Memoir

When elections need protection

THE CALL CAME at the very end of my four-hour shift on election day 2008: ‘Ma'am, I'm calling from Missouri, where I'm a poll worker, and my sister tells me – she's over at another polling place – there's a man there giving $100 bills to folks, mostly to black folks, to get off the voting line. I didn't know what to do, so I'm calling you there at 1-866-OURVOTE. Can't you do something? Can't you stop this thing? It's a long, long line – and people are sick of waiting, and they sure could use that money.'

I took a deep breath. This was what I had thought would happen when I signed up to work the hotline: dirty tricks, racial targeting, insufficient and crowded facilities in African-American and Hispanic neighborhoods. Many people, myself included, believe that the 2000 and 2004 US Presidential elections were stolen by the Republicans – there were so many incidences, especially in Democratic districts. But until the end of my shift, there was nothing extraordinary to report.

As I listened to the caller I looked at the list of frequently asked questions for Missouri. The statement, ‘There are people at the polls trying to intimidate voters' seemed appropriate, as was the response: ‘Alert a Commander immediately.'

‘If you'll wait a second I'll get my supervisor,' I told my caller, and ran to the control area. In minutes I was surrounded by young lawyers, vying to help her. ‘Tell her to call the cops,' one shouted. ‘No,' said another, we'll call the cops.' I handed the phone to one of the supervisors so he could get the information from her directly, wished everyone luck, and went home to watch the election results.

 

ELECTIONS IN THE United States are quirky, to say the least. Everything about them works against the electorate's ability to choose those who represent them – the stakes are high and the Electoral College system antiquated. Logistically, if not practically, it would be possible to lose by ten or twenty million votes and still be elected president. The popular vote does not elect a president – Al Gore beat George Bush by half a million votes in 2000, but because the Supreme Court chose to let the Florida Legislature's certification of a Bush victory stand, and stop the recount, Bush became the forty-second president.

The problem goes back to the late eighteenth century and the compromise between the Federalists who wanted centralised government led by a president and governed by a constitution, and the anti-Federalists who wanted to protect the rights of states, and feared ‘big' government and presidential power. The Federalists wanted the president to be chosen by Congress, while the anti-Federalists wanted elections based on popular vote. The compromise was the Electoral College, a system by which electors would be chosen by popular vote in each state and these electors would then vote for president. To this day, the United States technically remains a republic, not a democracy.

The number of electoral votes for each state is based on its population and the number of representatives it has in Congress. Every state has two senators, but the number of congressional representatives is based on population. California has the most with fifty-three representatives; Vermont, Delaware and Wyoming have only one each. It is difficult to say whether the system favours the larger states or the smaller states. Certainly the larger states have a more significant say in electing the president, but in the less populous states each vote is worth more. The winner of each state's election, whether by one vote or one million, gets all the electoral votes (except in Maine and Nebraska) and this can encourage voter fraud and intimidation because just a few hundred votes can determine the leader of a country of nearly three hundred million people.

While the US Constitution sets out the main outlines of the electoral system, each state has the right to regulate discrete provisions and the laws in each state are so different and complicated that a hefty book is required to explain them. Also, these regulations change, so it is difficult for people – even those who vote regularly – to keep up with them. While party poll workers are charged with knowing their state's elections laws, many do not and make mistakes, sometimes out of ignorance, sometimes out of partisanship.

 

ELECTION PROTECTION WAS formed after the 2000 election, which was decided when Florida's twenty-seven electoral votes were given to George Bush. The process was marred by punch ballots that weren't clearly punched, tens of thousands of ballots that disappeared, and also by the massive disenfranchisement of minority voters. Some people in largely African-American areas received telephone calls the day before the election telling them that the voting would take place over two days, the regular day for Republicans and the day after for Democrats. Others were purged from voting rolls when their names were maliciously put on a list of felons, making them ineligible to vote. (Once people are purged from lists of eligible voters, it is very difficult and time consuming to restore them.) Some poll workers shut down the polls despite long lines; others did not report broken voting machines, so people had to wait for hours and finally gave up and went home. Not only were candidates buying elections, but they – and their minions – were also stealing them.

Many civil rights organisations called for something to be done and one of the first responses to the election crisis was from the Lawyers' Committee for Civil Rights Under Law. Together with a number of other public-interest organisations, the committee coordinated a pilot program to protect American voters. This small program grew quickly to become a year-round effort and the largest pro bono project in America.

The election day hotline not only helps people comprehend the voting laws, but keeps careful records of calls, so that lawyers can investigate and resolve problems, address issues that need reform and suggest the legislation necessary to repair the system.

