Polls Put Race Within 'The Margin Of Litigation'

Election Day 2000 ended in a stalemate and weeks of finger-pointing and legal battles. Host Michel Martin looks at whether the country has learned the lessons from that crisis in time for Tuesday's vote. She speaks with Ilya Shapiro of the Cato Institute, and Robert Pastor of the Center for Democracy and Election Management at American University.

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MICHEL MARTIN, HOST:

This is TELL ME MORE from NPR News. I'm Michel Martin. Coming up, Superstorm Sandy displaced tens of thousands of New Yorkers and all of them are suffering in some way. But we wanted to talk about some folks who may be having a harder time than most. We'll talk to a reporter who visited the Coney Island projects and he'll explain why it's been particularly rough going there. That's in just a few minutes.

But first to the campaign. This long, testy campaign for the White House ends tomorrow. Or at least we hope it does. We say that because polls suggest that the race between President Obama and Republican challenger Mitt Romney may be too close to call, and that possibility brings up some not very pleasant memories of 2000. The ballot count in Florida led to weeks of legal battles that did not end until more than a month after Election Day when the Supreme Court stepped in.

So we wondered if there are any lessons learned in the 2000 election that might preclude more weeks of uncertainty and anger. Joining us to talk about all that is Robert Pastor. He was the executive director of the bipartisan Commission on Federal Election Reform. It was co-chaired by former president Jimmy Carter and former Secretary of the Treasury and Secretary of State James Baker. It was commissioned after the 2000 vote.

He's also the founder for the Center for Democracy and Election Management at American University. Also with us is Ilya Shapiro. He is a senior fellow in constitutional studies at the Cato Institute. That is a libertarian research institute, a think tank, here in Washington D.C. Welcome to you both. Thank you for coming.

ROBERT PASTOR: Thank you.

ILYA SHAPIRO: Good to be here.

MARTIN: So, Professor Pastor, we mentioned that you led the Carter-Baker Commission on Federal Election Reform. Are there major problems that happened in 2000 that you could foresee happening again and were any steps taken in the interim to forestall that?

PASTOR: Absolutely. We could find ourselves in a position not terribly different than where we were in 2000, because there were almost no lessons learned by the United States Congress. The election administration of - is still antiquated. It's built in the 18th century. It is not modern. We would score at the bottom of the list of democracies not just in the advanced democratic world but even in the developing world.

MARTIN: And why is that? Is that a technology issue? Is it a refusal to embrace technology? Or is it a governance issue? What's the issue?

PASTOR: It's not technology. We, in fact, did move away from the lever machines and the punch guard machines that were such a problem towards more electronic machines. It's a governance, it's a political issue. In part it's because we have the most decentralized system in the entire world, where individual counties make decisions on the design of the ballot.

They train poll workers. There are things that are done very differently all over this country. There is no uniformity. There's no impartiality, no autonomousness by the election administration. And that's what most democracies now have, we don't have.

MARTIN: And recommendations to that end were made after your commission came together, which was a bipartisan one. It was totally balanced from a partisan perspective. And you're saying none of those recommendations were adopted by anybody?

PASTOR: It's even worse. We had 87 recommendations for a complete rehaul of election administration in the United States. The Congress introduced a number of bills to that effect. None of them passed. Instead, the states took the recommendations apart, and depending on which party governed the state, they polarized a lot of these recommendations.

For example, on voter ID and access to elections we recognize that both election integrity and access are critical ingredients of a good election. But none of the states did that. And they did one or the other. And as a result, we have a worse system today in many ways than we did even in 2000.

MARTIN: Ilya Shapiro, why don't you take the question? First of all, do you agree with Professor Pastor that the situation is potentially as disorganized, as infuriating, as it was in 2000? And do you agree about the reason?

SHAPIRO: Well, the first thing I should say as a recovering lawyer that hard cases make bad law and when the national election across hundreds of millions of voters is essentially a tie, it's really hard to draw lessons going forward. And the recommendations that the Baker-Carter commission made were excellent. I'm not sure whether decentralization so much as the problem is a lack of standards across given states.

You know, if a state board of elections implemented things across counties and standardized things, that would be a step in the right direction. But I think the bigger concern isn't so much whether we have a marginally better or worse system as the confidence that the electorate has in the system. And that goes towards the legitimacy of whoever ends up winning.

And I think a lot of the reforms that were not fully implemented or implemented piecemeal, as Professor Pastor said, detracts from how it's viewed, regardless of whether in absolute terms at the end of the day we're better off than we were before.

MARTIN: Well, I think that you both agree on that. I mean the issue isn't so much that - it's that people don't believe that the system is fair. They're wondering. They're worried about whether their votes will actually be counted. Professor Pastor, you're saying that part of the problem here is that these - whatever reforms were implemented were implemented in a way that would advantage one side or the other, so that, you know, the voter ID laws, for example, Democrats and liberals infuriated because they feel that they're designed to keep certain people from voting who vote for them. What about on the other side? I don't know if there are on the other side these voter integrity measures or anti-fraud measures or anti-harassment measures or something like that. What would make it better?

