Chad’s Dangerous Legacy (The New Republic & The Weekly Standard) November 1, 2004

Before November 2000, few Americans knew about chad–hanging, dimpled, or pregnant. But as surely as a blue dress and an ill-fitting glove symbolize historic legal cases, chad has come to represent legal wrangling over voting and the presidency in 2000.

Unfortunately chad lives on. No, I’m not referring to the fact that nineteen states will use paper ballots in the 2004 election. Chad’s larger and more dangerous legacy is the myth that voting must be uniform and perfect; if not, the courts will become the election arbiters.

The U.S. Constitution makes voting a matter for state legislators, not federal courts. Article I, Section 4, of the Constitution provides that states will set the place, manner, and time of voting, expressly allowing for state authority and diversity, not federal uniformity, in elections.

But chad’s torturous journey through state and federal courts in 2000 opened the floodgates for a host of other legal voting challenges this year. The question chad raised–whether certain balloting methods are improper under the equal protection clause of the Constitution–is now posed in various forms across the country, raising the specter of federal judges overruling state elections and creating national uncertainty.

Provisional ballots–a remedy aimed at some of the 2000 problems–are already being challenged in courts. Are differing state standards for voter identification fair? If a state uses paper ballots, or some untested new voting technology, are its voters’ ballots more likely to be lost, or not properly counted, and therefore treated unequally? Some go as far to wonder wether the Electoral College process renders their vote less equal in state strongly favoring one candidate compared with a vote in the battleground state. All these questions are fodder for the thousands of new volunteer campaign lawyers and proactive federal judges.

Must election processes be uniform from state to state in order to be fair? The U.S. Constitution clearly answers no, expressly providing for state liberty and diversity in voting methods. Those who would prefer federal uniformity in elections must take that issue first to Congress, which retains a right of oversight in elections, and ultimately to the states themselves to approve a consititutional amendment.

Must voting methods be perfect in order to be fair? Again, the answer must be no. At the moment experts cannot even agree on which methodologies produce acceptable results. Far more work and funding are needed to determine what really improves the voting process, an effort Congress only began with the Help America Vote Act of 2002.

In the end, we need confidence in our elections and democratic processes far more than we need perfect or uniform voting. Let the Constitution’s allocation of voting methodologies to the states and the efforts of Congress to identify and fund improved balloting processes do their proper work. And let the campaign lawyers and federal judges take an electoral chill pill, allowing the presidency to be settled by processes the Constitution established and the candidates understood and accepted.

This essay appeared on October 19, 2004 PittsburghLive.com, in the November 1-8, 2004 Weekly Standard, the November 8, 2004 issue of New Republic.