THE GOP KILLS VOTER REFORM.
HAVAC
by Alec Appelbaum
The New Republic
Post date: 10.23.04
Issue date: 11.01.04
In August 10, Peggy Tibbetts went to vote in Colorado's state primary at the same Garfield County polling place she has used for eight years. But she never cast a ballot. Poll workers barred Tibbetts from voting because she wasn't carrying identification. A supervisor offered her a provisional ballot but advised her that it probably wouldn't be counted.
Tibbetts had run smack into Colorado's interpretation of a 2002 federal law called the Help America Vote Act (hava). Hava, requires ID checks on new voters who register by mail. But a lawsuit filed by Colorado Common Cause on behalf of Tibbetts and two other voters contends that Colorado overstepped the law by demanding identification for all voters. "They went so far beyond hava that they tripped over the Constitution," says Colorado Common Cause Director Pete Maysmith. Voters in South Carolina, South Dakota, New Mexico, Florida, and elsewhere also say officials, citing hava, have interfered with voting. As it happens, these officials are probably violating hava. But, since the law left states free to implement hava as they saw fit, local officials like the ones Tibbetts encountered are likely to decide who gets to vote on November 2.
The main purpose of hava was to require states to create voter databases that would help them screen out mistaken or ineligible ballots by January of this year. Though they could have gotten federal money to create these computerized registries, 41 legislatures took waivers, allowing them to put the databases on hold until 2006. Nonetheless, the Help America Vote Act will affect this November's elections--just not in the way its name implies. Instead of building comprehensive voting systems, Republican officials in several states are exploiting hava's voter-identification requirements to disenfranchise likely Democratic voters.
The ID rules in hava have their roots in the Ford-Carter Commission, a bipartisan effort that, in 2001, recommended changes to voting procedures in the wake of the 2000 Florida election debacle. Many of the Commission's recommendations were eventually adopted by Congress--as part of hava. But so was the Commission's ambiguity about using ID rules to protect voters' rights and diminish the risk of fraud. Tova Andrea Wang, who staffed the 2001 Commission, says, "ID was the most controversial provision when this whole thing was being hashed out."
The question of how to verify that a voter belongs at a polling place provokes strong partisan sentiments, because small errors have decided dozens of races. John Mark Hansen, a University of Chicago scholar who researched voter identification for the 2001 Commission, found that, since 1948, 32 senators, 41 governors, and 31 electoral college slates prevailed by less than a 1 percent margin. Hansen also found that roughly 5 percent of Americans have no photo identification. And these Americans tend to be poorer, less educated, and more urban. Since Democrats historically have outnumbered Republicans in this demographic, each party suspects the other of manipulating voter rolls. "Republicans are convinced that Democrats pack a lot of noncitizens [onto the rolls], and Democrats are convinced that Republicans pile on unnecessary restrictions," says Hansen.
When Congress considered election reform in 2002, these divisions came to a head. Missouri Republican Senator Kit Bond blamed bogus voter registrations--including those of corpses and at least one spaniel--for fellow Missourian John Ashcroft's squeaker loss in his 2000 Senate race. While reporters dwelled on the perils of new voting machines, Bond marshaled Republican forces to embed strict voter-identification requirements into federal law. Two Democrats, New York's Chuck Schumer and Oregon's Ron Wyden, countered by trying to make a signature an acceptable form of identification. Republicans defeated this idea by invoking the possibility of massive election fraud. Arlen Specter of Pennsylvania warned that someone "dead or never in existence" could use a signature to mask an illegitimate vote. The Republicans had another, implicit argument: A law that demands physical documents makes things easier on local officials. "Signature validation imposes significant costs on election administrators," noted Hansen's 2001 report. "Proof of identity places burdens on voters, especially voters who are poor and urban."
Hava struck a compromise between these burdens. It requires identification only from people who register for the first time by mail. The identification can be a bank statement, utility bill, driver's license, or another government document. And, even if a voter never provides identification, a poll worker must give the voter a provisional ballot. By requiring identification only from newcomers who haven't visited the county clerk's office, hava entrusts local election officials to decide whether voters are who they claim to be. And it ultimately protects voters by telling states to set up rules for counting provisional ballots. "Hava does not require identification in order to have a vote counted," says Wendy Weiser, a lawyer with New York University's Brennan Center for Justice. But many Republican election officials are conducting this year's vote as if it does.
