Whose Vote Counts?
By Rebecca Perl, Jamie York and Michael Montgomery
The Promise of Electronic Voting
Voting problems are nothing new. More than 100 years before Florida's election controversy, American democracy was in crisis, brought on by rampant ballot stuffing, vote buying and other electoral shenanigans. The era was epitomized by men like William Boss Tweed, a Democratic party kingpin in New York City. Tweed is reputed to have said it wasn't voters who determined elections, but those who counted the votes. But at the close of the 19th century, a technological innovation promised a solution to voter fraud. A clip from a 1957 promotional film describes the new machinery.
"Mr. Citizen moves the operating lever to the right. Which unlocks the machine and locks out the world. For the first time the secret ballot is really secret. His vote is made and cast untouched by other human hands or minds and that's a long step up from tyranny."
Mechanical lever machines, first patented by Thomas Edison, promised absolute security and accuracy by using interlocked rotary counters instead of paper. By the 1950s, nearly half of America's voters were using lever machines.
Only a decade later, the computer revolution led to the use of punch cards, a seeming resurgence of the paper ballot. But the 2000 presidential election exposed serious problems with punch cards. As a result, America is on the verge of another voting revolution.
Sleek, fully electronic machines with color consoles similar to bank ATMs are spreading across America. Manufacturers claim the machines offer near-perfect accuracy and many election officials are enthusiastic about their results so far; but there have been problems. When touch screens debuted in Florida in 2002, elections in the state's two biggest counties were thrown into chaos.
TOUCH SCREEN PROBLEMS
An investigation by Miami's inspector general concluded the elections were a debacle. Poorly trained poll workers and malfunctioning machines led to long delays in calculating final results in Miami-Dade and Broward counties. While the results in those two counties were not contested, there were challenges in other counties. In Palm Beach County, home of the infamous butterfly ballot in 2000, officials tried to play it safe and test the new machines in seemingly low-stakes municipal races.
As the polls began to close on an early spring day, complaints started rolling in to the office of Charlotte Danciu, an attorney in the wealthy, beachfront community of Boca Raton. Danciu's father, Emil, was a Republican former mayor competing in a four-person race for two slots on the city council.
"They were touching the screen and it was coming up somebody else's name," describes Danciu. "The poll workers were doing things like pulling the plug out of the machine and they were kicking the machine. And then, because there's no receipt, people were saying, 'I don't know what my vote recorded as.'"
Emil Danciu lost the council race, even in his home district. The Dancius suspected malfunctioning touch screens mistakenly gave votes to Danciu's competitors. So the Dancius filed a lawsuit and they hired Rebecca Mercuri, a computer scientist and university professor who is an outspoken critic of electronic voting machines.
"The problem," explains Mercuri, "is that when the vote goes in, it's all invisible. It just gets converted into electrons. There's no physical thing. You can't open up the box and see that you're vote went from the thing you touched on the screen and is now recorded in the cartridge."
With Rebecca Mercuri at their side, the Dancius toured the storage facility that houses Palm Beach County's touch-screen machines. Mercuri suspected faulty computer software, and wanted to take a look inside the machines. She was most interested in looking at the computers' source code, which is a unique set of programing instructions created by the manufacturer.
Walking around inside the warehouse, Mercuri explains, "We were told again and again that all of these are protected by trade secrets. They are not required to reveal them unless a court authorizes that."
TOP SECRET SOFTWARE
The Dancius were shocked to discover that the machine software used to tabulate votes was shielded from the public as part of a $14 million dollar contract Palm Beach County signed with the manufacturer, Sequoia Systems of Oakland, California. Such non-disclosure agreements are common in the election world. Voting machine companies say they need them to protect their copyrighted program code from tampering and from the competition.
The Dancius weren't allowed to handle the actual machines used in the vote, but Rebecca Mercuri did get her hands on a demonstration model.
With a Palm Beach County election official nerviously looking on, Mercuri demonstrates how the machine could malfunction.
"See, I just did it again," Mercuri says. "Watch. You'll see. When you press two things, and you can see my fingers clearly aren't pressing that one... "
When she pressed her thumb and index finger simultaneously on two candidates' names, suddenly a third candidate was selected.
"I think that's a problem," noted Meruri. "I showed how it was possible using a touch screen to vote for something you didn't actually touch for."
