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A historian on our broken election system: “it’s run by people with stake in the outcome”

He wrote a book on the Bush v. Gore recount. Here’s his take on the 2018 midterms.

Voting booths. Paul J. Richards/AFP via Getty Images

Is America’s electoral system broken? The answer, according to professor Charles L. Zelden, who wrote a book about the 2000 election recount, is a resounding yes. Zelden, the author of Bush v. Gore: Exposing the Hidden Crisis in American Democracy, believes the presidential election of 2000 exposed a deeply damaged electoral system, one that continues to affect elections such as the 2018 midterms.

Nearly two decades have passed since that landmark election, and yet, according to Zelden, “the fundamental problems that made us broken in 2000 haven’t been dealt with.”

This year’s Florida’s Senate election resurfaced many of these issues. The race was neck and neck for more than a week after the election — until Sunday afternoon, after the results of a court-mandated hand recount were submitted and Republican Rick Scott edged out Democrat Bill Nelson by just 10,000 votes. Meanwhile, Georgia’s gubernatorial race was undecided until Friday, when Democrat Stacey Abrams announced she would end her campaign yet refused to call it a “concession,” arguing that the election process was critically flawed.

I asked Zelden about the importance of the Supreme Court decision in Bush v. Gore, how the recount issue has become politicized, what could be done to prevent this problem and preserve US democracy in the future, and more.

Our conversation has been condensed and edited for clarity.

Hope Reese

The Senate race in Florida called for a hand recount, which finished at noon on Sunday. What have we learned from this?

Charles L. Zelden

The key lesson is that close elections point out all of the flaws in our vote counting procedures — from poor ballot design to tight vote counting deadlines to voter suppression and a fundamental distrust of the process by many Americans. This is made worse by the rhetoric of politicians who are ahead in the vote and want the vote to end now, at any cost, undermining faith in the electoral process.

Broward County — where there was a recount issued in 2000, as well as today — got its votes in early because they didn’t find many ballots for which to contest the will of the voter. Recounts only work when the vote is very close. Even a 0.15 percent gap is wide when you’re talking 8 million ballots cast. For Nelson to have won, he needed something to have been fundamentally wrong with the “undervotes”/“overvotes” and for these problems to be fixable via a hand recount.

It turns out that there was something fundamentally wrong with the undervotes in Broward County — most likely as the result of poor ballot design — but this was a problem that a hand recount could not fix. Nelson needed for the problem to be machine error; this was not the case. Most of the undervotes were blank.

Hope Reese

Going back to the 2000 election, can you remind us why the Supreme Court decision in Bush v. Gore was significant?

Charles L. Zelden

The 2000 election came on the heels of the impeachment of Bill Clinton — it was a highly charged period. The rumor before the election was that Gore was going to win the Electoral College vote and Bush would win the popular vote. The opposite happened. Because it was so close, and because the emotions were so high, there was a lot of excitement and a lot of tension over the election.

The vote out of Florida was super, super close. It looked like Gore had won. Then they turned back. Then they said, “Wait a minute, these numbers are shrinking.” At this point, Gore has already conceded by phone to Bush.

Meanwhile, word is coming out about voter problems. Ultimately, the Gore people started looking for recounts, but there was no procedure for a statewide recount. They had to go to individual canvassing boards from individual counties and request recounts.

Bush comes in and files a federal suit saying that these hand recounts are horrible, that we should trust the machines. And, in essence, both sides started fighting not only a legal battle to get the votes counted but a public relations battle over legitimacy of the process. If you’re ahead, the theory is that you want to end the recount as quickly as possible. If you’re behind, you want to extend the process and count as many votes as possible.

Bush was ahead. Gore was behind. Those were the strategies they took. It got ugly.

Hope Reese

At this point in American electoral history, had this never come up before?

