State Legislatures Magazine: July/August 2001

Editor's Note: This article appeared in the July/August 2001 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Putting Chads to Rest

Not Just Florida
Updating Voting Machines
Voter Education
Finding Poll Workers
Handling Recounts
Voter Registration
Attacking Voter Fraud
Fixing the System

NCSL Election Reform Task Force

The Not-so-hot Election Reforms

Putting Chads to Rest

Election reform proved to be a hot item on legislative agendas this year. Here are a few ideas states are hoping will make a difference.

By Jennie Drage
In the wake of the election debacle that unfolded in Florida last year, legislators all over the country were asking, "Could it happen here?" The controversy spawned a flood of election reform bills.

Every legislature opened up its election code and went over it with the proverbial fine-tooth comb. Many legislators found that their state was just lucky. They could easily have been in the same quagmire as their counterparts in the Sunshine State. They discovered that the way U.S. elections are run is in dire need of attention. Many states conducted the first presidential election of the 21st century using 19th century technology.

More than 1,500 bills have been introduced this year to try and solve the problem. Some states opted for a cautious approach, appointing an interim committee or commission to study the issue and recommend legislation for next year. Others attacked the issue with gusto and produced a comprehensive list of reforms.

It's no surprise that the most ambitious package enacted so far this year comes from Florida where the infamous hanging, swinging, dimpled and pregnant chads have now disappeared forever.

The sweeping set of reforms, estimated to cost $32 million over the next two years to upgrade voting equipment, educate voters, recruit and train poll workers, and create a statewide voter registration database, passed in early May.

"Our goal was to make sure Florida voters have confidence that their votes will be counted, that the election process is fair and that the standards for review are consistent," says Representative J. Dudley Goodlette, who chairs the House Committee on Rules, Ethics and Elections.

By the 2002 elections, all of Florida's 67 counties must use voting equipment certified by the secretary of state (26 counties already use an approved system). So far, the only certified equipment is optical scan technology, but the new law leaves the door open for counties to seek certification for other electronic equipment as well. Regardless of which system they choose, all counties will have to use machines that give voters a chance to correct errors.

Gone too is the much maligned butterfly ballot. The secretary of state will design a ballot to be used statewide. And lawmakers also created a way to evaluate the effectiveness of the new system after next year's elections by requiring data on "undervotes" and "overvotes." Reports of voter error will allow election officials to pinpoint potential difficulties with a particular design or technology.

Not all problems with elections cost a lot of money to fix. For instance, under their new law, Florida will now:

Permit any voter to vote absentee for any reason.
Allow provisional ballots, permitting a voter who claims to be registered but whose eligibility cannot be determined at the polls on Election Day, to cast a ballot.
Create uniform recount provisions and standards for voting by overseas citizens.
Require the secretary of state to develop rules for determining voter intent and set standards for voter education and poll worker training.
Eliminate the run-off primary for 2002.
Conduct a study of uniform statewide polling place hours.

NOT JUST FLORIDA
Although Florida's election reforms are certainly the most comprehensive package, other states have passed major reform, too. Georgia Indiana and Maryland adopted new voting technology statewide. Delegate John Arnick, sponsor of Maryland's proposal to upgrade equipment, correctly points out that Florida wasn't the only state that had problems in last year's election. He says that Maryland had the same kinds of problems with voter confusion and punch card ballots.

In Maryland, the state Board of Elections will cooperate with county election officials to select a new voting system. The state and counties will split the cost of the new machines. Legislators appropriated $2 million for FY 2002, and anticipate additional appropriations in FY 2003 and 2004. If the federal government eventually makes money available for voting equipment, the state will get half and counties will get the other half. Arnick says their main goal is "to create a simplified system, and to ensure that voters have trust and confidence that their election system is fair and accurate."

In Georgia, they'll conduct a pilot project in this year's municipal elections to test electronic voting equipment. The new 21st Century Voting Commission will oversee the project, and make a recommendation to the legislature on which type of voting system the state should adopt in time for the 2004 elections.

UPDATING VOTING MACHINES
Only eight states currently use the same equipment statewide, according to the Washington, D.C.-based consulting firm Election Data Services. Only Florida, Georgia, Indiana and Maryland have moved to upgrade and standardize their equipment, but it's likely that more states will follow before the 2004 elections. In most states, voting equipment is purchased by counties or even municipalities, resulting in a crazy quilt array of machines used around the state.

This means that some voters end up using inferior equipment, which critics say is a violation of their equal protection rights. In fact, equal protection lawsuits have been filed against four states that currently use punch card machines in some jurisdictions, but state-of-the-art equipment in others.

As states consider buying new voting technology, several hurdles arise. The No. 1 problem is cost. "Upgrading equipment is expensive," says Stephen Ansolabehere, who heads up the CalTech/MIT Voting Project. "An electronic touch screen system costs about $25 per voter, and a precinct optical scan system costs about $6. A nationwide upgrade to electronic equipment would cost about $600 million." There is still a possibility that the federal government will kick in money to help, but most states are leery of the mandates that could come with that help.

States aren't waiting around for federal help though. Delegate John Arnick says in Maryland they "plan to do the best we can and be effective even without funding from the federal government."

As states overcome funding hurdles in order to improve voting systems, will the industry be able to handle the demand? Ansolabehere worries that "the industry may not have the capacity to fill orders," and that a nationwide upgrade "could kill demand for the next five years or so, which might kill the industry."

Considering the wide array of voting equipment being used, updating systems is not only an issue to be solved for the next election, but will continue to require careful and constant updates and maintenance.

