Common Cause > Issue Research

Voting in 2004: A Report to the Nation
on America’s Election Process

December 7, 2004

Washington, D.C.

EXECUTIVE SUMMARY

On December 7, 2004, The Century Foundation, Common Cause, and The Leadership Conference on Civil Rights sponsored a historic daylong forum entitled “Voting in 2004: A Report to the Nation on America’s Election Process.” (Click here for full report.)

This event was truly unique: its focus was not on having a partisan fight over the election or the election results. Its mandate rather was to gather together all of the organizations and experts who were actually on the ground monitoring the process during the election to report concrete data and information they collected, and in this manner get a realistic portrait of what actually transpired in the presidential election of 2004.

Held in the Dirksen Senate Office Building on Capitol Hill, the nine-hour event drew more than 500 concerned citizens, activists, members of Congress, and congressional staff who packed the large hearing room. It was standing room only for many of the sessions that featured nearly three dozen panelists—election administrators, voting experts, advocates and voting monitors—who spoke about their Election Day observations.

Conference participants included election administrators from Illinois and Nevada, academics individually involved in vote monitoring, and panelists from organizations including the Lawyers’ Committee for Civil Rights Under Law, the National Coalition on Black Civic Participation, the People for the American Way, the Brennan Center, Redeem the Vote, Rock the Vote, Verified Voting.org, the Advancement Project, the Native American Bar Association of DC, the National Association of Latino Elected and Appointed Officials, the NAACP, the National Asian Pacific American Legal Consortium, Electionline.org, and the Voting Rights Project of the American Civil Liberties Union of Florida.

Due to widespread media coverage the important discussion held that day was not limited to the live audience. C-SPAN covered the entire day, and broadcast parts of the conference repeatedly over the ensuing days. C-SPAN radio broadcast the event live. The Los Angeles Times, the Associated Press, the Miami Herald, the Cleveland Plain Dealer and National Public Radio were among the media that covered the event.

The “Report to the Nation” featured seven panels of experts and voting rights advocates who spoke in detail about problems experienced before and on Election Day, including problems with registration, absentee ballots, provisional ballots, voter suppression and intimidation, and voting machine issues. Through the course of our discussion, several themes emerged; major election problems were identified; and some ideas for future reform were suggested.

Themes

The Role of Nonpartisan Organizations Was Central to Ensuring That Voters Rights Were Protected Voter protection programs run by nonprofit, nonpartisan organizations, using thousands of volunteers across the country, played a huge role in this election.

• The Election Protection Coalition, a collaboration involving more than 100 national, state, and local public interest groups, was formed to  help voters with questions about registration and voting, preserve access to the polls, expose and prevent voter intimidation, identify and solve problems with new voting machines, technology and ballot forms, and protect voter rights. The group recruited and deployed over 8,000 legal volunteers, 25,000 community volunteers and hundreds of pro bono law firms. Election Protection volunteers fielded over 200,000 telephone calls from voters, while the NAACP alone recorded more than 38,000 formal complaints from voters. 

• Common Cause joined with other organizations to establish a  voter alert line, 866-MYVOTE1 which was featured in NBC news coverage on and before election day.  Nearly 210,000 people called the 866-MYVOTE1 voter alert line to seek information about their polling place, make a statement about their voting experience, and/or connect to their local elections boards.   The other organizations that sponsored the voter alert line included the Fels Institute for Government at the University of Pennsylvania, the Reform Institute, the Hispanic Voter Project at Johns Hopkins University and the National Constitution Center.

Even more organizations, including faith groups and student groups, worked like never before to register new voters. Given the successes the groups had in protecting voter rights and documenting voting problems both in the lead up to and on Election Day, we are likely to see the continued and perhaps expanded involvement of such groups in our voting process.

There Were Serious Problems in 2004 Despite the successes of voting rights advocates, contrary to media reports, the 2004 election was beset by a wide variety of problems caused by systemic flaws, administrative incompetence, and intentional acts of voter disenfranchisement.

Voters Were Not the Problem Problems in the voting process were most often the fault of elections officials—not voters. For example, studies show now that most of the problems incurred with respect to provisional ballots were caused by errors by elections administrators before the election, poorly trained poll workers on Election Day, and a lack of diligence by elections officials in verifying the validity of provisional ballots after the election. The problems were not about misinformed or incompetent voters.

