Polls show this could be one of the closest presidential elections in U.S. history. With the country so closely divided, the process of voting has come under increased scrutiny. Lawyers on both sides of the political divide are poised to respond immediately if a court challenge is needed. Hurricane Sandy has inserted additional uncertainty into the process. Norm Ornstein of the American Enterprise Institute,Richard Hasen of the University of California, Irvine,and Michael McDonald of George Mason University join Diane to discuss the latest early voting statistics, the potential for voter fraud and possible instances of voter suppression.


  • Norman Ornstein Resident scholar at the American Enterprise Institute and co-author of "It's Even Worse Than It Looks."
  • Richard Hasen Professor of law and political science at the University of California, Irvine, and author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown."
  • Michael McDonald Associate professor at George Mason University and non-resident senior fellow at Brookings Institution.


  • 10:06:54

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Polls show this could be one of the closest presidential elections in U.S. history. Amid accusations of voter intimidation and fraud, both parties are preparing for legal skirmishes. Lawsuits have already been filed in Florida and Ohio. And the aftermath of Hurricane Sandy presents further complications. Joining me for a look at the current status of the election, Norm Ornstein of the American Enterprise Institute.

  • 10:07:29

    MS. DIANE REHMJoining us from KPCC in Pasadena, Richard Hasen, he is professor of law and political science at the University of California, Irvine. And by phone from Northern Virginia, Michael McDonald of George Mason University and the Brookings Institution. I do invite you to become part of the program today. Give us a call, 800-433-8850. Send your email to drshow@wamu.org. Follow us on Facebook or Twitter. And good morning to each of you.

  • 10:08:09

    MR. NORMAN ORNSTEINGood morning, Diane.

  • 10:08:10


  • 10:08:11

    PROF. RICHARD HASENGood morning.

  • 10:08:12

    REHMGood to have you all with us. Norm Ornstein, let me start with you. What happened in Florida over the weekend?

  • 10:08:21

    ORNSTEINWell, we've had a curtailment, very significantly, of early voting, including weekend voting in Florida. And what happened was a refusal to extend the hours or even to expand the number of polling places in places like Miami-Dade County resulted in absurdly long lines that actually lasted for six hours or more until the wee hours of the morning after polls had closed.

  • 10:08:44

    REHMAnd why did that happen?

  • 10:08:47

    ORNSTEINLook, you know, there's a simple reason for it. The Florida election officials and Gov. Rick Scott, the Republicans, didn't like the idea of substantial voting on the weekend and early voting, which is usually something that benefits African-American and Hispanic voters who go to church and then vote afterwards. They've curtailed the hours. They say they're staying narrowly within the confines of the law.

  • 10:09:13

    ORNSTEINBut we had other examples even of harassment, apparently, in some places where there was no parking available around the one spot where early voting could take place. You had police swooping in and ticketing or towing cars for people who had come to vote, people standing in line for six, seven or eight hours. And, of course, many of them gave up and went home.

  • 10:09:36

    REHMMichael McDonald, what about Ohio where Republican election officials are going to court today. What's happening there?

  • 10:09:49

    MCDONALDWell, we have quite a bit of early vote that's already been cast within Ohio. We've had over 1.6 million people cast ballots, and those are reports from earlier in the week. And so we haven't gotten the last updates from early voting over the weekend where, just like Florida, we were seeing long lines. The good news for Florida, at least in terms of the early vote, is that it did go more smoothly than, at least reportedly than -- so far than Florida, but still long lines and a curtailment of hours just much like that of Florida as well.

  • 10:10:32

    MCDONALDThe Democrats had to sue in order to get early voting hours this last weekend, and -- but there had been no early voting hours any weekend prior to this last weekend. And it did appear to have a depressing effect on in-person early voting. But where the Obama campaign, and also the Romney campaign, have perhaps taken advantage on -- of other opportunities is through mail balloting. And so we've seen higher levels of mail balloting in Ohio.

  • 10:11:06

    MCDONALDBut then, we get into other problems with the way in which the elections are running Ohio and especially on things that the secretary of state has done to -- and perhaps, you know, there could be allegations of suppression here as well.

  • 10:11:22

    MCDONALDFor example, with those mail ballots, if someone provides an email address or a phone number to help election officials sort out any problems with the ballot, the secretary of state said election officials, even though voters are providing that information, they can't use an email address or a phone number to talk to a voter with the problem, and they could only communicate with them via mail.

  • 10:11:48

    MCDONALDSo those are the sorts of things. Now, we're in litigation over how provisional ballots are going to be counted, and we'll have to see where that goes. But the good news, however, with those provisional ballots is that likely more of them are already going to be counted than they were in 2008. The court decision so far have favored something that's called the right church, wrong pew situation where there are multiple polling places within one place and people would sometimes be directed to the wrong location and cast a vote in the wrong location.

  • 10:12:22

    REHMI see.

