"This is the first time in history the Justice Department has gone to court to side against voters who are trying to enforce their right to vote. I think this law will mean very little if the rights of American voters have to depend on this Justice Department," said Hebert, who worked in the voting-rights section from 1973 to 1994. (LA Times)
While minority Democratic voters are put at their ease with dummy ballots, the Bushites are poised to simultaneously steal the election and strike a death blow to voting rights.
The elections in Ohio and Florida have been taking on apocalyptic dimensions. It was beginning to look like the Republicans in both states were going use questionable interpretations of the law to shut down entire polling stations. We had this report from Florida (via AAbshier at DailyKos) and this report from Ohio. But now folks on the Democratic side are giving each other high fives and breathing a collective sigh of relief.
The Democratic Leadership Council is not my political cup of tea, but DLC blogger New Donkey has made some predictions that ought to be heeded about Karl Rovian tactics that seem to be at play here.
Now I have no direct evidence that Karl Rove has planned and is executing this voter suppression strategy, though it's interesting that every Republican hack and pundit in the universe started singing like a cicada about "voter fraud" about a week before the Ohio story got into the national news. But it sure as hell fits Rove's M.O. like a glove.
The Florida debacle of 2000 illustrated two Rove tactics that are devilishly effective:
(1) Getting in front of media interpretation of a controversy in a way that reshapes public perceptions of the actual event, and sticking with the spin come hell or high water. . . .
(2) Deliberately pursuing outrageous tactics and then using the opposition's outrage to establish a false moral equivalency. . . .
Now that the Republicans have made their dire threats to shut the polls down, their recent allowances seem like appropriate concessions.
Ohio Secretary of State J. Kenneth Blackwell has offered a compromise position, telling
local election boards that even if challenges are upheld, voters should be allowed to cast provisional ballots, which are held for 10 days after the election while officials review whether an individual is eligible to vote. (NYT)
And now the latest news from Florida (via Blogwood) is that state Elections Director Dawn Roberts has issued a four-page memo that
emphasizes that voter challenges must be resolved without delaying other voters.
It says that even if a challenge is successful, the voter must be given the option to file a provisional ballot. And it reaffirms that inclusion on a controversial state felon list is not sufficient evidence to sustain a challenge.
In Ohio
Election officials have been peppering Blackwell's office for days with questions about how to proceed with holding potentially hundreds or thousands of hearings on the challenges by Sunday's deadline.
Blackwell's instruction tells election boards that they must hold hearings, and they must decide on each challenge after its hearing.
If the boards vote to uphold the challenges, the boards should remove the people from the registration roll -- but on a ``conditional basis.''
If those people show up at a poll on Election Day, they should be given a provisional ballot and allowed to vote, provided they are in their proper precinct, the directive states.
Likewise, if an election board has a tie vote over a challenge, the challenge should be viewed as a "non-decision,'' and those registrants also should be allowed to cast a provisional ballot at a poll, the directive states.
Summit County Board of Elections Director Bryan Williams said he believes the order does a good job of balancing state and federal voting rights laws. ``I think that this directive properly recognizes that since this is a federal election, these challenges can happen, but you still have to protect the person's right to vote,'' he said.
Williams said he believes that Blackwell, by offering a solution for tie votes, was able to head off potentially politically charged circumstances in which tie votes could be prevalent. Boards of election are made up of two Republican and two Democratic members. (The Beacon Journal, emphasis added)
In Florida Republicans and Democrats alike are praising Dawn Roberts' memo.
Roberts' memo brought praise from Democratic lawyers, who had strongly rebuked the office of Secretary of State Glenda Hood for a September memo that highlighted the rights of poll watchers to file a challenge.
Democrats thought that memo fell short on emphasizing precinct decorum and voters' rights.
"The most important thing is that they made it clear that the presumption is with the voters and their rights," said Mitchell Berger, a Fort Lauderdale lawyer who is general counsel for Sen. John Kerry's Florida legal team. "People sworn to uphold the law are now at least issuing memos that indicate closer to what the law actually is."
Mindy Tucker Fletcher, spokesman for the Florida Republican Party, called the memo "reasonable and balanced. If there is one thing we learned from 2000, it's that it's important to have the rules laid out beforehand."
Supervisors of elections appeared to welcome the advice as they braced for record numbers of poll watchers. By the end of the day Friday, more than a dozen counties had talked with state elections officials to say they planned to follow Roberts' guidelines.
"I'm glad that they gave us some guidance, that they provided some level of uniformity from county to county, which in 2000 was missing," said Pasco County Elections Supervisor Kurt Browning, a Republican. (emphasis added)
Yet these "reasonable" and "balanced" applications of state and federal voting rights law come after intense battles over just how the special ballots, instituted in the Help America Vote Act (HAVA), will be administered.
