EQUAL PROTECTION ARGUMENT for Overturning Elections..... lawyers??

[geo]

Hi all,

Any lawyers in the house?

Another writer (Senator) mentioned, "Vote-counts are demonstrably false (not just uncertain), demostrably discriminatory (unlawful), both racially and in favor of bush voters."

This statement made me think, wiuth significant evidence, could the equal protection clause overturn the election?

EQUAL PROTECTION CLAUSE - Portion of the Fourteenth Amendment to the U.S. Constitution that prohibits discrimination by state government institutions. The clause grants all people "equal protection of the laws," which means that the states must apply the law equally and cannot give preference to one person or class of persons over another. (courtesy http://www.lectlaw.com/def/e027.htm )

Bush voters over voters for other candidates, white rural voters over minority urban voters, etc. This vote was clearly a violation of the 14th amendment, but is it the basis for a legal challenge? What evidentiary basis do we need to prove the case? Any precident for such an action?

If anyone is interested in getting a lawyers take on this, please keep kicking this thread until we see some good analysis. I can't believe for a second that the procedural laws governing elections override the 14th amendment. Also, there is likely a litany of case law regarding the burden of proof in dicrimination cases.

Anyone? Anyone?

Warmly,

George

[Liberty Belle]

1. kick

[Cowboy Joe2k]

205. A Kick for our Right to Vote!

A Kick to ex-cape this Orwellian night mare. where no matter what you say it does not really Matter, because some one else is pulling the strings of this massive contraption that we the people have no control over.

Give us our Rights Back! Give them to us Now!

[geo]

217. DISCLAIMER: Please read...

For the sake of keeping discussion candid from our friends in the legal profession, it shall be understood that nothing written herein is or should be construed by anyone as legal advice on the subject.

This thread is intended for academic discussion of the issues surrounding the 2004 election as it relates to particular areas of the law. If you need genuine legal advice regarding a 14th Amendment issue then you should seek the advice of a competent Civil Rights attorney.

End of Disclaimer. Now post away! :) -G

[Cowboy Joe2k]

239. Print this. This is the one key that can set the people free.

Write in Peace! every one. Demand paper Ballots. Wright in Peace. That is the only thing it matter we hope for now. If neither one of them have values Vote for peace on paper ballots and make damn sure that they are counted because if you do this You will have prove that their wrong. I just beat your game Sucker.

Give us back our Human Rights Now. Please! Can we Change the Channel?

enough with the terror warning. Tell every one you know to wright letters to Santa for world peace, because this is possible now!Include this whole thread. I want every one to know just what it is you could have given them. I want them to mail this thread to their children, and their children's and your grand children and your grand children that the only way you will ever have peace is if you constantly write in Peace as a Candidate.

Game over you lose you damn Machine.

Print that. Copy that this is your Freedom people

[Timebound]

251. kick

:kick:

[Higans]

252. Kick this if you want your voice herd ever.

[Carolab]

2. I think that this is an excellent rebuttal

for COBB. Why should other candidates or other voters have preferential treatment? Why should it be implied that Cobb and we voters who have requested and supported this recount are any less entitled to equal treatment and that failure to recount in a timely manner to contest this election will NOT result in irreparable harm to our rights as voters who deserve a FAIR election? I sent this to Cobb and urge others to do so as well: [e-mail] This judge's "restraining order" to stall the recount CANNOT be allowed to stand! FIGHT IT!!!!

[geo]

8. I just e-mailed Cobb as well with

a link to this thread and a brief statement or two. Thanks Carolab! :) - G

[Stand and Fight]

3. Kicking it...

Sounds great on the surface, and IF this were to happen it would make legal precedence without a doubt.
:kick: :kick: :kick: :kick: :kick: :kick: :kick: :kick: :kick: :kick: :kick: :kick: :kick: :kick:

[lawladyprof]

76. Better yet it would build on legal precedence--eom

[Amich]

4. kick

[Wiley50]

5. Kick nt

[Senator]

6. NO lawyers (or law even) required

Not that I would stop anyone from doing anything to fight against this treason, even lawyers, but it's simply not necessary.

Our job is to change PUBLIC OPINION.

We have the reports of "poll-tax-lines" (time is money) in poorer, minority, Democratic districts. We're DONE with evidence gathering and adjudication.

We simply have to convince ourselves, then our "leaders" and the public at large that where those discriminatory lines existed, the elections were racist, UnAmerican endeavors. And the electors from those states are invalid on their face.

Any congressman or senator who fails to disallow such electors is complicit in the racist, discriminatory activity. As is anyone who doesn't stand up to stop it (i.e., our "allies" who seem to have moved on to other things).

It really is this simple. And if we make the Jan. 6 counting of electors a exercise is identifying "Who Stands Up for Racism?" we will get all the (non-fashist) repubs that we need.

[tinfoil_beret]

9. Yes! Now we're getting somewhere!

I first approached the Fourteenth Amendment from the standpoint that recordless DRE machines combined with easily compromised tabulation systems violated a person's right to vote and warranted reduction in representation of electors under Section Two of the Fourteenth Amendment and Section One of Article Two of the Constitution. I then added the "poll tax lines" to the list of violations of the same section. Though I started on this track to find a way to cut through the red tape, interrupt the process and possibly change the outcome of the election, reading feedback at http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x77190 and the posts in this thread I realize how it applies equal protection under the Fourteenth Amendment.

Yes! We have done plenty of evidence gathering and as a result have more than enough evidence for an immediate resolution. As you suggest, I also support disqualifying electors by reducing the eligibility of states in which the electoral system denied equal protection to certain segments of the population, under Section Two of the Fourteenth Amendment, which would affect state elibility for represention and therefore electors, under Section One of Article Two of the Constitution . The duty to ensure such a resolution falls to our senators and congresspersons.

[geo]

13. and it seems to me that one Amendment doesn't trump

another. If I'm remembering my constitutional law correctly, the supreme court has spoken at times on the merit of which right is more important, and if memory serves, there might be some precident for saying that one right doesn't trump another.

This could get interesting! :) - G

[geo]

11. Illegal Poll Taxes...

You just reminded me that poll taxes were decided by the supreme court (if I am not mistaken) and may serve as some sort of precident. I'm going to find that decision in the morning, read it and link it... but right now I am tired. :)

All this election nonsense that we have proof of might help us set legal precident. Depending on the language of a decision in this area, it may really pave the way in true election reform!!

PLEASE KEEP THIS KICKED UNTIL WE FIND A LAWYER OR OTHERS WITH MORE OF A LEGAL BACKGROUND TO WEIGH IN ON THIS TOPIC.

Thanks all!

George

[spoogly]

15. I think those cases are actually 24th amendment cases

24th Amendment specifically prohibits poll taxes.

Twenty-Fourth Amendment - Abolition of the Poll Tax Qualification in Federal Elections

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

The analogy is a good one though. The principal here is the same...impediments to the right to vote.

I think the violation part of this is as clear as you could ask for. The real question is the remedy???

It just occurred to me that another precedent is probalby "Bush v. Gore" although that case said specifically that it was limited to that case and should not be seen as precedence for other cases. If I remember right that case relied on Equal Protection grounds to say that you had to recount the whole state or it violated the voting rights of the voters in the counties that were not recounted. I would have to read it again though.

[geo]

19. it was

equal protection grounds. Thanks! - G

[Senator]

38. You can look at BvG all you want...

...but it doesn't even make logical sense, let alone legal sense.

The fact that they tried to claim there was no precedent in their edict was just a naked admission that what they were doing was purely political, and therefore treasonously corrupt.

As the NYTimes reported, that had "a conclusion in search of a rationale." Hardly law; or even fundamentally decent fairness.

The cruel irony was that they abused the equal protection clause to force a demonstrably racist result.

BTW: Bugliosi includes the entire edict in his book, "Betrayal of America" which was based on his article "None Dare Call It Treason"

[geo]

64. well... could be, but I see some logic in it....

Hi Senator,

I think the determination of the court could have been more equitable, but I have to say that I agree this was a tactical oversight on the part of the Gore legal team.

There is some logic to their thought that the level of count in such a close election, only afforded to the Gore team (of which I was sleeplessly rooting for) by the Court was not very well reasoned. The Gore team should have instead supported the idea of statewide recount by hand, not just a few counties. As you'll see later in the thread, the partial count would have produced a loss for Vie President Gore when the entire state hand counted would have produced a win.

Bush v Gore can be used to help analyze this argument, and regardless of their insistence that it not be used as precident, if the logic is equally applicable, they should accept it as such. They stressed hard the need for equal protection, and they applied it strictly. Let's see if we have a chance to have them do it for us.

Just some thoughts... :)

Warmly,

George

[Senator]

108. I agree BvG can be used...

...(or unabashedly misused) regardless of what they said about precedent. But not that there's any logic in what was scribbled in their cowardly per curiam.

The "equal protection" fig leaf was mined from the entrails of the bush brief. Olson didn't even support it at oral argument when given the chance. Which was unsurprising as it is not possible to "protect" one class of voters (bush's) without "unprotecting" the other. It's a Catch 22. The only one who was "equally protected" was bush himself.

If you think they made a strict application of anything, just read the edict with the parties reversed. Then try to imagine them ruling for Gore in this way.

The same goes for "doing it for us." Just not imaginable.

BTW: The Gore/statewide thing was/is just an RNC talking/propaganda point. I'd rather not digress that far at the moment, but will if it's something you feel strongly about.

[spoogly]

7. Clearly there is documented evidence of equal protection

problems in Ohio. I was reading a thread earlier that included a statistical analysis of the impact of having fewer voting machines in predominantly African American parts of Cuyohoga and Franklin Counties. This type of conduct clearly violates the Equal Protection Clause and likely the Voting Rights Act of 1965. The type of statistical evidence that I read earlier, testimony on long lines in these areas (as well as testimony of no lines in other areas), and the testimony of the election officials regarding the placement of voting machines, would very possibly establish a prima facia case of illegality.

The question is...what is the remedy?

We are on the same track tonight, because I was actually just doing some digging on that exact issue. I haven't gotten too far, but I did find one interesting case where the U.S. Supreme Court ordered the State of Alabama to re-conduct an election because of racial discrimination.

HADNOTT ET AL. v. AMOS, SECRETARY OF STATE OF ALABAMA, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA. No. 647.
Argued January 21, 1969.
Decided March 25, 1969.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=394&invol=358

That case involved a state law that worked to keep African American candidates off of the ballot. The Court's holdings are summarized as follows:

1. The disqualification in the 1968 election of the NDPA candidates on the ground that they failed to meet requirements under the Alabama Corrupt Practices Act which their opponents did not have to meet constituted, on the record here, an unequal application of the law in violation of the Equal Protection Clause of the Fourteenth Amendment. Pp. 361-364.

2. Disqualification of the NDPA candidates for failure to comply with the Garrett Act was unlawful since that Act, which imposed increased barriers on independent candidates, was inoperative because the Alabama officials had failed to meet the approval requirements of 5 of the Voting Rights Act of 1965. Whitley v. Williams, 393 U.S. 544 . Pp. 365-366.

3. The case is remanded to the District Court with directions (1) to order the prevailing NDPA candidates in Etowah, Marengo, and Sumter Counties to be treated as elected and (2) to require the officials to hold a new election in Greene County for the offices contested by NDPA candidates, whose names shall appear on the ballots. P. 367.

[tinfoil_beret]

10. Great find!

Do we want to take this to the courts? Or do we want to force Congress to act on this issue? Would taking it to the courts with the aim of disqualifying electors based on the prima facie evidence of illegality more likely bypass possible congressional shenanigans? It might give us the bird in hand instead of one in the bush. (No pun intended.)

[spoogly]

12. I believe the remedy would lie in the courts.

Individual voter action under the Voting Rights Act of 1965 seeking an injunction against certifying the results based on a pattern of discrimination suppressing the vote. A racial impact would need to be shown...although I think there are cases out there that say that there can be other impacts as well...i.e. impacts on poor white voters. The state would then need to show a compelling state interest in placing more machines in afluent areas...something that they would have a very difficult time doing.

Case could be based on the impact. Proof of deliberate and intentional acts would be a bonus.

Actually I have been thinking that this is the legal bomb we have all been waiting to be dropped in Ohio. It is pretty clear that they won Ohio by supressing the vote through a variety of means. It is criminal....but pretty par for the course.

[tinfoil_beret]

16. That makes a lot of sense.

The misappropriation of polling machines affected more than one class of people. There is no way the state could begin to show a compelling state interest for such a policy.

One thought. If such an injunction prevented Ohio from sending electors to cast Ohio's 20 electoral votes before the count by the Senate, the majority would fall to 260, Bush would still have a projected 266 electoral votes to Kerry's 252 and the count would give Bush the election. Thus, we would need to win the same battle in Florida, if we have the same prima facie evidence that the same occured in Florida, which I believe we have evidence to show.

[spoogly]

17. Time would be a big problem, no doubt...

and I think it would have to be shown that the activities in question would possibly change the election results.

You would also be in a position of asking for a new election in the impacted counties in a Presidential race. There is no legal precedence for that.

And by the time Blackwell is done jerking around, there wouldn't be time to hold another election anyway.

But at least if a case was brought and won it would hobble people like Blackwell and bloody the nose of *'s "mandate"

Gotta hit the sack. My eyes are sagging.

Happy Thanksgiving all.

[pat_k]

20. This must be challenged if we are to create the .....

>and I think it would have to be
>shown that the activities in question
>would possibly change the election results.

Thinking like this must be challenged if we are to create the context required to win the fight for the integrity of Election 2004 (and any future election).

From this talking points document:

Notion to Challenge
--------------------
If the results declare a winner by a large margin, discrimination and other problems are "outside the zone of litigation."

Simple Truth; Moral Position
------------------------------
If you accept the notion that a large margin of victory puts the election "outside the zone of litigation," then you accept the notion that such a state is completely free to discriminate with no risk of consequence. This is an absurd position. No matter what the margin of victory, the results of a discriminatory election are unacceptable. We cannot continue to tolerate the intolerable. We cannot continue to tolerate the toleration of the intolerable.

[geo]

23. nicely put

no matter the margin, we should tolerate inequality on our voting system. - G

[spoogly]

30. I totally agree that regardless of the result, we need to

take a stand on Equal Protection grounds. My only point about having to show that it would possibly change the result of the election is whether a preliminary injunction could be granted on Equal Protection grounds as opposed to an after the fact lawsuit. An injumnction would be a remedy in equity as opposed to a legal rmedy and would possibly require a different showing.

I might be wrong and would have to look into it a lot more, but usually to get a preliminary injunction (to injoin the certification before it is made) would require likelihood of success on the merits. Whether that would require a showing that the election could be overturned as a result of the Equal Protection "fraud" I am not sure. But it is something that would need to be considered IN THE CONTEXT OF SEEKING A PRELIMINARY INJUNCTION.

In terms of the moral arguement and the need to hold Blackwell and his cronies accountable for violating the Equal Protection clause and the Voting Rights Act of 1965, I TOTALLY AGREE. A suit should be brought regardless of whether it would overturn the election in time.

I can't pretend to have all of the answers to this. I think that a civil rights lawyer in Ohio should be consulted about bringing suit in the name of disenfranchised voters...assuming of course that this is not already happening...

[geo]

66. thanks for the analysis!

Hi Spoogly,

Perhaps this thread will inspire legal action in Ohio, and maybe elsewhere. Us bouncing the legal brainstorming back and forth sure doesn't hurt to inspire thought in others. :)

If my understanding is correct, you are 100% right about the typical burden on tro's (temporary restraining orders). I'm thinking though, pending a better analysis from a legal professional, that we may have a little more time if we simply aim at knocking out electoral votes from states where the accuracy of the elector's selection is in serious question. That thought is discussed at further legth somewher down-thread.

Thanks again for your post! :)

Warmly,

George

[tinfoil_beret]

25. Would it?

Would it not be enough to show that multiple violations of the Equal Protection Clause did occur, whether or not it affected the outcome? Would that not be enough evidence to obtain an injunction on the certification of the vote pending another election (which time limits would make impossible)?

You might agree that such a strategy would make it difficult, if not impossible, to quantify the number of voters effectively prevented from voting, which would prevent showing that the violations did affect the outcome. If the court required this evidence, this fact could prevent an injunction.

For the above-stated reason alone, now that Cobb, et al, applied for a recount of Ohio votes for the presidential election, it makes more sense to instead argue that paperless DRE machines used by the state make a manual recount, as required by HAVA and the precedent set by Bush v. Gore, and verification of the vote count impossible. The plaintiff could then easily quantify the number of voters effectively prevented from voting, for which Section Two of the Fourteenth Amendment does define a remedy, disqualifying a portion of state eligibility for representation and thus the number of the state's electors, under Section One of Article Two. A win here would set a precedent which we could then apply equally in federal court to all states with votes cast with paperless DRE machines. A favorable ruling would reduce the number of electors of each state in question. This would likely change the outcome of the election, giving Senator Kerry the majority.

