In Georgia, untold numbers of voters who had registered and checked their voting locations well before Election Day were turned away, told they couldn’t be found on the rolls or had come to the wrong polling place. Many were denied provisional ballots, which were in short supply, and which some poll workers were handing out selectively.
In Florida, Governor Rick Scott called from the porch of the governors’ mansion for a criminal investigation into supposed fraud in Senate vote counting—despite running as the GOP nominee in that very election. Scott ultimately recused himself from certifying his own election results, under pressure from a lawsuit, but not before leveling wild and damaging claims. He’s one of three politicians seeking statewide office this year who helped oversee their own races.
In Michigan, North Carolina, New York, Texas, and elsewhere, dilapidated voting machines broke down. Some flipped votes from one candidate to another. Some caused such long lines that voters gave up and went home. Others overheated, like the ones in Palm Beach County that forced poll workers to go back and recount 174,900 votes, amid the closely-watched Florida recount.
Given that a record 113 million people cast ballots in this midterm, the voting system breakdowns plaguing this election could arguably have been worse. But as the messy contested elections in Florida and Georgia demonstrate, the business of voting in America remains deeply flawed. Yes, voters in several states just approved ballot initiatives to expand voter access and limit gerrymandering. But voter suppression, conflicts of interest, aging machines, and security vulnerabilities are worsening problems. And Congress has precious little time to fix them before the next election.
House Democrats have made election system improvements a centerpiece of HR 1, a bill to strengthen democracy that they have pledged to pass in their first 100 days in the majority come January. The legislation also sets out to close ethics loopholes and reduce the influence of big money in politics. Senate Republicans, of course, are unlikely to go along.
Nevertheless, the election system is overdue for an overhaul on the scale of the Help America Vote Act (HAVA), which approved federal standards and funding for voting after the contested 2000 presidential race pulled the curtain back on the nation’s balkanized and erratic election infrastructure.
Meaningful legislation would include elements of House Democrats’ proposal, including automatic voter registration, but would also ban conflicts of interest in election administration, invest substantially in new machines, and protect voters nationwide from discriminatory purges and other suppression tactics. Here’s what a HAVA for the 21st Century should look like:
Ban Candidates from Running Their Own Elections
It should be a no-brainer that the person overseeing an election should not have a stake in its outcome, let alone be one of the leading candidates. As the Florida arms of the League of Women Voters and Common Cause argued in their suit calling on Scott to recuse himself from the Florida Senate recount, “no man should be a judge in his own cause.” Then-Florida Governor Jeb Bush recognized this when he recused himself from the notorious 2000 recount that ultimately installed his brother in the White House. But this generation of Republicans, it seems, has no such compunctions.
Faced with a similar lawsuit, Georgia Secretary of State Brian Kemp belatedly withdrew from overseeing the gubernatorial contest in which he is the GOP nominee, but only after sabotaging the registrations of more than 50,000 largely African American voters, and falsely accusing Democrats of hacking the voter files. Kansas Secretary of State Kris Kobach also ran for governor while serving as secretary of state, recusing himself only after it was clear he had won the primary. (Kobach lost the general election.)
President Donald Trump’s instinct for political hardball makes such a ban especially crucial before 2020, argue democracy advocates who say Congress should also codify internal Justice Department rules that limit what can be said and done about candidate investigations in the window before an election.
Restore and Expand Voting Rights
House Democrats propose to restore anti-discrimination rules in the Voting Rights Act of 1965 that the Supreme Court overturned in its 2013 Shelby County v. Holder ruling. That ruling reversed the Act’s requirement that states and localities with a history of voter discrimination obtain Justice Department approval, or “preclearance,” before changing their election rules. The ensuing rash of state voter ID laws, voter purges, cutbacks on early voting, polling place closures, and other restrictions that disproportionately disenfranchise voters of color makes the need for expanded voter protections increasingly urgent.
But Congress should not limit its focus to states with a history of voter discrimination, which has reared its ugly head in places like Ohio and certain Florida counties not subject to “preclearance” under the Act. Congress must clarify the rules for how voters may be purged from the rolls under the National Voter Registration Act, in light of escalating voter purges nationwide. Congress must also update the HAVA to establish federal standards for the counting of provisional, absentee, and mail-in ballots. Such ballots are counted differently from state to state and even county to county, and are too often rejected over technicalities like a missing date on an envelope, or due to supposed signature mismatches identified by poll workers untrained in handwriting analysis.
Invest in Voting Machines and Database Security
More than half the nation’s voting machines have reached or are nearing obsolescence, according to a 2015 report by the Brennan Center for Justice at New York University. Sixteen years ago, HAVA granted $3 billion in federal funds to states for new machines, but those were only expected to last some 10 to 15 years. And they were touch-screen machines in any case—a type of technology no longer deemed secure by election experts, who now recommend machines that leave a voter-verifiable paper trail.
The threat of foreign interference in U.S. elections—Russian-linked hackers may not have changed any votes in the last election, but they did manage to probe election systems in 21 states—make machine upgrades imperative. Congress did manage to cough up $380 million in grants to states for election security improvements this year, but one election official called it “a ten-cent solution to a $25 problem.” By one estimate, it will cost $1.25 billion over a decade to protect elections from cyberattacks. That’s a lot less than HAVA cost. Yet the leading election security bill on Capitol Hill is stalled, and time is running out before 2020.
Implement the 2014 Presidential Election Commission’s Recommendations
It’s too much to expect the Trump administration to appoint a truly bipartisan commission to examine elections—his lopsided and chaotic “election integrity” commission imploded amid lawsuits and internal wrangling. Luckily, the recommendations of President Barack Obama’s bipartisan Presidential Commission on Election Administration remain relevant today.
They include registration modernizations, expanded early voting, better allocation of polling place resources, and voting machine certification and innovations that would have prevented many of the irregularities and administrative snafus that foiled voters in this election. Add to the list automatic voter registration and risk-limiting audits, and disruptive voter list errors and post-election lawsuits would plummet.
Republicans in the Senate may not go along—though they ought to, given the inevitability of future recounts and contested elections. But Democrats should at least begin a full public debate on how to fix voting, both to shed light on best practices for the states, and to the lay the groundwork for when Congress is prepared to act.