I know we all want to see the GOP lose at least one house of Congress next Tuesday, so George, Dick, Karl and the gang have to face the prospect of subpoenas issued by House Committees chaired by John Conyers, Charlie Rangel and Henry Waxman. Trust me, no one wants that more than I do. But it’s time to do a quick reality check and consider the following. No election since 1998 has gone smoothly, and in each one legitimate concerns about the validity of the voting process has raised the real possibility (some would say certainty) that those elections were stolen by the party in power. So, in lieu of playing the “Let’s predict how many House and Senate seats Dems will pick up” game let me throw some cold water on all that enthusiasm.
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TIME Magazine’s Cover Story on Electronic Voting
No. 1, our mainstream media is beginning to talk about the possibility that those electronic voting machines just might screw up the election this year. As proof, I offer you this story from TIME magazine’s latest issue:
In one week, more than 80 million Americans will go to the polls, and a record number of them–90%–will either cast their vote on a computer or have it tabulated that way. When that many people collide with that many high-tech devices, there are going to be problems. Some will be machine malfunctions. Some could come from sabotage by poll workers or voters themselves. But in a venture this large, trouble is most likely to come from just plain human error, a fact often overlooked in an environment as charged and conspiratorial as America is in today.
I know Time won’t actually go so far as to say that the machines will be rigged to favor Republicans , but the fact that it is mentioning “electronic voting machines” in the same sentence as “problems” is surprising in and of itself. What’s more disturbing is the tone of the piece. Take a close look at the principle theme the report appears (to me) to be promoting: Yes, there will be problems, maybe lot’s of problems with electronic voting, but only a conspiracy theorist nutcase would think that this has anything to do with election fraud …
So just as America has moved to a process of electronic voting and tabulation intended to make voting more accessible, reliable and secure, trust in the system has actually gone down. Says David Orr, clerk of Illinois’ Cook County: “We used to have a problem with giving people the wrong ballots. And if we were lucky, we’d catch it before they voted. Now, if the same thing happens with a touch screen, it’s a conspiracy.” […]
A bigger worry concerns something that is least likely to happen–that someone will somehow meddle with the devices and manipulate vote tallies. It’s not impossible. Princeton computer scientist Edward Felten and a couple of graduate students this past summer tested the defenses of a voting machine made by Diebold, a major manufacturer of such devices. Felten’s team found three ways to insert into the machine rogue programs that allowed them to redistribute votes that had already been cast. In one instance, the testers had to take the machine apart with a screwdriver–an act likely to draw the attention of poll workers. But in two others, they were able to quickly infect the device with a standard memory-access card in which they had installed a preprogrammed chip. Other computer scientists have also breached electronic voting machines. Congressman Vernon Ehlers, a Michigan Republican who has been holding hearings this fall, says manufacturers “have produced machines that are very vulnerable, not very reliable and I suspect fairly easy to hack.”
Stop right there. Notice how the emphasis is all on spinning problems as likely to be innocent mistakes or human error. Then when the report discusses the issue of the vote being hacked, it describes it as the problem “least likely” to occur. Why is hacking so unlikely? The Time story never tells us. Give them credit for even mentioning the Princeton study, but please note the framing: It’s not really a problem, folks. As proof, look at the story they cite to show that any problems are likely to be just innocent glitches:
It was … a paper trail that enabled Marilyn Jo Drake, the auditor in Iowa’s Pottawattamie County, to suss out an anomaly in a county-recorder race she was monitoring in June. She noticed that a 20-year incumbent was being beaten 10 to 1 by an unknown newcomer. Sensing a glitch, Drake cross-checked the electronic results against the totals on the paper vote and discovered the veteran was actually well ahead. The problem, it turned out, was the way the candidates’ names had been ordered and coded into the access cards that activated the machines, which were made by Omaha’s ES & S. Drake says she should have caught the problem in the pre-election test runs. “It was human error both on their end and my end,” she notes. Not every county will have an auditor as sharp-eyed as Drake–or an outcome as transparently false as the one she uncovered. “We were just plain lucky,” she says.
