War on Voting–By Incompetence

In repeated posts about voting suppression, I’ve tried to constantly note that aside from all the bad laws and deliberately discriminatory policies, one of the most important weapons against voting rights is simple incompetence–deliberate or by negligence–in election administration. This point is vividly reinforced by Obama campaign legal advisor Richard Pildes at The Atlantic, who focuses on the long lines and other complications facing voters in the battleground state of Virginia:

Virginia has 134 local government units. Each has its own electoral board and essentially makes its own decisions about how many voting machines to buy and how much to invest in maintaining the machines. (A statewide board of elections exists, but it has almost no role on these machine issues.) Because local governments are primarily funded through local taxes — particularly property taxes — poorer counties and independent cities, with low tax bases, have fewer resources from the outset to devote to all public goods, including voting equipment. State law does impose minimal levels of machines per capita, but these requirements are so low as to be close to meaningless. In addition to resource-strapped local governments not being able to provide sufficient machines, lack of money leads to maintenance being put off and older machines staying in service too long. In Virginia, which holds an election every year (state and local elections alternate with ones for federal offices), this problem is exacerbated. The level of machine breakdown on Election Day is shockingly high, even if utterly predictable….

These general, longstanding resource problems were dramatically enhanced in the wake of the 2008 financial meltdown. Local governments suffered enormous budget crunches. Not only did they lack the resources to maintain or update election equipment, they were cutting funding for the hiring of election officials….

Voting has become increasingly complex, both technologically and legally. Yet the poll workers who run the process are temporary volunteers paid $100 a day. They serve episodically and cannot develop much expertise; they tend to be older and less technologically knowledgeable; they are mostly not lawyers, but must adapt, with minimal training, to constantly changing election laws. To give you a sense of contrast, the Obama campaign had lawyers available at key polling locations to make sure poll workers were applying the law properly; these lawyers had received 2.5 hours of training and had 3-inch thick binders with the relevant election laws.

On the legal side, poll workers now have to apply state election law for regular voters, the federal Help America Vote Act for those who are going to cast provisional ballots, and absentee-ballot laws for in-person absentee voting. Each category of voting has its own distinct set of rules to be mastered. Every additional layer of complexity creates more capacity to confuse poll workers and slow down the voting process, even if the law, such as the Help America Vote Act, is well intentioned.

Pildes goes on to talk about the pressure that Virginia imposes on Election Day thanks to its failure to allow “no excuse” early voting opportunities. But his main point is very clear: we continue in this country to tolerate a crazy-quilt, state-and-local dominated election system that begs for abuse, often at the hands of state and local officials who are not exactly united in a desire to make voting easier or to count votes fairly. Thanks to the absence of any affirmative, general “right to vote” in the U.S. Constitution (though it does exist in some state constitutions), the federal government has largely limited itself to efforts to prevent constitutionally-prohibited racial discrimination against voting rights, and/or to provide, occasionally, carrot-and-stick encouragement of states to clean up their act (e.g., in HAVA, which, as Pildes noted, may have made matters worse in some places).

Whether it’s by federal constitutional amendment, state constitutional amendments, aggressive extension and enforcement of voting rights laws prohibiting discrimination, or a new HAVA with teeth and a lot more money, it’s far past time to end the anomaly of primitive election administration in what is supposedly the world’s most advanced democracy. It’s not enough to fight blatantly offensive laws. If the actual experience of trying to vote doesn’t improve, real democracy will remain a chimera.

UPDATE: Turns out Washington Monthly intern Max Ehrenfreund did a post for Slate on Election Day about how available technology can not only improve election administration, but could also prevent any theoretical fraud.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.