New rules may tangle vote

Regulations designed to fight voter fraud and disenfranchisement could work against each other, some critics say.

By Susan Greene
Denver Post Staff Writer  27 September 2004

Results of tight races in November's election could hinge on a hodgepodge of conflicting federal, state and local voting rules.

Since Florida in 2000, when the outcome of the presidential election was in doubt for five weeks after the balloting, much attention has been paid to eliminating snags that kept as many as 3 million votes from being counted nationwide. Measures passed to prevent further problems, however, are raising new concerns.

In Colorado, a new state law requires voters to show identification at the polls. Critics say that law conflicts with a federal act allowing all voters to cast emergency or "provisional" ballots, regardless of whether they show ID. That, in turn, could conflict with a state policy prohibiting voters from casting provisional ballots after asking to vote by mail.

With just over a month before Election Day, Secretary of State Donetta Davidson will adopt a set of revised election rules Thursday and still is awaiting direction from judges in Denver and even Missouri. Her office says new laws require a "learning curve" that "just takes time and trial."

"We're trying to iron it all out as best we can before the election," said secretary of state spokeswoman Lisa Doran.
Unintended consequences

But watchdogs say that uncertain rules - coupled with a surge in new voters, close presidential and U.S. Senate races and what many complain is Davidson's failure to guide election workers in the state's 64 counties - could make Colorado the Florida of the 2004 election.

"We're on a collision course of conflicting laws and regulations," said Pete Maysmith, director of Colorado Common Cause, which last week sued Davidson over new rules it says will disenfranchise voters. "It has the potential to leave people on the outside of the polling place looking in on Election Day."

After the Florida debacle in 2000, Colorado's legislature and Congress sought to ensure no voter will be turned away from the polls again.

State and federal lawmakers passed measures providing for emergency, or "provisional," ballots - those cast by voters who forgot IDs or whose names don't appear on registration rolls. They're counted only when verified after an election.

In Colorado, the program had great success in the 2002 election, when 24,099 of 27,366, or 88 percent, of provisional ballots cast were accepted and counted. Of those, half came from voters who requested absentee ballots, which they either lost, filled out incorrectly or never received by mail.

Methods of counting provisional ballots came under scrutiny in a 2002 legal battle between Democrat Mike Feeley and Republican Bob Beauprez that left the outcome of the 7th Congressional District undecided for 36 days until Beauprez won by 121 votes. Feeley filed suit to force clerks in different counties to abide by the same counting rules.

Soon after, Republican state Rep. Rob Fairbank of Littleton successfully pushed to limit the number of provisional ballots made available and counted. The law he sponsored requires identification from people casting provisional ballots and prevents voters who request absentee ballots from voting provisionally.

Fairbank called the law an anti-fraud mechanism: "We needed safeguards to know you were who you said you were and to make sure you weren't voting twice."

Had it been in place in 2002, the law would have kept about 12,000 provisional votes from counting, according to one official's testimony. As a result of the law, the percentage of provisional ballots that counted in the Aug. 10 primary was 65 percent, down from 88 percent in 2002.

The number of provisional ballots rejected in August exceeded the margin of victory in at least three races, according to Fair Vote Colorado, a nonprofit group researching the effects of election laws. Had more been counted, the race to replace U.S. Rep. Scott McInnis and primaries for the Douglas County Commission and state House District 52 could have ended differently.

"When the number of rejected provisional ballots is larger than the margin of victory because of these laws, you have elections being decided by state legislators, not voters," said Mary Wickersham, who spent four years researching state election law for Denver's Bighorn Center for Public Policy.
Jumping through hoops

Mark Silverstein knows firsthand the frustration of not having his vote counted.

In August, the lawyer for the American Civil Liberties Union rode his bicycle to his polling place without his driver's license, and an election judge twice told him he wouldn't be able to vote without his ID.

So Silverstein cast a provisional ballot and filled out an affidavit requiring that he list his driver's license or state ID numbers. He hadn't memorized them, and left the question blank.

As is his right, Silverstein then followed up to make sure his vote counted. The Denver Election Commission told him it didn't. But after several letters and phone calls, he said, officials still haven't explained why, as the law requires.

"It's likely that scenario was repeated in multiple polling places around the state," Silverstein said.

He credited Davidson's office for correcting some problems, such as nixing the box on the affidavit requiring driver's license numbers. Still, he said, his ordeal exemplifies the disconnect between state and local election officials that he worries could derail the November election.

"There's a tremendous risk that there's going to be a breakdown in effective communication between the secretary of state's office and all the people who implement and apply the laws on the local level," Silverstein said.

Because training for poll workers differs greatly from county to county, Davidson said, she is working on a guidebook for county clerks and thousands of poll workers statewide. She was out of her office working with clerks Friday and unavailable for comment.

Critics say Silverstein's experience shows that just because provisional ballots are issued and filled out doesn't mean they're accepted. Unless voters follow up, they add, it isn't assured that they'll be counted.

"What (provisional ballots) eliminated at some level was people getting upset at polling places because they weren't allowed to have ballots. But it didn't go that extra step and actually give people a voice," Wickersham said.
Voters without a voice

Like Silverstein's, the votes of three plaintiffs named in last week's Common Cause lawsuit didn't count in the August primary.

Elizabeth Schulte of Denver, for example, couldn't vote provisionally because she didn't receive her absentee ballot. And Peggy Tibbetts of Silt didn't have an ID and left her polling place without casting a provisional ballot after a Garfield County election judge said it wouldn't be counted.

The lawsuit - scheduled to be heard Tuesday in Denver District Court - seeks to stop two state rules making it tougher to cast provisional ballots and the state law requiring voters to present driver's licenses, utility bills or other forms of identification at the polls.

Plaintiffs say requiring IDs amounts to a poll tax because most forms of ID cost money.

"You can't have election rules that disenfranchise certain people, like minorities and the poor. Our constitution protects against it," said Common Cause attorney Martha Tierney.

Doran said IDs are needed to prevent double voting. She had no specific information last week backing up her claim that voter fraud is a problem in Colorado.

Watchdogs counter that election law should widen access to voting, not limit it. They say security concerns pale compared to the need to protect basic democratic rights.

"The undocumented specter of voter fraud doesn't outweigh the primary responsibility of state and federal law to protect all citizens' right to vote," Wickersham said. "We must not erect barriers to the most basic act of democratic participation."