This was precisely the kind of malfunction Mercuri suspected in the Danciu case. But Palm Beach County Election Supervisor Teresa Lapore told Mercuri it wasn't a malfunction. It was just a trick, she said.
"You're trying to trick the system," complained Lapore. "Normal persons wouldn't try to do that."
Lapore pointed out that voters could check their selections on a review page before the ballot was cast. Palm Beach County officials and the manufacturer Sequoia insisted the machines were just fine. Other officials suggested Danciu's complaint was really a case of sour grapes from a fading politician.
In the end, the circuit court judge dismissed the case. Though he agreed there were technical problems with a small number of voting machines, they weren't enough to change the outcome. And the judge said the Dancius failed to show evidence of deliberate fraud.
'THE PEOPLE HAVE SPOKE, THE BASTARDS'
David Dill, a professor of computer science at Stanford University, explains why this is important, "We need to satisfy the people on the losing end of an election that the election was fair and honest...There was a famous quote by Dick Tuck which was, 'The people have spoke, the bastards,' It was one of the least gracious concession speeches I've heard, but it has a positive aspect to it, which is that I lost the election fair and square."
The Dancius weren't satisfied they lost fair and square because without paper, there was no way to independently audit an electronic vote. David Dill takes this point further. Without paper ballots to check the integrity of the system, he believes a programmer could manipulate computer code common in many machines and throw an entire election, without anyone ever finding out.
"We're moving to a system that's computerized, " continues Dill, "where there may be a very small number of people, maybe even one person, who could change hundreds of thousands or even millions of votes around the country."
In the spring of 2003, David Dill launched a campaign to stop the proliferation of electronic voting machines--at least until they can produce an independent audit trail. His campaign got a boost in August 2003 when researchers at Johns Hopkins University reported uncovering serious security flaws in secret program code used in voting machines produced by the Diebold company, one of America's largest voting technology firms. Researchers were able to hack their way in to the computer.
"That indicates to me that the people who designed the software and the people who were supposed to be inspecting and certifying it just don't know enough about computer security to be dealing with something as sensitive as electronic voting," says Dill.
Diebold rejected the charges and said the study was biased. The company insists its machines are secure. But the study's worrisome conclusions have sent tremors through local governments.
REPLACING OLD MACHINES
One such local official is Ernie Hawkins, who, until recently, was chief of elections in Sacramento County.
"To my board of supervivors," explains Hawkins, walking into a large warehouse, "it sort of scares the bejesus out of them."
As he walks across the cavernous warehouse, Hawkins points to stack upon stack of mobile polling booths, their metal gleaming in the morning sunshine. They house the Pollstar punch card voting machines used by the county for more than 20 years. There are 7,700 of them in the warehouse.
Hawkins has to replace all the machines, but isn't sure how, or with what. New federal guidelines have not provided the answers. Hawkins says he never had any problem with the punchcard machines. But a successful lawsuit filed by civil liberties groups is forcing Sacramento and eight other California counties to abandon them. Though he likes some elements of the fully electronic machines, he's concerned about whether the technology is too young and its price tag, estimated at $30 million for his county alone, is too high.
"One of the major concerns is that as counties begin moving into high tech equipment and most of us without any high tech staff...where does that support come from?" asks Hawkins. "And if the support comes from the vendor - do you trust the vendor? If you have large companies essentially running elections in America, where does that leave us?"
During the summer of 2003, election officials from around the country gathered in Denver in a hotel ballroom draped with flags. Though it looked and sounded like a political convention, it was an annual conference and trade show of the International Association of Clerks, Records, Election Officials, and Treasurers (IACREOT).
As delegates gossiped and traded state pins, critics of electronic machines including David Dill and Rebecca Mercuri, organized a separate gathering in the same hotel. Their stark warnings about electronic voting drew not only front- page coverage in the local newspaper, it also brought on complaints from election officials and company executives attending the conference.
"I'm offended by the fact that they would even think that we would design and implement systems that had the potential to create a fraudulent election environment, " said Bill Welsh, chairman of the board of Elections Systems and Software.
ES&S bills itself as the world's largest producer of election equipment. Some 100 million ballots were counted on ES&S machines in the 2000 elections. Welsh says David Dill's doomsday scenario of a rogue programmer sabotaging a presidential vote, while conceivable in theory, ignores elaborate safeguards in the new machines, rigorous testing and America's complex election system.