[geo]

67. the more I read in this thread, the more....

I am starting to think that disqualifying electors might be the most legally based remedy for the breach of our rights under the equal protection clause of the 14th Amendment, etc., regardless of the outcome for Sen. Kerry (though I'm fairly certain that all the disqualified electors would likely be for Mr. Bush this time out). Further down-thread is more comment on this. :)

Thanks again for your posts! :)

Warmly,

George

[pat_k]

21. Courts of law, court of public opinon, and Congress

We must fight in the courts, in the "public square," AND in Congress.

Wherever each of us takes our part of the fight, first and foremost, we must change the frame -- we must "move the game." The law is not a static authority to which We the People are subservient. We must never forget that We the People are the ultimate authority.

Don't get lost in existing election law. Aim to set precedent, not find it.

[geo]

24. setting precident...

is one of the goals this thread explores. My personal goal for this thread is to get some quality legal thought on whether the equal protection clause of the 14th Amendment can be used as a basis for overturning the election. The Ukraine court just stayed the inaguration pending a hearing, btw. With all the evidence we have, there should be no doubt that democrats, minorities, urbanites, etc. were treated quite differently during this election. - G

[lawladyprof]

81. Democrats and urbanites aren't protected classes

So no strict scrutiny for them (think--DeLay's gerrymandering upheld)but race--that's our ticket. The fundamental principle on which this country was founded--the consent of the governed.

SCOTUS has been taking foreign law into account lately (Ukraine ct. decision not to certify until hearings), and I have had a strong sense that at least one Justice has had buyer's remorse re: George.

[geo]

114. I think you are right but question... and which Justice, btw?

Hi lawladyprof,

It seems that there is enough evidence of adverse impact on blacks in Ohio, but is that as far as the equal protection argument goes? Would poor white voters, college students, etc. be able to claim their equal protection rights were violated even if it does not bring strict scrutiny? Just curious here; I'm sure there is enough to go on with disenfranchised minority voters especially.

Also, which Justice might be having buyers remorse?

Thanks again for the posts! I hope I'm not too full of questions. :)

Warmly,

George

[lawladyprof]

148. Well, they could and B v. G certainly carved out a tiny opening

with its class of voters whose ballots wouldn't be recounted group. But the Court, (a) said you couldn't use B v. G as precedent (this in itself has occasioned much negative comment) and (b) is loathe to protect any but previously established classes (they get relegated to rational basis protection, which is virtually a rubber stamp for anything government decides to do). Plus if you're going adverse impact you'd better not try to reach too far.

O'Connor. Something tells me (other than the disparity between her election night 2000 comments and subsequent failure to retire) she, unlike Bush, would not think much of Thomas and Scalia clones (Bush's most admired Justices) on the Court. I don't know how much attention the Justices pay to current events, but if she heard Bush expounding on the Dred Scott decision she had to just cringe.

[geo]

116. and good point on Ukraine decision, btw. :)

thanks again! :) - G

[SomthingsGotaGive]

96. "par for the course"

Thats what I have been screaming from the top of the CN tower here in Toronto since 2000.


Black votes never count...No biggie.

While I agree that the law is on our side as it is written, I am dubious about how these current Justices will interpret the law.

If we can learn anything from the situation in the Ukraine it is this...

Unless we take to the streets (peacefully) and make ourselves heard, The courts are just going to push us around the way they did in 2000.

If we sue our way to the top we run the risk of giving racist opponents the activist judge angle to sway the moderate bush supporter into thinking this is just a Dem sore loser tactic.

We need a grass roots shame campaign.

We need to expose the old fashioned ways the GOP block people from voting. We need new Memes


I'm Pretty Sure My Vote Counted, But I Am White

Our Leader....Thanks to Good Fashioned Racism

No Wonder GWB Avoided the NAACP

No Wonder Black people Are so Pissed Off.

Old fashioned American Values Included Lynchings.


The legal Backbone of our arguments need to be rock solid but I think we need serious PR discussions.

Bush chose poor, and minority votes because he knew they have no voice.

The Ultra Rich vote as solidly Republican as the ultra poor vote Democrat. Imagine if the roles were reversed and we were able to stop the rich from voting.

The republicans would never win.


Thats what this is about. We will never win if we keep letting our most solid supporters get disenfranchised.

Check This.....

CNN BREAKING NEWS.....

Wolf Blitzer : This just in CNN is reporting that Fox News, and MSNBC are reporting a Yuppie protest happening right now In Jackson Hole Wyoming. Lets go to Susan Malveaux Reporting live from a poling station inside the Jackson Hole Ski Lodge Where a Score of people seem to have just about had enough of the games being played by the Demcrats....Susan....

Susan Malveaux : Yes thanks Wolf, thats right. I don't know if you can see this through all the cameras and commotion, but there is indeed a crowd that is becoming increasingly vocal about expressing their displeasure at Democrat tactics designed to as they claim to " Steal the white house". ..Wolf..

WB : Susan by the looks of things behind you this isn't an isolated incident have you heard of other incidents like this elsewhere in the country, and what exactly are the tactics the Democrats are using that have these people so incensed?

SM : Well wolf, to answer your first question, I've spoken with almost all of these demonstrators and most have been on the phone with members of the media all day and they say many other reporters have admitted seeing similar activities employed by democrats at various polling places.

WB : Great Susan, but what are some of these Democrat tactics been protested?

SM : Yes sorry Wolf its becoming noisy in here, maybe you can here the chants of "Go Bush Go"and " U.S.A..U.S.A.".... But as far as tactics go Wolf, I think the biggest concern is the out of state Mexican Americas the Democrats have dispatched here to Wyoming for the sole purpose of challenging long time residents right to vote.

WB : Wow Susan, thats unbelievable even for the democrats....

SM : That's not all Wolf.....The protester also claim to have had to wait for up to 45 minutes to vote citing only 6 voting machines in a precinct that has had up to 10 in previous elections. To add to the nightmare faced by resident here, two of the six machines stopped working at around 9:30 this morning. Calls made to the Democratic Election Commissioner pleading for back up machines were Ignored. ...

WB : Those are some pretty serious charges Susan what if anything is being done about it?

SM : Well Wolf, Plenty! The FBI arrived shorty after 10am saying they had received "Several" tips, and have so far removed the Mexican American poll watchers and impounded the malfunctioning machines looking for any evidence of Democratic tampering. Although things seemed to have been settled when the Governor personally delivered 5 brand new voting machines to replace the missing boxes, one can never be certain the the Democrats will stop trying to block votes here or elsewhere, the protesters say, so they remain vigilent....Wolf

WB : Susan Malveaux in Jackson Hole Wyoming covering a fight about what is essentially Democracy itself...Thank you Susan we'll check back with you soon.

[geo]

115. you make a point...

it is probably why kerry/edwards is letting us do alot of the work. :) -G

[geo]

14. thanks for the post

Hi,

It sounds like the remedy would be a new election in the areas where there are problems, but that means the issue is time. There isn't much room on the timeline to hold new elections, so if this is the ticket, it needs to be done quickly.

Sounds like you and I have some reading to do. Let's hope we get some good help. :)

Warmly,

George

[mcg]

18. The repubs used 'equal protection' in the 2000 FL recount fight.

If they could use it, so can we.

[geo]

22. sure did...

and we sure can. :) - G

[pat_k]

26. Thiis is critical -- Move the Game!

Duplicate of post on this thread. Actually, may be more appropriate here.

-----
The problems of Election 2004 must be remedied IN Election 2004. Failure to remedy problems must have consequences. On this, I think most of us are agreed. The question is then, "How do we make this happen?"

Members of the press and other so-called "authorities" are so obsessively focused on the number of votes lost or gained to the "glitches" that have been discovered to date, and are so smugly sure that the numbers will not "change the results," that they are completely missing the real story.

It's not the number of votes affected, it's the nature of the problems. And by their nature, the problems have implications that reach far beyond this or that specific instance. We are learning that the software used to record and tabulate votes is seriously flawed, lacks basic internal audits and security protections, and produces results that are prone to undetectable corruption through error or deliberate tampering. The potential magnitude and scope of the impact on the results is breathtaking.

If the incredible problems we are seeing in the processes for recording and tabulating the vote were not enough, we have the poll-tax lines (time is money) and other intolerable and discriminatory barriers that voters faced on November 2nd.

There is ample reason to suspect that the current "baseline" results have been corrupted. Whether the addition or subtraction of votes from an untrustworthy initial total will "change the outcome" is irrelevant. The issue is that the initial total is in doubt. Discovery of isolated problems can do nothing but add to that doubt. Only a comprehensive audit has the potential to remove the doubt.

Clearly, the burden must be shifted to the states to prove, beyond a reasonable doubt, that their reported results reflect real votes from real voters who were given an equal opportunity to exercise their right to vote. Shifting the burden of proof to the states is the ONLY defensible position. Consider these grids if you doubt the logic.

Simple truths and simple moral positions cut through the rationalizations that are blocking effective action in our fight to preserve the American experiment. And make no mistake. The fight for the integrity of Election 2004 is nothing less than a fight to preserve our identity as Americans and our chosen way of government.

To effectively fight this fight we must shift it to reality-based ground. The "legalistic" arguments can be dealt with by forcing people to explicitly assert their immoral positions -- force them to explicitly reject the moral principles set forth in this declaration (e.g, When someone tries to shift to "well, there's no precedent," shift the focus back to reality by saying something like,"So, it's fine with you the poor in this nation must wait 10 hours, while the rich do not face this barrier?").

Fundamental truths have power of their own. The only thing that can block the adoption of a position grounded in a fundamental truth is an appeal to an arbitrary or static authority that can trump the intention of our law or trump reality. The law is not a static authority. The law is as dynamic as the people it serves. Accept or reject the position that the states bear the burden of proof on its own merit. If it is the right thing, the law will follow. We will set the precedents.

If we continue to allow fascist thinking -- e.g., viewing ourselves as subservient to some static legal authority -- to infect us, then we can just kiss the whole "consent of the governed" thing goodbye.

[geo]

72. Nice piece.

Hi Pat K,

Nice piece. I agree that we should not forget the concept of "consent of the governed," but many still believe that this election was adequate. We are, believe it or not, in the minority, which is were the laws really do matter.

The trick in the courts is to aim the argument so deeply into our value system as to shock the conscience of the courts as we expose the actions of those who wish to strip away at the integrity of our vote. We can't let them beat us on some procedural ground, either. We need to aim right and press hard.

No doubt, if the most potent arguments actually make it before the court, either precedent will be set, or it will be obvious to all that our democratic way of living has been raped and pillaged.

Just some thoughts... :)

Warmly,

George

[rainy]

27. Geo, I was wondering if you have read the Gore v. Bush case?

In it many of your questions may be answered. I listen to randi rhodes and she talks about this case all of the time. I think she said in it was stated that we as citizens do not have a right to vote. It's all about the electors and states rights. Therefor we may not have legal standing with equal protection. I was just wondering?

[rainy]

28. Read this from JJ, Jr. "Do Americans have a right to vote?

Do Americans have a guaranteed right to vote?
by
Congressman Jesse Jackson, Jr.





Just below the political radar there's a basic democratic question being discussed or fiercely debated among academics, civil rights leaders and politicians from both political parties. The question? Is the individual right to vote guaranteed in our Constitution?

Bush v. Gore (2000) said, "the individual citizen has no federal constitutional right to vote for electors for the President of the United States." Thus, the simple answer appears to be "no."

Others, Harvard Law Professor Laurence H. Tribe among them, argue that the "equal protection" and "non-discrimination in voting" clauses of the Fourteenth and Fifteenth Amendments and Supreme Court precedents since Brown (1954), can be construed to grant the individual citizen the fundamental right to vote in the Constitution.

On July 1, during a Q & A session at the RainbowPUSH Coalition Convention in Chicago, former President Bill Clinton, after careful questioning, acknowledged, constitutionally, we have a voting system largely based on "states' rights" and he supported adding an individual voting rights amendment to the Constitution.

[mcg]

36. we need a new Voting Rights Movement

[geo]

47. no doubt

:) - G

[darthdemocrat]

168. no kidding - all we want for xmas is our votes counted -eom-

[geo]

43. thanks!

Hi Rainy,

I read the whole article you sent my way though PM, and as you know I relied to your inbox as well. I just want to post here as well so others can read. BTW, do you have a link we can post in the thread for the article? I thought it was a very good read. :)

---------------------------------------------------------------
copy of reply... :)
---------------------------------------------------------------
Hi Rainy,

I really appreciate yoy taking the time to send this. I agree with your reasoning behind the statement that we need a clearer constitutional backing for our right to vote.

We do have a right to equal protection under the 14th Amendment, which means that when a state gives an individual an opportunity to vote, that opportunity should be equally gauranteed to the others in the State. On a state by state basis, we have voting rights, and per the constitution we should be equally protected with that framework.

As for bringing suit ourselves, it is possibel, but it would take a lot of work, and I'm not sure if we could go pro per in front of the supreme court. I have tooled around with the idea of adding to the thread a basic complaint that we could start building off of, or at least start collecting a summary of the evidence so that it is ready to go. The prayer for relief would likely be overturning election results where we can prove the process violated the equal protection clause, and possibly postponement of the inaguration (like they did in the Ukraine). We would have to sue for money damages and costs to, just in case the court denied the more desirable remedies. Also, we might be able to, in the process, get some determination in whether equal protection was violated by offering auditable machines to some, and non-auditable machines to others.

Maybe I should post this in the thread too. :)

Thanks again for writing!!

Warmly,

George

[MarkusQ]

133. Lots of angle: state constitutions, long lines as a poll tax...

In addition, I believe (IANAL) that many states do define the right to vote, for their citizens.

Also, the 14th (poll tax) & 26th (age discrimination) amendments might give us some aditional angles--e.g., students are, as a group, younger than the general population, and long lines are a form of poll tax.

Personally, I like the "long lines are a poll tax" angle a lot.

--MarkusQ

[Truman01]

40. It is true that electors not citizens have the right to vote for pres, but

It is also true that each state has a layout of how those electors are chosen by popular vote. So, if that layout is not followed then there is an example of a violation of Equal Protection.

The problem that we encountered in the Flordia recount of 2000 was a tactical error by the Gore camp. They decided that they only wanted recounts in three counties and those three counties were all heavily in favor of Gore. There was an argument, that was eventually upheld, that if you recounted those counties that you would be in effect denying Equal protection to the rest of Florida.

I know I'm going to get flamed over this but you are welcome to read the SC case yourself: They did NOT stop the recount. The SC simply held that a recount would only be valid in this instant case if the entire state was recounted. Because we had fooled around so long in pressing for a three county recount we had run out of time to do a whole state recount. The safe harbor provisions kicked in and we were all screwed. Effectively the recount was stopped because there simply wasn't time to do one.

Later the recount was done by the NYT/CNN/ and Washington Post with Anderson as the auditors, and it was determined that, ironically, Bush would have won had we recounted like GORE wanted to (standards), Gore would have won had we recounted as Bush wanted too. Cluster f*ck.

Anyway, in this case we would have to recount the entire state, and yes we could use equal protection if we could prove that democrats in one part of the state were denied Equal Protection by actions in another part of the state that skewed the results.

I do caution you all on one point though, WE ALL WANT THIS, so our burden of proof is pretty thin. The Courts will requre a much more stringint burden of proof and will require that there is a good chance that the recount will change the outcome of the election.
That isn't going to be easy, but it is the hurdle we have to jump over.

[geo]

50. regarding burden of proof... question:

Hi Truman,

Very good point indeed. Would you readily know of case, code, Opinion that would indicate what "good chance" might mean? Good chance could mean anything from just enough encounted votes or disenfranchised people to make up the difference, to some burden that we prove another candidate is almost certain of a victory.

My concern is that it is difficult to discern how much damage fraud, voter supression, vote mahines, etc. did in each of these states. At least in Ohio there have been hearings recorded under oath, so we might be able to show x-number of votes from that, but what about the rampant fraud or computer mishaps? It seems to me that equal protection should apply without such a strict burden. Perhaps it is because the candidates are bringing the suits when it should be a class action of us voters.

Just some thoughts... what do you think?

Warmly,

George

[tinfoil_beret]

53. VAPOR VOTES

If a state certifies votes including vapor votes, votes for which the characteristics of the votes absolutely prevent equally protected verification of the voters' intents, the state's certification disqualifies the portion of vapor votes to total registered voters and thus disqualifies that portion of the state's electors. There's your Equal Protection case! This is the key to the solution and the key to the salvation of democracy! Such a ruling would force states to FIX the electoral process.

[geo]

73. agreed on going after the electoral votes

of any state where the electoral selection is so in question as to have serious concerns about the overall result. I like the point you raise about using equal protection to argue that inauditable machines are in violation of our rights. Others got to audit, why not the others? Great points. :) - G

[Truman01]

102. I took my time to answer this because I wanted to think....

Quoted from Geo:

"Would you readily know of case, code, Opinion that would indicate what "good chance" might mean? Good chance could mean anything from just enough encounted votes or disenfranchised people to make up the difference, to some burden that we prove another candidate is almost certain of a victory.

