Election reform efforts move beyond 2004 election

The 37 Ohio voters who had sued to overturn the results of the presidential election in their state are dropping their lawsuit, saying that with Congress’ certification of the election on January 6, the question is now moot, the AP reported today.

While the Green-Libertarian challenges to the vote in Ohio and New Mexico continue (indeed, in New Mexico a Green-Libertarian-requested recount is just about to begin), I agree with those Ohio voters. With the congressional certification of the election now past, the story has moved beyond the specifics of this election into a fight over the future of American elections and therefore beyond the scope of this blog. This will be my last entry.

However, I’ll end with the impassioned words of those members of Congress who, against the opposition of a hostile majority, managed to force a two-hour debate on election problems.

“It is on behalf of those millions of Americans who believe in and value our democratic process and the right to vote that I put forth this objection today,” Representative Stephanie-Tubbs Jones of Ohio said. “If they are willing stand at the polls for countless hours in the rain as many did in Ohio, then I can surely stand up for them here in the halls of Congress.”

“We have spent our lives fighting for things we believe in – always fighting to make our nation better,” Senator Barbara Boxer told the joint session. “We have fought for social justice. We have fought for economic justice. We have fought for environmental justice. We have fought for criminal justice. Now we must add a new fight – the fight for electoral justice.”

The Senate’s new Democratic leader, Harry Reid of Nevada, joined the challenge. “Today, our brave men and women of the armed forces are working to bring the right to free and fair elections to Iraq,” Reid said. “Their sacrifice absolutely demands that we work to ensure our own elections are fair. That is what today’s debate is about.”

Senator Ted Kennedy spoke pointedly of the grassroots pressure that refused to let this issue die. Later, Bob Fitrakis, Steve Rosenfeld and Harvey Wasserman described “the story of how a small band of activists, lawyers and independent journalists assembled a record and analysis that propelled a new generation of progressive Democratic leaders to emerge.” The question is whether January 6 marks the end of that effort or the beginning of a new movement for voting rights in America.

In one sign that the movement may continue, David Cobb of the Green Party, Medea Benjamin (Code Pink and Global Exchange), and many other progressives and independents are planning to participate on an Electoral Reform Panel at the Progressive Summit being convened by the Progressive Democrats of America in Washington January 21 to 23. The public is invited to join the conference.

AP reports a series of plans afoot for election reform, among them:

During the certification debate, Harry Reid announced that he and Senator John Ensign (R-NV) will reintroduce the bipartisan Voting Integrity and Verification Act in the 109th Congress. The Act would amend the Help America Vote Act of 2002 to by requiring "a voter-verified permanent record or hardcopy" of votes cast.

Meanwhile, Democratic Reps. Gene Green of Texas, Brian Baird of Washington and Bill Delahunt of Massachusetts have advanced a plan to abolish the Electoral College. This sounds like a long shot to me, as the Electoral College is so firmly embedded in the U.S. constitution that abolishing it would require a constitutional amendment. A more feasible solution would be to end the winner-take-all allocation of Election College votes by states and for each state to instead allocate its Electoral College vote in proportion to the popular vote there. This would not be easy to achieve either; a ballot measure to do just that failed miserably in Colorado in November. I suspect this was because most voters had no idea what the measure meant. To succeed, such initiatives would require major voter education campaigns.

Rep. John Conyers, D-Mich., wants to establish Election Day as a national holiday, expand early voting options, and create national standards for voter registration, voting hours and ballot recounts.

House Administration Chairman Republican Bob Ney has promised to hold hearings to examine election issues, although he has signaled he’s particularly interested in investigating the growth of tax-exempt political groups that aren't regulated by the Federal Election Commission, many of which worked to elect John Kerry last fall. But he says he also plans to investigate reports of voter disenfranchisement, problems with provisional ballots and long lines at polling stations.

In Ohio, the state is required by federal law to replace all punch card machines by November of this year (most of the 90,00-plus “spoiled” ballots in the state in November were punch-card ballots). In the state legislature, Democrats are planning to introduce legislation to expand absentee and early voting options, and require a paper trail for voting machines, while Republicans are introducing legislation to require voters to provide identification at polls. Democrats want to prohibit Ohio's secretary of state from holding a campaign office. Ohio Secretary of State Kenneth Blackwell and Florida's secretary of state in 2000, Katherine Harris, now a congresswoman, have been criticized for also holding positions in Bush's campaign.

