Before I begin, let me first apologize for this longer than usual diary. I did my best to edit it down, and remove unnecessary paragraphs. I hope you find it interesting and informative.
For those who may not already know Ohio is officially this years Florida.
There is a concerted effort by Ohio Republicans to decrease voter turnout among Democrats while encouraging and ensuring Republicans turn out as much as possible. The ACLU of Ohio has a great summary page of everything that is going on in the state in regard to voting rights.
http://www.acluohio.org/...
First was the news of the Voter ID laws.
But the kind of people who are least likely to have proper state identification — young people, African Americans, Latinos and the poor — are more likely to vote for Democratic voters [sic]. Critics say that the wave of new voter ID laws that have gone on the books since the 2010 midterm elections, when Republicans won state legislatures around the country, are meant to dampen turnout for Democrats.
http://www.huffingtonpost.com/...
Continued below...
Now we have news that Secretary of State Katherine Harris Jon Husted has been siding with Republican Election officials to break ties on County Election Boards in order to slash extended voting hours... in Democratic Counties.
Republican counties are still getting the extra days.
In heavily Democratic cities like Cleveland, Columbus, Akron and Toledo, early voting hours will be limited to 8 am until 5 pm on weekdays beginning on October 1, with no voting at night or during the weekend, when it’s most convenient for working people to vote. Republican election commissioners have blocked Democratic efforts to expand early voting hours in these counties, where the board of elections are split equally between Democratic and Republican members. Ohio Republican Secretary of State Jon Husted has broken the tie by intervening on behalf of his fellow Republicans.
‘I cannot create unequal access from one county board to another, and I must also keep in mind resources available to each county,” Husted said in explaining his decision to deny expanded early voting hours in heavily Democratic counties. Yet in solidly Republican counties like Warren and Butler, GOP election commissioners have approved expanded early voting hours on nights and weekends. Noted the Cincinnati Enquirer: “The counties where Husted has joined other Republicans to deny expanded early voting strongly backed then-candidate Barack Obama in 2008, while most of those where the extra hours will stand heavily supported GOP nominee John McCain.” Moreover, budget constraints have not stopped Republican legislators from passing costly voter ID laws across the map since 2010.
http://blogs.detroitnews.com/...
Got that? The Republican argument has evolved from the Citizens United position of Money = Speech to Money is
greater than speech. Money is more important than speech. The state should clamp down on speech in order to hang on to some money. Not only that but when it comes to Conservative counties the extra cost is no problem. But when it comes to Liberal counties the cost of voting is just too high.
Freedom isn't Free after all, and they don't want to pay for it.
Rachael Maddow has had a couple of great segments with a lot of attention to detail on this issue: http://www.bing.com/...
Let's back up a bit. A trip down memory lane to the 2004 Presidential Election in Ohio is in order to get a real sense of context of what this all means. As you can see in the video I linked to above, Rachel shows footage of the 2004 Election. There were lines that lasted upward of 9 Hours to vote, an estimated 175,000 people walked away from the polls unable to vote. A much higher number than George W. Bush's margin of victory. Working people who had that one hour of time to go vote, found lines that stretched on forever and had to turn around and leave.
It was a disaster. But the GOP was happy with the end result.
In response to this madness the State of Ohio did the right thing. They extended early voting, greatly. The result was a nearly flawless Presidential Election in 2008 in which Barack Obama won! So when the GOP took over the state Government in 2010 the first thing they started working on was ways to suppress Democratic voters.
At the risk of getting slightly off topic, I have to say I am seeing a trend. Citizens United allowed Corporations to donate as much money as they want to Super PACs. There is no limit to how much can be spent and nobody can demand to know who is donating all of this money. Elections are being bought and we don't even know who's writing the checks or for how much.
For a short time this also meant Unions could do the same thing. Collect a ton of money and donate it in response to the Corporate money and there was hope that things would sort of cancel each other out. Almost immediately after this became apparent we saw a systematic attack on Unions in states like Wisconsin and yes Ohio. The Corporate money men didn't want the Union competition so they set out to tilt the playing field even more. Soon after The same Supreme Court that decided Citizens United, decided that in fact Unions could not bundle money the same way Corporations can.
With last week’s ruling in the case of Knox v. Service Employees International Union (SEIU) Local 1000, the High Court’s hyper-partisan, hyper-activist majority—Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel A. Alito—did several things that constrain the flexibility of unions in election fights.
