Chapter III

Election Reform: An Analysis of Proposals and the Commission's Recommendations for Improving America's Election System

Out of the irregularities in the 2000 election came a call for national election reform and the creation of the National Commission on Federal Election Reform (NCFER). NCFER was chaired by former Presidents Jimmy Carter and Gerald Ford and became known as the Carter/Ford Commission. After months of task force meetings and public forums, NCFER released goals and recommendations for how the voting system in the United States could be improved.[1] According to NCFER, the goals for an efficient democratic process are fairly straightforward. Government at all levels should provide a process that:

Meeting these goals, according to NCFER, requires the precise balancing of federal and state responsibilities. NCFER agreed that state governments should continue to have a primary role in the conduct of elections because there are widely varying conditions across states that influence how elections should be run.[2] To that end, NCFER recommended that state governments do far more to accept a lead responsibility for improving the conduct of elections.

Following is a summary of NCFER's stance on some of the more widely debated voting and election administration issues.

NCFER does not recommend any changes to the National Voter Registration Act itself, but does stress the importance of accurate registration lists. Rather than focusing efforts on purging lists, NCFER recommends that states undertake the objective of accurately registering every eligible voter. This can be accomplished through the development of statewide computerized voter files that are linked and accessible to every election jurisdiction in the state and that can be shared with other states. A statewide voter database would lessen the chance for fraud, particularly in jurisdictions that have a high percentage of ineligible voters on their lists, and make it less likely that voters will be wrongfully purged. A statewide system might also result in lower mailing costs for both local jurisdictions and political campaigns.

States should request the following from individuals registering to vote: a residential address, other information such as a digitized signature, at least the last four digits of their social security number (or some other numeric identifier to compensate for typographical errors or misspelled names), and a separate affirmation that the applicant is a U.S. citizen. The states of Michigan and Kentucky are cited as models with respect to voter registration systems. NCFER makes no recommendations for appropriate deadlines for voter registration or on the issue of Election Day registration, although it does suggest that states requiring advance registration make some allowance for citizens who have recently relocated. This issue can be resolved through provisional voting, which is discussed below.

NCFER did not come down on either side of the debate over whether voters should be required to provide proof of identification at the polls. Some commissioners believe that it is entirely reasonable to ask voters to provide ID, as they would have to in many everyday situations. Other commissioners believe that this requirement has a disproportionately negative effect on low-income and minority voters, who make up a greater percentage of individuals lacking required identification. The report indicated that this decision should be left to the judgment of local election officials given local conditions. However, NCFER does believe that states should be allowed to verify a voter's identity through some mechanism when necessary.

NCFER is clear in its recommendation that all persons wishing to vote should be given a provisional ballot on Election Day if their names do not appear on voter lists, for any reason. The provisional ballot would only be counted upon verification of the person's eligibility. NCFER envisions that ultimately statewide provisional voting would be linked to a statewide computerized voter file. The model cited is that of the state of Washington, where special ballots are also issued to voters who have moved into a new county or from another state. In that model, after the election, officials research eligibility and if the voter is eligible to vote in another jurisdiction within the state, the ballot will be mailed there to be tallied. Recognizing that this feature may not be possible in every state, NCFER recommends that such ballots be counted as limited ballots, valid only for those races in which the voter was eligible to vote.[3]

One of NCFER's biggest concerns with respect to voter participation is providing polling place accessibility to disabled voters, and the report presents Census Bureau statistics showing that 16 percent of all non-voters cited illness or disability as their reason for not voting. According to NCFER, this issue requires state and local assessments of what can be done to improve accessibility in compliance with the standards established in existing legislation.

NCFER recommends that Election Day be made a national holiday. Specifically, NCFER recommends that in even-numbered years, the Veterans Day national holiday be held on the Tuesday following the first Monday in November and double as Election Day. A national holiday would allow use of more polling places that are accessible to disabled voters. Currently, many accessible public buildings, such as schools, are unavailable for election use. While some skeptics believe voters would spend the day engaged in activities other than voting, NCFER believes the benefits would outweigh drawbacks. Among benefits would also be greater availability of poll workers. Localities could recruit and hire better trained poll workers, including federal, state, and local government employees who are experienced in dealing with the public and have knowledge of relevant civil rights laws.

NCFER identified two main problems with military and overseas voting: the time needed to apply for and receive an absentee ballot, and the varying local requirements for ballot return and deadlines. NCFER, therefore, recommends that overseas and military ballots be counted according to uniform statewide rules, which would be enforced by a designated state official. States and the Federal Voting Assistance Program should develop common standards for validation of ballots mailed on or before Election Day. Counting of absentee and overseas ballots would further be aided by a statewide voter registration system and provisional balloting, as discussed earlier.

In its report, NCFER expressed opposition to early and absentee voting out of concern that these methods tend to reduce the significance of Election Day and civic participation, which could lead to lower voter turnout. In addition, while citing some benefits, NCFER believes use of Internet voting raises serious technical and security concerns. NCFER stated that it hopes to undermine the acceptance of such practices and to discourage states from adopting convenient approaches to voting.