Congressman Rush Holt plans to reintroduce his bill for a voter-verified paper trail for voting machines. His bill, which was known as H.R. 2239, was the first and still the best of the paper trail bills, in that it would require randomly audited voter-verified voting machines. There is some strong momentum for voting reform. To get anything done, the Democrats will have to recruit Republican support, but this might be an issue where they can do that.

Among organizations that continue to work on election reform are Common Cause, Verified Voting, the Center for Voting and Democracy, and the Alliance for Democracy. Keep on eye on freepress.org and Truthout for good, ongoing coverage of voting. See also the YES! web page on protecting the vote.

Historic election challenge unfolds in Congress

Listening to radio news this morning was disorienting. A headline confirmed what I reported yesterday, plus some new specifics: Senator Barbara Boxer has signed on to Representative Stephanie Tubbs Jones’ petition to challenge the Electoral College vote today. The newsreader went on to say that because Republicans dominate Congress , which must vote by simple majority whether to accept the College vote, the challenge would last at most two hours and change nothing. On to next story.

But such a challenge will be historic. Only twice in the 200-plus years of this republic has the certification of the Electoral College vote in Congress been interrupted by debate (I'm discounting the Jefferson and Quincy Adams cases; both of them were installed as president by Congress because the Electoral College vote was tied. At this time, the Electoral College was clearly a work in progress and has since been redesigned). The last time was in 1968, when a “faithless” Nixon elector voted for George Wallace. After a few seconds of debate, that vote was allowed to stand. The only other time was after the 1876 Hayes-Tilden contested election. The result of that challenge was a compromise installing Republican Hayes as president and ending Reconstruction. That compromise shaped American history for at least 90 years, beginning an era of Jim Crow that would be ended only with the civil rights movement. The second challenge erupted because of the Wallace candidacy, which was a reaction against the rising tide of the civil rights movement. The two Electoral College challenges stand like bookends of Jim Crow.

Race was a central factor in both these challenges, and is again in this third challenge. Critics now charge that blacks were systematically disenfranchised in the November election in Ohio, and the Black Congressional Caucus is leading this challenge to the electoral vote. Yet a white senator has chosen to stand with them.

William Rivers Pitt, blogging for Truthout, notes that this historic challenge is the result of a people’s movement. Criticism of the election results got almost no coverage in the corporate press, but was kept alive by thousands of citizens . “If nothing else, this proves that concentrated activism and advocacy works,” he writes. Pushed and supported by the pressure from the grassroots, sympathetic representatives in Congress, led by Representative John Conyers, were able to continue investigating problems with the election, despite John Kerry’s instant withdrawal and silence broken occasionally by ridicule in the corporate press. Pitt says that short as the debate in Congress will be, and though it will not reverse the election, it will initiate a national dialogue on the way we conduct elections and push forward a reform movement.

Pitt offers some further tidbits on the drama about to unfold:
“Several other Senators are preparing statements of Support for the Boxer/Tubbs-Jones challenge, and a number of House members will also rise in support. There is every expectation that Senators Clinton, Obama and Dodd will be among those offering statements of support.
"Reps. Waters, Conyers and Kucinich will be among the House members who stand … There is a rumor floating around that one of the Senators to rise in support will be a Republican. That is not in any way confirmed. “

At a rally of about 300 in D.C. today, Kim Gandy of NOW announced Boxer’s decision. Some people there apparently wore orange, like the Ukrainians who protested their election. Several hours later the Reverend Jesse Jackson closed out the rally with a speech in which he announced that Boxer would be joined by Senators Chris Dodd, Hillary Clinton, Harry Reid, and Barack Obama (I find this last quite surprising, as it’s quite a limb for a brand-new senator to walk out on—I guess the strong grassroots pressure has strengthened the limb). From the House, Jackson said, Congressman John Conyers would challenge the Ohio vote, with the support of Stephanie Tubbs Jones (perhaps Jackson was speaking informally, as in fact Tubbs Jones is officially leading the challenge), Dennis Kucinich, Jesse Jackson Jr., Maxine Waters (who also spoke at the morning rally), Robert Scott, Mel Watt, and Jerrold Nadler. Senator John Kerry, Jackson said, was in Baghdad. "And we need him here in Washington today. Those who cannot lead today cannot lead in 2006 or 2008. This is the moment of truth!" Jackson and other speakers spoke of building a coalition of blacks and progressives.

