Washington, D.C
As Supreme Court Justice Stevens observed, the winner of the majority of the votes in Florida's 2000 Presidential election may never be known. However, the nation did learn a great deal about the many ways in which voting procedures across America prevent voters from having their say. One of the things we learned is that working families—in particular communities of color, immigrants and older Americans—are disproportionately disenfranchised by the failure of voting systems.
The nation must act now to ensure that the wholesale disenfranchisement of voters in Florida and elsewhere never be repeated. The AFL-CIO will work for reform anchored in basic principles fundamental to any democracy—chief amongst them the idea that the right to vote is a right guaranteed to all, not a privilege reserved for the well-educated, the affluent, or the well-connected.
The Supreme Court's tragic and deeply flawed decision in Bush v. Gore that determined the outcome of the presidential election nevertheless laid down a constitutional marker: differential treatment of voters adversely affecting some violates the Equal Protection Clause of the Fourteenth Amendment. Fair application of that principle would require many salutary changes in how votes are cast and counted across the nation.
Comprehensive, national reform is only possible through federal action. Such reform can and should be enacted in this session of Congress, as should comprehensive campaign finance reform.
The AFL-CIO has long supported fundamental reform of our campaign finance system - thorough-going changes to plug loopholes, eliminate unfair advantage and return control of the political process to the people. We call upon Congress to enact such legislation as its first order of business in this session and to add to it election reforms designed to enhance voter participation.
States should also act. But even with state reforms, a major federal role in providing financial support to states' efforts at modernizing and standardizing their voting systems will be required. We intend to work with allies to press for reform at both levels based on the following principles.
First, voter registration should be simple, easy, and designed to encourage voting through universal registration at age 18 and same day registration and voting. In addition, more uniform and effective systems to maintain and update voter files are needed.
One of the major sources of complaints about the Florida election was that voters who had voter identification cards went to the polls and found their names were not on the voter lists. In Jacksonville (Duval County) the Supervisor of Elections admitted that registration applications from DMV's filled out in the last weeks of the registration period had not been processed. Thousands of other eligible voters appear to have had their names removed due to last minute purges by the Secretary of State's Office using faulty lists.
The National Voter Registration Act of 1993 ("Motor Voter Act") provided for national standards regarding voter registration by mail and simultaneously when applying for drivers' licenses, but there are no penalties for non-compliance or provisions allowing those whose right to vote was denied due to a violation of the Act to vote after Election Day. There are also no uniform federal provisions governing identification requirements or the right to vote under challenge if there is a question as to a voter's eligibility. The experience of people of color trying to vote in Florida suggests there is a need for national standards in these areas. Any person denied the right to vote due to a violation of these standards should be permitted to vote if he or she files a timely complaint, and there should be tough penalties for violations of the Motor Voter Act.
Second, voting should be easy.
With the exception of a few states like Oregon and Washington, which have mail-in ballots or provide for early voting, voting in national elections is conducted during limited hours on a work day—the first Tuesday in November. The result is that the bulk of the votes are cast during the first few and the last few hours the polls are open. The limited hours themselves are a problem for working people trying to vote, particularly those working mandatory overtime, who in some cases have to work through the hours the polls are open. But more serious are the delays involved during the crush of voters in the last few hours. Long lines at the polls in the evening often means that many people face an unacceptable choice between work, family and voting.
In situations where there are irregularities with voting lists, as occurred during the Florida election due to improper list purges, limited voting hours lead to the effective collapse of the system for assisting voters who have a problem trying to vote. In some counties in Florida, voters with problems were told to go home and wait to be called back to vote when the precinct workers could get through to the County Supervisor of Elections office. Polling places in minority communities in some states reported long lines due to a single list of eligible voters, while other communities were equipped with multiple copies.
Possible solutions include time off from work for voting - either a full day holiday or paid leave during the day—extended voting hours, multi-day elections or weekend elections. Election day in many democratic countries falls on a weekend or is a holiday. Indeed in the 19th century, Election Day in the United States was generally treated as a holiday much like the 4th of July.
Action is also needed to remove obstacles in the voting process itself. Voters should have an absolute right to vote challenged ballots if their names do not appear on the list. There should be equal enforcement of uniform and reasonable identification requirements and procedures, common standards and procedures regarding felon eligibility.
Third, we must ensure that every vote gets counted.
The purpose of elections is to register the choices of the entire electorate. Every effort must be made to count all votes that are cast on election day, rather than to treat voting as a series of traps where the role of the election officials is to disqualify those who make mistakes. Furthermore, there continues to be a need for common procedures for safeguarding ballots during the times between when the closing of the polls and the counting of the votes.
In Florida, out of date equipment, confusing ballots and the failure of election officials to give adequate assistance led to tens of thousands of votes not being counted. There must be guarantees that in light of the imperfections of any given voting system, election officials will have the opportunity to look at ballots to discern voter intent. It should always be the guiding principle that voters come to the polls to vote and that it is the role of election officials to ensure that they are able to register their choices, not to look for reasons to discard their ballots.
We must address the experience both in Florida and other parts of the country that some kinds of voting systems more than others lead to more ballots not being counted, and that in particular punch card machines are prone to these kinds of errors and must be replaced. In addition, variations in ballot design and in both sample ballots and actual ballots led to tens of thousands of voters in Florida being disenfranchised. Error-prone systems were used primarily in poorer communities with larger communities of color, and within those communities people of color and senior citizens were less likely to have their ballots counted.
The solution to these problems is a common ballot format in federal elections and a common voting technology nationwide, together with training for poll workers, phased in as quickly as possible with federal financial assistance. The highly reliable voting machines currently in use in many affluent communities should be provided to voters everywhere.
In addition, there should be federally legislated clarity about recount procedures and timetables in federal elections so as to avoid the chaos that ensued in Florida.
Fourth, and finally, voting rights law should be aggressively enforced and penalties for violating voting rights must be strong enough to act as a meaningful deterrent.
The Federal Voting Rights Act currently prohibits a wide range of conduct designed to prevent people from voting because of their race and includes a pre-clearance process applying to a large number of jurisdictions where there has been a history of such attempts. However, the Voting Rights Act does not have provisions explicitly allowing retroactive relief except in certain circumstances (where a Federal monitor has already been appointed). Furthermore, the penalties section (which does have fines and jail time provisos) does not apply to the Motor Voter Act.