In 2004, after four years of the Bush presidency, determined to do something to help change the course of US foreign and domestic policy, I joined my daughter, then a paralegal, for Election Protection training at Cardozo Law School in Manhattan. The advertisement very clearly stated that only attorneys, law students or paralegals could participate, but I was certain they would make an exception for me as a college professor with a deep interest in politics. The session, run by law students, was fascinating. We were told all the ways that things can and have gone wrong and how to safeguard voters' rights. It was also made very clear how important our contribution would be.

As we were leaving, I confidently approached one of the trainers: ‘I'm not working in law but I'm a college professor,' I told him. ‘Is it okay for me to join the hotline?' ‘Of course not,' he answered. ‘We must be able to stand behind the integrity and legal training of our staff.' I thought his words were delivered with a sneer, but my daughter felt I was taking it way too personally. And so it was that on election day 2004, my daughter, a paralegal for a mere four months, went off to help save the election, while I watched John Kerry lose to George Bush. I despaired as Ohio become not only another victim of voting malfeasance but also the state that delivered Bush victory.

 

I DON'T KNOW why I thought my participation would be any more acceptable to the Election Protection team in 2008; perhaps I hoped my sheer desperation might engage their sympathies. Like many Americans in the run-up to the 2008 polls, I was excited, inspired and hopeful. I had registered voters and made phone calls to prospective volunteers, but I needed to be active on the election day and so, on a cold night in October, I went to a midtown law firm and sat at a conference table with a group of young legal professionals, mostly all dressed in dark suits and sporting blackberries, to be trained for the hotline.

The workshop was more sophisticated than the one I had attended four years previously. While Powerpoint and video presentations informed us, the number 537 glared at us from the white board at the front of the room – the number of Florida votes by which George Bush had won the 2000 election – to make the point that every vote counted. Even the most serious corporate lawyer types looked energised. What we were doing was critical. Can you blame me then, for being guilty of the sin of omission? I did not tell them I was not a lawyer, or a paralegal, or even a law student, and no one asked.

There were several hotline sites in Manhattan, all at large law firms. Mine, in downtown Manhattan, was one of the most renowned, and fifty of us were responsible for answering questions from voters in Missouri and Texas. We were each given a pamphlet of FAQs for our states, and big black tee-shirts with Election Protection emblazoned in white across the front. I put mine on immediately, and was assigned to a phone. There were tables with breakfast, then a full lunch, and coffee all day long.

It was not until the calls started that I fully realised how impossibly dysfunctional the US electoral system is. While it makes sense to have different voting facilities in each state (schools, gyms, town halls), it does not make sense to open and close polling places at different times, or for each state to require different forms of identification. Maybe it made sense when America was a collection of states divided by distance and custom, but in a world of air travel and internet, and cell phones and blackberries, distances are not so great and customs not as different. And a system as complicated as this is dependent on human intervention – poll workers who know and interpret regulations and make sure ballots are recorded correctly, election officials who interpret the intention of ballots in the process of counting them and campaign workers who are meant to be honest and nonpartisan in allowing all qualified voters to vote.

My first caller was from Texas. She had moved a few years before but had not reregistered. Now she wanted to vote and hoped I could help her. I checked a website to see if she was still registered at her old address. She was, and I told her to go to her former polling place and vote. I found out later that I was wrong. She should have gone to her new polling place, reregistered and voted provisionally – tantamount to not voting at all. My supervisor wanted me to call her and revise the information, but I didn't. She so wanted to vote. I didn't want to take that away from her.

Statutes affecting people with disabilities have proliferated in recent years and my next mistake was about accessibility. The wife of a married couple in wheelchairs called because she had heard that the lines were very long and was afraid it would be too hard for them to wait. They did not know, and neither did I, that the election statute in Missouri demands that polling places be accessible, and if not, that an election judge must bring the ballot and/or equipment to the disabled voter to ‘within two hundred feet of the polling place'. All I could suggest was that they would surely be allowed to go to the front of the line – something they were loathe to do. However, following instructions, I made a notation on their record, and several hours later, after my shift had ended, received a call from a Missouri attorney asking for details so he could follow up to make sure they were able to vote. Eventually they got help to get to the polls.

I had some calls from mothers. One, from Missouri, had (like many of my callers) moved to another county many years previously and hadn't bothered reregistering. It hadn't seemed important then, but now she was desperate to vote; she so wanted to be ‘part of this wonderful election'. She was African-American and had promised her kids she would vote for Obama. But the Missouri statute clearly says that if she moved before the deadline to register, she could not vote. We stayed on the phone far longer than necessary, although there was nothing I could say to make her feel better. ‘Next time,' I said. Another African-American mother was desperate for her son to vote. He was just eighteen, and she felt it would be a matter of great pride for his first vote to be for the first African-American president. He had registered by mail and was told he would be sent a voter's registration card, but it hadn't arrived. I was able to find his name on the Missouri registered voters' website, and his joyful mother told me she would walk him personally to the polls to vote for the first time.

