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Friday, November 05, 2004
Some Election Numbers
In 2000, Bush took Ohio 50% to a Gore's 46.5%. Nader got 2.5%, so for an imaginary Gore/Nader 49%. Despite well publicized, record numbers of new voter registration drives, and a huge upswing in voter turnout, the 2004 election went 51% Bush to 48.5 for Kerry. Not a real change. As I said, I don't think the Religious Right was the reason. The Democrat's strength is in the urban areas. So, looking at the largest counties in 2004 compared to Ohio as a whole. These counties contain the cities of Cleveland, Columbus, Cincinnati, Dayton, Akron and Toledo.
County |
Bush |
Kerry |
Cuyahoga |
215,624 |
433,262 |
Franklin |
234,196 |
275,573 |
Hamilton |
215,693 |
190,956 |
Montgomery |
134,716 |
138,262 |
Summit |
116,184 |
152,897 |
Lucas |
85,405 |
128,874 |
Total |
1,001,818 |
1,319,824 |
2,321,642 |
Total Ohio |
2,796,147 |
2,659,664 |
5,455,811 |
% of Total |
35.83% |
49.62% |
42.55% |
Now let's look at the 2000 election with Gore and Nader's numbers combined.
County |
Bush |
Gore+Nader |
Cuyahoga |
192,099 |
376,869 |
Franklin |
197,862 |
212,720 |
Hamilton |
204,175 |
170,800 |
Montgomery |
109,792 |
119,287 |
Summit |
96,721 |
125,714 |
Lucas |
73,342 |
112,571 |
Total |
873,991 |
1,117,961 |
1,991,952 |
Total Ohio |
2,351,209 |
2,304,047 |
4,665,256 |
% of Total |
37.17% |
48.52% |
42.70 |
Despite the increase in the numbers of voters, the overall percentages didn't change significantly. Bush lost a little ground in the 6 largest counties, while the Democrats picked up a little. The overall percentage of the total vote in the state didn't really change.
Voting turnout across the entire state was up, which isn't surprising. It's not like only the urban areas were going to have a turnout spike.
What the Election Doesn't Mean (maybe)
As is being discussed on blogs, the line of argument is that Bush won because he turned out his base in spades. He got the religious right to go full force, by his minions placing the gay marriage initiative on ballots.
Andrew Coyne seems to have done the seminal piece debunking the argument.
You can find another good analysis at Slate.
Michael Totten points out that Oregon, a state that easily went for Kerry, and hardly a conservative bastion passed an anti-gay marriage amendment fairly easily.
I'll add my 2 cents. I pointed out that the anti-gay marriage amendment passed easily in Ohio. Well, even in the urban areas it passed. Cuyahoga County went overwhelmingly for Kerry 433,262 to 215,624. A slightly better than 2-1 margin. The amendment passed in Cuyahoga County 324,804-285,890. That's 53.2 to 46.8% for the ban. Rather substantial in a county that gave Bush only 33.05% of the vote.
Considering Republicans like Sens. DeWine and Voinavich, Attorney General Petro and Gov. Taft all came out against the amendment, this wasn't a pure partisan line vote.
You can say that there was a strong turnout from religious partisans, but you can't hang Bush' victory on it.
Thursday, November 04, 2004
What the Election Means (maybe)
I really don't know. For me, the election came down primarily to the war in terror and a foreign policy that might bring real change and hope to the Middle East. Overly optimistic? Dreaming? Deluded? Fine. I think we have to try and I had more faith that Bush would see it through than Kerry. And ultimately, that trumped my disgust for the Bush Administration's social policy goals.
Then I started reading how people were describing this election as meaning " traditional values" or opposition to gay marriage. Or even so-called "culture wars." That for many, that was what the election was about.
The talk of what this election means, and the whole moral values argument sent me rocketing back to an old Bloom County series in the 80s about Time Magazine declaring the Sexual Revolution to be over. 
Sorry about the image quality. The Hello software really dropped the image quality. The gist of the strip above was that 'Traditional American Values' were creeping back in under Reagan, to Steve Dallas' dismay.
Now, I didn't get to college until 1988, so I don't know how much 'traditional American values' had actually retarded sexual activity. From where I was sitting, the only noticeable effect was more of an emphasis on safe sex because of AIDS. At best what it may have been was an attempt to put the brakes on, so the country's "public moral standards" could catch up to reality.
These attempts to put the brake on culture changes are usually about 3 miles past the exit, and rarely become more than something you look back on in bewilderment about how stupid and pointless the attempt was.
The anti-gay marriage amendments that were passed in 11 states (including mine) strike me as a very tangible example of an attempt to put on the brakes while the exit is already well in the rear view mirror. An attempt to try and catch up to where things are.
Gay culture, for lack of a better way to put it, is so mainstream in the larger cities, media and entertainment world. It isn't going back in the closet. Overall, our country is so much more accepting of homosexuality in a short time.
