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DEBORAH AMOS: From Minnesota Public Radio and the Center for Investigative Reporting, this is an American RadioWorks Special Report, Whose Vote Counts? I'm Deborah Amos.

JAZZ HAYDEN: All of us have one vote, George Bush, Bill Gates, and myself. And it's probably the only time in America that we are all equal.

ERNIE HAWKINS: It's the single most important thing that government does. This is where we get our leaders.

DEBORAH AMOS: In the last presidential election, some 6 million votes weren't counted because of antiquated voting machines and other problems at the polls. America pledged to overhaul the voting system. But are we ready for November 2004?

SPEAKER: We're operating in this virtual reality. We have virtual chads, and that is scary.

JOHN LEWIS: Voting should be as simple as getting a glass of water, but we make it so hard.

DEBORAH AMOS: In this hour, Whose Vote Counts? A special report from American RadioWorks. First, this news update.

This is a special report from American RadioWorks, Whose Vote Counts? I'm Deborah Amos. Voting is the foundation of our democracy, but in the 2000 presidential election, Americans discovered deep flaws in that foundation.

WILLIE WHITING: He said, we have you listed as a convicted felon. You have been purged from our system. You've lost all your civil rights.

SPEAKER: There were groups of people in front of some of the precincts, especially the precincts where there are a lot of Asian Americans telling these people that they would be deported if they voted for such and such candidate.

SPEAKER: And then she took our driver's license one by one. She said, no, you can't vote. You're not in the system.

DEBORAH AMOS: Voting problems in Florida and elsewhere forced Americans to confront an embarrassing reality. We boast about being a great democracy, but we do a lousy job counting votes. Political experts say that in a fair modern election, no more than 1% of all votes should be tossed out because of polling errors. In 2000, the number was nearly four times that. Over the coming hour, we'll look at why so many votes don't count in America and whether or not those problems will get fixed by November of 2004.

SPEAKER: Have you voted on one of these machines?

DEBORAH AMOS: When Americans go to the polls to elect the next president, as many as half of them could be casting their ballots on computerized touchscreens. They're manufactured by a handful of companies who say these new machines are fast, secure, and much more accurate than the old punch card system. But Michael Montgomery reports that a growing number of critics, including computer scientists, say touchscreen voting is vulnerable to fraud and manipulation.

MICHAEL MONTGOMERY: History is often a tale of cycles. At the end of the 19th century, American democracy was in crisis brought on by rampant ballot stuffing, vote buying, and other electoral shenanigans. A technological innovation promised a solution.

SPEAKER: Mr. Citizen moves the operating lever to the right, which unlocks the machine and locks out the world.

MICHAEL MONTGOMERY: Mechanical lever machines concealed the voter behind a thick curtain and used rotary counters instead of paper ballots. It was hoped the lever machines would protect voting from corrupt politicians like New York City kingpin William Boss Tweed. He's reported to have said it wasn't voters who determined elections but those who counted the votes. By the 1950s, nearly half of America's voters were using lever machines.

SPEAKER: For the first time, the secret ballot is really secret. His vote is made and cast, untouched by other human hands or minds. And that's a long step up from tyranny.

MICHAEL MONTGOMERY: Only a decade later, the computer revolution led to the use of punch cards, a seeming resurgence of paper. But the 2000 presidential vote exposed serious problems with punch cards. Today, we're on the verge of another voting revolution.

SPEAKER: Now your ballot's loading.

MICHAEL MONTGOMERY: Sleek, fully electronic machines with color consoles similar to bank ATMs are spreading across America. Manufacturers claim the machines offer near-perfect accuracy. Many election officials are happy with the results so far, but there have been problems.

This time, they voted by touching computer screens, brand new machines, same old problem.

When touchscreen machines debuted in Florida in 2002, elections in the state's two biggest counties were thrown into chaos once again. In Palm Beach County, home of the infamous butterfly ballot, officials tried to play it safe using the new machines in seemingly low stakes municipal races. As the polls began to close on an early spring day, complaints started rolling in.

CHARLOTTE DANCIU: It's amazing. To me, it's like a high school election going on here.

MICHAEL MONTGOMERY: Charlotte Danciu is an attorney in Boca Raton, a wealthy beachfront community just north of Miami. Danciu's father, Emil, was a Republican former mayor competing in a four-person race for two slots on the city council.

CHARLOTTE DANCIU: They kept touching the screen, and it was coming up somebody else's name. And that the poll workers were doing things like pulling the plug out of the machine, and they were kicking the machine. And because there's no receipt, people were saying, well, I don't know what my vote recorded as.

MICHAEL MONTGOMERY: Emil Danciu lost the council race even in his home district. The Dancius suspected malfunctioning touchscreens mistakenly gave votes to his competitors. So the Dancius filed a lawsuit. And they hired Rebecca Mercuri, a computer scientist who is an outspoken critic of electronic voting machines.

REBECCA MERCURI: The problem is that when the vote goes in, it's all invisible. It just gets converted into electrons. You can't open the box and see that your vote went from the thing you touched on the screen and is now recorded on the cartridge. So there's no way for you to actually visibly see that.

So these have already been programmed.

MICHAEL MONTGOMERY: With Rebecca Mercuri at their side, the Dancius toured the warehouse that houses Palm Beach County's touchscreen machines. Rebecca Mercuri suspected faulty computer software. She wanted to take a look inside the machines, especially at the computer's so-called source code. That's a unique set of program instructions created by the manufacturer.