  • 10:12:25

    MCDONALDThose will be counted this time, but what we are concerned about and what the Democrats are concerned in looking at is whether or not if a voter doesn't provide all the information that they need to in terms of their identification on a provisional ballot, those ballots would be rejected. And so we'll have to see how that litigation unfolds.

  • 10:12:45

    REHMAll right. And turning to you, Rick Hasen, overall, why are we seeing this greater possibility for voting irregularities and challenges? What's happening around the country?

  • 10:13:01

    HASENWell, I think we can trace this back to the 2000 Florida debacle and to the fact that since 2000, the candidates, the campaigns have learned that making small changes in election lock can help in a very close election. We happen to have a very close election right now, and so all of these things are going under the microscope. Everybody is jockeying for just a little more of an advantage. And so I think that the fight's over.

  • 10:13:26

    HASENWhether provisional ballots are going to be counted, who's going to fill what in, fight's over. How many days of early voting, how many hours of early voting, all of these things are fights at the margin. But when you have national election polls showing the election within one point, then all of this stuff really can tend to matter.

  • 10:13:45

    REHMSo with early voting, what are the latest statistics on how early voting in this election, Rick, compares with early voting in 2008?

  • 10:14:00

    HASENI'm afraid you'll have to ask Michael that question. He's the one that keeps the statistics. And I should tell you, I'm not hearing Michael through my earpiece, so hopefully he's -- he can answer your question.

  • 10:14:09

    REHMOK. And I hope the engineer there at KPCC can help you with that. Michael, can you answer that question?

  • 10:14:21

    MCDONALDSure. So we found so far, and these are just these states and localities that have reported information, we have almost 300 -- excuse me, 30 million people have cast ballots so far. The true number is higher than that because there are states that have delayed reporting and some states aren't reporting yet. I'm forecasting based on what the information we've seen so far. Forty-six million votes will be cast prior to Election Day in this election.

  • 10:14:49

    REHMAnd how does that compare with 2008?

  • 10:14:53

    MCDONALDWell, it was roughly -- I'll pull up the statistics here just for a second. So we were looking at 42 million in 2008, and that was 32 percent of the total ballots cast in that election. So we are going to be at 46 and -- with a slightly lower turnout that I'm forecast -- well, not overall turnout in terms of percentages but just only 133 million voters voting in this election versus 132.6 million in the last election. We're only looking at an increase from 32 to 35 percent in terms of the early vote margin.

  • 10:15:33

    REHMSo in which states have you seen the highest turnout of early voters?

  • 10:15:41

    MCDONALDWell, we've actually broken records in many states already, so states like North Carolina, Iowa, you know, two of the critical battleground states. We've already broken through the levels that we saw in 2008. That also goes -- that's also true for Nevada as well. And then we've even seen some non-battleground states already surpass their 2008 numbers, places like Louisiana, Maryland and Montana.

  • 10:16:07

    MCDONALDAnd keep in mind, we still have mail ballots that are coming in, so these aren't the final numbers that we're seeing. So we're likely going to go up even further, and we're going to see more states most likely break their records as well.

  • 10:16:20

    REHMSo, Norm Ornstein, what is all this early voting indicate?

  • 10:16:25

    ORNSTEINDiane, before I get to that...

  • 10:16:26


  • 10:16:26

    ORNSTEIN...I want to mention one anecdote that shows a level of problem that's even greater than what we've been talking about. My father-in-law's caregiver has a daughter who lives in Florida. She is an immigrant from Jamaica, became a citizen four years ago, went to register to vote, and a couple of weeks ago, was told she would have to send her driver's license to Tallahassee to get it verified.

  • 10:16:50

    ORNSTEINHad to go make several visits, multiple phone calls, then was told she was probably OK, but she would have to wait for formal verification from the Department of Motor Vehicles in Tallahassee. Got a phone message over the weekend saying, this is the Department of Motor Vehicles calling, but didn't tell her whether she was actually eligible to vote, had to get up first thing this morning and wait on the line. And there were undoubtedly multiple others involved in this.

  • 10:17:17

    ORNSTEINMost people would just get discouraged and say, why would I do this? And you can see that there are a lot of ways in which you can suppress votes of those you think are going in a different direction. Now, beyond that, the early voting -- obviously, both parties are mobilizing, and they're mobilizing to target their voters to get them out. We have more and more states that have moved towards additional early voting. We have some states, as Michael knows, like Oregon, which are all vote-by-mail.

  • 10:17:48

    ORNSTEINAnd it's -- there's a difference between early voting where you actually go to a polling place and you have a zone of privacy and a vote-by-mail, which you can cast from anywhere and people can look over your shoulders. There's a difference in terms of the security. But it's pretty clear that the convenience of early voting is becoming a larger phenomenon except when, as in Florida this past weekend, it is extraordinarily inconvenient.

