A Voting Rights Disaster?

By Christopher Edley Jr.
Tuesday, October 28, 2008

Suppose in your neighborhood there are 600 registered voters per machine, while across town there are only 120 per machine. (That's a 5 to 1 disparity, which is what exists in some places in Virginia today.) On Election Day, your line wraps around the block and looks to be a four-hour wait, while in other areas lines are nonexistent.

This ought to be a crime. It amounts to a "time-tax" on your right to vote, and some of your neighbors will undoubtedly give up and go home. This scenario raises three questions: Nationwide, will it discourage tens of thousands, or untold millions? Which presidential candidate and down-ballot candidates might benefit from this "tax"? And what can be done in the next few days?

Voting rights advocates, watching this slow-motion train wreck that could disenfranchise so many minority voters, have filed emergency litigation in Virginia and Pennsylvania demanding that, at the very least, officials be prepared with plenty of paper ballots and reserves of competent poll workers. More litigation may follow elsewhere.

Judges can hold official feet to the fire, but they shouldn't have to. Assigning blame -- whether the fingers are being pointed at Congress or the Justice Department, county registrars or state legislators -- isn't crucial this week. Neither is this the time to focus on the reasons for failure -- whether indifference, incompetence, indolence or animus. What's crucial is that state and local officials nationwide salvage the situation by implementing second-best strategies: For starters, redistribute machines on the basis of voter registration, instead of assuming that minorities won't show up. Stockpile paper ballots, under lock and key, and offer a paper ballot voting option if wait times reach 45 minutes. Train platoons of reserve poll workers and stand by to shuttle them where they are needed. Commit right now to holding the polls open late if necessary. Advertise what you're prepared to do. For heaven's sake, a lot of people bled for this opportunity.

In 2001, former presidents Jimmy Carter and Gerald Ford led a commission, of which I was a member, to dissect the previous year's voting fiasco in Florida. Many of our recommendations found their way into the Help America Vote Act of 2002. Disappointingly, Congress failed to create an explicit and easily enforceable prohibition against grossly disproportionate resource allocations between polling places in the same state or even the same county -- the level of government at which, preposterously, we typically finance and administer elections. This localism means that the infrastructure of democracy vies for resources with potholes, parks, sheriffs and firefighting. It also means that locally powerful communities get better service on something that -- above all else -- is supposed to be scrupulously equal in this country.

Even without a new statute, there are enough plausible legal theories on this to boggle the mind. Voting is a fundamental right, but as I saw on the Carter-Ford commission and again as a member of the U.S. Civil Rights Commission, Election Day resource disparities have enormously different racial and class impacts that are based on the dynamics of power and poverty. In election cycle after cycle, registrars act surprised when problems crop up disproportionately in poor neighborhoods. If there isn't enough money to run decent elections everywhere, Americans should share the pain equally.

We have the equal protection clause of the U.S. Constitution, with a rich history of helpful Supreme Court rulings, including even Bush v. Gore's solicitude in 2000 for Florida voters being treated differently and arbitrarily in the administration of elections. We have the Voting Rights Act of 1965 and Title VI of the Civil Rights Act of 1964. Individual states have their own constitutional provisions guaranteeing "equal protection" and "due process," so state attorneys general can and should add pressure.

Laws aside, if all else fails, there's common sense. Next Tuesday is certain to be the mother of all turnout stories. The signs pointing to this include registration data, turnout in the primaries, polling data on public enthusiasm, early-voting volume, and Barack Obama's ground game. Polling sites should prepare to be overwhelmed, not underused.

This election features the first African American major-party presidential nominee, 40 years after the murder of the voting rights leader Martin Luther King Jr., running a race almost beyond race, with Obama, Hillary Clinton, Bill Clinton, Sarah Palin and George W. Bush generating the kind of excitement that happens about twice in a century. We must not let managerial failures threaten the hopefulness of newly engaged communities and young voters. Do we need election monitors from Canada or South Africa? Perhaps France?

The world is watching. When we awake Nov. 5, no failure of administration should have tarnished our outsize pride in our democracy.

Christopher Edley Jr. is dean of the Berkeley Law School and co-founder of Berkeley's Chief Justice Warren Institute for Race, Ethnicity and Diversity. He was a member of the National Commission on Federal Election Reform and is an unpaid adviser to the Obama campaign.

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