REBECCA MERCURI: But we were told again and again that all of these are protected by trade secrecy. They're not required to reveal them unless a court authorizes that.

MICHAEL MONTGOMERY: The Dancius were shocked to discover that the machine software used to tabulate votes was shielded from the public as part of a $14 million contract Palm Beach County signed with the manufacturer, Sequoia Systems of Oakland, California. Such non-disclosure agreements are common in the election world. Voting machine companies say they need them to protect their copyrighted program code from tampering and from the competition.

The Dancius weren't allowed to handle the actual machines used in the vote, but Rebecca Mercuri did get her hands on a demonstration model. Palm Beach election officials watched nervously. a

REBECCA MERCURI: Now, see I just did it again. Watch.

MICHAEL MONTGOMERY: Mercuri pressed her thumb and index finger simultaneously on two candidates' names. Suddenly, a third candidate was selected.

REBECCA MERCURI: And now, we'll do it again. I mean, I think that's a problem.

I showed her how it was possible using a touchscreen to vote for something you didn't actually touch for.

MICHAEL MONTGOMERY: This was precisely the kind of malfunction Mercuri suspected in the Danciu case. But Palm Beach County elections supervisor Theresa LePore told Mercuri it wasn't a malfunction. It was just a trick.

THERESA LEPORE: You're trying to trick the system. Normal persons would not do that.

MICHAEL MONTGOMERY: LePore pointed out that voters could check their selections on a review page before the ballot was cast. Florida State officials and the manufacturer Sequoia insisted the machines were just fine. Other election officials suggested Danciu's complaint was really a case of sour grapes from a fading politician. In the end, the Circuit Court judge dismissed the case. Though he agreed there were technical problems with a small number voting machines, they weren't enough to change the outcome. And the judge said the Dancius failed to show evidence of deliberate fraud.

DAVID DILL: I think we need to satisfy the people who are on the losing end of an election that the election was fair and honest.

MICHAEL MONTGOMERY: David Dill is a professor of computer science at Stanford University.

DAVID DILL: There was a famous quote by Dick Tuck, which is, "The people have spoken, the bastards." And so it was one of the least gracious concession speeches I've ever heard, but it had a positive aspect to it, which is, I lost the election fair and square.

MICHAEL MONTGOMERY: The Dancius didn't think they lost fair and square because without paper, there was no way to independently audit the vote. But David Dill takes this point further. Without paper ballots to check the integrity of the system, he believes a programmer could manipulate the computer code and throw a major election without anyone ever finding out.

DAVID DILL: We're moving to a system that's computerized where there may be a very small number of people, possibly even one person, who could change hundreds of thousands or even millions of votes around the country.

MICHAEL MONTGOMERY: David Dill is campaigning to stop the use of electronic voting machines, unless they can produce an independent audit trail. His quest got a boost recently when researchers at Johns Hopkins University reported uncovering serious security flaws in secret program code produced by the Diebold company, one of America's largest voting machine manufacturers. The researchers claimed an outsider could hack into the system and change votes.

DAVID DILL: That indicates to me that the people who designed that software and the people who are supposed to be inspecting and certifying it just don't know enough about computer security to be dealing with something as sensitive as electronic voting.

MICHAEL MONTGOMERY: Diebold rejected the charges and said the study was biased. The company insists its machines are secure. But the study's stark conclusions have sent tremors through local government.

ERNIE HAWKINS: To people like the members of my board of supervisors, it sort of scares the bejesus out of them.

MICHAEL MONTGOMERY: Until recently, Ernie Hawkins was chief of elections in Sacramento County.

ERNIE HAWKINS: Probably had no idea that an election office was as big, huh?

MICHAEL MONTGOMERY: As he walks across a cavernous warehouse, Hawkins points to stack upon stack of mobile polling booths, their metal gleaming in the morning sunshine. They housed the Pollstar punch card voting machines used by the county for more than 20 years. There are 7,700.

Are all these units going to disappear?

ERNIE HAWKINS: Mm-hmm, yes.

MICHAEL MONTGOMERY: But what will they be replaced with? Hawkins isn't sure. And new federal guidelines don't say. He says he's never had any problems with punch cards, but civil liberties groups have argued successfully that the machines discriminate against minority voters. Sacramento and eight other California counties are under court order to abandon punch cards. And the issue flared up again in the California recall controversy.

Ernie Hawkins likes some elements of the new touchscreen machines, but he's concerned about whether the technology is too young and its price tag estimated at $30 million for the county. And he has another worry.

ERNIE HAWKINS: One of the major concerns is as counties begin moving into high-tech equipment and most of us without any high-tech staff, where does that support come from? And if the support comes from the vendor, do you trust the vendor? If you have large companies essentially running elections in America, where does that leave us?

MICHAEL MONTGOMERY: This past summer, election officials from around the country gathered in Denver in a hotel ballroom draped with flags.

SPEAKER: The great Keystone State of Pennsylvania has 20 registered--

MICHAEL MONTGOMERY: Though it looked and sounded like a political convention, it was an annual conference and trade show.

SPEAKER: Denver, Colorado.

MICHAEL MONTGOMERY: As delegates gossiped and traded state lapel pins, critics of electronic machines, including David Dill and Rebecca Mercuri, organized a separate gathering in the same hotel. Their sensational warnings about touchscreen voting drew front page coverage in the local newspaper and complaints from election officials and company executives attending the conference.

BILL WELSH: I'm offended by the fact that they would even think that we would design and implement systems that had the potential to create a fraudulent election environment.