A dozen years ago, there was ridiculous hype and attention for a comic book -- a good marking post for popular culture -- to have a minor character coming out of the closet, and then just as quickly he dropped from sight in comicdom. Within 7 years you had an openly gay superhero couple, and now comics regularly have gay, bi-, transgendered characters.
A dozen years ago, outside of porn or the occasional really good Cinemax After Dark you wouldn't even see girl-on-girl. Now it is happening on bad animated sitcoms. It doesn't even shock anymore. Showtime offers Queer as Folk and The L Word, and there are gay cable channels planned to compete with Bravo.
Before the election, Micky Kaus kept pushing a " return to normalcy" theme regarding foreign policy (No permalinks, but look in Oct 28, for the most recent entry) as a reason to go in favor of Kerry. In a way, that's how you could view the issue of "traditional values" or "culture wars." An attempt at a return to normalcy after a rapid transformative time in our culture and society.
It won't work and the anti-gay marriage crap needs to be fought, pushed back and defeated,. And it will. Gay marriage, civil unions, whatever will become accepted. People are just trying to adjust.
Back in the end of August, when I was still thinking I wouldn't vote for either I said the following,
I don't think this is the most important election in my lifetime. Things won't change much one way or another in 4 years with either guy. Abortion will still be legal, guns won't be banned, gays will be further mainstreamed and accepted, the drug war will still be wasting money and lives, the Middle East will still be a mess, terrorism will still be an important issue, free trade will continue to expand, and so on. I still think that, and don't see any reason to think otherwise. As for the concerns over Bush appointees to the federal benches, consider this from the incoming Chairman of the Senate Judiciary Committee.
The Republican expected to chair the Senate Judiciary Committee next year bluntly warned newly re-elected President Bush on Wednesday against putting forth Supreme Court nominees who would seek to overturn abortion rights or are otherwise too conservative to win confirmation.
...
"When you talk about judges who would change the right of a woman to choose, overturn Roe vs. Wade, I think that is unlikely," Specter said, referring to the landmark 1973 Supreme Court decision legalizing abortion. "The president is well aware of what happened, when a number of his nominees were sent up, with the filibuster," Specter added, referring to Senate Democrats' success over the past four years in blocking the confirmation of many of Bush's conservative judicial picks. "And I would expect the president to be mindful of the considerations which I am mentioning."
...
A self-proclaimed moderate, he helped kill President Reagan's nomination of Robert Bork to the Supreme Court and of Jeff Sessions to a federal judgeship. Specter called both nominees too extreme on civil rights issues. Sessions later became a Republican senator from Alabama and now sits on the Judiciary Committee with Specter. Despite a bruising challenge from conservatives this year in Pennsylvania's GOP primary, Specter won re-election Tuesday by an 11-point margin by appealing to moderate Republicans and ticket-splitting Democrats, even as Pennsylvania chose Democrat John Kerry over Bush. People can try to go back, but we can only go forward.
Oh, the Waiting
The Cockroach is Dead.
Maybe.
He's not dead yet.
But he sure isn't feeling better.
Arafat's death will not be one I feel any sadness for. Merely satisfied relief. I've called him the cockroach, because time and time again he has cheated death and irrelevancy to survive. It looks like the former has finally caught up to him. Maybe not at this moment, but very, very soon.
Wednesday, November 03, 2004
A Different Kind of Election Blog
Last Monday, I got the following e-mail:
S.V., my name is Rick Perlstein, and I'm national correspondant for the Village Voice newspaper. Here's a book I wrote:
I write because I'm planning a reporting trip to Cleveland to election day, and I thought I'd look for some Cleveland political blogs to do research on. Found yours. It's nice work.
Do you have any ideas about what precincts might yield interesting stories: Democratic fraud? Republican suppression? I've never been to Cleveland before. Any thoughts quite welcome!
Best regards,
Rick Perlstein Now, the last thing I expect from a Village Voice reporter who does stories like this, is to be looking for "Democratic fraud." Especially when he is parachuting in to Cleveland just before the election. He's looking to do a voter suppression story. Still, I have some information and I might as well share it. Given the parent company's history in the town, it shouldn't be surprising they didn't have a lot of local connections.
I responded, that night.
Rick, Thanks for the kind words. Here are some of my thoughts for what they are worth.
The thing to remember about Cleveland, and Cuyahoga County is that it is a heavily Democrat area, that went for Gore nearly 2-1.
Cuyahoga County
Bush -- 192,099 -- 33.42
Gore -- 359,913 -- 62.62
Nader-- 16,956 -- 2.95
Others-- 5,809 -- 1.01 (Buchanan 3040, 0.53%)
The thing was, it had one of the lowest voter turnouts in the state at 58.1%. GOTV drives are now picking up, and it won't be surprising to find out a lot of Democratic party leaders, unions and the sundry of leftward groups (ACORN, ACT, etc.) organizing buses and transportation to polls.
Voter fraud on election day will be hard to notice, and let be clear that I don't think the State or County Democrats had anything to do with the voter registration fraud that has occurred to date. The anti-Bush groups (like ACT) and some unions, however, appear to have crossed the line in their self-righteous zeal.
