Election Reform: An Analysis of Proposals and the Commission’s Recommendations for Improving America’s Election System
The Office for Civil Rights Evaluation reviewed national election reform initiatives, as well as studies and proposals of both public and private entities, to facilitate the Commission’s ongoing monitoring of voting rights enforcement and election reform. This review includes four parts:
an overview of enforcement of existing laws that govern the voting process;
an analysis of proposed and recently enacted legislation;
an examination of proposals made by national organizations that have studied the election process; and
election reform recommendations emerging from the foregoing as well as the Commission’s review since the November 2000 election.
The Commission’s 18 recommendations, which are presented in greater detail in chapter IV, are summarized here:
1. Minimum, mandatory, and voluntary national standards must be set.
Congress should pass legislation authorizing the establishment of minimum standards that all states must follow for equipment, error rates, use of absentee ballots, sample ballots, list maintenance (minimum periods for list review and unacceptable error rates), identity verification, ballot counting and tabulation (including what constitutes a valid vote), recounting, voter education efforts, felon disenfranchisement, and responsibilities of states versus counties during an election.
Mandatory standards must be established that include: use of provisional ballots, incorporation of ballot kick-back features in voting equipment, collection and reporting of statistics immediately following an election, provision of language assistance, and assurance of physical accessibility for both polling places and voting materials. Other administrative procedures and practices of states not referenced here should be subject to voluntary compliance.
2. Sufficient funding must be provided for election reform.
Congress should pass election reform legislation that allocates sufficient appropriations to address the array of needs of the states.
3. One central, high-ranking official must have sole responsibility and accountability for elections.
To ensure accountability, it is necessary that each state establish one central, high-ranking official responsible for overseeing the entire election process and conforming to established national standards. The Commission supports the model wherein the chief election official of the state has sole responsibility for the management of elections, as is currently the case with most states. States set up under this model should have a designated staff or office within the office of the chief election official (for many, the secretary of state) that provides information, guidance, and training to local officials. That chief election official’s office should also manage all local election-related data such as registration files and election statistics. The chief election official should ultimately be accountable for any failures in the election system. Chief election officials in each state should be subject to the same ethical standards as the sitting judiciary in the state’s highest court. In addition, standards for the behavior of chief election officials could be established as a condition for receipt of federal grant monies.
4. Laws protecting voting rights must be strictly enforced.
The federal government’s monitoring function before and on Election Day must be expanded. Specifically, Congress should provide sufficient funding to enable the Department of Justice to engage in activities to prevent discrimination before it occurs. Funds should also enable the Justice Department to purchase materials necessary to monitor registration and purge procedures; provide attorneys who would assist voters during the election and thereafter with pursuing allegations of discrimination or irregularities and with activating the complaint/appeals process; and assist local precincts with monitoring on short notice. The federal government should also establish standard operating procedures and requirements for monitoring.
5. Procedures for processing complaints must be improved.
Complaint filing and resolution should take place outside the authority of the chief election official’s office, or the offices of other state or local election officials, so individuals are not forced to file a grievance with the same entity that committed the alleged violation. The Commission thus recommends that the U.S. attorney’s office in each state be designated as the entity responsible for complaint resolution. Procedures for responding to complaints must be clearly defined to include strategies for investigation, timelines, and guidelines for remedies. Oversight of state procedures to ensure voting fairness should rest with the Department of Justice’s Civil Rights Division, which should perform random administrative audits of precincts’ voting procedures. In addition, instructions for filing a grievance must be readily available and highly publicized so that voters are aware of their rights and options.
6. Election data must be uniformly tracked and reported.
To facilitate both individual rights of action and federally initiated legal challenges, it is necessary that appropriate election data be collected uniformly across precincts in every state. To identify disparities in precinct election systems, states should collect data on such precinct characteristics as the equipment and types of ballots used; the availability of communications systems; number of poll workers; poll worker training programs; polling place hours; ballot availability in non-English languages and Braille; accessibility features used to assist voters with disabilities and non-English speakers; and criteria used for purging names from registration lists. These data should be made available for public use immediately following an election. It is also important that states collect and report data on voter turnout and spoiled ballots (overvotes and undervotes) by county.
As the officer responsible for election administration, every chief election official should collect election data and make the data readily available to constituents. Standards for the information to be collected should be established at the federal level, through the Federal Election Commission (FEC), so that state-by-state comparisons and analyses can be performed.
7. Election checklists must be established.
Because of the many tasks required to ensure the smooth operation of elections, state election officials should work with the federal government to develop minimum requirements for a standard checklist that would be tailored by states to accommodate local needs, for every function that should be completed before, during, and after an election. The list would include all tasks that must be performed by state and local election officials, including supervisors of elections and precinct workers. The list must also serve as an accountability tool, requiring specific designation of duties to individuals, and signatures that certify the accomplishment of each task. Attaching timelines to actions would also ensure that appropriate steps are taken far enough in advance to correct problems.
8. Provisional ballots must be provided to voters on Election Day.
Every state should be required to provide provisional ballots to all voters who wish to contest their elimination from voter registration lists or who have recently moved to a new jurisdiction. Additionally, voters should be allowed to cast a provisional ballot at any polling place irrespective of the precinct in which the voter resides. Such ballots should be sent to the home jurisdiction for tallying. Verification of the eligibility of provisional ballot voters should be performed immediately after an election (within three days, for example) so that either the vote can be counted or the voter can be given the opportunity to appeal the decision not to count his or her ballot.