"And to even think that there was an opportunity to influence the outcome of an election either through a machine manipulating the results or someone in this chain of about 1,000 people is absolutely ludicrous," continued Welsh. "I mean, you would have to have so many people complicit in that process that I would venture to say it's virtually impossible."
Other election officials agree, insisting that electronic machines will triumph over humans. Some say, 'The days of paper ballot, in the form of punchcards, are history.'
There is a middle ground in the debate. A multi-year study by scientists at MIT and Caltech found that problems with electronic voting were not more prevalent than with older systems, but criticized the machines as too secretive. The study also criticized electronic voting machines for failing to produce an independent audit trail. As a result, some manufacturers are trying to remedy that.
At the Denver convention, Guy Duncan, vice-president of technology at ES&S demonstrates a system that is an answer to critics like David Dill.
"This is actually a prototype unit that we've attached a printer to," explains Duncan. After tapping a screen, his sample ballot is cast. Within a few seconds, the machine also spits out a paper receipt detailing his selections. In a real vote, the paper would slide behind plexiglass into a locked box.
"So this system has created a voter-authenticated paper trail that allows the voter the make sure that their vote was cast as they intended," says Duncan. "Now the advantage to this is that it satisfies voters who say 'How can I trust that you're not manipulating my vote?'"
There is growing interest in machines, like these, that create what is called a voter-verified paper audit trail. But most of these systems are untested. They will not be available to election officials who are under intense pressure to retire old machines by 2004.
In spring 2003, after months of deliberation, Ernie Hawkins recommended Sacramento County put off a purchase of new voting machines.
The Board of Supervisors agreed and authorized an inexpensive upgrade to the existing system. Hawkins believes electronic machines are safe, but, he says that won't matter much if voters believe they are unsafe. Hawkins thinks that confidence in the integrity of the system is fundamental if elections are to be a success.
"It's the single most important thing government does, " explains Hawkins. "That's where we get our leaders, that's where we decide the issues, and it has to work and people have to believe that it works. If voters lose confidence in this process, they lose confidence in government."
To improve voter confidence and address the voting problems that were so prevalent in 2000, Congress passed the Help America Vote Act (HAVA), an unprecedented effort to tackle the reasons so many people are shut out of the voting process. President George W. Bush promised $3.7 billion to fund the act.
"Every registered voter deserves to have confidence that the system is fair and elections are honest, that every vote is recorded and that the rules are consistently applied." --President Bush, upon signing legislation to authorize HAVA, October 22, 2002.
Part of the money will pay for state of the art voting equipment. The machines must be user-friendly for both disabled citizens and non-English speakers. If there's a problem, provisional paper ballots, must be offered. The law also mandates that states have to keep accurate voter rolls and that they must adequately train poll workers.
But the problems America now has probably won't be fixed by November 2004, when we vote for our next president.
At last count, 20 states had yet to meet any of the Help America Vote Act requirements and no state currently meets them all. The money from Washington has been flowing at only a trickle.
"It's being robbed now of an opportunity to be implemented by the lack of funds," explains former President Jimmy Carter. "When President Bush recommmended his 2004 budget, what he recommeded to implement the law was only just third of what the Congress said is really needed."
Carter, who monitors elections across the world, along with former President Gerald Ford, co-chaired the commission whose findings were the impetus for the Help America Vote Act.
"After the 2000 election in Florida -- which was a debacle and an embarrassment to us around the world," explains Carter, "that flurry of disappoinment and contsternation and queries resulted in moderate refoms. Now the tensions and concerns have faded away."
The Carter-Ford commission found that while no system will ever be perfect, election officials generally agree that a good error rate is under one percent. Unfortunately, the error rate in American elections tends to be above 4 percent. Lloyd Leonard of the League of Women Voters says that this is totally unacceptable.
"In the last presidential election," explains Leonard "there were four states each decided by less than one half of one percent of the vote. We don't know who is winning because our system can't count the vote."
Disenfranchisement in America
What happened in Florida during the 2000 election shook Americans' confidence in our electoral process. But while the virtues of punchcards versus touch screens are debated, other flaws in the voting system get ignored. Some forty years after the civil rights movement, many Americans are still struggling to cast their votes.
