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Charles L. Zelden Headshot

We Should Have Seen This Coming

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With the 2012 election only a day away, fears of a repeat of Florida's 2000 electoral nightmare are everywhere. With national polls showing the two presidential candidates in a virtual dead-heat nationally -- and polling well within the margin of error in most swing states -- there is a real prospect that we won't know who the winner is on election night. In fact, we might not know for days.

Take one scenario. On election night, one candidate leads in a swing state's vote count by a small margin -- not small enough to require an automatic recount, but still very close. The next morning, the votes are counted and that slim margin of victory remains. Yet election officials cannot declare a winner. Why? Because they still must count a large number of provisional ballots. With new and confusing election laws on the books, there will likely be tens, even hundreds, of thousands of provisional ballots cast in such larger states as Ohio and Florida. Past experience argues that many, even most, of these ballots will be disqualified. However, if only half or even a quarter of them are deemed valid, then it is likely that they will determine who actually won the state and with it, the election.

Picture a nation watching nervously as election officials begin the process of authenticating each provisional ballot. Representatives for each candidate watch closely, complaining whenever a ballot is improperly placed on what they deem the wrong pile. Outside, crowds of party loyalists protest what they see as clear evidence of voter fraud (if they are Republicans) or voter suppression (if they are Democrats). Inside, the argument intensifies over the proper standards for determining whether a provisional ballot constitutes a valid vote. Each side pushes its definition of a valid ballot: the party in the lead calling for the most stringent standard, the party behind for a more accommodating one. How long before one side or the other turns to the courts to argue its case for the 'proper' standard -- with the accompanying media circus?

Although counting provisional ballots does not constitute a recount, the unlearned lesson of 2000 make such a nightmare scenario all too believable. What happened in 2000 exposed the hidden crisis of American democracy. Our electoral process is broken -- or, at the least, worn out and highly inefficient -- and has been for a long time. Inconsistent or even contradictory election laws, inaccurate voter registration procedures, and manipulation of electoral administration by legislators and election officials for partisan gain, all undermine the effectiveness of how we organize and run elections. Every election leaves a significant percentage of ballots uncounted, improperly counted, or ignored for technical reasons. Provisional ballots that might be counted, and should be counted, but often are not, add complications.

Usually, none of this matters. With most candidates winning by large margins, potential inaccuracies of vote totals are irrelevant. But when votes are close and every vote really does matter, the system breaks down. In 2001, Cathy Cox, then Georgia's chief election official, remarked, "As the presidential election drama unfolded in Florida last November, one thought was foremost in my mind: there but for the grace of God go I. Because the truth is, if the presidential margin had been razor thin in Georgia and if our election systems had undergone the same microscopic scrutiny that Florida endured, we would have fared no better. In many respects, we might have fared even worse." Sadly, this insight is as true today as it was in 2001. All it takes is one electoral breakdown in a close election -- voter registration errors, broken voting machines, uncounted votes, or large numbers of provisional ballots -- and the next Bush v. Gore is not only possible, but probable.

Twelve years ago, Florida exposed the many administrative, structural and procedural flaws in how we organize and run our elections; it showed the potential for partisan electoral officials to influence election totals -- at least at the margins -- without breaking the law; it revealed the imprecise nature of vote-counting and the subjective variables that can change an election's outcome. Yet instead of fixing these problems, we multiplied them, with partisan wrangling over the existence of voter fraud and electoral reforms -- voter ID, early voting hours and strict rules regulating third-party voter registration drives -- that increased rather than decreased the likelihood of electoral breakdowns.

We should have seen this coming.