The Many Things Wrong With Connecticut's Voting System
Let us count the ways.
By John Stoehr
November 09, 2010
Every time elections are botched, a bit more trust in the American franchise gets worn away.Think of it like baseball. The home-plate umpire calls balls and strikes. When the batter has three of the former and two of the latter on two outs in the eighth inning of the final game in a playoff series, his next call is really, really important. The stakes are extremely high.
What matters most here is trust, not batting averages, fielding percentages or ERAs. If we don’t trust umpires to make the right call, little else matters. What’s more, the ump is an invisible higher authority. We’re scarcely aware of him. We only notice the ump when he blows it.
Bridgeport blew it. It had half the ballots needed (21,000 for 69,000 voters). For most of last week, we didn’t know whether Democrat Dan Malloy or Republican Tom Foley was the new governor. By Friday, the official count put Malloy over the top, but Foley took until Monday afternoon to concede, saying that even though Bridgeport officials made fools of themselves he didn’t suspect fraud. One thing Bridgeport didn’t blow: achieving a historic level of consensus. Everyone agreed the nation had just witnessed a unique brand of Nutmeg dumbassery.
The Hartford Courant took to characterizing it as a “Florida-style election,” a reference to the mother of all election debacles, the 2000 presidential decision that hung by a dangling chad and that was eventually decided by the U.S. Supreme Court. Serious flaws in the American voting system have surfaced regularly since in elections nationwide. Most voters understand there are problems with the voting system but few understand why they keep happening. Every time elections get botched, some legal experts say, a little more trust in the American franchise gets worn away, and each time, there are renewed calls for election reform.
Over the weekend, outgoing Gov. Jodi Rell called for a bipartisan panel to examine the gubernatorial elections. State GOP leaders have requested an investigation by federal and state agencies. Connecticut lawmakers, meanwhile, made overtures to the need for election law reform. Depending on the form it takes, reform may mean ceding greater authority to the secretary of state’s office, currently held by Susan Bysiewicz, and minimizing the role of local municipalities. That would be constructive practically but improbable politically.
Even so: “It’s important that our referees are trustworthy,” says Edward Foley, professor of law at Ohio State University, who’s been keeping tabs on the Bridgeport case. “The anxiety of the public increases when the referees can’t be trusted to figure out what’s happening.”
So why do election fiascoes like this happen? Like a lot of things, it boils down to money. Election boards are starved for funding, because they are funded by their municipalities, says Heather Gerken, Yale law professor and author of The Democracy Index: Why Our Election System is Failing and How to Fix It. The smaller the municipality, the smaller the budget. Bridgeport may be an extreme case. The state’s largest city has been hammered by the Great Recession. Mayor Bill Finch has denied allegations that cost explained the ordering of only about 21,000 ballots for what turned out to be three times as many registered voters. But Gerken says cost is always a problem; we just don’t see it until something breaks.
“Most election boards run on shoestring budgets, because their budgets are the first thing to go,” she says. “Mayors like to make their budgets visible. It’s like maintaining bridges. We don’t fix them until there’s a crisis. We have a crisis-driven reform system.”
At the same time, Connecticut grants its cities and towns far more authority than other states allow theirs, says William Dunlop, professor of law at Quinnipiac University. Elections are controlled elsewhere by state and county governments. They are overseen by secretaries of state. Connecticut’s secretary of state can only advise municipalities on how many ballots to order. In this case, Bysiewicz counseled Bridgeport to print as many ballots as there are registered voters (69,000). Tom Foley’s camp has been hard on Bysiewicz, but legally, her authority is limited. Dunlop anticipates Connecticut’s next legislature to enact a one-voter-one-ballot law.
“If Bysiewicz had imposed that advice, I have no doubt she would have been criticized for overreaching by some people who are criticizing her now,” Dunlop says.
Another problem is lack of information. Election officials know how many ballots were cast, but they don’t know how many voters attempted to cast them, Gerken says. One in five states, including Connecticut, doesn’t record the number of voters turned away, information that might have made a difference in Bridgeport. This lack of “basic performance data,” she says, gives the impression that all’s well in the republic. “We only notice when the race is close.” The paradox is that election officials can’t make the case for sufficient funding, because they don’t have sufficient information to make their case. And there are no “best practices,” Gerken says, as there are for, say, doctors and lawyers. In other words, election officials don’t work according to standard operating procedures; there aren’t any. Each locality does things differently. “There’s no vision of what they ought to be doing,” Gerken says. “Poll workers understandably have to make decisions as they go.”
