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scalias in a jar

The 2000 and 2004 presidential elections taught Democrats and the rest of the country that the GOP Counterrevolution is playing for keeps in trying to discourage voter participation by certain groups.

There was a time many Americans believed the country had matured from the days of voter fraud and intimidation, but in truth 2000 and 2004 planted the idea firmly in voters’ minds that the system is as rotten as ever. In a Slate article, Richard Hasen noted,

The number of election challenges going to court has increased dramatically since the 2000 Florida debacle. The average number of cases in the 1996-99 period was 96 per year, compared with an average of 254 cases per year from 2001 to 2004.

Hasen goes on to observe that the losing party in the race is apt to think that somehow the winners cheated at the polls.

Voting rights has long been one of the more hypocritical aspects of the American Constitution. For a while people without property could not vote. It has been less than 100 years since women could vote, just about half a century since the last state finally allowed Native Americans to vote. Many Americans still recall the days when African Americans were prevented from voting by Machiavellian schemes such as the literacy test, in which individuals were subjected to indignities like trying to guess how many jelly beans were in a jar. The GOP even sought to scuttle one of the landmark pieces of legislation in American history: the Voting Rights Act.

This calls for a short, select history lesson the covers some of the past few years’ voting scandals.

  • In 1999, officials of the Sequoia voting machines company were indicted for bribing Louisiana elections commissioner Jerry Fowler with $8 million. In 2005, Sequoia raised a few eyebrows when it was acquired by the Venezuelan company Smartmatic.
  • In 2001 the Civil Rights Commission Investigating the Florida Election Mess concluded:

Restrictive statutory provisions, wide-ranging errors and inadequate and unequal resources in the election process denied countless Floridians the right to vote.

  • In 2002, Greg Palast investigated how the GOP conducted the purge of Florida voters, finding widespread abuse. Palast has been writing about election abuse ever since so much so that by now he must have a bad case writer’s cramp and a rather large headache that comes from no one listening even though you have identified the crooks and liars innumerable times.
  • In 2002, Bev Harris, who would write Black Box Voting–one of the classics of electronic voting literature–first began writing about electronic voting fraud after she discovered that U.S. Senator Chuck Hagel had ownership in and had been CEO of the company that built the machines which counted his own votes. (The company: Election Systems & Software).
  • In 2003, Harris, whom referred to as the “Erin Brockovich of elections” (, just weeks after a stunning electoral upset in Georgia that tipped control of the U.S. Senate, discovered 40,000 secret voting machine files — including a set of files called “rob-Georgia,” containing instructions to replace Georgia’s computerized voting files before the election. The files she found contained databases with votes in them and the voting machine programs themselves. She downloaded the files on Jan. 23, 2003 and set them free on the Internet a few months later, where they were studied by scientists and security experts.
  • In 2003 Stanford Scientist David Dill authored a petition for a voter-verifiable audit trail on all voting equipment which has been endorsed by thousands of people, including many of the top computer scientists in the U.S. Dill also founded the Verified Voting Foundation.
  • In July 2003 Sandeep S. Atwal wrote in investigative report posted on the now defunct site that the executives in some of the electronic voting machine companies had links to the Reactionary Right., “If [the] charges are true,” he wrote, “and there is little evidence to contradict their claims, George W. Bush has already won the 2004 election.”
  • In July 2004, Scientific American bestowed a prestigious Technology 50 leadership award on R. Michael Alvarez and Ted Selker for seeking to reform American voting. Scientific American noted :
  • Alvarez and Selker recommended four major steps the Election Assistance Commission should take to minimize lost votes in the November 2004 elections. These included better voter registration processes, fixing certain ballot problems, requiring the reporting of more balloting statistics, and developing better voter complaint procedures.
  • November 25, 2006, the New York Times concluded, “After six years of technological research, more than $4 billion spent by Washington on new machinery and a widespread overhaul of the nation’s voting system, this month’s midterm election revealed that the country is still far from able to ensure that every vote counts.” The article went on to detail numerous problems with machines, those who operate them, and the companies that manufacture and program them.

At this point allow the author a little leeway as he cites one of the most enduring and overused cliches used by writers. On May 25, 1961 President John F. Kennedy announced to an audience at Rice University, “I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the moon and returning him safely to the earth.” On July 20, 1969–a little more than eight years after JFK’s speech–Neil Armstrong stepped onto the moon’s surface in an event televised around the world. At the time Kennedy made his pledge, the best the United States had been able to do was to send Alan Shephard on a 15 minute suborbital flight.