  • 10:18:14

    REHMBut the question remains in a lot of people's minds that you need a voter ID or an ID to board an airplane. You need an ID to cash a check. What's the big deal?

  • 10:18:31

    ORNSTEINWell, the fact is that for 95 percent or more of Americans, it's not a big deal. But if you're elderly and you don't drive, if you're poor and you have to go to a check cashing place, you don't have one of those IDs, and that suppresses their votes.

  • 10:18:46

    REHMNorm Ornstein of the American Enterprise Institute. Stay with us.

  • 10:20:03

    REHMAnd welcome back. We're talking about the many obstacles, hurdles, conditions that voters are going to have to face when they go to the polls. Some 30 million have already voted. Norman Ornstein is here in the studio. He is with the American Enterprise Institute, co-author of "It's Even Worse Than It Looks." Richard Hasen joins us on an ISDN from KPCC in Pasadena, professor of law and political science at the University of California, Irvine, author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown."

  • 10:20:58

    REHMMichael McDonald joins us by phone from Northern Virginia. He is associate professor at George Mason University and a non-resident senior fellow at the Brookings Institution. Richard Hasen, going to the title of your most recent book, do you believe that we could be headed for an election meltdown in 2012?

  • 10:21:31

    HASENWell, if you're talking about for the presidential election, then the odds of that happening in any one election are pretty small because what has to happen is what happened in Florida 2000, which is that the margin has to be very close in absolute terms, close enough that there'd be something to fight over in terms of these provisional ballots or absentee ballots or long lines or something else. And it would have to be in a state whose votes matter to the Electoral College outcome.

  • 10:21:56

    HASENSo all of those things coming together is, I would say, not a likely event in any one election, but it's going to happen in one of our presidential elections going forward. If not now, it could be 2016 or 2020. And we haven't taken the basic steps that we need to take to lessen the odds of something like this happening.

  • 10:22:16

    REHMAnd, Norman Ornstein, here's a tweet, "The Department of Justice needs to federalize voting in Florida. We also need to see voter intimidators and fraudsters going to prison." Who is doing the intimidating, and how are they doing it?

  • 10:22:39

    ORNSTEINWell, there are a variety of ways in which the voter intimidation takes place, some of it coming from private sources. We've had numerous instances at this point of billboards going up in minority neighborhoods, basically saying, if you vote falsely, it's fraud. You could go to jail, but -- things that are designed to block people from voting. We've had dirty tricksters who've sent around things suggesting that vote on Election Day, Nov. 8, for example. You also have people show up outside polling places who attempt to intimidate.

  • 10:23:17

    ORNSTEINBut let's face it. The biggest problem is not things like that. It's officials who use a position. We are the only country with partisan election officials. There are example after example in Rick's wonderful book, "The Voting Wars," that look at how this distorts a process when you have -- it's the equivalent of having a National Football League game where the referees are part owners of one of the team.

  • 10:23:44

    ORNSTEINAnd when you can intimidate voters -- look at the example that I gave of this poor person in Florida, forced to jump through those enormous hoops or people who get to the polls and are wrongly told. As we've seen now, orders go out in some states that they need a particular kind of voter ID when they don't. Examples in places like Ohio, where they're -- actually, here in neighboring Northern Virginia, where they're changing the normal practice, where a party can have observers inside the polling places.

  • 10:24:15

    ORNSTEINAnd if somebody's given wrong information by a poll worker, be told that that was wrong, they're now being given a gag order that they can't talk to them. You know, things like that are troubling.

  • 10:24:26

    REHMRick, do you want to add to that?

  • 10:24:29

    HASENWell, I would just say that I agree with Norm that there's a lot of emphasis on these dirty tricks, but what we really need to focus on is how officials run elections. And from the poll workers all the way up to the secretary of state, in many states, it's not just partisan. The bigger problem here is not partisanship but incompetence. And so if you look at what happened in Miami yesterday, the state has already said no early voting. But then Miami went ahead anyway and said, we're going to allow in-person absentee voting as a way to get around it.

  • 10:25:01

    HASENAnd then they didn't have enough ballots. And they obviously had not contacted the police department to arrange for adequate parking. You had these people being ticketed. And then you had the mayor declaring that he was opposed to this in-person absentee voting, and election officials decided to it against his will. So, you know, it's kind of a -- everyone wants to see these problems as acts of malfeasance, attempts to suppress the vote.

  • 10:25:25

    HASENWhen I think most of the time, the problem is one that people just don't know what they're doing. And when you're on the losing end of that, you tend to attribute that to somebody acting nefariously.

  • 10:25:36

    REHMMichael McDonald, how likely are we going to see a recount somewhere?

  • 10:25:46

    MCDONALDWell, I first like to just respond to this whole thread that we've been talking about in terms of the election officials. I do -- let's, though, give a lot of credit to our election officials. They are working very hard right now. Some of them in Northeast are working under extremely difficult circumstances to make sure that people can vote. And, you know, sometimes well-intentioned people, you know, make mistakes.