There Were Likely Violations of the United States Constitution According to many participants, there were numerous probable violations of the Voting Rights Act and the equal protection clause of the Constitution during this election, some of which continue to be litigated. These included disparate rules regarding provisional ballots, vote counting, and type and number of voting machines deployed.

Voting Machines Remain a Problem The security and accuracy of electronic voting machines is a major problem that has yet to be resolved to anyone’s satisfaction. Although some argued that other methods would be more effective, most involved in the discussion believed that a voter-verified paper audit trail provides the best current option for ensuring computerized voting technologies are accurately recording and counting votes as the voter cast them.

There Was a Silver Lining All agreed that there was one very positive development in 2004: a surge in voter registration and voter turnout, especially among young people and people of color.

Problems

Although the apparent margin of victory in this election and the way the media reported on it have led most people to believe the outcome is not in question, those who actually observed and were involved in this election believe it was highly flawed. The participants in the conference detailed numerous instances of voter disenfranchisement that need to be addressed. The most commonly cited problems were the following:

• Voter registration forms were rejected by administrators for overly technical reasons, with little opportunity for the voter to amend his or her form.
• Too many registered voters showed up at the polling place to find that due to administrative errors they were not on the voter registration list.
• Election administrators failed to mail absentee ballots in a timely manner, causing disenfranchisement, most notably in Florida.
• Rules and practices for providing and counting provisional ballots were arbitrary and overly restrictive.
• In many instances, voters were wrongfully and discriminatorily asked to present identification. This most often took place in African American and Native American jurisdictions.
• Voting machines broke down and inaccurately recorded votes in some instances. For example, machines in a few jurisdictions switched votes from candidate John Kerry to George Bush and vice-versa.
• Some poll workers were poorly trained and clearly misinformed, leading to disenfranchisement.
• There were a number of instances of overt attempts at vote suppression and intimidation, predominantly in African American and Native American jurisdictions.
• Many voters, particularly in minority and poor areas and college campuses, were subjected to unacceptable wait times to vote.
• Although early voting was popular, there were too few early voting sites, leading to long lines and a dearth of sites in minority areas.
• Although students are allowed to register and vote from their campus address by law, many students were nonetheless denied the right to vote.
• Wide variations in laws regarding voting rights for former felons caused there to be misinformation, mass confusion, and hence disenfranchisement of many ex-felons who had the right to vote.
• Election administrators abused heretofore little used state statutes to challenge the eligibility of some voters before the election as well as the voting rights of some voters at the polling sites. These efforts were particularly aimed at minority and urban communities.
• There were no language interpreters and/or minority language materials in some jurisdictions in which they are required under the Voting Rights Act.

Recommendations

While the focus of the conference was on reporting what happened in the 2004 election, and not at this time suggesting policy reforms, a number of important ideas were raised that can serve to inform the political and legislative debate. The recommendations the panelists made include the following:

• Enact legislation providing a specific private right of action under the Help America Vote Act.
• Create uniform standards for counting provisional ballots that errs on the side of counting votes.
• Take steps to ensure that provisional ballots are truly a last resort. One way to achieve this is through a statewide public system by which voters can check their registration status prior to Election Day and supply any missing information and/or correct errors.
• Fully fund the Election Assistance Commission and give it greater powers.
• Get partisan elected officials out of the business of administering elections.
• Require voting machines to have voter-verifiable paper audit trail.
• Continue to file equal protection lawsuits in those places where voting rights were infringed and the problems occurred in disproportionately in minority jurisdictions.
• Persuade government to take responsibility for ensuring that every eligible citizen is registered to vote, instead of leaving that important job to nongovernmental organizations. .
• Persuade states to allow for Election Day registration.
• Allow states, when necessary, to move back the “safe harbor day”[1], the date electors cast their vote, and the date when Congress counts the votes of the electoral college, in order to ensure that states have time to conduct needed recounts in the case of a close vote and/or allegations of malfeasance
• Ensure that identification requirements allow for a wide range of acceptable forms of identification.
• Ensure that formulas used to allocate voting machines be based on voter registration, not the less reliable standard of prior turnout. If necessary, elections officials must buy and deploy more machines to meet demand and prevent unacceptable wait times.
• Take steps to improve the system  through pre-election activities; post-election litigation is less effective.