Bar News - October 17, 2008
Book Review: America Votes! A Guide to Modern Election Law and Voting Rights Benjamin E. Griffith, Editor
By: A Book Review by Alexandra Meise Bay
Having town meetings and enjoying the privilege of holding the first in the nation primary, we in New Hampshire have a greater interest in and understanding of elections than most. Many Americans never considered the structure and practicalities of voting in this country until Florida’s hanging chads of the 2000 presidential election made voting techniques the topic of family dinner conversation. For over a month, the world waited to find out who the next president of the United States would be. While we waited, we received a crash course in how Americans vote differently in different regions and states and how subtle changes in voting regulations could have a direct effect on the outcome of an election.
The 2004 election saw the addition of new voting machines and new laws that were supposed to fix many of the problems of 2000. Unfortunately, problems continued, and although many have promised that additional reforms will ensure a smoother 2008 election, others worry that this election will have its own hanging chads.
It is in this renewed spotlight on America’s voting system that the American Bar Association brings us America Votes! A Guide to Modern Election Law and Voting Rights. Edited by Benjamin E. Griffith (Chair of the ABA Section of State & Local Government Law), this peer-reviewed volume brings together practitioners, government officials, and the public interest community to analyze and discuss the current state of our election system, voting rights legislation, election technology, and identify the system’s problems and pressing issues.
It is not organized like a typical legal reference – instead of detailed case studies it presents voting issues in the United States through academic articles written by both practitioners in other professions and lawyers. The book is organized into seventeen chapters, each a free-standing article by a knowledgeable author. These chapters are grouped generally by topic, including: issues raised by the 2000 and 2004 elections; the Voting Rights Act and its renewal; election day activities and obligations; voter registration challenges; minority language rights; use of experts in election litigation; voting technology; the Help America Vote Act’s origin and impact; and the role of election officials in local and federal elections.
The authors’ backgrounds vary and represent the spectrum of those involved in election law and policy. The list includes political science professors, directors of minority rights groups, law professors, directors of democracy-building organizations, solo practitioners and lawyers in firm practice, bar association attorneys, judges, directors of election-related institutes and think tanks, and the chairman of the Federal Election Commission. There are several policy points on which the authors do not agree, but therein lies one of the beauties of the book: the book gives equal voice to differing policy viewpoints. The persuasive reasoning is (generally) supported by excellent citations, which give the reader confidence in what he is reading and the information to draw his own conclusions.
Perhaps most relevant to this year’s election and most interesting to the casual reader are the chapters on the Help America Vote Act, voting technology, and lessons learned from the 2000 and 2004 elections. At the time of the 2000 presidential election, the United States federal law regulating electoral vote disputes was well over 100 years old. As a result, in Bush v. Gore, the Supreme Court was left to interpret the antiquated and little known law: the Electoral Count Act of 1887. In the wake of Bush and the problems with the Floridian chads that preceded it, Congress passed the Help America Vote Act (HAVA). HAVA sought to regulate all aspects of American elections, including the types of technology used to make ballots and count votes.
Among its many provisions, HAVA authorized $325 million of new spending to replace punch-card and lever-action voting machines throughout the United States. The Act also demanded that each state predetermine what constituted a "legal vote" in the state (based on the technology in use) and create a procedure for providing provisional and affidavit ballots. HAVA took effect in January 2006, so this November will be the first time its impact will be seen in a presidential election. If this election is as close as expected, all Americans’ eyes will be watching as HAVA-based regulations and technology are put to the test.
Although it may be heavy in weight and in price for the casual reader, this book is approachable for both the practitioner and the uninitiated. This is not just a resource for those who teach election law, election officials, or law practitioners. This book is appealing to anyone interested in learning more about our election system, some of the reasons why we had such problems in the last ten years, what other problems are smoldering, and how future policy changes may improve the system.
Lastly, as undoubtedly this book’s authors would do, I urge every eligible voter to register and vote in this year’s election.
Meise Bay is an associate in the International Arbitration and Litigation Practice at the Washington, DC office of White & Case LLP. Through her work in international political development, she has been involved in elections in Bosnia, Albania, Kosovo, Macedonia, and Yemen. In the U.S., she has monitored elections in New Hampshire and Virginia. She has been member of the NH Bar since June 2008.