9. A 21-day certification period must be established for election results.
Congress should establish a mandatory waiting period after elections before certification of the results to include the counting of provisional, absentee, and overseas ballots and to allow for appropriate resolution of any voting discrepancies or disputes (such as those that surfaced with the butterfly ballot in the 2000 Florida election). The Commission recommends that states allow 21 days after an election to perform the necessary administrative and counting duties associated with elections, as well as any necessary recounts. State election officials should be prohibited from “calling” an election until such a time when all votes have been counted, discrepancies resolved, and voter complaints addressed. States should develop clear guidelines and/or modify existing regulations for the conduct of election certification, giving consideration to all possible scenarios.
10. Voter registration deadlines must be set later.
States must develop improved registration technologies that would enable real-time statewide registration of voters. Implementation of such a data system would eliminate the need for early registration deadlines and at the same time reduce susceptibility to data entry errors. Deadlines could be set as late as a week before an election and, in less populated states, even later.
11. Uniform nationwide voting hours must be established.
Election Day should be made a national holiday, perhaps Veterans Day, to enable more states to solve logistical problems related to hiring poll workers and holding elections in accessible buildings. The Commission supports the creation of uniform polling hours (for example, 8 a.m. to 8 p.m. local time) within states to avoid potential voter confusion, and to simplify the task of election administration.
12. Minimum national standards must be set for voting equipment.
Congress should establish statutory authority for the FEC to develop national voting system standards and operational guidelines in conjunction with state election officials. The standards should be broad enough to accommodate the different needs of states. However, at the very least, federal guidelines should dictate that voting systems meet minimum standards. For example, while not requiring states to purchase specific voting machines from specific vendors, standard requirements for how the equipment processes a vote should be specified at the federal level. The standards should also include lists of acceptable technologies that improve accessibility for language minorities and people with disabilities.
13. Guidelines for voter identification requirements must be set.
Federal guidelines should be developed for the verification of voter identification. States would thus be able to ensure that poll workers follow procedures precisely and uniformly. Election officials and poll monitors must ensure that some voters, minorities and new citizens in particular, are not required to show additional identification. Further, in the event that an individual cannot present the necessary identification, he or she should be allowed to vote using a provisional ballot until identification and eligibility can be verified.
14. Federal language assistance standards must be set and compliance must be monitored.
The federal government must set minimum requirements for the means used to accommodate the language needs of voters. The federal government must establish proficiency standards for bilingual poll workers and translation services used at both registration and polling sites. In addition, quality assurance procedures must be put in place in states with large language minority populations to ensure that language-appropriate ballots, voting instructions, technical assistance materials, and complaint forms are readily available and free from translation errors or confusing language.
In addition to actually implementing language accommodations, states should be required to submit regular reports to the Justice Department on the provisions implemented, utilization rates of bilingual materials, and outcomes of their efforts, such as whether more language minority voters participated in the election or whether bilingual voter education services were effective.
15. Uniform standards for accessibility must be set and compliance must be monitored.
The federal government must develop uniform standards for disability access to improve enforcement of the existing laws. State election officials must be given the responsibility for ensuring that all polling places are accessible to voters with disabilities prior to the 2002 election. The federal government should allocate funds to states specifically to improve accessibility. Funding should be allocated for Braille ballots, TDD devices, wheelchair accessible voting booths, and to run pilot programs that use Internet voting programmed for use by disabled voters. States should also be required to work with the FEC to adopt what are currently voluntary standards for accessibility.
The federal government should also track the success of states in carrying out their mandated responsibilities. States should be required to report to the federal government, either through the FEC or a legislatively established panel, the provisions implemented and outcomes of their efforts.
16. Voting rights of former convicted felons must be restored.
Felons should have their voting rights restored. All states should follow the lead of the states with existing legislation to reinstate voting privileges to felons upon completion of their sentences and parole. Individuals on probation should also have the right to vote.
17. Requirements for public education must be established.
Congress should give the FEC the authority to develop, with input from the states, minimum standards for acceptable forms of voter education material, as well as the frequency with which such material should be disseminated to voters. The federal government should also establish minimum requirements for the production and distribution of material that informs voters of where and how to file complaints of voting rights violations and options that exist for the voter when his or her complaint is ignored.
Information on where one can find copies of voting laws in full should be included in material developed locally. Outreach at the local level should also include the circulation of sample ballots before an election and technology demonstrations at public forums. This latter recommendation would serve the dual purpose of enabling voters to familiarize themselves with the technology used in their jurisdiction, and allowing election officials to detect errors or common usage problems in advance.
18. Reform measures must assist new Americans in obtaining the right to vote.
Voter registration cards should be provided to individuals being sworn in as citizens to help new Americans become eligible to vote. The federal government, through immigration offices, should also provide assistance to individuals in filling out voter registration material. At a minimum, the Immigration and Naturalization Service (INS) should provide information on voting in the citizenship application packet. Additionally, INS, recognizing the importance of voting to the democratic process, should streamline and expedite naturalization so that new citizens may vote sooner.