With less than a week to go before the election, the voting problems of 2000 are beginning to figure prominently in campaign communications. A New Jersey court has just approved the use of electronic balloting, its sponsors having tried to vet out all problems and obtain court approval before the machines are ever put to use.
But there are already signs that the election of 2004 is falling apart. This year, though, the chief problem is not poorly designed ballots. It’s voter registration fraud, and those pushing it are happy to have found willing accomplices in some elected officials. If there is an area of post-election litigation we can expect to see, it will be competing charges of vote suppression and registration fraud.
America is still a country whose voting practices depend on the honesty of individuals who want to vote, and with every poll showing the presidential race as historically tight, every registration is prized. Even 2002’s Help America Vote Act (search), federal legislation designed to tighten up identification requirements and help more people vote, is subject to local interpretation. The problem, it seems, is the act’s mandate that the country’s election officials use their best efforts to minimize voter disenfranchisement.
And with that, many of our country’s precinct captains, state attorneys general and election commissioners are off to the races.
Though one’s honesty is the foundation of one’s ability to vote in America, the system — comprised of voter registration forms, voting rolls and polling places — is designed to offer some safeguard against fraud. The weak link is in the initial registration.
Registration fraud most often takes the form of a dishonestly completed voter registration form, a piece of paper that is almost ubiquitous in the late summer and early fall before a major election. The form maps out the basic constitutional requirements for voting in national elections: that the registrant is of the age of majority, that he or she is a U.S. citizen and that he or she is not under some disability that bars voting (such as a felony conviction).
With the Help America Vote Act, state and local officials have reached some odd conclusions about what the act requires. In Iowa last week, Attorney General Tom Miller advised election officials to accept registration forms even if voters failed to check the box on the forms that verifies that the voter is a U.S. citizen. Attorney General Miller, it seems, views voter enfranchisement as more important than the Constitution’s 14th and 15th amendments, and even Article II of Iowa’s own state constitution.
The Columbus Dispatch reported last week that illegal alien and would-be mall bomber Nuradin Abdi (search) was registered to vote by Project ACORN (search) and had been on the rolls for some time. In New Jersey, election officials are running ads warning first-time voters to bring proof of name and address to the polls. What this does to curb voting on false registrations filed before the last general election is unknown.
The New Jersey effort is instructive, though, because it shows the importance of the voting roll and its connection to a single location. Voting precincts can have several polling places, but individuals are normally required to return to the same polling place as long as they live in a certain voting district. This is to insure that when a person arrives at a polling place, poll workers are able to look in the roll, find the voter’s name and ask him to sign the roll again. In this sense all voting is local.
But that, too, came to an end in Iowa last week when the attorney general stated that individuals showing up in the wrong precinct will still be permitted to vote. If Iowa’s voting roll system is anything like most states, we can expect people to show up at a polling place and be permitted to vote while poll workers are unable to verify that he is even on the rolls.
What can people do? The Voting Rights Act (search) permits individuals a private right of action to prevent the disenfranchisement of people legally able to vote. In Iowa, we may never know if illegally cast votes determined the outcome of the election, but by doing so, those illegal ballots would have, in effect, disenfranchised legally cast votes.
It’s not beyond the realm of possibility that we will see a contest between two other titans of politics. On Nov. 3, the old stalwart Voting Rights Act, with its prohibition against disenfranchisement through vote fraud, is set to square off against the wide voter enfranchisement of new kid Help America Vote Act.
Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."