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It will be tempting for most Americans to believe that our systemfor running elections worked Tuesday. After all, John Kerry concededdefeat and George W. Bush no doubt will have a second term as President.But our election administration system is badly broken, and there’s goodreason to believe the problems won’t be fixed in time for 2008, when thenext election could create yet another Florida debacle. We came much too close for comfort this time around. If theOhio margin had been around 36,000 votes instead of around 136,000 (asmall difference in percentage terms), we would have seen a battle royalover the 130,000+ provisional and absentee ballots that were yet to beprocessed and counted in the next week and a half. It would have beenFlorida all over again, only with more lawyers and controversy. Just before the election, a flurry of lawsuits and appealsclarified some of the rules for counting provisional ballots and dealingwith voter challenges. In the few days before the election, there wassimultaneous litigation over Ohio’s rules in a number of federaldistrict courts, the 6th Circuit, the 3rd Circuit, and the OhioSupreme Court, not to mention two unsuccessful attempts to get theU.S. Supreme Court involved. Some of that litigation was notfinal, and many questions still remained open over Ohio’s rules,particularly for counting provisional ballots. One of the most important unanswered questions concerned thestandards by which election officials were to judge which provisionalballots were to be accepted. Ohio does not have detailed uniformstandards for judging which provisional ballots should be counted, andit is possible that the lack of uniform standard would have violated theequal protection guarantees set forth by the Supreme Court in Bush v.Gore, the case arising out of the Florida controversy. A lawsuit filedon Election Day raised this very claim, and it would have become a majorpart of the litigation war. What a spectacle it would have been, with a controversialSecretary of State battling with partisan election boards over whichprovisional ballots to count, when and why. The Secretary opposed afederal court order to hand out paper ballots to those voters who waitedup to five hours or more to cast votes in overcrowded precincts, andthose paper ballots surely would have been the subject of much acrimonyand debate. It would have been ugly. And if the final margin aftercounting the provisional and absentee ballots would have turned out tobe close, we could have witnessed the spectacle of a recount, in a statethat still uses those notorious punch cards with their hanging chads. Alawsuit has been pending over whether the punch card system itselfviolates the equal protection guarantees of Bush v. Gore. This is not to single out Ohio for opprobrium. There wereproblems with and lawsuits over absentee ballots filed on Election Dayin Florida and Pennsylvania as well. And recounts were all butguaranteed in Iowa and New Mexico had the final Electoral College resultdepended on it — and both states had their share of controversy withdecisions being made by partisan election 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. Noother advanced democracy uses partisan election officials to administerits elections. No other advanced democracy uses such a decentralizedsystem with its patchwork of rules. We dodged a bullet this time. Next time, we may not be solucky. It is time to nationalize and depoliticize our system of electionadministration. The public’s faith in our democratic process demandsit. Richard L. Hasen specializes in election law at Loyola Law School in LosAngeles and is the author of “The Supreme Court and Election Law” (NYUPress 2003).

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