In the spring of 1965, African Americans set out on a protest march from Selma, Alabama to the state capital in Montgomery. They were marching for the right to vote. They didn't get far. The first thing they saw as they left Selma was a sea of blue. The Alabama State Patrol had no intention of letting them cross the Edmund Pettis Bridge.
Major John Cloud of the Alabama State Troopers addressed the marchers, "This is an unlawful assembly. Go back to your church."
John Lewis, a young organizer was there as troopers advanced on the marchers, hitting them with nightsticks, trampling them with their horses and spraying them with teargas: "You saw these men putting on their gas masks..."
Across the nation Americans saw these violent, graphic images on television and many were outraged.
Soon after, President Lyndon Johnson signed the Voting Rights Act of 1965, which did away with literacy tests that kept blacks from voting across the South. The act also assigned federal monitors in areas where there had been discrimination and intimidation.
THE MIXED LEGACY OF THE VOTING RIGHTS ACT
In many ways, the act was a huge success. African Americans elected black politicians to office in places where just two years earlier, no blacks had been allowed to vote. Twenty years after being beaten and bloodied in Alabama, John Lewis became a Democratic Congressman from Atlanta, Georgia. But in 2000, Lewis was still having trouble voting.
Congressman Lewis planned to vote in his working-class neighborhood in southwest Atlanta as soon as the polls opened --at 7 am-- before he went to work.
Lewis, who'd been voting at the Venetian Elementary School since 1968, arrived to find the polling place was still closed.
"There were people waiting," he explains, "so I jumped in my car and drove downtown and went to see the head of the Board of Elections and told her the precinct was not opened and she said, 'we will get it opened right away,' but I came back here and it was still not opened."
As it turned out, the lone poll worker with a key was an hour late. And when the poll finally did open, nearly half of the machines turned out to be broken, so the waiting continued. While this may not seem like a long time to wait, it is too long for people who have to get to work or get their children to school.
"It makes me angry," says Lewis, "People worked too hard and long to exercise this right and now the right to vote is being delayed and when it's delayed it's denied."
MINORITY VOTES GO UNCOUNTED
Congressman Lewis says -- and studies support -- that financially strapped minority communities suffer from poorly run election systems more often than well-to-do suburbs because there's less money to hire poll workers, buy new equipment or make contingency plans.
Lewis wasn't the only one to have problems at the polls that day. Across Georgia, votes weren't counted because of broken equipment and incomplete voter rolls.
"We found that almost 94 000 votes for president were not counted in the state," says Cathy Cox, Georgia's Secretary of State. "That equaled about 3.5 percent of our total vote-- so proportionally, we were in worse shape than Florida."
In Atlanta, voters in downtown minority districts used punch card technology and six out of ten of their votes were thrown out. However, in the more affluent and white suburban Gwinnett County, the discard rate was only six out of every hundred votes. That's a ten-fold difference. One reason for the disparity is that in Gwinnett, the county could afford new voting equipment.
Experiences across the country were even worse. In inner city Chicago where the discard rate was the highest in the nation, nearly 40 percent of the vote was thrown out because of a decision not to allow voters to correct their mistakes. In St. Louis, Missouri, police were brought in to tell people whose names were missing from the rolls (due to an Election Board mistake) -- people who had been waiting in line for three hours so they could vote for president, that they wouldn't get the chance.
The vast majority of people whose votes weren't counted were African Americans, and this, says John Lewis is the result of a sad legacy.
"We may have the Act," Lewis explains, "but the scars and stings of racism and discrimination still exist - because these are the communities that tend to receive less resources.
SUSPECTED FELONS REMOVED FROM VOTER ROLLS
It was Florida's hanging chads and butterfly ballots that got all the attention in 2000, but there were other problems in that state as well.
Apostle Willie Whiting, a Tallahassee pastor, was stopped by a poll worker.
"He said, we have you listed as a convicted felon," explains Whiting. "You have been purged from our system, you have lost all your civil rights."
Whiting was one of thousands kept from voting in Florida by an aggressive purge list designed to keep ex-felons from voting. The purge yanked voters off the rolls if their name was similar to any former prisoner's name.
VOTING BARRIERS FOR THE HANDICAPPED
Problems at the polls are nothing new, but in some parts of the country, people complain that the laws enacted to fix the system aren't being enforced.