My concern is that it is difficult to discern how much damage fraud, voter supression, vote mahines, etc. did in each of these states. At least in Ohio there have been hearings recorded under oath, so we might be able to show x-number of votes from that, but what about the rampant fraud or computer mishaps?"

I'm going to address point two first: Absolutely the concern is that quantifying the amount of damage fraud has caused is by definition difficult and hidden because fraud is hidden. So the challenge is to convince a judge that there is enough evidence of fraud that he/she believes there is a preponderance of the evidence (51% or more believable) that the fraud presented would have changed the outcome of the election.

I'm sure that this seems much easier to us (believers) than it really is, which is why my posts have been on balance negative. I know that even a friendly judge has to make a decision that he/she feels will withstand appellate review. This is why I didn't understand the Florida lawsuit. Even if the lawsuit was wholly agreed to and the whole vote in the county was thrown out (extremely unlikely and not what was asked for) it would not have changed the result of the Florida election. So, the point, as far as the court is concerned, is moot. If true fraud is found it may later be a criminal matter, but the civil injunctive relief is unnecessary because there is no irreparable harm.

I know that is real hard to swallow for us true believers.

It is better in Ohio if we can get our ducks in a row before too much time passes. We have to PROVE not allege that fraud occurred, and prove how it occurred, and that the fraud was significant enough to change the results of our particular race. That is a very heavy burden. It was heavy for Gore in 2000 with no more than a 527 vote margin, imagine how heavy it is with a 136,000 or so margin.

Anyway, there is great hope that at some point we will show election fraud and the low level perpetrators will be criminally prosecuted and the process will undergo change. However, (and I know this isn't popular) I would be absolutely stunned if we are able to pull of a change of the election before certification.

I am not saying that we don't do everything in our power to do so. We work and fight until there is nothing that can be done. I'm just saying that we should not be too optimistic about changing the result on January 20th this coming year.

I'll prepare for the flames. I'm sorry but that is my opinion.

[geo]

119. excellent points.... and thanks for the info!

Hi Truman01,

Thanks for answering my burden of proof question. It sounds like time is not on our side for making a successful legal challenge.

I'm curious, what is your overall take on some of the ideas in this thread? Another post up-thread some mentions that SCOTUS is starting to take into account international law, and we just had a Ukraine court issue an injunction against certifying the results until the issues could be aired out. Also, there are numerous posts discussing the possibility of blocking electoral votes from states where the results are so seriously in question as to be unsure of the winner (there seems to be some Constitutional reference to blocking electors).

Btw, thanks again for the wonderful post! :)

Warmly,

George

[lawladyprof]

210. That's why I've been harping on the discriminatory mis-allocation of

voting machines. I believe we are trying to train our guns on too many targets (some of which are hard to prove and/or would take too long to prove and others of which are too hard to remedy in a way that will turn this election). The race-based adverse impact of mis-allocated machines equals an Equal Protection Clause violation leading to voter suppression and the remedy is clear. Give the disenfranchised voters an opportunity to vote (requires proof that your precinct had too few machines allocated to it and an affidavit stating you attempted to vote but were unable to do so because of the mis-allocation).

It's not that the other didn't happen, was egregious, or shouldn't be addressed but that we should pick our battles carefully at this point in time.

[geo]

45. just read through it again....

Hi Rainy,

Here is a clause from Bush v. Gore:

"The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964)."

Equal protection applies on the State level within which our "voting rights" are established. The State can't have rules or practices that deny equal protection through the process.

While they said to not use the decision as precident, it no doubt is and can be used in subsequent arguments if the logic equally applies. After rereading Bush v. Gore, I think the importance of equal protection in voting is made very clear.

Further thought? :) Very nice input, btw!

Warmly,

George

[lawladyprof]

29. If I remember rightly a pattern or practice is needed

and (on shakier) grounds here that the long waiting lines were a de facto (becoming de jure by virtue of the pattern or practice mentioned above) poll tax, throw in a pinch (well, more than a pinch--of adverse impact reasoning) then link the whole kit and kaboodle to the Equal Protection Clause (race b/c that's the only protected class under the Fourteenth Amendment that will work). You could analogize to desegregation cases where the school district drew attendance lines to create segregated schools (as opposed to pure de jure segregation where the state had a constitutional or statutory provision forbidding Blacks and Whites from attending school together. Maybe the lawyer pool needs to include some civil rights lawyers rather than strictly election law attorneys. NAACP anyone?

Subject line edited.

[mod mom]

32. we have BOE machine placement data

This has already caught on in Ohio but we are hoping for thousands of people to turn out for the Dec 4 FIGHT FOR DEMOCRACY Rally , and make our voices heard. There are teams working this angle. we have invited John Lewis, Barack Obama, John Conyers to voice their outrage on this matter.

[geo]

74. don't forget Jackson's Sunday deal.. :)

other thread has info... :) -G

[spoogly]

33. I think you are right on point.

You would end up using all approaches. Poll tax analogy, 14th, 15th Amendment, Voting Rights Act of 1965, etc.

I seem to remember cases where Equal Protection was used due to impact on race (no compelling state interest) even though there may have also been an impact on other classes. The impact on other classes would not apply the higher level of scrutiny, but the impact on race is not nullified simply because there is an adverse impact on other classes i.e. poor white voters, etc.

Do you have any recollection of this concept? I am probably having a flashback to law school on this, but sometimes I actually do remember things from that far back.

[spoogly]

34. I Think I answered my own question

U.S. Supreme Court
HUNTER v. UNDERWOOD, 471 U.S. 222 (1985)
471 U.S. 222
HUNTER ET AL. v. UNDERWOOD ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 84-76.

Argued February 26, 1985
Decided April 16, 1985


Justice REHNQUIST wrote:

"Citing Palmer v. Thompson, 403 U.S., at 224 , and Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 472 , n. 7 (1981) (plurality opinion), appellants make the further argument that the existence of a permissible motive for 182, namely, the disenfranchisement of poor <471 U.S. 222, 232> whites, trumps any proof of a parallel impermissible motive. Whether or not intentional disenfranchisement of poor whites would qualify as a "permissible motive" within the meaning of Palmer and Michael M., it is clear that where both impermissible racial motivation and racially discriminatory impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper analysis. Under the view that the Court of Appeals could properly take of the evidence, an additional purpose to discriminate against poor whites would not render nugatory the purpose to discriminate against all blacks, and it is beyond peradventure that the latter was a "but-for" motivation for the enactment of 182."

[lawladyprof]

37. You're right

"ut the impact on race is not nullified simply because there is an adverse impact on other classes i.e. poor white voters, etc."

I, too, was having law school flashbacks. LOL. Not an area I deal with much but I can sure see how the argument could be framed, generally. And the evidence, both testimonial and statistical, appears to be a slam-dunk.

Back to grading papers.

[geo]

75. Spoogly and LadyLawProf...

A special thanks to both of you for this input!!

I'm not even to having lsat flashbacks yet, so I must convey my extreme gratitude for your involvement in this thread. :)

Warmly,

George

[Truman01]

42. Equal protection does not need a class designation. . .

EP law does not need to be about race to be valid. Individual rights espectially state statutory rights like those of election laws create an actionable climate to trigger equal protection violations. From your name I gather you are a law professor, do you disagree with me on this?

[spoogly]

44. I believe you are correct. It is just that

the racial classification affects a suspect classification and subjects the action to a higher level of scrutiny. The state has to show a "compelling state interest" when a suspect classification is at issue.

But you are right that a racial classification is not a pre-requisite to an equal protection claim....and there are other claims than Equal Protection such as violations of state statute etc. that would certainly not need to implicate race.

Sorry to chime in out of turn. I think the law prof. is off grading papers according to the last post.

[Truman01]

62. I appreciate your input

I have handled several federal cases, and I was curious to find out if this particular brand of case had some necessity of class in it. I followed 2000 fairly closely as you might imagine. I really enjoyed this string. What did you think of the complaint filed by Bev in Florida? I'm sure some here think I'm poopooing unnecessarily but it seemed odd to me as I have said in a post or two.

[Carolab]

68. I, for one, do not understand why the filing in Florida was late

They had the evidence a full week in front of the deadline. Why was there any delay?

[Truman01]

79. I agree with you....

The judge will most likely reply that since they filed without the necessary paperwork, that could have been done within the timeframe with a mandamous request to compel delivery of the documents necessary. I'm not going to speculate, too many people get mad, and I don't know what the deal is I'm just guessing. But something stinks.

[geo]

100. I tend to agree myself...

I keep wondering why they didn't get at least something into the court before deadline, asking for leave to amend as new data came in. I still try to give Bev and BBV the benefit of the doubt. We've all seen them do some great things to keep the momentum up on this issue. :) -G

[geo]

78. chime away... please chime anytime.

:) - G

[geo]

51. I completely agree... NAACP? ACLU? Anyone?

Hi lawladyprof,

I enjoyed your post and it makes complete sense.

My concern is how to approach the issue of their involvement. Jesse Jackson recenetly flipped his position and is now active in addressing the voting issues. Perhaps we can start by writing him about encouraging the NAACP to get involved. Also, if you are in Ohio or another State where voter fraud, suppression, machine error seems to be significantly aimed at lower income and/or minority groups, and the results have even a snoballs chance of changing the outcome in your state, please fill out a case submission form at both the ACLU and NAACP.

For the ACLU submission form, you will likely have to hunt around your local ACLU website, or call to get submision information. They do take cases by phone I believe. Also, just a note, sometimes the ACLU takes forever to get back to you, but if enough of us voice concern and provide some of the arguments above, along with a summary of the evidence, we might start getting somewhere.

It's probably the same deal with NAACP as well.

Also, let's write Jesse Jackson's folks and see if he'll put in a call to the NAACP. That could be weighty under the circumstances, and only lends credibility to what Mr. Jackson is doing.

Just some thoughts... :)

Warmly,

George

[geo]

59. Better Info for ACLU on voting issues

Hi all,

On the main ACLU site they posted this (you have to click the "Voting Issues" link from the main page to get there):

"ACLU Continues the Fight for Voting Rights
The ACLU monitored polls nationally and is responding to incidents of voter intimidation, vote suppression or election foul-ups, including in Minnesota, Ohio, Rhode Island and Virginia, and in Florida. Voters with complaints are encouraged to call our toll-free voter hotline [phone]."

Let's give 'em a call, and make sure to ask how you can get follow-up from them to make sure your issues are being handled. :)

Warmly,

George

[Cowboy Joe2k]

183. All Humans must come together! every one who bleeds red!

"I am committed to helping Ohio deliver its electoral votes to the president." - Walden O'Dell, Diebold's CEO in a fundraising letter to Republicans, Fall 2003. O'Dell and other Diebold Senior Executives are Republican "Pioneers", which is the designation you get when you raise over $100,000. Brothers Bob and Todd Urosevich co-founded ES&S, another voting machine company, before Bob became President of Diebold Election Systems. His brother Todd is a Vice President of ES&S, the #2 vote machine maker, and is also a "Pioneer". According to campaign finance records at OpenSecrets.org, of the over $240,000 given by Diebold’s directors and chief officers to political campaigns since 1998, all has gone to Republican candidates or party funds. Is that partisan enough for you? Well, what about calling them unethical?

http://www.chuckherrin.com/HackthevoteFAQ.htm

The People with the paper ballots had the most rights as Voters. they could have their votes recounted if necessary. The voters that have the least rights were the ones that used the paperless ballots. the Diebold Employees or the "Super Voters" as I will call them from now on.

There is you class split.

Under the 14th amendment each states electorate must be proportionately reduced by the number of the "Disenfranchised"

The second option would be to call the registered voters who used the paperless machines back to the poles to vote for what would be their first time. ON PAPER BALLOTS.

All people Black and white Should stand up and restore Democracy. No matter who wins, we must restore democracy! Bush should be behind my second solution it would put an end to the dispute. and if there was no tampering, he will win, but you can not unify the country otherwise.

[mod mom]

31. Yes, finally in OHIO

Organizations in Ohio are finally looking into this aspect and with documentation. One personal example, I voted in OH precinct which slighty went for bush,included governor , no or short lines. In inner city, predominately black and overwhelmingly democratic 4-5 hour lines. This is the modern day poll tax. It's the placement of the machines that controlled the election, of course besides massive fraud, suppression ect.

[geo]

52. awesome... which organizations?

Hi mod mom,

Do you know which organizations are looking into this angle, and did you report to them as well? I'm sure they need witnesses on both sides of the suppression via machine reduction issue.

Thanks for writing, btw! :)

Warmly,

George

[coreystone]

35. How about the statistics and analysis of the ratio of every precinct...

in Ohio which reflects "number of registered voters" divided by the number of "voting machines"? Then correlate that ratio to the population of a wide range of "classes of voters" within each district.


?? :-) ??

[tinfoil_beret]

39. Aha! There's your argument for quantification of affected voters.

I considered a similar formula for putting a number on those affected. I only worry that the method might be nebulous as a legal argument.

[geo]

55. Any thoughts on who has ultimate control of the machines?

Hi all,

I like this formula as well, but it probably largely depends on who had ultimate control and knowledge over the placement of voting machines (even if that person or body later delegated it to a more local level). Does anyone have any info on who has ultimate control of vote machine resources? It should be Blackwell, correct? Is he not responsible for executing the elections?

Please wiegh in if you know or can find out.

Thanks for the post! :)

Warmly,

George

[coreystone]

60. More importantly, how would "any class of registered voters" be...

defined within a precinct? To prove "disenfranchisement" relative to the distribution of the voting machines, there would have to be irrefutable legal proof to ascertain the number of a given "class" within every "precinct".

How would or could this be done?

OR, would it be possible to declare "EVERY" registered voter within any given precinct, as being a "class" of "REGISTERED VOTERS"?? To prove that there are certain demographic classes within a precinct is much more difficult to prove than the discrimination of the entire set of registered voters!!

If this is not helpful...feel free to ignore!


:-)

[tinfoil_beret]

61. Exactly!

The discrimination is geographical!

[geo]

80. I'm not sure... anyone else?

Hi coreystone,

Nobody should be ignoring your posts! :)

I'm not sure how it would be broken down by any legal concept, but just from the hip, it seems that what we would be aiming to protect members of the overall registered voting pool from having their votes targeted by any kind of profiling. This profiling effort in Ohio at least, first of all, seems to be aimed at non-republican voters, specifically democrats. Secondly, they seem to be aimed primarily at poorer communities, with higher minority populations, and the more urbanized area of the State.

It seems that the best way of framing class if through the seemingly apparant targeting of communities that have a larger minority base, then you can factor in poor-white voters, and then urbanites in general, etc.

Anyone able to wiegh in with a better legal handle on the issue of defining class? :)

Thanks again for your posts!

Warmly,

George

[Cowboy Joe2k]

184. The Class Split is not black or white. the class split is the Paper.

"I am committed to helping Ohio deliver its electoral votes to the president." - Walden O'Dell, Diebold's CEO in a fundraising letter to Republicans, Fall 2003. O'Dell and other Diebold Senior Executives are Republican "Pioneers", which is the designation you get when you raise over $100,000. Brothers Bob and Todd Urosevich co-founded ES&S, another voting machine company, before Bob became President of Diebold Election Systems. His brother Todd is a Vice President of ES&S, the #2 vote machine maker, and is also a "Pioneer". According to campaign finance records at OpenSecrets.org, of the over $240,000 given by Diebold’s directors and chief officers to political campaigns since 1998, all has gone to Republican candidates or party funds. Is that partisan enough for you? Well, what about calling them unethical?

http://www.chuckherrin.com/HackthevoteFAQ.htm

The People with the paper ballots had the most rights as Voters. they could have their votes recounted if necessary. The voters that have the least rights were the ones that used the paperless ballots. the Diebold Employees or the "Super Voters" as I will call them from now on.

There is you class split.

Under the 14th amendment each states electorate must be proportionately reduced by the number of the "Disenfranchised"

The second option would be to call the registered voters who used the paperless machines back to the poles to vote for what would be their first time. ON PAPER BALLOTS.

All people Black and white Should stand up and restore Democracy. No matter who wins, we must restore democracy! Bush should be behind my second solution it would put an end to the dispute. and if there was no tampering, he will win, but you can not unify the country otherwise.

