Yes, it’s all the fault of those liberal judges!

(And just imagine how monotone this will become if McCain is elected!)

Not so fast. Looks like another Florida voting machine meltdown. Yes, all the elements are there. Enough missing votes to determine the outcome of a Congressional election. Florida election officials in a state of denial. Next up, the lawsuit(s).

(See also Flablog for the cynical summary.)

Election law blog, Will the Senate be within the margin of litigation?.

Steven F. Huefner, Ohio State, Post-Election Disputes in Virginia’s US Senate Race

Spencer Overton, blackprof.com, Bush v. Gore II?: Virginia Election Irregularities and Recount Procedures

At present, all the news I've heard of dirty tactics, voter suppression, and malfunctioning ballot machines each worked against Webb. I haven't heard of any counterbalancing facts that would support an Allen challenge -- but there could be some; much may depend on what exactly happened in the last precincts outstanding, and with absentee and provisional ballots.

What the facts are matters, and until we know them it's premature to blame Allen (or anyone else) for failing to concede.

That said, personally I would rate the chances of an Allen concession very very low whatever the facts turn out to be: graciousness is not his style. He has easy access to the money needed to fund a challenge, and he has nothing to lose -- what other future has Allen got after this debacle? Plus, if the Virginia race really becomes the fulcrum on which the entire Senate is balanced, you can be sure that the national Republican party will pull out all the stops to win in the courts. Even if Allen wanted to concede, the White House would pressure him to fight on.

Update: Here's an interesting, somewhat contrary, perspective via Talking Points Memo:

The Republicans have backed themselves into a corner in Virginia. If you're going to go to the mat with dirty tricks and voter suppression, your counting on staying under the rader and that once the election is over, folks will move on. If Allen contests the results of the election it changes the election from a single day event into a 3 or 4 week event, plenty of time to chase down those callerid numbers and phone bank contractors. Virginia isn't Ohio. It doesn't have Ken Blackwell to cover up the GOP shenanigans, and the state has already requested the FBI to look into them. The Allen campaign is going to have to make the choice of whether contesting the results is worth the chance of exposing criminal activity. Let's hope they choose to contest. It's our best hope of fully exposing the shenanigans of the GOP to the light of day and getting the mechanisms in place to prevent their use in the next election cycle.

At of this writing 99.26% of the precincts are reporting in Virginia, and Webb has a minuscule lead. It's likely that these numbers do not include provisional ballots (which one guesses will favor Webb).

This easily could be the Florida of 2006.

Update: The Post says,

The race may be decided by absentee ballots. More than 130,000 absentee ballots were requested in the state and those votes were still being counted early this morning.

Some opponents of the idea have expressed their shock and horror at the idea the purity of the voting booth would be sullied with money. After all, paying people to vote is currently a crime.

Others are appalled that low-quality voters will be drawn into voting by the draw of lucre when they don't care enough to vote otherwise, and -- say the critics -- are thus going to be uniformed or random voters motivated only by the chance of a free chance at the post-election drawing. For example,

Editorial writers, bloggers and others have panned the idea as bribery and say it may draw people simply trying to cash in without studying candidates or issues.

"Bribing people to vote is a superficial approach that will have no beneficial outcome to the process, except to make some people feel good that the turnout numbers are higher," said an editorial in The Yuma Sun. "But higher numbers do not necessarily mean a better outcome."

I disagree with that idea on principle -- I think more voters is a better outcome even if they're not what critics think are the right sort of people. Indeed, I've always been a bit of a fan of the Australian system of compulsory voting. But that's a lengthy debate for another day.

Today I want to make a simpler suggestion: that there would be significant side-benefits if tomorrow's voting machines were also lottery machines. One of the very strange things about today's voting machine technology is that while the some of same people who make voting machines also make slot machines, we subject slot machines to much stiffer auditing than voting machines.

It's hard to believe that our society could so casually determine that casino money merits greater protection against fraud than elections -- especially after we have seen so clearly the great cost of a stolen election. Indeed, this apparent social insanity regarding relative risks gives rise to the conspiracy theory version of electoral history: the machines are insecure because it serves someone's interests that they be easy to hack.

