Keeping the Voting Clean

By RICHARD L. HASEN

LOS ANGELES

AS election mishaps hindered voting on Tuesday from Cleveland to Denver, some people were already calling for giving up on the new electronic voting machines, which were themselves put in place to prevent another hanging-chad fiasco like that in Florida in 2000.

The calls will only get louder as the public learns more about Florida’s 13th Congressional District — coincidentally, Katherine Harris’s old district — where voting machines apparently lost or failed to record up to 18,000 votes in a race where the Democratic and Republican candidates are just a few hundred votes apart. If everyone just voted by mail or with pencil and paper, the argument goes, our voting problems would be solved.

But this reaction to the bugs and glitches shows that Americans have not learned the right lesson from 2000: the problem is not with the technology of running our elections but rather with the people running them.

The United States should join the rest of the world’s advanced democracies and put nonpartisan professionals in charge. We need officials whose ultimate allegiance is to the fairness, integrity and professionalism of the election process, not to helping one party or the other gain political advantage. We don’t need disputes like the current one in Florida being resolved by party hacks.

Critics of electronic voting raise two main issues: machines are susceptible to fraud (or hacking) and they are difficult to use.

Fraud problems would not go away if we switched to vote by mail, as Oregon has. Such voting — let’s call it mandatory absentee balloting — takes the voter out of the polling booth and puts him at home or elsewhere, someplace where votes could be sold to the highest bidder. Most of the documented cases of voting fraud in the United States in recent years involve absentee ballots. At the beginning of the last century, voter turnout declined as states adopted secret, in-person balloting, most likely because corrupt politicians stopped buying votes since they couldn’t verify that people were really voting for their candidate.

True, squeaky-clean Oregon has been able to use the vote-by-mail system. But it is not clear that clean elections could be held in places with more rancorous partisan disputes over election rules and vote counting. And mail-in ballots don’t eliminate the problem anyway: losers still have an incentive to claim fraud and try to get a close election result overturned. Public opinion on the integrity of the election process is volatile, and surveys show losers have less confidence in the fairness of the process than winners do.

Voting with pencil and paper creates its own problems. With long ballots like California’s it would take many days to calculate results, and the potential for election administrator error or fraud — if votes were really to be counted by hand, as opposed to optically scanned — would be enormous.

Nor would a switch to vote by mail or pencil and paper necessarily solve anything. Across the country last Tuesday we saw all kinds of mundane problems: not enough ballots, polls opening late, disputes about which voter identification rules applied. Problems arose with absentee ballots, too. Some were mailed to the wrong address, or with incorrect postage, or with inaccurate or incomplete information. Then there’s the question of accurately counting only the validly cast absentee ballots.

The point is not that electronic voting is the best system; maybe it should be scrapped. The real solution is to create a cadre of dedicated, professional nonpartisan administrators with enough money to run a scrupulously fair and voter-friendly system of election administration to resolve such questions.

To improve the chances that states will choose an independent and competent chief elections officer, states should enact laws making that officer a long-term gubernatorial appointee who takes office only upon confirmation by a 75 percent vote of the legislature — a supermajority requirement that would ensure that a candidate has true bipartisan support. Nonpartisanship in election administration is no dream. It is how Canada and Australia run their national elections.

We’ve moved in exactly the wrong direction. Election administration reform has become more, not less, politicized since Bush v. Gore. Since 2004, voter identification laws have been supported only by Republican legislatures and opposed by Democrats. The debate over election integrity versus election access makes administration just another locus for partisan debate. This should and can end with nonpartisan professional administration.

Even with divided government coming again to Washington, there is an opportunity to take steps that would keep each party from gaining partisan advantage, and that can end our biannual anxiety over whether we are headed for another election meltdown.

Richard L. Hasen, a professor at Loyola Law School in Los Angeles, writes the Election Law blog.