The History of Voting and Election Law.

DATE November 29, 2000 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Alexander Keyssar talks about the history of United
States politics from Founding Fathers to present
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

One thing that Republicans and Democrats can agree on is that this contested
election has left many of us wanting to know more about election law and
voting history. My guest, Alexander Keyssar, is the author of "The Right to
Vote: The Contested History of Democracy in the United States." His book is
really about how long it took most Americans to get the right to vote and the
various roles the courts and the legislatures had in upholding and eliminating
restrictions. Keyssar is a professor of history and public policy at Duke
University.

The Republicans have gone to the US Supreme Court to challenge the Florida
Supreme Court, while the Democrats are in the Florida courts making their case
for counting the ballots that were never counted by hand. Many people are
confused about why the challenges surrounding this presidential election are
mostly being fought in state courts. I asked Keyssar why most election law is
state law. He told me this was a result of a political compromise.

Professor ALEXANDER KEYSSAR (Professor of History and Public Policy, Duke
University): When the Founding Fathers met in Philadelphia to write the
Constitution, they debated having a national regulations on the right to vote,
which would also have implied national control over certain kinds of
procedures. And they decided not to do it and they decided not to do it, in
part, because they disagreed among themselves about figuring out a common
standard. Very few of them, indeed, were Democrats in the sense that we
understand it today. Most believe in a property requirement or a taxpaying
requirement of one sort or another.

But even within that range, there was a lot of disagreement and what they
concluded was that any single national standard that they adopted would be
unpopular in some states of the United States and thus might jeopardize
ratification of the federal Constitution. So the decision to decentralize
control over the right to vote and voting procedures was a very pragmatic,
political decision, made in the late 18th century, to try to facilitate
ratification of the Constitution. And that's really the origin of a great
deal that has followed from this in the last 200 years.

GROSS: We're watching this election get played out in the Florida courts, in
the US Supreme Court. Historically, where did the courts play the biggest
part in interpreting election law?

Prof. KEYSSAR: Well, the court's role really historically has been--it's
been an interesting evolution because in the 19th century, certainly the
federal courts and the federal government, as a whole, kept pretty much
hands-off the voting system. This was a matter of state law, state control.
State courts did adjudicate a number of battles within each state,
interpreting different statutes, trying to figure out exactly what it meant,
you know? If there was a restriction that you had to be white to vote, the
courts had to decide what the definition of white was. Or in a number of
states, for example, in the 19th century that excluded paupers from voting.
The court was left to the state courts to decide what the definition of a
pauper was--so that state courts have been involved.

The federal courts and the federal government really took a pretty hands-off
posture. The first major federal interventions into questions of the right to
vote come up, of course, in the aftermath of the Civil War, when the 14th
Amendment deals with the right to vote, in part, and the 15th Amendment does
as well, but--and I think there's some confusion out there; I've heard this in
discussion--the 15th Amendment does not say that African-Americans have the
right to vote. It says that states cannot discriminate based on race, color
or previous condition of servitude.

So there's the federal government intervening but still within a context or a
framework of state law. Then, in fact, what happens in the late 19th and
early 20th century is that the federal courts turn a blind eye to ways in which
the states clearly were ignoring the intent of the 15th Amendment. The
federal courts did not rule that various laws passed in southern states
violated the 15th Amendment, even though it was clear that their intent, even
if it wasn't the letter of the law, was to disfranchise blacks.

GROSS: You mean like literacy tests?

Prof. KEYSSAR: Literacy tests, poll taxes, cumulative poll taxes,
understanding clauses, you know, which meant that you had to come in and you
were given a passage of a state constitution to read and you are supposed to
indicate your understanding of it to the satisfaction of a white registrar,
which, in most cases, was nearly impossible. And the federal courts and their
work cases said, `OK. Well, this does not, on its face, violate the 15th
Amendment, so it's fine,' which is how we ended up with, you know, 70, 80
years of 90-percent disfranchisement of the black population of the South with
the sanction of the federal courts.

GROSS: Since the federal courts had largely stayed out of election law and
left that to the states, how did the federal courts end up becoming such an
active part of election law during the civil rights movement in the '60s?

