An Obama campaign legal adviser explains the humiliating meltdown in voting we saw around the country during this year's presidential election.
In the coming months, proposals will abound for election reforms to address the embarrassment to American democracy -- and the indignity to citizens -- of 8-hour lines to vote. But what, precisely, accounts for these lines in places like Prince William County and the Norfolk and Hampton areas of Virginia, or Broward, Miami-Dade, and Palm Beach counties in Florida? As a Senior Legal Advisor to the Obama campaign with responsibility for these and other voting issues, I want to share the knowledge the campaign's thousands of observers on the ground generated about the underlying causes.
These causes can be grouped into three categories. I will focus specifically on Virginia, but the causes are largely similar, if not identical, elsewhere.
1. Excessive Local Control and Money Problems. Oddly enough, administration of national elections is largely run and financed not at the national level or the state level but at the local government level. Virginia has 134 local government units. Each has its own electoral board and essentially makes its own decisions about how many voting machines to buy and how much to invest in maintaining the machines. (A statewide board of elections exists, but it has almost no role on these machine issues.) Because local governments are primarily funded through local taxes -- particularly property taxes -- poorer counties and independent cities, with low tax bases, have fewer resources from the outset to devote to all public goods, including voting equipment. State law does impose minimal levels of machines per capita, but these requirements are so low as to be close to meaningless. In addition to resource-strapped local governments not being able to provide sufficient machines, lack of money leads to maintenance being put off and older machines staying in service too long. In Virginia, which holds an election every year (state and local elections alternate with ones for federal offices), this problem is exacerbated. The level of machine breakdown on Election Day is shockingly high, even if utterly predictable.
In addition, registrars typically allocate the machines they do have based on the number of "active voters" in various polling locations. "Active" means voting regularly every election, not just in presidential election years. Areas that have high turnout in presidential elections, but much lower turnout in non-presidential years, therefore have far too few machines in presidential-election years. As the difference between the make-up of the electorate in 2008 (or 2012) versus 2010 illustrates, younger voters and minority voters turn out at much higher rates in presidential elections. Thus, whether intended or not, the effect of this way of allocating scarce machines is to exacerbate their scarcity in poor areas with large minority or student populations.
These general, longstanding resource problems were dramatically enhanced in the wake of the 2008 financial meltdown. Local governments suffered enormous budget crunches. Not only did they lack the resources to maintain or update election equipment, they were cutting funding for the hiring of election officials.
2. Checking In to Vote and Voting. Voting has become increasingly complex, both technologically and legally. Yet the poll workers who run the process are temporary volunteers paid $100 a day. They serve episodically and cannot develop much expertise; they tend to be older and less technologically knowledgeable; they are mostly not lawyers, but must adapt, with minimal training, to constantly changing election laws. To give you a sense of contrast, the Obama campaign had lawyers available at key polling locations to make sure poll workers were applying the law properly; these lawyers had received 2.5 hours of training and had 3-inch thick binders with the relevant election laws.
On the legal side, poll workers now have to apply state election law for regular voters, the federal Help America Vote Act for those who are going to cast provisional ballots, and absentee-ballot laws for in-person absentee voting. Each category of voting has its own distinct set of rules to be mastered. Every additional layer of complexity creates more capacity to confuse poll workers and slow down the voting process, even if the law, such as the Help America Vote Act, is well intentioned. We have to assess the costs and benefits of these laws more fully. Virginia had also (like many other states) changed its own election laws in 2011; these changes both expanded and contracted the valid forms of voter identification. When a voter comes to check in, if his or her situation is anything other than the most routine, the process simply grinds to a halt. Poll workers are terrified of making a mistake, not sure of what the law requires, confused, and unclear about how to resolve the situation.
On the technology side, we are in the midst of moving from old-style printed poll books, where the names of registered voters are listed, to electronic poll books. In the long run, this change should speed the process up, but for now, there is resistance to this change and panic when it doesn't function properly, all of which further slows voting down. Sometimes the technology doesn't work properly; the electronic poll books won't open up, for example. Poll workers have little ability to deal with these technological problems on the spot.
Once a year volunteers have trouble making this system run smoothly, especially in the face of constantly changing laws and technology. Younger poll workers are more likely to be comfortable with new technologies, and we could improve things a bit by creating incentives to encourage college students, for example, to volunteer as poll workers.
3. Absence of Valves to Release Pressure. Whether or not these other problems are fixed, we also need at least two release valves to take pressure off of Election Day. First, when lines get long, election officials should be required to distribute paper ballots. This requirement would compensate for too few machines at high-demand sites and for machine breakdowns (though it would not solve problems associated with checking in). In Virginia, as the extraordinary length of the lines became clear during election day, the state Democratic Party sought to persuade local and state election officials to distribute paper ballots, then went to court, unsuccessfully, to pursue this option. Paper ballots can help with high-turnout surprises on election day.
Second, before Election Day, pressure can be taken off the system by generous early voting, mail-in voting, and no-excuse absentee voting. Some states, like Virginia, have none of these options. These options won't solve all problems, especially if not applied soundly; Florida had 8-hour lines for early voting due to too few days and too few sites. But they reduce pressure during the frenzy of Election Day.
As instant proposals start flying out to remedy the embarrassment of massive delays to vote, we need to start with the detailed knowledge now available about the causes of the problems. Only then can we enable sound policy choices about the effective pathways to fixing them.