Election Day 2010 has come and gone, but that still doesn’t mean we know who the winners are. Many races were extremely close, and numerous precincts still have yet to finish counting all their ballots. Although I wish we could fix the holes in our protection of the right to vote that might affect all races today, for example, the fact that between a quarter and a third of eligible voters are not registered to vote. In moving forward, it’s particularly instructive to examine how our system works in the closest of our elections now.

This election brought stories of voting machines malfunctioning, election officials not printing enough ballots, etc. Certainly we know that a large numbers of voters in several states claim to have experienced problems when attempting to vote.

1-866 Our-Vote, the national voter help hotline, has reported more than 300 separate instances of voters who have called in to report problems with their voting machine in the 2010 election – almost certainly the tip of a bigger iceberg, as most people don’t take the time to call after problems. You can read outlines from the many callers, from California, to Texas, to Pennsylvania, as they explain their various problems in casting their vote. The errors, from machines breaking down and causing lines after polling places closed, to broken touch screens that were attempted to be fixed by untrained poll workers, to voters claiming their ballot did not properly reflect their vote choice (switching it to candidates from other parties, for example), occurred throughout the day and well into the night. The following is a highlight of some of the larger incidents. 

In Bridgeport, Connecticut, where the Governor’s race remains in dispute, several polling places ran out of ballots. Only 20,000 ballots were ordered for an area with 75,000 registered voters despite two highly competitive statewide elections and number other contests that might bring people to the polls. The Board of Elections was apparently trying to save money, even though Bridgeport has experienced issues with materials running out in the past. This year, ballots needed to be rushed to polling places around Bridgeport, after polling places ran out of paper on which to vote. 

As a result, a Superior Court judge ruled that the polling places could stay open  two hours later, to compensate for the delay in voting, if the ballots were kept separate as provisional ballots. Many people were left  on long lines waiting for the arrival of the f emergency ballots. Republican attorneys are challenging the ruling, however, saying that it was biased for the largely Democratic Bridgeport area during a close governor’s race..

These Bridgeport voters  were forced to either cast no vote or wait  hours to do so, and often made the decision to leave without voting. Right now, such poor planning is all too possible -- it seem as unfortunate, rather than a crime. As voters have no enumerated right to cast a vote, and the lack of ballots apparently was not designed to disenfranchise any protected class such as race or gender, there is no constitutional argument that can currently be made to explain why the polls were required to stay open later to accommodate the overflow of people wanting to participate in their government. While it is fortunate voters were able to cast a ballot after an egregious error on the part of the Board of Elections, their ability to do so was tenuous at best.  

Next door in New York, new optical scan polling machines led to concerns about incorrectly cast ballots, especially with ballot designs that, in some cases, did not seem to have been well-tested for usability. While these new machines were used in primaries, this was the first general election test of the machines in a large scale statewide election. Previously, New York had used antiquated lever machines that had their own problems, but at least were familiar to voters. 

This year, in addition to each machine taking up to an hour to “boot up”, several voters experienced surprise at the machinery used to vote. Each ballot, after being marked, must be fed by the voter into a counting machine. This required sliding the ballot several inches into the machine until the mechanisms inside catch the paper. This process apparently confused some voters,  who did not know the machine wouldn’t catch the paper immediately.  This caused delays, and voters expressed concern that their marked ballot showing their choice in the election were out in the open as they asked for help using the machine. Since the machines read the ballot using sensitive electronics, the marked ballot had to be fed into the machine without any covering, with the risk of exposing each voter’s choices to those near the machine. Since many voters needed to ask for help from officials, this meant that these voters likely did not cast a secret ballot. 

Also, many New York voters who were elderly or have vision problems communicated concern the font used was too small to read, and required using the magnifying sheet to properly read, or found it necessary to ask for outside help. 

Down the coast in Maryland, an elections Judge noticed his touch screen machine had recorded his vote for a candidate

other than the one he preferred. He was able to catch and correct the error, but all candidates in the elections are concerned about potential voters who did not catch the error. As seen in reports from 866-Our-Vote, machines nominating a candidate other than the voter’s candidate of choice became a frequent concern in many states across the county.  

Stepping back from these particulars, some forty million fewer people voted in this election than in 2008 - -dropping turnout to just over 40% of eligible voters. While such a decline is the norm in non-presidential years, it remains a concern – and suggests that we need to do more to prepare our young people and new citizens to be active participants in our democracy, as a fully realized right to vote demands.

Without clear constitutional protections, each individual citizen’s right to have a vote cast properly on Election Day is not constitutionally ensured. Such missteps as those stated above, can and should be avoided with proper investment, training and attention to the mechanics of our elections. Voter apathy could be at least partially addressed with better civic education, starting in schools but continuing into adult life with resources like voter guides. Until voting becomes a specifically enumerated right, we can expect to see such concerns continue.