But take it instead as a public choice failure: casinos have a direct private interest in protecting their pocketbooks; the people who buy voting machines have limited budgets and many competing pressures; lousy machines may sometimes help their bottom line if they come with campaign contributions, cost few tax dollars, or whatever.

So suppose instead of the current scenario, our voting machines were transformed into something closer to the slots -- lottery ticket machines. And suppose we designed them in a way that there might be more than one winner. All of a sudden, there's a need for serious auditing capabilities....

Just a thought.

Elections officials in several states are scrambling to understand and limit the risk from a "dangerous" security hole found in Diebold Election Systems Inc.'s ATM-like touch-screen voting machines.

The hole is considered more worrisome than most security problems discovered on modern voting machines, such as weak encryption, easily pickable locks and use of the same, weak password nationwide.

Armed with a little basic knowledge of Diebold voting systems and a standard component available at any computer store, someone with a minute or two of access to a Diebold touch screen could load virtually any software into the machine and disable it, redistribute votes or alter its performance in myriad ways.

Are we paranoid enough yet?

Update: Ed Felten and Avi Rubin have links, details, and an assessment. It's bad.

Prof. Newman's report is one of 14 state reports requested by Congress to examine the impact of the Voting Rights Act over the past 25 years, since the last time the Act was fully reauthorized. (The other reports cover Alabama, Alaska, Arizona, California, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, South Dakota, Texas and Virginia.) It includes recent examples of voting rights violations, and ties these to a need to renew the expiring provisions of the Voting Rights Act. The report also calls for the extension of assistance to language minorities, including assistance for citizens speaking Haitian Creole, which it says are needed "now more than ever."

In a press release accompanying the release of the report, Howard Simon, Executive Director of the ACLU of Florida calls it "the most comprehensive analysis produced in the last 25 years documenting the impact of the Voting Rights Act on Florida elections." Prof. Newman says, "We have made a lot of progress in 40 years but we are far from finished. ... All Floridians need to do is look at the elections of 2000 and 2004 to see that VRA violations are still a persistent feature of our State's political landscape."

The 1965 Voting Rights Act bans discrimination voting practices such as literacy tests and unfair redistricting schemes. Congress is currently considering whether to renew key parts of the statute, notably those providing for language assistance, Election Day monitors and Justice Department pre-approval of voting changes. Without renewal, these provisions will expire in August, 2007.

Below I reproduce the executive summary of the report:

Portions of Florida were brought under the Section 5 preclearance provisions of the Voting Rights Act as a result of the Act's expansion in 1975. In that enactment, Congress was particularly concerned about addressing discrimination against members of language minority groups and literacy requirements. As a result of the 1975 expansion, five Florida counties were designated as Section 5 covered jurisdictions - Collier, Hardee, Hendry, Hillsborough and Monroe Counties.

Although the Department of Justice's review under Section 5 is limited to voting changes affecting only five counties, as a practical matter this includes all statewide changes such as voter registration requirements and list maintenance, state reapportionment, and other significant state legislation affecting voting. The Section 5 review process in Florida has proven invaluable in protecting minority voting rights on a statewide basis, as demonstrated by the objections filed by DOJ and the resolutions thereto, as well as the dialogue occasioned by the Section 5 review process even where no objection was interposed.

As a result of the Section 5 objection to Florida's 1992 state reapportionment plan, the state created a majority-minority state senate district in the Tampa Bay/Hillsborough County area where previously none had existed even though black and Hispanic persons constituted more than 40.1 percent of the voting-age population in the area and the legislative record showed that the redistricting had been undertaken with the purpose of protecting white incumbents. Similarly, the Department of Justice's objection to Florida's 2002 state reapportionment plan resulted in the preservation of a Hispanic majority state house of representatives district in Collier County which the state had planned to eliminate.

The Department of Justice has also interposed objections to two statewide changes to the administration of elections, in both instances protecting the rights of race and language minority voters throughout the state. The first objection was interposed in 1985 to legislation that would have prevented absentee voters from receiving assistance in marking their ballots from persons of their choice in violation of Section 208 of the Voting Rights Act. In this regard, the objection both protected minority voting rights and eliminated the need for litigation under Section 208. The second objection, in 1998, also preserved minority voting rights, this time in the face of documented experience in the preclearance counties that absentee ballot changes adversely impacted the ability of minority voters to cast a ballot.