In the end, it wasn't even close: Obama won by a landslide. The quirkiness of the Electoral College did not factor in; the none-too-subtle appeals to racism did not work; whatever ‘dirty tricks' were tried, they failed to make any meaningful impact. The country was weary of soul after eight years of the Bush administration. By the end of my shift it became clear that the election of Barack Obama as the first African-American president of the United States was not just a reaction to Bush's presidency. Many of the people I spoke with were African-American, and for them it was a miracle they never thought they would see, one in which they wanted, needed to play a part.

John McCain won Missouri by a very narrow margin. It was the only one of the very close states he took. I don't know whether a bundle of well-placed $100 bills made any difference, or whether the culprits were ever caught. And, in a sense, this single case does not matter because we made this election fairer and will make the next one fairer still. Election Protection will be back in 2012 – presumably bigger, better organised and more efficient – and I'll be back too, if they will have me. After all, now I have the legal training.

ACKNOWLEDGMENTS AND NOTES

 

I would like to thank the Election Protection organization for giving me the opportunity to actively take part in this historic election.  While they did not knowingly allow this non lawyer to participate, they did add the category of "activist" to their volunteer questionnaire, which allowed me and a number of my academic colleagues, to try to help change this antiquated system.  I would also like to thank Julianne Schultz for giving me an opportunity to share my experiences in writing and my husband, Brian Gallagher, for is enthusiastic editing.

  • Election Protection gathered the answers to the FAQs from each state's statute. Other information was available to us at various web sites listed on white boards in the hotline office.
  • Many excellent books have been written on the 2000 election, among them Supreme Injustice: How the High Court Hijacked Election 2000 by Alan Dershowitz (Oxford UP, 2001); The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President by Vincent Bugliosi (Nation, 2001) and The Unfinished Election of 2000  by Jack N. Rakove (Basic Books, 2002).
  • In Maine, the winner of each of Maine's two congressional districts gets one vote, so it is possible for Maine's four electoral votes to be split 3:1, one for each winner of the congressional district and two for the overall winner of the popular vote. Nebraska has five electoral votes; one is assigned to the winner of each congressional district while the other two go to the winner of the popular vote.
  • Given the lack of conformity among states regarding voting rights, it should come as no surprise that voting rights for prisoners convicted of felonies vary from state to state. Two states, Kentucky and Virginia, permanently disenfranchise all convicted felons and eight other states some felons. Nineteen states do not allow felons to vote while in prison, on parole or on probation, and another five allow them to vote while on probation. Fourteen states restore voting rights to felons once they are released from prison, but only two (Vermont and Maine) allow felons to vote while still in prison. Restoration of voting rights to felons is a major issue in voting rights legislation because so many convicted felons are minorities. Project Vote has an excellent analysis of the issue on its web site (www.projectvote.org).
  • The large number of coalition partners is a major reason for Election Protection's growth.  Such divergent organizations as the NAACP, the Brennan Center for Justice at New York University School of Law, the National Disability Rights Network and the League of Women Voters have all been sponsors of the EP project. Manhattan was their largest source of volunteers, but they ran programs in nearly 25 states during the November election. (To see the list of their sponsors, see their web site listed below.)
  • The 2008 election gave Obama 365 electoral votes versus 173 for McCain; the popular vote was 69,456,897 for Obama, 52.92% of the popular vote, and 59,934,814 for McCain, 45.66% of the popular vote.
  • In Missouri, McCain won the popular vote by 3,903 votes, a mere .14 more than Obama.
  • Perhaps the greatest contribution made by the many participants working the Election Protection hotline was the data we collected about voting irregularities.  We took notes on each case we handled and entered our information into the EP data base directly upon finishing our calls.  The preliminary results of the data collection can be found in their recent report, Election Protection 2008: Helping Voters Today, Modernizing the System for Tomorrow, Preliminary Analysis of Voting Irregularities and available on their extremely informative web site.http://www.866ourvote.org.  Also available on their web site is state-by-state news about voting issues, testimonials and data about voting mismanagement.  In reviewing this memoir, I worried that it reads a bit like an advertisement for EP-and I realized, in its way it is.  The U.S. has experienced voting irregularities for so long that people take the confusion and corruption for granted.  That a nonpartisan organization is finally fighting our national insouciance gives me some hope that the unrepresented electorate will finally have the chance to be heard. Below is just one of thousands of stories that can be accessed on the web site:
Ernestine, Harrison Township, Michigan,
November 4, 2008

Ernestine and her children voted today at The Lanse Creuse Public School, precinct 9 in Harrison Township, Michigan.  After making their selections on paper ballots and feeding them into the optical scanner, Ernestine and her children each received a "divert error" message.  An election worker assured Ernestine that their votes were counted, as the counter on the machine went up, but Ernestine is still concerned that her vote – and those of her children – won't be counted.

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