Litigating the Election
By Marjorie Cohn
t r u t h o u t | Perspective
Monday 22 November 2004
Without much fanfare, a number of lawyers are busy mounting court
challenges to the election. Lawsuits have been filed and other actions are
being taken in Ohio and Florida, the two key electoral states. Members of
Congress have demanded a General Accountability Office investigation of the
election. The largest Freedom of Information Act request in the nation's
history has been launched, and other efforts are in the works.
Is there substance to these challenges? On Thursday, the University of
California's Berkeley Quantitative Methods Research Team released a
statistical study - the sole method available to monitor the accuracy of
e-voting - reporting irregularities associated with electronic voting
machines may have awarded 130,000-260,000 or more excess votes to Bush in
Florida. The three counties where the voting anomalies were most prevalent
were also the most heavily Democratic: Broward, Palm Beach and Miami-Dade,
respectively. The official tally in Florida shows Bush with 380,978 more
votes than Kerry.
Recount, Lawsuits, Hearings in Ohio
Green Party candidate David Cobb and Libertarian Party candidate Michael
Badnarik have sought a recount of the votes in Ohio. A demand for a recount
can only be filed by a presidential candidate who was on the ballot or a
certified write-in candidate. Alleged improprieties in Ohio include
mis-marked and discarded ballots, problems with electronic voting machines,
and the targeted disenfranchisement of African-American voters. Although a
recount doesn't typically begin until after the vote has been certified
(December 6), Cobb and Badnarik have asked for the recount to proceed
forthwith for fear there won't be sufficient time to complete the recount in
time for the December 13 date on which the Ohio presidential electors will
meet.
Bush now leads Kerry by about 136,000 votes in Ohio. A battle is looming
over nearly 155,000 provisional ballots, which might decide who really won
the election. The Ohio Democratic Party has joined a lawsuit by elector
Audrey J. Schering, which asks U.S. District Judge Michael H. Watson to
order Ohio Secretary of State Kenneth Blackwell to impose uniform standards
for counting provisional ballots on all 88 counties. The lawsuit cites the
U.S. Supreme Court's opinion in Bush v. Gore, which "held that the failure
to provide specific standards for counting of ballots that are sufficient to
assure a uniform count statewide violates the Equal Protection Clause of the
United States Constitution." Attorney Donald J. McTigue, who filed the suit,
told me that although many of the provisional ballots are being counted, his
client is concerned about those that are not being counted. Blackwell has
provided only limited instruction about which provisional ballots to count.
But many doubts remain about how different election boards determine whether
someone is a registered voter. Some may type the name in on a computer;
others may look for typographical errors; still others may look at the hard
copy. McTigue worries that there is no way of knowing what each board is
doing. Do they go back to the purged files? Were they properly purged?
Of the 11 counties that had completed checking provisional ballots by
Wednesday, 81 percent have been ruled valid. McTigue expects the counting of
provisional ballots to last at least two more weeks.
On Election Day, Sarah White filed a class action against Blackwell and
the Board of Elections of Lucas County, claiming they violated the Help
America Vote Act, passed in the wake of the 2000 election debacle, that
gives voters in federal elections a right to cast provisional ballots. White
claimed that although she requested an absentee ballot one month before the
election, she never received one. Blackwell ruled that persons who had
requested, but not received their absentee ballots, would not be permitted
to cast a provisional ballot. U.S. District Judge David A. Katz, however,
ordered that "the Board of Elections of Lucas County shall immediately
advise all precincts to issue provisional ballots to those voters who appear
at the voting place and assert their eligibility to vote, including that the
voter is a registered voter in the precinct in which he or she desires to
vote, and that the voter is eligible to vote in an election for Federal
office."
Last week, the Ohio Election Protection Coalition held public hearings
in Columbus. Extensive sworn and written testimony of Ohio voters, precinct
judges, poll workers, legal observers, and party challengers revealed a
widespread and concerted effort by Blackwell to deny primarily
African-American and young voters the right to cast their ballots within a
reasonable time. Precincts were deprived of adequate numbers of voting
machines, so voters waited in lines from 2-7 hours, even though 68
electronic voting machines remained in storage and were never used on
Election Day. Blackwell, who oversaw the election in Ohio, also served as
co-chair of the Ohio Bush-Cheney reelection campaign. Lawyers for the Ohio
Election Protection Coalition plan to use the testimony from the Columbus
hearings to challenge the results of Ohio's presidential vote in the state
Supreme Court next week.
Lawsuits in Florida
On Election Day, the American Civil Liberties Union of Florida and
Florida Legal Services sued Miami-Dade County and Broward County election
officials in U.S. District Court for denying voters sufficient time to mail
in absentee ballots. The Broward County Supervisor of Elections sent 13,300
absentee ballots to voters late. Plaintiffs Fay Friedman, Adam Meyer, and
Daniel Benhaim claimed the two counties violated the Civil Rights Act of
1964 and the First and Fourteenth Amendments because they did not receive
their absentee ballots until Election Day, and it was therefore impossible
to comply with state law requiring persons who are out-of-state but present
in the U.S. to submit absentee ballots by 7 P.M. on Election Day. Under
Florida state law, a separate rule gives more time to absentee voters
outside the U.S., who may postmark their ballots by November 2 as long as
the ballot arrives within 10 days after the election. JoNel Newman, a
Florida Legal Services attorney, says, "The rules governing absentee ballots
should apply equally to every voter, whether they are temporarily in other
parts of the country or overseas." On Tuesday, U.S. District Court Judge
Alan Gold denied plaintiffs' motion for a preliminary injunction to include
the late ballots in the final vote tally; however, the lawsuit remains alive
for trial on a request to apply the late counting rule used for foreign
absentees to domestic ballots.