MICHAEL MONTGOMERY: Bill Welsh is chairman of the board of Election Systems & Software. ES&S bills itself as the world's largest producer of election equipment. About 100 million ballots were counted on ES&S machines in the 2000 US elections. Welsh says David Dill's doomsday scenario of a rogue programmer sabotaging a presidential vote, while conceivable in theory, ignores elaborate safeguards in the new machine's rigorous testing and America's complex election system.

BILL WELSH: To even think that there was an opportunity to influence the outcome of an election either through a machine manipulating the results or somebody in this chain of about a thousand people is absolutely ludicrous. I mean, you would have to have so many people complicit in that process that I would venture to say it's virtually impossible.

MICHAEL MONTGOMERY: There is a middle ground in the debate. A multi-year study by scientists at MIT and Caltech found that electronic voting was no more vulnerable to fraud than earlier technologies. But the study criticized touchscreen machines as too secretive and for failing to produce an independent audit trail. Some manufacturers are trying to remedy that.

GUY DUNCAN: This isn't actually a prototype unit that we've attached a receipt printer to--

MICHAEL MONTGOMERY: Guy Duncan, vice president of technology at ES&S, demonstrates a system that he says is an answer to critics of electronic voting.

GUY DUNCAN: Just like touching a screen.

MICHAEL MONTGOMERY: Duncan taps a touch screen. His sample ballot is cast. And within a few seconds, the machine also rolls out a paper receipt detailing his selections. In a real vote, the paper would slide behind plexiglass into a locked box.

GUY DUNCAN: So this system has created a voter-authenticated paper trail that allows the voter to basically make sure that their vote was casted as they intended. Now, the advantage to this is that it satisfies the voters who say, how do I trust that you're not manipulating my vote?

MICHAEL MONTGOMERY: There is growing interest in machines like these that create what is called a voter-verified paper audit trail. But most of these systems are untested. They will not be available to election officials who are under intense pressure to retire old machines by 2004.

In Sacramento, after months of deliberation, Ernie Hawkins recommended the county put off a purchase of new voting machines. Supervisors agreed and authorized an inexpensive upgrade to the existing system. Hawkins believes electronic voting machines are safe, but he says that won't matter much if voters believe they are unsafe. And Hawkins says that ingredient, confidence in the integrity of the system, is fundamental if elections are to be a success.

ERNIE HAWKINS: It's the single most important thing that government does. It's where we get our leaders. And it's where we decide the issues. And it has to work. If the voters lose confidence in this process, they lose confidence in government.

MICHAEL MONTGOMERY: Many people involved in elections disagree with Ernie Hawkins. Echoing the promise of lever machines 100 years ago, a prominent national election official recently declared that electronic machines had triumphed over humans. The days of paper ballots were history. But at the Denver conference, it seemed the human touch could be making something of a comeback. Much of the discussion was on how to keep paper in the voting process in order to make machines more compatible with humans. I'm Michael Montgomery.

DEBORAH AMOS: You're listening to Whose Vote Counts? produced by the Center for Investigative Reporting and American RadioWorks, the national documentary unit of Minnesota Public Radio. This report is part of public radio's special coverage, Whose Democracy is It? Just ahead, voting problems that go beyond technology.

SPEAKER: It was a real struggle to gain the right to vote. People died for that right. Some of us gave a little blood on the bridge for the right. And we must never ever give up.

DEBORAH AMOS: Our program continues in just a moment from NPR, National Public Radio.

You're listening to a special report from American RadioWorks, Whose Vote Counts? I'm Deborah Amos. What happened in Florida during the 2000 election shook Americans confidence in our electoral process. But while the virtues of punch cards versus touchscreens are debated, other flaws in the voting system get ignored. Rebecca Perl reports that some 40 years after the civil rights movement, many Americans are still struggling to cast their votes.

SPEAKER: I'm just seeing people stretching over that fire area.

REBECCA PERL: In the spring of 1965, African Americans set out on a protest March from Selma, Alabama, to the State Capitol in Montgomery. They were marching for the right to vote.

SPEAKER: (SINGING) There is that move

REBECCA PERL: They didn't get far. The first thing they saw as they left Selma was a sea of blue. The Alabama State Patrol had no intention of letting them cross the Edmund Pettus Bridge

JOHN CLOUD: Continue this march. And I'm saying that this is an unlawful assembly. You have to disperse. You are ordered to disperse.

REBECCA PERL: John Lewis, a young organizer, was there.

SPEAKER: We'll not proceed.

JOHN LEWIS: You saw these men putting on their gas masks, beating us with nightsticks and bullwhips, trampling us with horses, releasing the tear gas. I was hit in the head by a state trooper with a nightstick. And I had a concussion there on the bridge. I thought I was going to die.

REBECCA PERL: Across the nation, Americans saw these violent graphic images on television, and many were outraged. In the summer of 1965, President Lyndon Johnson signed the Voting Rights Act, which did away with literacy tests that kept Blacks from voting across the south. The Act also assigned federal monitors in areas where there had been discrimination and intimidation.

LYNDON JOHNSON: Their cause must be our cause too because it's not just Negroes, but really it's all of us who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.

[APPLAUSE]

REBECCA PERL: In many ways, the Act was a huge success. African Americans elected Black politicians to office in places where just two years earlier no Blacks had been allowed to vote. 20 years after being beaten and bloodied in Alabama, John Lewis became a Democratic Congressman from Atlanta, Georgia. But in the year 2000, Lewis was still having trouble voting. Lewis planned to vote in his working class neighborhood in southwest Atlanta as soon as the polls opened at 7:00 AM before he went to work.