  • 10:26:09

    MCDONALDBut, by and large, on Election Day, I -- most voters experience will be a very smooth, orderly process of voting. That's also been true with the early vote that's been cast so far. So, you know, we get the microscope out. We can see all the warts. But -- and we concentrate on those things. But, by and large, I mean, the dog that doesn't bark is going to be many, many, many places around the country where things are going to go very well.

  • 10:26:39

    MCDONALDAll right. So let's go into the trouble cases again of potential recount situation, say, in Ohio. You know, Ohio -- this election really does come down to Ohio. There are various scenarios for the candidates to win the Electoral College. But almost all of those roads, all those pathways go through Ohio one way or another. Obama has a few more options than Romney does if winning the Electoral College without Ohio.

  • 10:27:05

    MCDONALDBut we're still likely going to be sitting around waiting for the results in Ohio. And there's a good chance that the numbers won't be decisive enough on Election Day to declare a winner. One of the things that we have in Ohio is a large number of provisional ballots are expected. Over 2,008 were cast in 2008. Most of those were provisional ballots that were for -- what they do in Ohio, they allow anybody that's registered to vote to re-register at a new polling location if they've moved over the past -- since the last election.

  • 10:27:40

    MCDONALDAnd -- but they -- the election officials have the voter cast a provisional ballot just to make sure the person didn't try and vote a second time at their other location. Most of those ballots get counted. So it's a very orderly process. Again, they're just making sure that there's no fraud in the system. But with over 200,000 of those ballots out there, those are not counted until 10 days after -- until after the election.

  • 10:28:06

    MCDONALDSo if the -- the margin is very close in Ohio, the very first hurdle that we're going to have to get over is the provisional ballots to be counted. And then once those are counted, then the parties would make a determination as to whether or not they would challenge with the recount. And maybe Rick would know exactly what the recount lies, what margin you have to be in, but it has to be very close.

  • 10:28:26

    MCDONALDOne thing about these provisional ballots, too, is that, although this is not Ohio, if we look at other states that report separate precincts for the provisional ballots, we see that they tend to break for the Democrats. And so you can imagine then during that counting process, 10 days after the election, if it's been within that margin for the election outcome, you will see the lawyers sitting down and challenging every provisional ballot as it comes up to be counted by election officials.

  • 10:28:52

    MCDONALDIt will be Florida, like we saw in 2000, with the guy staring at the ballot to see whether or not, you know, the dimpled chad count. It'll be whether or not that signature matches and whether other identification has been reported.

  • 10:29:06


  • 10:29:06

    ORNSTEINYou know, I lived through the recount in Minnesota, the Al Franken-Norm Coleman contest, where they narrowed down the challenges to a relatively small number of votes but then spent months. It was seven months, you know, looking ballot by ballot and adjudicating.

  • 10:29:23

    REHMSurely, we're not going to have to go through this.

  • 10:29:25

    ORNSTEINAnd -- well, you certainly hope not. And I think the odds are that we won't have to go through that. I think there's a pretty good chance that it'll be decisive enough that we won't. But if it isn't, we had something like 200,000 provisional ballots cast in Ohio the last time around. If you have an election that's within 200,000 ballots, and this time around, it's likely to be more of them, and you then get into a ballot-by-ballot contest, it's a nightmare of immense proportions.

  • 10:29:53


  • 10:29:54

    HASENYeah. So the problem with the Minnesota recount, which was done very -- I think it was done very well -- is the length of time. We don't have that length of time because by early December, we've got to have those Electoral College votes set. This was the big deadline that pushed everything in Florida to the U.S. Supreme Court.

  • 10:30:12

    HASENAnd so what concerns me is that we can either do the counting of these ballots accurately or we can do it quickly. The best thing would be not to have so many of them. And if we do have a lot of them, I think that's right. It's going to be an additional set of weeks before we even get into the possibility of a recount.

  • 10:30:31

    REHMAll right. What about Hurricane Sandy, Norm? What effect is that likely to have on voting generally, on voting specifically?

  • 10:30:45

    ORNSTEINYeah. Well, first, let me join Michael in the kudos for so many election officials who are bellying up to the bar in cases of extraordinary stress and trying to make sure that people have the ability to vote. We saw this in the aftermath of Katrina where Louisiana election officials did an incredible job of getting people who had to flee the state and giving them the opportunity to vote. And we're seeing some extraordinary measures here, some of which are controversial.

  • 10:31:10

    ORNSTEINGov. Chris Christie has basically opened up the possibility, opened up the opportunity for people who are caught in this vise to vote by -- to do faxes or use electronic voting, the same thing that's available to some overseas military voters so that they can get expedited ballots and then figure out a way to deliver them. You know, there are some questions about the legal authority to do that. I don't think anybody is going to much challenge it, but you get into some gray areas here.

