A Fight We Can't Avoid

A FIGHT WE CANNOT AVOID  --  Part 1 of 2 parts

Many Democrats shrug off the voting machine problems as just a modern version of something that's been around forever  --  since the founding of the Republic.  There's a tendency to see voting problems as mainly having to do with what could be called "old-fashioned" election rigging by fencing out non-white voters  --  especially since the Republicans are actually maneuvering to roll back the Voting Rights Act ! !  Horrified, we have to wonder, "Is Chris Rock right when he says that the objective really is to restore black slavery?"  With the best of intentions  -- thinking that there's only room for one voting issue at a time --  we decide that the wise course is to downplay the entire voting machine issue.

The battles around systemic "errors" by voting machine isn't a fight we can avoid.  Some Kossacks have suggested that it isn't something we can take on until Democrats are stronger in statehouses and in state offices.  A recent poll here at Daily Kos shows that we are overwhelmingly agreed that there's no way around the fact that we must, sooner or later, confront and do battle with the corporate voting machine interests.  It isn't a case of some new techno gadget that we all will eventually get used to.  It isn't one of those things that will "work itself out" in some kind of natural market-like process.  If we let the enemy continue to infiltrate and take over the vote count, we are lost.  We will really be living in a fascist state  --  and the only course then could well lead the nation into a period of violent revolution or bloody civil war.

POLITICS AS USUAL AND THE REPUBLICANS TODAY

Years ago, when I was yet a boy, Dad took me with him on election night to the County Courthouse.  I recall the whole room, where the votes were being tallied, laughing when an outlying precinct called in about a flat tire on their van that was bringing the locked box with the ballots from their rural area.  What it was all about is that a couple of the county courthouse offices were too close to call.  It was an open "secret" that in such situations, the poll workers in an outlying precinct would have to drive around and wake people up to get them to vote.  This wasn't about Democrats versus Republicans: it was about courthouse insiders doing what they had to do to protect one of their own regardless of party.

That was politics as usual in the good old days.  The incident I recount occurred in a rural area in Nebraska.  It was an innocent thing  --  compared to what the Republican neo-cons have in store for us today:

First, the enemy is planning to roll back the Voting Rights Act and they already have in place regressive and repressive methods to undermine the African-American vote throughout the South. Those two links accurately guage the dimensions of the Republicans' systematic renewal of what I am calling "old-fashioned" (mainly racism based) election rigging, as distinguished from the high-tech kind. (It is amazing  --  the moat that Bush is cheerfully building around himself to keep the American people at a distance.)

Let's face it  --  this gang of Republicans running things today, they believe in winning and nothing else, except their off-shore bank accounts.  I don't know if we're looking at a re-run of the Nazi horror show or not!  What I do know is that there's a reason why democracy actually works, however imperfectly.  Democracy works because it's a system with a feedback mechanism to control and guide the leviathan of the state.  That feedback mechanism is the vote.  Without the vote, the leviathan will inevitably stumble off blindly to its own destruction and ours.

IDENTIFYING THE PROBLEM  ("WAR OF ATTRITION")

So, let's identify the problem that threatens our democracy as sure as a steady diet of arsenic would threaten any human being.   That problem is systemic rigging of voting machines by corporate contractors!  It includes any "unintentional" anomolies or skewed results, as well as the outrage represented by all the machines that leave no paper trail.  

Since the "old-fashioned" type of election rigging is practiced by the same people that control the corporate vote-counting machines, the two problems must be taken on together.  There's no way around it  --  it's political warfare.  Moreover, in the arena of voting issues, the struggle is essentially a WAR OF ATTRITION.

POLITICAL WARFARE

Armando, among others here at DKos, has stated our point of view  --  that we are engaged in a political war with the forces of what I would call "authoritarian reaction," or "corporatism," or just plain   "fascism."  Some have even described it as a "class war."  I cite Macchiavelli  to describe the difference between those two.

