The protracted 2008 US election season got its official start this month, with voting for presidential party nominees in Iowa, New Hampshire, South Carolina and Nevada. But while much of America's attention is focused on the race leading up to the November election, the under-reported story is how the US electoral system remains haunted by the ghost of the democratic meltdown of 2000, which culminated in a US Supreme Court decision that handed the presidency to George W. Bush, rather than Al Gore. US election administration has become more politicised and partisan since 2000, and could even affect the outcome of the 2008 presidential contest.
For Australians, many features of US election administration must seem peculiar. Even for national polls, US elections are administered on the local, not even state, level, with up to 14,000 different electoral jurisdictions each using different types of ballots, different voting machines and different voting rules. In most electoral jurisdictions, election administrators are openly partisan with an allegiance to the Democratic or Republican Party. Not only is voting not mandatory, enrolment, called registration, is the responsibility of the voter, not the state.
The Florida 2000 debacle, in which the fate of the US presidency was determined by whether and how to count partially perforated punch-card ballots, should have taught the US to emulate Australia's professionalised, non-partisan, and nationalised system of election administration. But instead, the US has gone in the opposite direction.
Throughout the US, Republican-dominated state legislatures have tried to pass laws requiring voters to present photographic identification at the polls an idea that has an Australian currency. Democrats have vigorously fought these laws. Republicans, like some Australian Liberals, claim that that such laws are necessary to prevent "voter fraud", whereby an imposter will show up at the polls claiming to be someone listed on the voter rolls and vote instead of that voter. (In fact, like Australia, there have been virtually no prosecutions of impersonation voter fraud in the US.) Democrats suspect that the laws are meant to deter the poor, elderly and minorities, who are less likely to have a photographic identification and more likely to vote for Democrats than Republicans.
The new voter ID laws have been challenged in court, and the judges have divided along party lines. Democratic-appointed judges have found the laws to be an unconstitutional burden on poor voters; Republican-appointed judges see them as legitimate anti-fraud measures.
The most draconian of the new voter identification laws passed on a party-line vote in the state of Indiana. The law is so tough that a poor citizen who wishes to vote without a photographic identification must sign an affidavit at the polling place that they are indigent and cannot afford an identification, and then make a second trip within 10 days to file their affidavit at a county office.
Democrats challenged Indiana's law in the US Supreme Court, with arguments heard earlier this month. Though we do not know for certain how the court will rule, there's the very real possibility of another 5-4 conservative/liberal split that we saw in the notorious Bush versus Gore case. It is no wonder that public opinion polling has shown Democrats having less faith in the fairness of the electoral process than Republicans, and African-American voters much more likely to doubt the fairness of the electoral process than whites. The hope (or prayer) of the Democrats is that Justice Kennedy, who is a "swing" justice on the court, will recognise that the second trip requirement in Indiana impermissibly burdens poor voters and is not justified by the claim of voter fraud.
The US election administration wars have had even further negative repercussions for the fate of the American political system. Bush nominated a lawyer, Hans von Spakovsky, to serve as one of the six commissioners on the Federal Election Commission, which enforces campaign finance laws. Von Spakovsky previously served as a political appointee in the US Department of Justice, where he was viewed as unfairly backing Georgia's voter identification law and of a controversial Texas redistribution plan for congressional seats. Presidential hopeful Senator Barack Obama blocked von Spakovsky's nomination to the commission, and in response Republican leaders have blocked a vote on other nominees to the body. The result is that the commission now lacks a quorum, and it cannot go about the normal course of business.
If we are truly unlucky, one of these skirmishes in the election administration wars could lead to another electoral meltdown, thereby throwing our election back to the courts.
The main bulwark against this kind of problem is not the American political establishment, which has proven itself incapable of enacting a fair and nonpartisan electoral system befitting a mature democracy. Instead, we put our faith in the law of numbers. We should all utter the US election administrator's prayer: "Lord, let this election not be close."
Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School Los Angeles and the author of the Election Law blog (www.electionlawblog.org).