The point of this oft-quoted example is that it has taken the Bush Administration almost as long to correct our screwed up voting procedures as it did to put someone on the moon, but then what should we expect from a party that has consistently fought to curtail voting. The GOP has sought to discourage voting by people of color, the elderly, and the poor because they rightly fear these groups will vote overwhelmingly for Democratic candidates. But there is another reason as Paul Krugman so astutely observed in a column titled “Black and Blue:”

“The problem with policies that favor the economic elite is that by themselves they’re not a winning electoral strategy, because there aren’t enough elite voters.” Mr. Krugman then goes on to ask, how then does the GOP stay in power?

Voter IDs

The answer to that is simple, Republicans try to discourage those who aren’t in the economic elite from voting. In a previous voting rights post I observed how cluster technology helps them do this. But the GOP also has borrowed some ammunition from those who used to make people count jelly beans: their new weapon is voter identification. Across the country GOP legislators and officials have worked hard to require that voters bring all sorts of ID to show they are in fact “qualified” to vote. Does the script sound familiar? Just as the Dixiecrats knew it was difficult for anyone to estimate the number of jelly beans in a jar, the GOP knows that many of the poor and people of color do not have ID’s or the money to pay for them. Remember the 100,000 people who could not get out of New Orleans during Katrina because they did not have a car? How many of those people do you think had a driver’s license?

Voter ID laws have been popping up all over the country in an election version of the carnival whack-a-mole game as lawyers for the poor and people of color have tried to change these laws so they are economically neutral. Curiously the Carter-Baker Commission on electoral reform did recommend a national voter ID, but Robert Pastor, executive director of the Carter-Baker commission, made it clear that the voter-ID proposal should be enacted only as part of a package with government-funded universal voter registration, and that some Republicans supporting voter ID “are not really serious about making sure that voter ID is free for those who can’t afford it”

The Supreme Court Case

Issued a week before the Indiana primary, the impact of this decision will reverberate into November as the Republican Counterrevolution continues its attempts to make it more difficult for people to vote. The question looming over this decision is whether some GOP state legislatures will try to rush through more laws like Indiana’s now that the Court has given them the green light. In short, the Court may have helped to tilt the November election towards the Republican Party.

No one asked the most important question of all: why in a democracy should it cost anything to vote? While Indiana argued that its IDs were “free,” there is a cost associated with obtaining them, especially for people with no transportation or who can’t afford Halliburton gas. Maybe we should issue church IDs just to be sure there is no fraud going on there and the same thing with free speech. Pretty soon we will need an ID for everything. This is the ultimate consequence of a Republican Counterrevolution that does not trust the American people, but instead seeks to make sure only the “right” people vote.

Essentially this is what the American Civil Liberties Union said in response to the Court’s decision. ACLU Legal Director Steven R. Shapiro commented:

We are very disappointed in today’s decision, but it leaves the door open to future challenges in Indiana and elsewhere by registered voters who are denied their right to vote based on onerous and unconstitutional voter ID laws. We should be seeking ways to encourage more people to vote, not inventing excuses to deny citizens their constitutional voting rights.

Ken Falk, Legal Director of the ACLU of Indiana and lead counsel on the case added:

Today’s decision minimizes the very real burden that Indiana’s voter ID law places on tens of thousands of eligible voters who lack a government-issued identification while accepting at face value Indiana’s unsubstantiated claim of voter fraud.

Falk and Shapiro gave two of the clearer statements of the level playing field I have read recently. Essentially they were saying that if we make it difficult for certain people, especially a certain class of people, to exercise their franchise then we are not truly a democracy but an oligarchy where power rests not in the people but in the privileged.

It has been almost four years since a task force of distinguished academic researchers representing the American Political Science Association (APSA), released American Democracy in an Age of Rising Inequality, a sobering document whose conclusions ominously bring to mind Tuesday’s decision. In the section “The Uneven Playing Field,” the task force wrote:

Government is expected to help insure equal opportunity for all, not tilt toward those who already have wealth and power.

The report went on to indict the current state of American politics:

We find disturbing inequalities in the political voice expressed through elections and other avenues of participation. We find that our governing institutions are much more responsive to the privileged than to other Americans.

The report included a graph that dramatized the differences in political participation between those making over $75,000 and those making under $15,000.

political participation graph

Note particularly the first bar graph that shows voting participation.

Here is the key sentence from Justice Scalia:

For the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified. [p. 1]

Read that one over again and then again, then ask where American voting rights would be if this standard had been rigidly adhered to through the life of this republic. By this reasoning, special burdens on women and the 18th Amendment are irrelevant as are all the various strategies that were used to prevent people of color from voting.

It gets worse:

A voter complaining about such a law’s effect on him has no valid equal-protection claim because, without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.