The prince who has more to fear from the people than from foreigners ought to build fortresses, but he who has more to fear from foreigners than from the people ought to leave them alone.  . . .   All these things considered then, I shall praise him who builds fortresses as well as him who does not, and I shall blame whoever, trusting in them, cares little about being hated by the people.

In other words, the line between ordinary "political war" and "class war" runs exactly along the wall that the ruling class believes that it needs to protect themselves from the people of the state that they rule.

We had plenty of "political warfare" in the days of Thomas Jefferson, but Jefferson was able to live openly among his fellow-citizens  --  despite the very serious slavery aspects of the political war at the time.  Andrew Jackson was able to throw open the doors of the White House for his inaugural ball  --  without requiring FBI or Secret Service background checks for his guests.  And even after 9/11, we saw Al Gore driving himself  -- without body guards or military escort --  around Iowa before the 2004 caucuses.  In such situations, the PEOPLE are all the body-guard any leader could ask for!

To be sure, evaluation of the barrier between the rulers and the people must be a judgment call relative to the times and context.  We have experienced the JFK and the RFK assasinations, and we know that things are necessarily very different today than 200 years ago.  On the other hand,  thinking back to the Reagan administration, there was much less of a barrier between the people and the president than there is today.  The administration would like to say that the difference is 9/11.  That, objectively viewed, is nonsense.

We see the glaring difference in the way that Bush (and many other Republicans) resort to the practice of vetting the public for their phoney press conferences.  (Even Bush's Turkey Day appearance with the troops in Baghdad!)

It isn't up to us whether this political war becomes a so-called "class war" or not.  It becomes a "class war" only to the extent that a wall is erected between the rulers and the people, such that the rulers  -- cowering in their enclaves or compounds --  must rely upon an intermediary class out there among the people with the assignment of suppressing the people.  That division of the people into the enforcers  and the enforced then becomes the existential ground for "class warfare."  (My apologies to Karl Marx, who wouldn't like my analysis at all.)  Ultimately what identifies "class warfare" as such is that there comes to be no room for by-standers, no middle ground.

STRATEGY ON THE VOTE COUNT FRONT

Our political war on the vote count front is a series of battles where we know we have a chance to win some, although we will probably loose some too.  However, we have no alternative to at least appearing to engage every one of these battles.  The reasoning behind that conclusion can be found in the Chinese classic, THE ART OF WAR, at Chapter 6

8. Hence that general is skillful in attack whose opponent does not know what to defend; and he is skillful in defense whose opponent does not know what to attack.
[Editor's note:  An aphorism which puts the whole art of war in a nutshell.]

Sun-tzu, the author of THE ART OF WAR, seems to consider that warfare is the permanent condition of humanity.  Thus, Sun-tzu's philosophy has often been applied to politics.  In Chapter 5 of THE ART OF WAR Sun-tzu gives advice that can be applied to a series of battles such as a state-by-state conflict over voting machines.

10. In battle, there are not more than two methods of attack - the direct and the indirect; yet these two in combination give rise to an endless series of maneuvers.
11.    The direct and the indirect lead on to each other in turn. It is like moving in a circle - you never come to an end. Who can exhaust the possibilities of their combination?

Sun-tzu at Chapter 2 advises against fighting any battles that you don't think you can win, which includes battles that you can't afford financially.

Ts`ao Kung has the note: "He who wishes to fight must first count the cost."  
[Editor's note prefacing Chapter 2]

That explains, in my opinion, what happened with John Kerry last year after the election.  These are court battles and Kerry is an attorney.  Every attorney has frequent need to convince a client that it's better to walk away from a law suit or accept a compromise than to engage in a long drawn-out legal battle.  Kerry apparently saw it that way.

There is a great advantage in the way that the Ohio case has gone  --  namely, that it can't be portrayed as a partisan Democratic "sour grapes" thing.  And, perhaps, that was one factor weighed by Kerry in his decision to let Cobb, et al., proceed Kerry-Edwards 2004 in filing.

