Monday, June 26, 2006

So You Think There's A Right To Vote?

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In this way and that I tried to save the old pail
Since the bamboo strip was weakening, about to break
Until at last the bottom fell out.
No more water in the pail!
No more moon in the water!


I want to go soon and live away by the pond, where I shall hear only the wind whispering among the reeds. It will be a success if I shall have left myself behind.

---Henry David Thoreau

Since the house is on fire, let us warm ourselves.

---Italian proverb

When I read Greg Palast's column in the UK Guardian from Friday, and featured yesterday by TruthOut, I hesitated to get excited about it. Palast's stuff invariably is upsetting, but I sense a lot of resentment fueling him and also somehow his opinions just don't seem to catch fire. Maybe it's the "conspiracy" of the mainstream media that keeps other reporters and editorial writers from going near his theories. At any rate this time his article is titled "Democracy In Chains" and begins~~~

"Don't kid yourself: the Republican party's decision yesterday to 'delay' the renewal of the Voting Rights Act has not a darn thing to do with objections of the Republican's white sheets caucus.
Complaints by a couple of good ol' boys to legislation have never stopped the GOP leadership from rolling over dissenters.This is a strategic stall that is meant to decriminalise the Republican party's new game of challenging voters of colour by the hundreds of thousands."

The first comment in the massive thread that erupted from the essay is by someone known as MisterD~~~

"This article conflates about five different issues in order to make the false claim that the Republicans are trying to deny citizens the right to vote. They are not. They are just trying to stop the massive vote fraud and ballot box stuffing the Democrats attempt at every election.
This is a poorly researched and poorly reasoned efort to smear Republicans as bigots. Like all of Palast's writing, it is designed to enflame the already feverish minds of the ignorant."

Hmmm, I decided to think it over for a while before running with Greg's ball. My connection with the Civil Rights Movement goes back a long way. Somehow I became a jazz fan as soon as I crossed the threshold into adolescence. (My parents thought I'd grow out of it.) You don't spend much time in the history of that music before you hear stories involving racial discrimination. So by the time I was in college and heard about a few other young people protesting segregation at Woolworth's lunch counters, I joined up. In the summer of 1961, I went to Chicago to train for Freedom Rides whose goal was shipping busloads of people into the South to encourage and help folks register to vote. These were states where poll taxes and literacy tests turned away thousands. The Voting Rights Act of 1965 was meant to remove these obstacles.

Lulled into a kind of complacency of victory and set rather at a distance by black backlash that was going on then, I didn't think about voting rights again until I heard about problems in Florida in 2000, and closer to home here in 2004 Ohio. Those of us who cried Foul around those elections generally have been ridiculed off the map for the same number of years it took to see progress in civil rights back in the '60s. Conspiracy theories just make you crazy, so why not give it up? Now comes Palast tying together election fraud and the Republican concerns about renewing the Voting Rights Act. Could he be right? Are Republicans testing the waters to see if anyone in America still is awake at all?

Pessimistically I typed "Voting Rights Act" in Google NewsSearch...and felt my jaw drop when pages of articles and editorials came up. It looks like every newspaper in the country has commented over the weekend on what Republicans are trying to do. More astonishing, most of them seem to see the same threat Palast sees. The most vocal of all are in the very states the legislation singles out as requiring special attention.

In Houston~~~

"The 1965 Voting Rights Act, much of which is permanent, choked off the Jim Crow laws that kept minorities from voting.e 1965 Voting Rights Act, much of which is permanent, choked off the Jim Crow laws that kept minorities from voting.
Section 5, which is up for renewal, made states with histories of voter discrimination get federal 'preclearance' for any changes in their voting law. Texas is one of those states.
There was good reason to subject Texas to federal review. Civil rights lawyers would wrestle down one assault on rights — a poll tax, or a literacy rule, or a morals test — only to see Dixiecrats dream up a new one.
Section 5 switched the burden of defending voter rights from civil rights workers to the federal government. Today, the rule is especially useful at the local level, where council members and others might not be sensitive to a law or procedure that would have an adverse impact on racial minorities.
When the Voting Rights Act was passed, it was easy to spot attempts to disenfranchise minority voters. Most took place in the South. In recent years, though, attacks on voter rights and access to polling places have erupted all over the map. In the last presidential election, some of the most egregious violations occurred in Florida and Ohio — states largely exempt from Section 5."