Democratic lawyers have generally taken the position that HAVA's federal requirements should be interpreted broadly to enfranchise as many potential voters as possible. Republicans have generally stressed the need to enforce state registration and other restrictions as a protection against voter fraud. . . .
In recent weeks, seven courts have ruled on the relatively narrow issue of whether HAVA mandates the counting of provisional ballots that are cast outside a voter's assigned precinct.
State lawmakers had addressed the issue with 17 states adopting a broader jurisdiction-wide approach, and 28 adopting the more restrictive precinct-based approach. The lawsuits were filed in five of the precinct-based states. All are considered key battleground states, and all have Republican secretaries of state running the elections.
Federal judges in Florida and Missouri, and the Florida Supreme Court, have upheld in both states the secretary of state's position that provisional ballots cast outside the voter's assigned precinct will be disqualified. Federal judges in Ohio and Michigan, as well as a state judge in Colorado, have sided with those opposed to the secretary of state in each of those states, ruling that provisional ballots must be counted as valid even if they are cast outside the voters' assigned precinct.
Last weekend, a federal appeals-court panel in Cincinnati reversed the Ohio judge. That same panel is now considering whether to uphold or overrule the judge in the Michigan case. (Christian Science Monitor via FindLaw, emphasis added)
What's at issue in this technicality? According to Spencer Overton, a professor at George Washington University Law School, in a newly released White Paper commissioned by the NAACP National Voter Fund,
In many states, provisional ballots will not be counted if they are cast in the wrong precinct. Many polling locations contain multiple precincts . . . so it is possible for a voter to be at the right location but cast a vote at the wrong precinct table. And poll workers . . . will often fail to direct voters to the proper location. Voters can leave the polling place assuming their votes will be counted, but they will not be . . .
But, really, there are more fundamental issues at stake when it comes to provisional ballots. Even more liberally interpreted, they are problematic.
No one knows how many provisional ballots will be cast in November, in part because only about half the states allowed such ballots or something similar in 2000. It will easily be tens of thousands nationwide. In Los Angeles County alone, 44,000 were cast in the March primary.
But verifying voter eligibility and hand-counting the ballots takes a long time. Some states, by law, give counties just days to finish. That has election administrators contemplating a nightmare scenario: What happens if the number of provisional ballots is bigger than the apparent margin of victory on Election Day? The outcome could hang in doubt while election officials rush to beat the clock. . . .
"It really could look like it's trying to open access, but because it is based on a state-by-state determination, it really could restrict access,'' [Maria] Valdez [midwest regional counsel for the Mexican American Legal Defense and Educational Fund] said.
Valdez and other activists cite Chicago's primary. Of the 5,914 provisional ballots cast, only 416 were ever counted. A total of 1,294 came from voters in the wrong precinct, 2,461 from voters who didn't fill out an affidavit properly and 1,461 from people who could not be verified as registered voters, according to Chicago's elections board.
Another factor is time. In Illinois, officials have 14 days to tally provisional ballots, while in California it's 28 days. Florida and Georgia give elections officials just two days, raising the possibility of another court battle if time is running out and ballots that could tip the election remain uncounted. (AP, emphasis added)
The recent "compromise" positions will merely make the voter challenge process more efficient. If your registration is challenged you can immediately opt for a provisional ballot. Amidst chaotic scenes at polls with long lines and poll watchers from both parties and from non-partizan organizations, poll workers—frequently insufficiently trained—and voters—generally insufficiently informed about their rights—will choose provisional ballots as a default for any problem that arises. The number of provisional ballots cast will far exceed earlier predictions. For reasons quoted above, vast numbers of these ballots will not be counted. Also, there is the more basic fact that this is the first presidential election where provisional ballots have been instituted across the country. When election boards planned for the election they did not anticipate the spike in uses of provisional ballots now assured by Republican maneuvers.
According to Daniel P. Tokaji, Assistant Professor of Law at The Moritz College of Law of The Ohio State University,
The application of different standards for counting provisional ballots from county to county – or even within a county – may give rise to an equal protection claim under Bush v. Gore. In that case, the U.S. Supreme Court held that Florida's process for conducting manual recounts violated the Equal Protection Clause of the U.S. Constitution, due to the absence of "specific rules designed to ensure uniform treatment." Following this line of reasoning, it may be argued that a state's failure to have specific rules to ensure the uniform treatment of provisional votes within a state violates equal protection.
There is also mounting evidence that African American's are being disproportionately targeted in voter challenges. For example:
According to the Greater Cleveland Voter Registration Coalition, 46 percent of those names on the Republicans' list belong to African Americans--in a county where blacks represent only 27 percent of the population. (Ground War 2004 via Corrente.)