Nonetheless, from the point of view of advancing the cause of defending democracy from vote count fraud, all Kerry had to do, in the first few days of November, 2004, was to utter two words and then shut up.  Those two words?  "VOTING MACHINES"!  But that's 20-20 hindsight. What happened is that Kerry  -- as Greg Palast put it  -- "became the first presidential candidate in history to break a campaign promise after LOSING an election," when he (Kerry) "waited less than 24 hours to abandon more than a quarter million Ohio voters still waiting for their provisional and chad-spoiled ballots to be counted."  (For Palast's analysis of WHY Kerry did what he did, click on the Palast link.)

However, subsequently recognizing the potential of keeping the Ohio litigation over vote count fraud alive, Kerry joined with Badnarik and Cobb in their civil action naming the Election Commission and Blackwell as defendants.  As commented above, Kerry's hesitation has perhaps had a positive result in the way that the Ohio suit will be viewed by the press and the public over the next year or two.

PLAN 'B'

So what does Sun-tzu say about what to do when you have made a mistake and tried to avoid a battle that you really had no choice about fighting?  I don't know, but one thing comes to mind  --  "How do you say 'Plan B' in Mandarin?"

For sure, Sun-tzu would understand that these battles are all about money, all about the allocation of resources.  So, while we need to at least appear to engage everywhere, we cannot afford to commit all our resources to each and every battle.  We have to pick and choose.  We have to be flexible, so that the enemy has no idea where we are going to put up the greatest fight. (Maybe there's a danger of over-playing our hand  -- of courting a series of what will be described in the media as defeats --  but, then again, NO PUBLICITY IS BAD PUBLICITY and such bad news will still, over time, embed the vote fraud issue in the public mind.)

It won't be too hard to keep the enemy guessing, since we won't really know what we're going to do until we do it.  Furthermore, as Democrats there will effectively be no central command post for our campaign, which will be locally prosecuted and locally directed.  It will, however, be important to be able to shift assets quickly from one arena to another, so coordination between the various states is essential.  It is also essential for activists in states without expensive legal battles to help support the legal expenses in other states.

All these financial considerations are especially true where the enemy has access to governmental money  --  not to mention that the enemy has far greater money resources generally. Their public funds, however, cannot be re-allocated from state to state and their use of private funds must also serve as fuel for our plan to hook up opposition to our "Voters' Revolt" with rapacious corporations that would profiteer, during this period of global terror, by selling votes!  ("Not their votes, I'm sure those have already been sold, but they are in business to make a profit by selling YOUR votes, everybody's votes!")

THE MONUMENTAL SCALE OF THIS WAR IN DOLLAR TERMS

The scale of the resource commitment required is monumental.  Let's estimate it at 100,000 legal hours.  That would mean, at $100 per hour, $100,000,000.  But we have advantages  --  perhaps.  There are more than a few attorneys out there who are disgusted with the way things are going.  There are many former and retired practicing attorneys who have quit the profession in disgust of the way thing have already gone.  So, it may be that what would cost the enemy (except for the use of state funds) $100,000,000 might cost us only $10,000,000.  Also, we can make the use of state funds "expensive" for the enemy  --  by stirring up a voter/taxpayer revolt about it.

FRAMING THE CIVIL ACTIONS

We need to point out that the reason for the law suits isn't anything to do with 2004  --  it has to do with the FloridaY2K Supreme Court precedent and the fact that Republican office-holders and legislatures won't do what needs to be done according to the Constitution.  So we can truthfully say, "Don't blame us, if you don't like all the courtroom stuff  --  blame the Supreme Court that resolved a constitutional crisis in Y2K in the way that they did."  You may object that it could be a mistake to re-open that brouhaha, FloridaY2K, but will it really be a mistake?

