Voter Discrimination Primed to be Explosive Issue in This Year's Election Aftermath

Voter fraud, eligibility arguments miss larger legal issues

Release Date: October 28, 2004 This content is archived.


BUFFALO, N.Y. -- Although both political parties are marshalling significant legal resources to challenge election results on the basis of voter fraud and eligibility, voter discrimination may be the most explosive issue to emerge after Election Day in November, according to an election-law expert at the University at Buffalo School of Law.

"If questions about widespread racial discrimination are raised again, there may be a big problem in addressing the legitimacy of the election," says UB Law Professor James Gardner, author of several articles on election law. "There is a lot of lingering resentment among minority voters over discrimination that occurred in Florida during the 2000 election,"

According to Gardner, current legal wrangling over provisional ballots, voter registration and possible instances of voter fraud are, in essence, arguments about how to manipulate the rules of the electoral process in the wake of the Supreme Court's ruling in Bush v. Gore.

The courts would have more impact it they focused instead on street-level issues of racial discrimination and bias, he says.

"The focus of the debate is misplaced," Gardner contends. "What it's about now is 'gaming' the rules that exist. Clearly if you have a set of rules that people will -- and should -- exploit, the main focus will be on how to best take advantage of those rules.

"What the courts are doing now is saying where and when those rules should be exploited, and by whom. Are these rules actually giving us the best snapshot of what the electorate is thinking?"

According to Gardner, the focus should be on other, more basic aspects of election law, which have more impact on who votes and how they vote than do rules for provisional ballots or voter fraud.

"We tend to focus on minor problems within the current rules without examining the basic rules themselves," Gardner says. "Certain aspects of the basic rules -- such as a one-day election requiring a trip to the polls, for example -- may have much more of an influence in the outcome than any of the things people are arguing or litigating about."

Laws regulating voter access to the polls, Gardner points out, disproportionately affect minority and poor voters. This effect goes unnoticed, Gardner says, as does the effect of subtle differences between the experiences of black and white voters at the polls.

"The major complaints in Florida in 2000 were based on systematic biases against black voters," Gardner points out. "Predominately black counties in Florida were given the worst voting equipment and often received poor instruction at the polls.

"Some of this is rooted in the Southern heritage of the way black and whites relate to each other," he adds. "A black voter may be less likely to ask a young, white poll worker for help, for example."

If a close election does produce controversy and the expected spate of lawsuits, Gardner says the Supreme Court may be less willing to take on the controversy. He points out that the Supreme Court recently refused to rule on a controversial congressional redistricting plan in Texas, returning the case to a lower federal court in Texas.

"This may suggest that the federal court does not want to be as heavily involved this time around (in legal challenges arising from the presidential election)," Gardner says. "Which would make state courts the focus of the legal battles."

The University at Buffalo is a premier research-intensive public university, the largest and most comprehensive campus in the State University of New York.

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