Prof. KEYSSAR: Well, I think that there was pressure on the courts that
coexisted with pressure on Congress and I think it came from several different
directions. I mean, if one wants to look at the historical forces pushing
this change, there was a significant grassroots movements of African-Americans
in the South that was pushing for change and demanding voting rights. This is
also all happening--and I think this context is important--in the context of
the Cold War and of an international propaganda campaign, one might call it,
or certainly a battle of rhetoric about democracy in the Cold War era.

And one thing that was increasingly clear to Congress and to the executive
branch as well was the fact that the United States did not fully enfranchise
its population and had a disfranchised minority in the South that was black
was a significant problem for us, you know--for example, in talking to African
nations or anywhere in the Third World--so that there are a lot of pressures,
domestic and international, that are coming to bare: to do something, to make
the United States more fully democratic.

Now that said, the actual courts get involved in, I think, a two-pronged
process. One is that Congress gets involved and passes legislation that is
now federal legislation, the Voting Rights Act being the most important of
1965 and 1970, and violations of the Voting Rights Act will end up in federal
courts. The Voting Rights Act of 1965 is also designed to illicit a federal
court test of state poll taxes in state elections, which yields the decision
that I referred to before, that wealth is not your main to voting.

The other part of the process is that the court itself, the '60s court, the
Warren court, in legal terms, in the equal protection clause of the 14th
Amendment, finds the grounds to judge and really disapprove of a large number
of state laws that deal with the right to vote--the court finds in the equal
protection clause a principle, the notion that it is up to the federal
government to really, you know, protect the equal rights of all citizens,
including in the area of voting. And that becomes a grounds for federal
intervention in what had been a state matter.

GROSS: My guest is historian Alexander Keyssar, author of "The Right to
Vote." We'll talk more after our break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is Alexander Keyssar. He's the
author of the book, "The Right To Vote: The Contested History of Democracy in
the United States." He's also a professor of history and public policy at
Duke University.

Well, during this post-election period, we keep looking back to the Founding
Fathers and the Constitution and wondering: What does the Constitution--what
would the Founding Fathers have to say about the predicament we're in now? On
the other hand, if we look back to that era, we'll see that in those days the
right to vote was a privilege. I mean, it wasn't really a right; it was a
privilege that some people had and a lot of people didn't have. Who had the
right to vote; who didn't have the right to vote in the early days of the
United States?

Prof. KEYSSAR: Well, certainly, more people didn't have the right to vote
than had the right to vote. The right to vote was possessed primarily by
adult, white, male, property owners. Women did not have the right to vote
except in New Jersey in a very interesting and revealing historical anomaly
where women in New Jersey did have the right to vote for 20 years. Blacks, in
some northern states at the outset, and even free black in a few Southern
states did have the right to vote, but most did not. And men who did not own
property or pay taxes were excluded everywhere but Vermont at the outset.

GROSS: When did the right to vote actually become a right?

Prof. KEYSSAR: I'm not sure that one can identify a moment, or I think one
might want to break the question down further, sort of, a right for whom. The
talk of the right to vote becomes powerful in the course of the first half of
the 19th century, and people are asserting a right to vote and saying that
this is a right and not a privilege. And in the arguments that one sees, the
formal arguments, the notion that voting is a privilege and not a right seems
to be defeated by the middle of the 19th century.

Yet, there are asterisks attached to it. I mean, it may be a right but it's
not a right, for example, that women possess. And in some states, it's still
not a right that African-Americans posses. So there's always been a, kind of,
rhetorical slipperiness about that and then in the late 19th century there is
a movement again away from the notion that the voting is a right and turn back
towards the notion that it's a privileged, although the language shifts again.
They don't want to use the word privilege. Except in the South, they do
restore the word privilege. And, in fact, I think it's the Alabama state
constitution, in the early 20th century, rewrites its preamble to change the
references to the right to vote to the privilege of voting. They actually
change the wording there.

Elsewhere, the language shifts so that they begin to talk of an earned right
to vote. For example, Northern states in the late 19th century and the early
20th century implement literacy tests to vote, or English language literacy
tests. There are surprising examples of that. New York state, one dramatic
case, imposes an English language literacy test, in 1921, which remains on the
books through the 1960s and disfranchises hundreds of thousands of people
every year. And that's grounded in this notion that, well, voting is a right
but it's a circumscribed right and you have to earn it to some degree.

