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The legal wrangling begins - Peter Hentges

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November 2nd, 2004


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05:52 am - The legal wrangling begins
In Ohio, the legality of partisan representatives challenging the legitimacy of voters at the polls was, itself, challenged in two different lawsuits. Late Monday night, federal court judges in the two suits barred these challengers from the poll sites. In suits brought by the Democratic party of one county and by two black Cincinnati voters it was alleged in different ways that the GOP use of these individuals was being unfairly targeted at black voters.

Early Tuesday, a 3-judge panel of the Appeals Court ruled 2-1 to overturn the decisions (lumping them together). I, of course, like the wording of the dissenting judge's decision (quotes from http://www.cnn.com/2004/ALLPOLITICS/11/02/ohio.challengers.ap/index.html):
The dissent by Judge R. Guy Cole said the citizens of Ohio have the right to vote without the "threat of suppression, intimidation or chaos sown by partisan political operatives."

Cole said that partisan challengers are seeking to target precincts that have a majority black population, and that when "the fundamental right to vote without intimidation or undue burden is pitted against the rights of those seeking to prevent voter fraud ..." the court must err on the side of voters.
This, I think, is a better analysis than that of the majority opinion which states:
The federal appeals court said that while it's in the public interest that registered voters cast ballots freely, there is also "strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote."
Given the history that this country has in preventing people from voting who have legitimate right to do so, I think providing additional road blocks to voting (Ohio's poll workers would already be challenging someone whose signature didn't match the poll book or that was recognized as not being from the precinct) is counter-productive to the free running of our republic.
Current Mood: energeticenergetic

(9 comments | Leave a comment)

Comments:


From:joel_rosenberg
Date:November 2nd, 2004 06:29 am (UTC)
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On the other hand, given how common voter fraud apparently is and how relatively rarely it's prosecuted, having folks keep an eye on things seems to me to make sense. Walter Cronkite's theory to the contrary, illegal voters aren't supposed to vote.
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From:jbru
Date:November 2nd, 2004 07:20 am (UTC)
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I agree that people who shouldn't vote, shouldn't, well, vote. It seems to me, however, that having actual people go to a polling place to cast a fradulant vote is an incredibly inefficient way to commit voter fraud. I think of all the dead people voting in Chicago and doubt one could get that many people to go out and vote twice (or more) given how hard it is to get people to vote just once. So I'm with Judge Cole in thinking this is more about suppression, intimidation and hassle and less about keeping out illegal voters.
From:joel_rosenberg
Date:November 2nd, 2004 08:56 am (UTC)
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How would you suggest that illegal voters be kept out? I think that poll watchers looking for obvious evidence of illegality (if "Mary Poppins" turns out to be a black guy, that would be kind of a hint) is terribly inefficient in terms of catching felonious voters, but it might well -- as Cronkite suggested, as though it was a bad idea -- intimidate some.

That said, I think that preloading the machines, a la Philadelphia, is a much more efficient way to cheat, sure. But I don't think we should prevent only efficient cheating.

When one starts with the notion that keeping an eye on things is intrinsically intimidation, one can quickly get to raving Daschle territory where, so the theory goes, voters must be prevented from being subjected to "eye-rolling" by poll watchers. (Let me emphasize that the sort of "eye-rolling" we're talking about doesn't actually involve the removal of eyes from anybody's head, but a common expression of skepticism.)

Even Daschle's tame judge didn't buy that -- of course, that may have been because he was being watched, something that manifestly ticked him off.
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From:cakmpls
Date:November 2nd, 2004 09:57 am (UTC)
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The NPR report I heard said that a restraining order was issued that among other things forbade poll watchers to write down license plate numbers, which the Republican candidate's poll watchers admitted they had been doing on the reservation.
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From:jbru
Date:November 2nd, 2004 01:05 pm (UTC)
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And CNN's web site said they were also specifically forbidden from following them home.
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From:cakmpls
Date:November 2nd, 2004 01:19 pm (UTC)
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So this amounts to a wee bit more than "eye-rolling."
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From:jbru
Date:November 2nd, 2004 12:58 pm (UTC)
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I think that illegal voters are being kept out now by the election judges. That is, when your theoretical Mary Poppins shows up to the polls, the election judge does their job and doesn't let him vote.

I don't believe having someone keeping an eye on things is intrinsicly intimidation. I do think that having someone making the process of voting involve a greater challenge than necessary is being used as a strategy to keep voter turn-out low. It is telling that the outcry against this is coming from areas where Republicans are vulnerable or have interests greater than seeing that the will of the people is heard. (In Daschle's case, for example, where the RNC seems intent on removing him for reasons other than whether or not he does a good job representing his constituency.)
From:joel_rosenberg
Date:November 2nd, 2004 01:21 pm (UTC)
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If election officials, including election judges, could be reliably depended upon to do their jobs fairly and honestly at all times, there wouldn't be a need for checks and balances. That's why we need poll watchers, and why the law provides for them.

I wouldn't have thought of you as somebody who would have such a deep faith in government officials, though.

That's why we need independent watchers -- see http://www.blackfive.net/main/2004/11/blackfives_vote.html for example. I don't think it's a coincidence that each and every one of the disenfranchised voters there was a Republican.
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From:jbru
Date:November 2nd, 2004 01:33 pm (UTC)
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Ah, but election judges aren't government officials, you see.

And the story you cite seems to prove my point. It was far more efficient to remove unwanted voters from the rolls and have the election judges do their jobs than to have someone challenging voters coming in.

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