"What had happened was that a group of representatives from the South protested that, under the renewal, their states would still be required to have voting rule changes 'pre-cleared' by the Justice Department despite the improvements made since the act was originally passed.
They were joined by other Republicans who wanted to remove from the act the provision that requires ballots to be printed in languages other than English in states and counties where there are large numbers of non-English speakers.
Whatever the merits of the arguments for changes in the act, the bottom line is that a group of Red State Republicans, representing the heartland the GOP has captured and hopes to hold, have undermined their party’s hope to attract black and Hispanic voters in the upcoming election."


"For years, Southernors have insisted that the VRA is outdated, that the ills addressed by the act have been corrected. To a degree, this is a good argument. But it's not good enough. Real gains have been made, but there remain indications that, given the opportunity, political factions would pass laws that could present roadblocks to minority voting. Some cite Georgia's recently approved voter photo ID law, which could disenfranchise the poor and elderly, as the most blatant recent example.
One might also point out that just because the VRA has been successful, this is no reason to do away with it. Human nature being what it is, we can see no reason to let Section 5 expire because it works. In fact, that it works so well presents a solid argument for keeping it intact."

From Chicago yesterday, Clarence Page reviews voting rights violations taken to court in just the past few years~~~,1,7203155.column?coll=chi-news-col

From Atlanta, Julian Bond writes this powerful essay today~~~

"If murderers would promise not to murder again, we could eliminate all our laws against unlawful killing. No laws against murder — no murders.
That is analogous to the argument made by some Republicans against reauthorizing the 1965 Voting Rights Act.
We may have done wrong in the past, they say, but we won't in the future. So we can now eliminate the most effective civil rights law ever passed.
The act doesn't expire until September 2007, but a bipartisan coalition in Congress had pledged renewal this year. Now that effort has been derailed. Leading the train wreck has been U.S. Rep. Lynn Westmoreland (R-Ga.). He wants to radically alter Section 5 of the act, which requires federal permission to change voting rules in nine states.
The 1965 Voting Rights Act initially focused on six states where blacks had been systematically denied the right to vote — Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia. Three more states — Arizona, Texas and Alaska — were added 10 years later to protect language minorities.
'The pre-clearance portions of the Voting Rights Act should apply to all states, or no states,' Westmoreland argues. 'Singling out certain states for special scrutiny no longer makes sense.'
But 'all states' don't have the history of the six originally covered by the act, including Westmoreland's Georgia.
Westmoreland knows full well that applying Section 5 to all 50 states likely will make the act unconstitutional, no doubt the outcome he wants. Singling out certain states, including Georgia, makes perfect sense.
From the end of Reconstruction forward, Georgia's white supremacist governments and private white citizens devoted considerable energy to preventing black citizens from registering to vote or casting ballots. Their tactics included murder, ballot stuffing, poll taxes, literacy tests that whites passed but most blacks failed, and wholesale intimidation.
When former Urban League Director and Georgia native Vernon Jordan testified for renewing the act in 1970, he said Georgia and other Southern states 'were the most efficient, determined and malicious in their efforts to keep black people off the registration rolls.'
In Harris County in Westmoreland's 8th Congressional District, blacks were 57 percent of the population in 1955, but no blacks were on the grand jury list, and blacks were only 2.3 percent of the trial jury list. Westmoreland's Douglas County adopted a majority vote requirement in 1968 without asking for pre-clearance when a black candidate prepared to run for office. The county was sued over this discriminatory procedure in 1975.
Since the act was last renewed in 1982, the Department of Justice has objected 80 times to proposed changes in Georgia's voting plans, finding they were discriminatory. Recently, only the Department of Justice's political appointees saved a biased Georgia voter identification law over the objections of career Justice Department lawyers. A federal court eventually struck the law down, but Georgia passed a substitute which justice's political appointees pre-cleared.
Sadly, the Southern Poverty Law Center lists 40 hate groups in Georgia today, operating from Athens to Valdosta, and ranging from the Imperial Knights of the Ku Klux Klan and Aryan Nations to the Council of Conservative Citizens and the League of the South.
Congress was justifiably proud of its bipartisan intention to renew the Voting Rights Act. The partisan objections of a few disgruntled defenders of a discredited system shouldn't be allowed to end agreement across the aisle on a law President Ronald Reagan said protected the 'crown jewel' of our democracy, the right to vote.
Westmoreland was quoted as saying about his and his colleagues' objections to the Voting Rights Act, 'A lot of it looks as if these are some old boys from the South who are trying to do away with it.'
Yup — it sure does.
We need renewal of the Voting Rights Act as is — just as we need to keep laws against murder on the books."

