On January 21,
while the eyes of the political world were focused on the South Carolina
primary, the Iowa Republican Party officially announced that Rick Santorum – notMitt Romney -- had won the Iowa caucuses.
Of course, for days we’d known that the vote total in Iowa was problematic,
but the official results from election night (January 3), when Romney was
declared the winner by 8 votes, remained in force until Saturday, January 21. . The announcement of Romney’s victory was
based, however, on the uncertified results from January 3. This was where the problems began. As
both the2000 Presidential race in Florida and the 2008 Senate race between Al
Franken and Norm Coleman in Minnesota should have taught us, the counting of
votes does not end on election night. It
can take weeks for all the votes to be officially counted and certified. During this period, vote totals change as elections
officials discover uncounted ballots and add them to the vote totals. In Iowa, it turned out that eight precincts
never had their votes counted. Vote
totals were consequently revised; the resulting changes gave Santorum a 34-vote
victory.
Most of the
press commentary on Iowa’s vote counting gaffe has focused on the workings of
the caucus system, the professionalism of the Iowa GOP, and questions whether
Iowa’s standing as the first-in-the-nation state on the presidential calendar
is threatened. Some commentators have questioned
the relevance of the Iowa caucuses, which don’t actually choose any delegates;
they contend that the caucuses are largely a media invention with little
practical impact except to drive out fringe presidential candidates.
While all of
these are valid points, they all miss the big picture.
In 2001, Cathy Cox, then the chief election official
of Georgia, remarked, “As the presidential election drama unfolded in Florida
last November, one thought was foremost in my mind: there but for the grace of
God go I. Because the truth is, if the presidential margin had been razor-thin
in Georgia and if our election systems had undergone the same microscopic
scrutiny that Florida endured, we would have fared no better. In many respects,
we might have fared even worse.” This
was likely the thought of every election supervisor at the time. Yet in most states, little was done to fix
these problems. Granted, we no longer vote on the old IBM
punch-card machines of 2000 (which introduced us to the concepts of ‘hanging’
and’ pregnant’ chads). Similarly, after
a brief flirtation with electronic voting machines (which did not generate a
paper record of the votes cast), most of us now vote on machines that provide a
paper trail.
Yet these changes address only mechanical
problems. They ignore the human element
in vote-counting – including the potential for what I’ve termed administrative
gerrymandering – manipulating the administrative procedures governing voting
for partisan gain.. Yet even lacking election
officials seeking to practice administrative gerrymandering, the failure to
address the human element in running an election is a potentially catastrophic mistake. The 2008 Senate race in Minnesota dramatized
the ongoing inaccuracies and vulnerability of our electoral processes when
confronting close votes. Here the
problem wasn’t chads or even paper trails, but the counting of absentee ballots
– in particular the determination of which absentee ballots were valid and
which were invalid, all for obscure technical reasons. That this confusion arose in Minnesota showed
the systemic nature of the vote-counting problem. In 2008, Minnesota had some of the best-organized
and best-- thought-out electoral procedures in the nation. They had a non-partisan elections board to
settle disputes and a state supreme court that also was nonpartisan in its
makeup. Yet, when facing a close vote,
Minnesota turned out to be more like Florida than it wanted to be. In fact, the only reason that the Minnesota
mess was settled in a clear and generally-accepted fashion was that the
Minnesota Supreme Court had the time -- over a month -- to decide the case, write
their opinion, and get it right – time that no one in the Florida mess
had. Nonetheless, even following Minnesota’s 2008 electoral
breakdown, little was done to fix the problem.
Instead, over the last few years, most
efforts labeled as electoral reform have focused on preventing voter fraud
through voter ID laws, reduced early-voting hours, and restrictive rules on
third-party registration drives. Leaving
aside for the moment that, as the Brennan Center at New York University Law
School notes, “Fraud by individual voters is both irrational and
extremely rare” – which argues that most of these rule changes are politically
driven for partisan advantage – the big problem with such ‘reform’ efforts is
that they don’t address the real problems of vote-counting. We are
still as vulnerable today as we were in 2000 to close elections that demand extreme
accuracy in vote-counting, an accuracy that at present we cannot ensure. If anything, today’s problem is actually
worse than it was in 2000, as candidates now come prepared on election eve with
teams of lawyers ready to do battle in the courts for every vote.
Add in administrative
gerrymandering and the picture gets even more troubling. Recall the notorious 1948 primary election for
the Democratic nomination for a Texas U.S. Senate seat that pitted Lyndon B.
Johnson against Coke Stevenson. Johnson
won by 202 votes from Jim Wells County – votes that came in six days late and were
listed in alphabetical order [on this event, see the forthcoming article in The Review of Litigation by Josiah
Daniel, “LBJ v. Coke Stevenson: Lawyering for Control of the Disputed
Texas Democratic Party Senatorial Primary Election of 1948”]. Another example is the case of the disputed
ballots from the 1876 presidential election that ruined reputations, disclosed
rampant corruption among Democrats and Republicans alike, and helped to bring a
premature end to Reconstruction. A third
is the 2004 presidential election in Oho, where the state’s Republican secretary
of state Ken Blackwell’s administrative rulings forced thousands of voters to fillout provisional ballots that never were counted. I could list examples, both recent and
historical, indefinitely.
Sadly, the real
lesson of Iowa’s vote counting gaffe is that sooner or later a close vote in a
key race is going to happen, and when it does, it will blow up in our face like
an exploding cigar – leading election supervisors everywhere to think, “there but for the grace of God go I.”