GROSS: What were the rationalizations in the early history of the United
States for allowing just property owners to vote?

Prof. KEYSSAR: The rationalizations were two--the rationales put forward
were two. One was the notion that to vote you should have a, quote, "stake in
society," that it made sense to limit the franchise to people who would be
affected by public policies and who are going to stick around for a while.
The second rationale was, I think, more powerful and more compelling to
contemporaries, which was a notion that you had to be independent. And that
word independence shows up all the time. And what it means is that you had to
be or people believed that you should be free from certain kinds of economic
pressures--free to make up your own mind, to reflect, to offer your own
judgement.

And the Founding Fathers or people in the late 18th century who saw a close
link between economic condition and political condition were convinced that
someone who did not have economic independence would not have independence or
judgement or political thought. Those are the basic rationales. Now I think,
you know, that said, I have to add--and I argue in the book--that the
independence rationale is partly covering up another, which is that there is a
fear of the property list. There is a fear that men who did not own property,
who were poor would, if they voted, act in such a way as to jeopardize the
interest of property.

GROSS: Let me read a quote from John Adams from 1776 that opens the first
chapter of your book, "The Right To Vote." He says, "The same reasoning which
will induce you to admit all men who have no property to vote with those who
have will prove that you ought to admit women and children. For generally
speaking, women and children have as good judgements and as independent minds
as those men who are wholly destitute of property. These last being to all
intents and purposes as much dependant upon others who will please to feed,
cloth and employ them as women are upon their husbands or children on their
parents."

So he's basically comparing men without property to women and children and
that's a bad thing--women and children, that's a bad thing.

Prof. KEYSSAR: That's right. Women and children are the, sort of, measuring
stick, the litmus test of dependence or lack of independence and lack of
capacity to vote.

GROSS: Where's that quote from and where was he using this argument?

Prof. KEYSSAR: He was using it--I'm pretty sure that that quote is from a
letter that he wrote to James Wilson, who was a political figure from
Pennsylvania, but Adams, in fact, says the same thing. It's interesting. One
can find various articulations of that same position over about a 40-year
period from Adams. He believed in--and on the one hand, it is a statement of
principle; on the other hand, it seems to me that what Adams is doing in that
case--and Adams was really quite conservative on matters of voting rights--is
that he is saying, `Look, this is a slippery slope. This is a Pandora's box.'

And it goes back to what your question earlier about voting as a right. He's
saying, `If you open this up--you know, right now we just let property men
vote, but if you open this up, if you start raising questions about whether
the, you know, people who don't have property can vote, it's going to be
endless. You know, then women are going to want the right to vote, you know,
people in all sorts of conditions,' because once you start saying it's a
right, then the question becomes, `Well, who should possess this right?' And I
think that, in a sense, Adams was very perceptive. If you open it up, it's
very hard to, sort of, put the cap back on the bottle.

GROSS: Did most of the Founding Fathers agree Adams in this?

Prof. KEYSSAR: Yes, they did. There were several exceptions. Franklin was
probably the most liberal exception. Franklin argued, even in the
constitutional convention, that the franchise should go to all adult men.
Jefferson was similarly liberal. It was interesting. He did believe that in
order to exercise the franchise properly you should own property and
particularly own land. But his solution to that was to give land to
everybody and then they could vote. Most of the Founding Fathers did not have
such democratic views. They shared Adams view.

GROSS: So in the early days of the United States, how much did you need to
own or to earn to qualify to vote?

Prof. KEYSSAR: It was more own than earn and it varied state by state, and
in Southern states, it tended to be an acreage requirement. In the North, it
tended to be a dollar value of your property. It's hard to translate it into
current terms, but basically you had to be the equivalent of a middle-class
property owner. You didn't have to be wealthy to vote, not by any means. And
in some cases really even owning something symbolic and small was adequate,
but the basic standard was to be a middle-class property owner.

GROSS: Say something happened and you lost what you owned, could you no
longer vote?

Prof. KEYSSAR: You could no longer vote. That is absolutely correct. If
you lost your house, you could no longer vote. The structures of certain
mortgages--you could no longer vote, or there is the celebrated anecdote that
I quote in the book, Benjamin Franklin's story about a man losing his jackass,
which counted as valuable property and the jackass dying and his losing the
right to vote as a consequence.

