What Could Go Wrong This Time?
Plenty. Technical glitches, lawsuits and counting difficulties could gum up the works again
By BILL SAPORITO

Sunday, Oct. 24, 2004
After all we went through in the election of 2000, what would it take, what kind of monumental ineptitude, to create a situation that risks a repeat of that anxious, ugly time?

An act of Congress, it turns out. Creating another election ripe for dispute was hardly the intent when our elected legislators passed the Help America Vote Act (HAVA) in 2002, earmarking some $4 billion to streamline voting standards and allow states to modernize their voting systems. Although they passed the act, Congress and the White House were slow, perhaps recklessly so, in setting up the Election Assistance Commission (EAC) to implement it. So while states helped themselves to funding for new voting machines, the EAC developed no national standards for using them. Likewise, HAVA mandated provisional voting so that nobody would be refused a ballot for the wrong reason. But the law was ambiguous in some key areas, opening the door for states to create different rules and inviting lawsuits.

Democrats and Republicans may well continue legal dueling over the fine points of election law even as the votes are being counted and beyond. Here is a guide to the issues that may arise on Election Day and after:

Will the machinery work? Electronic voting machines were supposed to have provided a seamless voting process this time, but they have only fed concerns about snafus on Election Day. The touch-screen machines, which will be used by about 30% of voters, have been shown to be vulnerable to tampering, to break down and to lose votes or record none at all. Worse, in every state where they are used except Nevada, the machines produce no paper trail of votes. And e-voting machines can't do recounts. On a second go-round, they simply repeat the outcome they offered the first time.

Diebold, the leading manufacturer of e-voting machines, suffered the indignity of having its home state of Ohio disqualify its machines because of suspect technology. A December 2003 report by Compuware Corp., a widely respected software and computer-services firm, found at least four security weaknesses in Diebold's AccuVote-TS. Most distressing: anyone who lays his hands on a voting supervisor's card could access the system and tamper with results. A 2003 Johns Hopkins University study found that hackers could devise their own smart cards and vote multiple times or alter voting results. A Diebold spokesman insists that the company has addressed the problems of AccuVote-TS, but neither Ohio nor California is buying it. California decertified 14,000 Diebold machines earlier this year.

Any voting system is vulnerable to imperfection, abuse and human error. And it should not be forgotten that 12% of voters nationwide (and more than 70% in dead-heat Ohio) will be using the punch-card ballots that caused such havoc in Florida in 2000. But the lack of transparency in electronic voting may be particularly problematic.

"The reason people trust elections is that they can see what's going on," says David Dill, a computer-science professor at Stanford University and founder of the Verified Voting Foundation. "With electronic voting, the handling of the ballots, putting ballots in the ballot box and counting of votes—all of that is hidden inside computers where nobody can see what's happening. [That] leaves you really at the mercy of the machine."

Which votes count? Because clerical errors and other problems disenfranchised at least 1.5 million voters in 2000, Congress voted to require that all states provide provisional ballots to people who turn up to vote but are not listed on the rolls. With registration drives this year yielding record numbers of new voters, more people than ever could wind up in that situation. The paper ballots are validated and counted only after election officials confirm that the person is a properly registered voter.

A brawl is brewing over where provisional votes must be cast—either in the voter's own precinct or within a broader area, like the voter's home county. Twenty-eight states have adopted the first position, 17 the second; five allow Election Day registration, and in North Dakota you can just show up. Generally, Republicans take the more restrictive view, Democrats the more inclusive one. Reason: poor voters, who tend to vote Democratic, move more often than wealthier ones and are thus less apt to know their appropriate precinct.

Lawsuits over provisional ballots have already sprung up in five states. In Michigan, a federal judge ruled for the more inclusive interpretation. The Florida Supreme Court took the narrower home-precinct position, as did a federal appeals court in Ohio.

Missouri tried to split the difference. The court ruled that ballots cast in the wrong precinct don't have to be counted—unless the voter wasn't directed to the correct place. Colorado has taken a little off the bottom: a district judge ruled that ballots filed in the wrong precinct should be counted but only in the presidential race, not in any other contest. Several appeals are under way, and the issue could even reach the Supreme Court, but it may not all be sorted out until after the election. Predicts Ralph Neas, head of the liberal group People for the American Way: "Provisional ballots will be to 2004 what chads were in 2000."

When will we have a President-elect? Even without legal disputes, it will take time to validate and count all the provisional ballots. Two years ago in Colorado, a tightly contested congressional race was settled only after 2,400 provisional votes were evaluated. The process took more than a month (even though Colorado law requires that it be done in 10 days). The number of provisional ballots cast in this year's presidential election could reach several million.

The same is true for absentee ballots, which are expected to arrive in record levels this year. Florida counties such as Miami-Dade have reported dramatic increases in absentee-ballot requests (up 55%).

Special counsel for California's secretary of state Tony Miller expects absentee voting to approach 40% of the state's electorate, up from 25% in 2000. Votes sent from overseas will be accepted in some states even after Election Day and as late as Nov. 17 in Alaska.

Warns Colorado election attorney Sean Gallagher: "The days of being able to call the election on election night are probably over."

Jan Baran, an election lawyer and former general counsel to the Republican National Committee, takes a more sanguine view. "Based on more than 200 years of history, the likelihood of a disputed result is 1 in 25," he says. Presidential elections are usually not that close, he notes, and even in states where the outcome is razor-thin, changing the result there may not alter the outcome of the overall election. Baran posits that this election has less potential for mayhem than we're expecting. "With all these lawyers and all this public attention and Florida fresh in their minds, everyone will be much more careful this time than four years ago," he says. But just in case he's wrong, lawyers are standing by. Lots of them.