JOHN LEWIS: I've been voting here since 1969. This is Venetian Elementary School.

REBECCA PERL: But when he got here, the polling place was still closed.

JOHN LEWIS: I went in. There were other people waiting. And so I just jumped in my car, drove downtown, and went in and saw the head of the Board of Elections. And she said we will get it open right away. But I came back here, and it was still not open.

REBECCA PERL: As it turned out, the lone poll worker with a key was an hour late. While this may not seem like a long time, it was too long for people who have to get to work on time or get their children to school. And once the poll finally did open, half of the voting machines were broken, so the waiting continued.

JOHN LEWIS: That make me really angry. People struggle too hard and too long to exercise this right. And now, the right to vote is being delayed. And when it's delayed, it's being denied.

REBECCA PERL: Congressman Lewis says and studies support that financially strapped minority communities suffer from poorly run election systems more often than affluent suburbs because there's less money to hire poll workers, buy new equipment, or make contingency plans. And Lewis wasn't the only one to have problems at the poll that day. Across Georgia, 94,000 votes weren't tallied due to broken equipment or voter rolls that were incomplete. In total, 3.5% of the vote was thrown out, the worst of any state.

JOHN LEWIS: Because the ballot was not punched through, only dented--

SPEAKER: And the intention of the voter can be fairly and satisfactorily ascertained.

REBECCA PERL: It was Florida's hanging chads and butterfly ballots that got all the attention in 2000, but there were other problems in that state too. Apostle Willie Whiting, a Tallahassee pastor, was stopped by a poll worker.

WILLIE WHITING: He said, we have you listed as a convicted felon. You have been purged from our system. You've lost all your civil rights.

REBECCA PERL: Whiting was one of thousands kept from voting in Florida by an aggressive purge list designed to keep ex-felons from voting. Voters were yanked off the rolls if their names were similar to a former prisoners. And in poor neighborhoods in Chicago, older machines discarded votes at a rate of nearly 4 in 10.

In Saint Louis, Missouri, police were brought in to tell thousands of African Americans, who waited three hours because their names were mistakenly omitted from the voter rolls, that they would have to go home. Problems at the polls are nothing new nor are laws enacted to fix the system, but some still aren't being enforced.

SPEAKER: And here, would you please print and sign?

ELYSE NATHAN: OK, we could do that.

REBECCA PERL: Elyse Nathan is a 50-year-old, petite, blonde woman who looks a bit like a sprite. Because of multiple sclerosis, Nathan uses a specialized cane on wheels to get around. Nathan lives in West Orange, New Jersey. And in 2003, she was able to vote in the summer primaries at a new polling location without a problem.

ELYSE NATHAN: Thank you for your help.

SPEAKER: OK.

ELYSE NATHAN: We're voting. Official.

REBECCA PERL: But that was only after numerous phone calls and an inch thick file of correspondence with election officials to get her polling place changed, plus an embarrassing scene the year before.

ELYSE NATHAN: My ballot says that the location is handicapped accessible. And when I got there, I said, I need help getting down the steps. So this elderly gentleman, who was working the polls, said, we have a little ramp for you to use.

REBECCA PERL: The ramp, which turned out to be a piece of plywood covered with outdoor carpeting, looked unsafe. And the poll worker who brought it out decided against using it. Nathan waited three hours until suddenly--

ELYSE NATHAN: I hear fire engines, the sirens going. I turn around. I see the lights flashing. I said, oh, my goodness, there's a fire in the church. And no, they were there to help me. And these four, very large firemen carried me down the steps, and then waited for me to vote, and carry me back up the steps.

REBECCA PERL: For Nathan, it's not asking too much to be guaranteed a polling place she can reach on her own, but poll workers where Nathan had trouble voting see it differently.

SPEAKER: She was told that is not handicapped accessible. She just wants to make trouble.

SPEAKER: Yeah, I've been working here x amount of years, and nobody's ever come that couldn't manage.

REBECCA PERL: Or they added, she could have avoided an ordeal by voting absentee. But several studies have shown that absentee ballots are often only counted if their numbers would influence the outcome of an election. A report by the General Accounting Office from 2001 found that 84% of polling places still have impediments that make it difficult for 30 million disabled people to get to the polls.

ROSA LOZANO: [SPEAKING SPANISH]

REBECCA PERL: In 1973, an amendment to the Voting Rights Act required that in counties where more than 5% of the people have limited English skills, bilingual voting materials must be made available. So Spanish language ballots are the law in Upper Manhattan where Rosa Lozano lives. Lozano is a 78-year-old woman originally from the Dominican Republic. Though she's been a citizen for almost 20 years, Lozano doesn't speak much English. Her daughter, Actagracia Santos, acts as her translator while I ask some questions about voting.

Is the ballot in Spanish?

ACTAGRACIA SANTOS: [SPEAKING SPANISH]

ROSA LOZANO: No.

REBECCA PERL: Are the instructions in Spanish?

ACTAGRACIA SANTOS: [SPEAKING SPANISH]

ROSA LOZANO: No.

REBECCA PERL: Is there someone there who speaks Spanish to help you?

ACTAGRACIA SANTOS: [SPEAKING SPANISH]

ROSA LOZANO: No, en Inglés.

REBECCA PERL: New York City election officials say they're working to make sure materials are translated throughout the city, but it takes time. Across the country, many municipalities say it's a matter of resources. And some politicians wonder if it's worth it.

ROY BLUNT: English really is the principal language of legal communication in America.

