by Jeffrey Toobin, New Yorker, December 4, 2012
When President Obama claimed victory in last month’s election, he observed that many voters had waited on long lines to cast their ballots, adding, “By the way, we have to fix that.” That was a promise he won’t be able to keep. There’s no fix in the works—and there probably never will be.
It was a pretty terrible election, as far as access to the polls goes. As usual, the worst situation was in Florida, where waits of four hours were common both in early voting and on Election Day. But, of course, 2012 wasn’t even the worst election in Florida in the last dozen years. Observers of American politics may recall certain difficulties with the 2000 race in the Sunshine State. But even that fiasco—which arguably (that is, probably, or rather definitely) changed the outcome in the state and nation—led to no significant reform. Because the problems in 2012 did not even arguably change the results, even in Florida, the urgency for reform is commensurably smaller.
As we think about addressing the voting problems of 2012, it’s worth remembering the legislative response, such as it was, to the 2000 disaster. In 2002, Congress passed the Help America Vote Act, as weak and inconsequential a bill as ever purported to address a national crisis. What did HAVA do? It established some modest standards for voting equipment and provisional voting. And it created the Election Assistance Commission, which was available to give advice to states. But it did virtually nothing to address the principal problem with American elections—which is that the states, not the federal government, run the shows.
State control came about partly because of the Constitution. Our federal government has limited powers, and running elections is not one of them. But the Constitution is also a flexible document, and there’s a good chance that the federal government could take a larger role in preserving the fairness of elections if Congress wanted to establish one. But with the House of Representatives in Republican hands, there’s basically no chance of that happening: the G.O.P.’s interest has run in the other direction, toward passing state measures, like voter-i.d. laws, that tend to restrict the franchise. Republicans do better in low-turnout elections (like the 2010 midterms), and they have made an institutional commitment to suppressing the vote.
So, in light of the post-2010 “reforms,” 2012 was worse than 2000. The notorious butterfly ballot in Palm Beach County, which clearly cost Al Gore the state and the election, came about largely because of the incompetence of local election officials in 2000. (I wrote a book, “Too Close to Call,” about the recount.) But at least before that Election Day, Florida officials played it fairly straight. The Republican officials who ran Florida state government in those days made no wholesale attempts to disenfranchise Democratic-leaning voters. (Well, not many attempts.)
What was different about 2012 was that voter suppression went from (largely) accidental to (completely) intentional. In virtually every state where Republicans took control in the 2010 midterms, they changed the laws to make it harder for their political opponents to vote. Most of these attempts were styled as attempts to limit “voter fraud,” a virtually non-existent problem in the United States. (A former official of the Florida Republican Party recently acknowledged that the purpose of these laws was to hurt Democrats, not to address any real problem.)
To a surprising extent, Democrats and their allies were successful in using the courts to wrest the worst of these laws off the books before Election Day. In some states, like South Carolina, the Justice Department used Section 5 of the Voting Rights Act to stop some of the worst laws. But the Supreme Court is currently weighing a case about whether to declare Section 5—the heart of the Act—unconstitutional. If the Court does strike down Section 5, that will be one more dagger in the heart of voting rights.
But the problem is bigger than just the future of this important law. As long as states run elections, even the occasional invocation of the Voting Rights Act will not preserve the integrity of the system. States are poorer than the federal government and less competent at major projects of this sort. States often defer the business of running elections to local counties, which have even less expertise (and money) than statehouses. And in all respects, states and their county seats are more subject to political manipulation than is the federal government.
Some groups, like the Brennan Center, at New York University, are making admirable attempts to build on the (modest) public outrage about the flawed mechanics of the 2012 election. Still, even these good works cannot undo the structural problem with American elections. Unless and until the federal government takes over the business of running our elections—which will, in all likelihood, never happen—the process of voting will remain the shambles we saw on November 6, 2012.