And back to Palast~~~

"In the 2004 election, more than 3 million voters were challenged at the polls. No one had seen anything like it since the era of Jim Crow and burning crosses. In 2004, voters were told their registrations had been purged or that their addresses were 'suspect'.
Denied the right to the regular voting booths, these challenged voters were given 'provisional' ballots. More than 1m of these provisional ballots (1,090,729 of them) were tossed in the electoral dumpster uncounted.
A funny thing about those ballots: about 88% were cast by minority voters."

Robert Kennedy's article nearly 4 weeks ago and Steven Freeman's new book that I've referenced before attempt to chronicle a pattern to the election problems seen by many over the past half dozen years...particularly in Florida and Ohio. Accusations were made that particular voting blocs were disenfranchised, and the pattern described clearly favored the Republican Party. Now Republicans seem to be looking squarely into the spotlight at the scene of the crime. Is this possible? Or are we going to get a new spin that will send us back to our shrugging apathy?

Kennedy's article is here~~~
and The Boston Globe has a new statement by Freeman today~~~


jazzolog said...

The New York Times has an editorial today about the Supreme Court's decision in 2000 to disallow the recount in Florida of the Presidential election. What was the basis of that decision and did it set a precedent that continues to affect free election in the United States? The author of the editorial is Adam Cohen, an assistant editor on the New York Times Editorial Board. As you can see from his resume he used his Harvard law degree for social justice cases, first in the courtroom and now as a journalist and writer. Please notice in the editorial itself the mention of a case still going on in Ohio, in which the plaintiff is represented by Dan Tokaji, whose blog on election law I've mentioned several times in my own entries since November 2000. I presume he is avoiding astutely any comment on that case however.

The New York Times
August 15, 2006
Editorial Observer
Has Bush v. Gore Become the Case That Must Not Be Named?

At a law school Supreme Court conference that I attended last fall, there was a panel on “The Rehnquist Court.” No one mentioned Bush v. Gore, the most historic case of William Rehnquist’s time as chief justice, and during the Q. and A. no one asked about it. When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed.

The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,” government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”

There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

Bush v. Gore’s lasting significance is being fought over right now by the Ohio-based United States Court of Appeals for the Sixth Circuit, whose judges disagree not only on what it stands for, but on whether it stands for anything at all. This debate, which has been quietly under way in the courts and academia since 2000, is important both because of what it says about the legitimacy of the courts and because of what Bush v. Gore could represent today. The majority reached its antidemocratic result by reading the equal protection clause in a very pro-democratic way. If Bush v. Gore’s equal protection analysis is integrated into constitutional law, it could make future elections considerably more fair.

The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. “Having once granted the right to vote on equal terms,” the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.

The first major judicial test of Bush v. Gore’s legacy came in California in 2003. The N.A.A.C.P., among others, argued that it violated equal protection to make nearly half the state’s voters use old punch-card machines, which, because of problems like dimpled chads, had a significantly higher error rate than more modern machines. A liberal three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed. But that decision was quickly reconsidered en banc —that is, reheard by a larger group of judges on the same court — and reversed. The new panel dispensed with Bush v. Gore in three unilluminating sentences of analysis, clearly finding the whole subject distasteful.

The dispute in the Sixth Circuit is even sharper. Ohio voters are also challenging a disparity in voting machines, arguing that it violates what the plaintiffs’ lawyer, Daniel Tokaji, an Ohio State University law professor, calls Bush v. Gore’s “broad principle of equal dignity for each voter.” Two of the three judges who heard the case ruled that Ohio’s election system was unconstitutional. But the dissenting judge protested that “we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the peculiar and extraordinary facts of that case.”