REBECCA PERL: Roy Blunt is Republican majority whip in the US House of Representatives and a former secretary of state from Missouri. He says given the number of languages that immigrants speak, it's a problem that's not so simple to solve.

ROY BLUNT: You can accommodate some major language groups, but the idea that you'd accommodate all major language groups is not as easy as you would think.

REBECCA PERL: Blunt also supports a new federal voting requirement that some say will add yet another obstacle to voting. It's a law that requires people who register to vote by mail to show identification at the polls. Lloyd Leonard of the League of Women Voters says the new requirement could discriminate.

LLOYD LEONARD: It is clear that upwards of 10% of lower income people don't have identification. Older people tend not to have a driver's license. People of lower income tend not to have a driver's license or that sort of identification.

REBECCA PERL: At issue here is an argument about how easy it should be to vote in America. On one side of the issue tend to be Republicans like Roy Blunt.

ROY BLUNT: I don't think there's anything wrong in a society where you have to have ID to do almost everything to ask that voters have some way to identify that they are who they say they are.

REBECCA PERL: Blunt cautions that we can't make voting too easy, or we'll end up with fraudulent elections.

ROY BLUNT: So they ask people to bring the same kind of ID. They'd have to have to get a library card to cast a ballot is not an unreasonable thing.

REBECCA PERL: On the other side are Democrats like Congressman John Lewis.

JOHN LEWIS: Voting should be as simple as getting a glass of water, but we make it so hard, so difficult, so inconvenient. A lot of the states-- especially in the south, you got to get registered. You got to show ID. You got to give your mother's maiden name. Maybe, just maybe if you're born in this country, if you come to this country, become a citizen, you become 18, you automatic register.

[JAZZ MUSIC]

DEBORAH AMOS: I'm Deborah Amos. In just a moment, Rebecca Perl continues our story with a look at one group of Americans that's denied the right to vote by law. You're listening to Whose Vote Counts? produced by the Center for Investigative Reporting and American RadioWorks, the national documentary unit of Minnesota Public Radio. This report is part of public radio's special coverage, Whose Democracy is It?

Major funding for American RadioWorks comes from the Corporation for Public Broadcasting and the members of Minnesota Public Radio. To see how your state stacks up when it comes to voting laws, visit our website americanradioworks.org.

While some groups are still fighting barriers at the polls, nearly 5 million Americans are barred by law from voting at all because of a felony conviction. A felony is any crime that carries a sentence of a year or more in prison. The disenfranchisement of criminals is based on the ancient notion of civil death. People who committed certain crimes were literally banished from the community. Today, the notion is still alive.

The laws vary from state to state. For example, in Maine, a convicted murderer may vote while still in prison, but in Virginia, someone arrested for selling drugs when he was 18 may never vote again. Rebecca Perl reports that voting rights for felons may be the next suffrage movement in the US, one that could make a considerable difference in upcoming elections.

REBECCA PERL: In New York State, there are nearly 70,000 prisoners behind bars, most of whom serve their time in the rural areas north of the city. Yet overwhelmingly, these prisoners come from just seven neighborhoods in New York City.

JAZZ HAYDEN: All right, we are in Harlem, man. You on hallowed ground.

REBECCA PERL: Jazz Hayden is from one of those neighborhoods. He's one of 130,000 prisoners or parolees in New York State who can't vote because of a felony conviction. Hayden grew up in Harlem. It's a place in which he takes a lot of pride.

JAZZ HAYDEN: It's referred to as the Black capital of America. Some of our most noted heroes come out here. They named the streets after them, Malcolm X, Adam Clayton Powell.

REBECCA PERL: As Hayden explains it, just about everyone in Harlem has a brother, or a nephew, or a cousin who's locked up. In New York, as across the country, there are more Blacks in prison than whites. Though Blacks only make up 15% of the state population, they make up more than half the prison population. Hayden was born poor, but Harlem was good to him. He ended up owning a building on the block where he grew up.

JAZZ HAYDEN: And I had a club in here. It was called the Taurians Two. It was a major club in Harlem back in the '70s.

REBECCA PERL: But somewhere along the line, something went horribly wrong because in the summer of 1987, Hayden was arrested for stabbing and killing a sanitation worker. And he was sentenced to prison where he spent the next 13 years. In prison, Hayden had a lot of time to think and read. He got a master's degree in theology. He also filed a lawsuit against the state on behalf of prisoners in New York.

New York's disenfranchisement laws date back to 1846, but most states passed similar laws in the years just after the Civil War. Marc Mauer is the assistant director of the Sentencing Project, an advocacy organization for prisoners in Washington DC.

MARC MAUER: In the late 1800s, southern legislators were adopting felon disenfranchisement laws with a specific intent of excluding Black voters absolutely at the same historical period when poll taxes literacy requirements were being adopted by many of these southern legislatures as well, all with the express purpose of disenfranchising Black voters so much so that one southern legislator at the time referred to the felon disenfranchisement laws as almost an insurance policy.

REBECCA PERL: Today, these laws still affect African Americans disproportionately so that nationwide, one in eight Black men is barred from voting. From state to state, the laws are a hodgepodge. Only Maine and Vermont allow prisoners to vote. The other 48 states don't. Some take the right away from those on parole or probation as well. A dozen states, half of them in the south, take voting rights away from anyone who has committed a felony for a lifetime, a punishment unheard of in the rest of the western world. It's a law Hayden is determined to change.

