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Sayfie Review Featured Column

by Dr. Susan MacManus
November 1, 2010
            My how times have changed! This year marks the 10th anniversary of the close 2000 presidential election between Republican George W. Bush and Democrat Al Gore that exposed major flaws in our state’s election laws and voting equipment. The controversies emanating from that election drove the Florida Legislature to make major improvements in the election system and Congress to pass the Help America Vote Act (HAVA) in 2002.  Further improvements to election laws over the years have restored a lot of voters’ confidence in the electoral system. Recent statewide surveys have shown that Floridians now give higher marks to the state’s handling of election matters than to a number of other important issues facing the state. (See Figure 1.)
Figure 1

State Services Now Rank Higher Than Many Other Services
Notes: Survey respondents were asked: “How good a job does the state do in____”? “Excellent, Good, Fair, or   Poor?” The election-related question wordings were: “Making it convenient to vote;” “Providing highly dependable election equipment”; and “Informing citizens about election laws and procedures.” The figures reported are the proportions giving each service an Excellent or Good rating combined.
Sources: Leadership Florida/Nielson Company Sunshine State Survey2010; Leadership Florida/Kaplan Sunshine State Survey, 2008; LeadershipFloridaSunshineState Surveys 2006, 2007.
In spite of a vastly improved election system, one thing has not changed. Florida’s 67 supervisors of elections and its voters live in fear that another close statewide race could find history repeating itself. The realities of elections in the 21st century are first, that closeness often causes controversy, delayed results, and lawsuits and second, that neither humans nor equipment perform flawlessly 100 percent of the time.
As we approach Election Day 2010, we are positive that no county or state election official wants a repeat of the 2000 election which thrust many of them into the media spotlight and courtroom. However, should such a situation occur, it will definitely not be because of punch card ballots (or touchsceen voting machines), a butterfly ballot design, or conflicting recount rules across the counties. These have all been outlawed in the Sunshine State.
If challenges emerge this year, they are more likely to stem from problems with absentee balloting or voting procedures involving felons or the disabled, although major improvements have been made to each since the 2000 election.
A Brief Look Back at Problems in the 2000 Election
Election 2000 put Florida into the national spotlight in a less-than-flattering way. By the end of the 36 days of post-election chaos, the whole world knew of Florida’s problems with punch card ballots and their chads, Palm Beach County’s oddly-formatted butterfly ballot, spoiled ballots disproportionately cast by uneducated and first time voters, the difficulties of determining voter intent, the lack of a uniform standard for recounts, registration and absentee ballot fraud, the consequences of actions by poorly-trained poll workers, and controversies surrounding the counting of military and overseas voters’ absentee ballots. It was clear that the crisis was not merely a function of a close election (a 537-vote, 0.009 percent margin of victory for George W. Bush), but also of antiquated and inadequate election laws and flawed voting equipment.
An Irate Citizenry Demanded Changes
Floridians were irate, to put it mildly, by the time the U.S. Supreme Court made its final ruling in Bush v. Gore, awarding Florida’s Electoral College votes (and the election) to Bush. They clearly wanted the election system reformed as soon as possible. The results of a statewide public opinion survey[1] were released just as the 2001 Florida legislative session was drawing to a close. Eighty-one percent of those surveyed agreed that Florida’s election system needed revamping to make it fairer and more accurate. Three-fourths said it was “very important” for the state legislature to tackle reform before Election 2002. Half identified the state legislature as the entity they would hold most responsible for failure should no election reforms be put in place before the next statewide election (2002).
What reforms did Floridians want? The 2001 survey showed that first and foremost they wanted standardization and uniformity—of voting machines, ballot layout and design, recounting rules (for close elections and for absentee ballots), rules for counting overseas absentee ballots, and poll closing times. There was also significant support for the creation of a statewide voter registration list to help reduce fraudulent voting by ineligible persons, better voter education, better training of poll workers, and an improved voter registration system. Well over half also favored outlawing punch-card voting machines. (See Figure 2.)
Figure 2. 

Notes: Respondents were asked: “I am now going to read you some suggestions that have been made about how to reform Florida’s election system. For each please tell me if you strongly favor, somewhat favor, somewhat oppose, or strongly oppose this reform. Here’s the first one….”
                Percent figures are a combination of those who strongly or somewhat favored each reform.
Source: A telephone survey of a random sample of adults 18 & over, conducted April 3-8, 2001 by Schroth & Associates for The Collins Center For Public Policy, Inc. and the James Madison Institute.