..snip...
The High Court majority says that workers who are represented by a public-sector union but who have not formally joined the union must affirmatively “opt-in” for dues assessments that are targeted for political purposes. Specifically, Alito wrote: “To respect the limits of the First Amendment, (unions should send) out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out.”
http://www.thenation.com/...
So when the fighting gets tough, the campaigns need some extra ads on the air, time is of the essence and we really really need that Union money to combat that Corporate money, they can just put up the money and go to town right? Well no. Corporations can take corporate money that should go toward lining the pockets of their stock holders, and instead run as many ads or host as many events, or rent as many GOTV busses as they want. It's all very fast and on the fly.
Unions on the other hand must first send out a letter to everybody in the Union asking for permission to collect money designated for the Ads and then wait for it all to trickle in before they can finally fund and air the ad. Meanwhile who knows how many news-cycles have passed.
But even with this development there was hope. In 2010 one of the most expensive races ran was the California Governors Race in which former eBay CEO Meg Whitman spent $140 Million dollars of her own money and still lost. That same year World Wrestling Entertainment boss Linda McMahon (who is running again this year) lost her bid to replace Chris Dodd after spending a large portion of her Wresting Fortune. Similarly Carly Fiorina lost her bid to win a California Senate seat after spending upwards of $18 Million Dollars.
Even Mitt Romney in 2008 couldn't buy his parties nomination and he definitely tried. He spent a ton of his own fortune only to lose.
Despite what the Supreme Court may think, money is not speech. Money was unable to buy those Elections. It did succeed in other areas, in other states. For instance the recall Election of Scott Walker in Wisconsin was thwarted partially because our side was outspent 10:1. But the fact remains that the true power the people of this nation have against the corruption of money is our votes, which cannot be bought.
So to recap where we are now, we have this concerted effort to create an uneven playing field in the money race and on the other side of the coin we have a concerted effort to disrupt Democratic Voters attempts to actually vote. This was clearly all planned as one overarching ploy to steal the 2012 Election through the legislative process. I would bet my first born (if I had one) that this was set in motion the day after Obama won. Back when we were all talking about the GOP's damaged brand.
They understood the demographics were against them, the trend-lines looked grim and they had to act. So act they did and we're just now catching up. Our ability to respond to this mess is really limited to only two options.
Legal recourse and loopholes.
It is the former that I would like to focus on. Legal recourse will be of the utmost importance when it comes to fighting back against both the Voter ID laws in states like Ohio and Pennsylvania, as well as this latest attempt to skew the Ohio election on a county by county basis.
Make no mistake, the GOP wants long 10 hour lines to vote in counties that supported Barack Obama, while a simple and flawless election is held in counties they believe are more supportive of Mitt Romney. The obvious reason is they want Romney to win and if you can get 3 extra days of voting for your side you will increase the amount of votes cast for your candidate.
But the other reason they want this is because if half the state has problems and the other half doesn't it looks less like a wide spread Election Day catastrophe that requires action and legislation and investigations, and more like isolated incidents in counties that have a lot of poor and urban voters. Indeed counties with far more voters than their rural red counter parts.
Had this issue not come to light now, had we not been informed by the many journalists reporting on this issue including the lovely and talented Rachel Maddow, there is a good chance that Election night 2012 would feature a story about a mixed bag in Ohio. That's if anything was reported at all. The fraud taking place would all be hidden and obscured by the over simplistic explanation that there were more people trying to vote in some counties and that means longer lines.
But in reality this makes Florida 2000 look good. The Butterfly Ballot? The discrepancies between Electronic machines in Republican Counties versus old clogged up punch card ballots in Democratic counties? The long flawed lists of supposed felons who were in fact not felons in the vast majority of cases? All of that is mere childs play compared to what is happening in Ohio.
I draw distinctions between Ohio 2012 and Florida 2000 because there was one argument in particular in Bush v. Gore that could come up should these clearly unequal rules find their way to the highest court in the land and it presents a bit of a problem.
From Bush V. Gore Wikipedia Entry
Bush argued that recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment, because there was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. Each county used its own standard to manually recount each vote, and Bush argued that some counties would have more lax standards than other counties.
Indeed the Fourteenth Amendments Equal Protection Clause
commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).
(*Italic section taken directly from Wikipedia.)