Senators likely to challenge vote

Both MoveOn and True Majority have joined calls for a senator to join Representative Conyers in challenging the Electoral College vote tomorrow. Both organization have issued email alerts asking people to contact their senators about the matter. The Reverend Jesse Jackson in an op-ed in the Chicago Sun-Times and Michael Moore in an open letter to senators on his website also made the same request (Moore also offered readers a chance to e-fax their senators). Lightwingarts.com also offers a quick fax to targeted senators. (But I'm skeptical about their list; do they really think Joe Lieberman, who refused to fight for every vote when he himself was on the ticket, would do so now? And Mary Landrieu, who recently faced a tight race for her seat in conservative Louisiana, seems a long shot. Robert Byrd, on the other hand, is another matter.)

Meanwhile, Keith Olbermann is reporting that he's heard from Congressional sources who tell him at least one and possibly up to six senators are in fact lined up to challenge the vote. Representative Stephanie Tubbs Jones of Ohio, not John Conyers (of Michigan) will sign the written objection, he writes.

The particulars of the 1887 law granting members of Congress the right to challenge the Electoral College vote are a bit disappointing. It limits debate to two hours and each member to only five minutes each. I've seen some suggestions that this might mean two hours for each slate of state electors contested, and that therefore we should be asking our representatives and senators to contest New Mexico and Florida's electors as well. Based on the sections of the law quoted in Conyers' letter, this seems inaccurate, but I'm no lawyer.

Conyers to contest Ohio electors

Rep. John Conyers, who has been valiantly—and nearly singlehandedly—leading an investigation into voting irregularities in Ohio, has thrown down the gauntlet. In a letter he sent to every Senator last week, Conyers said, "On January 6, 2005, at 1:00 P.M, the electoral votes for the election of the president are to be opened and counted in a joint session of Congress. I and a number of House Members are planning to object to the counting of the Ohio votes, due to numerous unexplained irregularities in the Ohio presidential vote, many of which appear to violate both federal and state law." He urged at least one senator to join him, as is required for a challenge to be mounted under the Electoral Count Act of 1887 (passed after the contested election of 1876, when Rutherford B. Hayes was installed as president by the House of Representatives).

Conyers also says that Ohio’s electors were not “lawfully certified” because there was too much illegal activity by election officials and voting machine company employees in Ohio.

Conyers and others are claiming that the Ohio recount was botched. David Cobb and Michael Badnarik, the Green Party and Libertarian presidential candidates who requested the Ohio recount—and paid for it—have filed a request in federal court that the recount be done over, because the recount did not conform to Ohio legal standards. Ohio law provides that each county do a hand count of a random 3 percent of its ballots, then if the hand count doesn’t match the original machine count, do a hand count of all its ballots. Only a handful of counties did this full hand count. Cobb and Badnarik charge that several counties that were required by law to do the full handcount did not do so, that precincts for the 3 percent recount were not randomly chosen (but instead carefully chosen to ensure the counts would match), that in some cases poll workers were given “cheat sheets” telling them what numbers the handcounts should add up to, and that ballots were inadequately secured. They also note that tens of thousands of “spoiled ballots”—those rejected by machines—and rejected provisional ballots were never reconsidered in the recount. Only 1,200 votes, out of a total 5.7 million cast statewide, were shifted by the recount.

Bob Fitrakis, Steve Rosenfeld and Harvey Wasserman, writing in the Columbus Free Press, point to a number of other problems in the recount, including anomalies in the reported voter turnout in various counties. They point also to the refusal of the Ohio State Supreme Court Chief Justice to recuse himself from a legal challenge to the election in which the race for his office figured. Their article also looked askance at lawyers representing the Kerry campaign, which has challenged the Ohio results in only one county. “Daniel J. Hoffheimer, an attorney hired by the Kerry campaign, has emphasized his belief that despite that challenge, ‘this presidential election is over. The Bush-Cheney ticket has won.’ Hoffheimer is affiliated with Taft, Stettinius and Hollister, a Cincinnati firm with deep Republican ties to Ohio's current GOP governor, Bob Taft.”