GROSS: Right, and then Franklin says, `And whom resides the right to vote?
In the man or in the jackass?'

Prof. KEYSSAR: Exactly. An extraordinary line on Franklin's part. We're
just cut right to the essence of the problem. And that line, you know, `The
man or the jackass, whom resides the right to vote?'--that line crops up.
I've seen it in transcripts of state constitutional conventions 50 years
later, where people are still saying, `The man or the jackass?' And everybody
knows what they're talking about.

GROSS: You know, when we look back with such awe at the Constitution and the
Founding Fathers, does this stuff give you pause--I mean, having studied as
much as you have, the limitations on the right to vote and, you know, property
rights and all of that? How does it make you feel about using the thinking of
that era as the litmus test for what we should be doing today?

Prof. KEYSSAR: Well, that, I think, is a very well-phrased question because
I think that one has to recognize that these people were living in a different
era with different presumptions, a very different political culture, a very
different social structure. And, thus, when I get involved, for example, in
discussions about the Electoral College or when I hear discussions of the
Electoral College today, in today's world, and people are defending the
sanctity of the Electoral College and the Founding Fathers and their infinite
wisdom created this, I have to say that I think that that's a very mistaken
view.

I mean, we are talking about people who created an Electoral College, for
example, or created political institutions who did not believe in democracy as
we know it, who did not believe that most people should have the right. Many
of them accepted slavery and endorsed slavery. This is a different world,
and, thus, to take their words or the institutions that they created as being
sacrosanct and as being necessarily the guide for us to follow in the early
21st century strikes me as deeply mistaken.

GROSS: Alexander Keyssar is the author of "The Right To Vote: The Contested
History of Democracy in the United States." He'll be back in the second half
of the show. I'm Terry Gross and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross, back with historian Alexander
Keyssar, author of "The Right to Vote: The Contested History of Democracy in
the United States." He's a professor at Duke University.

In this contested election, Gore and Lieberman won the popular vote. If the
Florida count is upheld in the courts, then Bush and Cheney will have won the
electoral vote. If Gore wins in a recount, the Florida Legislature is likely
to challenge that by naming a slate of electors for Bush. I asked Keyssar
about the history of the Electoral College.

Prof. KEYSSAR: Well, the Electoral College was created, in part, again, out
of compromise. They couldn't quite agree on how you elect the president.
Some people thought that there should be direct election out in the
countryside. Now that wasn't to say by everybody, but by propertied, adult,
white men. Others thought that Congress should elect the president. Still,
others thought that maybe state Legislatures should elect the president. The
Electoral College emerged out of a compromise. And, again, one has to realize
that, you know, deeply intelligent and thoughtful as the Founding Fathers
were, you know, this was a group of men meeting sort of in a hot, sticky
summer in Philadelphia in the middle of some time pressures around writing a
Constitution. They wanted to get this thing done.

The compromise they reached of the Electoral College--you know, for one thing,
as a number of people have recently pointed out because it was linked to
representation in Congress, also was a way of weighting the political power of
the Southern states with a percentage--three-fifths of the number of slaves,
but it was also created to create a kind of buffer between the people and the
selection of the executive. The basic notion of the Electoral College, the
basic conception of it was that people would become members of the Electoral
College who were independent-minded, thoughtful, responsible and knowledgeable
citizens who would exercise their own judgment in selecting an executive. One
requirement, for example, to be a member of the Electoral College was that you
could not hold office. This is an era when there are no political parties,
when they're creating the Electoral College, and there was a notion that it
would be another group of wise men who would probably listen to the views of
people in their state, but who would act independently. It's a conception
completely different than what we have now.

GROSS: Well, you know, the image, I guess, originally, was that these would
be wise people who we could trust to deliberate on our behalf. Whereas now,
no one seems to know who the electors really are or how they're chosen.

Prof. KEYSSAR: They seem to be chosen for party loyalty. And, you know, I,
like you, in recent weeks have seen some occasional television interviews with
people who are electors. They're flattered to be electors. And they say that
it would never occur to them in the world to do anything other than to cast
their ballot for the person that they are already pledged to. They do not see
themselves as being engaged in a deliberative process.