Basically there were too many differences between the different ways counties cast, counted and recounted ballots. The court decided this was unconstitutional because every voter had an equal right to have their votes counted under the law. Florida failed that test. Even back in 2000 I personally had no problem with that conclusion, states should have standardized elections! The problem I had was with their remedy which was basically to do nothing and let the Secretary of States certification stand. But we won't rehash that whole mess.
The one take away from Bush v. Gore was that the court believed Elections should be fair for all citizens in any given state. That the 14th Amendment under the Equal Protection Clause made it so. What is happening in Ohio right now, this county by county changing of the rules is unconstitutional under the 14th Amendment's Equal Protection Clause and it should be challenged as such.
And the Courts should agree right?
Well the part of this that poses a bit of a problem is the fact that the Supreme Court agreed with this logic, but they did so in an opinion they declared to be “limited to the present circumstances” claiming it could not be cited as precedent later on in other cases. But legal scholars and recent court cases across the country have been pushing the boundaries of Bush v. Gore's Equal Protection interpretation ever since.
Under the courts doctrine of stare decisis, they cannot make rulings whose reasoning applies only to a single case. So can Bush v. Gore be used as a precedent in favor of equal elections? It has seen mixed results but yes. Are there other legal precedents that support a 14th Amendment Challenge? Absolutely.
So where has this been tested in regard to voting discrepancies? I will give you a hint: It's round on both ends and high in the middle.
The Sixth Circuit Court of Appeals in Ohio heard a case called Stewart, et al. v. Blackwell, et al. in 2006 that tackled the exact same issue presented in Bush v. Gore.
In this case it was argued that the Equal Protection Clause as interpreted by the Supreme Court in Bush v. Gore required the State of Ohio to standardize voting machine technologies. And that unequal access to more accurate technologies diluted the votes of those using outdated punch card voting machines. The result was errors that unwittingly disenfranchised thousands even though the percentage of errors using one machine versus the other were mere single digit margins.
The case was decided in favor of those calling for Equal Protection, but the State made a big stink over the courts use of Bush. v. Gore in it's majority opinion (though it was no where near the only legal precedent or rationale they cited) so the court agreed to rehear the case and to not allow any talk of Bush v. Gore in the arguments.
But before the new hearing could even start The State of Ohio in a very sneaky move voluntarily abandoned the old punch card machines, making the case moot. The State then moved to dismiss due to the fact that the machines were no longer being used and the court agreed. So the case was dropped. I am not sure what happened behind the scenes. It seems like nobody wanted this issue to go before the U.S. Supreme Court.
I suspect the State court didn't want to hand the Supreme Court a perfect expression of the idea that Equal Protection means Equal Elections, only to have it smacked down over the technicality of including references to Bush v. Gore. Odds are the State knew the court would come to the same conclusion as they did in the first time, but with even more sound legal precedent and no mention of Bush v. Gore making it a lot harder to appeal.
Ohio was also already in the (very slow) process of removing the old school voting machines anyway. I suspect the State decided to just cut their losses and move on instead of risking a new Equal Protection precedent they would have to uphold forever.
But just because the case was dismissed after being settled, I include it here to show that there was more than enough legal precedent (Bush v. Gore notwithstanding) presented in this hearing for an Equal Protection argument in Ohio. I also wish to show that the Sixth Circuit Court of Appeals would be open to such an argument should a 2012 Equal Protection case go before them, as it almost certainly would.
First lets look at whether the Ohio court believed Bush v. Gore was applicable as precedent in an Equal Protection Argument and why.
Next, the main basis for the dissent is some “question [over] the precedential value of Bush v. Gore.” Dis. Op. at 32. The dissent answers the question by concluding that Bush v. Gore is “a case whose precedential value . . . is at best questionable.” Dis. Op. at 36.22 The dissent endeavors to explain three “reasons for doubting Bush v. Gore’s precedential value: ‘[T]he limiting language in the opinion, the lack of seriousness with which the Court undertook its own analysis, and the inconsistency with other jurisprudence by this majority of Justices all point in the direction of assuming that Bush v. Gore is not good precedent for an expansive reading of equal protection law in elections.’” Dis. Op. at 37 (quoting Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U. L. Rev. at 391).
The dissent then focuses on the first two reasons: the lack of the apparent seriousness with which the Court decided the case and the inconsistency with other jurisprudence. It is curious that the dissent bases its analysis on the belief that the Supreme Court decided Bush v. Gore, a case that decided the 2000 presidential election, with a “lack of seriousness,” and we choose to disagree with that approach.