Ohio secretary of state resists subpoena

Ohio Secretary of State Kenneth Blackwell is seeking a court order to avoid testifying in a court challenge of the November vote. Ohio Attorney General Jim Petro, representing Blackwell, told the AP that the 37 voters contesting the election "are not trying to actually contest the presidential election but are merely using this litigation to cast public doubt on the voting system of the State of Ohio without a shred of evidence."

Lawyers for the voters have also sent notices of deposition to President Bush, Vice President Dick Cheney, and White House advisor Karl Rove, as well as to a number of Ohio county election officials.

With Democrat Chris Gregoire ahead of Republican Dino Rossi in the Washington state governor’s race by 129 votes, it appears the long deadlocked election may finally be decided. Last week, the second recount of this extremely close race put Gregoire 8 votes ahead of Rossi, and then the state supreme court ruled that King County could count some 700 votes that had been mistakenly tossed out because the county failed to transfer signatures from paper to electronic files. Those votes put Gregoire ahead by 130 votes, and with that the state announced the second recount finished. But Rossi and the Republicans vowed to fight on. They requested that other counties re-examine rejected votes. But this week county election officials across the state turned down the requests. State Republican Party Chairman Chris Vance continues to criticize the election, saying that King County violated state law by permanently altering ballots in which voter intent was apparently clear but marked for more than one candidates.

Kerry files motions in Ohio recount

On Monday, the Kerry/Edwards campaign filed two motions in support of the Cobb/Badnarik-led recount in Ohio. The motions request that ballots and machines be preserved for evidence of possible election fraud and that a technician for voting machine company Triad Systems be required to give sworn testimony. As I noted in a previous entry, there have been accusations that a Triad Systems employee may have tampered with voting tabulators in Hocking County, Ohio, prior to the recount.

The motions are perhaps most significant not for their substance but for bringing the Kerry/Edwards campaign into the legal fight in Ohio. To go forward, the Cobb/Badnarik (Green and Libertarian candidates for president) legal challenges must show irreparable harm and that there is a significant chance that the case will succeed on its merits. But no recount would deliver an Ohio victory to Cobb or Badnarik. A recount, however, could very well turn Ohio to Kerry’s column, so Kerry’s entry into the legal fray satisfies the success on the merits requirement.

Attorney John Bonifaz, who serves as general counsel for the National Voting Rights Institute and co-counsel for Cobb and Badnarik in the recount, had this response to the Kerry/Edwards motions: "We are pleased that the Kerry Edwards campaign has joined our motion to preserve all of the ballots and election machinery in the presidential election in Ohio and to investigate the potential tampering of voting machines by Triad Governmental Systems, Inc, prior to the start of the recount. We welcome the Bush Cheney campaign joining our motion as well. The integrity of this recount is at stake. All candidates ought to join together in ensuring the proper counting of every citizen's vote."

The Reverend Jesse Jackson's Rainbow/PUSH Coalition, United for Peace and Justice, and other groups are gearing up for a rally in Columbus, Ohio, on January 3 to demand that all the Ohio votes be counted, all voting irregularities be investigated, and Ohio electors not be seated until there is an accurate final count.

WA Democrat a step closer to governor's mansion, San Diego still contested

The Democratic candidate in Washington state’s achingly close race for governor just got a big step closer to winning. The state supreme court ruled unanimously today that King County, home of Seattle and a majority of Democratic voters, could count hundreds of absentee ballots that were mistakenly tossed because of errors by election workers. The current recount, paid for by the Democrats, is the third of the election. The first count had Republican Dino Rossi ahead of Democrat Christine Gregoire by just 261 votes. That close margin triggered an automatic machine recount, which whittled Rossi’s margin to 42 votes.

After the court decision, Republicans immediately vowed to continue to contest the election. Rossi spokeswoman Mary Lane said Republicans would now be going to canvassing boards around the state asking them to reconsider other ballots that had been rejected. Republicans have also floated the idea of calling a whole new election, something for which there is no provision in state law.