Charges of voter suppression will be easy to make for several reasons.
The state GOP is doing its level best to make it look like they are trying to intimidate and suppress votes -- especially African-Americans -- with the planned use of "voting challengers." They will be throughout the state, and are expected to be in every precinct in big counties like Cuyahoga, Franklin, Hamilton, Lucas, Summit and Montgomery,especially where the vote goes strongly Democrat and there was a huge uptick in new voter registration. Democrats are answering with their own (again, adding to the tension at a lot of polling locations).
In the interest of admitting biases, I am a liberal Republican originally from Pennsylvania. Voted Gore in 2000. I am voting none of the above for President this time. I just can't push the button for either candidate.
I don't think I can direct you to a specific precinct. I can suggest a couple areas and wards, where I think there will be plenty of tension and controversy.
The West Side of Cleveland has a lot of neighborhoods that are majority minority of African-American and Hispanic. I'm not that familiar with the West Side as I am not a native Clevelander. I'd recommend Ohio City and Tremont neighborhoods, if for no other reason you can get some good food and drink in those areas. There is a lot of redevelopment old/new stuff in both.
One area just at the edge of Cleveland might produce some interesting things -- one neighborhood in the city and 2 inner-ring suburbs adjoining.
"Little Italy" is just inside Cleveland on the East Side, next to Case University and the University Hospitals. This was where they had to have armed escorts in the 70s during busing. Strong, traditional Catholic, union, Democrat base. I don't know if Reagan Democrats is still applicable, but that would be this neighborhood.
East Cleveland is an inner-ring suburb that is the poorest, crime-ridden and corrupt places in the state (yes, maybe even worse than Youngstown). The mayor there was just convicted of bribery in federal court and it was just revealed that the interim mayor killed her boyfriend in the 80s but no charges were ever brought.
Cleveland Heights is another inner-ring suburb next to East Cleveland and Little Italy, but in much better condition than East Cleveland. Cleveland Heights passed the domestic partnership registry an election or two ago that spurred the religious right in Cincinnati to get Issue 1 (banning gay marriage and any sort of domestic partnership) on the ballot. Progressive and mostly integrated community. Wide variation of people and socio-economic positions.
Hope this helps. Feel free to contact with any other questions or comments.
Regards, Chas Rich
I didn't hear back from him. Not even a thank you. I could let it slide, because, I wasn't sure how helpful I actually was; and I figured he was busy making his travel plans.
This morning, I decided to see what he found and had written. Turns out he had been doing an election blog from Cleveland since Sunday. So why didn't he fire off an e-mail to let me know? Perhaps because of the description of his blog.
Nowhere has Republican election chicanery been more blatant, systematic, and diabolic then in the Buckeye State. On this blog I'll be documenting the outrages, straight outta Cleveland. What? Nothing about "Democrtic Fraud?" I'm shocked! Was I misled?
A man who has never been to Cleveland before is well-versed in Ohio matters. Right.
Also, it seems he even took my suggestions as to where to go.
It's an unitentionally hilarious read. As his description suggests, he is viewing the Republicans as evil. His view of the Petro/Blackwell dust-up is a riot -- a conspiracy suggesting brilliance that just isn't there. He couldn't seem to accept that it was some gamesmanship for the future Governorship. How he sees the Republican Party versus the Democratic Party speaks volumes about him, not the event.
So, when the Republican Mayor of Cleveland, Jane Campbell, is speaking at the Springsteen/Kerry rally on Monday, he manages not to mention her party affiliation.
But every mention of the Director of the Cuyahoga County Board of Elections, Michael Vu, was preceded with Republican. Funny, a few weeks ago, he was being hailed for stating he would "defy" the Secretary of State and give Provisional ballots to anyone in any precinct -- until the 6th Circuit Court of Appeals ruled the SOS was correct. His view of Republicans everywhere as this monolithic, unified force is unshaken even when his "informants" tell him otherwise.
It's even funnier as you read up the blog to election day, as he predicts the doom and gloom of voter suppression, via Republican voter challenges. Then, when they never do materialize, as a problem he resorts to simply calling them paper tigers. He lost his expected story.
That's the problem when you try to blog with a prepared storyline.
Numbers That May Only Interest Me
Ohio 2000 Election.
Bush--------- 2,351,209 -- 50.00%
Gore--------- 2,186,190 -- 46.50
Nader--------- 117,857 -- 2.50
Browne (L)----- 13,475 -- 0.29
Buchanan------- 26,724 -- 0.57
Others----------- 10,002 -- 0.21 Total votes cast: 4,705,457
Ohio 2004 Election
Bush--------- 2,794,346 -- 51.01%
Kerry-------- 2,658,125 -- 48.52
Bednarik (L) --- 14,125 -- 0.26
Peroutka------- 11,606 -- 0.21 Total Votes Cast: 5,478,202
That's an increase of 772,745 voters and that doesn't include the provisional ballots -- of which it still has to be determined how many will be valid -- where around 135,000 were issued. Here's the official list by county. Democrats apparently are claiming that nearly 250,000 provisional ballots were issued. I don't know how the numbers were reached. Some possible litigation that may effect Provisional ballot counting. I also haven't seen much mentioned of absentee ballots yet.
