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Ever since Bush v. Gore, election law experts have been on the lookout for the next electoral meltdown. We came close in 2004, but the difference in the vote totals in Ohio was substantial enough that it appeared beyond the margin of litigation. Will we be as "lucky" in 2008, or are we headed for another nail-biter that may expose the fragility of our electoral system?

The problems seen in Florida in 2000 and Ohio in 2004 were not unique to those states. Any state placed under a comparable microscope caused by its decisive role in the Electoral College count would have appeared similarly dysfunctional. Dangling chads and butterfly ballots were not invented in Florida, nor were long lines specific to Ohio. So while the unacceptable problems in those states received national attention, similar problems in other states would have emerged if the focus had moved to them.

In some ways, we are better off and in other ways worse off than we were in 2000 or 2004. Election technology has improved, in that punch card ballots have been replaced with more modern technology that tends to lose fewer votes. But many areas of the country are still transitioning to those new electronic DRE, or optical scan ballot systems. The security problems of DRE voting machines have now led some states to toss out their newly bought machines, and each election since 2000 has featured some notorious story of machine malfunction or voter confusion.

The advent of "provisional ballots" (which voters should receive when their registration status is unclear) has led to fewer voters being turned away from the polls, but has led to a greater number of ballots that could be litigated in an election's aftermath. Moreover, the rise of voter identification requirements in some states has added to the burden placed on largely untrained polling place administrators, who usually play a more important role than either the law or technology in translating ballots into votes.

These familiar administrative snafus or the imperfect attempts to address them become less important in determining the outcome of an election if one state no longer proves to be the controlling factor in forming an Electoral College majority.

That is likely to be the case this time, as multiple states now seem in play, unlike the last two presidential contests. In particular, Colorado, New Mexico, Iowa and Virginia are all "red" states with the potential to turn "blue," while several other Democratic strongholds in the Midwest might be competitive for Republicans. Although the election still shows signs of being competitive in national polls, the expansion of the electoral map is one form of insurance against a result determined by one state's ineptitude, lack of preparedness or simple bad luck.

 

Persily is a professor of law.

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