[lawladyprof]

71. Statistics, statistics, and damn lies.

In adverse impact employment discrimination, you do it by comparing the racial composition of your work force (supervisors, workers, what have you) to the racial composition of the available pool from which you will draw supervisors/workers. Plant Makin-Widgets has only 10% Hispanic workers but is in a neighborhood that is 90% Hispanic. Problems arise when only 12% of the neighborhood residents are qualified to become widget makers. However, here those issues don't seem to be present. Precinct Wait-Ten-Hours: 5000 registered voters (80% of whom are Black)--three voting machines. Precinct Wait-Ten-Minutes 5000 registered voters(20% of whom are Black)--ten voting machines. Voila (shake and bake). Now, of course, in real life the numbers get a bit googly. Precinct A--3000 registered voters, 70% of whom are Black--three voting machines (historic turnout for presidential elections?); Precinct B 6000 registered voters, 30% Black--eight voting machines (historic turnout for presidential elections?). Guess you'd have to go for number of voting machines per thousand registered voters (pick your unit of measure) taking into account previous voting patterns and also accounting for projections of voter turnout for this election (what kind of timeframe needed to allocate/re-allocate voting machines?). Given what I have been reading about the disparity in voting machine allocation/length of waits in minority precincts, it ought to be sure winner in spite of the need for fancy number crunching and finding the historical presidential election turnout data. In fact, I assumed the NAACP was doing something like this after 2000 to remedy these problems before 2004. Did they? Issue then turns on question of remedy--prospective or retrospective.

Not law professor (that would have been ladylawprof). But professor with a law degree + doctorate, as in lawladyprof--language down to the individual word level is SO important, don'tcha think?). And actually my expertise is in the First Amendment, especially the religion clauses, but any competent law professor (certainly mine would have), law school dean, or attorney ought to see this as clear as the thumb on his or her hand.

[geo]

82. Any statistitans reedy to look at racial profiling???

Hi lawladyprof,

Thank you indeed for the input! :)

The data does seem at least on the surface to indicate racial profiling to a large degree. Perhaps someone with a leaning towards math and numbers can break this down and see if they can isolate race as an independant variable in the placement of voting machines.

Whoever does this will do well to look at differences between the placement in 2000, the growth numbers Ohio (or other states) expected, and the shift in placement in relation thereto.

Great analysis all, keep it up! :)

Warmly,

George

[coreystone]

85. With all due respect, the subject is not "Employment Law"..but, ..

"untested" areas in "Constitutional Law". It would be most informative for you disclose the links to verify "Precinct Wait-Ten-Hours", "Precinct Wait-Ten-Minutes", "Precinct A", "Precinct B", and many of the other undocumented examples of voting trends. You, of course, realize that you continue to allude to your "black" undocumented trends. You sound so angry! :-)

Oh! By the way, I haven't restricted the "class" of voters as anything so precise as you have mentioned, but there certainly are possibilities of political affiliations in respect to the "perceived" subclasses of voters in many precincts in Ohio, as well as the rest of the country!

With DUE respect!

coreystone!

PS - I am not an attorney! My academic background is in Psychology and Elementary Education!

:-)

[geo]

89. an overlap in the situations...

Hi coreystone,

Thanks again for taking part in this thread!

I can appreciate the information presented in relation to employment law, because it roots itself in the same principles, laws and application that this case does.

Just want to make sure you know the other posts are far from off topic. :)

Warmly,

George

[lawladyprof]

91. Many times the law borrows principles/standards of proof

from one well developed area and applies them to a less well developed area. I don't know what statistical analyses are used in equal protection voting cases, but tried to analogize from the area I do know.

Precinct Wait-Ten-Hours and the others were hypotheticals.

Thinking that no one pushed a case like this after Florida in 2000 does make me angry, but I remain open to the fact that someone looked at it and said it couldn't be done (seem to remember hearings but no litigation).

[truehawk]

180. A resource you will find useful

http://fairplan.u31.infinology.net/

Precinct Level Demographic Maps

[Truman01]

41. I want to know what BEV's lawsuit was all about?

I read the complaint they filed in Florida, and I was VERY confused. It was a complaint against the election of a Board of Elections Supervisor. Some of the points they made were good, but they intentionally filed it ONE day after the deadline to file it and most importantly it would have had no effect on the presidential election even if they had won.

I am not banging on Bev, so don't flame me, I just wonder what this lawsuit was all about. It did nothing, and didn't seem to be aimed at doing anything except for possibly causing publicity or giving them a platform from which to make publicity.

Does anyone have any ideas??

:kick:

[geo]

56. I thought they were aiming to...

overturn all general election results in Volusia County. The day late made my heart sink as well, but maybe the judge will by into the argument that the defendant's directly caused the delay when they violated the freedom of information act. Hope that helps :) -G

[Truman01]

63. I could certainly be wrong, but I think

that the only matter this suit would affect, because of the way it was brought is this instant race. They brought it against this instant race because the Presidential race was by too big a margin to be affected by this county. So one has to ask, even if it did win, and did effect the presidential race marginally what are they trying to accomplish? It isn't fraud they are alleging.

[geo]

83. getting into court with at least something credible...

would allow them to possibly find more through discovery. Also, this takes the debate about certain voting practices into the court.

I'm not sure what their overall strategy is, but it does look like they have something to go with. Even if all it does is get rid of the bad element in one county, good job BBV. :)

Have you tried e-mailing BBV with this question?

Warmly,

George

[Carolab]

69. To me, it smacks of a "deal" having been made

That FFEC would be allowed to pursue a suit that would allow BBV to get "evidence" after the fact as long as the filing did not affect the election outcome...

[geo]

84. ouch....

is that the best post-mortum we could find? :) I hope there is more to it than just that. -G

[mulethree]

93. Vote Fraud - Volusia County On Lockdown - article by Bev

http://www.scoop.co.nz/mason/stories/HL0411/S00246.htm

BBV requested records

They were given fake copies

They found official, signed, original versions in the trash.

They found poll workers who could confirm that the totals on the fakes did not jive with the totals they signed off on at the polling places.

They found obstruction all over the place.

[Truman01]

99. That is certainly good for bbv's case

I just wonder why they didn't file in a timely manner and then argue that point. Their arguement would have been very solid. I don't mean to nit-pick, it just seems odd from a legal point of view.

[geo]

120. I keep wondering that myself...

- G

[IndyOp]

46. Any lawyers in the house?

Geo -

I am not a lawyer, but I have been corresponding via email with Ian Solomon (Associate Dean of Yale Law School) since his first article about the possibility of vote fraud was published.

If you could put some (many? all?) of the legal possibilities in one thread -- I could email him the thread and ask him to take a look. I thought I saw one this morning about reducing electors based on the number of counties per state using unverifiable voting machines and another about needing only one member of congress and one senator to contest the vote on January 6th... Help?

EQUAL PROTECTION ARGUMENT for Overturning Elections
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=79652&mesg_id=79652

Florida Litigation on Black Box Voting Issues
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=2746037

[tinfoil_beret]

48. That thread is here.

Re counties using unverifiable voting machines: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=77190&mesg_id=77190

[tinfoil_beret]

49. Also...

If I recall correctly, Section One of Article Two of the Constitution deals with Congress contesting an election.

[geo]

57. Here a go... thanks for the followup!

Hi IndyOp,

The two threads you posted should be good, and I can even narrow this post to the most concisely written summary of all our arguments to this point:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=79652&mesg_id=80111&page=

But still, if the Professor has the time to glance down the whole thread as well, that would be nice to.

Thanks again for the effort, and please do post any response to your e-mail back over here!

Warmly,

George

[tinfoil_beret]

105. Re Contesting the Vote

The other thread is http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=73567&mesg_id=73567

[geo]

121. cool... thanks for adding link. :)

- G

[brindis_desala]

54. Be careful

While I'm delighted that voter suppression finally seems to be of concern it is a separate issue from the recount. Should the Ohio election prove to have been a violation of equal protection, the repugs may simply agree and the Ohio electors would then be denied standing to vote for either candidate. It would certainly be a strike for black enfranchisement which is long overdue but it would obfuscate the bigger issue which is probable fraud . I'm not saying not to pursue this line, just be aware of the pitfalls.

[geo]

58. It will have to be weighed carefully, but....

I'm wondering if that is really that big a risk? If the Supreme Court would rule out any state that fudged its elections so severely as to leave the outcome in question it would serve an important purpose in our eleciton process.

First of all, it will enrage individual voters to the point that they actually start holding their elections folks accountable. These folsk will never again dare act so partisan.

Second, our system breaks down in razor thin close elections. The only time the system really works is when the margin is so significant it can't be tampered with. This will fix that problem to a large degree.

Just some thoughts... it may seem a little callous, but barring a constitutional amendment that gave us all very well protected voting rights (including extra provisions for auditing and access to records) this might be the way to go; throw whole State results out of the mix if the process is so obviously tainted.

We need to look at all the swing states if we do that. Anyone up on electoral math can weigh in on possible outcomes if this were the case.

Thanks for writing! :)

Warmly,

George

[Eric J in MN]

65. The 14th amendment was to protect blacks,

and they're the ones discriminated against the most in Ohio.

There were fewer voting machines per citizen in black neighborhoods than in white neighborhoods in Franklin County, Ohio, due to Republican Matt Damschroder diverting machines.

http://www.freepress.org/columns/display/3/2004/983
Franklin County Board of Elections Director Matt Damschroder is also the former Executive Director of the county’s Republican Party...

The Columbus Dispatch confirmed an Election Day Free Press story that far fewer voting machines were present in predominantly black Democratic inner-city voting wards than in the recent primary election and the 2000 presidential election, with their lighter turnouts. The reduced number of machines caused voters to wait up to seven hours and wait an average of approximately three hours. One Republican Central Committee member told the Free Press that Damschroder held back as many as 2000 machines and dispersed many of the other machines to affluent suburbs in Franklin County.

[coreystone]

70. Please refer to Post #60.……and beyond....

:-)

More importantly, how would "any class of registered voters" be...
defined within a precinct? To prove "disenfranchisement" relative to the distribution of the voting machines, there would have to be irrefutable legal proof to ascertain the number of a given "class" within every "precinct".

How would or could this be done?

OR, would it be possible to declare "EVERY" registered voter within any given precinct, as being a "class" of "REGISTERED VOTERS"?? To prove that there are certain demographic classes within a precinct is much more difficult to prove than the discrimination of the entire set of registered voters!!

If this is not helpful...feel free to ignore!

The registered voters of any given precinct are characterized by the past voting inclinations. The exit polls are weighted with the past voting trends of every precinct. This validates, or not, the accuracy of the “predictions” of the exit polls. Though, there may not be PRECISE numbers to define a “sub-class” of all registered voters in a given precinct, there are demographic indications of political affiliation, age, race, etc. Since these “sub-classes” cannot be legally defined to prove malfeasance in terms of the allotted “voting machines” for any given “voting precinct”, then the “class” of “disenfranchised” voters would then become the entire “voting district”. If number of registered voters were to be correlated to the number of voting machines, in a ratio which was beyond normal consideration, then there would certainly be some argument regarding “disenfranchisement”.

SO, where are the legal people???

:-)

[Eric J in MN]

77. The class is blacks

Blacks were disenfranchised by having too few voting machines in black neighborhoods.

[geo]

86. so with poor-whites, college students...

and urbanites in general it appears. Still, knowing that the primary adverse impact was on black voters should kick the scrutiny level up a notch under the equal protection clause. - G

[geo]

87. interesting analysis...

Hi and thanks for posting!

A little up-thread a few DU members who have law school under their belt have weighed in and added considerably to this thread. It was mentioned earlier that the racial aspect triggers a higher level of scrutiny when applying the equal protection clause of the 14th amendment, and there is case law posted that adverse impact on other groups doesn't steal the thunder there (i.e. poor-whites).

Thanks again for writing! :)

Warmly,

George

[lawladyprof]

88. Remedies-schmedies

Recount ain't gonna do the trick for this puppy. The issue is not what happened to the votes after they were cast, but the impediments to their being cast in the first place. Now, we are above my pay grade and it's supper time anyway.

[geo]

90. Enjoy your supper...

but please come back! Your posts have been insightful and are well appreciated. :)

I am starting to believe that as far as remedies go, all we can do is go after those electoral votes. Counting, recounting and post-mortem wouldn't hurt though and irregularities should be thoroughly litigated to discourage further attempts at skewing the vote.

Keep up the awesome posts (after dinner)! :)

Warmly,

George

[coreystone]

94. And, by the way...This is not "Employment Law 101"....

Bon apppetite!

:-)

[lawladyprof]

97. Please see (my) post #91-eom

Chicken and spanish rice--yum.

[coreystone]

98. No Flame wars! I totally disagree with your "LOGIC", and, LINKS!..

They were weren't there!!!

:-)

Perhaps, Another time!

Be well!

Good Night!

:-)

[geo]

122. play nice...

Hi coreystone,

I responded to your concern as well. The principles are shared. :)There is more on why elsewhere on the thread.

- G

[lawladyprof]

92. See BBC article re: Ukrainian election

"The IEOM gives two examples of suspiciously high turnout. Both cities are in eastern Ukraine - 96.3% turnout in Donetsk and 88.4% in Lugansk.

'Far fewer voters were turned away from polling stations due to inaccuracies in the voter list during the second round than in the first round, but once again there was a regional variation, with fewer voters being turned away in the east.'"

http://news.bbc.co.uk/1/hi/world/europe/4038409.stm

[Cowboy Joe2k]

95. what about 106% in wyoming as stated in another DU thread.

here is the link to the stats:

http://soswy.state.wy.us/election/profile.htm

here is the link to the DU thread I am refering to:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=80022&mesg_id=80022

[geo]

127. thanks for the links... just posted in that thread... maybe we...

can block their electors if that throws their results into the seriously questionable bin. I just posted in the other thread that someone should call the S.O.S.'s office and see what their take is on this. Someone in the other thread suggested it might be same day registration. I didn't think they had same day in Wyoming (maybe writer is mixing it up with Wisconsin), but that is worth checking out too.

Thanks again for the links! :) -G

[geo]

125. wow... many similar problems

but at least we didn't have to hand over absentee ballots to our boss. Thanks for the article! That gives us an idea what the Ukraine court used as a basis for the injunction. :) I should probably see if I can find a copy of their decision (in english, preferably). - G

[AnIndependentTexan]

101. I do support fairness

[geo]

128. equity too. ;)

- G

[spoogly]

103. Information On Columbus Precincts Machine Allocations

I don't know if anyone saw this thread come through on Thanksgiving Day I believe. It seemed to have some information that may be useful to this thread and I didn't see anyone bring it up here yet.

The first link is from the article that analyses the number of voting machines in various Columbus precincts. The second is a link to the DU thread containing all of the various articles by this author.

It seems to me that one could add racial breakdown of the voters in the various precincts and come up with a good arguement that the allocation of voting machines had an adverse impact on race. Of course I don't think we can be certain until a racial breakdown of the precincts is added to these figures.

Here are the links:

http://web.northnet.org/minstrel/columbus.htm

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x79467

[lawladyprof]

104. Bingo, Spoogly

And I believe that if you applied that kind of analysis to Ohio overall (and possibly Florida as well) you'd be able to show massive discrimination/disenfranchisement. So massive that it could not be unintentional--well at least to the more likely than not standard of proof <small grin>.

But my problem is still not believing someone with more expertise in this area (someone in a position to actually do something about it) than I hasn't looked at it from this perspective and said, "Not there; not do-able."

[spoogly]

106. I have had that thought too.

I have to think that people who are a lot smarter than me and a lot more involved have looked at this.

[geo]

130. who knows...

they might be so deep in it their view is very micro. :) Maybe they just need our inspiration to get the ball rolling. -G

[geo]

129. awesome! anyone have time to assemble?

Hi Spoogly,

Awesome addition to this thread! Let's see if someone has time to find the racial breakdowns and assemble the data in a spreadsheet. If nobody else has time I will take a stab at it later today or tomorrow. :) I could really use some help with it though... need to spend some time on homework. :) :)

Thanks again for the links!

Warmly,

George

[Laelth]

107. Initial thoughts ...

Can the election be overturned on equal protection grounds? Probably not. Here's why:

The SCOTUS has never ruled (to my knowledge) that time equals money. While it is true that courts often award interest in addition to money damages when money damages are appropriate (implying that time equals money), the court has not said, explicitly, that an expenditure of time that resulted from some state law or state action constituted a "tax." Thus, making people wait in line for 8 hours to vote does not constitute a "poll tax" that would be actionable under the 26th Amendment. Furthermore, most states have an official "if you're in line when the polls close, you can still vote" policy. If this is the case in Ohio, for example, then the state can plausibly argue that it didn't deny anyone's right to vote. It just made some people wait a long time to do it. Making people wait, however, is not forbidden by either the Constitution or by any state's law, as far as I know.

Even if the Court were to explicitly hold that time equals money, the appropriate remedy for those who had to wait would be monetary (and not an overturning of the election). Perhaps an attorney could file a class action lawsuit on equal protection grounds showing that inner-city people had to wait while people in the suburbs and rural areas did not. If time equals money, then those persons who had to wait would be equitably entitled to monetary compensation for their wait, but that in no way suggests that the results of the election should be overturned.

In order to get the result this thread suggests is possible, Plaintiffs would have to show that some peoples' right to vote had been denied (i.e. that people were prevented from voting by some state law or state action). While it's reasonable to assume that some people got fed up with the long lines and left without voting, that's virtually impossible to prove and even harder to quantify. Plus, there's no way to know how those people would have voted had they stayed in line.