The bottom line for us, as we present these law suits to the public, will be that these suits are all about ensuring that every eligible vote cast is truly counted.  The suits may or may not be brought by Democrats, but they are always on behalf of ALL voters, including Republicans.  A Kossite, "Patriot for Al Gore," put it this way

"[Let's keep in mind] what this should be all about: the people.  This isn't about using this issue to build a political reputation, this is about securing democracy for all  --  whether Republican, Democratic, Green, or anyone else who votes in this country."   --------

Patriot for Al Gore

It will be difficult, if not impossible, for the corporate media to suppress our publicity to make the voters aware of the suits, because its all LOCAL news, and that is the Achilles' heel of the Rovian control mechanism for corporate media!  None of the law suits will be national in scope, but the total accumulative effect will be national and then some!

NOTE:  WE REFERENCE FloridaY2K NOT AS A STOLEN ELECTION, BUT AS AN EXAMPLE OF WHAT WE  -- AND THE SUPREME COURT --  DO NOT WANT TO SEE AGAIN!

FENCING IN REASONABLE PEOPLE, FENCING OUT THE OTHERS

It is especially important to frame our activity as non-partisan and inclusive of such Republicans as are sincerely willing to take an objective look at the problem and work toward preventing abuses in the future.

Once again, let's take a lesson in publicity from the Hollywood experts  -- there's no such thing as bad publicity.  Everytime Rush says, "Here we go again, the Democrats are making their ridiculous claims about voting machines in yet another state, and they are even dredging up that old thing about Florida from back in the year 2000, folks.  [thump thump thump]  Could the term 'sore loser' apply here?"  But as we persevere, our attack will focus on Diebold and related machines and the close association of those companies with the Republican Party.  THEN what will Rush do?  Defend them?  Deny the association?  At that point, he becomes like the uncomfortable guy in the witness chair answering the question, "Why do you beat your wife?"

And every time the echo machine repeats their defense against our offense  --  those are all repetitions of a message: "IT AIN'T OVER!"  And when that message comes back to Democrats by way of the ditto-head echo machine, Democrats can exploit the conversation to advantage:

"It IS about Florida because POLITICIANS  -- you do know about POLITICIANS don't you? --  are refusing to implement the Supreme Court decision!  We're tired of waiting for them to get their act in gear!  The Supreme Court said that when you have different vote count methods in two different localities, that's illegal, that opens up a strong possiblity of  vote tampering!  Makes it next to impossible to audit the vote!  Why do you think the Supreme Court stopped the recount in Florida and made Bush president?  Read the record!  Do you want another Florida 2000?"

(If your antagonist, at this point in the dialog, says "YES!" -- then I guess it's time to risk a friendship and say, "Fuck you, you RACIST ass-hole!" and walk away.  We aren't ever going to persuade those who are thoroughly corrupted by greed, arrogance and bigotry.  We can, however, call a spade a spade.  Fence them out of our world!)

THE BUSH v. GORE PRECEDENT

No one talks about the most interesting aspect of the infamous Y2K Supreme Court case of Bush v. Gore  --  or is it Gore v. Bush?  As I recall, all the legal observors said that it couldn't get into the Supreme Court because that would really be unprecedented.  What happened?  The Supreme Court set a precedent  by buying into a reasonable although activist theory that political subdivisions within a state can be the basis of a 14th Amendment violation just as much as racial or other categories.  After that precedent was set, a slim majority of the Court went on to do what they wanted to without basing their decision on any common majority opinion at all. What does that mean for the precedent?

Among other clear implications, the Y2K decision clearly means that it was impracticable to continue the recount BECAUSE of the dissimilarity in ballots and counting methods from county to county!  So, those who oppose lower courts acting on that FINDING by the highest court in the land  -- mostly appointed by Republican presidents --  they are the very people who really are actively seeking to undermine our democracy!   Otherwise, why would they ever challenge efforts to correct counting  -- or recounting or audit --  methods?  Thus, such people really are racist pigs!

(I know there will be some of us who sincerely believe that common ground must always be sought and we are all on this planet together, and so on and so forth;  and, while I appreciate that point of view, I still think you should know that you will be trying to find something in common with racist pigs  --  so, keep in mind pigs can be dangerous and be careful!)