But San Diego may yet win the prize for most contested election this year. Republican Dick Murphy was sworn in as mayor of the city last week, after several lawsuits to block his victory failed. Riding voter anger over a budget crisis, environmentalist/surfer/city council member Donna Frye nearly won a write-in bid for mayor, but thousands of votes for her were ruled out because the voters wrote in her name but failed to darken the oval next to her name. The League of Women Voters lost their lawsuit to have these votes counted, but this week when a group of newspapers did a tally that found there were more of these votes than previously believed—more than 5,500 of them—calls to overturn Murphy’s win grew. Murphy won by only 2,000 votes. Fredric Woocher, a lawyer for two Frye supporters, said he may file an election challenge. ''The real issue is: Do we live in a country where people are going to lose their right to vote when their intention is quite clear, but the rules are not?" Woocher told the LA Times. Woocher said the rules put out by the registrar before the election were unclear about the need to fill in the oval. Also, he notes that the registrar was diligent in determining the voters' intent in other cases where Frye's name was misspelled, the oval was checked but not filled in, or the paper ballot was somehow marred or torn. The newly elected city attorney also said he would issue on opinion on whether the empy-oval Frye ballots should be counted.

Calls rise for senators to challenge vote, electors voice criticism, and Diebold settles suit

Contest the Vote reports it has more than 14,000 signatures on its online petition requesting that a senator support a challenge to the Electoral College vote and 1,000 signatures on its paper petition. The group now plans to forward to each senator petitions with the signatures of his/her constituents. They are also forwarding the petition to the House Judiciary Committee to encourage formal hearings on election irregularities. They say they’ve met with an aide to Barbara Boxer, the senator they’ve been pinning their hopes on, and that she is seriously considering supporting a challenge. (Other senators whose names are being floated as possible supporters of a challenge are John Edwards, which seems implausible as he is about to depart the Senate, and Robert Byrd, the stalwart oldtimer who has mounted some of the most blistering criticism of the march to war in Iraq, Abu Ghraib, and the war on terror. He seems a plausible candidate to me. He has great veneration of senatorial procedure and no fear of any consequences of dissent.)

When the Electoral College voted on December 13 in the various state capitals, a number of electors took the unusual step of using the archaic ritual to protest election irregularities. The group Truth in Elections reports that in California, Vermont, Maine, and Massachusetts electors went on record calling for every vote to be counted and for election reform. In Massachusetts, one elector, Tom Barbera, spoke of having his life threatened during get-out-the-vote efforts. Another, an African American, said she was immediately accosted when she entered a Florida polling place as an observer by whites telling her, "We don't want your kind voting here."

Most remarkably, one California elector made his vote provisional upon “all votes being counted,” including provisional, under- and overvotes, computerized votes, and the votes of those turned away illegally and by long waits. The gesture is intended to ensure that the protest is read on the floor of the House of Representatives when the ballots are opened there on January 6.

One Minnesota elector voted for John Edwards rather than John Kerry—apparently by mistake. Nearly every election there is at least one so-called “faithless elector”—an elector who refuses to vote for the candidate they’re pledged to. It seems to me, however, unfair to call these electors such a nasty name, when they simply are taking the Electoral College seriously. The Electoral College is meaningless if electors can’t vote for whom they choose. Some states have passed laws requiring electors to vote for the candidate they’re pledged to, but these laws are clearly unconstitutional. For a fun tallying of “faithless electors” throughout U.S. history, go to http://www.presidentelect.org/art_faithless.html.

Remember way back when the shenanigans of computerized voting company Diebold were in the news? While we all focused on Ohio, the struggle between the state of California and the company went on quietly, and now a court has approved a $2.6 million settlement between Diebold, the state, and Alameda county. The state and county had sued over what they said were false claims by Diebold about the security and reliability of its machines (the case was triggered in part by activists’ discovery of Diebold code on unsecured websites and of serious holes in its security). The court ordered that $500,000 of the award go toward a voter education and poll worker training program coordinated through the University of California Institute of Government. The settlement forbids Diebold from transmitting election results and software over unsecure networks and requires Diebold to reconfigure its machines to provide election officials more power to reprogram them and more information on how to use the machines.

Earlier this year, Secretary of State Kevin Shelley decertified some of the company's machines for use in the election. Diebold machines caused trouble in some precincts in the primary election earlier this year and in the Nov. 2 general election. Some machines failed to start, forcing some polling places to open late or use paper ballots instead.