Newspapers and magazines have been full of stories raising the disturbing possibility that the 2004 presidential election could once again end up in the courts: Will we wake up on Nov. 3 not knowing whether George W. Bush or John Kerry will be president for the next four years? Will the Supreme Court intervene again? How did things end up this way? Didn't the country learn anything from the Florida debacle of 2000?
The chances of post-election litigation affecting the outcome of this election are in fact small—probably well under 10 percent. It is not that Election Day problems are unlikely—I think they are guaranteed—but they would have to occur in a place where the resolution of the problem could affect the outcome of the election. Think battleground states like Florida, Ohio, Pennsylvania, or Colorado. We should hardly find that statistic comforting: Even a small probability of a big disaster is worth concern. Here I consider five nightmare scenarios for how the election could remain in doubt after Nov. 2 and how all of them raise the possibility of court intervention. Ironically, the Florida debacle and our reactions to it have increased, not decreased, the chances of a post-election problem.
Nightmare Scenario No. 1: Litigation Following Voting Glitch
The one lesson you would have thought everyone learned from Florida 2000 is that we need to use reliable equipment to cast ballots. After all, it was Florida's antiquated punch-card voting system—along with legal wrangling over whether and how punch-card votes should be counted—that led to the Supreme Court's decision in Bush v. Goreending the Florida recounts and handing that election to George W. Bush.
After the election, the well-respected Caltech-MIT Voting Study found that 1.5 million votes were lost because of punch cards, and there were many other problems caused by both machinery failures and poor ballot design. Yet many jurisdictions dawdled in changing their technology, and some changed it only because of litigation. A great number of jurisdictions waited for congressional funding. Congress, enmeshed in partisan bickering, only finally passed the Help America Vote Act in late 2002, providing such funding. (Congress then failed to fully fund it—but that's another sad story.)
So, now we have jurisdictions rolling out their voting equipment for the first or second time for use in a presidential election. This is like opening the first draft of your play on Broadway. We should expect technical problems with new systems, especially when those systems have to be operated by overworked, underpaid, and undertrained poll workers. Just think of an 80-year-old poll worker trying to reboot a new electronic voting machine. And only last week in Florida—which decided to move to electronic voting—we witnessed the spectacle of outgoing Palm Beach County elections official Theresa LaPore (of "butterfly ballot" fame) explaining away a computer crash that forced a pre-election test of electronic voting machines to be postponed.
Voting glitches can cause any number of problems that may end up in court. We could see a demand for a recount (something that could be compounded into an even bigger problem if the recount involves a problem with electronic voting machines that fail to produce a paper record). Widespread machine failure could cause delays at the polls—which will inevitably lead to calls to keep them open longer, followed by potential litigation over whatever administrative or legal decision is made. And with the parties expected to have armies of lawyers in battleground polling areas on Election Day, you can be sure any problem will be pounced on promptly.
Nightmare Scenario No. 2: Litigation Over Whose Vote Counts
The Help America Vote Act, which was supposed to make things better after Florida, may make things much worse in the short term. One HAVA provision requires states to allow voters who believe themselves eligible to vote, but whose names do not appear on the voter rolls, to cast a "provisional ballot," with election officials later determining whether those ballots should be counted. But HAVA is unclear on whether a voter who casts a vote in the wrong precinct (but the right county) is entitled to have that vote counted.
You would think that with two weeks to go before the election, this ambiguity would have been resolved. But litigation in at least four states on this issue is just getting under way. Courts have reached somewhat conflicting decisions on this issue in Ohio, Florida, Colorado, and Missouri, and further appeals and decisions are coming. The issues may not be finally resolved in time for Election Day.
So, imagine the vote in a battleground state hangs by a few thousand votes before the provisional ballots are examined (itself a time consuming process, by the way). Whether that state goes to Bush or Kerry could then turn on the legal question of HAVA interpretation—an issue that could go all the way to the Supreme Court.
Other litigation over whose vote counts is already under way, including a challenge to the Florida secretary of state's decision to disqualify new registrants who fail to check a box confirming they are American citizens, even if they signed the oath on the registration form affirming their American citizenship. There are also disputes about the number of ballots available in Milwaukee, alleged destruction of registration forms in Nevada, * and Pennsylvania's time frame for allowing voters to cast overseas absentee ballots. Any and all of these battles could affect the election or end up in the high court.