[HIP-HOP MUSIC] All my people up in Attica

Where you at

All my people up in Sing Sing

Where you at

All my people in

REBECCA PERL: On Saturday mornings, Hayden has a radio show on inmates and criminal justice.

JAZZ HAYDEN: The right to vote is fundamental to a democracy. It is not a privilege. It's a right. It's not something that some greedy politician--

REBECCA PERL: After the show, he's out on the streets talking about the issue in his neighborhood.

JAZZ HAYDEN: A friend of mine that I studied martial arts with in the past is having a tournament. And I think we'll stop by there, see what's going on.

SPEAKER: Yeah, we're getting ready to go, man.

SPEAKER: I'm going to the gym. Come on, hang out with me. Come on.

REBECCA PERL: Abdula Aziz is a martial arts teacher.

JAZZ HAYDEN: I'm doing a piece on felon disenfranchisement. We wanted to know, what do you think about that. Do you think people that have been convicted of a felony should have a right to vote?

ABDULA AZIZ: We just don't want no rapists or people that's crazy out here that's doing this unspeakable crimes to try to come and be our decision-makers when it comes to putting people in position.

JAZZ HAYDEN: How would you respond to the fact that 85% of the people that are in these prisons are us, people that look like us, and they are people of color. Now, listen now, every time they take a busload of people out of Harlem, they put them on the bus and send them upstate. It discriminates against people of color.

ABDULA AZIZ: As a man, let me say this. I'm going to retract my statement.

[LAUGHS]

Listening to your views--

JAZZ HAYDEN: It's coming up. So how you all see that? I bear witness to what you're saying.

REBECCA PERL: Hayden is very convincing. The NAACP Legal Defense Fund thinks so, too. Janai Nelson is a lead lawyer on the case. She's taken up his cause. Now, his suit has become a class action on behalf of Black and Latino prisoners and parolees in New York and the communities they come from. The suit charges the law is discriminatory and unconstitutional. Nelson sees the issue in the context of history, part of a long and continuing struggle for voting rights.

JANAI NELSON: We excluded women for a long time. We excluded non-property holders. We excluded other racial minorities despite the fact that this is really the bedrock of our society and to recognize that this sort of fight had to happen at each step of the way. And it really shouldn't be viewed any differently than any other struggle for suffrage in this country.

REBECCA PERL: That's not how Janice Grieshaber sees it. To her, people who kill deserve little sympathy.

JANICE GRIESHABER: It happened in her apartment in Albany. She had come home from her classes.

REBECCA PERL: Grieshaber's daughter Jenna was killed in 1997, just one week before her graduation from nursing school.

JANICE GRIESHABER: It was someone who had lived in her apartment building and had been watching her and following her.

REBECCA PERL: The killer was caught later that evening.

JANICE GRIESHABER: He still had blood on his shoes and he had a suitcase and he was trying to get out of town.

REBECCA PERL: The murderer turned out to be a man on parole. After her daughter's death, Grieshaber was instrumental in an effort to strengthen New York's parole laws, making it tougher for felons to get out of prison for good behavior. Today, she runs the Jenna Foundation for Nonviolence in Syracuse. Grieshaber says that violent criminals incur a debt that takes a lifetime to repay.

JANICE GRIESHABER: There's no question in my mind that people who have already shown a lack of judgment-- I don't want these people having access to making changes in my life. They've already done that.

REBECCA PERL: Grieshaber makes a distinction between violent and nonviolent crime. It's a common distinction. Some have even tried to convince Janai Nelson of the Legal Defense Fund that she would have a stronger case if she brought suit only on behalf of nonviolent criminals. But Nelson remains unswayed.

JANAI NELSON: Regardless of whether we consider you to be a good American, a law-abiding American, a PC American, the right to vote does not vary based on our different ideas about who you should be and what we would ideally like you to be as a person in this country.

DEBORAH AMOS: Our story on felons in voting continues in a moment from NPR, National Public Radio. This is Whose Vote Counts? a special report from American RadioWorks and the Center for Investigative Reporting. Rebecca Perl continues with our story about citizens who are barred from voting because of a felony conviction.

REBECCA PERL: Impact is a nonprofit arts organization for young people in Harlem.

[POP MUSIC] I didn't ever think that this machine was possible

REBECCA PERL: We're here with Jazz Hayden, a former felon on a mission to get prisoners the right to vote. His friend Jamal Joseph founded Impact, Hayden explains.

JAZZ HAYDEN: I mean, we have been knowing one another for over 30 years. We started out responding to the world that we found in different ways. His response was political. Mine was in the streets. But in time, we ended up in the same place, in prison.

REBECCA PERL: Today, Joseph teaches screenwriting at Columbia University. And like Hayden, Joseph is not happy about a state law that keeps both prisoners and parolees from voting in New York. He says prisoners are still members of society.

JAMAL JOSEPH: So if I'm a father, and if I'm working in the prison industry, and I'm sending money home to do the best I can to take care of my children, have I no say in redistricting, and education, and health care, and all those crucial, crucial issues?

REBECCA PERL: What makes the problem even worse, Joseph explains, is that most of the people in prison in the state come from New York City neighborhoods, yet more than 90% of them are incarcerated upstate, so they're counted as upstate residents by the census. This means less state and federal representation for communities like Harlem and fewer dollars for much needed services like affordable housing. And when prisoners come home, as most do, and go back to work and still can't vote, this, he says, is taxation without representation.

ROGER CLEGG: We don't let everybody vote in the United States. I mean, children frequently pay taxes if their income is above a certain amount.