GROSS: Now the electors are chosen according to representation in Congress,
so that you get one elector per member of the House and one elector per
Senator. So it's partially proportional, but every state, no matter how large
or how small, gets those two votes; one for each Senator. How was that
formula originally created?

Prof. KEYSSAR: It was created as one of a series of compromises that
occurred at the Constitutional Convention between the big states and the small
states. The senatorial add-on--adding the two electoral votes for the number
of Senators from each state, which is two--was a concession to the small
states. And that's why it was done. Now one thing we have to realize is that
the difference in size between big states and small states in 1790 or 1800 was
not nearly as great as it is today. The smallest states still have three
electoral votes, but the largest states have far more than the largest states
did at the time.

And, certainly, in the recent election--in the election of this year, the
small state skew, as it's called, the small state advantage is, in fact, what
seems to have tipped the election to Governor Bush, if, indeed, Governor Bush
is going to become the president. And the reason that he was able to win the
Electoral College without winning the popular vote is because of these
senatorial add-ons. Governor Bush won--I think the figure is 19 of the 26
states that have less than 10 electoral votes. He won 12 small states that
have a population equal to California's. And for those 12 states, he won 73
electoral votes compared to 54 that Gore won for winning California. That
difference alone in an election this close was enough to tilt the outcome.

GROSS: Explain a little bit more why you think that each state having one
electoral vote per Senator, so every state, large and small, gets those two
votes--you know, one per Senator. Explain a little bit more why you think
that that makes things unbalanced instead of more fair.

Prof. KEYSSAR: Sure. I think it makes things unbalanced in terms of, I
think, our own conceptions of democracy, which is that each person's vote
should carry equal weight. For example, in the smallest states which have
only one delegate to the House of Representatives; one representative in
Congress, adding on--they get one electoral vote for that. And then you add
on two Senators, which is to say you're adding another 200 percent to their
electoral vote. In New York, which has 31 representatives in Congress, you're
adding another two, which is only a small increment.

The upshot of this is that if one looks at the number of electoral votes per
capita in each state, the range is enormous. I think--these numbers are
fairly close--that in North and South Dakota, there is an electoral vote in
the Electoral College for every, roughly, 220 or 230,000 people. In New
York, in comparison, it's for about 550, 570,000 people.

GROSS: Do you think the electoral system should be phased out or reformed?

Prof. KEYSSAR: I think that it should be--I think there are potentially some
ways to reform it. For example, by eliminating the senatorial add-on. My own
preference would probably be to figure out some way to phase it out, although
I think that the political obstacles to doing that from the small states will
be considerable.

GROSS: My guest is Alexander Keyssar. He's an historian and the author of
the new book "The Right to Vote." We'll talk more after a break. This is
FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is Alexander Keyssar, author of
the book "The Right to Vote: The Contested History of Democracy in the United
States." He's also a professor of history and public policy at Duke
University.

Your book is about the history of the right to vote. Do you think of the
United States as having universal suffrage now?

Prof. KEYSSAR: I think of the United States as having something close to
universal suffrage now. I think of the United States as having gained
universal suffrage only roughly in 1970, which is very late in the game, and
that runs counter to most of our images. There are two major groups in our
society now that are not enfranchised. One are people who have been convicted
of crimes; roughly four million people, according to the best statistics we
have, which are not very precise. And the other are resident non-citizens of
the United States, including permanent residents. And it's a different kind
of argument, different kind of issue.

But I think of us as having something close to universal suffrage now, but
that it's recent. I think that we have an anti-democratic tradition in the
United States that shows up throughout this history and that is still fairly
strong, and that we also have the rather peculiar fact that we have extremely
low electoral turnout, which is--we may have universal suffrage, but that may
not be the same thing as having a vibrant democracy, when only 50 percent of
the people are voting, even in a close election.

GROSS: Just looking at how the post-election is playing out in the courts and
possibly in the Florida Legislature, what outcome do you think would be best
in terms of precedent for the future of voting and democracy in America?