Charles L. Zelden

There were known problems with the IBM voting system. Widely used in elections across the country, the IBM machines were a well-established technology in use since the 1970s. They were, however, flawed in concept — we knew in the ’90s that there were a lot of spoiled ballots. Anywhere from 0.5 percent to 3 or more percent of ballots would have not registered a vote or would register an overvote. Basically, as they machines got older, the rubber backing on the machine, which would allow for the chads to be pushed out of the card, got hard and did not allow for full displacement — just dimples, which the machine could not read as a valid vote.

Yet despite these flaws, states across the nation used the system because it was cheap, easy to use, and most elections had a victory margin greater than the number of spoiled ballots.

The supervisor of elections in Broward County went to the board and said, “These machines aren’t accurate. We can’t count every vote. We need to replace them.” The board said, “How much would it cost?” He said, “$20 million.” They said, “Where will we get the money?”

So they kept the machines.

But spoiled ballots don’t matter if the gap between victory and loss is larger than the number of spoiled ballots. The situation in Florida was that the count was so close, and we didn’t have a system that was capable of counting them. Up until now, we had been lucky.

Hope Reese

What has Florida done to improve since the 2000 election?

Charles L. Zelden

The Supreme Court basically said that you need to use a uniform method of determining the will of the voter when you run elections, and that Florida didn’t have that. It was too decentralized, there was too much variety, too much individuality in the process, that it didn’t meet the requirement of equal protection. But then they said, “Don’t use this case as a precedent.”

In 2000, over a third of absentee ballots were flawed in some manner. They weren’t properly witnessed, they weren’t properly signed, they didn’t have the proper mailing date, they didn’t arrive in time. We set up rules to simplify that process, but now we have so many more absentee ballots coming in that the boards are looking at it, and now what they’re looking at is does the signature match what’s on file versus what’s on the envelope? The only way they can tell it’s a valid voter is if the signatures match. But people making decisions are not experts in signatures, and people’s signatures change over time.

If I wrote “Charles L period Zelden,” and I didn’t put the period after my initial when I signed the ballot, technically that would be [disqualified]. Or if I wrote “Charles Lewis Zelvin,” my full name, it doesn’t match.

What we’re fighting over now isn’t the counting of the votes, but which votes get counted.

Hope Reese

You’ve been living in Broward County for the last 25 years. Do you have any kind of particular insight into this area or why it is happening there again?

Charles L. Zelden

South Florida is very large. We have a million people voting in Miami-Dade County, 800,000 people voting in Broward County, and roughly 600,000 people voting in Palm Beach County. 800,000 people is roughly the population of the state of Wyoming. A lot of them now are absentee ballots, which are more time-consuming and more difficult to deal with. So the first thing to understand, it’s simply complicated because of numbers.

And yes, we have a bigger supervised elections office than you would in a county with 100,000 voters, but the mass increases the complexity. It’s not just a question of running them through a machine. You have to go by hand and determine if they’re a valid ballot or not. That takes time and effort.

Hope Reese

How is it possible, though, in a country like ours, that we don’t have a more standardized or high-tech universal voting system?

Charles L. Zelden

Well, blame the founders. The problem when they wrote the Constitution is how do we run elections? And they couldn’t come up with a good answer. If they came up with uniform federal standards, that would impinge upon the sovereignty of the states. And at the time, they couldn’t accept it. Not to mention, we did not have an effective bureaucracy to do this.

They basically said to the states, “You run elections.” There are requirements that we impose on federal elections, such as the age of the voter, certain requirements for ballot design, certain requirements for registering voters, that you cannot exclude people based on race and gender — but those still leave it to the states to run the election the way they want to. They determine how we register voters, and how we organize the vote, they pick the voting machines, and they determine who votes and who doesn’t.

Now, Florida’s always had a very decentralized electoral system. We run elections at the county level, as if each county is its own separate principality. They design the ballot, organize the election, train their personnel, count their ballots. They determine what is or isn’t a valid ballot and then send the numbers to the state.