Although it believes states should have some discretion in formulating felon disenfranchisement laws, NCFER favors restoration of voting rights when the individual has completed a full sentence, including any probation or parole. However, in states that still choose to disenfranchise felons for life, NCFER recommends they at least include a provision allowing for reconsideration in special cases.

NCFER strongly urges federal and state governments to intensify efforts to enforce compliance with the existing statutes that guarantee the right to vote and prohibit discrimination. It further recommends that the methods for funding and administering elections should seek to ensure that every qualified citizen has equal opportunity to vote and have that vote counted.

NCFER recognizes the growing number of language minority voters and therefore demands that election administrators ensure that language minority voters receive the assistance at the polls that is legally required. Furthermore, NCFER recommends that wherever possible, accommodation, including translators, bilingual poll workers, language-appropriate voter education materials, and assistance in the voting booth, be provided. NCFER recommends that interest groups that represent minority voters work with local election officials to recruit translators and poll workers.

NCFER recognizes the impact of voting equipment and technology on the outcome of elections. However, it does not believe that the federal government can effectively pick winners and losers in the rapidly evolving technology environment.[4] Nor does NCFER advocate a one-size-fits-all approach. Instead, it favors a strategy of focusing on outputs rather than inputs for measuring improvements in vote counting accuracy. States should set a standard for reliable performance, indicated by a benchmark of a maximum acceptable percentage of residual votes, and require election jurisdictions to disclose and be accountable for how they performed. NCFER recommends that, for the next election, benchmarks for combined overvotes, undervotes, and spoiled votes should be set no higher than 2 percent, with the goal of further reduction in future elections. As jurisdictions buy new equipment and technology develops, the benchmarks could be lowered.

NCFER also recommends that Congress grant statutory authority to an appropriate government agency to develop comprehensive voting equipment standards. The standards should include security, procedures for certification and decertification of software and hardware, assessment of human usability, and operational guidelines for proper use and maintenance. In addition, NCFER recommends that voters have the opportunity to correct errors at the polling place; voting tally systems certified for use include a statement of what constitutes a valid vote; and equipment systems provide a means for voters with physical disabilities to cast a secret ballot. The federal agency given this responsibility would provide certifications of hardware and software and oversee independent testing authorities. This would prevent states from having to individually test and certify voting equipment.

Using the events that occurred in Florida as an example, NCFER recommends that every state reevaluate its election code to include the following sequence of events: vote tabulation and retabulation, machine or manual recounts, certification of a final count, and contests of the certification based on allegations of fraud or other misconduct. Each state should allow at least 21 days before requiring certification of the final count because of the increased time needed to verify and count provisional ballots. NCFER also recommends that each state develop a uniform design for the federal portion of the ballot to be used for all of that state s certified voting equipment.

NCFER recommends that uniform poll closing times be adopted only as a last resort. In general, however, NCFER does not view uniform poll closing times as a viable solution to early election result projections. A system of uniform closing times would require either polls to stay open later in the East or close earlier in the West. This could be a costly undertaking and would result in differential treatment of Western voters.

NCFER noted the meager funding allocated to the election process and determined that overall spending on election administration nationwide should be increased by 30 to 40 percent above current levels. This figure includes expenditures for creating statewide registration systems; county responsibilities in maintaining accurate voter files, handling provisional ballots, and training election officials; purchasing new voting equipment; and building up the federal agency charged with overseeing voting system standards. NCFER believes the bill should be split between state and federal governments.

NCFER does not find utility in creating another federal task force or commission to study election reform, but rather calls for the creation of an Election Administration Commission (EAC) to take over the election administration function currently housed in the Office of Election Administration in the Federal Election Commission. The EAC would develop federal voting system standards, oversee implementation of these standards, maintain a national clearinghouse of best practices in election administration, and administer the federal assistance programs to the states. Enforcement of other federal election laws would remain the responsibility of the Department of Justice's Civil Rights Division and Criminal Division.

Finally, NCFER recommends that Congress enact legislation that includes federal assistance for election administration, setting forth policy objectives for states while leaving the choice of strategies to the discretion of states. States would administer the grants through a capitalized state revolving fund. This would create long-term funding for election administration, rather than a onetime expenditure. The funds could be given to localities in the form of grants, loans, loan guarantees, or whatever fits the need of a particular locality's plan to improve its election process. NCFER's proposal for federal legislation gives states room to adapt to local circumstance and remain open to future developments.[5]

In July 2001, the California Institute of Technology (Caltech) and the Massachusetts Institute of Technology (MIT) released a 92-page report, which evaluates existing voting technologies to determine whether they meet the country's needs for a secure, reliable system of elections.[6] The purpose of the report was to show how equipment and its performance affect the election process. The premise was that many of the major problems that surfaced during the November 2000 election, particularly in Florida, could be attributed to poor technology (e.g., faulty equipment). The report states, It is evident that problems with counting the votes of the citizens of Florida and elsewhere originated in unsound technology. [7]

The researchers estimate that between 4 million and 6 million votes were lost in the November election. Using Census and election returns data, the study estimates that faulty equipment caused 1.5 million to 2 million votes to be unrecorded or uncounted. The report states that residual votes the number of uncounted, unmarked, and spoiled ballots provide a yardstick for measuring the effect of different machine types on the incidence of lost votes. The report does not consider political or sociological issues, such as the high rate of invalidated ballots in minority precincts. However, the study goes beyond equipment analysis and examines almost every aspect of election procedures, including registration, ballot security and the use of the Internet for voting, absentee voting, and the cost and finance of elections.

