A law designed by Congress to fix a vote-counting process that in the 2000 presidential election resulted in a 36-day recount in Florida has further complicated elections by sparking a flood of lawsuits in hotly-contested swing states, Yale Law School professors said Tuesday.
The Help America Vote Act, signed into law by President Bush in 2002, requires states to meet new federal requirements, including administering provisional ballots, developing statewide computerized voter lists, “second chance” voting and disability access. The new requirements give political parties and campaigns ammunition to file lawsuits, which professors said complicate the election process. In addition, the act led to confusion at the polls Tuesday in several states, including Connecticut, particularly in regards to provisional balloting.
Provisional balloting, a new national mandate under the act, allows voters to declare their eligibility to vote even if their names do not appear on the official list of eligible voters. Under the law, each state must issue such voters provisional ballots, and a determination whether to count the ballots is made after Election Day, depending on the closeness of the results in that state.
Kay Stimson, a spokeswoman for the National Association of Secretaries of State, which represents elections officials across the country, said confusion at polls Tuesday regarding provisional ballots was not the result of the new law, but of communication problems.
Although the law changes election policies, some professors said it is a “necessary evil” because the new federal requirements help protect voters’ rights.
“We had all hoped after the Voting Act of 1965, the effort to suppress minority votes would have ended, but unfortunately that disgraceful effort to keep down the Afro-American vote is still continuing,” law professor Robert Gordon said.
Law professor Drew Days said he thinks provisional balloting is problematic.
“The statute did not deal with as many problems as perhaps ought to have been dealt with,” Days said. “Apparently there were some gaps in the coverage and we are now finding out about that in the midst of the election.”
Since many elections often end in tight results, Gordon said, the law creates the potential for a well-timed and politically-motivated lawsuit to decide an election.
Law professor Peter Schuck said the increase in lawsuits surrounding this year’s presidential election is the fault of the U.S. Supreme Court, and not lawyers for political parties and candidates.
Stimson said the law is a step in evaluating the problems of the 2000 election.
“We would prefer that voters decide the outcome of the election rather than lawyers,” Stimson said.
Connecticut Civil Liberties Union Executive Director Teresa Younger said the CCLU views the law as a mixed blessing.
“In many ways the act is a good thing because of the provisional balloting language, but it is very confusing because many polling places still do not understand what the act is about,” Younger said.
The CCLU received phone calls throughout the day Tuesday with complaints about provisional balloting, but as of late afternoon, the organization had not planned to file any election-related lawsuits in Connecticut, Younger said.
Days said Congress should view the election as another learning opportunity.
“My guess is what will happen is that we will learn some lessons from this time around,” Days said.