Around the country, GOP officials are downplaying or ignoring hava's voter protections. South Carolina's election workers' manual--authorized by the state elections commission, which is chaired by a Republican--contradicts hava's provisional ballot requirements. "If a person presents himself ... without a valid [photo ID or registration certificate]," it says, "he/she should not be allowed to vote." In Colorado, where the chief election officer is also a Republican, the new voter registration form lists a driver's license or state-issued ID number as "required," even though the law allows other documents. And, in Bond's home state of Missouri, the law lets partisan poll workers waive ID requirements. It requires documents from "some government agency" or a post-secondary school at the polling place. (Poorer people are less likely to attend college.) But, if Ashcroft leaves his wallet in the car, he'll have no hassle. "Personal knowledge of the voter by two supervisory election judges is acceptable voter identification," says the law. Hypothetically, partisan election judges could waive in voters from their own party whom they "recognize," while barring others from the polling place.
In South Carolina's coastal Georgetown County, the list of acceptable identifications excludes entitlement cards, such as Social Security and Medicare cards. Fearing that these rules would make it too difficult for many poor people to register, a Democratic activist named Carol Winans decided to conduct a door-to-door registration drive. But, when she went to collect blank registration forms for this effort, county election commission Chairman Herb Bailey, a Republican, refused to let her have them. Bailey told me that the state election commission advised him to cut off volunteer registration efforts, on the grounds that voters can register themselves easily enough: "It might not be my personal preference, but it's the law." But Winans smells partisan trickery. "They saw Democrats volunteering and said, 'Carol, why would you want all these uninformed voters who don't take the trouble to register themselves?'" she says.
Some ID rules seem specially designed to help Republicans in this year's key races. Colorado's tight Senate race pits Pete Coors, a Republican, against Attorney General Ken Salazar. Colorado Progressive Coalition Co-Director Bill Vandenberg says his organization has registered over 9,000 new Latino voters--likely Salazar supporters--since June. But a September 13 ruling by Donetta Davidson, Colorado's Republican secretary of state, says that, if a voter goes to the wrong precinct and gets a provisional ballot, the state will only count the ballot's presidential and vice-presidential vote. That matters politically, since new voters are likelier than seasoned ones to get confused about precincts and show up at the wrong polling place. (On October 14, an Ohio judge nixed an edict from the Republican secretary of state that would have refused ballots to voters in the wrong precinct; a Colorado judge upheld Davidson's finer formulation at around the same time. Democrats in Michigan and unions in Florida have brought similar cases.)
In New Mexico, where Bush lost by 366 votes in 2000, conservatives sued to require identification from anyone who signed up in a voter-registration drive. Secretary of State Rebecca Vigil-Giron, a Democrat, said identification was required only from voters who mail in forms--just as hava prescribes. A judge upheld Vigil-Giron's interpretation on September 7. But Senator Pete Domenici hurried into the fray on September 21, introducing a stand-alone federal law that would apply ID requirements to registration drives. (The law is sitting in committee.) "You can't fix [voter fraud] in the state courts because every state judge I know--and, I hate to say it, because they are nice guys and nice ladies--they all are, with few exceptions, partisan Democrats," Domenici told the Scripps-Howard News Service. Appellate judges ruled in Vigil-Giron's favor on September 28.
But it is poll workers, not judges, who will largely determine what happens on Election Day, and a case in South Dakota suggests that Republicans can exploit legal confusion. A 2003 law in that state allows signed affidavits as identification, but voters on or near Indian reservations testified that officials barred them from a June 1 primary for not carrying documents. Bret Healy, a former head of the South Dakota Democratic Party, runs a voter-access organization called the Four Directions Committee. He mounted a campaign to get postings at each polling place to explain that affidavits were legit--a vital point for Native Americans who often don't carry government-issued cards. Healy's campaign succeeded in time for November 2. But he still expects trouble. "The message that you don't need an ID never sunk in with election workers," he says.
The basic problem is that Congress has legislated rational voting processes but not obliged states to act rationally. "Under hava, every state is supposed to have an administrative complaint procedure," Wang says. "This has been completely ignored." So poll workers referring to state interpretations of hava will determine who gets to vote on November 2. And, now that having identification on Election Day has become a partisan issue, cliffhanger races may depend on how long people like Peggy Tibbetts are willing to stand in a polling place and argue.
Alec Appelbaum is a writer in New York City.