The study emphasizes the need to reform registration processes and polling place selection criteria. It criticizes the use of absentee voting, and does not support the use of the Internet as a means for voting.

With respect to technology and equipment, the study recommends replacing punch cards, lever machines, and older electronic machines with optical scan ballot systems, or any electronic voting system proven to perform well in extensive field tests. The report concludes that there is a need to improve voter registration systems, improve and expand databases to include polling place and provisional ballot information, and upgrade voting equipment and technology nationwide.

The study supports a federal role in technology reform. It recommends that the federal government have more responsibility in financing elections. First, the federal government should finance the upgrading of equipment in order to phase out antiquated machinery. Second, it should establish an independent agency for election administration. The new agency would function as a clearinghouse, as well as establish best practices related to technology, and would disseminate information when new equipment is developed. In addition, the new agency would oversee grants to counties for voting equipment and grants to conduct research on voting equipment, as well as direct an office of standards and certification. The agency should also develop accounting standards for reporting election expenditures and equipment field performance. The federal government should provide research funding for the innovation of new technologies. Federal and state governments should finance and coordinate the upgrading and ongoing maintenance of voter registration databases for counties and states. The federal government should also establish a National Elections Research Lab, which would foster the development of better voting equipment and voting systems.

In essence, the report calls for a new architecture for voting technology ;[8] federal funding for research and development of voting equipment technologies and testing of machines; and the establishment of an independent federal agency to oversee the new technology and to serve as a clearinghouse for technology in voting (in all areas, including registration).

In July 2001, at its annual summer conference, the National Association of Secretaries of State (NASS) adopted its Resolution on Reform Policies and the Federal Government. The NASS resolution overlaps with some of the recommendations presented in the MIT report, but focuses more on voter education and the training of election officials. The resolution does not support a new election system or a federal enforcement role. In fact, NASS position is that the administration of elections is primarily the responsibility of state and local election officials.[9]

The resolution covers such issues as the need for a federal grant program, improved election administration, expanded provisional balloting, and more election study commissions with NASS involvement.

According to the resolution, the federal government can best ensure meaningful election reform throughout the country by providing major funding assistance to state and local officials. Funding should be provided in the form of block grants to the states for training, education, and technology based on the size of the voting-age population.[10] The resolution states that the administration of elections is a state and local responsibility, and that the federal government should serve as a resource for research and voluntary guidelines. NASS contends that every eligible voter should have access to the voting process, and that the format for administering this accessibility should remain with the states. The resolution advocates a study or research commission and a special elections class postage rate.

In May 2001, the National Commission on Election Standards and Reform (NCESR) released its report, Report and Recommendations to Improve America's Election System, which focuses on problems reported in voter access, voting technologies, ballots and residuals, recount procedures, and elections staff, and the need for partnership between federal, state, and local governments in the operation of the election system.[11] NCESR's approach was to study the problems that were reported at its meetings, in other studies (such as the Caltech/MIT report), and in the press; identify probable causes; enumerate possible remedies; and develop recommendations for federal, state, and county governments to improve the present election system. The organization did not investigate complaints or conduct in-depth research and analysis of each issue.[12]

Generally, NCESR concluded that election reform should be undertaken within the present system, rather than by creating a new election system or imposing nationwide procedures or standards on state and local governments. The study states that such components as a uniform national ballot or standard voting equipment would be impractical and stifle innovation for future elections.[13]

The report presents recommendations for all three levels of government in improving the elections process:

NCESR recommends that the federal government provide funding through grants to state and local governments for research, equipment, and election administration. The report identified three areas for the grants: upgrading voter registration and voting systems through hardware, software, and supplies; an ongoing formula-based program to share the cost of the administration of federal elections; and creation of an elections class postage for mailing election-related materials.

With respect to the Federal Election Commission (FEC), the study recommends that the Office of Election Administration be given funds to conduct research and collect information on running elections and to disseminate the information. The Federal Communications Commission should be responsible for public service announcements to educate voters. There is no mention of a federal enforcement role in the process.

The report lists 16 recommendations for state governments. State responsibilities include providing funds to counties for the cost of elections, determining what constitutes a vote for each type of equipment used, minimizing the need for many poll workers, and streamlining laws and procedures for the restoration of voting rights. The study s position is that the enforcement of voting rights should be at the state level.

The report's recommendations for county governments focus on the administration of elections with funding support to come from federal and state governments. Administration responsibilities include staffing, staff training and development, informing voters about the voting process, and selecting accessible polling places.