Opponents of slot machines at South Florida pari-mutuels filed a lawsuit
seeking an official recount of about 78,000 absentee ballots cast in Broward
County on Amendment 4. About 94 percent of the new votes on the amendment
were "yes" and only 6 percent were "no," a "statistical anomaly." No hearing
has yet been scheduled on the case.
Recount in New Hampshire
Pursuant to a request by Ralph Nader, votes in some New Hampshire towns
are being recounted. An analysis showed wide differences in voting trends
between the 2000 and 2004 elections; about three quarters of precincts with
severe changes used Diebold optical scanning machines. Last week, Diebold
agreed to pay $2.6 million to settle a lawsuit with the state of California.
Diebold officials misled state leaders about the security and certification
of its products to get payments from the state, according to California
Attorney General Bill Lockyer. Diebold, which helped to count the Ohio vote
with e-voting machines and optical scan machines, is headed by Republican
CEO Wally O'Dell. Last year, O'Dell wrote to Ohio Republican donors, saying
he was "committed to helping Ohio deliver its electoral votes to the
President next year."
Lawsuits Challenge Mayoral Results in San Diego
Election results in San Diego's mayoral race remain in doubt. The
unofficial tally shows Mayor Dick Murphy the victor. But write-in votes for
Donna Frye have been excluded because voters did not darken the oval on the
left of the line where they wrote in Frye's name. A lawsuit seeks to force
the county registrar of voters to count the excluded write-in votes, which
many believe will tip the results in her favor. Two other lawsuits are
attempting to have Frye's candidacy ruled illegal and force a runoff between
Murphy and Supervisor Ron Roberts. Frye ran on a platform critical of
Murphy's financial leadership and the culture of secrecy at City Hall.
Congressmen Request GAO Investigation
Three members of Congress - John Conyers, Jr., Jerrold Nadler, and
Robert Wexler - wrote to the Government Accountability Office on November 5,
requesting an immediate investigation of the efficacy of voting machines and
new technologies used in the 2004 election, how election officials responded
to difficulties they encountered, and what we can do in the future to
improve our election systems and administration. The Congressmen cited an
electronic voting system in Columbus, Ohio, that gave Bush 4,000 extra
votes; an electronic tally of a South Florida gambling ballot initiative
that failed to record thousands of votes; a North Carolina county that lost
more than 4,500 votes due to a mistaken belief by officials that a computer
that stored ballots could hold more data than it did; a substantial drop off
in Democratic votes in proportion to voter registration in counties
utilizing optical scan machines that was apparently not present in counties
using other mechanisms; and numerous reports from Youngstown, Ohio, as well
as Palm Beach, Broward and Dade counties in Florida, that voters who
attempted to cast a vote for John Kerry on electronic voting machines saw
their votes instead recorded as votes for Bush.
Freedom of Information Act Requests
Blackboxvoting.org, a nonpartisan, nonprofit consumer protection group
for elections, has filed the largest Freedom of Information Act request in
history. It seeks the internal computer logs (which are public records )
from voting machines from every county that used electronic voting machines.
The organization has initiated fraud investigations in selected counties. It
needs lawyers to enforce public records laws, as well as computer security
professionals and citizen volunteers.
Open Records Act Motions
Cindy Cohn, Legal Director of the Electronic Frontier Foundation in San
Francisco, told me that independent testing of voting machines could shed
light on why so many people who tried to vote for Kerry saw their votes
registered for Bush. Her organization is moving under the Open Records Act,
which allows people to see government records, to gather information,
including the impoundment of voting machines, in some counties in Florida,
Ohio, New Mexico and Pennsylvania that had serious problems with the
machines. Local counsel are needed to help with this effort. Cohn can be
contacted at [EMAIL PROTECTED]
Results Not Final Until January
Although John Kerry conceded that George W. Bush won the election, a
candidate's concession is not legally binding. Electors will be certified on
December 7, which gives a presumption of legitimacy to the vote; but
electors actually vote on December 13. These votes are not opened by
Congress until January 6, so there is still time to challenge the results in
key states such as Ohio and Florida. A challenge requires a written
objection from one House member and one senator. If that objection is
recorded, both Houses separate again and they vote by majority vote as to
whether to accept the slate of electoral votes from that state.
Bush is claiming he has a mandate, planning to spend his "political
capital." Curiously, virtually all of the so-called "anomalies" in the
voting results favor Bush. The electors have not yet voted; the election
results are not yet final. In the words of Yogi Berra, "It's not over until
it's over."
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Marjorie Cohn <mailto:[EMAIL PROTECTED]> , a contributing editor to
t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive
vice president of the National Lawyers Guild, and the U.S. representative to
the executive committee of the American Association of Jurists.
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