Ohio recount highlights continuing vote trouble
Election: Ohio officials confirmed Bush's victory there, but revisiting the results cast light on the process. 
 By Jules Witcover
 The Baltimore Sun
Originally published January 2, 2005
WASHINGTON - Fifty-six days after voting for president had ended around the country, George W. Bush finally cleared the last prominent hurdle to his re-election last Tuesday when Ohio officials confirmed his victory there.

Ohio Secretary of State J. Kenneth Blackwell said a statewide recount had left the president with a 118,000 vote lead over Sen. John Kerry, making him the clear winner in the Buckeye State and delivering the 20 electoral votes he needed for a majority in the Electoral College.

That wait was 20 days longer than Bush had to endure in 2000 before a much more contentious partial recount in Florida gave him the presidency, with a highly controversial helping hand from the U.S. Supreme Court.

This time around, because Bush had won the national popular vote by 3.5 million ballots, compared with losing by 539,000 in 2000, the result reported on election night was generally accepted then. But two third-party presidential candidates, for the Green and Libertarian parties, called for the recount in Ohio, which was their right, though neither had any chance of benefiting from it.

The third-party candidates have filed a suit before a federal court in Columbus, charging that due process was violated in the recount by not assuring uniform standards in counting, and seeking preservation of all ballot and voting machines for further scrutiny. But Congress is expected to accept Ohio's chosen Bush electors when it meets to certify Bush's 34-electoral-vote margin this week.

While the long recount in Ohio did not change Bush's victory there, it did shine a spotlight once again on the troubled presidential elective process. As a result of problems uncovered in Ohio, Congress and the states must face the reality that reforms enacted in the wake of the 2000 fiasco in Florida have fallen far short of completing the job.

Irregularities reported Nov. 2 in Ohio and many other states - including Florida, which supposedly cleaned up its act after the 2000 election - cry out for further nationwide reforms, critics say. Congress did not go nearly far enough in 2002 in writing the Help America Vote Act and voting $3.8 billion for states to upgrade their machines and processes, they add.

Several witnesses at a House Judiciary Committee hearing last month, called by ranking Democratic member Rep. John Conyers Jr. of Michigan (but boycotted by Republican members), said national uniformity is the prime reform needed.

Congress, in the act, did not provide for 2004 such things as national election laws requiring standards on voting rules, kinds of ballots, and methods of casting and counting them in every state. Instead, each state elections board continued to go its own way in a federal election that really is a collection of state contests.

Even when Congress stipulated that all states must give every voter the chance to cast a provisional ballot - an outcome of the Florida experience in 2000 - some states, including the Sunshine State and Ohio, threw up hurdles in 2004.

In 2000, many Florida voters, particularly in precincts in which blacks predominated voter registration, were turned away for various questionable reasons. This time around, again in Florida and in Ohio, the secretaries of state ruled that a voter had to show he lived in the precinct even to obtain a provisional ballot - one of the very rationales for having them. Subsequently a federal judge in Ohio held that a voter did have to be living in the precinct to cast a provisional ballot.

Another of the most glaring deficiencies is that in voting funds to the states for upgrading voting devices, there was no stipulation that one kind of machine or ballot be used in all states, leading to many states using multiple mechanisms.

In Ohio, paper ballots of the sort that caused such havoc in Florida in 2000 were still being used in most counties. In Florida, about half the voters used optical scanners that leave a paper trail to facilitate a recount and half used the touch-screen technology that left none. Some states attached printers to their touch-screen devices, some, like Florida, did not.

Unlike in 2000, when charges of outright fraud in Florida and elsewhere dominated the complaints, in 2004 in Ohio a major gripe was simply that Republican election officials put too few voting machines in traditional Democratic districts and more than enough in GOP strongholds. As a result, critics said, there were long waits in the former and quick and easy access in the latter, often suppressing the Democratic vote.

Finally, the practice of having a state's top elections official, supposedly neutral in overseeing the vote, allied or openly supporting one candidate demands reform. Blackwell was Bush's honorary state chairman in Ohio, just as Florida's secretary of state in 2000, Katherine Harris, was in that election.

John C. Bonifaz, general counsel for the National Voting Rights Institute, says the purpose of the Ohio recount was not simply to protect Kerry's interests, but also the interests of all voters in having their votes cast and counted in a legitimate election process.

"We wouldn't ask the voters of Ukraine to certify the election of their president in a fraudulent process," he says. "Why have a different standard here at home?" Bonifaz says the recount was not conducted "in accordance with constitutional standards" because of various irregularities at polling places.

Part of the new push for national election reform is a constitutional amendment introduced by Illinois Rep. Jesse L. Jackson Jr., son of the civil rights leader, that would explicitly guarantee all Americans the right to vote. It is a right many assume they have under other parts of the Constitution, including the due-process and equal-protection clauses of the 14th Amendment and under the 19th Amendment.

But Jackson cites the U.S. Supreme Court's 2000 observation in Bush v. Gore that "the individual citizen has no federal constitutional right to vote for electors for the President of the United States." The citation does go on to say "unless and until the state legislature chooses a statewide election as a means to implement its power to appoint members of the Electoral College."

Jackson would argue that the latter clause only confirms that an individual's right to vote is a state right, not a federal one, and that his amendment is necessary to establish that all Americans have an explicit voting right. The United States is one of 11 countries in the world, he says, in which the right is explicitly provided.

Bonifaz notes that when a citizen moves from one state to another he retains the protections of the First Amendment on freedom of religion, speech, press and assembly. Whereas, he says, the same citizen who moves from Maine to Florida faces different rights and prohibitions on voting.

Jackson's amendment would also require that the Electoral College in its voting for president reflect the majority popular vote in each state, noting that as of now state legislatures can act alone in picking electors.

Finally, the 2004 election, rather than being seen as a reaffirmation of the Electoral College, is cited by some as another argument for abolishing it. Had Bush lost Ohio on election night, Kerry would have been the Electoral College winner, and that outcome would have wiped out the much larger 3.5 million popular vote for Bush than the 539,000 vote majority for Al Gore in 2000.

The fact that Ohio had to endure a recount, one that could have jeopardized or delayed the certification of Bush for a second term, is a circumstance made possible by Electoral College voting. Without the requirement that the winning presidential candidate have a majority of the college, loss by recount of Ohio's 20 electoral votes would have made no difference in the outcome - Bush's re-election by clear popular vote.

In any event, the recount in Ohio, and reported irregularities in several other states, keeps the pot boiling on the need for further presidential election reforms, to make sure that a third straight election in 2008 is not threatened by allegations of serious voting problems.

What would serve the same purpose would be a landslide victory four years from now for one nominee or the other. But if the American electorate remains the "50-50 nation" it is considered to be, that's not likely to happen. Congress must, well before 2008, carry on the job it undertook to reform the presidential election process after 2000, but didn't finish, voting rights advocates say.