April 16, 2007

Voter Fraud/EAC/US Attorneys/Indiana Voter I.D. Case Roundup

A few additional commentaries and developments this weekend worth noting. Marty Lederman has written this must-read post on Balkinization trying to put the AG Gonzales controversy into the broader context of the voter fraud allegations. Marty writes:

    The biggest part of that scandal , by the way, is not the dismissals of the U.S. Attorneys, or the use of RNC accounts for White House e-mails (and the "deletion" thereof), or even the groundless prosecution of Democratic officials on basically no evidence at all, such as Georgia Thompson in Wisconsin (where a panel of the U.S. Court of Appeals that included Frank Easterbrook summarily reversed the conviction mere hours after an oral argument in which the government was unable to provide a shred of justification for the prosecution). It is, instead, the elaborate fiction of widespread "voter fraud," which has not only been the predicate for the enactment of numerous disenfranchising voter ID laws, and the pretext for stopping much-needed voter-registration reforms, but has also resulted in in terrorem prosecutions by the Department of Justice on trivial or trumped-up charges.

Marty also points to posts at Obsidian Wings that are well worth reading.

Adam Cohen wrote this NY Times column on the Georgia Thompson case, and the Times wrote this lead editorial tying the U.S. attorneys scandal to the suppressed EAC voter fraud report. Though there is much in the editorial I agree with, it appears to play loose with the facts when it claims that "Last week, we learned that the administration edited a government-ordered report on voter fraud to support its fantasy." The administration did not edit the report. This came from the bipartisan EAC. Now we don't yet know whether anyone from the administration tried to pressure the Republican EAC commissioners to produce that report. We may soon find out. But it is a mistake at this point to equate the EAC with the administration.

Meanwhile, as we await the decision of the plaintiffs in the Indiana voter identification case (Crawford) on whether or not to seek cert. in the Supreme Court, along comes this news story of a tied local election in Indiana. It is local, not state, but it does undermine Judge Posner's point in his Crawford opinion: "The benefits of voting to the individual voter are elusive (a vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote), and even very slight costs in time or bother or out-of-pocket expense deter many people from voting, or at least from voting in elections they're not much interested in." (Emphasis added) Incidentally, there have been some very close state and federal races in Indiana as well, including the 1984 McIntyre/McCloskey race.

I have many more criticisms of Judge Posner's opinion in this paper. That paper also talks about how the en banc process in a number of federal circuit courts in election administration cases has in recent years broken down along partisan lines (true of Crawford as well), and apparently that breakdown is also apparent in Sixth Circuit death penalty cases: "A [Cincinnati] Enquirer analysis of the court's death-penalty decisions since 2000 shows that 6th Circuit judges consistently voted along partisan lines, just as they did in House's case: Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time. Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time."

Finally on Crawford, I've been quite critical of Indiana Sec. of State Todd Rokita for his stance on some voter identification/voter fraud issues. I am now troubled by these new remarks of Secretary Rokita, not only because it might be a "Don Imus moment," but more fundamentally I am bothered by this: why is a state's chief elections officer addressing his political party trying to inspire county GOP members to stick together as group and as a team to win:

    Rokita, who won re-election in 2006, quoted the dinner's namesakes of Abraham Lincoln and Ronald Reagan to inspire county GOP members to stick together as group and as a team to win.

    "We need to be absolute and proud of our history," Rokita said. "I think we've forgotten how to do that. I think we've forgotten sometimes what we're about and the national media doesn't help us in that regard and the liberals certainly don;t help us in that regard.

    "In a sense, that's what they are there to do and we can't blame them. What we have to do is remind ourselves of what we've done for this country and what we're going to do for this country...that we are still the party of purpose and not the party of 'No'" Rokita added.

That this is an acceptable topic for a public speech by a state's chief elections officer is one of the biggest scandals of all.

Posted by Rick Hasen at April 16, 2007 08:48 AM