Further, even if the Court was playing fast and loose with the law, we, as an inferior court, are not in a position to disregard Supreme Court precedent because we think they got it wrong. Presumably, if in the dissent’s view Bush v. Gore had “precedential value” — as we think all Supreme Court opinions do — he would be compelled to join us. In fact, early this Term, the Supreme Court discussed the proper approach when a lower court finds itself bound by precedent with which it disagrees.
See Eberhart v. United States, 126 S. Ct. 403, 407 (2005) (per curiam)
(“We finally add a word about the approach taken by the Court of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases. Our repetition of the phrase “mandatory and jurisdictional” has understandably led the lower courts to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter jurisdiction. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding in a summary fashion. By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review.”).
..snip..
We therefore hold that the two technologies challenged here fail to satisfy
“rudimentary requirements of equal treatment and fundamental fairness,” Bush, 531 U.S. at 109, and that based on the evidence presented below, the plaintiffs established a violation of the Equal Protection Clause.
So basically the district court is saying that they were going to err on the side of caution and assume the majority view on Bush v. Gore in reference to Equal Protection was in fact precedent because the court has no authority to decide otherwise. I quoted this section because it shows that the whole issue of whether Bush v. Gore could or
should be used was debated and those who felt it should be used prevailed.
Why they then decided to rehash this point and ultimately schedule a second hearing is beyond me. It seems like the issue had been settled in the courtroom.
But I digress. During the original hearing a lot of very useful legal precedent relevant to Equal Protection was presented. Here is a section of the ruling that dealt with legal precedent:
United States v. Classic, 313 U.S. 299, 315 (1941). In Classic, the Court stated that: “Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted . . . This Court has consistently held that this is a right secured by the Constitution.” Id. (emphasis added).
Dilution of the right to vote through various techniques, including racial gerrymandering, Gomillion v. Lightfoot, 364 U.S. 339, 345 (1960), and conducting
white primaries, Terry v. Adams, 345 U.S. 461, 469 (1953), likewise violate the constitution due to the effect of denying some citizens the right to vote. What is clear from all of the Supreme Court’s voting rights cases is that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”
Reynolds, 377 U.S. at 555. The Supreme Court’s cases have also made another principle unmistakable: “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Id.
Nearly a year before Reynolds, in Gray v. Sanders, 372 U.S. 368, 381 (1963), the Supreme Court held unconstitutional Georgia’s county unit system in statewide primary elections. The Court found the system to be unconstitutional because it diluted the weight of votes cast by certain Georgia residents based on where they lived. Id. at 379-80.
The Court stated: Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter
in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.
So here the Sixth Circuit is citing U.S. Supreme Court cases in which the high court has stated unequivocally that states have to give equal access to all citizens regardless race, religion, gender, or location. And that giving preference to one group over another dilutes the votes of those who are out of favor.
To me this strikes at the heart of the Ohio County Debacle. The State has essentially given extra weight to some counties by giving them extra access to the vote. Access that is not equally shared among the rest of the state. The amount of extra votes cast in these counties with extended voting hours would far exceed the margin of error created by using flawed voting machines.
After reading Stewart v. Blackwell I do not believe a racial discrimination argument should be the driving force behind such an Equal Protection argument. Though that argument could and should and probably will be made, it will also be harder to prove. A lot of people in the media have speculated that these latest voter disenfranchising efforts violate The Voting Rights Act. But the Voting Rights Act is very conservative in it's definition of obstructing the right to vote, and most of the precedents set by Voting Right Act cases almost always involve obvious racial discrimination, intimidation and outright physical obstruction of a voters rights. Things like poll taxes for black people. That sort of thing. Less obvious obstructions will be harder to argue.
I think an Equal Protection argument based on location alone should be enough to show favoritism of certain counties and a diluting of one counties votes over another. That really ought to be enough. Huge discrepancies in access to the polls from county to county are going to be on the books as the law of the land this November. Obvious and tangible barriers to casting a ballot if you live in one of the effected counties can be demonstrated. Hard numbers are available for the court to see approximately how many people will be effected, and how many votes may be lost.
Here is another example the court gave of a precedent that deals with this idea.