The state of Ohio asked for a rehearing en banc, arguing that Bush v. Gore cannot be used as precedent, and the full Sixth Circuit granted the rehearing. It is likely that the panel decision applying Bush v. Gore to elections will, like the first California decision, soon be undone.

There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.

The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.

There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.

Copyright 2006 The New York Times Company

jazzolog said...

The other day sent a copy of a Forbes article in one of its dispatches. In case you missed it---and live in America where computer voting is law---I'm going to paste it up. (Forbes requires free registration to read their material.) The essay is written by Aviel Rubin, professor of computer science at Johns Hopkins University and author of Brave New Ballot: The Battle To Safeguard Democracy In The Age Of Electronic Voting. In the article you'll see I've included 2 links, which give detailed information about the Diebold computer company, its stock rating, recent news stories about it (including its "administration" of Ohio elections) and the people who run the organization. If you're interested in getting that far into this, you may have to register with Forbes.

On My Mind
Pull The Plug
Aviel Rubin, 09.04.06, 12:00 AM ET

You don't like hanging chads? Get ready for cheating chips and doctored drives.

I am a computer scientist. I own seven Macintosh computers, one Windows machine and a Palm Treo 700p with a GPS unit, and I chose my car (Infiniti M35x) because it had the most gadgets of any vehicle in its class. My 7-year-old daughter uses e-mail. So why am I advocating the use of 17th-century technology for voting in the 21st century--as one of my critics puts it?

The 2000 debacle in Florida spurred a rush to computerize voting. In 2002 Congress passed the Help America Vote Act, which handed out $2.6 billion to spend on voting machines. Most of that cash was used to acquire Direct Recording Electronic voting machines.

Yet while computers are very proficient at counting, displaying choices and producing records, we should not rely on computers alone to count votes in public elections. The people who program them make mistakes, and, safeguards aside, they are more vulnerable to manipulation than most people realize. Even an event as common as a power glitch could cause a hard disk to fail or a magnetic card that holds votes to permanently lose its data. The only remedy then: Ask voters to come back to the polls. In a 2003 election in Boone County, Ind., DREs recorded 144,000 votes in one precinct populated with fewer than 6,000 registered voters. Though election officials caught the error, it's easy to imagine a scenario where such mistakes would go undetected until after a victor has been declared.

Consider one simple mode of attack that has already proved effective on a widely used DRE, the Accuvote made by Diebold ( , ). It's called overwriting the boot loader, the software that runs first when the machine is booted up. The boot loader controls which operating system loads, so it is the most security-critical piece of the machine. In overwriting it an attacker can, for example, make the machine count every fifth Republican vote as a Democratic vote, swap the vote outcome at the end of the election or produce a completely fabricated result. To stage this attack, a night janitor at the polling place would need only a few seconds' worth of access to the computer's memory card slot.

Further, an attacker can modify what's known as the ballot definition file on the memory card. The outcome: Votes for two candidates for a particular office are swapped. This attack works by programming the software to recognize the precinct number where the machine is situated. If the attack code limits its execution to precincts that are statistically close but still favor a particular party, it goes unnoticed.

One might argue that one way to prevent this attack is to randomize the precinct numbers inside the software. But that's an argument made in hindsight. If the defense against the attack is not built into the voting system, the attack will work, and there are virtually limitless ways to attack a system. And let's not count on hiring 24-hour security guards to protect voting machines.

DREs have a transparency problem: You can't easily discover if they've been tinkered with. It's one thing to suspect that officials have miscounted hanging chads but something else entirely for people to wonder whether a corrupt programmer working behind the scenes has rigged a computer to help his side.

My ideal system isn't entirely Luddite. It physically separates the candidate selection process from vote casting. Voters make their selections on a touchscreen machine, but the machine does not tabulate votes. It simply prints out paper ballots with the voters' choices marked. The voters review the paper ballots to make sure the votes have been properly recorded. Then the votes are counted; one way is by running them through an optical scanner. After the polls close, some number of precincts are chosen at random, and the ballots are hand counted and compared with the optical scan totals to make sure they are accurate. The beauty of this system is that it leaves a tangible audit trail. Even the designer of the system cannot cheat if the voters check the printed ballots and if the optical scanners are audited.

© 2006 Inc.™