Note the money quote: “It was human error.” Could it just as easily have been intentional? That question is never considered, much less asked. We are supposed to be left with the presumption that any “problems” with our electronic voting this year will merely be the result of innocent mistakes, not intentional fraud. Indeed the very idea of possible election fraud associated with these voting machines is consistently discounted and down played throughout the Time article. This story written as if the writer for TIME expect lots of problems to arise on Election day, with fraud allegations to follow, and wants to inoculate the public against the belief that “election fraud” is even a possibility by establishing this counter-narrative of “human error,” “innocent mistakes” and “inevitable glitches” before the election even occurs.
Push Polling to the Rescue
Should Republicans miraculously (and mysteriously) hold on to enough seats in the House and Senate to preserve their majorities, expect to see a number of explanations for the unexpected “victory” ranging from the already well established narrative of the GOP’s super efficient GOTV effort, to the massive spending by the RNC and Republican candidates in the last week of the campaign, to the new lows in sliminess seen in the Republicans’ negative ads, to John Kerry’s foot in mouth disease. However, another rationale we are likely to hear a lot about, should Republicans somehow escape their worst nightmare, is push polling by various and nefarious conservative operatives:
In increasingly tight races around the country, voters are receiving telephone “push poll” calls, a classic dirty trick designed to suppress turnout on election day. One calling firm in particular, with White House ties and an impressive ability to fire off millions of automated calls per day, is benefiting from the strategy.
Gabriel Joseph III, president of the robo calling company FreeEats.com, may be the king of the push poll, in which real-sounding questions with ludicrous premises are asked to plant negative ideas in voters’ minds. His company, which is better known under its business alias ccAdvertising, has impressive Republican ties: According to a recent piece in Mother Jones, the group has, on at least one occasion, drawn on its White House ties to get business. And its founder, Donald Hodel, is a veteran of the Reagan administration and a former president of Focus on the Family.
Now, I have no idea how much push polling is going on, nor what effect it is having among undecided voters. I suspect its capability is somewhat overrated as a voter suppression device. Keeping people off the voting rolls, and not providing enough voting machines to Democratic precincts are far more likely to prevent votes for Democrats than robo calls with push polls, in my opinion. But expect some blowhard on Fox News or Hard Ball or Meet the Press to make the argument the election turned on the efficacy of these push polls should the GOP somehow manage pull its fat out of the frying pan come Tuesday.
Voter ID and Voter Suppression
Numerous states this year have passed laws by their Republican controlled legislatures to prevent “voter fraud.” Not election fraud, but fraud by voters, even though there is little evidence of any such example of such fraud as illegal aliens registering to vote, or double registrations in two or more districts, etc. The principal method adopted by these states is a more onerous ID requirement demanded of voters when they appear at their polling places, or to verify absentee ballots submitted this year. Mostly these laws focus on requiring forms of identification such as driver’s licenses that many poor people or students simply may not have because they don’t own a car.
Some of these laws have been thrown out by the courts as violations of Constitutional and statutory protections of the right to vote, but not all. And even worse, in Ohio it appears that confusion about which number on a driver’s license is necessary to validate absentee ballots may result in the thousands of votes being discarded on a technicality:
COLUMBUS, Ohio – The state has proposed settling a lawsuit over a new voter identification law by allowing some absentee ballots to be counted even if an ID was not provided, Ohio’s top attorney said Wednesday.
A hearing that was supposed to address another aspect of the lawsuit – whether people voting in person on Tuesday would have to show proof of identification – was delayed for hours Wednesday while a federal judge discussed the case privately with attorneys. […]
Labor and poverty groups sued over the law, saying it is causing widespread confusion across the state and that county boards of elections were using different requirements for acceptable identification. […]
The hearing in Judge Algenon Marbley’s court comes a day after a federal appeals court said he was wrong to block the ID requirement for absentee ballots. Most counties continued asking absentee voters for IDs after Marbley ruled against the requirement, but some stopped asking for identification.