  • 10:31:48


  • 10:31:48

    ORNSTEINAnd obviously, too, we're going to see some greater opportunities for people to be able to cast absentee ballots, to be able to find other ways to vote. But this has, you know, thrown a monkey wrench into some of the works. And while it's true that many of the instances where voting would be disrupted are in states where it's not going to matter in the presidential contest, we have close Senate races in many instances.

  • 10:32:13

    ORNSTEINYou have examples of voters in places where the electricity has been out in Cuyahoga County in Ohio. You've got a potential for at least a small number of voters in New Hampshire. These are not inconsequential.

  • 10:32:25


  • 10:32:27

    HASENYeah. So I agree with just about everything Norm said, except for the fact that he said that he doesn't think any of this is going to get challenged. I do think that if there is a very close congressional race or a very close...

  • 10:32:36


  • 10:32:37

    HASEN...local race that the decisions that are being made now on the fly to figure out how to allow these people to vote, decisions that I support, could end up in court. We could be having election contests based upon whether or not New Jersey election officials have the authority to extend the vote this way.

  • 10:32:55

    HASENAnd it points out something that Norm's been saying for years and that I recently wrote about, which is states and the federal government need to have a disaster plan for election time. We had voting suspended on 9/11 in New York. We've had voting suspended because of Katrina. We know this is going to happen again. We need to fix it.

  • 10:33:14

    REHMAnd you're listening to "The Diane Rehm Show." Michael, there have been lots of concerns expressed about voting machines. Are we prepared sufficiently with paper ballots and enough people to count them?

  • 10:33:38

    MCDONALDWell, in some ways, the paper ballots are the better way to go if you've lost electricity because then you don't need to power the machines. So certainly it's -- in many of these jurisdictions, they're probably looking at paper as a backup in the way in which they're going to vote. I -- you know, we're looking, I think, now in the future. I mean, when you look at the Internet voting that's going on in New Jersey, that's emergency.

  • 10:34:07

    MCDONALDBut also there's -- right now, there's electronic voting going for -- on for military and/or overseas civilians in states like Nevada -- I mean, excuse me, North Carolina, where people literally -- I mean, they are receiving the ballot by email. They're printing it out. They're filling it out. They're scanning it. They're putting that back into the email, and they're sending it back to election officials.

  • 10:34:31

    MCDONALDCertainly I think electronic means is the future. We've -- our innovations in voting generally have come first with the military. Even early voting -- I mean, absentee mail balloting was first done for the soldiers during the Civil War. So I think that's the future, and what we need to do is figure out how to do all the challenges to our -- to these new technologies that can make things go awry.

  • 10:35:03

    MCDONALDAnd I've -- you know, I've written on problems with programming computers. I do a lot of programming myself, and I know that it's not really my concern so much about, with the electronic machines or email delivery, something nefarious going on. I'm more worried about incompetence again. And you do need to be sure that those machines are programmed properly and they're calibrated properly, and a lot of things can go wrong there.

  • 10:35:30


  • 10:35:30

    MCDONALDBut same thing with paper. You can still mark things wrong, and you do see a higher error rate of people failing to vote for races on paper than you do electronically. So, you know, you're -- you've got these different things. There are pluses and minuses for all of them, but certainly we need to think this through and figure out how to improve our administration of elections.

  • 10:35:51

    REHMAll right. There have been a number of questions raised not only by our listeners, but around the country about the Romney family owning the company that owns the voting machines in Ohio. Number one, is that true, Norm, and, number two, does that raise cause for concern?

  • 10:36:20

    ORNSTEINI think it's partially true, Diane, that there are some machines, at least where the service contracts have been handled by a company where there's a Romney participation, and there are some machines, I think, that are related to that. Most of the machines, I believe, were done by or were handled by another company. There's a controversy that's been raised by an alternative newspaper in Ohio about whether the secretary of state illegally did a contract with another company with Republican ties to change the software in some of the electronic machines without it being vetted in advance.

  • 10:37:03

    ORNSTEINI really have no clue as to whether there's more to this that hasn't been picked up, so far as I can tell, by most of the other newspapers in Ohio or by the Democratic Party. But, you know, we had -- we have very few companies that make voting machines. And, of course, one of the controversies that emerged after the Help America Vote Act when we got all these electronic machines was whether they could be tampered with. That's why we've moved more towards these optical scan ballots back again.

  • 10:37:31

    REHMAnd more on that when we come back, also your telephone calls, your email. I look forward to speaking with you.

  • 10:40:03

    REHMAnd it's time to go to the phones, 800-433-8850, first to Miami, Fla., where an awful lot of activity is taking place. Melo, (sp?) you're on the air.

  • 10:40:21

    MELOHow are you doing, Ms. Rehm?

  • 10:40:22

    REHMGood. Thanks.

