I wanted to comment on Robert Kennedy Jr.'s article in Rolling Stone,
"Was the Election Stolen?" and Farhad Manjoo's
response over at Salon, since both articles have received a lot of attention this week. As many of you know, I spent a lot of time--two months actually--studying and documenting irregularities and voter suppression in the 2004 election, especially in Ohio. I compiled my research in "Eye On Ohio: The Informed Citizen's Guide To The 2004 Election"
Since then, I've read various reports on the election from Democrats and pollsters. Was the 2004 election "stolen"? Kennedy says yes. Manjoo says no. I say, they're both wrong.
I say "they're both wrong" not in an attempt to appease both "fraudsters" and non-fraudsters alike by maintaining some degree of ambiguity, but because I simply don't know whether Kerry would have won had the 2004 election taken place in a pristine, unbiased environment, one where every vote was counted. Also, I have no doubt that individual votes were "stolen"--whether by malfunctioning machines, or deliberate voter suppression. But "stolen" on a national scale, or "stolen" as part of a coordinated conspiracy? I just don't see it.
I contemplated writing a point-by-point rebuttal of Manjoo's piece, or pointing out the weak parts of Kennedy's analysis. At this point though, there are several posts doing that exact thing. Rather, I'd like to shift the focus a bit.
At what point do we take a nonpartisan step back, survey the mangled landscape before us littered with butterfly ballots and pregnant chads and glitching computer machines and say that this is not--should not--be part of the democratic process of our nation?
This isn't just about unsecure voting machines, which seem to dominate any discussion about election reform. It's about requiring a photo ID to vote. It's about voting machine shortages, whether they exist intentionally or because of incompetence. It's about limiting the availability of absentee ballots. It's about requiring that voting papers be filed only on 80 lb paper. It's about purging names from voter rolls without notice. It's about allowing partisans to control what is supposed to be a nonpartisan election process.
At some point, the right to vote morphs into a privilege to vote, granted to those lucky enough to live in a county with enough machines, or lucky enough to live in a state that seeks to enhance, rather than suppress voter turnout. It's a privilege that can be exercised only by those citizens who can afford to take a whole day off of work to sit in a line until midnight in Ohio, or by those who can afford to pay the fee for a state ID, or by those who are fortunate enough to even know of these requirements.
More below...
The wounds of the 2004 election have yet to heal, and seventeen months later, we're still conducting the autopsy, trying to diagnose the who, what, and why of went wrong. But I agree with
Dan Tokaji at the Moritz Election Law blog:
The most important question we now face, however, is not whether Kerry really won. It is instead what ought to be done about the very real and serious problems that emerged in Ohio and other states in 2004, which Kennedy exhaustively documents, for the most part quite accurately.
The time has come for us to shift our central focus. We cannot be so preoccupied with determining whether those waiting in long lines would have broken 50-50 for Bush or Kerry that we lose sight of the fact that there were long lines--and that there will continue to be long lines across this nation unless we take action.
Since 2004, many states have made great strides in requiring voter-verified paper ballots. In Tuesday's election, voters in Mississippi voted on Diebold machines--but ones equipped with a paper trail. In New Jersey's Tuesday election, most voters voted on Diebold machines, though without a paper trail (the lack of a paper trail is being challenged, you can read about the case here). . New Jersey has required the machines to be equipped with VVPATs by 2008. In New Mexico, Governor Bill Richardson signed SB 295 into law; the law requires a state-wide standard paper ballot.
All in all, the following states have considered some type of legislation on voter-verified paper ballots: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and the District of Columbia. That's 40 states and D.C. Just 26 of those have implemented the laws, but the fact that most states are engaging in a debate about voter-verified paper trails is testament to the effectiveness of the election reform movement.
Yet, on the flip side, states have passed laws which are so restrictive, so burdensome as to effectively deprive many citizens of their right to vote. For example, the Brennan Center for Justice at New York University has concluded that Iowa's voter registration scheme (requiring voters to produce IDs matching government records) "could thwart 20 percent of new voters from participating in elections." Many states, including Indiana and Georgia, have adopted similar laws. This was, I still believe, one of the misguided recommendations of the Carter-Baker commission. You can read more about voter ID laws here.
I know when many people think of the 2004 election, they think of vulnerable voting machines, vote-flipping, and exit poll data. For me, there are two moments from that election which I will never forget--not only because they happened, not because they may or may not have affected the outcome, but because they stand as the starkest examples of our flawed election system.
The first is the video of Ohio voters, the one with a sea of citizens waiting in pitch black darkness in the street. They yell to the camera to document their plight, to preserve on video this travesty. I don't care if those voters were Bush voters or Kerry voters. I do care that so long after that seemingly endless day, we are no closer to preventing the same shameful delay again.
The second is this testimony, given to a court by a voter whose eligibility was arbitrarily challenged by operatives of the Republican Party:
My name is Patricia Triplett. I have lived in my precinct for 35 years. A block away I've lived for 20 years, I've lived 15 years. You don't know me, and you brought me up here. We have boys and girls over in another country fighting for someone else's right to vote, and you challenge my right to vote in this country. How sad this is. How sad this is that you're allowed to do that to us. It's just unbelievable and it scares me.
Voter-verified paper trails won't prevent such abuses in the future. Somehow proving that Kerry really won isn't going to be some magical pill that will improve our diseased democratic process. The right to vote is being eroded on all fronts, and our response must be comprehensive and focused. Because at this point, the central question shouldn't be whether Kerry won, or Bush won, but how much longer will we as a nation can tolerate the loss of our most fundamental right to vote.