The problems in Florida and other states last year can't all be attributed to voting machines and ballot design. After all, it's people who make the mistakes. Election officials assert that even with "perfect" machinery, people will still make mistakes. Studies show that voters are especially likely to make errors when they're voting for the first time or are using new and unfamiliar machines. So lawmakers are looking for ways to improve voter education. They're also looking at ways to hire more workers and train them to run polling places more efficiently while assisting voters.

VOTER EDUCATION
There are lots of ideas for educating voters. Some programs are already in use in some places, and states are sharing models, as well as trying new ideas. Solutions include:

Give state money to county election administrators for voter education.
Require the secretary of state to adopt standards for voter education.
Conduct a campaign to teach voters how to use their new voting system before the 2004 elections.
Mail a voter information pamphlet and sample ballot to all registered voters.
Beef up civics education in the schools.
Create Web sites with information on candidates and issues, plus how to register and vote.
Provide better instructions on ballots and in polling places.
Hold simulated elections for kids.

FINDING POLL WORKERS
Florida, Maryland, Indiana, New Jersey and New Mexico passed legislation to hire more poll workers. Proposals are pending in 17 more states. Some of the solutions are:

Allowing high school students to serve as poll workers.
Paying a higher salary to attract better-qualified people.
Allowing poll workers to work just part of Election Day.
Requiring employers to give poll workers the day off (similar to requirements that employers give time off for jury duty).
Providing state funding for poll-worker training.

HANDLING RECOUNTS
Another issue that received intense scrutiny during the drawn-out Florida election was recounts. At least 26 states have taken this up, and reforms have passed in Florida, Colorado, Kansas, Virginia and Washington. Some ideas are:

Making recount provisions uniform.
Extending the time period allowed for recounts.
Specifying who pays the costs of conducting a recount.
Requiring the state Board of Elections to develop standards for recounts.
Requiring mandatory recounts of races decided by fewer than 2,000 and less than 0.5 percent of the total votes cast.

VOTER REGISTRATION
While the Motor Voter Act has opened the door for millions of new citizens to register to vote by making registration easier and more convenient, it has also complicated the job of election officials responsible for maintaining accurate voter lists. Two solutions have been used this year:

Several states, including Colorado, Florida, Indiana, Kansas and South Dakota, will either begin or upgrade statewide registration databases.
Arkansas, Kentucky and New Mexico have passed measures restoring the voting rights of convicted felons, removing another complication in keeping voter registration rolls up-to-date.

ATTACKING VOTER FRAUD
Several states have attacked voter fraud this year. Concern has focused on:

Tampering with voting equipment; Georgia made it a felony.
Intimidation of voters, now a felony in Kansas.
Registering and voting more than once; a new crime in Virginia and now subject to higher penalties in Vermont.
Intentional discrimination against a voter by an election official, now a felony in Washington.

FIXING THE SYSTEM
What happened in Florida last November forced lawmakers all over the country to put their election laws under a microscope, and some found flaws. But updating election laws isn't an easy task and isn't likely to be finished soon in many states. "It's really complicated. This process takes tremendous patience, time, effort and a lot of thought," says Louisiana Representative Charles Lancaster Jr., who is a member of NCSL's Election Reform Task Force.

Don't expect many states to make major overhauls in time for the 2002 elections; some won't even accomplish it in time for 2004. And not all states even need major reform. The silver lining of the cloud that hovered over Florida for 36 days is that many states will end up with streamlined election processes, better educated voters and election workers, and state-of-the-art equipment. But getting there will be a long process, and it's really just begun.

Jennie Drage is NCSL's expert on campaign finance and state elections reform. Kate Rooney, who contributed to this piece, tracks voting equipment issues.

NCSL Election Reform Task Force

In the wake of the 2000 election and the ensuing flood of election reform proposals, NCSL established an Election Reform Task Force to help states in the complicated task of examining and reforming election law. Chaired by North Carolina Representative Dan Blue, Utah Speaker of the House Marty Stephens and Louisiana Clerk of the House Alfred Speer, the task force is a bipartisan group of 30 legislators and legislative staff from around the country. The task force's primary goals are:

Restoring faith and public confidence in state election systems.
Ensuring that election reform on the federal level complements state efforts, does not pre-empt state authority and allows states the ability to be innovative.
Providing states with important information on methods and best practices to address election reforms.
The task force has heard testimony from experts on voting systems, Internet voting, voter education, voter registration, voting by the disabled and the constitutional equal protection issues associated with the Bush vs. Gore decision. The task force issued a policy in April to guide NCSL's federal lobbying efforts. It recommends that, should Congress provide funding to the states for election reform, it should be in the form of block grants without specific mandates. Should Congress establish a federal commission or task force, state legislators should be members.

The task force plans to issue a report at NCSL's Annual Meeting in August.

The Not-So-Hot Election Reforms

Two subjects that were hot topics in the wake of last year's election, but have since faded, were the Electoral College and exit polling.

Ten states considered bills to restrict exit polling; to date five have failed and none have passed. Nineteen states also considered measures that would prohibit the release of election results until all polls were closed. Arizona is the only state so far to pass such a measure: It prohibits the release of results until all precincts have reported.

Initially, the Electoral College was a hot topic in legislatures around the country, with 81 bills introduced in 35 states. The bills ranged from proposals to switch to the district system for allocating electors, as currently used in Maine and Nebraska, to a proportional system. There also were proposals that bind the votes of electors, provide for legislative involvement in the process and memorialize Congress either to retain or abolish the Electoral College. Most have failed. Those passed include measures in Alaska, Idaho, South Dakota and Virginia supporting the Electoral College in its present form. Virginia passed a bill requiring its electors to vote for the candidates who win the state's popular vote. North Carolina is considering a measure increasing the penalty for so-called "faithless electors" from $500 to $10,000.

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