Perhaps even more significant in the discussion of Section 5's salutary impact in Florida is the history of the dialogue among interested constituencies, Department of Justice officials and state officials that is the result of the Section 5 review process. On several occasions, this dialogue has been shown to shape results that protect the rights of minority voters without the need for an objection or litigation.

The language minority protections of Sections 4(f)(4) and 203 are exceptionally important in Florida, where the defining feature of the latter part of the twentieth century was the enormous increase in the state's limited English proficient population. According to the 2000 Census, almost 400,000 Floridians live in linguistically isolated households with no English proficient member. Florida is home to an increasing number of citizens arriving from Puerto Rico, and it also has a protected Native American population with limited English proficiency.

A recent and ongoing history of discrimination against language minority groups with respect to the exercise of the right to vote is well-documented in Florida. The discrimination has been particularly prevalent in areas that have experienced substantial growth in the language minority population, including Miami-Dade County and much of central Florida. Section 203 remains necessary to protect this population.

In addition to the state's history and experiences with the special coverage provisions of the Voting Rights Act, a review of the history of Florida's voting rights problems in other areas is instructive in evaluating the need for continuing the special coverage provisions in Florida. This history reveals a predilection by many Florida counties to use at-large election schemes to dilute minority voting strength, the widespread use of many franchise restrictions to purposely restrict the access of minority voters to the ballot, and well-documented racially polarized voting. The state has also repeatedly sought to remove valid voters from the voter rolls in a manner that disproportionately impacts black voters.

Maintaining a framework of federal scrutiny for Florida's voting changes through Section 5 is important in regaining and retaining public confidence in the system - particularly among minority voters. Sections 203 and 4(f)(4) continue to be essential to guarantee an opportunity for meaningful participation in the electoral process by Florida's language minorities.

Lovely. Just lovely.

Voters report problems with voting machines in Roanoke Co.: News 7 has received calls from several voters in at least four different precincts who say their votes for Tim Kaine were not recorded or took several attempts to go through.

They contend the electronic touch screens repeatedly indicated they were voting for Republican candidate Jerry Kilgore instead of registering their intended vote for his Democratic opponent Tim Kaine.

The questions are 1) is this story accurate; 2) is this a more widespread problem in the state; 3) when are we going to junk these machines?

Initially, the effort was derailed by a state-court ruling that MCRI — a proposed amendment to the state constitution — was improperly worded. Plaintiffs urged, and the court agreed, that the initiative’s proposed ballot presentation obscured what the amendment would really do. The ballot language presented the amendment as one to bar state entities from “discriminating or granting preferential treatment” on the basis of race, sex, color, ethnicity, or national origin. The Michigan constitution, though, already makes it illegal for the state to “discriminate” on those grounds; the only change made by the proposed amendment is to bar “preferential treatment” — that is, affirmative action. The lower court held that the ballot proposal violated state law because it didn’t make that clear. Our (Republican) state attorney general appealed, though, and the appellate court reversed, finding no violation of state law in the proposed wording.

Near as I can tell, most of Connerly’s money went to paid petition circulators. In due course, MCRI organizers presented more than 500,000 signatures in support of the proposed initiative to Michigan’s Board of State Canvassers; many of them came from (overwhelmingly African-American) Detroit. Finding this a little odd, opponents took a random sample of 500 petition signers, located the 87 of those 500 who lived in Detroit, and found that nearly all had been given to understand that the initiative would support affirmative action. Among the initial petition signers were two Michigan circuit-court judges; they’ve provided affidavits that the circulators told them that the petitions favored affirmative action, and that — on that basis — after glancing at the title and lengthy caption language, they signed. It appears that circulators routinely made similar statements (along with the statement that the NAACP favored the proposal).

The Board of State Canvassers held its hearing yesterday, and found itself unable to decide what to do. One Republican member of the Board voted to put the measure on the ballot; another abstained from voting, citing her conviction that fraud had taken place, and urged our state legislature to set up a panel to investigate. The two Democratic members of the Board say that the Board itself should subpoena petition circulators and signers to testify. The state attorney general’s office, though, responds that the Board hasn’t the authority to do that.

So it all goes now to the courts. Last year, an anti-gay marriage initiative failed to get past the Board of State Canvassers, and the courts reinstated it to the ballot. We’ll see if they do it again.