No, my gut instinct tells me that the challenge contemplated by this thread will fall on deaf ears in the courts, but I'll keep thinking about it. I hope all the other legally inclined minds here do the same.

-Laelth

[lawladyprof]

113. I wouldn't, for the reasons cited, go for the poll tax challenge, but

would go for an equitable (non-monetary) remedy, a la Brown v. Board of Education (and that would hinge on the disenfranchisement being massive). I'd ask for reapportionment of the state's electors to reflect the percentage voting for each candidate. I know state law gives all electors to the winner (both Florida and Ohio), but here state law would fall to the violation of the federal Constitution. Don't know what that would do to the Electoral College vote. You might have to look for another state were this occurred. One thing for sure, the Republicans could not, in my opinion, go the other way--arguing that there was disenfranchisment of White voters due to the disparate allocation of voting machines, in any state they won.

You could argue the intent of the Framers of the 26th was to prevent massive Black disenfranchisement, such as occurred in 2004--skirting the time = money argument which isn't necessary for a pure Equal Protection argument. Here, systematic deprivation of right under state law (the right to vote).

And you might well see just enough buyer's remorse on the part of the Supremes to make this happen. I'm thinking of a certain female justice who wanted to retire but hasn't for four long years. Would she want Kerry or Bush to appoint her replacement?

[Laelth]

126. O'Connor might be willing to vote against Bush this time.

I agree, but on what grounds? Can Plaintiff show the massive disenfranchisement you suggest? I think that would be exceedingly difficult to prove, especially if the state has a policy of allowing those in line to vote even after the polls have closed.

In Florida in 2000, Gore had a statutory right under Florida law to a recount. He demanded recounts in several heavily Democratic counties. Bush argued, on Equal protection grounds, that it diluted votes in other counties to have recounts in only selected counties. As such, the Florida Supremes fashioned a remedy in which the entire state was ordered to do a recount. The US Supremes merely stopped that state-wide recount.

Here we have an entirely different scenario. This thread presumes that some massive harm has been done to minority voters that demands an equitable remedy. And I don't deny that the alleged harm was done. I merely think it would be hard to prove and quantify. In addition, there's no state law that's being challenged from what I can tell, merely a policy (or a number of policies) of the Secretary of State of Ohio designed (either de facto or de jure) to disenfranchise minority voters. Even if the harm alleged could be shown, the likely remedy would be for the court to order a re-working of state election procedures to prevent the same harm from happening again, just as when schools were de-segregated the Court's remedy was pro-active, affecting the future but not designed to either undo injustices done in the past or compensate victims of previous injustice.

Ultimately, I'd love to see someone bring the suit. We have nothing to lose. I simply don't find it likely that the court will give us what we want through this kind of challenge.

-Laelth


Edit:Laelth--typos corrected.

[geo]

135. LawLadyProf & Laelth... you're awesome!

Hi LawLadyProf & Laelth,

I very much enjoyed these posts and want to thanks both of you for taking the time. :)

It sounds like for any state which we want to bring an action like this, we would have to prove more than the fact that voting was more difficult, but that it in fact caused people to not have a vote. Is that an accurate assessment?

Now it seems we need to dive into those hearings they took in Ohio and see if we can't start trying to quantify the damage somewhat. Maybe if anyone reading knows if we have a thread that addresses the hearings, they could post a link for us.

Thanks again for writing! :)

Warmly,

George

[Laelth]

142. There are two established ways to ...

... challenge state laws or actions that infringe upon the rights of certain persons to vote.

The first way is to show that the right to vote has been denied for an impermissable reason. If the plaintiff can show that his or her right to vote has been denied for an impermissable (unconstitutional) reason, then the court will protect that right at strict scrutiny. For example, the 15th Amendment says that the right to vote can't be denied on the basis of race or previous condition of servitude. The 19th Amendment says that the right to vote can't be denied on the basis of sex. The 24th Amendment has been interpreted to mean that the right to vote can't be denied on the basis of wealth (the Amendment explicitly prohibits poll taxes). The 26th Amendment says the right to vote can't be denied to citizens on the basis of age, provided those citizens are 18 years of age or older. In order to bring a challenge on one of these grounds, it seems, plaintiff must be able to show that he or she was denied the right to vote for one of these impermissable reasons.

In Ohio in 2004 it seems we have a case where some voters were unduly burdened in the exercise of their right to vote on the de facto basis of race--i.e. long lines in minority districts created by actions of the Secretary of State of Ohio. In order to make a successful challenge, I would think, plaintiff would have to show more. Plaintiff would have to show that the long lines effectively denied some persons the right to vote, and this argument would be stronger if a smoking gun memo could be found or if someone would testify that the intent of these state acts was to impermissably disenfranchise voters. Even if this could be shown, I suspect the Court's remedy would entail reform of the state's election policies as opposed to overturning the last election, much like the Court ended segregation of schools by prohibiting any future segregation. Of course, if the Court were so inclined, it could fashion any remedy it felt was appropriate (as the Florida Supremes did in 2000).

The second way is to show that some state law or action violates the principle of "one person, one vote." This line of case law is responsible for insuring that congressional districts in a state each have roughly the same population, so that each person's vote carries the same weight. Here, it's not necessary to show that a plaintiff has been denied the right to vote, only that the plaintiff's vote was worth less or carried less weight than the votes of others. While this line of cases is useful in that it shows the Court will protect voting rights even when the right to vote has not been denied, I don't see that we now have a fact pattern that matches any of the existing case law. Minority voters in Ohio, for example, are not suggesting that their votes count less. They're suggesting that they're unduly burdened in the exercise of their right to vote. On the other hand, in States that use a mix of paper-trail and non-paper-trail voting machines, the non-paper-trail voters might be able to argue that their votes are worth less because they can't be recounted. That's a possible argument, but it's uncharted territory. To my knowledge, that issue has not been addressed by the Court.

In conclusion, it seems that in the case of Ohio, yes, we would want to show that some people had been impermissably denied the right to vote on the basis of some state law or action. Note that states can permissably deny citizens the right to vote for a host of reasons (improper registration, felony convictions, failure to meet residency requirements). Ultimately, a state can deny citizens the right to vote for any reason except the ones the Court has ruled are impermissable. As such, the burden on the plaintiff in such a case would be high.

What I think we need is a smoking gun memo or some testimony showing intent on the part of the state to disenfranchise certain voters. Then we might be able to shame the state legislatures into behaving like decent people. At the very least we might dissuade Secretaries of State from employing blatantly racist tactics in the future. Though I don't see how the contemplated lawsuits could hurt us, I also find it unlikely that we could get the current election overturned in the courts.

Hope that helps.

-Laelth

[lawladyprof]

144. I agree but would go after the adverse impact route

which obviates the need to show intent (borrowing from employment law I know). If the disparity is great enough, then a showing of intent (memo, etc.) would not be required. And if the disparity is as great as I think it might be then you have a built-in PR angle for the media which cuts against the soreloserman meme.

[neohippie]

241. Wasn't there an election law lawyer who went on the radio

and said that the paper ballots used for opti-scan machines in poorer precincts in Ohio were on a lighter weight paper than in other counties, so that they would spoil when scanned?

I remember seeing some posts about this lawyer from Ohio, he also said that the Kerry lawyer's didn't know where or how to look for fraud.

I believe he is also the person who originally suggested that there were less machines in the those precincts as well.

Does anyone else recall his name or where this information came from? Also, wouldn't that be evidence of a plan to disenfrachise voters?

[geo]

244. have you been able to find a link to this info, btw? :)

:) -G

[neohippie]

249. Thanks to Eloriel's compendium

I found links to both the less machines and the weighted paper complaints from an election law attorney in Ohio

Updates 11/15, 2 am

less voting machines in Democratic precincts

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x50508



Weighted paper and wrong pen to mark ballots

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=203&topic_id=50481

[geo]

250. awesome!

And Elorial... wherever you are... thanks for putting that thread together! :) -G

[Higans]

253. wouldn't matter if it was a vapor vote.

All that matters now is that we fix this by 06. that means audits, and paper ballots. Standardized voting. Acountable Government. voting on a computer is worthless. it just gives them the power to use your number as a voter for what ever they want.

[Cowboy Joe2k]

109. Kick

[Wordie]

110. Yes!!!! Issue to use is HAND recounts, which CAN'T be done on machines w/

no papertrail, can they? So, voters who used the non-papertrail machines to vote were not given equal protection under the law in the event of a recount being requested, or required by law. In a sense, these machines, or those who contracted for them, prevented the opportunity for any meaningful recount to take place. HOW can anyone recount by hand something that is stored electronically. So machines without a papertrail would be in violation of the law in any state that allows recounts,wouldn't they?

So, imho, a lawsuit should be filed in a state that had a non-papertrail voting system, AND had laws allowing either candidates or other interested parties to request a hand recount (or maybe ANY sort of recount, for that matter).

I've posted this over and over again, but I just don't think anyone has heard what I've said. Maybe I just don't know how to explain it well enough. *sigh*

[shraby]

111. North Carolina is an absolute mess with their vote

count. They had so many problems they don't even know what the count should be. Plus there was a Diebold technician messing with the machines at one precinct without supervision.

[Wordie]

124. I think they are already re-voting throughout the state, so might not be

best place for a test case of the equal protection issues with non-papertrail machines. Although it sure does make the problems really obvious. I think the best place for a test case would be in a large battleground state.

The justification for an equal protection case based on the inability to do hand recounts of e-votes is that it denies the voter the opportunity to have his/her vote recounted as other voters have. One could even make the case that there is NO WAY to PROVE a vote even HAPPENED, and that puts the e-voter in a different class of voters than the other voters, as well. Anywhere there is no papertrail, those voters are being treated differently than the other voters, whose votes can be verified.

[chomskysright]

145. NC is not revoting (yet)

nope: NC is not revoting yet. I have an Election Protest meeting with the Buncombe county BOE on Monday , 6:30 p.m., ,at the BOE, in Asheville. everyone's welcome

marsha hammond, phd: [e-mail]

[Laelth]

132. Hmm ...

Of course, the Constitution does not grant any one the right to a hand recount. Most states that have recount provisions allow them under only specific circumstances, but you're right to suggest that in a state like North Carolina, which uses mixed technology, there may be an equal protection issue for the statewide races in which some people could get a hand recount while others could not (because no paper trail exists to do the recount). But don't you think the court's remedy in such a situation would to be to allow no one to have a recount since a fair recount could not be achieved?

I hear your argument, and I don't want to dissuade you. I merely fear that you're barking up the wrong tree. But please, if you're an attorney in a state that uses some paper-trail machines and some non-paper-trail machines and you can find a willing plaintiff, I'd love to see the suit brought. Something needs to be done to get us some publicity and a solution to these widespread voting problems.

-Laelth

[geo]

136. possibly a plus side to Laelth's point... & a follow up question...

Hi all,

I see the logic in what Laelth is saying, but I have a followup question: even if this blocks a recount entirely, could the prayer for relief include an injunction on the state in question to not use inauditable machines while those recount provisions are still in tact? (Well, I guess it COULD, but would it be a ideal?)

If something like that could be brought up in every state we could find such an issue, we could take a shot at riding ourselves of the auditless machines.

Any thoughts?

Warmly,

George

[Wordie]

153. I'm not an attorney, but that's kinda what I envisioned. It would KILL the

e-voting machines, or at least at minimum force the states to enact legislation to REQUIRE papertrails from now on, or perhaps something at the federal level would have to be done. If Laelth is correct about the courts being likely to block all recounts entirely if this was brought before them, then timing would be everything in approaching it this way. It would have to be done after all the recounts that the dems want were already complete, and outcomes pretty well established, because we wouldn't want an undermining of all the hard work people are doing. Of course, perhaps the courts would come to some other conclusion. Could they order a new vote? This seems unlikely to me, considering the 2000 Supreme Court decision. I really don't know enough to understand how the courts would actually look at this, but just logically, it is clear to me that these systems create a situation where votes are not equal.

[tinfoil_beret]

112. KICK

[smartone]

117. my take

ok if the equal protection clause and by extention the Voting Rights Act are part of the rules of elections in US. then break these voting rules and to merely dismiss them is essentially changing the rules of an election AFTER the election has taken place which is strictly forbidden in US Constitution. (Bush used this in 2000.)

[tinfoil_beret]

123. Whoa!

They didn't tell people they wanted to give minority democratic neighborhoods only one machine for 300 to 1200 people and up!

Also, people in more than one state tried to fight it, including New Jersey, who lost (http://www.nytimes.com/2004/10/19/nyregion/19voting.html?ex=1101704400&en=44df960d49c0b17a&ei=5070), and California, who almost one (allowing paper ballots for people who didn't trust the machines).

What happens when they go to recount Ohio, and the counters wonder how they can count vapor? The Supreme Court told Al Gore that he couldn't recount the votes unless he would count ALL of the votes, because Gore wanted to use different standards to count the precincts in question. You simply cannot count vapor from machines with unaudited source code and no paper trails using the same standards that you use to count original paper ballots. Is that one rule for the Republicans and another rule for the little people? THAT is a violation of equal protection! And they thrust it upon us whether we wanted it or not.

[tinfoil_beret]

118. What would the demographics show?

I realize you started this thread to try to gather legal information, but I had a thought which I wonder if you might help me explore.

Would analysis of polling method to demographics show anything useful?

Here's where I'm going with this. I was wondering if the states might allocate polling method using the racial demographics to decide where to load up with DREs.

I decided to look at NJ as an example. NJ only has 21 counties, and it has started using DRE in a good portion of the counties. I also grew up in NJ, so I know a little about it, though I was pretty much a homebody.

According to the 2000 census, 2003 estimate, New Jersey has a 13.6% black population, just above the national average of 12.3% Compare that with Georgia, a red state that uses all vapor machines, which has a 28.3% black population, over twice the national average. That's red and all vapor!

Here's the data in CSV format:

"Margin","County","Method","Voters","Population","White","Black","Other"
6,"Atlantic","DRE",138684,252552,0.684,0.176,0.14
4,"Bergen","DRE",451112,884118,0.784,0.053,0.163
7,"Burlington","DRE",239591,423394,0.784,0.151,0.065
25,"Camden","Lever",261992,508932,0.709,0.181,0.11
15,"Cape May","Lever",64346,102326,0.916,0.051,0.033
6,"Cumberland","Lever",76577,146438,0.659,0.202,0.139
41,"Essex","Lever",385806,793633,0.445,0.412,0.143
5,"Gloucester","DRE",146879,254673,0.871,0.091,0.038
35,"Hudson","Lever",220287,608975,0.556,0.135,0.309
-21,"Hunterdon","DRE",70144,121989,0.939,0.022,0.039
23,"Mercer","Lever",189594,350761,0.685,0.198,0.117
13,"Middlesex","DRE",392870,750162,0.684,0.091,0.225
-11,"Monmouth","Lever",379338,615301,0.844,0.081,0.075
-17,"Morris","DRE",292195,470212,0.872,0.028,0.1
-21,"Ocean","DRE",325612,510916,0.93,0.03,0.04
11,"Passaic","Lever",203798,489049,0.623,0.132,0.245
-7,"Salem","DRE",40179,64285,0.812,0.148,0.04
-5,"Somerset","DRE",152866,297490,0.793,0.075,0.132
-29,"Sussex","DRE",76510,144166,0.957,0.01,0.033
18,"Union","DRE",258696,522541,0.655,0.208,0.137
-23,"Warren","Marksense/Optical",58123,102437,0.945,0.019,0.04

The first number in each row shows the margin in the county, with positive for blue and negative for red. The three ratios at the end of each row show the ratio to the total population of white, black and other respectively.

The population data comes from the 2000 census. The voter counts come from a voter registration database. Unfortunately the database doesn't break down between white and black voters, but it does for OTHER minorities. Lovely. Thus the ratios only show us ratios of total population, not just adults and not registered voters or voter turnout.

Of 12 counties with vapor machines:

3 of 12 (25%) had 1%-9% blacks and others, resulting in 3 red
3 of 12 (25%) had 10-19% blacks and others, resulting in 1 blue & 2 red
3 of 12 (25%) had 20-29% blacks and others, resulting in 2 blue & 1 red
3 of 12 (25%) had 30% or more blacks and others, resulting in 2 blue & 1 red

That looks evenly spread out until you consider that 6 of 12 (50%) had 20% or more minority populations, and 9 of 12 (75%) had 10% or more. But the counties with the largest minority populations (Essex, Hudson, Passaic) did not use vapor machines.

The three vapor-vote counties with the highest minority ratios are Atlantic, Middlesex and Union.

Atlantic has 68.4% white, 17.6% black, 12.2% hispanic and 5% asian, and it went blue with a 6% margin.

Middlesex has 68.4% white, 9.1% black, 13.9% asian and 13.6% hispanic, and it went blue with a 13% margin. (I guess the Asians really liked Kerry.)