Prof. KEYSSAR: That's a good question. In principle, I think that the
outcome would be best that focuses on the rights of voters to vote because
those are the people who really do have rights. I mean, neither Al Gore nor
George Bush has a right to be president. Voters do have the right to vote and
have their votes counted. I suspect that, or my own intuition would be that a
hand recount of probably all of Florida's ballots would be the best in terms
of precedent; that it would establish that the error rates of machines are not
going to be tolerated, and that the way to deal with a very close,
whisker-thin election is to focus on counting the ballots rather than
necessarily on legal maneuvering to see who wins the last technical legal
battle.

GROSS: What do you think the worst-case scenarios would be in terms of the
precedent that would be set?

Prof. KEYSSAR: I think, in general, the worst-case scenarios are those where
the precedent is set that you can get away with naked partisan intervention.
I think that, for example, if the Florida Legislature were to intervene and
were to select the electors after, say, some partial recounting process began
to suggest that Vice President Gore might be ahead, and if the Florida
Legislature got away with that, I think that that would be very negative as a
matter of precedent. I think that if it went to the House of Representatives,
and the House of Representatives got involved in a very partisan way, that
would also be a negative precedent.

On the other hand, I think that there's something to be said in terms of our
political culture and our knowledge of how things really work about this
process that has been going on, which, in some respects, is negative. But we
are all seeing that institutions and processes which we have often wanted to
think of as being neutral and fair-minded, that there really are strong
partisan elements in them and that these institutions are controlled by
political parties and that the political parties act in self-interested ways.
I'm not sure that that's a bad thing for us to learn about the way in which
our own system works.

GROSS: And do you think that it's inevitable that a political system work in
partisan ways like that?

Prof. KEYSSAR: I think it's inevitable that there will be strong pressures
for it to do so. I think that part of what we, as citizens, or part of what
we try to create institutions to do is to limit the extent to which the
parties can just control that or control it, say, just in their own interests.
I mean, for example, we have a two-party system, and the rules of elections
and election machinery in most states makes it quite difficult for third
parties to make much headway.

Now I think that it's inevitable that parties are going to play a role in this
machinery. They're the people who care most. They're the people whose
livelihoods depend on it. But I think that our current system is too heavily
reliant on the parties, and that the creation of different rules and different
institutions that will make it fair for everybody is certainly possible.

GROSS: Alexander Keyssar is the author of "The Right to Vote." He's a
professor of history and public policy at Duke University.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Kim Alexander on devising new voting methods to replace
antiquated system in the United States
TERRY GROSS, host:

Most of the ambiguity surrounding this contested election are a result of the
punch-ballot system used in Florida. This technology dates back to the '60s.
But we're living in the Internet era. Why aren't we using the Internet to
vote? My guest, Kim Alexander, was a member of the California Internet Voting
Task Force, which was convened by California's secretary of State, to study
the feasibility of voting through the Internet. The task force issued its
report early this year. Alexander is also the president of the California
Voter Foundation.

In Philadelphia, where I live, we use the old lever voting machines, a system
that's much older than punch cards. I asked Alexander about the obstacles to
updating old voting systems.

Ms. KIM ALEXANDER (Former Member, California Internet Task Force; President,
California Voter Foundation): One obstacle is that sometimes it takes a
crisis to make change happen in government, and I think that's what we're
seeing right now. It's not any news to our county election officials all over
the country that there's a need for an updated voting technology. A lot of
them have been asking for it repeatedly for years, and it's up to the county
governments to provide the resources, or historically it's been up to the
county governments to provide those resources to update voting technology and
machines.

Now this is just like any other government procurement project, where you have
to go out, find a vendor, make an investment, and that investment, you need to
be able to reap the benefits of for at least, you know, 15, 20 years in order
to get your money's worth for that investment. These are not cheap machines.
Already we've seen in California our speaker and our secretary of State are
calling for state matching funds for local governments to be able to update
their voting technologies, and it's going to take resources to get there.
It's also going to take money to spend on poll workers, because this isn't
just about the technology; it's also about the instructions that voters are
given when they show up at polling places, and whether the people giving those
instructions themselves are being adequately trained, paid for their time,
honored for their work. So that's part of the problem, too, that we need to
look at and that we need to focus on.

GROSS: One of the questions a lot of people are asking, in the light of the
problems that Florida had with its punch ballots, is, `Well, why can't we just
vote on the Internet? We're using the Internet for so much, including
shopping. Why can't we vote that way, too?' And that's something that you
studied as a member of the California Internet Voting Task Force. First of
all, explain to us, what would it mean to vote on the Internet? How would
that work? What system did you try in California?

