Will the November Surprise Be Disenfranchised Voters?

Just a couple of weeks ago, a lot of Democrats were mad at Barack Obama. John McCain had crept ahead in some tracking polls, and Obama's supporters were pleading with him to get tough and hit McCain where it hurts. Then the country's economic difficulties turned into an outright meltdown, McCain's running mate was revealed to be something of a nincompoop, and the Republican's campaign looked more and more like it was flailing about without any rationale for why its increasingly grumpy candidate ought to be elected president.

Now that Obama has moved into a lead of about six to eight points, Democrats have stopped getting mad and started getting anxious. Surely, the GOP has an October surprise up its sleeve. Or despite what they're saying to pollsters, Americans just won't elect a black man to the White House. Or Democrats will find a way, just as they have so often before, to screw things up.

I hate to contribute to this anxiety, but there is one thing people haven't been worried enough about: whether everyone who wants to vote will be able to, and whether everyone's vote will actually be counted. Make no mistake: The problems that existed in 2000 and 2004 haven't gone away. In some ways, they've gotten worse. In fact, there could be millions of Americans who will be prevented from exercising their franchise on Nov. 4.

Start with the fact that one of the two parties in this country has long seen denying certain kinds of people the ability to vote as a central pillar of its electoral strategy. Operating on the simple calculus that the fewer people who vote, the better it is for Republicans, the GOP has employed a strategy of putting as many roadblocks between voters and the ballot as it possibly can. These efforts start in the legislature -- for instance, passing laws requiring driver's licenses to vote, which many people don't have, particularly older people, poorer people, and people who live in urban areas. Then there are legally questionable moves such as vote caging, one of a number of techniques used to assemble lists of people whose right to vote can be challenged at the board of elections or at polling places themselves.

And let it not be said that the efforts are not up-to-the-minute. Last month the Michigan Messenger reported that that state's Republican party planned to use lists of foreclosed homes to challenge voters at the polls (the Michigan GOP denied the charge). Finally, there are the Election Day dirty tricks, which we see every two years -- threatening letters sent to black voters telling them that if they have any unpaid parking tickets and they try to vote, they'll be arrested, or flyers put up in black neighborhoods claiming that the election has been delayed, so don't bother going to the polls on Tuesday.

And don't forget that the U.S. attorneys scandal is about officials being fired because they refused to turn their offices into outposts of the Republican Party. In some cases they were urged to pursue trumped-up investigations of Democratic officeholders timed to hit the papers just before Election Day, while in others the goal was intimidating progressive groups that conducted voter registration. It was hardly the only way the Bush Justice Department has been politicized. As Andrew Gumbel noted in The Nation, the Justice Department's civil-rights division during the Bush years has moved farther and farther from its actual mission -- protecting civil rights -- and has become in many ways a servant of Republican electoral interests. "In effect," Gumbel writes, "Bush's ideologues chose to interpret the division's professional commitment to civil rights law as a form of partisanship -- as though the law itself represented a sinister liberal agenda. In their view, minority rights had been manipulated to the detriment of Republicans, especially in battleground states like Missouri and Florida."

I had a sobering conversation about all this with Jonah Goldman of the Lawyers Committee for Civil Rights Under Law, who directs the organization's National Campaign for Fair Elections. The Lawyers Committee and a number of other groups formed a coalition called Election Protection, which tries to make sure that all Americans have the chance to cast their ballot. The magnitude of the challenge they face is absolutely staggering. As Goldman said, "It's much harder to get people to vote than to get people not to vote." Make it time-consuming, inconvenient, or expensive for people to cast their ballots, and you'll see votes dropping away by the thousands.

Although there are numerous hurdles to registration, it is the distributed chaos of Election Day that makes ensuring the vote a task almost too enormous to contemplate. Election Protection says that they had 8,000 volunteer attorneys working on Election Day 2004, and anticipate having 10,000 this Nov. 4. That seems like a lot, until you consider that according to the U.S. Election Assistance Commission, there are 113,000 polling places in the United States. (If you encounter any problems yourself, you can call the Election Protection hotline at 866-OUR-VOTE.)

There have been some improvements since the 2000 election -- the Help America Vote Act of 2002, while far weaker than it should have been, did force states to centralize their voter rolls and provided money to upgrade from lever and punch-card voting machines. But there are other factors that threaten to cause more Election Day problems in 2008 than ever before.

The first is that the voter targeting done by the campaigns has gotten more and more sophisticated. This means that an increase in registration isn't distributed evenly, but can be concentrated in certain areas, meaning some precincts will see an unexpected jump in voters showing up at the polls. Second, and more importantly, the extraordinary organizing effort mounted by the Obama campaign has meant millions of new registrants, which will put a strain on local election officials unprepared to handle more voters than they've ever dealt with before.

One thing we're almost guaranteed to see is the kind of long lines that made it so difficult for so many in Ohio to vote in 2004. You'd think that election officials who ran out of ballots before would make sure they had plenty to go around this time. But according to Goldman, not only did some municipalities not learn the lesson of 2004, "they don't seem to be interested in learning."

So not only will there be an increase in the number of voters, a new voter, or one who hasn't voted in many years, is more likely to encounter problems -- a registration that didn't go through, a mismatched name or address, or an unfamiliarity with new voting machines. And when a voter has a problem, the delay causes the line behind him to grow longer and slower. The people whose job-for-a-day it is to solve these problems, furthermore, are seldom equipped to handle difficulties quickly and efficiently. Goldman points out that the average age of a poll worker is 72. I can think of one 72-year-old who is no ace with technology, but he's got a staff to help him out when his Blackberry starts acting up.

Add to that the fact that just as the attorneys from Election Protection will be fanning out to ensure that people get the opportunity to vote, Republican lawyers and campaign operatives will be devising new and creative ways to keep them from voting. And that doesn't even mention potential problems with the counting of the votes -- as we've seen, electronic voting machines have a way of losing and mistabulating votes, seemingly always to the benefit of Republicans.

So how nervous should Democrats be? There's no way to know for sure. There are some hopeful signs -- to take just one example, many of the problems in Ohio four years ago were created by Kenneth Blackwell, at the time both the state's chief election officer and the Bush campaign co-chair (one of his more creative moves was a declaration, eventually overturned by the courts, that any registration form not printed on card stock would be considered invalid). The current Ohio Secretary of State, Democrat Jennifer Brunner, has been working as hard at ensuring the voting rights of those in her state as Blackwell worked to restrict them. She has recently taken steps to prevent vote caging and won a court case allowing voters to register and vote absentee on the same day, much to the chagrin of Republicans.

Nonetheless, it is a certainty that there will be problems at the polling place on Nov. 4. But how much of a difference it makes depends on the closeness of the race. If one candidate -- Barack Obama, let's say -- has a comfortable lead in the popular vote and the electoral college, then the media, and the majority of us who voted without problems, will take little notice of the people who were turned away at the polls or gave up after standing on line for hours. And four years from now, we'll go through it all again.

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