Union has 65.5% white (the lowest of the three), 20.8% black (the highest of the three) and 19.7% hispanic (the highest of the three), and it went RED with an 18% margin. HUH?

Which precints in Union do you suppose had the fewest vapor machines? Hmmm?

Also, 7 of 12 (58%) of vapor-vote counties went red. However, 13 of 21 (62%) NJ counties went blue. I guess the Republican counties got the majority of the vapor machines. Curious, eh? This is a BLUE state.

Let's flip the coin.

5 of 21 (24%) counties have 1-9% minority, with 3 vapor counties
3 of 21 (14%) counties have 10-19% minority, with 3 vapor counties
5 of 21 (24%) counties have 20-29% minority, with 3 vapor counties
8 of 21 (38%) counties have 30% or more minority, with 3 vapor counties

Thus, a greater ratio of counties with less than 20% minority used vapor machines than counties with over 20% minority.

What can we glean from this data, other than that the white folk used the vapor machines and gave the shaft to the brothers?

[tinfoil_beret]

137. Correction

Union was blue! I can't see straight.

[geo]

138. It might be useful if we can successfully...

show that there is a definite pattern of giving minority voters machines that are inauditable and another class, let's say rich white folks, machines that are auditable. We might be on a limb, but it is definitely worth the analysis to see if their is a pattern. We would want to use actual voter (or registered voter) demographics though, which may be a little more difficult to find. Census data from 2000 may not only have changed, but it doesn't reflect voter registration patterns.

This info is definitely welcome in this thread, but maybe it would better develop in a thread of its own, and then you can link it back over here. :)

Warmly,

George

[Wordie]

131. One class: regular voters (can be verified); different class: e-voters

(can't be verified). That's how the equal protection could be applied!

[Laelth]

134. E-voters a protected class?

The Court looks at the following factors in determining whether or not a group is a protected class:

1. historically disadvantaged
2. immutable trait
3. political weakness in the current structure
4. old and archaic stereotypes

African-Americans are a protected class, and their fundamental rights are protected at strict scrutiny, because they meet all four of these tests for a protected class. It seems to me that e-voters only marginally fall under the third factor (and that can't be shown conclusively at this time). It seems highly unlikely to me that e-voters could be established as a suspect class.

-Lilith

[geo]

139. the rubric helps... :)

I was wondering what gives a class its protected status. Thanks! - G

[lawladyprof]

140. I agree race is the key

And I still maintain that it isn't the kind of machines (no knowing what we'll find) but the number--much, much easier to tie to disenfranchisement (think the segregated schools of the 30's and 40's). The data has to be fairly easy to obtain. OK, Ohio DU'ers, racial breakdown of randomly selected districts (say Cuyahoga County) and their phone numbers or email addresses of precinct supervisor or county board of elections. Do the Cobb people have access to this data (how many voting machines per precinct?)? Let's see if this puppy has wings (ROTFL). Even the tiniest bit of real data would help.

[Wordie]

150. Not certain those are the only criteria. We need to MAKE this argument re:

the application of equal protection. I am no expert on this, but here is some of what said about equal protection:
<snip>
How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas Co., 113 the Court summarized one version of the rules still prevailing. ''1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.'' Especially because of the emphasis upon the necessity for total arbitrariness, utter irrationality, and the fact that the Court will strain to conceive of a set of facts that will justify the classification, the test is extremely lenient and, assuming the existence of a constitutionally permissible goal, no classification will ever be upset. But, contemporaneously with this test, the Court also pronounced another lenient standard which did leave to the courts a judgmental role. In this test, ''the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'' 114 Use of the latter standard did in fact result in some invalidations. 115 "
<unsnip>

So, from the above, particularly the "more lenient standard" test,it appears that there might be an argument to be made about e-voting violating the test, as the rights of the different voters, e-voters and non-e-voters, create an arbitrary difference, and are not treated alike.

<snip>
It is thought 149 that the ''fundamental right'' theory had its origins in Skinner v. Oklahoma ex rel. Williamson, 150 in which the Court subjected to ''strict scrutiny'' a state statute providing for compulsory sterilization of habitual criminals, such scrutiny being thought necessary because the law affected ''one of the basic civil rights.'' In the apportionment decisions, Chief Justice Warren observed that ''since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.'' 151 A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility 152 and the phrase ''compelling state interest'' was used several times in Justice Brennan's opinion in Shapiro v. Thompson. 153 Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases. 154

While no opinion of the Court attempted to delineate the process by which certain ''fundamental'' rights were differentiated from others, 155 it was evident from the cases that the right to vote, 156 the right of interstate travel, 157 the right to be free of wealth distinctions in the criminal process, 158 and the right of procreation 159 were at least some of those interests that triggered active review when de jure or de facto official distinctions were made with respect to them. This branch of active review the Court also sought to rationalize and restrict in Rodriguez, 160 which involved both a claim of de facto wealth classifications being suspect and a claim that education was a fundamental interest so that affording less of it to people because they were poor activated the compelling state interest standard. The Court readily agreed that education was an important value in our society. ''But the importance of a service performed by the State does not determine whether it must be re garded as fundamental for purposes of examination under the Equal Protection Clause. . . . he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.'' 161 A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its undoubted importance. <unsnip>

So, reading all this, it appears the equal protection could be applied without necessarily invoking the issue of race (although I tend to think that race WAS a factor in the problems we have heard about, it is a harder thing to prove). Again, I am not an attorney, nor do I have any legal background, but in reading here and there this afternoon on equal protection, it appears that although the underlying purpose of the amendment may have been to prevent inequalities under the law based on race, there is no specific language limiting it to only racial issues. So, again, there is a definite inequality created by having a recountable vote, and having one that can only by counted electronically. Attorneys out there, am I correct in this? Or reaching, perhaps? Or, is this a really good way to eliminated e-voting without papertrails?

[Wordie]

151. Whoops! I left the link off of the above. It's FindLaw and here it is:

http://caselaw.lp.findlaw.com/data/constitution/amendment14/19.html#3

[Laelth]

155. Several comments:

First, the "lenient standard" you refer to in part 1 actually hurts our case. That's also called the "rational basis" test, under which all the state has to show is that they had a legitimate state interest that is served by its action or law and that the act or law in question is rationally related to achieving a legitimate state end. So, for example, the state could argue that it couldn't afford to upgrade all the machines in the state. Therefore, it upgraded some of them, but not all. Saving money is a legitimate state interest, and the state's act (putting e-voting machines in some counties, but not all) is rationally related to the state's goal of remaining solvent. Since the state's burden is low, in this example, it's unlikely that the court would interfere. It would probably allow the state's action or law to stand and deny relief to the plaintiff.

Equal protection challenges are best understood as violations of "a fundamental right not to be discriminated against on the basis of a suspect proxy." Laws discriminate all the time. The courts allow this. However, the court gets nervous and will scrutinize state laws and acts only when the due process rights of a suspect class are in jeopardy. So far, the court has established the following suspect classes: race (strict scrutiny), gender (middle scrutiny), mental disability (middle scrutiny), and sexual preference (scrutiny level not firmly established, see Lawrence v. Texas). You would absolutely need to establish e-voters as a suspect class in order to get judicial review of a state law or act on equal protection grounds. I don't see that happening. On the other hand, we might be able to show that the right of African Americans to vote was unduly infringed by an act of the Secretary of State of Ohio (in that he limited their voting machines to create long lines). Generally, in order to make this charge stick under equal protection law, the plaintiff will have to show discriminatory intent.

On the other hand, the right to vote is a fundamental, substantive due process right (once a state grants that right, as all 50 states have for Presidential elections), and the courts protect this right at strict scrutiny. But, in order to get this kind of protection, you've got to be able to show that someone was impermissibly (unconstitutionally) denied the right to vote by a state law or act. Can we do that? I have my doubts.

Still, I'm hoping someone brings these lawsuits. It couldn't hurt.

-Laelth

[Wordie]

159. Are you sure that's what it says? It appears to me that the second lenient

standard makes it *easier* to bring suit under equal protection standards, as it says, <snip> ''the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'' <unsnip>

I'm interpreting this to mean that "all persons similarly circumstanced" would mean ALL voters, and that this means they should ALL be given the opportunity to have verifiable votes.

And the argument you anticipated the state making, regarding being able to only upgrade some machines, could be easily refuted: why not upgrade them to provide a papertrail, especially if the state was only able to afford to upgrade some anyway?

And, all of that first part is modified by later paragraphs, such as this: <snip>"In the apportionment decisions, Chief Justice Warren observed that ''since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.'' ... A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility and the phrase ''compelling state interest'' was used several times in Justice Brennan's opinion in Shapiro v. Thompson. Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases."

As my understanding of the law is minimal, I could have misinterpreted the FindLaw article. Still, isn't the fact that these votes cannot be verified the EQUIVALENT of not having been cast at all? Could anyone PROVE in court that the votes had been cast as the machine said they were, or that they had been cast at all? That is the *moral* equivalent of denying someone the right to vote, and it seems to me the case could be made that its a legal equivalent as well, couldn't it? I believe there are standards of evidence: do the non-papertrail e-votes (I should say, "vapor votes") meet those standards? If the other side could not even PROVE in court that the votes existed, wouldn't that mean they would lose their arguments to keep the machines? Wouldn't then those supposed votes have to be thrown out? What would happen then?

I'm just full of questions, aren't I? :) Sorry.

[Laelth]

160. Am I sure I read it correctly?

Yeah, pretty sure.

You seem to have read the "low scrutiny" test to mean that it's easier to bring suit under low scrutiny. But, it's always equally easy to bring a lawsuit. All you have to do is file the complaint. It's the same degree of difficulty every time. No, I'm fairly certain that at "low scrutiny" the Court will stay out of the state's business 99 times out of 100. If "low scrutiny" is the test, the court almost always allows the state's law or action to stand without judicial interference. At heightened scrutiny, on the other hand, there's a good chance that the Court might do something to make the state change its law or its policies.

And you're right in your second paragraph to suggest that the votes aren't equal. But so what? The citizens of the state elected their legislators. Their legislators chose this unequal system. The courts will not change that unless someone can show that a protected Constitutional right has been violated by the state's action. Understand that the state never treats everyone equally, and it's not required to do so by the Constitution. Sixteen-year-olds can drive in Georgia, for example. Fourteen-year-olds can not. Is that unequal? Yes. Is that state law unconstitutional? No.

In order to win an equal protection case, we must be able to show that a constitutionally protected right has been violated. So far, we can't even show a single person who was impermissibly denied the right to vote in this past election. Plus, it's highly unlikely that the Court would rule that an electronic vote does not constitute a "real" vote. The Constitution does not guarantee paper ballots or a paper trail. The Court is likely to conclude that the state legislators, as the duly elected representatives of their citizens, are free to choose whatever voting system that they feel is appropriate. The Court prefers not to second guess the elected representatives of the people, and it will only do so when a protected Constitutional right has been violated.

Hope that helps. :)

-Laelth

[Wordie]

163. I'll say it again: I read first part of the "lenient standard" paragraph

as essentially the same as what you said, that it would be difficult to pursue an equal protection argument, BUT the statement in the beginning of the paragraph was modified later by the second lenient standard, which gave the courts more latitude to decide. That was my point.

Secondly, I don't think anything was said about "low scrutiny" either in the article or by me. What I did do is quote Justice Warren, in his observation that stricter scruitiny was required with *certain* rights, particularly voting rights, because (I'm paraphrasing him here) the right to vote forms the foundation for most other rights. In other words, those suits that sought to protect voting rights would be looked at more favorably by the court. I know I am not stating that in legal terms, so please forgive. But his meaning (of "strict scruitiny" and his intention in applying the standard) is clear from the example he gave, from the context.

[geo]

218. great post.. thanks for weighing in! ... & on adverse impact I'll...

Hi Laelth,

I'm going to spend some time later today crunching the data we have regarding adverse impact on black voters in Ohio. I'll update as soon as I can process all that has been sent my way on this issue.

Thanks again for all the thoughtful input! :)

Warmly,

George

[Cowboy Joe2k]

156. I don't think Race should be a factor. the simple fact that a large

group of voters can not have their votes re-counted, and a different group of voters can have their votes recounted should be enough to violate the equal protection act. I would assert that if you can recount one precinct, but not another, where is the Equality???? does it really matter if they are black or white? rich or poor? male or female? I believe it is simply one group vs. another. IE one group that can have their votes verified by hand, and one group that can not.

[lawladyprof]

141. Spoogly where are you?

Tried to send you a private message but couldn't.

[spoogly]

143. Sorry, I'll be back on tonight later

I have the baby today while mom is catching up on some things she needed to get to.

Just checking in quickly with the thread now (nap time), but will be back on later tonight.

[lawladyprof]

146. George, do you have the EC count? What result if Ohio & FL electors split?

in proportion to Bush-Kerry results in these two states.

[lawladyprof]

147. Deeds not words

Anyone from Ohio (the Ohio subforum in states and countries?) who can get the racial composition of say Cuyhoga County precincts? Then, where could we get the information regarding voting machine allocation? With a few numbers and a bit of lining up and number crunching, we could all (people on this thread) email Keith Olbermann.

[lawladyprof]

149. One possible place to go with questions

As in, is any group exploring bringing class action litigation on behalf of disenfranchised African American Ohio and/or Florida voters on the grounds of adverse impact arising from allocation of voting machines. Could ask him/her to comment on this thread.

The publisher of The Black Commentator--
[e-mail]

[Pooka Fey]

152. kick

[pat_k]

154. Writ of Mandamus ??

I’m not a lawyer so I may be way off base, but it seems to me that there are many ways to approach this. For example, what about application for a writ of mandamus?

From http://www.lectlaw.com/def2/m079.htm (emphasis mine):

This writ was introduced to prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Mandamus will not lie where the law has given another specific remedy.

Here’s my shot at arguments that might be used to seek a writ that shifts the burden of proof to the state:

Part I: Gap in the current law and remedy required

(1) The law governing the contest of an election in the State of X fails to provide a remedy if the party contesting the election successfully establishes a reasonable doubt that the result is correct, but fails to prove that the results are incorrect.

Under current law, the party contesting the official results is called upon to prove the results to be incorrect. There is a presumption that the results are correct and the burden of proof is on the party contesting the results.

(2) Justice and the preservation of our government demand that we have confidence in our elections. If a party contesting an election establishes doubt that the results of an election are correct, steps must be taken to eliminate the doubt.

The power and legitimacy our government and its elected officials must rest on “the solid basis of THE CONSENT OF THE PEOPLE.” (Federalist 22) The aim of our election law is to ensure that our representatives obtain our consent in open, fair, and lawful elections that accurately measure our will.

If there is reasonable doubt that the results of an election correctly reflect the will of the people, that election must NOT be upheld as a measure of the peoples consent. If there is doubt about the results of an election, it is likely that there will be corrosive doubt about the legitimacy of authority conferred by it if it is upheld despite the doubts.

(3) In the event that reasonable doubts about an election are established, the burden must be on the state to comply with the actions deemed necessary to eliminate the doubt. Assuming the election is administered professionally and election processes are sufficiently transparent, it should be fairly easy to eliminate doubts.

Elections are imperfect measures of the people’s will. Human or machine error can be introduced by imperfect systems for recording or tabulating the votes. Voters may not be afforded an equal opportunity to exercise their right to vote due to failures in administration.

Legal proceedings that are intended to resolve a contest or remedy problems can result in error. There are four possible outcomes to any legal proceeding that demands evaluation of election results for the purpose of upholding or striking down those results:

Correct Decision: Strike down results that are incorrect.

Correct Decision: Uphold results that are correct.

Type 1 Error: Strike down results that are correct.

Type II Error: Uphold results that are incorrect.

To be in accord with our founding principle, the law must minimize Type II Errors (that is, the governing laws need to minimize the chances of upholding an incorrect result.) To achieve this, a "presumption of incorrect results" is required and the burden is therefore shifted to the state to prove the results to be correct.

Part II: There is reasonable doubt that the election results reported by the State of X reflect the will of the voters.

(1) The voting systems and practices employed by election officials in the conduct of this election are so clearly flawed that the results are wide open to corruption by systematic vote suppression, data manipulation, human and machine error, and consequently, willful fraud. The only certain result is that we can have NO confidence in how accurately they gauge the will of the electorate.

Evaluation of the nature of the problems discovered to date makes it clear that these problems have implications that reach far beyond this or that specific instance. We are learning that the software used to record and tabulate votes is seriously flawed, lacks basic internal audits and security protections, and produces results that are prone to undetectable corruption through error or deliberate tampering.

In addition to the nature of the problems associated with recording and tabulating the vote, there is evidence that voters were not afforded an equal opportunity to exercise their right to vote. Those in African American and poorer communities faced poll-tax lines (time is money) and other intolerable and discriminatory barriers to qualifying to vote, casting their vote, and having their votes counted.

(2) Given (1) any presumption of accurate results is invalid. The addition or subtraction of votes from an untrustworthy initial total is not a valid method to remove doubt that the results are an accurate reflection of the will of the electorate. With the reported results in doubt, discovery of isolated problems can do nothing but add to that doubt.