REBECCA PERL: Here in what seems another world, just a five-hour drive from New York City, in the far suburbs of Washington is a land of subdivisions and strip malls where people come to get away from the inner city. These are the offices of Roger Clegg, an attorney with the Center for Equal Opportunity.

ROGER CLEGG: Someone who has committed a serious crime fails that minimum test of trustworthiness and loyalty that we require.

REBECCA PERL: Clegg believes that felons requesting their right to vote be reinstated should be handled on a case-by-case basis once their sentence is completed. But the grievance process in some states requires getting a pardon from a busy governor or getting a legislator to pass a law on your behalf. In Florida, more than a hundred thousand people are waiting for their applications to be reviewed. In the end, Clegg says the debate about whether felons should vote is a waste of energy.

ROGER CLEGG: What the NAACP should be doing, rather than complaining about the fact that a disproportionate number of criminals are African Americans, they ought to be figuring out, well, what can we do to keep such a high proportion of African American kids, particularly African American young men, from getting involved in crime? That's the problem that they ought to be focusing on.

[POP MUSIC] I promise

I got to be

And I got to be myself because nobody else got me

SPEAKER: Hanging.

(SINGING) Hanging there with me

SPEAKER: Drop the rock! Drop the rock! Drop the rock!

REBECCA PERL: There are more people in American prisons today than in any other time in history.

SPEAKER: The Rockefeller Drug Laws are a disaster. They're unjust, unfair, inefficient. They're an exorbitant waste of money and an exorbitant waste of human lives.

REBECCA PERL: 1 in 20 men can expect to spend part of their life in prison. The majority of prisoners in New York are there because of the Rockefeller Drug Laws. Passed in the 1970s, these laws carry a minimum sentence of 15 years to life for first-time drug offenses. So strict are these laws that they often mean that someone with a drug conviction spends more time in prison than someone who is in for murder. And these laws have been duplicated across the country.

On the 30th anniversary of their passage, about 250 people gather in a nasty drizzle in front of Governor George Pataki's New York City office to call for their demise. Opponents say the laws only succeed in filling the prisons with small-time drug users and street dealers while ignoring big-time traffickers. Women have been deeply affected by the drug laws.

JAN WARREN: They battered down the door. They came in both front and back. And in less than 10 minutes, I had seven guns pointed at my head. And I was at the stove picking up a French fry ready to eat it when that happened.

REBECCA PERL: Jan Warren is white, middle class, 52 years old, and a registered Republican. It was 1986, and Warren was trying to get out of a bad relationship when she discovered she was pregnant. Desperate to get home to California, she made a mistake. She agreed to sell cocaine for her cousin. It was the only time Warren sold drugs, and it turned out to be a police sting. Warren was given 15 years to life. But the irony of the situation didn't really hit her until one day in the prison yard.

JAN WARREN: On certain holidays of the summer-- because the yard season was Memorial Day to Labor Day. Basically, that was the best sunny weather. For a moment, you weren't in prison. You were just in any park USA. Except on those holidays, I realized that there was something missing, and that was the American flag. And then I realized there's no flag anywhere to be seen for us, those of us that were American citizens, those of us that felt we were part of our country, our society. It was gone. We couldn't see it. And that should have been my first clue that I wasn't a citizen anymore.

REBECCA PERL: Eventually, Warren wrote to Governor Pataki. And after serving 12 years, Warren was granted clemency, but not the right to vote. Unlike Jazz Hayden who will be able to vote again when he completes his parole, Warren is tethered to a lifetime parole and can never vote again. For Warren, this only makes the uphill battle to reenter society that much more difficult.

Disenfranchisement also has a profound effect on society as a whole, says Chris Uggen, a sociologist at the University of Minnesota. He found that had felons been allowed to vote in the last presidential election, it would have changed the course of history.

CHRIS UGGEN: We looked at the 2000 election, of course, which was very closely contested. And when we add in the votes of the disenfranchised felons, we find that Al Gore would have likely won the popular vote by over a million votes, and that indeed in Florida alone, Al Gore would have picked up between 60,000 and 80,000 votes, enough to swamp the narrow victory margin that George W. Bush claimed in that state.

REBECCA PERL: Uggen also found that shutting felons out of the process impacts state and national politics. Had felons been allowed to vote over the last couple decades, races across the country might have looked very different. That's because when given the chance, felons vote overwhelmingly Democratic. One critical difference would have been control of the US Senate.

CHRIS UGGEN: We found, depending on how you count, six to seven US Senate races, including those won by John Warner of Virginia, Mitch McConnell of Kentucky, and several others.

REBECCA PERL: Nonetheless, with few exceptions, Democrats in Congress have not championed the issue. Legislation to allow ex-prisoners to vote nationwide was brought up once in 2002 but failed. For one thing, appearing soft on crime might cost Democrats more votes than they would gain, suggests Uggen. Also, felons are a constituency that can't exactly fill Democratic coffers, say those who follow money and politics in Washington. So they don't get a lot of attention.

Janai Nelson of the NAACP Legal Defense Fund says that when it comes to voters, those in power are content with the status quo.

JANAI NELSON: People who are already in office are successful. They've made their way into office, and they've relied on the political system as it exists. And very few people want to rock the boat and bring in a new constituency that they may not be familiar with.

REBECCA PERL: This despite polls that show that 80% of Americans support restoring the right to vote to prisoners who have completed their sentence. For Jazz Hayden, the issue couldn't be simpler. All Americans should be allowed to vote.