So, although I was hoping for a quick resolution to the election, and I voted for Bush, I see no reason for a Kerry concession yet. I mean, just because Bush has the popular vote in the US is no reason to concede Ohio.
With voting turnout so much higher, Libertarians have to be disappointed that they didn't get much of an increase.
Ohio Loses
Amidst all the news about Ohio being too close to call at this point with so many provisional ballots to evaluate and count, is the really bad news. Issue 1 -- the Ohio Constitutional amendment barring gay marriage and recognition of any sort of civil union -- passed with great ease. It wasn't even close. Even in Cuyahoga County, that went a little better than 2-1 Kerry over Bush, approved the ban: 324,804-285,890.
Legal challenges to it are planned. Great. Get in line.
Balloon Head
This cold I've been fighting has finally won. Feel like complete crap right now. Will try to post some things on what is happening in Ohio with the election, but I don't promis coherence.
Tuesday, November 02, 2004
Ohio Election -- Personal Notes
Went to the polls around 11:30 with my 2-year old daughter. Later than intended, but neither of us were eager to go out in the rain. Our precinct had a line about 15-20 deep. It had been that constant all morning according to a poll worker. Angie did not want to be there. She started fussing and crying, trying to wriggle free. Various poll workers came up to me to ask if maybe she would like some candy. I politely declined. The last thing the kid needed was sugar, and the idea of her flailing around with a lollipop, well...
After about 25 minutes or so, I was about 5 back from the voting booths. Four people in front of me, probably sick of hearing the screaming, let me jump ahead of them. Gave my name to the ladies at the table, she found my name, address and a copy of my signature. Signed next to it, then they checked me off a list to make sure I hadn't asked for an absentee ballot, then another lady handwrote my name and address into a log. No ID taken, but a very thorough verification.
Got into the booth and worked backwards, quickly. Vote on the levies and issues (A big NO on Issue 1 -- banning gay marriages and recognition of civil unions in the Ohio Constitution). Hit the Court elections, local elections (Komarjanski, Mayor; Crick, Council-at-Large) , Senate and House (Fingerhut -- for whatever that was worth -- and LaTourette) then got to the biggie. I had been all set to vote Libertarian. But I couldn't. I started having some doubts last night. Kerry was not an option for me. He never was.
I pushed the button for Bush. I didn't think I would. I've actually never voted Republican for President in the previous 4 elections. I so firmly disagree with Bush on social issues, that it was not much of a question I'd go protest/3rd party. Then I'm in there, and the gut check went Bush. And that's the thing. I believe we did and are doing the right thing in Iraq. The old ways of just containing the despots in the Middle East is no longer working. There has to be an attempt to offer people in the Middle East a chance for a kind of government that isn't by dictator or by religious order. I actually believe Bush is committed to making a real long-term attempt. This is just an abbreviated explanation, I'll come back to this another day.
I know this will piss off/disappoint some of my friends and a lot of my family. If it's any consolation, the wife's vote cancelled out mine.
Ohio Election -- Hey, More Lawsuits
I know, I said I wasn't going to post anything other than my own experiences at the polls, but I blame it on the cold medicine for weakening my resolve.
So today a new lawsuit was filed in US District Court in Toledo. It concerned absentee ballots. Specifically it was brought by the Lawyers Committee for Civil Rights in San Francisco on behalf of a woman and others similarly situated who requested an absentee ballot but did not receive one. Under Ohio law, anyone requesting an absentee ballot cannot vote in the election. An additional directive from Ohio Secretary of State Ken Blackwell said such voters could not cast who claim they did not receive an absentee ballot could not cast a provisional ballot. The objective, to prevent fraud by voting twice and to prevent those who did not request an absentee ballot before the deadline. Turns out the Lucas County Board of Election did receive her request, but sent it to the wrong address, and it didn't reach her in time. The District Court ruled in her favor, and has said that others in similar situation may cast provisional ballots. It's unlikely this will be a major issue. I'm guessing that this will be limited to those where the County Board of Election will have a record of the request. Otherwise, it would throw the doors too far open to fraud risks. The decision came down at 3 pm. How many people can get to the polls in the remaining time is still a question.
As for the New Jersey case. Well, earlier the 3rd Circuit panel refused to stay the order. Now the 3rd Circuit en banc has reversed and issued a stay of the order. This only applied to a so-called challenged voter list, that the Ohio GOP said it wasn't planning to use anyways at the polls.
Meanwhile, in a couple decisions that make me glad the wife and I already voted, the media lawsuits were reversed on appeal. Both of them. For exit polling within 100 feet of the polls and to allow media observation from within the polling locations. Both decisions came down around 3pm. Not sure how accurate anything will be in the final 4 1/2 hours.
Ohio Election -- Follow Along
I'm not planning on live-blogging anything. I may post my experience at the polls; and if I give into temptation some other thoughts tonight. For those real junkies, several of the newspapers around the states are giving fixes.