(3) The systems and processes implemented by the election officials in State X make it impossible to remove the doubt about the results with a standard recount as specified under current statute. Only a comprehensive audit has the potential to remove the doubt

Part III: Application for Writ of Mandamus

Having established doubt that the election results correctly reflect the will of the voters in the State of X, and

Having established that the current law fails to provide remedy in this circumstance,

Justice and good government demand that the State of X undertake and comply with any actions required to remove the doubt.

Given the nature of the problems, only a comprehensive audit has the potential to remove the doubt.

We seek this writ to call upon the State of X to subject its election to a comprehensive audit. The aim of the audit we seek is to prove beyond a reasonable doubt whether or not the systems used to record and tabulate votes, the allocation of resources, and the administrative processes employed in the conduct of this election resulted in 1) violations that render the election unlawful (discrimination, fraudulent votes); 2) correctable machine or human errors; 3) vulnerabilities that make undetectable tampering or corruption possible…. <[[some specification of acceptable investigating authority, timeframe for compliance, and scope, etc.>]]

If the state fails to provide the access and records required to conduct the required audit, or if the independent audit fails to prove, beyond a reasonable doubt that the results accurately reflect the will of the voters, then …. <[[some specification of further remedy to address the possible outcomes. For example, if it is proven that the processes made the election vulnerable to undetectable tampering or corruption, the results must be thrown out entirely. The only remedy in that case would be to hold a new election that eliminated the vulnerability.>]]

----------------

Next Task

If this exercise has yielded something of value – i.e., to get some real legal minds thinking about feasibility, problems, etc -- the next task would be to draft an application for a writ that strikes down the results of the election if the election failed to ensure that all voters, regardless of gender, age, race, socio-economic state, partisan status. absentee status, military status… were afforded an equal opportunity to exercise their right to vote, which includes equal opportunity to qualify/register, cast their vote, and have the vote counted.

The gap in the law:
No remedy if discrimination is found, but the voters subjected to the discrimination cannot prove that the election result would be different if there had been no discrimination.

That is, the notion that when the results declare a winner by a large margin, discrimination and other problems are "outside the zone of litigation."

If you accept the notion that a large margin of victory puts the election "outside the zone of litigation," then you accept the notion that such a state is completely free to discriminate with no risk of consequence. This is an absurd position.

Writ to demand the election be struck down as unlawfully conducted and contrary to American values. It is then on the State of X to figure out what it needs to do to conduct a fair and open election.

No matter what the margin of victory, the results of a discriminatory election are unacceptable. We cannot continue to tolerate the intolerable. We cannot continue to tolerate the toleration of the intolerable.

[Cowboy Joe2k]

157. Kick

[IndyOp]

158. Kick

:kick:

[Wordie]

161. Kick

[spoogly]

162. I just read Bush v. Gore again and...

I am not sure that our analysis of the need to find a "suspect classification" has been correct as applied to the right to vote.

If you read BvG and the Harper Case cited in the opinion, it sure starts to look like voting rights are treated differently and warrant higher scrutiny of some sort even if a suspect classification is not implicated.

I know that BvG said it wasn't binding, blah, blah....

But it is the same court now as it was then...and the citation of the Harper case is an indication of a higher level of scrutiny, without needing to show invidious discrimination against a suspect classification.

Here is a link to BvG:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-949

Look at the Per Curiam decision. The second paragraph of "B" where the Court said:


"The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U. S. 533, 555 (1964)."

Interestingly, Harper was one of the old poll tax cases. The Harper Court cited the Reynolds decision that was also cited in the BvG case.

The Harper Court also said this:

Long ago in Yick Wo v. Hopkins, 118 U.S. 356, 370 , the Court referred to "the political franchise of voting" as a "fundamental political right, because preservative of all rights." Recently in Reynolds v. Sims, 377 U.S. 533, 561 -562, we said, "Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." There we were considering charges that voters in one part of the State had greater representation per person in the State Legislature than voters in another part of the State. We concluded:


"A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln's vision of `government of the people, by the people, for the people.' The Equal Protection Clause <383 U.S. 663, 668> demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races." Id., at 568.

[Wordie]

164. Could the issue be forced by someone requesting a hand recount, and

because that is simply impossible with vapor votes, the requestor could take the issue to the courts on an equal protection basis? What would happen if it worked? Would the votes have to be thrown out for the entire state? ...the entire election????? I just don't know what the outcome might be.

[Wordie]

165. btw, you obviously spent some time and effort on this. Thank you. n/t

[Laelth]

166. Absolutely.

The right to vote is fundamental to ordered liberty and is protected at strict scrutiny. No need to find a suspect class. But who's arguing that someone's right to vote has been taken away impermissably? The facts don't justify that argument. As far as we know, it didn't happen, and, therefore it would be useless to bring a suit on that basis. Let me quote from my post, above:

If the plaintiff can show that his or her right to vote has been denied for an impermissible (unconstitutional) reason, then the court will protect that right at strict scrutiny. For example, the 15th Amendment says that the right to vote can't be denied on the basis of race or previous condition of servitude. The 19th Amendment says that the right to vote can't be denied on the basis of sex. The 24th Amendment has been interpreted to mean that the right to vote can't be denied on the basis of wealth (the Amendment explicitly prohibits poll taxes). The 26th Amendment says the right to vote can't be denied to citizens on the basis of age, provided those citizens are 18 years of age or older. In order to bring a challenge on one of these grounds, it seems, plaintiff must be able to show that he or she was denied the right to vote for one of these impermissable reasons.

The facts of election 2004 more readily lend themselves to an equal protection argument. It's not that people were impermissibly denied the right to vote in 2004, what happened was that the methods of voting and the burdens placed on voters were different from county to county within a given state. In order to get heightened scrutiny on an equal protection challenge (and have a chance to win), we need to show that some state law or act adversely affected a suspect class.

Sure, the right to vote is protected at strict scrutiny, all by itself. But was anyone impermissibly disenfranchised? Was anyone who should have been able to vote not allowed to vote? If not, then we must look elsewhere for a constitutional challenge, and the chances for success will be different.

Hope that makes sense. :)

-Laelth

[Wordie]

167. How was equal protection applied in BvG by Bush lawyers?

Because if they used this as part of their argument, and that argument was successful, then there may be a lesson there. Was your interpretation of these issues, that requires a "impermissable disenfranchisement" the one they used? Or, were the standards more lenient than the ones you believe should be applied?

Also, it seems to me that the state law that adversely affects the disadvantaged voters is the one that authorizes the use of the machines with not also requiring auditability. Who KNOWS what the true vote tallies are, if there is absolutely no way to recount.

[Laelth]

170. If I remember correctly ...

... in Bush v. Gore the SCOTUS ruled that the state-wide recount ordered by the Florida Supremes violated equal protection because there was no state-wide, uniform method of determining a legal vote. The legislative standard was "clear intent of the voter," but Bush argued that without some definition of what that meant (merely a dimple, one detached chad corner, or two, or a completely removed chad?), then voters' ballots in different counties would be subject to different standards and that some voters' equal protection rights would be violated (some counties' votes would be worth more than others).

And it's correct to say that this case did not involve a suspect class. Had there been a suspect class argument, Bush would have gotten heightened scrutiny and would have had a better chance of winning the case. Instead, he made an equal protection argument that did not allege that the rights of a suspect class had been violated. As such, it was a low scrutiny case. In order for a state act or state law to survive low scrutiny review, all the state has to show is a legitimate state interest and a rational relation between the state act or law and the accomplishment of that legitimate state interest (also called the rational basis test). In Bush v. Gore, you'll find that the SCOTUS ruled that the state's law (as defined by the Florida Supremes) was arbitrary, meaning that there was no rational relation between the state's law and the accomplishment of a legitimate state goal (or interest). In other words, Bush won at low scrutiny. 99 times out of 100, the plaintiff loses at low scrutiny. Bush v. Gore is an exception.

Does that mean that an attorney can not bring a low scrutiny equal protection case? No. We are (for the moment) guaranteed access to the courts and can bring any suit we want. The question is, will we win? A plaintiff has a better chance of winning at heightened scrutiny than at low scrutiny. Bush won at low scrutiny because the majority wanted him to win the election. You can tell from reading the dissents that the majority's ruling in Bush v. Gore was an affront to traditional constitutional law and that Bush probably should have lost.

-Laelth

[Cowboy Joe2k]

169. Any one who has used a Paperless Machine has been

Disenfranchised.

By the mere fact that they have not been afforded equal protection. It is the Simple fact that you can not recount the vote on a non-paper machine. The class is those that voted using paperless machines that have been Disenfranchised. www.blackboxvoting.org has outlined Several ways that Paperless e-machines could be tampered with.

The Classes are divided between the people who had a right to a paper ballot which would be re countable, and the people who did not. The 14th Amendment states Equal rights.

Stop trying to play the Race Card. it will get you no ware. The Class included in the Factual Disenfranchisement Is much bigger then that. It must not only consist of the Minority Races, We must band together as one Race, The Human Race! We must draw the line between the Human race and the Paperless non-re-countable-non-secure machines.

[Laelth]

172. As a citizen of the US ...

... I agree with you. I live in GA where we have all e-vote machines with no paper trail. I don't trust them as far as I can throw them. I feel like I have been disenfranchised.

However, as someone who knows how the US court system works, I can assure you that a complaint about the validity of election results produced by electronic voting machines is likely to fail. The courts hate to second-guess state legislatures. If the legislature of the state of GA thinks these machines are fair and are a valid way to vote, then why should the court rule that the machines, themselves, violate the Constitution? The Constitution only guarantees you the right to vote in the way your state legislature deems proper. The Constitution does not guarantee either a paper trail or the right to a recount. I appreciate your passion, but I don't think it's likely that an argument about the "fairness" of the machines can win in court.

An equal protection challenge, on the other hand, arguing that a state act or law violated the rights of a suspect (protected) class, might be the best chance we have to actually win in court. You can call that "playing the race card" if you like, though I'd prefer that you didn't. All I'm saying is that this is the best chance we have to get the courts to do something about this fraudulent election.

-Laelth

[Cowboy Joe2k]

174. I'm saying that you were denied equal rights. No such thing as

Separate but equal. one class of people, the class that used Paperless ballots can not have their votes recounted due to the nature of the machines. people who used machines that have a paper trail can have their votes re-counted and hence have more rights then the other group.

This is the 14th amendment we are talking here. Separate is not equal.

If Kerry does not Jump on this then I question weather he wanted to win in the first place.

P.S. sence when were humans not concidered a "protected race"?

[Laelth]

177. I still have faith that Kerry has not given up.

I'm not giving up on him until I'm sure he's given up on me.

Keep the faith!

-Laelth

[Cowboy Joe2k]

182. This is the Class Split that we need to be arguing.

"I am committed to helping Ohio deliver its electoral votes to the president." - Walden O'Dell, Diebold's CEO in a fundraising letter to Republicans, Fall 2003. O'Dell and other Diebold Senior Executives are Republican "Pioneers", which is the designation you get when you raise over $100,000. Brothers Bob and Todd Urosevich co-founded ES&S, another voting machine company, before Bob became President of Diebold Election Systems. His brother Todd is a Vice President of ES&S, the #2 vote machine maker, and is also a "Pioneer". According to campaign finance records at OpenSecrets.org, of the over $240,000 given by Diebold’s directors and chief officers to political campaigns since 1998, all has gone to Republican candidates or party funds. Is that partisan enough for you? Well, what about calling them unethical?

http://www.chuckherrin.com/HackthevoteFAQ.htm

The People with the paper ballots had the most rights as Voters. they could have their votes recounted if necessary. The voters that have the least rights were the ones that used the paperless ballots. the Diebold Employees or the "Super Voters" as I will call them from now on.

There is you class split.

Under the 14th amendment each states electorate must be proportionately reduced by the number of the "Disenfranchised"

The second option would be to call the registered voters who used the paperless machines back to the poles to vote for what would be their first time. ON PAPER BALLOTS.

All people Black and white Should stand up and restore Democracy. No matter who wins, we must restore democracy! Bush should be behind my second solution it would put an end to the dispute. and if there was no tampering, he will win, but you can not unify the country otherwise.

[Wordie]

189. Could suits be brought in each state w/ "vapor voting," then?

I think in BvG one of the Justices commented on what constituted a legal vote, and while I don't recall the exact wording, it very clearly referred to a *physical* vote, that someone could examine for the voter's intent. Could a claim be made, therefore, that the vapor votes were not legal votes and therefore could/should not be counted, based on this statement in BvG? If this claim was made in several *state* courts, rather than at the federal level, do you think it would have a better chance of success?

It seems to me that the issue of vapor voting is *such* a serious threat that, if the data were to be presented in court, that the system could not stand up to judicial scruitiny (using "scruitiny" in the layman's sense here), I'm not suggesting to bring claims of fraud, because those are so much harder to prove, but just a presentation of all the data on the vulnerability of the machines, the ease with which a person could modify the tallies (it was demonstrated that it could take as little as 3 minutes), along with all the evidence of problems that actually *did* occur with these machines. And, the point could easily be made that we can't really KNOW the results of any election in which they are used because all we have, at the end of the voting process, really, is the word of the manufacturer that the machines do what they were supposed to. You see, it seems to me, that the users/manufacturers of these machines cannot PROVE that votes were even cast or recorded at all. Can they? Perhaps I am just naive in thinking that ought to mean something.

What I am talking about isn't just about Kerry, although I was surely a Kerry supporter. It's about the safety and reliability of our voting system. Maybe it is just too late already.

[spoogly]

171. What you are saying makes sense

I am just not sure they have to be "not allowed" to vote for there to be an issue. Being treated differently in certain areas in a material and perhaps calculated way may be an Equal Protection violation...at least after reading Bush v. Gore...which did not require a suspect classification, but simply looked at people's votes being counted differently or not being recounted while the votes of others within the state were recounted (or were proposed to be). I would think that significant impediments to the "right to vote" could also constitute an Equal Protection violation.

Of course the water gets really muddy because Bush v. Gore deviated from the long line of cases that required a suspect classification and proof of intentional discrimination. The other cases also would not have inferred intent solely from different impact on the "suspect" class; although they seem to say it can be a factor or an indicator together with other evidence of intent.

What is absolutely clear though is that I win the longest run-on sentence of the night award.

[NVMojo]

173. you've made a very good point here.

Las Vegas is the largest population base in the state of Nevada, primarily democrat and about half minority. This was the part of the state that would have been disenfranchised with faulty machines, etc. No paper trail, etc....

I think you are on to something. I hope an attorney jumps on this. I just sent this thread to a civil rights attorney. I will let you know if I hear anything of use.

[alittlelark]

175. Good response thread geo... 4 (now 5) respondants are over 1000

(where did they come from)?



Hi Geo,
I've been searching for some good smelling, yet useless red herring - do you have any?

Equal protection issues will take yeaers - how many countries will we have invaded by then? How many civilian 'casualties'.... and how far will we have gone in terms of 'civil liberties'?

Certain people's posts make me cringe.

Hi Geo,
Why are you still here?

Warmly,
alittlelark

[Cowboy Joe2k]

176. This will take till the electoral votes are cast if it is to hold.

If Kerry does not Jump on this, then I suspect he did not want to win in the first place. If the Electorate is lessened Proponent to the Disenfranchised voters, which is the remedy that the 14th amendment calls for, Then Kerry will win.

After the Electoral votes are cast, if Kerry has not jumped on it then the whole concept can only be studied in text books as we struggle to fix the voting systems for the next one. If no other good comes from this idea, I hope that we fix it for next time. To not do so would be showing up at the grave site of Democracy and leaving flowers.

Seems to me that not many people care about the Constitution any more. God I hope we can fix the election system.

[alittlelark]

178. OK... - did you post to the right response?

[KaliTracy]

179. don't know if this will help

This is just a link to something I posted last night about my experience here in West Chester, Ohio.... (he Rallied here, right down the street to 50,000 followers....)

I was so mad the day after the election because of the machine disparity that I emailed lots of outlets (including the Ohio ACLU) with a version of this letter... not that it did much good... but I think you might be on to something!

tracy

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=80851&mesg_id=82110

[Pooka Fey]

181. I'm posting this about massive voting machine breakdowns

in predominantly black neighborhoods in Cayahuga county in Ohio. Sorry if this was already posted here:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=84186&mesg_id=84186

I think the work going on in this thread is amazing. Thanks, DU lawyers!

[Cowboy Joe2k]

185. If not for this election, Restore Democracy for the Next.

Kerry and Bush should work to acomplish that Goal.

Kick this. So there.