Ms. ALEXANDER: There's two kinds of Internet voting. There's Internet voting
at the polling place, where you go into a machine, and it's staffed by an
election officer, and you still need to sign in and be verified in the way
that you are now to be a voter that's eligible to vote and registered. And
then there's remote Internet voting, which is voting over the Internet from
home or from work.

And the polling place Internet-voting approach was tried out in four counties
in California, including the county where I vote. Remote Internet voting has
been tried out in Arizona, but the California Internet Voting Task Force felt
that that method has a lot of problems and potential for fraud.

GROSS: What are some of the problems that made your group decide not even to
try it?

Ms. ALEXANDER: Well, let me give you an example. I mean, I hear a lot of
people say to me, you know, `Hey, I can bank online, and I can shop online.
Why can't I vote online? I'm conducting all these other sort of transactions
on the Internet. Why shouldn't voting be among them?' And the answer to that
question is that voting is not like those other transactions.

When you make a deposit in your checking account, and you put a hundred
dollars, transfer a hundred dollars, from your checking account to your
savings account or whatever your transaction is, your bank is going to send
you back a message saying, `Hi, Terry. We got your deposit, and we've
deposited it in this account, and you deposited a hundred dollars.' It will
confirm what your transaction was. But with voting, we would not want our
county elections office to send back an e-mail message saying, `Hi, Terry. We
got your ballot, and we know how you voted. You voted for this person and
that person.' It's not like any other transaction that takes place on the
Internet.

Some people think that we could use PIN numbers to give people access to vote
over the Internet, and that's what they tried out in Arizona. The downside of
PIN numbers is that I think if we have PIN numbers as the authentication
technique for people voting remotely over the Internet, we'd have a situation
where you could very easily swap or sell your votes, and we saw that happening
already in the last election. I think that if we were to introduce remote
Internet voting using PINs, it would really exacerbate the problems of vote
swapping and vote selling.

So one of the really challenging things about remote Internet voting is trying
to authenticate the voter and make sure that people actually vote for
themselves and only vote once while, at the same time, protect the right to
cast a secret ballot. And in the workplace, where a lot of people can be
expected to be casting their ballots, if we allow for remote Internet voting,
you may have a situation where your employer or your co-worker or your
supervisor is physically standing over your shoulder, watching you while you
cast your ballots and vote over the Internet. That's a really chilling
situation and something that, I think, we need to be very careful that we
don't create for people who already work in politically coercive environments.

GROSS: OK. So you made a pretty strong argument against remote Internet
voting.

Ms. ALEXANDER: Right.

GROSS: What's Internet voting like in the polling place? Why would you need
the Internet if you have to show up at the polling place anyway?

Ms. ALEXANDER: One advantage of polling-place Internet voting is that it
could allow the county elections office to set up polling places in more
locations, other than just county election precincts. So, for example, you
could vote at the bank, or you could vote at the supermarket or the shopping
mall, places where people might be anyway, and in that way make voting more
convenient for people.

The same is true for computerized voting or any voting mechanism. It's really
just a question of how you transfer the ballots. And some people like the
idea of transferring ballots over the Internet because you can do it
immediately from the precinct itself. Other people think you should just
transfer the ballots by putting them onto this memory module, as is used in
the touch-screen systems, and bring them physically back to the elections
office that way.

So, you know, there's a lot of downsides for any technology that you use. And
if you use paper ballots, well, we've heard stories about people who leave a
box of paper ballots on the top of their cars and drive off from the polling
place, and they fall into a ditch or something like that. And so, you know,
if you have people who are physically handling the ballots, whether it's in a
box or it's in a memory module, you do run the risk of human error. So that's
one argument for using the Internet to transmit those ballots to the central
counting office.

GROSS: My guest is Kim Alexander, president of the California Voter
Foundation. She was a member of the California Internet Voting Task Force.
More after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Kim Alexander, president of the California Voter
Foundation. She was a member of the California task force which studied the
feasibility of voting on the Internet.

Now in the California Internet Voting Task Force that you were part of, you
participated in Internet voting in a polling place. This wasn't a real vote.
I mean, this was just a kind of experimental vote.

