The 2008 general election is upon us, and if the past is prelude to the future, some things will go wrong. Undoubtedly some of the things that went wrong in the past might reoccur this November. This isn't a complete list of what can go wrong, but keep an eye out for:
- Poll-watching activities that go beyond mere observation and become harassment
- Disinformation campaigns
- Moving polling places on short notice or without sufficient warning
- Polling place issues like unusual hours, lack of access to centralized voter registration records, problems in casting provisional ballots, understaffed or untrained poll workers.
- Malfunctioning voting machines, caused by human errors and/or flawed technology.
- "Caging" of minority voters - sending them do-not-forward letters so that if returned they can be used to challenge them as nonresidents.
- Unfounded accusations of fraud in minority voter registration designed to remove minorities from the voter rolls and deter turnout on Election Day.
- The wrongful purging of voters from the registration rolls.
- Not allowing people to vote who were in line before the polls closed.
Although this list is long, there are many things we can do to help ensure a fair election.
The ACLU Voting Rights Project has prepared Voter Empowerment cards for some 30 states outlining voters' rights, including who is eligible to vote, the procedures for voting, the right to receive assistance in voting, how to deal with problems in voting, and who to call for help. With the help of our state-based ACLU affiliate offices, we're doing our best to distribute these cards widely before Election Day. The Voting Rights Project will also monitor the 2008 election, and has established a special, toll-free hotline for people to call if they have problems registering, or voting on who have Election Day. The hotline number is: (877)523-2792.
So what's at stake when election law violations take place on Election Day? The nature and seriousness of an election irregularity should dictate whether a challenge is properly filed in state or federal court. The federal courts have held that so called "garden variety" challenges to the outcome of an election should be heard by state courts. The U.S. Supreme Court, as in Bush v. Gore (2000), can always review the decision of a state's highest court in an election contest or dispute.
A person contesting the result of an election generally must show fraud or irregularity sufficient to change the outcome of the election. Under this standard, even an election in which there were substantial irregularities would not be set aside where there was no proof that the irregularities altered the outcome. State laws also generally provide only a short window for filing an election challenge, e.g., five days after the results of the election have been certified.
Federal courts have, however, set aside elections when state actions have jeopardized the integrity of the electoral process. For example, a court invalidated an election in Sumter County, Georgia, because it had been conducted on a racially segregated basis. Federal courts have also exercised jurisdiction over claims that election structures or procedures violated the Constitution or the Voting Rights Act.
Some successful Voting Rights Act cases have been pre-election challenges. In one case, a federal court required a county to provide sufficient polling places for its pending school district elections. Another court required county registration officials to provide additional voter registration cards and extend the deadline for voter registration prior to an election.
The challenge facing us is to insure that the 2008 election is conducted fairly and that the outcome is reliable. Nobody wants a rerun of the Florida Fiasco of 2000. So keep your eyes peeled on Election Day. And if you see something, say something.