In the aftermath of the historically close 2000 presidential election, the Constitution Project organized a forum on election reform to explore areas of agreement among organizations and individuals that share an interest in election reform, resulting in the report, Building Consensus on Election Reform.[14] According to the report, improvement of the election system requires attention to each major stage of the voting process, such as measures applicable to steps that mainly precede Election Day, measures that apply directly to Election Day and procedures at the polls, and rules and procedures for counting and recounting votes.

Prior to Election Day, there needs to be voter education and election personnel training. There also needs to be a system for fostering development of voting technologies. All states should develop statewide registration databases; and the accuracy of registration information should be maintained through integration or improved communications between voter registration and other databases, such as motor vehicle department records.

Polling places should be fully accessible, and accessibility should be broadly defined. Materials, including directions to polling places, should be available in multiple languages and formats. Additional resources should be provided to hire and train Election Day personnel. To provide a common point of reference for election officials and voters in resolving disputes, a notice of voters rights and responsibilities should be posted in every polling place. To preserve the rights of voters who come to the polls, voters in line by poll closing time should be allowed to cast a ballot. Along with good ballot design, technologies should be used that enable voters to avoid error and record their choices accurately. Technologies that let voters correct overvotes or undervotes should be used. Additionally, technologies should be used that enable disabled voters to vote independently and therefore secretly.

State election calendars should allow sufficient time for all counting and contest procedures to be completed in time for presidential electors to cast the state's vote. States should provide for pre- and post-election audits of equipment to ensure integrity of the final count. Every cast vote that is valid should be counted, including those submitted by military and other absentee voters, in addition to provisional ballots submitted by qualified voters.

Internet voting, voting entirely by mail, unlimited absentee voting, and early voting at election offices are all alternative forms of voting. But, early voting at election offices is the only alternative that can achieve the same objectives as Election Day voting, and it is essential to have a hospitable and efficient system of absentee voting with protections against fraud or other abuse for segments of the population unable to cast votes at polling places.

Each state should review its election code to ensure that it is easily usable by participants in the voting process, clear to the courts, and comprehensible to the public. State reviews should also consider other issues such as reinstating voting rights for people who completed criminal sentences, minimizing partisan influences in election administration, and consolidating elections in order to reduce their frequency.

Federal Assistance for Research and Technology Standards. Congress should provide authority and funds for research and development on voting equipment and equipment standards, with particular emphasis on ease of use, accessibility for people with disabilities or low levels of English literacy, and special issues relating to electronic equipment, including the ability to audit election results; an expanded standards program that includes management or operational standards, and performance or design standards to optimize ease of use; an expanded testing program to ensure that voting machinery complies with established standards; and a clearinghouse allowing states and industry to share experiences with the performance of voting technologies.

Federal Grants for Capital Investment in Voting Technology and Use. Congress should establish a multi-year capital investment grant program for investment in voting technology improvements, including funds for training in the use of technologies. The scope of the grant program should include funding for improved registration systems; precinct-level voting and counting equipment, including equipment that allows voters with disabilities to vote independently; and election personnel training and voter education about the use of voting technologies. The duration of the grant program should allow for systematic implementation of changes over the next three federal election cycles. Those states whose grant programs are principally formula based, according to voting-age population, should be given preference when it comes to allocating funds among states. Each state and its local governments should work together to formulate a plan that the state submits to the federal government. To assist in evaluating whether federal grants are improving the administration of elections, states should regularly provide statistical information on the performance of new and existing voting technologies. At the end of a funding period, each state should publicly report what it has done with the grants it received. Congress should vest final responsibility in a single agency to carry out the research, standards development, and grant functions under an election reform act. Congress should authorize and appropriate sufficient funds to provide a significant incentive to states to participate in the grant program and to enable them to make necessary improvements.

A Permanent Program to Defray Expenses of Federal Elections. The Constitution Project could not come to an agreement on a permanent federal role in funding the conduct of federal elections.

In the months following the 2000 election, despite the widespread attention to the issue, there had been no large-scale analysis of uncounted ballots nationwide or the characteristics of the precincts that had the highest percentage of ballot spoilage. It is estimated that 1.9 percent of all ballots (nearly 2 million votes) in the 2000 election were not counted. Thus, members of the House Committee on Government Reform asked for an investigation of the income and racial disparities in the undercount of the 2000 election.[15]

The resulting study analyzed voting results from 40 congressional districts in 20 states: 20 districts with high poverty rates and large minority populations, and 20 with low poverty rates and small minority populations. These districts used a variety of voting machines, including punch card, lever, optical scan, and electronic systems. Congressional districts were used instead of counties primarily because of their smaller size. (It was determined that analysis of large counties in the aggregate, which might contain up to 15 congressional districts with both very poor and very affluent areas, could mask important racial and economic differences that appear on the district level.) In the 40 congressional districts studied, more than 9 million ballots were cast. Of those, more than 200,000 (2.2 percent) were not counted in the presidential race.