If I read this one right it says that the voter must prove “discriminatory intent” in order for there to be any challenge to voting laws. If you remember the history of segregation, the South once applied literacy tests to voters who were given such bizarre tasks as counting jelly beans in a jar to test their “intelligence.” The justification for this was that voters needed to be “intelligent” enough to cast their ballots. Scalia’s reasoning seems to say that this would be acceptable since there was no “discriminatory intent.”

Voting Income Disparities

Much has been written by me and others about how income disparities in America have regressed to the point of where they now resemble the early years of this century. What has received less attention is how the wealthy have come to dominate our political process as the participation of low income voters has also declined.

In 1996, 34% of all voters had an income under $30,000. In 2000 this declined to 23% and stayed there for the 2004 election. In an influential 2002 paper, “Where Have All the Voters Gone?” (later released as the book The Vanishing Voter) Kennedy School of Government professor Thomas Patterson noted:

The period from 1960 to 2000 marks the longest ebb in turnout in US history. Turnout was nearly 65 percent of the adult population in the 1960 presidential election and stood at only 51 percent in 2000.

Patterson’s conclusions echo those of the APSA task force:

Although a class bias in turnout has been a persistent feature of U.S. elections, the gap has widened to a chasm. The voting rate among those at the bottom of the income ladder is only half that of those at the top. During the era of the economic issue, working-class Americans were at the center of political debate and party conflict.

Electronic Voting

First, why have we committed to using computers in the first place? As we have seen the technology is expensive, prone to mistakes and security problems, and requires poll workers trained in how to use the machines. The entire move towards computer voting has been a boondoggle for several companies with questionable records and even more questionable ties to the GOP.

The usual argument is that if we don’t use computers we are back to peering at hanging chads through magnifying glasses. Here is my home state of Minnesota we have been successfully using paper ballots that are counted by machines ever since I first voted way back when. The cardboard ballots contain the fill-in bubbles familiar to anyone who has taken any kind of standardized test. Unless someone fills in two bubbles for the same office or totally misses a bubble, it is pretty obvious who they intended to vote for. The cardboard ballot is kept for verification after the machine tallies it. Since Minnesota has used this system there has not been, as far as I know, a single complaint about the technology. It is simple to use, relatively inexpensive and–most important–can be verified.

Second, why the delay? I could find dozens of programmers in my local phonebook who could probably write a voting machine code. In fact my wife hired one such programmer to help her with a medical research project that used a touch screen survey. It took him three months and cost probably what those contractors were charging for lunch on their expense accounts. There really are only two conclusions: the people running this program are even more incompetent than those running FEMA during Katrina and the GOP, which has never been a fan of making voting easier, has been dragging its feet.

Without a reliable system of voting everything else this Congress enacts will have little meaning, because when the next election rolls around it will be more of the same. Before we seek to plant the seed of democracy throughout the world or criticize the voting practices of other nations it would be wise if we cleaned up our own weed patch because it has become so overgrown that many Americans refuse to enter it.

The Times quotes one voter who asked for a provisional ballot because he felt at least that way he knew his vote would be counted. When we have descended so far that the people no longer trust the system, then the system risks losing its credibility forever. As many countries can testify, when you pollute the rule of the ballot the only alternative is the rule of the bullet.

Some Modest Proposals

1) The Democratic Platform needs to make overturning the Indiana voter ID case a major priority.

2) It needs to once and for all assure a fair NATIONAL policy that assures all citizens equal access to the ballot box. In essence we need a new Voting Rights Act that applies to all Americans and spells out what requirements must be in place in EVERY state. These include requirements for voting technology (see below) and voter identification. At the heart of the original Voting Rights Act lay the principle that someone in Texas should have the same voting rights as someone in Iowa. This country has strayed too far from that principle.

3) The Party needs to affirm its commitment to the measures recommended by Verified Voting and others to assure that electronic voting leaves a paper trail.

4) Extend the gerrymandering laws to take into account the new clustering technology. A district gerrymandered by race should not merely be against the law but so also should one that seeks to dilute the votes of low income or elderly voters.

In a provocative paper, “The One-Man One-Vote Myth:The Impact of Non-Voting Populations on Congressional Apportionment,” researchers at the University of Copnnecticut suggest scrapping the current apportionment system based on population to one one based on voting percentage.  One snetence from that paper suggests whay may be in store for this country:

The following section shows that population-count methodlogy favors states with young, ethnic populations (eg. CA, AZ, TX) at the expense of predomintately white states with older populations (eg. ME, MN, WI). Herein lies the potential for population-based apportionment to polarize the United States along ethnic and generational divides. These differing political constituentcies will place often divergent, perhaps incompatible, demands upon federal government.

If you combine this idea with the GOP’s attempts to curb voting and the statistics about nonvoters you get some idea fo where this democracy may be headed. Without some concerted action on the part of the Democratic Platform Committee that direction could be backwards.

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