Gilda R. Daniels, Statement before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Lessons Learned from the 2004 Presidential Election (July 24, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273217.
Statement Summary: Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, “voting irregularities” and “election protection” and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act, and the National Voter Registration Act, (NVRA), problems persist in the operation of our participatory democracy.
What we have witnessed since 2000, particularly during the 2004 election, gave us some reason to hope but also reason for concern. Although outdated voting machines were not the primary problem in 2004, the use of electronic voting machines birthed new concerns about accuracy and reliability, along with questions regarding poll workers’ ability to master the technology. This election enjoyed its share of election administration problems such as the misuse of provisional ballots, overzealous poll watchers, and ill-advised voter purges.
Many of the calls received or infractions observed on Election Day do not rise to a legally actionable level. After any election, however, no immediate remedy exists for the mistakenly purged voter or an uncounted provisional ballot. Disenfranchisement, however, occurs one voter at a time and can create a pattern for a jurisdiction or a political party that should be addressed and thwarted well before Election Day. In light of the problems and issues with the last two Presidential elections, it is vitally important that the Department use the full breadth of its statutory authority to act proactively to ensure that our democratic process provides every eligible citizen the opportunity to access the ballot and ensure that the ballot will be counted.
After the 2000 election and certainly by 2002, the Civil Rights Division, Voting Section shifted its focus from enforcing the voting rights of minorities under Section 2 of the VRA, as evidenced in the lack of cases brought on behalf of African-Americans, to enforcement of Section 203 for language minorities, the protection of overseas and military voters under UOCAVA, HAVA compliance and voter integrity (fraud) issues. In fact, this administration brought the first case pursuant to Section 2 on behalf of white voters in Noxubee, MS. This lack of enforcement of the Voting Rights Act would indicate a well documented shift away from enforcement of statutes that require free and full access to a new emphasis on restricting the ballot in the name of integrity. This must be corrected.
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