Election Day could produce many Floridas
With many states evenly split, observers are growing wary.

By Frank Cerabino

Palm Beach Post Columnist

Friday, October 22, 2004

WEST PALM BEACH — There's a growing sense that Election Day won't be a finish line, but more like a waterfall, the beginning of another tumultuous descent into the murky waters of ballot bedlam.

The 36-day recount in Florida that followed the 2000 presidential election, once thought to be an aberration caused by a convergence of once-in-a-lifetime cosmic forces, is now more widely viewed as a harbinger of the very-near future when a divided country once again goes to the polls in 11 days.
"Everyone I know is afraid of a repeat of what happened in Florida," said Walter Berns, a scholar at the American Enterprise Institute. "We all hope that whoever wins, it's by a large margin. Because if not, there will be contests over provisional ballots, absentee ballots and the Democrats will be repeating allegations of keeping African-Americans away from the polls."

With the polls leaning toward a dead-heat finish between President Bush and Sen. John Kerry, the groundwork for post-election warfare in battleground states already has begun. The courts are bursting with procedural challenges. Criminal investigations have been launched over suspected voter-registration fraud. And both sides have legions of lawyers poised to turn Election Day into Election Month, if necessary.

It just may be that Florida isn't different — just ahead of its time.

What happened in Florida four years ago has become a kind of learning lab, with both sides ready to wage state-by-state combat to salvage a few electoral votes that could turn an entire election.

"At the heart of it all, American voters return to the polls a changed breed — better informed, wiser to the strengths and weaknesses of the electoral process and more willing to ask questions and/or complain when things fail to go right," wrote Doug Chapin, director of Electionline.org, a non-partisan election monitoring group.

Paranoia is at an all-time high, as is voter registration, and the widespread use of largely untested direct-recording electronic (DRE) machines that have replaced hanging chads with lingering doubts about whether their paperless, digital tallies are as glitch-free as advertised.

"I don't look for conspiracies, but it's all very disturbing to me," said Jo-Anne Rockoff, 50, of Palm Beach Gardens, a Kerry supporter who decided to avoid the paperless touch-screen machine by voting with an absentee ballot.

That is, until she read that her absentee ballot was to be filled out with a No. 2 pencil.

"Now I'm saying, 'Wait a second, this is pencil. Anybody could erase it,'" Rockoff said. "I'm not comfortable with the whole thing. I don't know what I'm going to do now."

Congress took a stab at preventing another election debacle with the passage of the Help America Vote Act two years ago. It sought to eliminate punch-card machines, train poll workers and address complaints about voter fraud and voter access to the polls.

But only a fraction of the $3.6 million in grants were dispersed in time to affect next month's election, leaving 70 percent of the country still using punch cards, optical scans, levers and other low-tech means.

Ohio, a closely contested prize in the election, decided it didn't have enough time to institute electronic voting, so most of the state will vote by punch cards, much to the dismay of its Secretary of State, Kenneth Blackwell.

"The possibility of a close election with punch cards as the state's primary voting device invites a Florida-like calamity," Blackwell wrote recently.

Of the states using electronic voting, only Nevada will have a voter-verified paper audit trail. Other states have authorized this safeguard, but not in time for the upcoming election.

The lack of such a trail in Florida is the subject of a federal lawsuit aired this week in a South Florida federal court. Claiming that paperless machines deny some voters their constitutional right to equal protection under the law, U.S. Rep. Robert Wexler is asking a federal judge to authorize that election monitors be stationed in touch-screen counties.

But whatever the outcome of that suit, Floridians won't have the same kind of recount options Nevadans will have.

The voting act's mandate to create statewide registration databases, a way to prevent fraud and ensure access, was waived for the 2004 election, allowing states until 2006 to comply. As a result, 34 states — including the swing states of Florida, Pennsylvania, Ohio, Iowa, Nevada, Missouri and Wisconsin — have no central database to prevent multiple and out-of-state voting.