Early Reforms
The Florida Election Reform Act of 2001 addressed many of deficiencies identified by the Governor’s Task Force on Election Procedures, Standards, and Technology[2] and the public at-large. Subsequent reforms passed in 2002 and 2003 further strengthened the code by making it more compliant with various federal access requirements. The 2002 election reforms were aimed at incorporating suggestions made by the Select Task Force on Voting Accessibility as to how to improve disabled voters’ experiences at the polling place (privacy, accessibility, voting equipment; more sensitive poll workers) and at bringing Florida into statutory compliance with the Americans With Disabilities Act.[3] Reforms passed by the Florida Legislature in 2003 focused on refining election laws to secure funding for the state under the Help America Vote Act passed by Congress in late 2002. Election reform continued throughout the decade in response to the emergence of new technologies, new federal mandates, and calls for action by various citizen advocacy and good government groups.
A Decade of Election Reforms
            Florida has been a leader in election reform since 2000. It had to be!  While many changes have been made to our election system over the past 10 years, some of the most significant improvements[4] have been:
   More uniformity. Laws have been passed that ensure uniformity across the 67 counties with regard to recount procedures[5], determination of voter intent, ballot design (type size, placement, etc), poll worker training--length and content, logic and accuracy testing of equipment, post-election audits, and the distribution and counting of absentee ballots for overseas and military voters.
   New voting equipment: The state has abandoned two voting systems. Touch screens, which replaced the much maligned punch cards, were, in turn, replaced by optical scan systems. (July 1, 2008 was the deadline for removal of electronic touch screen machines in the 15 counties that used them.) The touch screen voting machines were controversial from the start. Critics attacked them for two major reasons--lack of a paper trail which inhibited manual recounts and fears of partisan-based tampering with election results.
The currently used paper-based optical scan systems permit more accurate recounts and determination of voter intent should such a question arise.    If used at a polling site (as opposed to voting absentee), optical scan systems can inform a voter if he/she has under-voted and will not count an over-voted race. A voter can ask for a replacement ballot in either situation and may also get another ballot should he/she have mistakenly marked the first. There is also now a ballot-testing law requiring supervisors to fill in the ovals to test ballots that will be used by voters to ensure that the ballots can be read by the voting equipment.
    Early (convenience) voting--absentee ballot or in-person at selected locations. Early voting, regardless of its form, is wildly popular among both voters and county election supervisors. Changes in absentee voting rules mean that (1) voters no longer have to give a reason for voting absentee, (2) they may ask to be put on a list of voters to whom absentee ballots are automatically mailed every election, (3) they no longer must have a witness sign their return envelope; (4) they are offered clear instructions reminding them to sign the outside of the return envelope containing their absentee ballot. 
   For early in-person voting, put in place in 2004, there is uniformity in the length of time set aside for it—beginning and ending dates, types of polling locations to be utilized, and total hours of operation. (There is some flexibility with regard to the specific hours of operation, e.g. on Saturdays and Sundays.) Early in-person voting gives the voter more choice as to the day and time he/she votes and reduces long lines on Election Day that might deter a voter from casting a ballot. It also makes it less stressful for election officials and poll workers. And if there are problems at the polling place (e.g., with identification), the voter still has other times he/she can vote, thereby reducing incidences of disenfranchisement. 
    More effective voter education. County supervisors of elections are now required to prepare and use a Voter Guide and make it available on his or her website and at a variety of locations and events. Each supervisor’s website must include detailed voter and voting information such as a sample ballot and notice of any change of polling place location. Supervisors are required to conduct voter registration, education, and training programs. For example, they must conduct voter registration/education programs in each public high school and on each college campus in the county. (A detailed list of the standards required for Nonpartisan Voter Education is included in an Appendix at the end of the column.) 
   Centralized voter registration system (Florida Voter Registration System—FVRS).  The federal Help America Vote Act required all states to create an official, uniform and nondiscriminatory statewide computerized voter registration list that is centralized and interactive by January 2006 which Florida did. The FVRS allows local election officials to enter information and have access to the list but requires that the Secretary of State has the overall responsibility and authority for the uniform voter registration list. The centralized voter registration file has helped eliminate duplicate registrations. It also permits a voter who shows up at the polls but has not changed his/her address after a move to do so on the spot and to vote without having to cast a provisional ballot. 
    Better protection against disenfranchisement at the polls. The Voter’s Bill of Rights and Responsibilities must be posted at each polling place and at the county supervisor’s office during the early voting period and on Election Day. Voters who cast provisional ballots at a polling place must receive a written notice of their rights which includes information about how to certify their eligibility and informing them of their right to find out if their ballot was counted and if not, the reason why. To make sure that poll workers properly implement election procedures and laws, a Polling Place Procedures Manual must be made available.
