Category Archives: Law: Elections

GOP Appointee Dominance in Federal Courts

Via Digby, a pointer to CAF's The Rogues In Robes which contains this arresting graphic:

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

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

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Voting Machine Problems in Florida

There were a lot of celebratory articles today about how the voting machines worked OK on Tuesday. (E.g. AP’s Voting System Worked, With Some Hiccups.)

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.)

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Thoughts on Recounts in Virginia

Three blog posts to read if you like to think ahead:

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,, 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.

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Recounts in Virginia

The Agonist is thinking ahead, and offers a short primmer, How do Recounts Work in Virginia?.

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.

Webb’s people claim to be confident that the absentee ballots will break their way. I’m unsure, myself.

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Why a Voter Lottery Could Save US Democracy

There’s been much gnashing of teeth about the proposal to give every voter in Arizona a lottery ticket in a $1 million lottery. (See Arizona Ballot Could Become Lottery Ticket for details of the proposal.)

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.

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Diebold Voting Machines Very Easy to Hack

Inside Bay Area – New security glitch found in Diebold system.

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.

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JoNel Newman on “Voting Rights in Florida, 1982-2006”

JoNel Newman, Assistant Professor of Clinical Legal Education here at UM (and also special counsel to the ACLU), has written a major report on the implementation of the Voting Rights Act in Florida. The report, Voting Rights in Florida, 1982-2006, which is being issued today, was commissioned by the Leadership Conference on Civil Rights Education Fund through, a coalition of national and grassroots civil rights organizations working to renew and strengthen the Voting Rights Act.

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:

Continue reading

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