The 6th U.S. Circuit Court of Appeals overturned Marbley’s decision, making IDs necessary again.
For some background regarding this dispute over voter ID requirements in Ohio from a voting rights activist, here’s an excerpt from an article by Bob Fitrakis of The Free Press:
Through a complex series of legal maneuvers, and now a shocking new decision from the 6th U.S. Circuit Court of Appeals, the GOP has thrown Ohio’s entire process of voting and vote counting into serious disarray. The mess is perfectly designed to suppress voter turnout, make election monitoring and a recount impossible, and allow the Republican Party to emerge with a victory despite overwhelming evidence the electorate wants exactly the opposite. […]
In brief, [Ohio’s voter ID law] stacked a virtually impossible set of requirements onto the voter registration process. As elsewhere nationwide, voting has traditionally involved citizens coming to the polls signing a poll book. Upon a signature check from a poll worker, a ballot has been given. A similar process has been in effect for absentee ballots. There is no recent evidence this method has encouraged significant voter fraud.
But the GOP’s [voter ID law] has imposed a series of draconian requirements for voter ID, including the demand for certain documents very difficult to obtain by many poor, homeless, elderly or other largely Democratic demographic groups. […]
On all absentee ballots, HB3 demands an identifying driver’s license number, or the equivalent. But Ohio driver’s licenses have two codes on them. The “correct” one has two letters and six numbers. The “wrong” one is an eleven-number bureaucratic code that appears above the ID photo.
According to preliminary reports, as many as ten percent of those sending in absentee ballots so far have included the wrong code, thus disqualifying their vote. The process is so confusing that one Republican federal judge, in a court proceeding, has volunteered the fact that he actually put this same “wrong” number on an application for a rental car, temporarily nullifying his contract. Here in Columbus, Board of Elections Director Matt Damschroder estimates that 5000 ballots would already be disqualified in Franklin County alone.
So far the wave of absentee ballots pouring into the county boards of elections indicate an extraordinary percentage of Ohioans will vote absentee this year. Many are likely hoping to avoid distrusted electronic voting machines, as well as the long, racially- biased lines that tainted the 2004 election.
In response to reports of large numbers of absentee disqualifications, a federal lawsuit has been filed by a Cleveland homeless advocacy group and the Service Employee’s International Union. The suit was then deemed to be a related action to the landmark King Lincoln civil rights filing that resulted in a September ruling preserving the ballots from Ohio 2004, and was sent to Judge Algernon Marbley, who made that decision.
Last week Judge Marbley threw out the … drivers license requirement for the absentee ballots. On Wednesday, November 1, he will hold a hearing on whether to void all the … requirements that are poised to disqualify tens of thousands of likely Democratic voters on election day.
…[O]n Sunday, October 29, the 6th U.S. Circuit Court of Appeals stayed Marbley’s suspension of the driver’s license number requirement on the absentee ballots, casting the entire process into deep confusion.
This ruling means that county boards of election that were telling voters they did not have to include the drivers license number on their absentee ballot after Marbley’s decision must now resume telling them they must include that number.
The decision sends a strong signal that if Marbley overturns the … voter ID requirements for citizens coming to the polls, that too is likely to be appealed and then overturned by the Court of Appeals.
So, what does this all mean? That Ohio’s vote is once more at risk from Republican shenanigans to suppress the vote. Whatever the courts decide, confusion is likely to reign over what ID is legally required to vote, whether on an absentee ballot or in person at the polling place. The upshot to all this ruckus will be the disenfranchisement of thousands of voters, most of them likely to be casting their votes for Democratic candidates.