The Cleveland Plain Dealer has an election weblog that is posting e-mails of readers' experiences.
The Columbus Dispatch is reporting some things from their hotlines, seem to be on this story that keeps getting updated, scroll down.
The Dayton Daily News has a message board of election day stories.
For the latest election legal news go to Election Law @ Moritz (OSU School of Law).
Ohio Election -- Weary, Bleary-Eyed Partisans
Think about it. The thousands of election challengers in Ohio, Democrat and Republican, are people active and loyal enough to their party that they were asked and agreed to spend all day at the polls watching and possibly acting to have people questioned. They had training over weekends. Then Sunday, their numbers are cut because of a common pleas court limiting the number of challengers per polling place. Monday they are told that they won't be going at all, maybe. Then the Ohio Supreme Court reverses the common pleas court, so the original numbers are back -- maybe. There are appeals, but they won't be decided until the wee hours of the morning. These people need to sleep, but the polls open at 6:30 am. So they have to go to sleep, however juiced they may be for the election and possibly being at the polls.
The decision comes down around 2 am. As I said, thousands of people are going to be poll watchers. That means all over the state, the county leaders need to start making calls right away to get ahold of every one. Especially in the large counties. So you have these challengers getting calls somewhere between 2-5 am being told to be at your place before the polls open so you can get prepared. Oh, and don't forget to bring dounuts and coffee for the real poll workers.
Most people would be done with sleep at that point, especially depending on when the call came. The polls stay open until 7:30 pm. I'm assuming they have second shifts, but there will be some frazzled looking people trying to watch the precincts today. Also seems that with that lack of sleep might come increased risk of emotional stress and possibly physical altercations.
So, if you are voting in Ohio, and you see some red-rimmed, bleary-eyed people standing around, try not to make eye-contact.
Ohio Election -- Election Challengers Allowed
During the long night, The 6th Circuit Court of Appeals reversed the two Ohio District Court rulings barring Election Challengers from polling locations, by staying the lower court orders. It was a 2-1 decsioion. Attempts by the plaintiffs to have the US Supreme Court stay the 6th Circuit's order were rejected by US Supreme Court Justice Stevens.
There were 3 opinions written by the 3 judge panel who heard the case. You can read them here. Professor Foley at Ohio St. has a brief analysis of the opinions. He also explains how the NJ case will apply (still no word, apparently from the 3rd Circuit)
Remaining unclear, however, is the effect of Monday's ruling from the federal court in Newark, NJ, that bars "[t]he Republican National Committee, its officers agents and employees . . . from using for challenging purposes on November 2, 2004 a list originally of 35,000 names prepared for that purpose by the Republican Party in the State of Ohio." According to press reports, the RNC sought a stay of that order from the Third Circuit federal court of appeals, but as of yet we are unaware of any action by the Third Circuit. Whether the Newark-based federal judge's ruling bars the Ohio Republican Party, or local party organizations, from exercising challenges based on the same list is debatable. What is clear, is that there will be Republican and Democrat challengers at the polls in Ohio today. There will be one partisan challenger per side per precinct at each polling location, as per the decision of the Ohio Supreme Court yesterday.
Going to be a long day.
Not The Ohio Election -- But Connected?
Senate Minority Leader Tom Daschele has been in a dogfight to keep his job. Guess what he did today/yesterday? Yes filed suit over Republican election observers at Inidan polling locations. He filed it in the US District Court in South Dakota. They have been holding hearings on it this evening and a blogger has managed to live blog the happenings.
UPDATE: The judge raises the issue of live reports coming from the courtroom and ending up on some website. What an outrage! Hilarious.
What struck me, was that the last minute complaint was based on the same consent decrees that were enforced against Ohio Election Challengers in the district court in New Jersey this afternoon. Can't help but wonder if they filed as soon as they found that the courts might broadly apply the decrees against state parties.
Not so funny, may be the issue of the j udge hearing the case. Judge Piersol was also the attorney representing Daschle when his opponent in 1978 contested Daschle winning his House seat for the first time. Regardless of what your partisan leanings are, there are some uncomfortable ethical issues here.
Monday, November 01, 2004
Ohio Election -- Appeals, Appeals, Appeals
Took time to have some dinner then spent the evening reading books to and playing with my daughter. Feel much better now. Missed plenty, though. Thankfully there are a bunch of law profs down in Columbus staying on top of all this.
Some things have been resolved, sort of.
The media litigation. Turns out there were two suits filed. The one I mentioned previously hasn't been resolved yet. Another case filed in Akron, the Akron Beacon Journal sought to place reporters in the polling locations. The federal district court rejected their claims -- the ABJ filed a notice of appeal.
The Ohio Supreme Court reversed a common pleas court decision limiting the number of challengers to only one per polling place per political party. Instead, it is one per precinct per political party. Meaning that in polling locations containing multiple precincts, there can be an equal number of election challengers from a party as there are precincts. Of course this order only applies to this election if the TROs from the district courts are stayed by the 6th Circuit Court of Appeals.