One such case is that of Elyse Nathan, a 50 year old petite blond woman. Because of multiple sclerosis, Nathan uses a specialized cane on wheels to get around. She lives in West Orange, New Jersey and in 2003 she was able to vote in the summer primaries at a new polling location without a problem.
But that was only after numerous phone calls, and an inch thick file of correspondence with election officials to get her polling place changed. She also had to live through an embarrassing scene the year before.
"My ballot says the polling place is handicapped accessible," explains Nelson. "And when I got there, I said I need help getting down the steps; so this elderly gentleman --one of the poll workers-- said 'we have this little ramp.'"
The ramp, which turned out to be a piece of plywood covered with outdoor carpeting looked unsafe and the poll worker who brought it out decided against using it.
Nathan waited while election officials tried to figure out how to accommodate her. Three hours later, she was unpleasantly surprised.
"I hear fire engines," recalls Nathan, "the sirens going and I turn around, I see the lights flashing, I say oh my goodness there's a fire in the church... and no, they were there to help me. These four very large firemen carried me down the steps and then waited for me to vote and then carried me back up the steps."
For Nathan, it's not asking too much to be guaranteed a polling place she can reach on her own. But poll workers where Nathan had trouble voting see it differently.
"She was told that its not handicapped accessible," said one poll worker.
"She just wants to make trouble, she is the only one here who couldn't manage," said another.
Or they added, she could have avoided an ordeal by voting absentee. But several studies have shown than absentee ballots are often only counted if their numbers would influence the outcome of an election.
A report by the General Accounting Office from 2001 found that in violation of the Americans with Disabilities Act, 84 percent of polling places still have impediments that make it difficult for some 30 million disabled people to get to the polls.
COUNTIES FAIL BALLOT TRANSLATION REQUIREMENTS
Another unenforced law is the 1975 amendment to the Voting Rights Act, which requires that in counties where more than five percent of the people have limited English skills, bilingual voting materials must be made available.
As a result of the amendment, Spanish language ballots are the law in Upper Manhattan where Rosa Lazano lives.
Lazano is a 78 year-old women originally from the Dominican Republic. Though she has been a citizen for almost 20 years, Lazano doesn't speak much English.
Her daughter, Actagracia Santos acted as her translator when she was asked about problems she faced when trying to vote. Lazano says that the ballot was in English, that there were no Spanish instructions and that the poll workers did not speak Spanish.
New York City election officials say they are working to make sure materials are translated throughout the city, but insist it takes time. Across the country, many municipalities say it's a matter of resources. Some politicians wonder if it's worth it.
Roy Blunt is Republican majority whip in the U.S. House of Representatives and a former Secretary of State from Missouri. He says that given the number of languages that immigrants speak, it's a problem that is not so simple to solve.
"You know English really is the principal language of legal communication in America," says Blunt. "You can accommodate some major language groups, but the idea that you'd be accommodating all major language groups is not as easy as you would think."
Blunt also supports a new federal voting requirement that, some say, will add yet another obstacle to voting: a new law that would require people who register to vote by mail to show identification at the polls. Lloyd Leonard of the League of Women voters says this new requirement could discriminate against some voters.
"Its clear," says Leonard, "that upwards of 10 percent of lower income people don't have identification. Older people tend not to have drivers licenses, people of lower income tend to either not have a drivers license or other forms of identification. While middle class suburban people do in fact have identification, there are poor people who don't have that sort of identification."
SIMPLIFYING THE PROCESS?
At issue is an argument about how easy it should be to vote in America. On one side of the issue tend to be Republicans like Roy Blunt.
"I don' think there is anything wrong in a society where you have to have ID to do almost everything asks voters to show that shows that they are who they say they are," says Blunt.
Make voting too easy and we will end up with fraudulent elections -- with dogs and dead people voting Blunt warns.
"This is no longer an agrarian society where the purpose of the election judges themselves is to know everybody," continues Blunt, "so to ask people for the kind of ID they would have to have to get a library card is not an unreasonable thing."
On the other side of the argument are Democrats like Congressman John Lewis.
"Voting should be as simple as getting a glass of water," says Lewis, "but we make it so hard, so difficult, so inconvenient. A lot of the states, especially in the South--you got to get registered, you've got to show ID, you've got to give your mother's maiden name..."
Lewis thinks it should be easier, and describes what he would like to see, "Maybe, just maybe, if you're born in this country or you come to this country or (when) you become 18, you are automatic registered."
