Voting Problems in Ohio Set Off an Alarm

The New York Times
November 7, 2004
Voting Problems in Ohio Set Off an Alarm
By ADAM LIPTAK

Voters in Ohio delivered a second term to President Bush by a decisive margin. But the way the vote was conducted there, election law specialists say, exposed a number of weak spots in the nation's election system.

"We dodged a bullet this time, but the problems remain," said Heather K. Gerken, who teaches election law at Harvard. "We have problems with the machines, problems with the patchwork of regulations covering everything from recounts to provisional ballots, and problems with self-interested party officials deciding which votes count."

Had the electoral math been only a little different, lawyers would be examining even closer finishes in other states.

"If it was Iowa or New Mexico that held the balance," said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles, "we would be in litigation now." Mr. Bush won those states by one percentage point; he won Ohio by two.

As it turned out, though, Ohio was the crucible.

The state relies heavily on punch-card balloting machines of the hanging-chad variety. Voting machines in Ohio failed to register votes for president in 92,000 cases over all this year, a number that includes failure to cast a vote, disallowed double votes and possible counting errors. An electronic voting machine added 3,893 votes to President Bush's tally in a suburban Columbus precinct that has only 800 voters.

Officials in Ohio will be able to reject some of the approximately 155,000 provisional ballots cast there, offered to potential voters whose names could not be located on local election rolls, because of the ambiguity of the standards.

There were also long lines at the polls, and it is unclear how many people grew too dispirited to keep waiting and ended up not voting.

"In Ohio," said Edward B. Foley, who teaches election law at Ohio State University, "there is a cloud over the process, even though there is not a cloud over the result."

Democratic lawyers concluded that challenges based on these problems could not bridge the 135,000-vote deficit Senator John Kerry faced on Wednesday morning. A recount of the punch cards would have yielded no more than 20,000 votes, election law specialists said, and there was no reason to think that those votes or the provisional ballots would uniformly favor Mr. Kerry.

Based on the Ohio experience, election law scholars advocate two types of broad reform: more uniformity within states - in registration lists, voting technologies and the distribution of voting machines - and replacing partisans with professionals in election administration.

"Congress has got to try again," Professor Foley said. "We need more money for machines. We need uniform allocation of machines. And Congress has to develop a clearer picture of the process for evaluating provisional ballots."

All these issues might have been before the courts if the vote in Ohio had been a little tighter.

"We had cases ready to be filed," said Daniel J. Hoffheimer, state counsel to the Kerry campaign in Ohio. "If Senator Kerry had decided to really go to the mat on provisional ballots, the Kerry-Edwards legal team would have looked at all the issues out there."

Most scholars and lawyers agree the main problems in Ohio resulted from technical failures and inadequate resources rather than partisan bickering in polling places or intentional disenfranchisement. But they said poor and minority voters may have suffered disproportionately.

"There is a feeling here that the long-line problem was a problem of disparity that fell along socioeconomic lines," Professor Foley said. "There were isolated instances of long lines here in the seven- to nine-hour range, and the common lines were two to three hours. When your line gets to two or three hours, it's system failure."

Even if the waits were comparable in poorer and richer precincts, legal scholars said, they might have had a disproportionate impact. If time is money, a long wait is a sort of poll tax, and the rich may be more able to pay it.

The lines were in any case baffling, Mr. Hoffheimer said.

"Although the turnout was not as large as the secretary of state had predicted," he said, "in quite a widespread number of precincts around the state, lines were horrendously long. At one time, one of them was estimated to be 22 hours."

On Oct. 29, the Ohio secretary of state, J. Kenneth Blackwell, said he expected 72 percent turnout. His office reported that the actual turnout on Nov. 2 was about 70 percent.

Election law scholars say too many decisions about the election process are now made by people who are partisan. Professor Gerken of Harvard took exception to the actions of Mr. Blackwell, a Republican.

"He was making judgment calls that were simply implausible," she said, citing a decision, later rescinded, that registration forms on anything less than 80-pound paper stock should be rejected.

Legal scholars agreed that changes to the system must be made behind what philosophers call the veil of ignorance - without knowing how the change will affect particular outcomes.

For this reason, it is unclear whether the Colorado initiative that would have allocated the state's electoral votes proportionately was defeated on its merits or because it could have immediately changed the outcome of the election. Bush voters confident of victory in the state may have voted against the measure to ensure that their candidate received all nine of the state's electoral votes.

For similar reasons, scholars say that if litigation is needed to clarify election procedures, it should be brought before an election.

The election left many questions unanswered about its most significant innovation: provisional ballots, required by a 2002 federal law intended to restore public confidence after the grueling Florida recount. County election officials in Ohio are now determining whether those ballots should be counted.

That will take some time, and the process has critics. In Ohio, for instance, four-member county election boards, each with two Republicans and two Democrats, will decide, with the approval of three members needed to count the votes. "Party officials should not be deciding who can vote," Professor Gerken said.