  • 10:40:23

    MELOThis thing now here is horrible. And, you know, I'm a history buff, and we have a horrible history in suppressing votes in this country. And the idea that you have these legislators, these governors, involving themselves in this, implementing these types of rules and policies that has had the effect that it has, it's shameful. It really is shameful, and I hope everyone is paying attention to this because, you know, we're supposed to all be Americans. But I really feel more black than I do American. Thank you.

  • 10:40:59

    REHMThank you. And, Norm Ornstein, how much of this kind of activity is taking place in Democratically-led states as well as Republican-led states?

  • 10:41:16

    ORNSTEINSure. Well, you know, we have to start, Diane, with recognizing that we don't have a lot of angels out there who would be willing to lose just so they could expand the vote to include everybody. Parties use hardball tactics. But the fact is that generally speaking, what you see in Democratic states is an attempt to expand the vote as much as they can and, in some cases, to remove some safeguards from doing so.

  • 10:41:40

    ORNSTEINBut in this case, almost every instance, if you look at voter ID laws with the exception of Rhode Island, they've all been passed on a virtual pure party line basis and ratcheting up the stakes, making it harder to open up polling places. This time around, partly because I think we've seen a sharp expansion in the number of states with Republican Party control from top to bottom, it's coming more along those lines.

  • 10:42:08

    ORNSTEINRemember that back in the 1950s when we had the suppression of African-Americans votes, it was Democrats doing it. It was those Southern conservative Democrats like George Wallace and Bull Connor who were involved in it. So it's not that it is just a party effort, but in this case...

  • 10:42:26

    REHMIn this case.

  • 10:42:26

    ORNSTEIN...it tilts much more on one direction.

  • 10:42:28

    REHMRick Hasen.

  • 10:42:30

    HASENYeah. I just -- I want to emphasize something Norm said about no angels here. It's in the Democrats' self-interest to have an as expansive an electorate as possible. So while Democrats can take the high road, it also happens to be the road that helps them expand the electorate. That's why in California, for example, we've had Democrats but not Republicans supporting a move to Election Day registration.

  • 10:42:51

    HASENAnd I also have criticized Democrats for not getting behind efforts in the off-season when we don't have the risk of disenfranchising voters to clean up the voter rolls. We know we have a small problem of noncitizen voters. Those people should be removed from the voter rolls in which you do it when there's not this kind of risk. But Democrats have not showed any interest in doing that.

  • 10:43:10

    REHMAll right. To Sue in Grand Rapid, Mich. Good morning to you.

  • 10:43:17

    SUEDiane, thank you for taking my call.

  • 10:43:19


  • 10:43:20

    SUEYou have such a wonderful show, and it really hits the spot today.

  • 10:43:23

    REHMThank you.

  • 10:43:24

    SUEI've decided to vote absentee. I'm over 60. And I received a ballot which had Mitt Romney and his running mate in the first position and president -- well, it didn't say president. It said Barack Obama and Joe Biden in second position. And then that was one thing that I thought was not right, but since Michiganders don't have access to law libraries -- because only lawyers do in Michigan -- I looked at the top of the ballot, and it said general election.

  • 10:44:07

    SUENow, this, in my opinion, is not a general election. It's a presidential election. So two things that I thought should be against the law, but I don't know whether they are or not...

  • 10:44:19

    REHMAll right. Let's ask Michael McDonald whether, in fact, listing Mitt Romney and his running mate first violates anything.

  • 10:44:35

    MCDONALDWell, first there's a concern about it because people who do this sort of study of ballot design find something called the primacy effect. And if people have no other information about candidates, they'll often just choose the first name that's listed on a list. But the good news for presidential elections is that people have a lot of information about the candidate, so these sorts of primacy effects, which you might see in a local race, appear to be less prevalent in a presidential race.

  • 10:45:06

    MCDONALDSo we might be concerned, we might not be concerned too much about that in this instance. The rules governing the placement of candidates on -- in the name order vary across the states. So I don't know, and even sometimes they vary within states 'cause we have election administration not just at the state level, but a lot of it is just at the local level.

  • 10:45:27

    MCDONALDAnd a lot of -- that's -- so many of these decisions are being made locally. And I don't know exactly what the rule is for on the woman's particular jurisdiction. However, there could be any number of reasons why. Sometimes jurisdictions actually randomly have the names ordered on the ballots by precincts or some other ways...

  • 10:45:48


  • 10:45:49

    MCDONALD...to mitigate the primacy effect. And so I don't know if that's what's going on in Michigan or if the Romney campaign was just the first to submit their petition or what it was that why Romney might be listed first.

  • 10:46:01

    REHMInteresting. Thanks of calling, Sue. To -- let's see, Fort Wayne, Ind. Good morning, Rebecca.

  • 10:46:10

    REBECCAGood morning. I'm a long-time listener, and I just want to thank you for your show and your never-ending civility.

  • 10:46:16

    REHMThank you.