Since 2000, we created more uniform requirements statewide. In 2000, there were no state laws for recounts — you needed every one of the 88 counties of the state to do a recount. Now we have uniform rules, but we still leave it to the local counties to do the work: to count, organize the vote, to count the vote, to design the ballot. So different counties have different ballot designs. Counties have different counting machines in terms of their age and their effectiveness. The problem the court argued about in Bush v. Gore — that we didn’t have uniform standards — is still a problem in Florida and in many states.

Hope Reese

You called our electoral system “broken” in 2000. Is that still true?

Charles L. Zelden

The lesson of 2000 wasn’t that we had broken election machines — we had a broken electoral system. We did go to the doctor after the election of 2000. He got us on a weight loss plan, got us exercising, bought us new equipment, and knee braces, and a back brace. But the fundamental problems that made us broken in 2000 haven’t been dealt with. We still have a system that is too decentralized, too antiquated, and too likely to break down when the votes are razor-thin.

Hope Reese

When it comes to obstacles to voting in Florida and Georgia — the long lines, the broken machines — how does this current election fit into the history of voter suppression?

Charles L. Zelden

Basically, if you’re a white male over 21 who happens to be Protestant, you’ve never had a limit on your voting. Otherwise, everyone else at one point or another has been excluded from the vote in this country, historically.

We struggle with inclusion because ultimately, our country doesn’t want everyone to vote — we want the right people to vote. We don’t want noncitizens to vote, we don’t want children to vote, but we also don’t want people who we don’t think have a stake in society. And so some of us don’t want people who are black to vote, or women to vote, or people who are poverty-stricken to vote.

We’ve been fighting over whether to include these groups or not, and once we include them, [we get] this process that I call “administrative gerrymandering,” where you gerrymander the procedures by which you organize and run an election by changing the number of precincts or the machines you use. By fiddling with the rules, you can shave points off of who counts and what the outcome of the vote is.

When it’s close, these things matter. So in Georgia, all the people who’d been purged from the voter rolls had an impact on who got to vote. Here in Florida and other places, if you only put two machines in a precinct and everyone shows up, the lines are long. People have to turn away because they gotta go to work. Whereas in precincts with seven machines, there’s no wait, no line — everyone votes.

Hope Reese

What happens when people in positions in power, or people who are themselves up for election, make decisions about who can vote or whether there’s a recount?

Charles L. Zelden

The biggest problem we have with our electoral system is that it’s run by people with stake in the outcome. The laws are written by legislatures that are filled with politicians who will run for office under these rules. The top elected official is appointed by our governor who is also a candidate in the Senate race. So, just like gerrymandering districts, we gerrymander the rules by which we run elections, and it’s done for the same partisan reasons with elections, with districting. That undermines effective democracy.

Before every election, there’s something called the election supervisor’s prayer. Every election supervisor, no matter what their religious value, says this prayer. It basically goes, “Please, Lord, let it not be a close election.” The minute it gets razor-thin, everything falls apart. The system isn’t designed to work when votes are this close together. Unfortunately, this happens a lot in Florida.

Hope Reese

So Trump — who doesn’t always behave like a typical president — weighed in to end the recount. What do you think the role of the president should be in this situation like this?

Charles L. Zelden

In 2000, Bill Clinton didn’t say a word, even though this was a fight for his replacement and his vice president was one of the two candidates. In most cases, presidents keep very quiet on this sort of thing. That stated, however, there were lots of people in 2000 speaking on behalf of the president and the party. And people were saying ugly and often untruthful things. Again, the fight in a contested election is on two levels: the practical level of the law and the vote counting, and then the public relations level where you talk about legitimacy. In 2000, the legitimacy fight, the PR fight, was brutal. It was a knife fight being fought with shotguns.

Today, it’s a knife fight being fought with machine guns. Lots of collateral damage. But the lesson the partisans took out of 2000 was you fight for every vote. Never give up. And we’ve got a president for whom winning is the only thing.

Hope Reese is a journalist in Louisville, Kentucky. Her writing has appeared in the Atlantic, the Boston Globe, the Chicago Tribune, Playboy, Vox, and other publications. Find her on Twitter @hope_reese.

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