    A better system for protecting the voting rights of military and overseas civilian voters who need to vote absentee. In 2010, the state legislature passed legislation implementing key provisions in the federal Military and Overseas Voter Empowerment (MOVE) Act. The legislation requires that absentee ballots for all elections be sent at least 45 days before an election to all military and overseas voters. It mandates an e-mail transmission of blank absentee ballots to all military and overseas voters for any election upon their request. The MOVE Act also requires that these voters be able to track the status of their absentee ballot—when a request for an absentee ballot is received, when it is mailed, and when it is returned. These voters have the option of returning their ballot by mail or by fax, but not via email. Information about the process is posted on supervisors’ websites. County election supervisors can communicate directly with these voters via email which is faster and more efficient than via regular mail.
     A better system for checking voter ineligibility due to mental incapacity or a felony conviction. In 2005, Florida Department of State established a new Bureau of Voter Registration Services that is charged with conducting research to determine a person’s potential ineligibility on the basis of a court order of mental incapacity or a felony conviction.  In 2009, the Bureau began checking the legal status of thousands of alleged felons to determine whether they should be removed from voter registration rolls. Data from the Department of Corrections, Department of Highway Safety and Motor Vehicles, Florida Department of Law Enforcement, and the Clerk of the Courts are used to verify ineligibility. Procedures are in place that must be followed by local supervisors of elections in notifying felons, giving them a hearing if requested before removing them from the roll, and informing them of how to request restoration of their voting rights from the Office of Executive Clemency. A huge backlog of felon-status determinations has been pared down considerably.
Possible Controversies in 2010
Election officials expect to face challenges every election cycle. They are routinely cross-pressured to provide greater voter access while protecting the integrity of the voting process by preventing fraud. It is a difficult balancing act. This year’s challenges are more likely to emanate from perceptions of differential treatment of different classes of voters—absentee v. in-person voters; disabled v. non-disabled voters; felons whose voting rights have been restored v. those still caught up in the Clemency Board’s backlog. Then there are always potential controversies alleging improprieties in the purchase of voter equipment from vendors or challenging the quality and security of their products.
Absentee Ballots
Historically, election officials and citizens alike have identified absentee balloting as the most vulnerable to fraud both in requesting and completing ballots. This election cycle we have already had arrests for such illegalities. But this year’s controversies regarding absentee balloting are more likely to stem from voter protection activists’ belief that voters who cast absentee ballots do not have the same opportunity to correct an error as those voting in person. Their suspicion is that there is some sort of bias in the disqualification of voters by county canvassing boards making judgments on voter intent.
Disabled Voters and Touch Screen Voting Machines
There may also be legal actions in some counties on behalf of disabled voters who are still required to vote on electronic touch screen systems that have been outlawed for non-disabled voters should they choose to vote in person.
Felons Waiting to Have Their Voting Rights Restored
Many felons who are eligible for clemency have yet to have their voting rights restored because the Office of Executive Clemency is two or three years behind in processing such requests. In a close statewide contest, the number of these disenfranchised voters might be sufficient to challenge the outcome.
Vendor-Related Problems
            Any election official’s link to the old Diebold company’s vendors or equipment is likely to generate accusations of corruption, collusion, and partisan bias by some voter advocacy groups should any serious voting controversy emerge in 2010. (Some of the state’s largest counties at one time or another had Diebold voting equipment.) Officials continue to hope the name and the memories related to it will fade away sooner rather than later.
A Big Wish For Election 2010
At the end of the day, election officials and voters alike want no repeat of the 2000 election. One supervisor who lived through those stressful days has a wish for the 2010 election that many Floridians share:  “Please, no recount…They always get ugly.”  

            Susan A. MacManus, Dario Moreno, Richard Scher, and Henry Thomas, Floridians Want Reform of the Election System…Now! Tallahassee, FL: The CollinsCenter For Public Policy, Inc. and The James Madison Institute, April 16, 2001.
Susan A. MacManus, “Floridians Look Back at Election 2000 and Look Forward to Major Reforms,” The Journal of the James Madison Institute, Summer 2001: 10-18.
Susan A. MacManus,         “Voter Education: The Key to Election Reform Success, Lessons From Florida,” University of Michigan Journal of Law Reform, 36 (Spring 2003): 517-546.
Susan A. MacManus, “Implementing HAVA’s Voter Education Requirement: A Crisis and a Federal Mandate Improve State-Local Cooperation in Florida,” Publius 35 (Fall 2005): 537-558.
Susan A. MacManus, “Goodbye Chads, Butterfly Ballots, Overvotes, and Recount Ruckuses! Election Reform in Florida, 2000 to 2003,” in Election Reform: Politics and Policy, Daniel J. Palazzolo and James W. Caeser, eds. Boulder, CO: Lexington Books, 2005:37-58.