  • 10:46:17

    REBECCAMy mother and my grandmother live in Elkhart County which surprisingly carried for Obama in 2008. They both early voted on two different days and were asked by the poll worker for their last four digits of their Social Security number. The worker said, I'm required to ask, you're not required to tell me, which struck them as odd. They said no and voted anyway. The local paper looked into it and talked to my grandmother and the clerk.

  • 10:46:47

    REBECCAThe clerk said that it's state law. I did some research. I saw nothing in state law that that's the case. I saw Social Security numbers linked to voter registration but not voting itself. I'll listen to the response off the air. Thank you.

  • 10:47:02

    REHMAll right. Rich Hasen.

  • 10:47:04

    HASENWell, there is a federal law that requires providing that -- those last four digits or a driver's license number if you've registered by mail and you've never shown up to vote before. So there are limited circumstances where these numbers could be requested. But, you know, there's a tremendous amount of variation. I can't tell you what the law is in Indiana, but I can tell you that there's lot of confusion out there.

  • 10:47:28

    HASENAnd so here's one of the things that gives more pause along the same lines. In Pennsylvania where the race may be closer than some people think, the voter ID law that was passed there was put on hold but only partly on hold. So now election officials must ask everyone for ID. But if you don't have an ID, you're still allowed to vote. And so this just seems to me as a recipe for confusion.

  • 10:47:53

    HASENPoll workers are going to be told, ask for the ID and -- but then they're instructed, so let people vote. And I bet there are going to be some people who are not going to be allowed to vote because they lack the ID. And -- it's just -- and up to a few weeks ago, there were billboards, you know, put up by the states saying you need to bring your ID to vote. And so it's just -- there's a lot of confusion over these kinds of rules.

  • 10:48:14

    HASENAnd when this is being done on a local level, you know, we have nothing else like Election Day where we roll out this massive operation for just one day with people, some of whom are trained well and some of whom are not, and so those kinds of things can really muck up the works when -- especially when the rules are changing just before the election.

  • 10:48:31

    REHMAll right. And here's an email from Dana in Arlington, who comments, "Boarding an airplane, cashing a check are not constitutional rights. Requiring an ID for those activities is not wrong, but requiring an ID is wrong and is a way to suppress the vote of those who are unable to obtain those cards. Is voting a constitutional right?" Norm.

  • 10:49:08

    ORNSTEINNo, it's not. We -- there is nothing in the Constitution that says that there is a right to vote. We have provisions obviously involving voting rights of particular groups and empowering women, those of over 18 and the like to vote, but there is no constitutional right to vote. And it's an area of controversy 'cause, of course, when people sue here over whether their votes are being suppressed or it's being made more difficult, they have less traction as a consequence.

  • 10:49:39

    ORNSTEINI should add, Diane, that, you know, I'm unalterably opposed at all to voter ID laws. What I am opposed to is voter ID laws where either the ID itself, the supporting documents to get the ID, are not free but are costly. The ability to obtain one of these IDs is extremely difficulty if people have to travel great distances or have limited hours to do so. And it seems to me there's an easy way to get around this in a way that I've going to pitch more heavily next time.

  • 10:50:13

    ORNSTEINAnd that is that people can -- providing proof that it is their Social Security number be able to get a photo on their Social Security card, obtained widely and for free and have that available as a voter ID. You don't have to have everybody do it, just those who don't have a photo ID. And I think that we could do it relatively easily and cheaply, and then not have some of these problems that we have now.

  • 10:50:37

    REHMRick Hasen.

  • 10:50:39

    HASENYeah. I want to go back to the question about the right to vote. And I want to point out that it's especially troublesome and corky when it comes to the presidential election where the U.S. Constitution's Article 2 gives state legislatures the right to determine how electors are chosen. Back in the 2000 Bush v. Gore case, the Supreme Court said, look, the legislature could take it away at any time and cast those votes.

  • 10:51:04

    HASENAnd I talked about this a little bit in the piece I had last week in relation to Sandy. What happens if the next hurricane hits the day before Election Day, and you can only have voting in part of a state? Could the state legislature decide? Well, that election wasn't done fairly enough. We don't care who's in the lead. We're going to just decide how to cast our state's electoral votes anyway. And it would create a huge mess. And that's why we need to have some contingency plan, something in a background rule to tell us what we need to do in the case of a disaster that hits just before Election Day.

  • 10:51:36

    REHMTo Victor, N.Y. Hi there, Sandra.

  • 10:51:40

    SANDRAHello. Yes. Thank you. My husband and I are fans of yours. We listen a great deal because it's always so intelligent and civil...

  • 10:51:48

    REHMThank you. Thank you.

  • 10:51:50

    SANDRA...which people especially appreciate listening to your guests, and it really brings home to me how complicated it is because all the states are involved.

  • 10:51:59

    SANDRAAnd while I understand that many people feel that they want to keep the government out of their lives unless they need them, the central government, the U.S. government, I just wonder if we couldn't simplify federal elections for presidents and senators, to make the rules strict and controlled by the federal government rather than the states because there will always be people for some reason or another, as your one guest says, you know, they're incompetent, and there's a lack of training or sometimes, there is a wish to suppress votes from certain groups of people.