Final Thought: The Demise of Posse Comitatus and Martial Law
Unnoticed (or at least unmentioned) by most of our major news media was recent legislation was passed and signed into law by President Bush in time for this election, which essentially eviscerates the Posse Comitatus statute. It permits President Bush to declare a “public emergency” and deploy National Guard units to “suppress public disorder,” without the consent of any Governor whose state’s guard units are being nationalized for this purpose. That legislation is known as the John Warner Defense Authorization Act of 2007, and this is what it does:
In a stealth maneuver, President Bush has signed into law a provision which, according to Senator Patrick Leahy (D-Vermont), will actually encourage the President to declare federal martial law (1). It does so by revising the Insurrection Act, a set of laws that limits the President’s ability to deploy troops within the United States. The Insurrection Act (10 U.S.C.331 -335) has historically, along with the Posse Comitatus Act (18 U.S.C.1385), helped to enforce strict prohibitions on military involvement in domestic law enforcement. With one cloaked swipe of his pen, Bush is seeking to undo those prohibitions.
Public Law 109-364, or the “John Warner Defense Authorization Act of 2007” (H.R.5122) (2), which was signed by the commander in chief on October 17th, 2006, in a private Oval Office ceremony, allows the President to declare a “public emergency” and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities, in order to “suppress public disorder.” […]
Section 333, “Major public emergencies; interference with State and Federal law” states that “the President may employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of (“refuse” or “fail” in) maintaining public order, “in order to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.” […]
The law also facilitates militarized police round-ups and detention of protesters, so called “illegal aliens,” “potential terrorists” and other “undesirables” for detention in facilities already contracted for and under construction by Halliburton. That’s right. Under the cover of a trumped-up “immigration emergency” and the frenzied militarization of the southern border, detention camps are being constructed right under our noses, camps designed for anyone who resists the foreign and domestic agenda of the Bush administration. […]
On September 19th, a lone Senator Patrick Leahy (D-Vermont) noted that 2007’s Defense Authorization Act contained a “widely opposed provision to allow the President more control over the National Guard [adopting] changes to the Insurrection Act, which will make it easier for this or any future President to use the military to restore domestic order WITHOUT the consent of the nation’s governors.”
Senator Leahy went on to stress that, “we certainly do not need to make it easier for Presidents to declare martial law. Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy. One can easily envision governors and mayors in charge of an emergency having to constantly look over their shoulders while someone who has never visited their communities gives the orders.”
A few weeks later, on the 29th of September, Leahy entered into the Congressional Record that he had “grave reservations about certain provisions of the fiscal Year 2007 Defense Authorization Bill Conference Report,” the language of which, he said, “subverts solid, longstanding posse comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the President to declare martial law.” This had been “slipped in,” Leahy said, “as a rider with little study,” while “other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.”
In a telling bit of understatement, the Senator from Vermont noted that “the implications of changing the (Posse Comitatus) Act are enormous”. “There is good reason,” he said, “for the constructive friction in existing law when it comes to martial law declarations. Using the military for law enforcement goes against one of the founding tenets of our democracy. We fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty.”
Senator Leahy’s final ruminations: “Since hearing word a couple of weeks ago that this outcome was likely, I have wondered how Congress could have gotten to this point. It seems the changes to the Insurrection Act have survived the Conference because the Pentagon and the White House want it.”
Now, I wonder why President Bush and the Republican Congress would be so interested in passing legislation allowing Bush such unparallel powers over the use of the military with the borders of the United States. Actually, that’s a lie. I have no doubt why they pulled off this massive power grab right before the election. I suspect that Bush and the GOP have reason to believe that massive post election protests may be in the offing. That tells me that they intend to steal the election, either the old fashioned way or through use of the an Article I, Section 5 procedure which provides the House of Representatives and the Senate the sole authority on whom to seat in the cases of disputed elections:
Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members …
If you think that scenario unlikely in the event of post-election disputes, controversies and chaos, answer me this: How many other things we once thought unlikely have happened on Bush’s watch? Quite a few, isn’t there? Enough to be very concerned when Bush and his cronies in Congress surreptitiously pass a law that allows him to more easily declare and enforce martial law at his sole discretion.
So, don’t count your Democratic victory chickens before they’re hatched. We may have a long way to go before we can celebrate anything at all.
John Warner Defense Authorization Act