Felons Struggle to Vote
Today, nearly five million Americans are barred by law from voting at all because of a felony conviction. (A felony is any crime that carries a sentence of a year or more in prison.) The disenfranchisement of criminals is based on an ancient notion of "civil death." People who committed certain crimes were literally banished from the community.
Today the notion is still alive, but the laws vary from state to state. For example, in Maine, a convicted murderer may vote while still in prison, but in Virginia, someone arrested for selling drugs when he was 18 may never vote again. An American suffrage movement-- voting rights for felons -- could make a considerable difference in upcoming elections.
In New York state, there are nearly 70,000 prisoners behind bars, most of whom serve their time in the rural areas north of New York City. Yet overwhelmingly these prisoners come from just seven neighborhoods in the city.
A CRUSADE FOR FELON VOTING RIGHTS
Jazz Hayden grew up in one of those neighborhoods. He's one of 130,000 prisoners or parolees in New York state who can't vote because of a felony conviction.
"You in Harlem now. We on hallowed ground," says Hayden. "It's referred to as the black man's capitol of America. Home to Adam Clayton Powell, Malcolm X..."
As Hayden explains it, just about everyone in Harlem has a brother or a nephew or a cousin who's locked up. In New York, as across the country, there are more blacks imprisoned than whites. Though blacks only make up 15 percent of the state population, they make up more than half the prison population.
Hayden was born poor, but Harlem was good to him. He ended up owning a building on the block where he grew up.
"I had a club here it was called the Taurians Two, it was a major club in Harlem back in the 70s," remembers Hayden.
But somewhere along the line, something went horribly wrong: in the summer of 1987, Hayden was arrested for stabbing and killing a sanitation worker and was sentenced to prison where he spent the next 13 years.
In prison, Hayden had a lot of time to think and read. He got a masters degree in theology. He also filed a lawsuit against the state on behalf of prisoners in New York.
THE ROOTS OF FELON DISENFRANCHISEMENT
New York's disenfranchisement laws date back to 1846. But most states passed similar laws in the years just after the civil war.
Marc Mauer is the assistant director of the Sentencing Project, an advocacy organization for prisoners in Washington DC.
"In the late 1800s," explains Mauer, Southern legislators were adopting felon disenfranchisement laws with the specific intent of excluding black voters. Absolutely at the same historical period when poll taxes, literacy requirements were being adopted by many of Southern legislatures as well. All with the express purpose of disenfranchising black voters--so much so that one Southern legislator at the time referred to the felon disenfranchisement laws as almost an insurance policy."
Today these laws still affect African Americans disproportionately. Nationwide, one in eight black men are barred from voting. From state to state, the laws vary considerably. Only Maine and Vermont allow prisoners to vote -- the other 48 states don't. Some U.S. states also take away the voting rights of those on parole or probation. And in a dozen states, voting rights are permanently taken away from anyone who has committed a felony; a punishment unheard of in the rest of the Western world.
FIGHTING FOR RIGHTS IN HARLEM
It's these laws that Hayden is determined to change. On Saturday mornings, he has a radio show on inmates and criminal justice.
After the show, he continues to talk about the issue on the streets of his Harlem neighborhood. One of the people he stops to talk to is Abdula Aziz, a martial arts teacher and friend of Hayden's.
Hayden: We're asking the general question, Should they have the right to vote?
AZIZ: We just don't want rapists or people that's done unspeakable crimes to try to influence our decision-makers when it come to putting people in positions...
HAYDEN: Now what would your response be when over 85 percent are us-African Americans and Hispanic? Now every time they take a busload of people out of Harlem, and they send a busload upstate it discriminates.
AZIZ: As a man, let me say, I'm going to retract my statement (laughs)...
Hayden is very convincing. The NAACP Legal Defense Fund thinks so too. They've taken up his cause and his suit has become a class action on behalf of black and Latino prisoners and parolees in New York and the communities they come from. The suit charges the law is discriminatory and unconstitutional.
Janai Nelson is a lead lawyer on the case. She sees the issue in the context of history, part of a long and continuing struggle for voting rights.
"We excluded women for a long time," explains Nelson. "We excluded non-property holders, we excluded other minorities-- despite the fact that this is really the bedrock of our society. It really shouldn't be viewed any differently then any other struggle for suffrage in this country."
