Of Close Calls and Chaos

This year's midterms could turn into another endless election in which we won't know who won the day after the balloting. Remembering 2000, neither side wants to be out-lawyered in any litigation battle.

By William Schneider

Remember the Florida recount six years ago? Hanging chads, butterfly ballots, lawsuits? This year's midterms could turn into another endless election in which we won't know who won the day after the balloting.

For one thing, the contests for control of the House and Senate could be very close, coming down to one or two seats in each chamber. For another thing, there is already controversy over new voting procedures, such as touch-screen machines that produce no paper trail. "We have a new law, the Help America Vote Act, and it's only been fully in effect since last January," notes Deb Markowitz, Vermont's secretary of state and the president of the National Association of Secretaries of State. "Not surprisingly, as you implement a new law, there are questions about it. And so, we're seeing challenges around the country."

Neither side wants to be out-lawyered, as many Democrats feel their party was in 2000. "In the targeted races," Markowitz said, "the political parties are getting teams of lawyers ready to go in." Doug Chapin, director of electionline.org, said, "I do think we'll see litigation, if for no other reason than that litigation is more popular these days because people understand the process better."

Worries about the security of voting equipment are widespread, even though new safeguards are in place. According to Kay Clem, supervisor of elections in Indian River County, Fla., and past president of the Florida Association of Supervisors of Elections, "Everything is under 24/7 video surveillance so people can't access the [voting] equipment. We have pass codes so that only certain people can get into the tabulation room.... You have to have a 'smart card' to get into a machine to vote, and those are kept away from the machine."

The biggest problem will likely be human error, not tampering. "The issues that were highlighted during the primaries were mostly training issues and human-error issues," Markowitz said. Volunteers often run the elections, and officials have to train them to download the results, transmit them to central offices, and use memory cards to verify the exact vote count.

In last month's Maryland primary, voting in much of Montgomery County was delayed because officials neglected to distribute the plastic cards needed to start the voting machines. Meanwhile, election judges failed to show up in Baltimore County. And days after the primary, officials in Prince George's County discovered memory cards with uncounted votes still locked in voting machines. Maryland has ordered 1.6 million paper ballots for next month's election—one for every two voters—to meet the rising demand for absentee or provisional ballots.

Another issue of contention is deciding who can vote. "It's the obligation of every person involved in the running of our elections to make sure that it's easy to vote and hard to cheat," Markowitz said. But how to prevent cheating has become a highly partisan issue. "Republicans and Democrats differ on what we call the 'access-versus-integrity' debate in elections," Chapin observed. "Democrats generally worry about [ensuring] access of people to the franchise. Republicans generally worry about the integrity of the process."

It is a delicate balance—one that almost invites lawsuits. "You are seeing advocates and parties going after restrictive voter-registration rules, voting equipment they don't like—really any aspect of the process they think could work against them on Election Day," Chapin said.

What kind of reassurance can election officials offer that the process won't end in chaos? "This is our living, and this is how I educate my children," election supervisor Clem said. "I'm not going to jeopardize my children's education just so Joe Shmoe can get elected."

It's not Halloween yet, but here's a scenario to scare Democrats: The Senate could end up with 50 Democrats, 49 Republicans, and Joe Lieberman of Connecticut as an independent. He could decide which party controls the Senate. If Lieberman votes with the Republicans and creates a 50-50 tie, Vice President Cheney would cast the tie-breaking vote.

Lieberman has pledged he will caucus with the Democrats. But the Republicans might make him a very attractive offer and remind him that the Democrats fired him in the primary and did not campaign for him after he lost the nomination.

Close elections can have strange results.

This article available online at:

http://www.theatlantic.com/magazine/archive/2006/10/of-close-calls-and-chaos/305336/