Think the Florida Recount Was Bad? Just Wait Until November 6

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While the nation fixates on stamping out non-existent voter fraud with photo-ID requirements, the perils of electronic voting go unchallenged.

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Electronic voting in Chicago in 2008 (John Gress/Reuters)

The movie Unstoppable is playing this week on HBO, and it's hard not to watch even just the trailers for the action-adventure film without seeing parallels to the coming election. Folks, we are just a little more than two weeks away from Election Day, and we may well be the runaway train, barreling straight toward an election-night, voting-rights crash-and-burn which easily could be worse and more damaging to the nation than Bush v. Gore. Not only is there no Denzel Washington to save us, not only is there no guarantee of a happy Hollywood ending, but none of the so-called adults running the country even seems willing to publicly acknowledge the danger.

You think the hanging chads in Florida were bad in 2000? You think the patch of procedures, appeals, and standards of review was crazy? At least a human being was looking at those ballots. At least some of the rest of us were able to look at that human being looking at those ballots. At least there were ballots to be seen. In 2012, on the other hand, loose technology, lax industry oversight, political indifference, and partisan bigotry mean there is the potential for mischief -- and by that I mean democracy-crushing voter fraud -- on a scale that would make the high drama and low comedy of November 2000 seem mundane.

How about thousands upon thousands of votes instantly disappearing from the electronic count of one candidate, or being added to the count of another, with no paper trail left behind? How about electronic voting machines whose programs can be breached and hacked -- patched for fraud, is the new term -- from thousands of miles away? How about new voting technology controlled largely by corporations with strong partisan ties? Not only can it all happen in two weeks, there is a viable case to be made that it's already happened -- in both the decade before and the decade since Bush v. Gore.

And of course the great irony of it all, one of the most under-reported stories of this campaign, is that the politicians and activists who have tried so hard this election cycle to make it harder for poor, ill, and elderly voters to vote are some of the ones most closely aligned with the operatives who can, with a click, determine the outcome of the coming election. Instead of securing accurate voting rights for all, they want to deprive voting rights for some. This is the important message Victoria Collier sends us courtesy of a trenchant piece (not currently online) in the November issue of Harper's *, titled "How To Rig An Election." Collier writes:

Old-school ballot-box fraud at its most egregious was localized and limited in scope. But new electronic voting systems allow insiders to rig elections on a statewide or even national scale. And whereas once you could catch the guilty parties in the act, and even dredge the ballot boxes out of bayou, the virtual vote count can be manipulated in total secrecy. By means of proprietary, corporate-owned software, just one programming could steal hundreds, thousands, potentially even millions of votes with the stroke of a key. It's the electoral equivalent of a drone strike.

Collier's piece is timely and jaw-dropping because of the context it offers for this cycle's voting-rights fights. It suggests persuasively that the Florida recount, and the federal legislation it spawned, have made our elections less reliable and thus more susceptible to partisan disenfranchisement than we ever could have imagined watching those hapless bureaucrats count those chads. We took a bad situation, in other words, and made it much worse. If the coming election is as close as everyone seems to think it is, there is no reason to believe with any confidence that honest officials could prevent someone from stealing it outright.

The Ancient Past

For many of us long of voting age, we'll never forget the 2000 election -- and never be able to shake its impact on our enduring perceptions of law, politics, and the intersection of the two. But if you are voting this year for the first time as a teenager -- and I certainly hope you are -- it means that you were in kindergarten or first grade when the U.S. Supreme Court gave the presidential election to George W. Bush by precluding Florida officials from recounting ballots. It means that you were six or seven years old during the Florida recount and likely had no earthly idea what was happening.

In the 1996 Senate race in Nebraska between Chuck Hagel and Ben Nelson, the polls were even days before the election. Yet Hagel won by 15 percent of the vote -- votes counted by a company Hagel had once chaired.

What was happening was one of the most serious political crises of our time, a five-week struggle which ended in the partisan rancor of a 5-4 decision by the justices, a decision that was roundly criticized back then and which has never been cited since by the justices. Al Gore won the national popular vote but lost the election because he lost Florida's electoral votes. And he lost Florida amid great chaos over its ballots and its recount rules. It was a matter of equal protection, the high court's conservatives ruled; it would be unfair to treat recounted ballots differently.

The primary lessons of the Florida recount, at least as far as public officials were concerned, was that our elections were too prone to human error and partisan abuse, our voting machines were antiquated and inconsistent, and our state electoral procedures were chaotic. (For you first-time voters out there, you can go ahead now and look up Katherine Harris.) Many folks, in Florida and elsewhere, were shocked to discover that so many nameless bureaucrats had so much power both to screw up ballots (see, e.g., butterfly) and to futz around with punched-out "chads," trying to interpret the "intent of the voter."

In direct response to the embarrassment of the 2000 election, and even before the next national election in 2002, Congress passed, and the aforementioned Bush signed, the Help America Vote Act (HAVA), federal legislation designed to raise state election standards. It passed 92-2 in the Senate and 357-48 in the House of Representatives. The preamble to the law states its purpose:

To establish a program to provide funds to States to replace punch card voting systems, to establish the Election Assistance Commission to assist in the administration of Federal elections and to otherwise provide assistance with the administration of certain Federal election laws and programs, to establish minimum election administration standards for States and units of local government with responsibility for the administration of Federal elections, and for other purposes.

In order for the states to improve their voting systems, they needed money. And HAVA authorized nearly $4 billion for the upgrade. The states gobbled up the money. And so did the electronic-voting companies. HAVA, we were told, was an example of bipartisan success, where both the winners and losers of 2000 had come together to protect the rights of all Americans to have their votes counted as accurately and fairly as possible. The only problem with the story, and the law, was that the money found its way into the wrong hands around the same time that the public oversight required by the law was turning out to be a sham.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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