The FloridaY2K precedent, as interpreted by the 9th Circuit in the California recall election case of 2003  would appear to mean that every voting precinct in a state must afford the same treatment state-wide.  It can't vary from one county to the next, or even from one precinct to the next  --  although perhaps it could vary immensely from state to state.  Completely aside from racial or other demographic profile, the voters can't be made to wait in the rain in one county or precinct while voters in another county, or even in another precinct, are able to vote with no wait at all.   We don't need to gather evidence of racial or other disparity beyond the prima facie differences in political subdivisions.

Thus, citizens can file actions in state and/or federal courts seeking court orders to replace Diebold paperless machines where they live on ground that in another part of the state, people are afforded the greater certainty of machines with a paper trail.  Such a strategy, in itself, won't solve everything  --  but it's a pretty good start.

My interpretation of the Court's FloridaY2K precedent is, I admit it, without authority.  The Court always retains the right to change their minds.  Still, we can perhaps proceed on the basis of this obvious interpretation, because it seems doubtful that the Ohio case will work its way to the Supreme Court before the election of 2006.  Of course, that leaves the question of what will happen in the federal courts of appeal  --  what is this rumor about a filibuster over appointments to the appellate bench?  And, indeed, another rumor about that a 50% majority maybe can overturn the 60% cloture rule?  So, yes, of course, we are looking at something that  - if we saw it in any other nation --  we could only describe as a "constitutional crisis".  If so, let's get with it!  Time isn't on our side.  See my diary   --  the last part, amounting to a page or two, after the heading "THE NINTH CIRCUIT CALIFORNIA RECALL CASE (2003)".

Of course, this entire discussion begs the $64 trillion question:  Has the U.S.S.C. been utterly corrupted by politics?  My short answer is that we won't know (particularly respecting Justices O'Connor and Kennedy) until we try.  My long response to that question is at the link above, referencing the last part of my diary

It is especially important to frame our activity as non-partisan and inclusive of such Republicans as are sincerely willing to take an objective look at the problem and work toward preventing abuses in the future.  (As well as Libertarians and Greens with whom Democrats are, via Kerry-Edwards 2004, partners in the Ohio case.)

WORTH REPEATING:  WE REFERENCE FloridaY2K NOT AS A STOLEN ELECTION, BUT AS AN EXAMPLE OF WHAT WE  -- AND THE SUPREME COURT --  DO NOT WANT TO SEE AGAIN!

MULTIPLE CIVIL ACTIONS IN AS MANY STATES AS POSSIBLE

We need civil actions everywhere, one after another, if only because our campaign needs NEWS.  If you can't grasp this point, check out Breaking! Kerry + Badnarik here at DKos.  There is enormous confusion about the Ohio case, yet there's no lack of interest!  Indeed, journalists are tripping over each other and cross-reporting the same stories time and again!  What's happening?

Mainly, what's happening is that there's no NEW news!  And that is very vexing to those of us who understand the stakes in this Voters' Revolt  -- our struggle to save democracy from deconstruction and death at the hands of corporate vote counters --  and the vital importance of building interest in these issues!

That's the importance of the precedent set by the infamous  FloridaY2K case  -- despite the attempt by the 5-4 majority  to categorize it as non-precedent-setting.  That is, the import of the FloridaY2K case is that it provides LEGAL GROUNDS for filing.  That has been demonstrated by the Ninth Circuit in the California recall election case of 2003

Perhaps the one place where FloridaY2K can't provide such grounds is, possibly, Oregon  --  where the entire state is on a mail-in system of optically scanned ballots.  Machines are (or soon will be) used in Oregon ONLY and UNIFORMLY for optical scanning of paper ballots.  Even in Oregon, however, a suit could be brought to assure that all counties are using the same equipment.  Thus, the door is open to challenge Diebold, since SOME of the machines used are manufactured by Diebold.  (Of course, the case is much less severe than elsewhere, because once you have the paper ballots, they can be recounted by machines made by a different manufacturer.)