VICTIMS' RIGHTS ACTIVISTS SPEAK OUT
That's not how Janice Grieshaber sees it. To her people who kill deserve little sympathy. Her daughter Jenna was killed in 1997 just one week before her graduation from nursing school.
"It happened in her apartment in Albany. She was coming home from her classes...It was someone who lived in her apartment building and was watching her and following her," recalls Grieshaber.
The killer, who was caught as he tried to leave town, turned out to be a man on parole.
After her daughter's death, Grieshaber was instrumental in an effort to strengthen New York's parole laws, making it tougher for felons to get out of jail for good behavior. Today she runs the Jenna Foundation for Non-Violence in Syracuse. She says that violent criminals incur a debt that takes a lifetime to repay.
"There's no question in my mind. I don't believe they should be allowed to vote," argues Grieshaber, "they should not have that decision making capability. I don't want these people having access to making changes in my life. They have already done that."
Grieshaber makes a distinction between violent and non-violent crimes. It's a common distinction. Some have even tried to convince Janai Nelson of the Legal Defense Fund that she would have a stronger case if she brought suit only on behalf of non-violent criminals. Nelson remains unswayed.
"Regardless of whether or not you're a good American, a law abiding American, a PC American," replies Nelson, "really the right to vote does not vary based on our different ideas about who you should be and what we would ideally like you to be as a person in this country."
WHOSE OPINION COUNTS?
Impact is a non-profit arts organization for young people in Harlem. Jazz Hayden wants to talk about voting rights with Impact founder Jamal Joseph.
"We've been friends for 30 years, says Hayden, introducing Joseph. "He teaches screenwriting at Columbia…"
Like Hayden, Joseph is an ex- prisoner who is unhappy about the state law that keeps both prisoners and parolees from voting in New York. He says prisoners are still members of society.
"So if I am a father and I am working in the prison and sending money home to take care of my children," asks Joseph, "doing the best I can, have I no say in redistricting and education, health care and all those crucial, crucial issues?"
What makes the problem even worse Joseph explains, is that most of the people in prison in the state come from New York City neighborhoods, yet more than 90 percent of them are incarcerated upstate. So the census counts them as upstate residents. This means less state and federal representation for communities like Harlem and fewer dollars for much needed services - like affordable housing. Joseph argues that when prisoners come home, as most do, and go back to work and still can't vote - this, he says, is 'taxation without representation'.
A world away from the streets of Harlem, in the far suburbs of Washington, are the offices of Roger Clegg, an attorney with the conservative think-tank, Center for Equal Opportunity.
"We don't let everybody vote in the U.S.," says Clegg, "even some people who pay taxes. I mean children frequently pay taxes if their income is above a certain amount...People who get to vote should be held to a minimum standards of loyalty and trustworthiness that we require."
Clegg believes that felons who ask for their right to vote to be reinstated should be handled on a case by case basis-after his or her sentence is completed. But the grievance process in some states requires getting a pardon from a busy governor; or getting a legislator to pass a law on your behalf. In Florida alone, more than 100,000 people are waiting for their applications to be reviewed.
In the end, Clegg says, the debate about whether felons should vote is a waste of energy.
"And what the NAACP should be doing, rather than complaining about the fact that a disproportionate number of criminals are African Americans," says Clegg, "is that they ought to be figuring out what can we do to keep such a high proportion of African American kids, particularly African American young men from getting involved in crime."
There are more people in American prisons today than in any other time in history. One in twenty men can expect to spend part of their life in prison.
THE IMPACT OF THE ROCKEFELLER LAWS
The majority of prisoners in New York are there because of the Rockefeller drug laws. Passed in the 1970s, these laws carry a minimum sentence of 15 years to life for first time drug offenses. So strict are these laws that they often mean that someone with a drug conviction spends more time in prison then someone who is in for murder. These laws have been duplicated across the country.
On the 30th anniversary of their passage, about 250 people gather in a nasty drizzle in front of Gov. George Pataki's New York City office to call for their demise. "The rock laws are a disaster. They are unfair, unjust and an inefficient waste of money and of human life..." shouts one protester.
Opponents say the laws only succeed in filling the prisons with small-time drug users and street dealers while ignoring big time traffickers.