The New Jersey District Court that surprisingly enforced a couple of old consent decrees between the RNC and DNC against the Ohio Republican Party is being appealed to the 3rd Circuit Court of Appeals. Briefs were due this evening. This decision is still surprising since the order did not include state parties. Seems like a very broad reading of the decrees.
Regarding the appeals of the federal district court decisions in Ohio, it is hoped that the decision will be made this evening. According to Professor Huefner's analysis of the filings, the Ohio Attorney General is merely seeking a stay of the order, not to decide the merits of the case until after the election.
In seeking a stay, Ohio argues that because it is ultimately likely to prevail on the merits of an appeal, in the meantime considerations of fairness and the efficient administration of tomorrow's election demand that Ohio's statutory challenge process be permitted to occur. The briefs assert that the lower courts acted without sufficient evidence that allowing challengers in the polling places would violate voters' First Amendment rights by delaying or otherwise impeding any Ohio voter, and that banning challengers from the polls will deprive Ohio of a critical mechanism for preventing voter fraud. The briefs further argue that federal courts must be especially reticent to disrupt a state's voting process at the eleventh hour, and that in these cases the courts have not provided sufficient reason for intruding, because the plaintiffs have not shown that they will be harmed. In particular, the Ohio briefs argue that challengers cannot themselves prevent anyone from voting, but can only place in the hands of bipartisan election officials the question of whether a particular voter is qualified, according to neutral criteria. In addition, the briefs note that the existence of provisional ballots for any challenged voter will protect their voting rights. I have no idea what would happen if the 6th Circuit stayed the TRO, but the 3rd Circuit upheld the New Jersey decision.
The most troublesome thing about all of these cases, is not even that they were brought. It's that they were brought at the last minute. It would seem a tactic to try and prevent any chance for a full and more thorourgh hearing of the actual issues, not to mention preclude time to appeal. I have to agree with Professor Hasen on that point.
I am all for pre-election litigation (rather than post-election litigation) to clear up the rules for election day. But this is cutting it rather close. In the event one of these appellate court acts (presumably within the next few hours), how will the word on the rules get out to the polling officials? And, worse yet, what if the appellate courts issue conflicting orders? Remember the last minute lawsuits were brought by groups and people alleging voter suppression. Their actions may only serve to make the election day more confusing and possibly create more mistakes and disenfranchisement with last minute shifts to the rules.
Sleep tight.
Ohio Election -- Now The Media is Suing
Seriously. One of the Ohio Secretary of State Blackwell's ordinances prohibits anyone other than voters, poll workers or other election officials, party-designated challengers or witnesses, or police officers within 100 feet of the polls. The media is seeking an injunction on 1st Amendment grounds -- so they can do the ever important exit polling.
In still more lawsuit activity, the state court decision, rendered seemingly moot by the injunction by the federal district courts, limiting each polling location to one challenger per party has been appealed by Republican intervenors (since the State of Ohio wasn't going to) directly to the Ohio Supreme Court. [sigh.]
Republican intervenors are still planning to appeal the decision from this morning in Cinci.
That scream you hear is from every Ohio voter stuck somewhere in the mushy middle.
Ohio Election -- Possible Voter Suppression
They are predicting rain for tomorrow in the Cleveland area. No word yet, as to anyone will be filing for a restraining order against Mother Nature.
Alternatively, it could be another dirty trick as Republicans take to the sky to seed the clouds.
Editorial Thought
Regarding the Election Challengers and litigation. I don't think the outcome one way or another will make a difference in the election in Ohio tomorrow. I've posted a lot about it because I do find it some what interesting and it says something about the way both sides are treating the election.
There will be claims of fraud and suppression regardless. Both will claim it was widespread despite little evidence that it was anything other than some overworked partisans thinking that whatever it takes means being as bad as they think the other side is.
Tomorrow is an important day. Presidential elections always are. Is it the most important election of our lifetime? I don't think so. That is something history decides. Not partisans. Not the media. Not you or I. I wish I could remember the ending speech from the play, "You Can't Take It With You." A play written in the 30s. Grandpa was talking about enjoying life, and spoke of how worked up he got about whether McKinley beat Jennings (or some presidential election of the time). "Seemed awful important at the time." I can't help but think that we may look back on this election with a similar thought.
Ohio Election -- More Challengers Out
The Akron litigation has also been decided (PDF). According to analysis from Professor Foley at OSU's school of law parallels the decision from the Cinci decision, except:
What remains unclear, however, is whether Judge Adams's order prohibits political parties to send representatives (denominated as "challengers") to polling places for other purposes, including the observation of the voting process. His decree – that "persons appointed as challengers may not be present at the polling place for the sole purpose of challenging the qualifications of other voters" (page 15) – would seem to permit their presence, so long as they do not engage in any challenges. Judge Dlott, by contrast, apparently barred the presence of such party-designated challengers altogether. Her ruling prohibits state and local officials "from allowing any challengers other than election judges and other electors into the polling places throughout the state of Ohio on Election Day" (emphasis added). Because her ruling is broader than Judge Adams’s in this respect, state and local officials must comply with it as long as it remains in effect. Compliance with Judge Dlott’s order would not be inconsistent with compliance with Judge Adams's: officials can satisfy their duties to both federal rulings by following the terms of Judge Dlott's. (Judge Dlott also made clear that her ruling extended throughout the entire state, while Judge Adams's order, on page 5, noted that it applies statewide except for Hamilton County.) His preliminary analysis on the Dlott decision is found here.