The Help America Vote Act has, in other ways, further complicated the prospects for a non-disputed election. The act, in an attempt to address the complaints of those who said they were turned away from the polls, mandated provisional ballots.

If someone shows up to vote and appears not to be registered, the act requires that he or she be allowed to cast a provisional ballot, which is set aside. In the days after the election, the provisional ballots are examined, and if valid, those votes are added to the official tallies.

Voters who cast provisional ballots can learn whether their votes actually counted only by contacting a Web site or a toll-free number.

But the different way each state plans to handle provisional ballots already has created legal challenges. Twenty-eight states, including Florida, decided not to count provisional ballots if they are cast in the wrong precinct. Seventeen states decided to accept votes from provisional ballots even if the voter shows up at the wrong precinct.

"Provisional ballots will be the hanging chads of the 2004 election," Chapin predicted. "If the number of provisional ballots exceeds the margin of victory in any state, there will be a dispute."

Court challenges have done little to resolve the issue.

"There were rulings in four states this week," Chapin said. "Every one was different."

This week, the Florida Supreme Court upheld the state's ruling to disallow provisional ballots cast in the wrong precinct. And just Thursday, a federal judge concurred.

An election earlier this year in Chicago pointed out the kind of problems created by provisional ballots, when 93 percent of them were rejected because the form requesting them was filled out incorrectly.

With thousands of lawyers poised on both sides, the likelihood for a challenge of the election results is a near certainty.

"Partly because of the legacy of Bush v. Gore, it shows that it pays to challenge one thing or another in court," said Elliot Mincberg, legal director for the People for the American Way Foundation. "I think it's quite possible there may be some dispute."

The Democrats have created the Voting Rights Institute, which has promised to deploy 10,000 lawyers across the country to ensure every vote is counted.

And a Democratic National Committee memo instructs party loyalists to "launch a pre-emptive strike" on Republican efforts to keep minorities from the polls even "if no signs of intimidation techniques have emerged yet."

"Prime minority leadership to discuss the issue in the media; provide talking points," the memo says. "Place stories in which minority leadership expresses concern about the threat of intimidation tactics."

Meanwhile, a group linked to the Republican National Committee is under criminal investigation in Oregon for allegedly canvassing new voters and throwing away those who register as Democrats. A task force in New Mexico is investigating allegations of voter fraud. And acts of skullduggery are popping up all over — from college students at Florida schools who have mysteriously had their voter registrations changed to Republican, to the man in Minnesota who was pulled over for a traffic stop and was found to have more than 300 completed, but not forwarded, voter registration applications in his trunk.

Both parties have employed companies that typically pay workers $1 per registration to find new potential voters, a practice that has fueled widespread suspicion that this electorate will be rife with forged, purposefully mishandled or incomplete registrations.

In a Seattle suburb, computers in a Bush-Cheney election headquarters were stolen. In Toledo, Ohio, computers in Democratic Party headquarters were stolen. Both parties invoked the language of Watergate in describing the burglaries.

"Stealing elections is an old-time American practice," Berns said. "But now, we have thousands of lawyers ready to jump."

The drumbeat of legal infighting already has created widespread feelings that the election won't be decided on Nov. 2. And the electoral process in some states makes that more likely.

In Colorado, for example, voters will be deciding on a state constitutional amendment that would split the state's nine electoral votes proportionally among the candidates, rather than employing the winner-take-all approach used in every state but Maine. If the election hinges on those nine votes and the amendment passes, lawyers are certain to challenge whether the amendment would go into effect for this election.

In Oregon, the only state that votes completely through the mail, election workers still were tallying votes days after the last presidential election. And this time, more voters are anticipated.

"We're expecting over an 80 percent turnout," said Anne Martens, spokeswoman for Oregon's Secretary of State. "The county clerks have hired extra people to count the votes."

But she didn't want to guess how soon after Election Day that would be completed.

"We're doing everything we can to avoid being the Florida of 2004," she said.