Id. at 279 (citations omitted); see also Reynolds, 377 U.S. at 562 (“And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.”). Vote dilution,
of course, while just as effective as an outright denial of the franchise, may be accomplished in many ways, both intentionally and unintentionally, in a manner that does not immediately shock the senses as would an outright denial. This is not a reason, however, to be any less cognizant of the Equal Protection Clause implications. “One must be ever aware that the Constitution forbids sophisticated
as well as simpleminded modes of discrimination.” Reynolds, 377 U.S. at 563 (internal quotation marks omitted).
BOOM! You cannot give one part of the state extra weight in the voting booth. That is exactly what is happening when you give some counties 3 extra days to cast ballots, as well as extra later hours every day. While other less fortunate counties are unable to cast ballots at that same time.
Case. Fucking. Closed.
The State of Ohio will no doubt argue that the reason extended voting times are being restricted is due to budget constraints. That each county had the ability to vote on the matter and the counties voted independently to either maintain early voting or restrict it based on a cost analysis. Many GOP brown nosers are already making this claim on TV. But the Ohio Court had an answer for that one too.
Governments almost always attempt to justify their conduct based on cost and administrative convenience, but the State’s reliance on these factors is not necessarily rational, and certainly is not in this case. The State has failed to put forth any evidence indicating that it cannot manage the costs and instead, the evidence indicates that the State has either budgeted for the transition from its own funds or through funds provided by the federal government.
The loss of so many votes because of the continued use of machines that the State admits are substandard is arbitrary and cannot be considered rational in light of so-claimed, but unsupported, cost concerns. Moreover, the experience of the counties in Ohio who have stopped using the non-notice substandard technology weigh heavily against the State’s argument.
None of these counties have encountered significant technological difficulties or undue financial burdens.
So basically the court is saying that the States Cost argument does not pass the rationality test. In this specific case several counties had already changed to the touch screen electronic voting machines, and there was no problem. Just as some counties today are still going to hold early voting. Doesn't seem like money is much of an issue.
In addition to this, several of these counties that are getting their early voting schedules shortened have offered to pay the difference in order to keep the polls open longer. Their request to do so was never acknowledged. These parties will certainly be on hand at any court hearing should this issue find its way to the courts.
Just to recap once again, the Ohio Sixth Circuit Court of Appeals supports the concept of Equal Protection for all voters and in fact ordered the state to standardize it's elections... before deciding to instead redo the whole hearing. I have no reason to believe this court would not apply the exact same reasoning and precedent to a challenge as grave and obviously crooked as what is happening in Ohio today.
Furthermore it should be obvious that the State cannot use the "it's too expensive" defense in court seeing as every county in the state had early voting in 2008 and many counties will continue to have it in 2012. In fact in the case we're discussing the court laments that the state would have to be facing bankruptcy as a result of implementing such standardizations in order to give credence to the cost argument.
If it goes to court, and they side in our favor the remedy should be the equal opening of all county polling places. How the court would go about doing that is anyone's guess. They would most likely give an order to standardize the calendar and then leave it up to the state to decide how to do that. This would probably result in all of the counties shortening their early voting calendars by 3 days in order to cause long lines. Since Democratic counties tend to be more populated they will still suffer more than the emptier Red counties.
So that is one course of action we can take to combat this. I suggest once the calendar is set in stone, so to speak, lawsuits should be immediately filed to contest the constitutionality of the rules. The State will argue that no one has yet to be disenfranchised, that there is no Equal Protection issue because nobody has yet been disadvantaged at the voting booth. Which will be technically true, but Democrats should argue that the Calendar is set, and that unless the court intervenes such outcomes are guaranteed.
Failing that what can we do?
This the other path we can take. Loopholes. There are loopholes in these election laws in pretty much all of the states that are attempting to push these laws through. The loophole is simple.
Vote by Mail.
Republicans defend Vote by Mail ballots against all challenges because they believe all Vote By Mail ballots are Republican votes. Most are military, or the very old. So virtually none of the Voter ID laws have any barring on Mail in Ballots. Likewise Mail in Voting allows for more convenient voting. If you or someone you know is a working American who cannot get off work to stand in a 9 hour line just to vote, then sign up for Vote by Mail.
It is not an answer to the problem, but it is a work around. Democrats should be encouraging their families and friends to register for Vote by Mail or Absentee. You may have to claim you will be out of town on Election Day in order to qualify. But I suggest everybody in a swing state sign up now while it is still early, and get your liberally minded friends to do so as well.
Sorry again for the long diary. I really feel like this is an under reported issue, and it needs to be explained in context, and we need to have a game plan. I do not want to be caught off guard like we were in 2000.