The final report presented the percentage of uncounted votes for President in each district and compared the percentages in the two types of districts low income/high minority and affluent/ low minority. The report also looked at the effect of voting equipment on the percentage of spoiled ballots. The report's major findings are as follows:

The House study demonstrates that disparities in spoiled ballot rates across districts are linked to demographic makeup of the districts. The report also reaffirms the need for the use of improved voting technology, particularly in low-income, high-minority districts. According to Congressman Henry A. Waxman, this report proves the problems in Florida were not an exception. He stated: This report shows it's a national issue and we need the federal government to step in. . . . I think the report should wake us up to the fact that we need federal legislation to help local governments modernize their technology in conducting elections. [17]

Since the 2000 election, the National Association for the Advancement of Colored People (NAACP) has been defending the right to vote and working to ensure that every eligible citizen has his or her vote counted.[18] Although the organization has not commissioned any major studies on voting rights issues, it continues to have an active voice in voting rights and has launched an election reform campaign. In particular, the NAACP helped to develop the Dodd-Conyers Equal Protection of Voting Rights Act to strengthen the election process by 2004.

In addition, the NAACP has actively worked toward registering people to vote and informing voters about the issues that affect their well-being and the well-being of their community. The NAACP, in the spirit in which the organization was created, continues to fight to protect the right to vote free from intimidation or harassment and in an environment conducive to full participation in the process. In an attempt to hold officials accountable for election reform, the NAACP has mounted a campaign to develop report cards on what election officials are doing about election reform. The campaign asks citizens to help the NAACP gather information about the voting record and issue positions of key state officials on election reform, and to work with the NAACP to hold accountability sessions with elected officials.

The NAACP Voter Empowerment Program will grade governors and state legislatures on whether they have signed election reform bills that provide for new voting machines, advocated support for re-enfranchising ex-felons, and increased dollars spent on voter education and registration. Secretaries of state and election commissioners will be graded on designing and implementing new voter registration and education projects, providing counties with on-site technical assistance to train poll workers, designing a program to ensure that only legitimate names are removed from rolls, endorsing on-demand voting, allowing for a provisional ballot, ensuring equal access to people with disabilities and language and other minorities, and auditing registration and balloting procedures to ensure they are fair.

Recognizing the disparate impact felon disenfranchisement laws have on minorities, particularly African American males, the NAACP has issued statements and testimony supporting the restoration of voting rights to ex-felons. According to Kweisi Mfume, president and CEO, America expects felons to come out of our penal system prepared to act as productive members of society. But, far too often the fundamental American right to vote is denied to ex-felons. Voting is an integral part of being a productive member of society; we should be encouraging ex-felons to vote, not prohibiting them. [19]

In addition to its voting rights campaigns, the NAACP has made recommendations for election reform. Specifically, the organization has called upon the federal government and each state to enact laws, policies, and procedures that:

Election 2000: Review and Recommendations by the Nation's Election Administrators, issued by the Election Center and prepared by the National Task Force on Election Reform, begins with the assertion that the nation's election system is NOT in crisis. [21] If, of the numerous reports issued to date, and those yet to be issued, this is the sole report to make this claim, perhaps the assertion should still be highly regarded if only because the task force consists exclusively of individuals charged with the operation and oversight of the nation s elections (i.e., election administrators). Furthermore, these authors state unequivocally that neither the public nor academics often looked upon as experts truly comprehend the complexities involved in conducting elections.[22]

Members of the Election Center, located in Houston, Texas, include voter registrars, election supervisors, state election directors, city clerks/city secretaries, county clerks, county recorders, and secretaries of state for each state and territory, and the District of Columbia. Member governments are provided many services, such as surveys and peer review programs, by a small professional staff.[23]

In order to examine election reform and propose recommendations in a timely manner, members of the task force formed three committees: (1) Elections Governance and Administration, (2) Election Systems, and (3) Voter Registration. The task force generally recommends the active involvement of the federal government in developing and maintaining vote counting system standards and operational standards and guidelines. Although the committees acknowledge that this is an unexpected departure from the traditional hands-off view of states toward the federal government, it is due to the belief that state and national standards [are] the primary mechanisms for improving America's elections . . . [24]

The Elections Governance and Administration Committee made the following recommendations: when provisions are made for either judicial or administrative recounts, whether by hand or machine, a state must allow for a reasonable period of time to complete them; to verify voting machine counts or to count votes a machine cannot count, hand recounts should be used; Congress and states should amend laws to make it easier for overseas and military voters to cast their ballots; states should enact or clarify laws stating parameters for a valid vote for a particular voting system; and extended voting periods, such as 24 or 48 hours, should not be put in place because of the ballot security and poll worker issues involved. Securing hundreds of polling sites over a number of days is difficult, if not impossible, and the inherent difficulties lead to questions of ballot integrity. Specifically, suspicions of what happens to ballots when left unguarded for long periods of time, leads to questions and concerns about the integrity of the election. [25] Furthermore, hiring poll workers for extended voting periods will be difficult.

