Early skirmishes over voting rights and access may be nothing compared to the fight coming on Election Day.
If John McCain isn't the next president, it won't be for lack of trying—he's called Barack Obama everything from a terrorist to a socialist. And yet, with a week to go, it is increasingly clear this election is Obama's to lose. Which leaves McCain with one last tried-and-true tactic: Steal the thing.
For all the talk about the "Bradley effect," the margin of error may not be the one created by whites who won't put their votes where their polling mouths will. Barack Obama's more serious hurdle may be winning big enough to make up for the votes that never actually get cast or counted.
Watchdogs have spent the fall charting a map of battleground states for the building fight over voting rights. These are the places where battles over the legalities of voting will be waged right up to Election Day—and God forbid, could go on for days and weeks thereafter. They are the places where an eight-year-long tug of war between those who want to make voting more accessible and those who want to make it still more difficult will climax.
"Some problems are unavoidable," says Daniel Seligman of the Pew Center on the States' Electiononline.org. "Somewhere in this country a machine is going to screw up. Somewhere a voter is going to be asked for an ID who doesn't have to show it. But these problems can be magnified." So last week, Seligman and his colleagues at Pew put together their own list of states where the confluence of new voters, Republican shenanigans and official negligence could blow those unavoidable problems up into this year's Florida or Ohio.
Take Wisconsin. Like many once unpredictable states, its 10 electoral votes are looking more solidly blue every day. But Attorney General J.B. Van Hollen, who is co-chair of McCain's Wisconsin campaign, has been working hard to thwart that trend ever since he returned from the Republican National Convention and filed a lawsuit meant to gum up the registration process. Van Hollen wants officials to go back and confirm hundreds of thousands of registrations against a new voter database. A judge dismissed his suit on Thursday, but he's vowed to appeal. If he succeeds, he'll ensure chaos on Election Day and beyond.
Similar problems could unfold elsewhere. A 2002 federal law forced all states to switch management of their voter rolls from local-level lists to a statewide list, a process several are only now completing. According to The Washington Post, that changeover is resulting in untold numbers of voters being improperly pushed off the rolls, setting up potential conflicts over whose vote should and shouldn't get counted.
That's why Colorado made Pew's list of states to watch for a tumultuous Election Day. The state will have a long ballot and a bumper crop of first-time voters, but it's also using a new and untested statewide database. Things could get ugly fast as glitches unfold and poll workers are left to sort out hordes of voters who don't appear to be registered correctly. Colorado is one of the few remaining states in the toss-up column.
Georgia and Indiana made the list for their new "ballot security" procedures, as well. They'll be the first two states in the nation to require voters in a presidential election to show photo identification. Indiana had the photo requirement in previous elections (the Supreme Court upheld its constitutionality in April), but not in one with anywhere near the expected turnout this year, particularly of new voters. Both states are in play for the first time in generations.
The photo ID laws are the gold standard for the Republican-led effort to make voting more difficult in the name of fighting the discredited myth of voter fraud. As Art Levine reported in The American Prospect this spring, the fraud lie got its modern start in Missouri's 2000 Senate race—in which John Ashcroft famously lost to a dead man, former Gov. Mel Carnahan. A Justice Department investigation proved there was no fraudulent voting in that election; rather, 50,000 voters in St. Louis were illegally purged. Nonetheless, the Missouri GOP has made fraud allegations in every election cycle since, which is why it's on Pew's list.
"Missouri is the state that has been the most contentious, where the two parties have been fighting each other over access versus security," Seligman says, warning that this year, "It'll probably be a circus outside [the polling stations]." Most polls show Missouri tipping toward McCain. But the race there is still quite competitive.
Levine also reported that Missouri, fittingly, is the place where Republicans first targeted community-organizing group ACORN, in 2006. After Bush's Justice Department fired Missouri's U.S. Attorney Todd Graves, apparently for refusing to file a baseless voting fraud suit against the Democratic secretary of state, his replacement began a high-profile legal campaign against four workers ACORN itself had fired for falsifying registration forms. Republican operatives nationally have been using ACORN as a voter-fraud boogeyman ever since.
Virginia is another state that's likely to be on the front of the voting rights war. The once solidly red state is in play for the first time in generations—in large part due to a surge in new voters. This summer, Montgomery County election officials sent misleading information to Virginia Tech students, warning that they'd jeopardize loans and scholarships by registering locally rather than in their parents' districts. "It's another one of those states that's desperately important for both parties, so anything that goes wrong is amplified," says Seligman.
And no list is complete without Ohio and Florida. Several jurisdictions in both states will be using their third voting systems in as many elections, Seligman notes, boosting the odds of confusion for voters and poll workers alike.
After a series of court skirmishes, Ohio appears to have successfully avoided a database catastrophe like the one Wisconsin's attorney general is seeking to create. But Florida is poised to see 2000 all over again. The registration-confirmation system that it began using in September is disastrously flawed. In its first three weeks, it rejected 15 percent of the registrations it processed, according to the Brennan Center for Justice; three quarters of them turned out to be the result of typos. But thousands of those rejected registrations remain unresolved—39 percent of them involving black voters—and who knows how many more will come up.
Of course, one thing is starkly different this year from either 2000 or 2004: The Obama campaign and a bevy of watchdogs have been in an aggressive, combative posture on protecting voting rights.
Obama's General Counsel Bob Bauer has already called the Justice Department's ACORN investigation suspicious, linked it to the Republican Party's "systematic development and dissemination of unsupported, spurious allegations of vote fraud," and demanded that the ongoing investigation into political firings of U.S. attorneys also look into the ACORN probe. The Gore campaign it ain't.
"Wherever you look, you see these tactics being used," Bauer said on MSNBC's Countdown, calling the legal wrangling and fraud allegations part of McCain's ongoing, "sleazy" campaign and hurling words like "toxic," "poisonous" and "vicious." The man's ready for a fight. Given the frighteningly large number of places where the voter access vs. ballot security tug of war could shape the election, he may just get it.
Kai Wright is a regular contributor to The Root.