For far too many voters, as their hotline calls attest, voting is a frustration-filled, even confrontational process where well-meaning, eligible citizens are being denied the legal right to vote.

“Yes, my name is Clinton [J.], and my wife, Madelyn [J.], here in Royersford, Pennsylvania is not registered. Now, she voted in the last presidential election in 2004 and, for some reason, her name did not appear on this list here in Royersford. So I’m just wondering exactly what the deal is. We did check online before the end of voter registration and she was registered, but now she’s not registered.” Montgomery County, Pennsylvania

It must have been a sign.  On the same day last week that national advocates unveiled their report, Uncovering Flaws in Election Administration, the Montgomery County Department of Voter Services issued its response to a series of questions on the November 08 election posed by the Election Reform Network (ERN) The questions came on the heels of an extensive monitoring and reporting process taken on by the Network for last November's election, which also included an exchange of reports with the county and a meeting with the Election Board.

Funny, while the rest of the public policy world seems focused on health care, voting advocates and specialists are still slogging through the details of last November’s election, asking hard questions and promoting lessons learned. Why?  That’s how we make change, of course. It is curious that in Montgomery County’s latest response to ERN questions, they make the point that they are onto preparing for the November election.  That’s good, it’s their job. The question, though, is whether they learn from past experience and apply it to future challenges, which is the essence of good management.  So far, however, the often robotic written responses of the Department of Voter Services to our concerns call into question prospects for major improvements at the county level. 

Still, optimism remains the best friend of the advocate and the just released national report gives additional weight to the issues and problems that unfairly and unlawfully limit the vote in Montgomery County and across Pennsylvania (more soon on specifics of our talks with the county, but for an overview of ERN findings and concerns, see our report and our critique of the county report). 

The basis for the national report, sponsored by The Advancement Project, Voter Action and the NAACP National Voter Fund, was the 62,000 phone calls to the CNN and MY-Vote-1 hot lines during the 08 election cycle, with direct focus on the six “battleground” states of Pennsylvania, Florida, Georgia, Missouri, Ohio, and Virginia. The calls provided the authors a unique view of the frustrations of the four million Americans who were denied the right to vote last year (for more on the four million figure, see the Caltech/MIT Voting Technology Project Report) because of election administration foul-ups. 

The study makes this critical point:

For far too many voters, as their hotline calls attest, voting is a frustration-filled, even confrontational process where well-meaning, eligible citizens are being denied the legal right to vote. Instead of being helped to navigate a process that is increasingly filled with new requirements and technologies – such as matching a voter’s information with government databases or new restrictive ID requirements – voters are ever more aware that election workers in many states give the benefit of the doubt to the government’s rules, information and technology instead of to eligible citizens with voting rights.

The report also highlights three issues for immediate attention, while it makes the case for a full-scale Congressional review of election problems: 1) fix the provisional ballot process; 2) require emergency paper ballots (EPBs) wherever there are electronic vote machines; and 3) ensure that all forms of voter ID authorized by the Help America Vote Act be valid across the nation.

Both the general frustrations of voters and the specific problems experienced at the polls described in the national report (listen to the actual phone calls here) mirror – to an almost startling degree – the problems faced by voters in Montco.

Specifically, provisional ballot problems tend to reflect a wide array of concerns ranging from error-prone voter databases, matching problems between voter data and vehicle or social security records, and inconsistencies between local lists and statewide databases to confusion over ID requirements, unlawful purges of voter lists and, at times, discrimination against student voters.

Here’s what the joint national study said:

Congress, in HAVA, intended that provisional ballots would be the safety net to prevent eligible voters from falling through cracks in the process of maintaining voter records and registration lists. However, there have been unintended consequences that have had exactly the opposite effect as many states have implemented this requirement. As many hotline calls reveal, voters whose registration information is not accurate or current in state and federal databases are losing their right to vote. What is most important in this trend is that inconsistent voter data – regardless of its source – has supplanted in many states other means by which voters can demonstrate their eligibility. The legal basis of eligibility in most states has to do with age, citizenship, residency, mental fitness, and in some cases felony convictions – which is altogether dif­ferent from passing a government database matching test.

Importantly, the study also maintains that federal provisional ballot rules should be clarified to require that provisional ballots cast by voters who are registered but appear to vote in the ‘wrong precinct’ be counted for all federal elections.  The report further notes the problem of voter disenfranchisement caused when individuals register at state motor vehicle agencies and their applications are not sent to the appropriate local election office and are thus barred from voting.  Discussions with elections officials indicate that the latter is a problem across Pennsylvania.

Here’s what the ERN said about provisional ballots in our 08 election report: 

The administration of provisional ballots remains a glaring weakness in election operations in Montgomery County.  Federal and state law require that they be offered as, in effect, a “last resort” to voters who believe that they are registered, even if their name is not found anywhere in the poll book (including supplemental lists) or registration data base on election day.  It should be clear that the likelihood of a registration decision, one way or the other, has no bearing on the obligation to provide provisional ballots. Yet election judges in a significant number of precincts (see above: Election Day Incidents, Provisional Ballots) refused to provide provisional ballots based on the rationale that they “wouldn’t be counted anyway.”In some cases, however, judges  eventually reversed themselves and offered a provisional ballot in a given instance after consulting with an ERN poll watcher.

Perhaps more disturbing, for the second election in a row (including the 08 Primary), ERN poll watchers found, through conversations with Judges of Elections, that Board of Elections staff were instructing judges not to provide PBs in instances where the voter was not found in the registration data base system or was found at an address outside of the county.  This practice is in clear contravention of federal and state law (25 Pa. C.S. 3050 (a.4) (1)).

At this point, after some five years since the provisional ballot law took effect, there is no justification for this lingering problem.  It is beyond the time for the county to take remedial action to ensure the proper administration of provisional ballots, including, if necessary, termination of employment for any employees found to have knowingly failed to comply with federal and state requirements.

On emergency paper ballots, the joint national study calls for them to be on hand in every polling place with electronic voting systems in case of machine breakdowns: This contingency would ease the process while deeper issues associated with the voting system failures – whether design flaws, programming mistakes, calibration issues or poll worker error – are parsed by policymakers and longer-term solutions are implemented.

The joint report also notes problems in the implementation of EPBs in Pennsylvania, which parallels the Montgomery County experience: The use of back-up paper ballots was uneven at best in 2008, including in Pennsylvania despite a pre-election federal court order requiring their use in that state when voters faced 50% or more of the voting machines break­ing down in their precincts.

In Montgomery County, EPBs were issued in two precincts, Upper Dublin 1-1 and Whitemarsh Middle 5.  Unfortunately, in one case there were delays of up to three hours between the time the machines failed and the EPBs were issued, a direct violation of the court order, which requires immediate distribution in the event of breakdkowns.

Lastly, the national report calls for clarification of voter ID rules so that states do not narrow the wide range of forms of ID accepted in federal law, when ID is required.  In Montco, reports of unlawful requests for voter ID cropped up in a number of precincts, including one involving overt ethnic prejudice by a poll judge observed by an ERN poll watcher.  

The joint report concludes:

The perception among election administrators that 2008 was a ‘trouble-free’ year is challenged by the voices of voters who called Election Day hotlines seeking help to vote and to ensure that their ballot would count. The callers cited in this report are not just a subset of the tens of thousands of Americans who sought help on Election Day by calling voter hotlines. They are the most vocal vanguard of an estimated 4 million citizens who lost their right to vote last year due to election administration issues, according to the highly respected CalTech/MIT Voting Project.

Surely, we can do better.