PASTOR: Well, a uniform system, not only within states but between states, because after all, we have constitutional rights in the Bill of Rights on elections, on voting, on selecting our representatives. And they shouldn't be different within a state or even between states. We should have - we should - it should be administered by a nonpartisan, impartial, autonomous election administration.

That's not the case right now. Most elections are now being administered by one party or the other, and as a result after a very close election there is a lack of confidence by the party that loses. And that shouldn't have to happen. And it wouldn't happen if there wasn't one party in charge.

If everybody could look at the election administration and say these people are above politics, they're not Democrats, they're not Republicans, they are in the interest of making sure everybody votes - the trouble basically is that we take for granted the administration of elections.

We focus on the campaigns. We focus on the results. It's only if it's close do we look under the hood and we say, what happened here? This is not working very well. And we don't concentrate for enough time to make it right.

MARTIN: If you're just joining us, tomorrow is Election Day. We're talking about whether election officials - rather, the country - has learned any lessons from the disputed presidential vote in 2000. As you know, the decision-making went on for weeks there and only ended when the Supreme Court stepped in.

Our guests are Robert Pastor of American University's Center for Democracy and Election Management - that's who was speaking just now - and Ilya Shapiro. He's a senior fellow in constitutional studies at the Cato Institute. And Mr. Shapiro, of course, you know, we should note that decentralization isn't something - libertarians generally don't believe that centralization just improves things. What would make it better in your view, from your perspective?

SHAPIRO: Well, training is a problem. There is uneven training of poll workers across states, even among states that have similar laws in terms of provisional ballot counting and all the rest of it. So that's certainly an issue. But also poll workers tend to be retirees and they only do this once every four years. I think there needs to develop kind of an ethos that being a poll worker is something that's important.

Not a civic duty per se, but being part of the process is something worthy to get involved. I don't know whether that means bringing in more high school groups to get younger people involved, but there is the matter of training and the confusion on Election Day, particularly during close elections and particularly in high turnout precincts. It is an issue. And no amount of rule making or centralization is going to fix that.

MARTIN: But why wouldn't it, though? I don't understand that. Why wouldn't - we have federal standards for all kinds of things, I mean, you know, mileage - you know, mileage standards, fuel efficiency standards, things that are important. You know, we tend to standardize, at least set minimum standards for. What's so terrible about that?

SHAPIRO: Well, there are minimum standards. I mean, a state can't administer its elections willy-nilly. If you - people can sue for having their right to vote denied and all sorts of things. Nobody's alleging that any state is running its elections in that way, but a lack of training or a lack of standards, especially, post - after the Help America Vote Act from the 2000 election - there are problems in administering it in that way.

MARTIN: Do you agree with Professor Pastor, that it could be a big mess if the election is this close, that we could wind up in the same scenario that we had in the year 2000?

SHAPIRO: It could be much worse, because there are more swing states in play. In 2000, it was essentially Ohio and Florida with a couple of small states like New Hampshire and New Mexico also in play. Now, there's - I mean, we see the map. There's nine that could potentially be within as what lawyers call within the margin of litigation.

MARTIN: OK. That's what they call it. I'm going to remember that. Professor Pastor, a final thought. We've been reporting on the expansion of early voting. As many as 35 percent of all the country's voters will cast - will have already cast their ballots before Election Day tomorrow. Could this help the situation?

PASTOR: Well, it certainly is more convenient for voters and, also, it will reduce the number of people who come to the ballot box on Election Day, and that should make it a little easier to administer.

I think part of the question is: How good are the electronic systems to make sure that people who vote early don't have a chance to vote a second time? And I think this varies a great deal from state to state and from district to district, as well. But I think, overall, early voting is a good - it's a convenient way.

On the negative side, of course, people can vote before major issues could emerge, or before the debate has completely matured, and that's unfortunate.

MARTIN: Professor Shapiro, I gave Professor Pastor the first word, so I'll give you the last word, briefly.

SHAPIRO: It seems like early voting doesn't do much other than shift the people who would already be voting to vote earlier. And we've seen a lot of problems already in Florida and other states where there's lines much longer than what we'll even see on Election Day. So I think we've started to err in the other direction. I don't think we should get rid of early voting altogether, but having it start, you know, even two months before the election, or what have you, and no-fault absentee ballots, as it were, where there's more room for fraud and other shenanigans than even in-person voting, that needs to be looked at.

MARTIN: Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. That's a libertarian research organization, a think-tank in Washington, D.C. He joined us in our Washington, D.C. studios, along with Robert Pastor, the founder of the Center for Democracy and Election Management at American University.

Thank you both so much for coming.

SHAPIRO: Thank you very much, Michel.

PASTOR: Thank you.

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