The Election Systems Committee made the following recommendations: statutory authority and sustained funding should be established by Congress in order to maintain federal voting equipment standards, such as technical standards and operational guidelines; the development and maintenance of federal equipment standards should be done principally under the direction of state and local election officials; federal voting system standards and operational guidelines should be adopted by each state; what constitutes a valid vote for a particular voting system should be included in federal standards; and a uniform national voting system should not be established.[26]

The Voter Registration Committee made the following recommendations: voters should be provided with an acknowledgement of registration and instructions on how to resolve lack of official notification regarding registration; emphasis should be placed on the question, Are you a United States citizen? on voter registration applications; state laws should be amended so that former convicted felons can register to vote upon pardon or full completion of their sentences; provisional ballots should be adopted by all jurisdictions in the absence of Election Day registration or other solutions; and persons committing election and registration violations, and who are convicted of such, should be treated as any other felon. [27]

Finally, this report examines the issue of civil rights and voting. The report states:

Furthermore, to ensure that all eligible voters are heard at the polls, instruction must be provided to those who do not know how to properly vote so that they have every opportunity to cast a vote that can be counted. [30]

Still, in order to make the process fair for all, much remains to be done. According to the Election Center report, the first step is to investigate the allegations of voting irregularities in the 2000 Florida election made to the U.S. Commission on Civil Rights since these are serious. Yet, it is claimed that the majority of those allegations have no substantiated evidence supporting them. Nevertheless, since the allegations must be investigated, the U.S. Department of Justice should interview all voters who made complaints to the U.S. [Commission on] Civil Rights . . . and determine the veracity of the allegations. Investigators should be advised by the U.S. [Commission on] Civil Rights . . ., representatives of the national political parties, and the election administrators in each and every location where such an alleged action occurred. [31] If the ensuing investigation proves the allegations to be false, voters will come to realize that the voting process is fair and equitable. However, if a substantial portion is proven to be true, then election administrators should seek legislative remedies. If the allegations prove to be limited to a few locations, then it must be assumed that the states should have the opportunity to resolve their own problems. Thus, if Congress decides to take action based on the events of the 2000 election, it must ensure against unintended consequences that could have a devastating effect on democracy. [32]

The National Conference of State Legislatures (NCSL) report, Voting in America: Final Report of the NCSL Elections Reform Task Force (August 2001), addresses election reform by concentrating its recommendations on 10 subjects designated by the NCSL Elections Reform Task Force. These areas are voter rights and responsibilities, election administration, voter registration, provisional ballots, absentee and early voting, voter assistance and polling place accessibility, voting systems, post-election procedures, Election Day workers, and voter education.[33]

The foundation for these areas is the 10 core principles adopted by the task force. Included among these principles are:

To fully appreciate NCSL's recommendations it is necessary to note its official policy on federal election reform legislation. A brief review of this policy reveals that NCSL advocates equal partnership with any federal commission or task force, formed by Congress, to undertake election reform and that its support for any election reform legislation is dependent on arriving at legislation via this partnership. Furthermore, NCSL is against funding that imposes any federal mandates for specific requirements on states and thus supports block grants. Finally, NCSL believes that the Federal Election Commission is the appropriate entity to administer block grants and is therefore opposed to the creation of a new agency.[36]

How to Make Over One Million Votes Disappear: Electoral Sleight of Hand in the 2000 Presidential Election (August 20, 2001), a report prepared by the Democratic Investigative Staff of the House Judiciary Committee, presents a national analysis of election machinery and unrecorded ballots, election administration and complaints surrounding the 2000 election. [37] The report finds numerous problems nationwide in such areas as election machinery, administration, and voting rights. Specifically:

Documenting and adding to these claims, the report argues that a minimum of 1,276,916 voters had their votes discarded, with no vote for President, in 31 states and the District of Columbia. Election officials in 19 states maintain no statewide record of discarded ballots. The report also found that in at least 25 states, eligible voters had their names removed from voter rolls; in at least 18 states, disabled voters faced daunting obstacles in order to cast their ballots; voters in at least 18 states reported being intimidated by either police or other officials; voters in 17 states and the District of Columbia complained about lack of assistance at polling sites due to undertrained and underpaid poll workers; and recount standards and procedures in at least 38 states would likely fail constitutional scrutiny under Bush v. Gore. [39]

The report details incidents of voter disenfranchisement from throughout the nation. Included in these are the following:

To spur election reform, the report advocates congressional action. According to the authors, the Constitution gives Congress the primary responsibility to regulate federal elections. [41] They argue that state legislatures are not responding to problems that surfaced during 2000 election quickly enough, and at the pace the states are proceeding, these problems will persist in the 2002 and 2004 elections. Furthermore, it has been the federal government that has historically led in guaranteeing equal voting rights to all citizens. As has been demonstrated by states over the past decades, voting reform in states occurs because the federal government takes the initiative in forcing change.[42]

To this end, the report suggests that Congress take four actions to correct the problems in the U.S. voting system. These recommendations include establishing minimum national voting rights standards that:

The National Association of State Election Directors (NASED) issued recommendations on August 15, 2001, generally recommending that Congress enact laws to improve the nation's election system.[44]

Events surrounding the November 2000 presidential election raised broad-based concerns about a number of issues, including, but not limited to, the performance of different types of voting equipment, the disqualification of absentee ballots, and the accuracy of vote tallies and recounts. As a result, the General Accounting Office (GAO) was asked by several congressional committees and members of Congress to review certain aspects of elections throughout the United States. In response to these requests, GAO has issued a series of reports that address a range of issues that were identified in the November 2000 election.

