind that our current wars over voting are mild compared to the first round—more like a heavy thundershower than a month of tornadoes. Those early battles were about trying to have a democracy in a context where people were willing to militarize their disagreements. This time around, we’re not going to arrive at an anti-democratic solution. 

There is, in fact, a smart idea I once heard floated for a medium--to--long--
term solution—but it’s a private, voluntaristic one. Every election board should have a trained professional running it. Yet no American graduate program in elections administration exists. We need one. It’s not hard to imagine an online, distance-learning graduate school of election administration, operated by a consortium of law schools, business schools, and departments of political science. A program could build off of promising ventures like the Program for Excellence in Election Administration at the University of Minnesota, which, though it does not provide a terminal degree, does offer training and advice.

If we develop elections administration as a career path, people will start to get better at it. It’s not a perfect solution. But the value of getting better at running elections and counting the votes—at long last—can’t be underestimated.

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