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A Broken Election System Becomes a Teenager

• December 12, 2013 • 10:28 AM


On the the 13th birthday of the Bush v. Gore decision, the flawed system that sent an election to the Supreme Court is little closer to being fixed than it was the day after the ruling.

Precisely 13 years ago, five Supreme Court justices cast the final and most important vote of the 2000 election, ending a Florida recount and effectively installing George W. Bush as the 43rd President of the United States.

Today, Bush v. Gore hits adolescence. We should be paying far more attention to this troubled teen.

The chaos of the winter of 2000 has slipped from the national consciousness. My students have no idea what a “hanging chad” is, or that such a thing was ever meaningful. More recent constitutional crises have left the combat in Tallahassee stale and distant. Much of America has, it seems, finally taken Justice Scalia’s frequently quoted advice on the election: “Get over it.”

But ignoring the Bush v. Gore bar mitzvah would be a grave mistake. In some ways, the need to remember—and to let that memory spur us to action—is greater now than ever before.

We forget about the registration forms processed too slowly or with mistakes. We forget about the last-minute purges of eligible citizens. We forget about the inequitable distribution of resources.

This does not mean that we should dwell on the actual electoral outcome. The votes counted in the 2000 election left the race effectively a tie. A suboptimal dispute resolution process deemed one of the contestants the winner. These are historical realities, with little to be learned based on the name of the victorious candidate.

It is a bit more useful to spend time on the dispute resolution process. Virginians now living through a razor’s edge recount are only the latest to understand that there are still plenty of contested elections. The procedures and standards for wrapping up a photo finish vary widely; some reflect the expressed will of the eligible electorate far better than others. And 13 years after the country’s most resonant “pencils down” judicial order, there are still many unresolved questions about how and when courts should intervene … and when the Supreme Court should intervene in that intervention.

But what I really want for this December—the top item on my holiday wish list—is for Bush v. Gore’s teenager status to drive far more attention to the conditions that broke the 2000 election in the first place. In many parts of the country, they remain broken still.

The most potent image of millennial election mechanics belongs to Broward County Judge Robert Rosenberg, holding a punched paper ballot to the light and valiantly attempting to make sense of the holes. Punchcards now belong to antiquity. But we forget that the problems of 2000 extended far past hanging chads, and far past Broward County.

We forget about the registration forms processed too slowly or with mistakes. We forget about the last-minute purges of eligible citizens. We forget about the inequitable distribution of resources. Ballot designs bound to confuse. Outdated voter rolls. Poor disability access. Insufficient language support. Clogged communication channels. Poll sites moved without notice. Pollworkers botching instructions. Lines stretching for hours. Official errors jeopardizing absentee votes. Military ballots arriving too late. Partisan officials making decisions benefiting their own favored candidates. Even a dirty trick or two, with a dollop of old-fashioned intimidation.

These were the problems lurking behind and beyond Bush v. Gore. They were real issues for real voters. They were longstanding cracks in a system that we finally recognized as broken 13 years ago.

Each—each—remains a problem today.

In 2004, 2008, 2012, the same ugly flaws reappeared. They have recurred in mid-term years as well, and in local off-cycle elections. They are rarely front-page news, because most elections kindly abide by the Election Official’s Prayer: “Dear Lord, let this not be close.” But begging for a margin to paper over the problems is hardly a sound strategy.

Indeed, in the last 13 years, the list of flaws has grown. Not everywhere, or in each contest. But make no mistake: Our electoral acne is spreading.

The good news is that there are treatments. In May, President Obama appointed a commission to take a serious look at the lingering problems in our election process. The commission was designed with a promising mix of election lawyers, no-nonsense local administrators, and experts in logistics from private business, and in the past months, they have carefully listened to stakeholders across the country.

The commission’s suggestions will be out early in the near year. I do not expect magical new federal fix-it legislation. But I do expect that, driven by a reliance on real data, the commission will suggest some ruthlessly pragmatic local adjustments to the status quo in some of the more consistent trouble spots.

When the recommendations arrive, we should be prepared to execute. The necessary mental investments may be even more essential than the monetary ones. Bush v. Gore was 13 years ago. And as that historical crisis continues to recede, it requires more strength of will to change the structural problems that persist.

Let us use the 13th anniversary as a milestone to improve our resolve, to remember our rage when electoral breakdowns become suddenly salient. It is high time our election system grew up.

Justin Levitt
Justin Levitt is a professor at Loyola Law School-Los Angeles, where his courses include Law of the Political Process. He served in 2008 as the National Voter Protection Counsel for President Obama's presidential campaign, and his research has been cited by Congress and the courts, including the U.S. Supreme Court.

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