16 Years After Bush v. Gore, Still Wrestling With Ballot-Box Rules

The dramatic controversy surrounding the 2000 presidential election led to sweeping voting reforms, but opened the door to a new set of problems that continue to impact elections today.
By Clyde Haberman

Reflecting on baseball attendance, the philosopher Yogi Berraobserved that “if people don’t want to come to the ballpark, how are you going to stop them?” He could have said much the same thing about the American electorate. If voters don’t want to go to the polls, what is going to stop them, too? Often enough, nothing has.

Across the decades, Americans have chosen not to exercise the franchise aerobically. The turnout rate in national elections, typically below 60 percent, ranks near the bottom among the world’s developed democracies. The share of Americans who even bother registering to vote — 64.6 percent, according to the most recent figures from the United States Census Bureau — does not come close to rates exceeding 90 percent in Western Europe and Canada. Even in a supposedly banner year like 2008, when Barack Obama’s candidacy generated plenty of excitement, the turnoutwas not quite 62 percent, a pace that countries like Belgium, Denmark and Sweden would regard as dismal.

Against that backdrop, decisions about who is eligible to vote and who is not can inflame political passions. It has been thus since the earliest days of the republic, but for the last decade or more the fires have burned fiercely. The spark? Bush v. Gore, the politically supercharged case that in 2000 produced one of the United States Supreme Court’s most famous — some would say infamous — rulings. With the 2016 presidential race well underway, the consequences of Bush v. Gore are now examined by Retro Report, a series of video documentaries exploring major news stories of the past and their lasting impact.

A short version of this complex case is that the court rejected calls for a recount of extremely close Florida results in the 2000 presidential election. The justices’ 5-to-4 vote broke along the ideological lines that are now receiving renewed scrutiny with the death of Justice Antonin Scalia.

The decision delivered Florida’s 25 electoral votes to the Republican nominee, George W. Bush, handing him the narrowest of victories over his Democratic rival, Al Gore. By then, Florida’s voting process had been exposed as a mess. Not that it was alone in this regard. Whatever their political loyalties, Americans had to face a raw reality: Their electoral system, the crown jewel of their democracy, was severely blemished and needed resetting.

The ostensible repair came in the form of the Help America Vote Act, passed overwhelmingly by both houses of Congress in 2002 and signed into law by President Bush. HAVA, as it was known, required states and municipalities to bring their election procedures into the 21st century, with electronic voting machines, improved methods of voter registration and better training of poll workers. But instead of an electoral nirvana, the new law ushered in an era of deep political contention, one that Retro Report succinctly describes as “voting wars.”

HAVA left it to each state to work out the details of its new rules, and that allowed for some elastic definitions of fair play. Some states rewrote their laws in ways that made it tougher for many people to cast ballots. Others eased access to the polls. California and Oregon, for instance, have shifted the burden of voter registration from the citizen to the state. Their residents are now automatically registered whenever they get new drivers’ licenses or have other routine dealings with government agencies.

While any generalization has its exceptions, it is reasonable to saythat states imposing new restrictions are commonly those where Republicans dominate. States choosing to enhance ballot access — such as by increasing the number of days for early voting — are typically in the hands of Democrats.

Republicans say their lone goal is to protect the integrity of elections by eliminating voter fraud, which they describe as widespread and, ahem, conspicuous in Democratic-controlled cities and states. Their solutions include shrinking opportunities for early voting, eliminating Election Day registration, forbidding former prison inmates to vote and, most important, limiting the kinds of identification that voters must use to prove who they are.

The impact of these measures falls notably on the poor, the young, African-Americans, Latinos and other minorities — groups that usually vote for Democrats. Civil rights groups say blacks and Hispanics are blatantly made targets, given that they are less likely than others to have certain approved types of ID, like drivers’ licenses or passports.

CLYDE HABERMAN, a regular contributor to Retro Report, has been a reporter, columnist and editorial writer for The New York Times, where he spent nearly 13 years based in Tokyo, Rome and Jerusalem. Subscribe to our newsletter here and follow us on Twitter @RetroReport.

This article first appeared in The New York Times.