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Justice Talking: Counting Every Vote

Ben Ginsberg, left, and Joe Sandler
Ben Ginsberg, left, and Joe Sandler

NPR's Justice Talking features debates between the nation's top advocates and newsmakers.

NPR's Margot Adler recently moderated a debate between Joe Sandler, general counsel to the Democratic National Committee, and Ben Ginsberg, former counsel to the Republican National Committee on the impact of voting reforms since the 2000 presidential race and the fairness of the upcoming election. This excerpt is one in an occasional series.

MARGOT ADLER: The Help America Vote Act was signed into law in 2002. Two years later, many states have not been able to make needed changes in their voting procedures. Why has the process been so slow?

JOE SANDLER: For precisely the reasons that led to the passage of the act to begin with, which is that the mechanics of voting have been traditionally handled at the state and local level. It's very hard to impose uniform standards with things like voting technology or even the use of provisional ballots at the federal level. The Act didn't legally require state's to use new voting technology but gave them an incentive to do so by making funding available to states that agreed to update their voting technologies.

BEN GINSBERG: It has been an area where states have essentially governed. The truth about the voting process is that it is essentially an honor system that really runs on election day because of the good graces of volunteers who want to help the system. That sometimes can lead to an imperfect system when scrutiny comes.

MARGOT ADLER: Some states and localities will still use punch card ballots on November 2nd. Could this year's election hinge on hanging chads or some other word that hasn't even entered the lexicon?

BEN GINSBERG: I think the answer is yes. Close elections are ones in which systems get scrutinized. Both Joe and I have been in this business for awhile and I think we'd agree it is impossible to predict what election is going to end up close but it's those unpredictable close elections where you get to see the imperfections in the system.

JOE SANDLER: I do agree, but I think we have to be careful not to always be fighting the last war. You never know what issue is going to make a difference in a close election. We have a lot of new factors this time to worry about. We have unprecedented numbers of new registrants coming into the system. We have the use of new voting technologies that are unfamiliar to voters and, more critically, to the election officials who are responsible for testing them and setting them up and making them work all day on election day.

BEN GINSBERG: If I could hazard a guess on the issue that might come up, it's the use of provisional ballots on such a widespread basis in this election as a result of the Help America Vote Act. A provisional ballot will be afforded to virtually anyone who goes into a polling place [and] doesn't appear on the rolls properly. The provisional ballot will be judged proper or not in the days after the election. There stand to be a great number of elections in which the margin of victory is smaller than the number of outstanding provisional ballots.

MARGOT ADLER: So someone might come in, find their name not in the rolls, get a provisional ballot and the [final] count might not happen for awhile after the election?

BEN GINSBERG: Each state is allowed to promulgate its own regulations [on counting provisional ballots]. They're generally between 3 and 10 days after election day. We've seen in some state[s], like a congressional race in Colorado in 2002, that different counties within the same congressional district dealt with provisional ballots in different ways. That, of course, is problematic under Bush vs. Gore. If I had to hazard a guess we'll be enmeshed in some of [these] issues after the election.

MARGOT ADLER: In Florida, in 2000, the list of felons was inaccurate. As a result, many claimed they were wrongly denied the right to vote. Inaccurate felon lists were in the news again this year in Florida. How can states make sure that felon voting lists are accurate?

JOE SANDLER: They have to invest the time and the resources to match convicted felons against accurate information that is identified further by social security numbers or other unique identifiers. I personally believe that people who have paid their debt to society should be allowed to vote. But I'm also concerned about states and state legislatures that have made the judgment that felons shouldn't be permitted to vote but they have the wrong people.

MARGOT ADLER: Ben, is [Democratic Vice Presidential candidate John] Edwards' claim that low turnout benefits the Republicans and high turnout aids the Democrats accurate?

BEN GINSBERG: I don't believe it's accurate in this election. The Republican National Committee has really undergone an unprecedented effort to register new people, far above what the Democrats have done across the nation, and, as the chairman of the Republican National Committee has said, the party's top priority is making sure that every qualified voter is allowed to cast his or her ballot and to have that ballot accurately counted.

MARGOT ADLER: If Republicans are accused of disenfranchising voters, Democrats are often accused of manufacturing voters. Vote early and often is a refrain that we've all heard and it probably owes its origin to democratic machine politics. How do you answer the charge that Democrats may be just as responsible for corrupt election practices?

JOE SANDLER: There's a real difference between the parties on this issue. The Democratic Party believes that if you are a United States citizen and you're 18 years old, you should be able to vote for President of the United States where you live. It's that simple. That's what the law says, that's what the Constitution guarantees, and we don't believe that voting is an obstacle course or a game where if you didn't check the right box or fill out the right line, that should be an obstacle to voting. [When] Republicans talk about voter fraud, they're really talking about trying to prevent people that are eligible to vote from being able to cast their vote.

MARGOT ADLER: Is that true, Ben?

BEN GINSBERG: No. This is certainly a hot button topic in this election. The Republican Party's top priority is to have every valid vote counted. But the truth of the matter is that there are issues with improper registrations. The Democratic National Committee essentially made the decision not to engage in state by state voter registration activities and to turn it over to outside groups that have paid individuals to register voters. The result of that sort of bounty paying of registrants is that we've seen across the country, especially in battleground states, a large number of registrations in which either the addresses listed are vacant lots or public buildings, where a number of the registrations are in the same handwriting, and other practices that basically lead [one] to believe that there is a possibility of fraudulent voting taking place.

MARGOT ADLER: Joe, is that characterization fair?

JOE SANDLER: It is not fair. It's a great Republican myth that there [are] substantial numbers of invalid voter registrations. We just recently went through a case in New Mexico where the Republicans were trying to force newly registered voters to show identification at the polls or even to have to find a Xerox machine and copy their driver license and mail that in when they vote absentee in a situation where the law didn't require it. And to show why they had to impose this ridiculous obstacle to newly registered voters being able to vote they came in with five or six examples of what they called voter fraud. Every one of them turned out to be legitimate [registrations]. There [are] not substantial, persistent kinds of fraud that justify the systematic efforts that we've begun to see from the Republican Party and from some Republican election officials to disenfranchise new voters.

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