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It will be tempting for most Americans to believe that our system for running elections worked last Tuesday. After all, John Kerry conceded defeat, and George W. Bush will have a second term as president. But our election administration system is badly broken, and there’s good reason to believe the problems won’t be fixed in time for 2008, when the next election could create yet another Florida debacle. We came much too close for comfort this time around. If the Ohio margin had been about 36,000 votes instead of about 136,000 (a small difference in percentage terms), we would have seen a battle royal over the 130,000-plus provisional and absentee ballots that were yet to be processed and counted. It would have been Florida all over again, only with more lawyers and controversy. COUNTING WHICH BALLOTS? Just before the election, a flurry of lawsuits and appeals clarified some of the rules for counting provisional ballots and dealing with voter challenges. In the few days before the election, there was simultaneous litigation over Ohio’s rules in a number of federal district courts, the U.S. Courts of Appeals for the 6th and 3rd Circuits, and the Ohio Supreme Court, not to mention two unsuccessful attempts to get the U.S. Supreme Court involved. Some of that litigation was not final, and many questions still remained open over Ohio’s rules, particularly for counting provisional ballots. One of the most important unanswered questions concerned the standards by which election officials were to judge which provisional ballots were to be accepted. Ohio does not have detailed uniform standards for judging which provisional ballots should be counted, and it is possible that the lack of such standards would have violated the equal protection guarantees set forth by the Supreme Court in Bush v. Gore, the case arising out of the 2000 Florida controversy. A lawsuit filed on Election Day to raise this very claim would have become a major part of the litigation war. What a spectacle it would have been, with a controversial Ohio secretary of state battling with partisan election boards over which provisional ballots to count, when, and why. The secretary opposed a federal court order to hand out paper ballots to those voters who waited up to five hours or more to cast votes in overcrowded precincts, and those paper ballots surely would have been the subject of much acrimony and debate. It would have been ugly. And if the final margin after counting the provisional and absentee ballots turned out to be close, we could have witnessed the spectacle of a recount � in a state that still uses those notorious punch cards with their hanging chads. A lawsuit has been pending over whether the punch card system itself violates the equal protection guarantees of Bush v. Gore. STATE-BY-STATE SPECTACLE This is not to single out Ohio for opprobrium. There were problems with, and lawsuits over, absentee ballots filed on Election Day in Florida and Pennsylvania as well. And recounts were all but guaranteed in Iowa and New Mexico had the final Electoral College result depended on it � and both states had their share of controversy with decisions being made by partisan officials. The fact that the election administrator’s prayer was answered, and the election was not close in absolute terms, should not obscure the fundamental problems with our rules for running elections. No other advanced democracy uses partisan officials to administer its elections. No other advanced democracy uses such a decentralized system with its patchwork of state rules. We dodged a bullet this time. Next time, we may not be so lucky. It is time to nationalize and depoliticize our system of election administration. The public’s faith in the democratic process demands it. Richard L. Hasen, professor of law and William M. Rains fellow at Loyola Law School in Los Angeles, specializes in election law. Hasen is the author of The Supreme Court and Election Law (NYU Press, 2003).

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