Election reform was the center of Gerry Garcia’s bid for the secretary of state’s office (he lost the Democratic primary to State House majority leader Denise Merrill, who went on to win last week’s general election). The reason for the mess in Bridgeport is ballot shortage, Garcia says, and the reason for that is the pressure of “cost containment.” (Each ballot costs 50 cents to a dollar to print, depending on the size of the order; if Bridgeport officials had adhered to Bysiewicz’s counsel, the cost could have been as much as $69,000.) Adopting the mail-in ballot, as Oregon has, would solve that. “If we invite people to vote by mail, we can mitigate costs and reduce lines at the polls,” he says.
Garcia regards the status quo as rife with “barriers to democracy.” Cost is one thing. Another is voting on a weekday. He advocates the expansion of Election Day to a week, even a month. Rob Ritchie, executive director of FairVote: the Center for Voting and Democracy in Maryland, says the long tradition of holding elections the first Tuesday of November tends to exclude working-class families, those who earn hourly wages, live in urban areas and don’t own cars. “It affects the most vulnerable in our society,” he says. Garcia, meanwhile, also calls for removing all legal hurdles to absentee voting. State law currently requires citizens provide an excuse for being absent on Election Day.
But sometimes the devil you know is better than the devil you don’t, Edward Foley says. Mail-in balloting is gaining traction nationally, he says, but there is a cost: It increases the likelihood of voter fraud. Gerken agrees. Mail-in ballots work in states like Oregon, she says, because Oregon is what’s called a good governance state. The system is centralized. Mail-in ballots might not work in states with histories of political corruption, as is the case here, so mail-in is hardly a shoo-in. Same thing with absentee ballots, Edward Foley says. “Political organizations can manipulate absentee voting, because they can make sure it’s not a secret ballot [by voting in groups],” he says. Even expanding Election Day to a week has a downside, Gerken says. “It turns out when people don’t have one day to vote, you undermine turnout,” she says. Besides, voting is fundamentally “a communitarian act,” Richie says, that’s not done in isolation.
That’s why most critics of the current system lobby for same-day registration and getting rid of the cumbersome task of filing paperwork weeks in advance of Election Day. “A major problem is that you have to keep registering from one agency to another,” Richie says. “That can be solved by requiring students to register before they leave high school.” It’s also conceivable that mail-in balloting might make the task of predicting the number of ballots even more cumbersome. If some mail in their votes and some don’t, it’s harder to establish a turnout history. Without a reliable turnout history, it’s harder to predict an influx like that seen in Bridgeport.
Still, perhaps the biggest obstacle to election reform is the most fundamental and the most difficult to conceive because it’s so counterintuitive. Americans everywhere, since the time of Washington and Jefferson, have never had — wait for it — the right to vote.
“It never states that outright,” says Jo McKeegan, a fellow at FairVote. “The phrase ‘right to vote’ gets tossed around a lot but it’s never actually part of the Constitution.”
If you are turned away at the polls, because, say, the election officials have run out of ballots, you have no legal recourse, because you don’t have a guaranteed right to vote.
Only if you can prove discrimination based on race, gender or the implementation of a poll tax (provisions addressed in the 15th, 19th and 24th Amendments) do you have grounds for claiming the infringement of a constitutional right. Otherwise, no dice.
This isn’t an accident of history without consequence, McKeegan says.
In Bush v. Gore, the ruling that decided the 2000 presidential election, Supreme Court Justices explicitly noted a citizen’s right to vote is not enshrined in the U.S. Constitution. The states have no obligation to grant every vote equal weight and value if there is no evidence of discrimination based on gender, race or a poll tax. Therefore, some votes in Florida were counted and some were not. FairVote’s position, McKeegan says, is that the Constitution should be amended so that election snafus don’t happen again.
Even if Tom Foley had attempted to discredit some votes in Bridgeport, it wouldn’t have made a difference. Malloy’s margin of victory was too wide. Foley needed to reduce that margin to fewer than 2,000 votes to trigger an automatic recount. Quinnipiac’s William Dunlop says Foley was on solid legal footing regarding a judge’s order to keep polls open two extra hours, but there were only a few votes (fewer than 100) cast after 8 p.m. In any event, Dunlop says, it would be healthy to have Foley’s case, whatever that might have been, rise through the state court system. “In a way, it would be good to have the state Supreme Court provide a definitive on keeping the polls open. It would be better, though, to have the legislature fix the problem once and for all.”