Of course, it doesn't matter all that much how we get these cases through the courtroom door.  Except that we want to try to keep our litigations headed at the relief that we would like the courts to find appropriate.  But even if all we get out of a case is a proclamatory judgment, that's still a positive result.  It all adds to the momentum, to the incremental accumulation that will win this political war!

No doubt, both in state and in federal jurisdictions, some of our civil actions will be dismissed almost as soon as they are filed.  In some state courts, judges may say that there are no grounds for the suits in existing law and precedent, and that it must all be left to the "political" branches of government.  But that won't be the case in ALL states.  Some states will allow some form of a 14th Amendment case to be brought in a state court.  In others, we will find state law that is at least as strong or stronger than the 14th Amendment for our purposes.  In some places, as in Ohio, the cases will be filed in federal district court either as 14th Amendment cases, (relying upon FloridaY2K), or on other federal law.

In all cases, it would seem to be a good idea to reference in the press and with the public the FloridaY2K precedent.  What may be daunting to some, is that there's no "body of law"  --  that is no case law  --  built up around the FloridaY2K precedent.  Another daunting factor is that the federal courts, as well as many of the state courts, have been taken over to some degree as the result of a neo-con conspiracy to do so.  See, Killjoy's comment

The bottom line is that we cannot afford to wait until the Democrats gain some political power and use that to restore some semblance of justice to the courts.  THAT strategy is obviously self-defeating due to the nature of the problem!   (It could be compared to a company that is losing market share deciding to do nothing until its market share improved enough that it could do enough to  . . . ?)

CITIZEN INITIATIVES AND LEGISLATION

In states that enjoy the initiative option, that clearly should be undertaken.  As with law suits, there are expenses  -- signature gathering, for example.  I would not consider it a tough job, however, to gather signatures on this issue.  In some states, choices may have to be made between the two strategies.   Perhaps in more than a few states  -- let us hope! -- legislation may be possible.  Even if there are no major problems identifiable, still an airing of the issues before legislative committees in and of itself can be positive.

In some states, it may be possible to enact requirements adopting, for example, the IEEE standard for voting machines.  That IEEE standard, however, involves problems of its own, pending more work at the IEEE level.  Further problems involve the Help America Vote Act, as well as the IEEE standard  -- all of which is addressed in a valuable statement  by the e-vote people in Massachusetts.

Just the fact that the problems are being addressed in yet another state, that in itself is valuable.  Again, it is especially important in this context as with the law suits, to frame our activity as non-partisan and inclusive of such Republicans as are sincerely willing to take an objective look at the problem and work toward preventing abuses in the future.

(At the risk of too much repetition: we reference FloridaY2K not as a stolen election, but as an example of what we  -- and the Supreme Court --  do not want to see again!)

STATUS OF THE CAMPAIGN AT THIS TIME  --  FOUR STATES

It's VERY important to get the word out that the problems are by no means limited to Ohio.  From remarks by Kossites, it appears that New York is on point with the vote count fraud issues. See comments by "won't get fooled again"

For the California situation, search on Einsteinia for "Diaries by" and look through his excellent diaries which are continuing to follow all the election issues there.

As for the four states with a substantial record of what's happening, check out recently updated pdf reports from SolarBus, as follows:

Ohio
 http://www.solarbus.org/election/articles/facts-ohio.pdf

Florida
 http://www.solarbus.org/election/articles/facts-florida.pdf

New Mexico
 http://www.solarbus.org/election/articles/facts-newmexico.pdf

Washington
 http://www.solarbus.org/election/articles/facts-washington.pdf

As for Massachusetts, I have already referenced the e-vote people  there.  I know that I am forgetting something recently mentioned here at DKos about some other state. If anyone knows what that is  --  or has other information  -- PLEASE feel free to comment.  I guarantee that I will read all comments and respond to the best of my limited abilities wherever indicated.

P.S.  "I shall return" to this issue with a second installment to include a point-by-point of our and the enemy's strategies and comments on "Luntzing" language issues.  I hope that my work here proves of some use to someone.