The essence of Judge Dlott's reasoning was that the presence of a large volume of partisan challengers in the particular context of this year's elections threatened a severe impairment of the constitutionally protected interest of voters, while the State of Ohio could achieve its valid -- indeed compelling -- interest in preventing voter fraud through less burdensome means. Most notably, according to Judge Dlott, the ability of poll workers (officially known as "election judges") to challenge the eligibility of voters, coupled with the review of registration forms before names are put on the rolls, suffices to protect against fraud. I don't think voter challengers are a good idea, but I don't exactly find this argument that persuasive either.
Ohio Election -- Challengers Out
US District Court Judge Dlott (the Cinci litigation) enjoined the use of partisan challengers at the polls for election day tomorrow. Appeals have already been announced.
I have a real problem with all of this. When it started to be reported that election challengers would be used back in mid-October, I said I didn't like it. An obscure law that both Republicans and Democrats knew about and apparently even would register challengers each election (but would not bother to send them). The deadline was October 22, and some counties had even reached an agreement not to bother, but were undercut by the Ohio GOP overruling the county party. So the challengers were known and expected, but litigation wasn't filed until this past Wednesday and then on Friday. This is all happening in a very compacted timeframe, but the lawsuits and the decision were so last minute to preclude any chance for a real and fair hearing. While that may have been the rationale for Secretary of State Blackwell's press release recommending a ban to all challengers until the matter can be resolved after the election, all it did was create more confusion. It offered no legal argument, it merely sought to avoid confusing litigation before and during the election. The statement was, of course, exploited by the plaintiffs attorneys (who I have trouble picturing being able to make oral arguments with a straight face).
Looking briefly over the Judge's decision (PDF), is not comforting. She heavily relies on Blackwell's decision to justify her ruling. This is not a legal argument.(pg.15)
Further, Defendant Blackwell's recommendation that the challengers be removed from the polls strongly undermines any argument that having these challengers at the polls is narrowly tailored to serve a compelling state interest. Defendant Blackwell's recommendation highlights the fact that the chief elections official of Ohio believes that fair elections can occur without the challenge process. The conflict between Secretary of State Blackwell and Attorney General Petro indicates that even the two top officials responsible for enforcement of election laws disagree over the manner in which to proceed. How can the average election official or inexperienced challenger be expected to understand the challenge process if the two top election
officials cannot? This was not a legal argument from SOS Blackwell, but a strategic decision/suggestion. She treated it as a legal position. Yet, when she was rejecting the arguments in favor of challengers, she dismissed a memorandum from Blackwell thusly (Footnote 8, pg. 12)
Defendant Director of Hamilton County Board of Elections John Williams testified that a directive from the Secretary of State's Office has the force of law, but a memorandum serves only as a suggestion. Blackwell's correspondence of October 20, 2004 regarding challengers at the polling places is a memorandum. So a press release carries more legal significance to the judge than an official memorandum instructing county board of elections how to conduct voter challenge hearings?
Judge Dlott also takes the unsurprising approach that possible voter fraud is best dealt with at the registration level. That the protections there are more than sufficient (pg 15).
Further, there are other protections in place to prevent election fraud. As registrations are received, the Board of Elections processes them and works to ensure that they are not fraudulent.The Board of Elections may conduct investigations, summon witnesses, and take testimony under oath regarding the registration of any voter. Ohio Rev. Code § 3503.25. Defendant Burke testified that the Board had, in fact, received registration cards of dubious authenticity, and the suspect registration cards either did not result in voter registrations or were registered and then cancelled. Further, any qualified elector of the county may challenge the right to vote of any registered elector to vote and the challenge will be considered by the Board of Elections at a hearing. Look, if the procedures for processing registrations are so good,then why did the federal government pass HAVA and create provisional ballots (even if they have their own flaws)? Why do we have stories of people who's registration didn't get recorded? This is akin to the argument Democrats have been making of: "Look at what fraud was caught when voter registrations were being processed. That should be enough." Which of course assumes that all fraud was caught. Funny, they didn't make that argument when challenging the petition signatures to get Nader on the Ohio Ballot. Then, they challenged all the signatures, which surprise(!) revealed a lot of fraudulent signers that wouldn't have been caught if not for being challenged. Yet to question any registrations that made it through computers and processed by the boards of elections is plain suppression? Everyone wants it both ways. And then they wonder why people are disgusted with politics, politicians and the courts.