JAZZ HAYDEN: Vote in America represents power because come election day, when I go to the voting booth and Bill Gates goes to cast his vote, all of us have one vote, George Bush, Bill Gates, and myself. And it's probably the only time in America that we are all equal. And to deny me that right is to say that I'm not a citizen. And I'm right back in the same situation that my ancestors were.

REBECCA PERL: The class action suit, Hayden versus Pataki, is expected to go to trial in federal court in New York in 2005.

[HIP-HOP MUSIC] People up in Attica

Where you at

All my people up in Sing Sing

Where you at

All my people in [INAUDIBLE]

Where you at

Come on

Where you at

Come on

Where you at

All my people up in Lompoc

Where you at

All my people up in Orient

Where you at

All my people up in [INAUDIBLE]

Where you at

Come on

Where you at

Come on

Where you at

REBECCA PERL: Throughout American history, who is allowed to vote has been a moving target. But slowly, the franchise is expanding, says Lloyd Leonard of the League of Women Voters.

LLOYD LEONARD: When our country was founded, only white male property owners were allowed to vote. And so the history of voting in this country has been the history of reaching out and broadening the number of people, the kinds of people really who are allowed to vote.

REBECCA PERL: Leonard says that Americans have always been caught between two opposing forces when it comes to voting, an impulse to be inclusive and a backlash from those who want to safeguard the vote.

LLOYD LEONARD: We saw the constitutional amendments after the Civil War to make it so African Americans could vote. We saw the constitutional amendment in 1920 that allowed women to vote. We've seen the expansion of the franchise. At the same time, we've seen resistance.

REBECCA PERL: Resistance that will likely still be with us when we vote for president in 2004. This is Rebecca Perl.

[MUSIC PLAYING]

DEBORAH AMOS: In an unprecedented effort to tackle the reasons so many Americans are shut out of the voting process, Congress passed the Help America Vote Act in 2002. President George W. Bush promised $3.7 billion to fund the Act.

GEORGE W. BUSH: Every registered voter deserves to have confidence that the system is fair and elections are honest, that every vote is recorded, and that the rules are consistently applied.

DEBORAH AMOS: Part of the money would pay for state of the art voting equipment. The machines must be user-friendly for both disabled citizens and non-English speakers. If there's a problem, provisional paper ballots must be offered. By law, states have to keep accurate voter rolls and properly train their poll workers.

But the voting problems America now has probably won't be fixed by November 2004 when we elect our next president. At last count, 20 states had yet to meet any of the Help America Vote Act requirements. No state meets them all. And the money from Washington has been flowing at a trickle.

JIMMY CARTER: So it's being robbed now of an opportunity to be implemented by the lack of funds.

DEBORAH AMOS: Former President Jimmy Carter monitors elections across the world.

JIMMY CARTER: When President Bush recommended his 2004 budget, what he recommended to implement the law was just one third of what the Congress had already said was really needed.

DEBORAH AMOS: In 2001, along with former President Gerald Ford, Carter chaired the commission whose findings were the impetus for the Help America Vote Act.

JIMMY CARTER: After the 2000 election in Florida, which was a debacle and embarrassing to us all over the world-- but that flurry of disappointment, and consternation, and queries all resulted in, I'd say, moderate reforms. And now, the tensions and the concerns have faded away.

DEBORAH AMOS: The Carter/Ford Commission found that while no system will ever be perfect, election officials generally agree that a good error rate is under 1%. The error rate in American elections tends to be more than 4%. That's unacceptable, says Lloyd Leonard of the League of Women Voters.

LLOYD LEONARD: In the last presidential election, there were four states, each decided by less than one half of 1% of the vote. We don't know who is winning elections because our system can't count the votes properly.

DEBORAH AMOS: And if people feel the system can't count the vote, they may decide, why bother? To Congressman John Lewis of Georgia, who fought for civil rights in the 1960s, that would be a terrible shame.

JOHN LEWIS: We have to be there every time there is an election. If it's only someone running to be a dog catcher, we have to be there to vote for that dog catcher. The vote is the most powerful, most precious, and most necessary nonviolent tool we have in a Democratic society. And we should exercise that right. If we don't, we will lose it.

[JAZZ MUSIC]

DEBORAH AMOS: Whose Vote Counts? was produced by the Center for Investigative Reporting and American RadioWorks as part of public radio's special coverage, Whose Democracy is It?

Our stories were produced by Rebecca Perl, Jamie York and Michael Montgomery, editors Deborah George and Dan Noyes, coordinating producer Sasha Aslanian, project coordinator Misha Quill, mixing by Craig Thorson, production assistance from Sarah Lancaster, Phoebe Larsen, Sarah Fazio, Inna Ponomarenko, Jason Dearen, and Michael Chandler, web producer Ochen Kaylan. The Center for Investigative Reporting's executive director is Burt Glass. American RadioWorks' managing editor is Stephen Smith. The executive producer is Bill Buzenberg. I'm Deborah Amos.

Major funding for American RadioWorks comes from the Corporation for Public Broadcasting and the members of Minnesota Public Radio. Funding for the 2003 public radio collaboration, Whose Democracy is It? also comes from the Corporation for Public Broadcasting.

To see the voting rules and rights in your state, visit our website americanradioworks.org. There, you'll find the audio and a transcript for this special and a complete archive of American RadioWorks. That's at americanradioworks.org. CDs of this program are available for $12. Send a check or money order to tapes, 45 East 7th Street, Saint Paul, Minnesota, 55101.

American RadioWorks is the national documentary unit of Minnesota Public Radio. This is NPR, National Public Radio.