Ms. ALEXANDER: Right.

GROSS: So when you voted, what did you use? You had a computer screen?

Ms. ALEXANDER: I had a screen, I had a mouse, and I could go through my
ballot. It would only let me choose one candidate per race; I couldn't
overvote, which is a real advantage of the touch-screen or keyboard voting
technology. And at the end of the process, I could go back and see what my
votes were, I could start over if I wanted to start over.

As long as I was in that booth and making those decisions, I had as much
flexibility as I wanted to move back and forth among my ballot choices. And I
had 20 decisions that I had to make on my ballot. Here in California, we have
a lot of initiatives all the time on our ballots. And so it can be a long
process for people to go through all those choices, and I liked the
flexibility of being able to go back and forth and see how I had voted in the
previous race or change my vote if I wanted to change it as I went.

GROSS: What were the conclusions of the California Internet Voting Task
Force?

Ms. ALEXANDER: Well, our overall message was, really, to be cautious. I
mean, it's funny because when I came onto the task force, the very first
meeting, I was the person who was the one person in the room who said, `Can we
all just agree that we should vote on the Internet?' And I was really
grateful that my colleagues, who were older and wiser and more patient than
me, rejected my suggestion and said, `No, we need to study this. We can't
just jump to that conclusion.' And after studying it myself, I have developed
a lot of reservations. I mean, our main message was to be cautious.

GROSS: So will California continue to experiment with and pursue the
possibility of Internet voting?

Ms. ALEXANDER: I think so, although I think that the benefits of touch-screen
or, you know, any kind of computerized voting are pretty much the same as
Internet voting at a polling place. I mean, it's really just a matter of how
you transfer the ballots. I do think that we will continue to see an increase
in the use of computers in precincts and in early voting tests, in particular.
I mean, one of the hard things to deal with, with any voting technology, is
that it is expensive to implement this kind of change, and it needs to be able
to last for a long time. And, you know, new technology changes very quickly,
and it's hard to keep pace, as we all know, with those changes.

So it's a big investment for the county election offices to make, and that's
why I just keep saying that I hope that, you know, we won't rush to make some
unwise investments and, instead, will take the time that we need to take to
survey voters, listen to voters, find out what people want and try to come up
with a system that will be both feasible and will work for a long time and
will meet everybody's needs. I mean, that's really a hard, tall order.

GROSS: If you're doing Internet or computerized voting, is there any way of
doing a recount? Is there a way of having a paper trail so that you have a
way of doing a recount? Say there's a virus or a hacker interfering with the
system.

Ms. ALEXANDER: Well, it's interesting, you mentioned hackers, and I'll tell
you, one of the experiences that I had that really turned my attitude around
about Internet voting was I was at a Computers, Freedom and Privacy
Conference a couple years ago in Washington and had just been appointed to the
task force and had spent the conference going around asking people at the
conference, you know, `What do you think about Internet voting?' just to try
to get, you know, general opinions. And at lunch one day, I put the question
out to my table, and the guy sitting next to me, who turned out to be a rather
infamous hacker--I didn't know it at the time, but he started rubbing his
hands together and said, `Cool. I can't wait to see who the hackers want to
have for president.'

And that just really caused me to sit up and turn around and say, `Wait a
minute. This may not be the way that we want to go.' And I think it's really
interesting that, you know, people who are very technologically savvy, if you
talk to people who really understand technology, they are the biggest
opponents to Internet voting. The people who actually do the programming and
work in the hardware of the Internet, they are the ones who, more than anyone
else, will say, `This would be a really bad idea.' So I think we need to
listen to those people.

And, you know, I'm keeping an open mind. I'm not writing it off. I mean, I'm
not opposed to Internet voting. I wouldn't predict that we'll never be voting
from home. You know, there may be a way to vote over the Internet using, you
know, a different kind of device, other than a computer, like a Palm Pilot.
You know, that's a whole new area that needs to be studied.

GROSS: Kim Alexander, thanks so much for talking with us.

Ms. ALEXANDER: Thank you for having me.

GROSS: Kim Alexander is the president of the California Voter Foundation and
was a member of the California Internet Voting Task Force, which issued its
report in January.

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.