The more difficult issue is the charge of targeting minority, specifically the African-American voters. On its face, the charge is not easy to refute, since the Republicans were seeking to put most of their challengers in urban areas, and more specifically in areas that are heavily African-American. The fact also, is that the l argest increases in voter registration (and hence more possible fraud) was from these areas, and targeted for voter registration by groups that submitted fraudulent registrations. The fact that the African-American vote tends to go strongly Democrat makes it also a tactical, not racial issue for the Republicans.
Fargin' Mess. And I have no clue what will happen if the Akron litigation goes the other way .
Sunday, October 31, 2004
For the Election Obsessed
I will not be liveblogging the election results in Ohio. That way lies true madness. Instead the wife and I plan to take a little day trip with the daughter after voting. Just get away and ignore it all. When we get home, about the only election coverage we intend to view will likely be the Daily Show.
My advice, truly, start drinking early. If I can beat this cold back into submission, that is my plan.
In the interest of all those concerned with the Ohio election and its position as a swing state, I point you to some useful sites where you can follow along. Hopefully they will be working on election night.
There are 88 counties in Ohio. Ten of them are part of this site, and will have live results available. Here is a list of links to all the county boards of elections and their websites, if they have them. This is the link to the Ohio Secretary of State's Presidential election results. In Northeast Ohio, the Cleveland Plain Dealer, usually has a section that will report results from counties and cities as they come in. The Akron Beacon Journal may have similar reports. The Dayton Daily News also promises plenty of results as they happen.
The lawsuit in Cinci over election day voter challenges had additional hearings this evening. The ruling in this case should come tomorrow morning. That would still leave the lawsuit in Akron and apparently the one filed in Cuyahoga County still to go (not to mention in NJ).
Ohio Election -- Sunday, Day of Rest
Well sort of. With no decisions expected today -- and according to some reports one or two might not be decided until Tuesday morning -- there isn't much news on this front. There was one decision that came in under the radar because it wasn't filed in federal courts. Cuyahoga County Common Pleas Judge John O'Donnell found the Ohio Secretary of State, Ken Blackwell, directive (down near the bottom of that post) allowing as many challengers as there are precincts in a polling location to violate Ohio's law on vote challengers. Blackwell won't challenge the ruling, because he now wants to keep all challengers out of the polling locations. It is unclear whether the Ohio AG Jim Petro will appeal this for reasons of the principle of defending Ohio law. This was not a surprising move, since the Ohio law seemed rather clear that challengers were only limited to one per polling location -- it said nothing about precincts. Where I live, Eastlake, I think there are 6 precincts at the polling location in North High School. Judge O'Donnell, a lame-duck Democrat (he lost in the Democratic primary) apparently was, shall we say, contemptuous of Blackwell
Judge O'Donnell said Blackwell, a Republican, appears to have been "playing political games." Wondering aloud if Blackwell might ignore his order, O'Donnell said he would find Blackwell in contempt of court. He mused that the contempt charge "might make Blackwell a folk hero in Appalachia." Thank goodness judges never behave in a partisan, political manner.
The Civil Rights Division of the Justice Department sent Judge Dlott (the litigation in Cinci) a letter (PDF) expressing the view that the Ohio law is not unconstitutional. The plaintiffs and Democrats dismiss it as Bush/Ashcroft playing politics. Articles on the matter do point out something I figured, but hadn't read to confirm yet, about even successfully challenged voters:
The Justice Department said all voters will be eligible to receive a provisional ballot "even if they are unable to answer specific questions posed by election judges." Provisional ballots, unlike regular ballots, are set aside and tallied later. However, the votes are counted only if the voter is determined to have met Ohio's requirements for residency in the precinct, for age and U.S. citizenship. This is not a perfect solution, and there are still legitimate questions about how well the use of provisional ballots will be, but it does serve as something of a safety net.
The Cleveland Plain Dealer had a front page story today about potential double dipping voters (A map here, and information on the methodology). Voters who are registered to vote in both Ohio and Florida. There are plenty of good reasons for such things (not just the potential bad one), and of the 27,000+, it is fairly bi-partisan in who does it. I would imagine you would find a lot of states in the Northeast to Midwest with similar numbers.
Other articles of note, a sad/funny round up of the paranoia, rumors and fears of election day hijinks around the state and the whole country.
An optimistic take on the potential for a recount in Ohio. Back in 1990, the Attorney General race was a difference of 1234 votes out of 3.3 million. Of course, they didn't contend with record turnout, record numbers of absentee ballots, the animal called provisional ballots, and of course fierce and heightened partisanship.
In Franklin County, many of the polling locations will have Columbus Dispatch reporters at the location. Serving as challengers -- so they can be inside the polling locations. There will be plenty of reporters parachuting into Ohio to cover the election chaos. I was e-mailed by one reporter for the Village Voice, looking for some of the best polling locations to possibly see some of the action in the Cleveland area. I guess the advantage for me being in a bland suburb is that I won't see too much action.
Reminder to all my readers and friends in states like Pennsylvania that keep the liquor stores, bars and beer distributors closed on election day -- stock up early. Thankfully, Ohio doesn't have that restriction, but I wasn't taking any chances.
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