Legal experts should correct me if I'm wrong, but it seems to me that if African Americans have their provisional ballots thrown out after having their voter registrations challenged on the basis of race, we will be talking about civil rights violations in addition to equal protection. Tokaji continues:
A final question that can be expected to emerge in cases challenging the implementation of provisional voting is whether or not plaintiffs may sue, if they believe that states or counties are failing to comply with HAVA. The act itself does not include a provision authorizing voters to bring suit. Citizens affected by a state's alleged failure to comply with HAVA may attempt to assert a claim under 42 U.S.C. § 1983, which authorizes claims to be brought against state and local officials, for deprivation of rights secured by federal law. On the other hand, election officials can be expected to argue that HAVA's omission of a private right of action should be interpreted to foreclose private lawsuits.
In fact this final question has already been brought to the fore in cases concerning the implementation of provisional ballots.The LA Times reports:
[I]n legal briefs filed in connection with cases in Ohio, Michigan and Florida, the administration's lawyers argue that the new law gives Atty. Gen. John Ashcroft the exclusive power to bring lawsuits to enforce its provisions. These include a requirement that states provide "uniform and nondiscriminatory" voting systems, and give provisional ballots to those who say they have registered but whose names do not appear on the rolls.
"Congress clearly did not intend to create a right enforceable" in court by individual voters, the Justice Department briefs said.
In one case the Sandusky County Democratic Party sued Ohio Secretary of State J. Kenneth Blackwell, arguing that the county's voters should be permitted to file provisional ballots even if they go to the wrong polling place on election day.
The Justice Department intervened as a friend of the court on Blackwell's side.
Saturday's decision in that case, and in other recent cases from Michigan and Florida, gave the department a partial victory. On the one hand, the courts agreed with state officials who said voters may not obtain a provisional ballot if they go to the wrong polling place.
However, all three courts that ruled on the matter rejected the administration's broader view that voters may not sue state election officials in federal court.
Still, the issue may resurface and prove significant next week if disputes arise over voter qualifications. Some election-law experts believe the administration has set the stage for arguing that the federal courts may not second-guess decisions of state election officials in Ohio, Florida or elsewhere.
Beyond its intent to deprive minority and low income voters of their franchise by driving up dramatically the number of placebo ballots that they will cast, the Bush administration also plans to use the ensuing opportunities for litigation to make an unprecedented reversal of federal protections for voting rights.
Historically . . . the department had been aggressive in supporting the idea of private suits as an important tool in fighting discrimination and other ills, even where such rights were not clearly spelled out by legislation.
"Before this administration, I would say that almost uniformly, the Department of Justice would argue in favor of private rights of action … to enforce statutes that regulate state and local government," said Pamela Karlan, a professor at Stanford University's Law School.
She said the landmark Voting Rights Act of 1965 did not originally include a private right to sue state officials who discriminated against aspiring black voters. The Justice Department backed the idea of private suits, nonetheless, in a test case that ultimately reached the U.S. Supreme Court in 1969.
In their ruling, the justices said "the achievement of the act's laudable goal would be severely hampered … if each citizen were required to depend solely on litigation instituted at the discretion of the attorney general."
More recently, the Justice Department also sided with private plaintiffs in a 1996 case challenging a registration fee that had been instituted by the Virginia Republican Party as a racially motivated poll tax under Section 10 of the Voting Rights Act.
The section did not expressly mention private actions but the Supreme Court, at the urging of the Justice Department, found an "implied" right to sue, said Steven J. Mulroy, an assistant professor at the University of Memphis Law School and a former lawyer in the department's voting-rights section.
"It is pretty rare for the Department of Justice to take a position that there is no private right of action to enforce a federal statute guaranteeing voting rights," he added. (Ibid, emphasis added.)
We, with our desires to prevent election theft, are but pawns in a larger game. And the fix is already in. When the smoke clears and our national election has served only as precursor to electoral litigation, we'll discover that it's not only our votes against Bush that are on trial. John Ashcroft has ambitiously raised the stakes to prosecute what could be the case of his lifetime, the case against federally protected voting rights.
(I first read many of the news stories cited above via eRiposte's Vote Watch 2004)
FURTHER READING
Jeffrey Toobin, Poll Position: Is the Justice Department poised to stop voter fraud—or to keep voters from voting?
The Institute For Southern Studies, DOJ Actions on Election Law Benefit Republicans [pdf 175kb]
Tova Andrea Wang, Playing Games With Democracy [pdf 680kb]
Ari Z. Weisbard, Placebo Ballots: Will "Fail-safe" Voting Fail?
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