  • 10:52:37

    SANDRAAnd if it were -- if that were federalized and people were trained and there were strict to guidelines, we wouldn't have this nonsense of people making up last-minute rules, particularly governors. I just -- I can't imagine why that's legal.

  • 10:52:51


  • 10:52:51

    ORNSTEINI would like to see a separate federal ballot. First of all, you can avoid all the ballot design problems, the butterfly ballot and the like. You have one, two or three races, president, Senate, House, and it can be held separate. Any of the controversies over provisional ballots for people who turned up at the wrong polling place, for example, in theory, their presidential vote is counted, but it's much better to have it separate and clean.

  • 10:53:15

    ORNSTEINAnd all of these issues of how state set up some of their counting elements and what's required could be done at the federal level for federal cases. Let's states do what they want for state elections, and we can simplify things enormously if we did that. But, you know, the tradition of leaving this up to the states is a very strong and deep one.

  • 10:53:35

    REHMAnd you're listening to "The Diane Rehm Show." Rick Hasen, I know you want to add something.

  • 10:53:43

    HASENYeah. I just wanted to say that lots of changes to electoral rules are hard. Like if we wanted to get rid of the Electoral College, it would require a constitutional amendment or something akin to that. But when it comes to imposing uniform federal rules for congressional elections, the Constitution gives Congress the power to do that. It says if Congress doesn't act, the states can come in with their rules. And for the most part the states do, but Congress has the power.

  • 10:54:07

    HASENIf they were the political will, we could pass something tomorrow. The problem is not a legal one, but it's a political one. Since 2000, it's been very hard to get Democrats and Republicans to get together for sensible election reform. And if I could say it in one sentence, this is what we want. We want to have an election system where the person running the system believes that all eligible voters, but only eligible voters, should be able to cast a vote, which will be accurately counted.

  • 10:54:32

    REHMAll right.

  • 10:54:33

    HASENIt's a very simple proposition.

  • 10:54:34

    REHMAnd finally to Cleveland, Ohio. Bob, I gather you got a gripe.

  • 10:54:42

    BOBYes. My, you know, our biggest gripe here is the -- that everyone uses the term alleged, and that just kind of drive us nuts here. It's not alleged. It's -- I won't say a plot, but it's blatant. And, you know, it's not the Democrats that are doing it. You have the statements from the gentleman in Pennsylvania, the gentleman in Wisconsin, even here in Columbus.

  • 10:55:03

    BOBThe gentleman made a statement that, you know, there's no need to, you know, help them early vote. And so, you know, I think part of the problem is if we look at it -- you know, do we need people in sheets to do it, to -- you know, it just drives us nuts here that -- just continued to call it alleged because it is blatant, and it is a concerted effort.

  • 10:55:25

    REHMMichael McDonald.

  • 10:55:26

    MCDONALDWell, here's the good news for the Democrats, which is that although the Republicans in Florida and Ohio put up roadblocks in terms of the early vote, the Obama campaign, you know, remarkably actually got out the information to their voters and changed some of their behavior. And so we've seen more Democrats voting by mail than we have in previous elections. And so, again, good news is that we've had a large number of people vote in Florida. We had a large number of people vote in Ohio. We've cleared out a lot of people already, and many of those votes -- we can already look into the system.

  • 10:56:03

    MCDONALDThey were accepted. So the overwhelming majority of these votes have not been challenged in some way. We know that the election officials have accepted those ballots. So when we get tomorrow on Election Day, again, the good news for the Florida and Ohio is that we've already processed a lot of vote, may be upwards to half of it in Florida, may be upwards to 35 or so percent of it in Ohio. And that will clear the way for Election Day. And so the lines will be, you know, there will be heavy voting in these states but, hopefully, the lines won't be as long...

  • 10:56:36

    REHMAll right...

  • 10:56:36

    MCDONALD...as they were -- let's say, would have been otherwise.

  • 10:56:39

    REHMAnd what does that early voting tell us? Quickly, Norm.

  • 10:56:44

    ORNSTEINWell, the early voting is probably in the states that matter an advantage to President Obama at this point because they made that kind of effort. But it also tells us that we got a broken system, and Congress should come back and do another version of the Help America Vote Act, a better one next year. The odds are not great, however.

  • 10:57:03

    REHMWell, I'm going to keep hoping and pushing that some changes are indeed made. Norm Ornstein, Richard Hasen, Michael McDonald, thank you all so much. Thanks for listening, all, and don't forget to vote tomorrow. It matters. I'm Diane Rehm.

  • 10:57:26

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Nabors, Rebecca Kaufman, Lisa Dunn and Jill Colgan. The engineer is Erin Stamper. Natalie Yuravlivker answers the phones.

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