A capping report draws on a considerable body of work recently done by GAO on election systems; and it serves the following three purposes: (1) provides a discussion about how the constitutional and operational division of federal and state authority to conduct elections has resulted in great variability in the ways elections are administered in the United States; (2) provides a discussion of the main challenges that election officials faced in major election system components the people, processes, and technology; and (3) offers basic criteria for assessing a range of election reform proposals.[45]

In reviewing election systems throughout the United States, GAO conducted a detailed analysis of relevant constitutional provisions, federal statutes, and federal court decisions as well as state statutes and regulations on selected election issues. GAO reviewed documents provided by local election officials in 41 jurisdictions in 22 states and met with officials at the Department of State, the Department of Defense, the Federal Election Commission, and the National Conference of State Legislatures. The District of Columbia and state election directors were surveyed. GAO used both mail and telephone surveys and interviews with local election officials to obtain information about the election process that would be representative of the more than 10,000 election jurisdictions in the United States. GAO met with embassy and military personnel abroad and overseas citizens as well as with manufacturers and testers of voting equipment. Additionally, 585 polling places were visited. GAO also reviewed documents provided by state and local election officials, and voting equipment manufacturers and testers, and obtained data on voting methods and election results for the November 2000 election from sources such as Election Data Services, Inc.

Because GAO's principal objective was to provide analysis and information regarding election administration in the United States, the reports make no recommendations.

NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM AND THE ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND: STATEMENTS ON NATURALIZATION AND VOTER REGISTRATION

Perhaps surprisingly, the issue of naturalization and voter registration is not, or has not yet become, a topic of considerable discussion within the context of election reform. Specifically, a thorough search of congressional caucuses[46] and civil rights organizations[47] whose constituents include immigrant populations has resulted in only three discussions addressing this topic. Congressman Silvestre Reyes (D-TX), chair of the Congressional Hispanic Caucus, briefly addressed this issue during a hearing on election reform organized by the Congressional Black Caucus. According to Representative Reyes, many first-time voters are Latinos who are newly naturalized citizens and, as such, are especially open to confusion about the voting process . . . [48] While not directly addressing the question of voter registration, Representative Reyes does raise the query of voter education that is, if individuals are to be registered or informed about registering to vote during naturalization or soon thereafter, a necessary next step is to offer them some instruction, perhaps in the form of a class, on correctly navigating the voting process.

A civil rights organization that briefly addresses the question of naturalization and voter registration is the National Asian Pacific American Legal Consortium (NAPALC). According to NAPALC, many eligible Asian Pacific immigrants and refugees who want to naturalize and then vote have had limited access to effective citizenship assistance. [49] Again, while not directly addressing naturalization and simultaneous or immediate subsequent voter registration of individuals, the critically important question of impediments to obtaining citizenship is raised. This is especially significant in this context since many of these individuals intend to obtain the franchise upon becoming citizens. Thus, another factor in registering naturalized citizens to vote is that many individuals seeking U.S. citizenship and, then, the franchise are hindered in overcoming the mandatory first step that would allow them to become a registered voter.

Another civil rights organization that examines this question is the Asian American Legal Defense and Education Fund (AALDEF). AALDEF argues that:

Raising the same question as NAPALC, AALDEF further illustrates that the issue of registering new U.S. citizens to vote is secondary to first permitting immigrants to become citizens.

Organizations and government entities continue to assess voting rights issues and to provide recommendations regarding election technology and administration. At the time of the publication of this report, other reports were being issued, including:

[1] National Commission on Federal Election Reform, To Assure Pride and Confidence in the Electoral Process, August 2001.

[2] Ibid., p. 25.

[3] Ibid., p. 36.

[4] Ibid., p. 52.

[5] Ibid., p. 73.

[6] California Institute of Technology and the Massachusetts Institute of Technology, Voting Technology Project, Voting: What Is . . . What Could Be, July 2001.

[7] Ibid.

[8] Ibid., p. 3.

[9] National Association of Secretaries of State, Resolution on Election Reform Policies and the Federal Government, adopted Feb. 6, 2001, <http://www.nass.org/pubs/pubs_electionres.html>. In this document, NASS released an election reform resolution that calls for state and local governments to ensure non-discriminatory equal access to the elections system for all voters, including elderly, disabled, minority, military, and overseas citizens ; and to encourage the adoption and enforcement of election day rules and procedures to ensure equal treatment of all voters.

[10] Ibid., p. 1.