                Susan A. MacManus,  Mark Pritchett, J. Stanley Marshall, David Colburn, and Bruce Barcelo, 2002 Voter Satisfaction Survey. Tallahassee, FL: The CollinsCenter For Public Policy, Inc. and The James Madison Institute, December 2002.
                Mark S. Pritchett, Susan A. MacManus, Bruce Barcelo, and David Beattie, 2004 Voter Satisfaction Study: State of Florida: November 2004 Presidential Election Preliminary Findings, Tallahassee, FL: CollinsCenter For Public Policy, Inc. 2004.
                Mark Pritchett, Susan MacManus, and Susan Schuler & Associates, 2006 Florida Voter Satisfaction Study, Tallahassee, FL: Collins Center For Public Policy, Inc., 2006.
Christine Goding, “Reforms Enacted, Proposed, or Being Discussed in Florida,” paper submitted for an independent research course on election reform, University of SouthFlorida, Summer, 2010.

Appendix: Standards for Nonpartisan Voter Education
1S-2.033Standards for Nonpartisan Voter Education.
(1) Voter Guide. As part of their voter and voting education efforts, the county supervisors of elections shall use a voter guide.
(a) The voter guide may be based on a voter guide developed by the Department of State that incorporates county specific information as required below or may be created entirely by the supervisor. The voter guide shall include the following information:
1. How to register to vote including how to register by mail.
2. Where to obtain voter registration applications.
3. Dates for upcoming elections and early voting periods.
4. Registration deadlines for the next primary and general election.
5. How voters can update their voter registration information such as changes in name, address or party affiliation.
6. How voters can update their signatures and why is it important to keep the signature current.
7. Information on how to obtain, vote and return an absentee ballot.
8. The Voter’s Bill of Rights and Responsibilities pursuant to Section 101.031, F.S.
9. Polling information including what times the polls are open, what to bring to the polls, the list of acceptable IDs, and what to expect at the polls including when the voter may vote a provisional ballot.
10. What is meant by ‘Florida is a closed Primary Election state’.
11. Information on how voter information cards are issued when there is a change in polling place or precinct.
12. Instructions on the county’s particular voting system.
13. Supervisor’s contact information.
14. Supervisor’s website address.
15. Any other information the supervisor deems important.
(b) The supervisor of elections shall make the voter guide available on his or her website and upon request, at the following locations:
1. Any voter registration agency designated under the National Voter Registration Act of 1993. A voter registration agency is any public library, any office that provides services for persons with disabilities including any center for independent living, any office for public assistance, and any military recruitment office.
2. The supervisor’s office.
3. A community center.
4. A post office.
5. A county governmental office.
6. At any registration drive conducted by the supervisor of elections.
(2)Website. Each supervisor of elections shall maintain a website that includes voter and voting information. This requirement may be satisfied by providing a link to a webpage containing such information via the county’s website. The website or link shall include, at a minimum:
(a) The county’s voter guide.
(b) Information on how to obtain a copy of the voter’s sample ballot for an upcoming election or a direct hyperlink to a sample ballot for the upcoming election.
(c) Notice of change of polling place and precinct to all registered voters.
(d) Only if feasible, a polling place or precinct finder that allows a voter to determine his or her precinct or polling place.
(3) Voter Registration/Education and Training Programs. A county supervisor of elections shall:
(a) Conduct at least once a year a high school voter registration/education program in each public high school in the county. The program must be developed in cooperation with the local school board and be designed for maximum effectiveness in reaching and educating high school students who are eligible to pre-register or register.
(b) Conduct at least once a year a college voter registration/education program on each college campus in the county. This program must be designed for maximum effectiveness in reaching and educating college students.
(c) Provide, upon reasonable request and notice, voter registration workshops for individuals and organizations sponsoring voter registration drives.
(d) Assist, upon reasonable request, voter registration agencies designated under the National Voter Registration Act of 1993, including to help distribute and collect voter registration applications submitted through these agencies.
(e) Conduct demonstrations of the county’s voting equipment in community centers and senior citizen residences, and for various community groups, including minority and disability groups.
(4) Notices and public announcements. A county supervisor of elections shall:
(a) Post at the supervisor’s office, the Voter’s Bill of Rights and Responsibilities as set forth in Section 101.031, F.S., and at each polling place during the early voting period and on Election Day.
(b) Participate in available radio, television and print programs and interviews, in both general and minority media outlets, to provide voting information.
(c) Publish in the newspaper sample ballots or alternatively, may mail sample ballots to registered voters in accordance with Section 101.20(2), F.S.
(d) Provide notice of changes of polling places and precincts to all affected registered voters as required by Section 101.71, F.S.
Rulemaking Authority 20.10, 97.012(1), 98.255 FS. Law Implemented 98.255 FS. History–New 5-30-02, Amended 9-13-09.