Post Date: January 12, 2005

Shortly after the national elections of Nov. 2, Harvard Law Today asked Assistant Professor Heather Gerken for an assessment of the electoral process and whether the United States has remedied the deficiencies that surfaced in the 2000 election in Florida and elsewhere. Gerken, an expert on election law, tells HLT that, while we didn’t relive the days of hanging chads and “undervotes,” there are still serious problems.

The election went more smoothly than in 2000. Was this luck or was it the result of legitimate changes?

Some parts of it were luck, and some parts of it were due to legitimate changes. The luck part was that one of the candidates won by such a sufficient margin that the problems that arose didn’t affect the results. The non-luck part was that there were so many lawyers in polling places and bringing lawsuits beforehand that a lot of the potential problems got cleaned up before the election took place. There were still problems: places where votes were lost, extraordinarily long lines at the polling places, and there could have been a huge disaster over the question of provisional ballots had there been enough ballots to make up the margin of victory in Ohio.

What have we learned about voting technology?

I think what we really learned is that, regardless of whether or not technology is in fact trustworthy, people don’t trust the technology. We really need to have a paper ballot trail. Nevada not only used electronic machinery but also generated paper ballots. There’s no reason the other states couldn’t do that as well. Our trust in democracy depends not only on it working fairly, but on people believing that it’s working fairly.

Do you believe any of the Internet rumors of fraudulent tallies and results?

I have seen lots of evidence that there were big problems in the election, but I haven’t seen anything to convince me that the election was stolen.

And these problems were?

Inconsistent strategies for counting provisional ballots, electronic machines without adequate paper trails, long lines at polling places because of inadequate staffing and voter intimidation. The fundamental problem, though, is that partisan officials are making the judgment calls. What we need is a nonpartisan, neutral election system like virtually every other Western democracy possesses, not one that is run by people whose jobs may depend on the judgment calls that they are making.

Do our election problems hurt our credibility abroad in places that are having their own problems, such as Ukraine?

There’s no question about it. What’s particularly striking is that we go and preach the importance of democracy and yet we let partisan, self-interested officials run our elections from top to bottom. If we really believe in democracy and the value of the vote, we ought to ensure its integrity by having a professionalized, nonpartisan system for running elections.

Are some of the reforms that states have tried in the past several years, such as mail-in voting or same-day registration, worthwhile experiments?

Yes. I think we should continue to do these kinds of experiments. The same-day registration is a really good example, especially in an election like the one we just had, where voting interest was very high with people who had never voted before. And the mail-in balloting is worth watching, because it may be that being able to vote early is actually going to help release some of the resource pressures we have right now on our election system. So I think all of these are really good and worthwhile experiments. I would also love to have a voting holiday to see if that helps increase turnout.

What are your thoughts on rules, such as those barring former felons from voting, even after they are released?

Felon disenfranchisement has a disparate racial impact, and that ought to be of deep concern to us. I think this country needs to have a national conversation about felony disenfranchisement and whether it’s serving a useful purpose. Not only does it create significant racial disparities, but it also sends a message about membership in the community that is quite unfortunate. It tells felons that, even after you serve your time, we don’t think you’re a full member of the community.

How do you interpret the 2004 election results?

This was an election that Democrats thought they could win and ought to have won. And if they couldn’t win this election, it’s not clear what elections they are going to win unless they figure out how to develop a coherent message that really appeals to people. It may be that Democrats are experiencing what Republicans experienced in the ’70s: a long time out in the cold, but also a chance to redevelop the party and come back with a renewed energy and a different message.

Any chance newer voters, particularly Democratic voters, will become discouraged and not vote next time?

I think 2008 will be crucial for these new voters. If they vote next time, we may see the habit of participation take root in communities that haven’t been voting for a long time. What was interesting about the election was that every type of group voted at a higher level than it had in recent memory. And that’s kind of amazing. Whether that continues will depend on what happens in politics in the next four years, but I’m hopeful that we might return to the days when a significant portion of our electorate actually voted in every election.

How did you become interested in election law?

I was lucky enough to take the first election law course offered at my law school. And that interest led me to work on those cases when I left law school. I think it’s one of the most interesting areas right now and not just because it’s in the headlines. As I tell my students, it’s the sex, drugs, and rock and roll of constitutional law because there’s nothing uglier than partisan politics and redistricting. Trying to take the pristine principles of constitutional law and figure out how they should apply in the rough-and-tumble world of politics is just a lot of fun.