Women have been deeply effected by the drug laws. Jan Warren is white, middle class, 52 years old, and a registered Republican.
It was 1986 and Warren was trying to get out of a bad relationship when she discovered she was pregnant. Desperate to get home to California, she made a mistake. She agreed to sell cocaine for her cousin. It was the only time Warren sold drugs and it turned out to be a police sting.
"They battered in the door," remembers Warren, "they came in both front and back and in less then ten minutes I had seven guns pointed at my head. And I was at the stove picking up a potato, picking up a French fry or something, to eat, it when that happened."
Warren was given 15 years to life. But the irony of the situation didn't really hit her until one day in the prison yard.
"On certain holidays of the summer-- because the yard season was Memorial Day to Labor Day-- basically that was the best sunny weather," explains Warren. "For a moment, you weren't in prison, you were in 'any park U.S.A.' Except, on those holidays I realized that there was something missing, and that was the American flag. And then I realized there was no flag anywhere to be seen for us. Those of us that were American citizens, those of us that felt that we were part of society. It was gone, we couldn't see it. And that should have been my first clue that I wasn't a citizen anymore."
Eventually Warren wrote to Governor Pataki and after serving 12 years, she was granted clemency, but not the right to vote. Unlike Jazz Hayden who will be able to vote again when he completes his parole, Warren is tethered to a lifetime parole and can never vote again. For Warren this only makes an uphill battle to re-enter society that much more difficult.
EFFECTING THE OUTCOME OF ELECTIONS
Disenfranchisement also has a profound effect on society as a whole, says Chris Uggen, a sociologist at the University of Minnesota. He found that had felons been allowed to vote in the last presidential election, it would have changed the course of history.
"We looked at the 2000 election, of course, which was very hotly contested," explains Uggen. "When we add in the disenfranchised felons, we find that Al Gore would have likely won the popular vote by over million votes; and that indeed, in Florida alone, Gore would have picked up 60,000 to 80,000 votes. Enough to swamp the narrow victory margin that George Bush picked up in that state."
Uggen also found that shutting felons out of the process impacts state and national politics. Had felons been allowed to vote over the last couple decades, races across the country might have looked very different. That's because when given the chance, felons vote overwhelmingly Democratic. Their report showed that if felons could vote, the Republicans would have lost six or seven more Senate races, including those won by John Warner of Virginia and Mitch McConnell of Kentucky. Had that happened, Democrats would have retained control of the U.S. Senate.
Nonetheless, with few exceptions, Democrats in Congress have not championed the issue. Legislation to allow ex-prisoners to vote nationwide was brought up once in 2002 but failed. Uggen suggests that appearing soft on crime might cost Democrats more votes then they would gain. In addition, say those who follow money and politics in Washington, felons don't get a lot of attention because, as a group, they can't exactly fill Democratic coffers.
Janai Nelson of the NAACP Legal Defense Fund says that when it comes to voters, those in power are content with the status quo.
"People who are already in office are successful," explains Nelson. "They've made their way into office and they've relied on the political system as it exists and very few people want to rock the boat and bring in a new constituency that they may not be familiar with."
Polls have shown that 80 percent of Americans support restoring the right to vote to prisoners who have completed their sentence. For Jazz Hayden the issue couldn't be simpler: all Americans should be allowed to vote.
"The vote in America represents power because come election day, whether I go to the election, the voting booth and Bill Gates goes to the voting booth all of us have one vote. George Bush, Bill Gates and myself. And it's probably the only time in America that we're all equal," says Hayden. "And to deny me that right is to say that I'm not a citizen. I'm right back in the same situation that my ancestors were in."
The class action suit, Hayden vs. Pataki is expected to go to trial in federal court in New York in 2005.
Throughout American history, who is allowed to vote has been a moving target. But slowly, the franchise is expanding, says Lloyd Leonard of the League of women voters.
Leonard says that Americans have always been caught between two opposing forces when it comes to voting. An impulse to be inclusive and a backlash from those who want to safeguard the vote.
"When our country was founded," says Leonard, "only white male property owners were allowed to vote and so the history of voting in this country has been the history of reaching out and broadening the number of people, the kinds of people who can vote.
"We saw the constitutional amendments after the Civil War to make it so African Americans could vote. We saw the constitutional amendment that allowed women to vote. We have seen the expansion of the franchise. At the same time we have seen resistance."