[11] In response to the problems that surfaced during the November 2000 election, the National Association of Counties (NACo) and the National Association of County Recorders, Election Officials and Clerks formed the National Commission on Election Standards and Reform (NCESR) in January 2001 to examine the nation's election system and make recommendations for improvement. See NCESR, Report and Recommendations to Improve America's Election System, May 2000, p. 1 (hereafter cited as NCESR, Report and Recommendations).

[12] NCESR, Report and Recommendations, pp. 8 12.

[13] Ibid., p. 12.

[14] The Constitution Project, Building Consensus on Election Reform: A Report of the Constitution Project's Forum on Election Reform, August 2001, <http://constitutionproject.org/eri/report_text.doc>.

[15] Committee on Government Reform, U.S. House of Representatives, Minority Staff, Special Investigation Division, Income and Racial Disparities in the Undercount in the 2000 Presidential Election, July 9, 2001. The report was prepared for Reps. Henry A. Waxman, Jose E. Serrano, Eleanor Holmes Norton, James E. Clyburn, Carolyn B. Maloney, Lucille Roybal-Allard, David E. Price, Danny K. Davis, Dennis J. Kucinich, Joseph M. Hoeffel, Diane E. Watson, John Conyers Jr., Calvin M. Dooley, Eva M. Clayton, Eddie Bernice Johnson, Carrie P. Meek, Bobby L. Rush, Rod R. Blagojevich, Ruben Hinojosa, Ellen O. Tauscher, and Janice D. Shakowsky.

[16] Note that precinct-counted optical scan machines can alert voters to errors and offer an opportunity to revise their ballots, as opposed to centrally counted optical scan machines, which do not have this feature.

[17] Dan Balz, Study Finds National Voting Disparity, The Washington Post, July 8, 2001, p. A3.

[18] National Association for the Advancement of Colored People, Elections Reform and Voting Rights, July 24, 2001, <http://www.naacp.org/work/voter/voting_rights.shtml>.

[19] Kweisi Mfume, president and CEO, NAACP, statement before the Maryland State Senate's Economic and Environmental Affairs Committee, Apr. 4, 2001.

[20] Hilary O. Shelton, director, Washington Bureau of the NAACP, statement before the Senate Governmental Affairs Committee, May 9, 2001.

[21] The Election Center, Election 2000: Review and Recommendations by the Nation's Election Administrators, July 2001, <http://electioncenter.net>, pp. 1 2 (hereafter cited as the Election Center, Review and Recommendations).

[22] Ibid.

[23] The Election Center, About the Election Center, <http://www.electioncenter.net/about/about.html>, p. 1.

[24] The Election Center, Review and Recommendations, p. 4.

[25] Ibid., pp. 11 16.

[26] Ibid., pp. 16 18.

[27] Ibid., pp. 18 22.

[28] Ibid., p. 9.

[29] Ibid. (emphasis added).

[30] Ibid.

[31] Ibid., pp. 9 10.

[32] Ibid.

[33] National Conference of State Legislatures, Voting in America: Final Report of the NCSL Elections Reform Task Force, August 2001, <http://NCSL.org/programs/press/2001/electref0801>.

[34] Ibid.

[35] Ibid.

[36] Ibid.

[37] House Judiciary Committee, Democratic Investigative Staff, How to Make Over One Million Votes Disappear: Electoral Sleight of Hand in the 2000 Presidential Election, Aug. 20, 2001, <http://www.house.gov/judiciary_democrats/electionreport.pdf>, p. 14.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Ibid., p. 20.

[43] Ibid., pp. 118 19.

[44] The National Association of State Election Directors, Updating the Voting Systems Performance and Test Standards: An Overview, 2001.

[45] U.S. General Accounting Office, Elections: A Framework for Evaluating Reform Proposal, November 2001. GAO also has issued five reports on the nation's election systems. A sixth report is forthcoming. See GAO reports, Elections: The Scope of Congressional Authority in Election Administration, March 2001; Elections: Perspectives on Activities and Challenges Across the Nation, October 2001; Elections: Voting Assistance to Military and Overseas Citizens Should be Improved, September 2001; Elections: Status and Use of Federal Voting Equipment Standards, October 2001; Elections: Statistical Analysis of Factors that Affected Uncounted Votes in the 2000 Presidential Election, October 2001; and Voters with Disabilities: Access to Polling Places and Alternative Voting Methods (forthcoming).

[46] These are the Congressional Asian Pacific American Caucus and Congressional Hispanic Caucus.

[47] These are the Asian American Legal Defense and Education Fund, Asian Law Caucus, Asian Pacific American Center of Southern California, Latinovote.com, National Asian Pacific American Legal Consortium, and National Council of La Raza.

[48] Rep. Silvestre Reyes, Congressional Hispanic Caucus, Feb. 27, 2001, <http://www.house.gov/reyes/CHC/Prelecref.html>.

[49] National Asian Pacific American Legal Consortium, Programs Naturalization, 2001, <http://www.napalc.org/programs/naturalization/index.html>.

[50] Asian American Legal Defense and Education Fund, Voting Rights, 2000, <http://www.aaldef.org/voting.html>.