- The Washington Times - Wednesday, August 4, 2004

When John Kerry accepted his party’s presidential nomination in Boston, not a single pundit mentioned the profound changes that are taking place in America’s electoral landscape — changes whose implications may not be fully appreciated until well after November. Could we (gulp) see a reprise of James Baker versus David Boies?

America’s elections are changing, not just because of the shifting regulations that govern them, but because little is understood about the consequences of certain new “ground rules.” These new laws mean that campaigns and party organizations must alter the strategies and tactics they deploy to influence voters. Which side capitalizes on these changing dynamics could mean the difference between Republicans or Democrats capturing the White House — and which party controls Congress.

Authorizing more “early” voting is one such trend. Recent changes in election laws aimed at increasing turnout mean more voters can cast ballots earlier. Yet the well-intentioned reforms after 2000 could also delay the counting — meaning the outcome — of certain key House or Senate races, or even who wins the White House. The results may not be known for many weeks after Nov. 2.

First, consider trends in early voting. Thirty-one states now have some kind of early voting laws, and citizens are increasingly using this option. In 2000, for example, nearly 14 percent of voters cast early ballots — nearly triple the number that did so in 1980. In some states, like Washington, more than half of the votes were cast before election day. In Colorado, New Mexico, Arizona and Tennessee, more than one-third of the votes were cast early. Experts expect these percentages to grow in 2004.

These changes create a host of new tactical challenges for political campaigns.

As a senior member of the Bush re-election team told me, “The term ‘election day’ is a misnomer; it’s now ‘election month’ or longer.” Recalibrating media strategies, get-out-the-vote efforts and polling to reflect these new realities is a work in progress. Many of the old ways of doing things no longer apply.

Then there is the issue of “provisional ballots,” a little-understood reform that could delay the outcome of many elections this November. You may not have heard a lot about “provisional voting,” but it could become infamous after this next election.

After the 2000 election, Congress passed a new law called the Help America Vote Act to address many of the election-day problems highlighted by the punch-card ballots in Florida. This act mandates that every state develop some kind of provisional voting procedure, yet it also creates some unintended consequences.

Prior to enactment of the law, voters were turned away if they showed up at a polling place and their names did not appear on the registration list. The law guarantees that won’t happen again. If a voter’s name is not on the list, the new law gives them the right to demand a “provisional ballot.” The voter casts the ballot, and it’s placed in a separate pile and analyzed later. If there was an error on the registration list, the ballot counts. If not, it’s thrown out.

In elections determined by a large margin, the provisional ballots won’t matter. But in close races they could obviously sway the outcome. The problem is most states are not well prepared to deal with potential challenges, questions or appeals of provisional ballots. One Washington election-law analyst told me, “I can envision a scenario where, in a particularly close race, we might not know for a long time which group of electors was chosen in the presidential race.” Visions of sugarplums and “hanging chads” at Christmas dance through my head.

It’s not surprising that groups specializing in election day get-out-the-vote efforts, including “America Coming Together,” are telling their volunteers to ensure voters know to demand a provisional ballot. Moreover, both Republicans and Democrats are organizing armies of lawyers to prepare for what could be a host of new and unanticipated issues surrounding the provisional ballot in states all over the country.

“Election day” is indeed an evolving concept. Whether it’s voting early or provisional ballots, the new reforms will change how, when and where we pick our elected officials. These changes will no doubt also have another unfortunate side effect — creating a new cottage industry in the legal profession to challenge and interpret the real meaning of ballots across the country. Memo to the presidential campaign managers: Keep Jim Baker’s and David Boies’ cell phone numbers handy.

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