[Wordie]

186. kick

[lawladyprof]

187. And here comes the data for Franklin County, Ohio

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x84787

[lawladyprof]

188. A possible remedy that well might affect Ohio results

I've been thinking a lot about a remedy. Splitting the
electors is one, but last night I thought about a limited
revote. Those voters in minority precincts where, according
to the evidence, too few machines had been allocated (say
relative to the county as whole, relative to White
precincts)would be allowed a late vote if they signed an affidavit
that they had been line on election day and left because of long
delays (due to the small number of voting machines). The
Republicans would scream that you'd have fraud (deliciously
ironic if you could show that it was a Republican who
allocated the machines), but the beauty of this is that it
is closely tied to the harm done. A narrowly tailored remedy indeed.

One argument might be that they could cast provisional ballots. Question--could cast provisional ballots only after polls closed? That doesn't address many of those harmed by the misallocation of machines. They stood in line for four, five, six hours and then left. They didn't know that if they stayed in line an additional hour or two they would get to cast provisional ballots. I seem to remember that provisional ballot decision coming down late. And in any case, it is fundmentally unfair (and a result of machine misallocation) to make people wait X hours when their fellow voters who are White only have to wait Y minutes or an hour or two at most.

Race may not play well in the court of public opinion but it is the best shot in the courts because of precedent and as Laelth said the reluctance of the courts to overturn legislative and administrative decisions and policies.

[Wordie]

192. Thank you for this wonderful idea! Do you know who to send it to in OH?

This is not something that will resolve the e-vote problem, which is a larger issue, but it would really help addressing the problem of people not being able to vote at all.

And what do you think of the question I addressed to Laelth, that if the question regarding the legality of the e-votes could not be properly addressed at the federal level, would it be good to go at it on the state level, where the bad decisions were made in the first place?

ALSO, I'm hoping that all the legally-oriented people on this thread realize that although related, the problem of vapor votes (which I believe is defined as those electronic votes without a papertrail) is really VERY different than the problems addressed in BvG. The votes in BvG were physcal things that could be reviewed. Vapor votes are in a way, not even real votes. Just 1s and 0s in a computer someplace. I'm just concerned that many attorneys just don't realize that the issue is so different than the voting disputes of the past.

Vapor votes certainly, however, don't meet what BvG defined as a "legal" vote (again, this is how I, as a non-legal person, understand it).

[Wordie]

190. Kicking

[lawladyprof]

191. Kick

[Wordie]

193. Everyone in this thread should also read this one about Yale Law School

Dean's comments on voting problems:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=83551&mesg_id=83551

[Cowboy Joe2k]

194. If Kerry was selected by Die Bold the Republicans would Scream

If you want to restore voter confidence, we need standardized Voter Verifiable Paper Trails. This means that We get to see the results of our vote on Paper after we touch the screen. We need Audits. We can not stand by and get locked in the lobby as the Diebold cooperation decides our next president for us.

Republicans Should support this effort so that they may have faith that their vote was counted. The would be screaming left and right if the "Super Voters" had decided to chose Kerry. They will yell and scream about this in 08 if Arnold looses to Hillery.

Can't they See What has Happened? are they Blind? or just brain washed by MSM?

I'm taking to the streets with a sign to day. one last kick before I go. Don't let them Gag Democracy so that it can not cry out as they twist the knife in its back.

[lawladyprof]

198. We will have easier going if we can put Kerry in the WH

Because we won't have to be fighting rear guard actions re: judges and all other manner of foolishness and perfidy.

I really like the phrase vapor voting.

[geo]

219. agree completely...

:) - G

[Wordie]

195. Kick

[floridadem30]

196. kick

[Wordie]

197. Kick

[geo]

199. Checking in...

Hi all,

It seems like we are making wonderful progress with this thread, and I have recieved a few really good PMs with info to check out. I just want to let you all know I haven't died or given up on the task of sifting through and crunching together the data sent my way. :) I should be back to it later tonight or tomorrow at the latest (I have had to catch up on some homework... how dare these professors!) I have been really excited to see the developments on this thread.

The posts have been awesome! Keep up the great work!! :) :)

Warmly,

George

[lawladyprof]

201. Hey, George, if we give it we have to grade it. LOL eom

[geo]

202. I know, I know. ;)

:) - G

[Cowboy Joe2k]

200. Kick this.

FOr the Children. Don't let them gag democracy.

[Wordie]

203. Yet another kick

[Cowboy Joe2k]

204. I'll Kick this till 06 if I have to. And if the Machines Are not Verifiable

by then, I'll Kick it till 08. I will never let you silence the truth.

[Cowboy Joe2k]

206. Is it legal for them to steal our right to vote? is that what the US has

Come to? Election reform! that should be you number one priority! if you Don't get it done, by 06 Then democracy is dead. We need some one to spearhead Election Reform. We the People of the United States Elect you to that task John Kerry. Fix the Machines by 06. Voter verifiable Paper trails with Random Auditing. nonpartisan Auditing. Any discrepancies found, the investigation depends. There must be real consequences for election fraud, and a system put into place capable of detecting it.

Kick this if you want the right to vote.

[Cowboy Joe2k]

207. Can they just Abscond with our right to vote and put us back to

Sleep? Is Democracy really Dead??

Your to afraid to clam it is and that is why you are trying as hard as you can to bury this post But We The people Will Press this issue all the way into 08 if we half to.

We Need Election Reform. We need it now. not after 06 when we loose again because you cheated. and not After 08 when your Supreme court attempts to get you in on the argument that We are Pitching right now.

Kick this as if your life depended on it becuase it quite posibly does.

[northamericancitizen]

208. Kick and keep on going nt

[Mike W.]

209. Lawyer here--I'll take a stab at it...

First and foremost: everything that I'm about to write does not, is not and should not be construed by anyone as legal advice on the subject. I offer this only as my personal opinion as a mere citizen and if you need legal advice regarding a 14th Amendment issue then you should seek the advice of a competent Civil Rights attorney.

Having said that, here's the basic issue that would need to be resolved: were any so-called 'protected classes' denied their right to vote on the basis of their being a member of the protected class of persons in question ? Were African-Americans or other racial or ethnic minorities denied their vote because the State, intentionally or not, systematically denied them the equal protection of the law.

In most cases this will be a State Constitutional issue because, for one--even though the U.S. Supreme Court did not give it precedential value--in Bush v. Gore the Supreme Court said that Article II of the U.S. Constitution did not provide the People with an actual right to vote for the President of the United States, The Court acknowledged that States can and do provide a right to vote in State Constitutions.

BUUUUT, there ain't nothin' from keeping some enterprising lawyer like James Baker from appealing a State Supreme Court ruling to the U.S. Supreme Court for relief. Sine Die.

Mr. Hippie :beer:

[lawladyprof]

211. Hey, Mike W. Thanks for the reminder

I got so carried away with the arguments and all that I forgot.

The content of this message is not and should not be construed as legal advice on the subject. This is a personal opinion and anyone needing legal advice regarding a 14th Amendment issue should seek the advice of a competent civil rights attorney.

I know/take your point regarding the state giving the right to vote (right to an education, right to state employment, etc.), but once given then the state may not violate the federal constitution in depriving you of that right (see, for example Cleveland v. Loudermill). So as I see it a federal case from the git-go with plaintiffs as individuals who allege that their right to vote was denied because of the discriminatory (adverse impact--thus obviating the need to prove intent) mis-allocation of voting machines.

[Cowboy Joe2k]

213. The Protected Race is the Human Race. It's Us against the

Machine. Any Human who voted on a Paperless Ballot Machine, your are the Lower Class. You are the Class that Had your right to vote Stolen from you. other people get to have their vote counted and recounted if need be, Not you my friend, and if you the People of the Unites State ever want to have your right to vote, We Must Fix the Voting System by 06. This should be your number one priority.

This is the truth that they don't want you to know. The truth that If you don't fix this election system They will Steal your Vote from you in the Next Election. They will Steal your Children's Votes. They Will Steal your Grand Children's votes.

All under the assumption that Different can be Equal.

"I have a dream,

that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right down in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today!"

Dr. Martin L. King Jr.

http://www.toptags.com/aama/voices/speeches/speech1.htm

Please to not let them Separate us between red and blue. Do not let them separate us between Black and White. Make them Separate us Between Man and Machine.

[Cowboy Joe2k]

214. A Kick For Our Right to Vote!

I feel the People Rising up to take control of the Machine, and the Wizard is Running Scared now Boy.

http://blog.democrats.com/node/901

[geo]

216. Thanks for the post!

Hi Mike W.,

I'll add the disclaimer higher up-thread so we can all say it is there. Glad you noticed.

I'm starting to go through some of the data folks have sent my way from Ohio, etc. Already I can see we have an excellent shot at showing minorities (blacks in particular) were denied equal protection in at least Ohio.

Thank you for writing, btw! :) Please keep in touch!

Warmly,

George

[Cowboy Joe2k]

221. George, this is not about Minority's it is about the Majority!!!

All Humans Must Band to together and take our Planet Back. The Minority is the Human Race.

By Denying us the right to Vote there saying that all we are qualified for is to run the Cash Register at Wall Mart. We the People Must take back our rights from the Machines that have stolen them from us.

All Colors of humans were disenfranchised, Any one who Used a Paperless Ballot. Do not Focus on one Specific Skin Color or Hair Color, Sex or wealth Bracket. Focus on the Machines. It is them that we are fighting this war against. If you divide us, we have no chance at all.

[geo]

223. I couldn't agree more...

Hi Cowboy Joe2k,

You raise some great points, and philosophically, I couldn;t agree more. I wish more people saw it like you did. Perhaps you are still just a little ahead of your time. :)

No doubt our civil rights are under attack; an by no accident I am certain. Any believer of the system gets damaged in a rotten election; not just members of one race or another. Too bad it's difficult to win that as a case in court.

I'm sure you can tell that the reason why we chose this argument is because it is the one the courts are most likely to listen too. Fortunatly, there is also case law on the books (I believe it is referenced up-thread somewhat) that adverse impact on a protected class is not negatied by adverse impact on another class (i.e. poor whites).

Anyhow, I just wanted to let you know I share your idealistic sentiment. Also want to thank you for helping keep this kicked while I catch up with things. :) :) Many thanks!

Warmly,

George

[lawladyprof]

212. Kick

N/T

[geo]

215. kick

kick

[Cowboy Joe2k]

220. Kick this. I pledge Alegance to the Earth and All the Humans

That Live apon her. One Nation Under the Human Soul, Indivisable with Liberty and Justice For All.

[Cowboy Joe2k]

222. Nothing less will do.

We are tired of fighting and Killing each other. We are tired of a government that charges us 3.5 Million Dollars to tell our Children Not to have sex.

Parents your Must take Sex Education Back from this government. You Must tell your Children How to Prevent STD's Un-Wanted Pregnancies and AIDS.

The Machine would Love to take away your right to a choice so that the can draft your Baby's and Make them Kill each other, No, Don't let them do it!!! Never let them do it!! Never Let them Farm our Society!

That is what is at stake here Sisters. First it's your right to vote, then it's your right to Choice, Then It's your right not to Kill your fellow Human Being.

The Main Stream Media is programing you with Violence and Killing Don't Let them do it!!!!

[Cowboy Joe2k]

224. Kick this for our People. All the people all over the world!

Dark Haired, and Light Haired, Dark Skinned and Light Skinned, Blue Eyed and Brown eyed. Celebrate the Differences!!! Love every one!! this is the only thing that can save us now.

[Blissfulbride]

225. Could someone please give this its own thread?

I can't start my own threads yet -- so could someone do it for me, please?

I've found a few petitions that I think we should sign.

http://www.thepetitionsite.com/takeaction/636288161?ts=1101792795&sign=1&sign=825434130&sign=825434130

http://www.petitiononline.com/uselect/petition.html


Also, a lawyer instructs angry voters on what to do (from Free Press Forums)

http://freepress.org/eforum/viewtopic.php?p=13#13

[Cowboy Joe2k]

229. This is the thread that that needs to be on this is the only thread

on this who damn web site that matters.

If they Kill this one they have snuffed you out of existence. So your petitions won't matter ether.

Kick this thread as if your life depends on it. because it probably does.

[Cowboy Joe2k]

226. Kick this For Love

[Cowboy Joe2k]

227. Kick this Never let them take Democracy from you the people.

[Cowboy Joe2k]

228. Kick this, because it is what you lost, it's your constitutional rights.

[Wordie]

230. Kick

[Cowboy Joe2k]

231. Aditional thought. How do we know any of our officals are elected

Lagitimantly at all??? How do we know all of them are not rigged?

We Need to vote for the People we empower! This is bigger then Any of this Voting crap this about stopping us from killing our selves a a Population Pretty soon All this war crap it's gonna be autimated Hell it all ready is. Now Stop Playing with the Guns for a moment, An give us back our right to vote.

Thats what this is about you fool, It's the fate of the Human race.

Kick that!

[Cowboy Joe2k]

232. we don't care who you are ether.

You are a resident of this Planet as am I and I call on you to do your swarn duty to it's population and give us our right to vote.

All humans shout be able to say this truth. that is what we are asking for. Put us on the endangered species list. What are Humans more fun to hunt then foxes? Stop Killing Us Please.

I'm sorry if I feel that the good of the many exceeds ways the good of the few or the one. Thank you Spock.

Please let our people live free and Build and Explore our environment so that ma by just May be when Yellow stone does go, you will have the science to detect it and possible I don't know warn people with adequate time to get out of the way? I'm thinking Amby not. Baby you just spend the 3 year winter in a bomb shelter 3 miles below the surface on the other side. Isn't that a kick.

Yellow stone Blows once every 50 to 70 thousand years. that means that your people get out of the bomb shelter three years after all the American people are dead. you crawl out of it, and you have to live off of the land. and then here is a kick people from other Contents come over to this one by boat and conjure your civilization. And then I guess the Slavery is reversed. wouldn't it.

Do you want your Son's and daughters to wind up slaves the next time you have a calamity on that side of the planet, Or would you prefer to wake up to the reality. The Reality that separate is not equal and the one biggest thing you could do for our people right now is give us the right to change the channel of this reality. you ever think we just might be able to put a casino on the moon? would that not be more fun then detonating a Nuke is some sparely populated area?

or worse were you planning to just wipe us all out?

[Cowboy Joe2k]

233. How much of our Money Did you spend on those fancy Machines??

Why don't you just declare your self king and be done with in. Our People would be a lot better off..

Perhaps then we could start functioning as a community. How Meany more Humans do you have to beet up on before you Stand up and make history by creating a better Planet. I am not a Conspiracy theorist or a Left wing liberal, I'm not a stereo type, I am a human. I used to think I might even have a wife and kids some day, But it looks like I will have to rethink that, because I would not want to bring a child in to this world. Living in a False sense of insecurity. Wondering which population group your going to kill off next.

Haven't you guys even thought about a casino on the moon? or do you all ready have one?? I bet you all ready have one don't you? Crap did I discover something else?

[geo]

234. The math has been done for me!! YAY!

Hi all,

I think we just found someone who can truly help support our claim that minority groups were adversly impacted. And he does it with MATH!

http://www.dailykos.com/story/2004/11/30/71935/724

and here is a DU thread about this article:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x92824

Please give the article a look through and let me know what you all think?

Warmly,

George

(edited to add DU thread)

[geo]

235. Another interesting racial breakdown of voting machine allocation

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x84787

:) -G

[Cowboy Joe2k]

236. World Population Demand that your Local Comunity Vote No

on the issue of WAR! This is the only thing you can do to save your Planet. Stop Giving us this crap that you shovle down our Main Stream Media in an attempt to keep us asleep. It will not work any more. All Citezen of every Comunity Demand the right to vote yes or no on the Issue of WAR

We don't care who the Pupet is. All we care about is that we stop Killing each other. Please You stupid Hypocrets that call your selves leaders, Give us the right to vote yes or no on war. None of this Damn Vapor Voting Crap. You think the Population want's it's fate decided for it??? there are some of us here that would like to dream. Some of us even dare to dream the American Dream, But I guess we will see what the heck you the humans will do.

[Cowboy Joe2k]

237. Kick this this is all that really matters.

don't just sit on your butt, wright letters to every one you know demanding your 14th Amendment Right to vote yes or no on WAR.

All Community's around the world Must do this, and we must do it fairly and with Audits.

1, Fricken Topic. Thats what we the Democrats of this world want for the winter season. Thats the only Present that you people can give to each other that has any meaning at all when you can give a gift as big as this. the right to Vote Yes or No on WAR!!

INTELLIGENT PEOPLE BAND TOGETHER. THIS IS THE ONE KEY THAT CAN SET YOU FREE!

[Cowboy Joe2k]

238. Print this Mail it to your Family.

Write in Peace! every one. Demand paper Ballots. Wright in Peace. That is the only thing it matter we hope for now. If neither one of them have values Vote for peace on paper ballots and make damn sure that they are counted because if you do this You will have prove that their wrong. I just beat your game Sucker.

Give us back our Human Rights Now. Please! Can we Change the Channel?

enough with the terror warning. Tell every one you know to wright letters to Santa for world peace, because this is possible now!Include this whole thread. I want every one to know just what it is you could have given them. I want them to mail this thread to their children, and their children's and your grand children and your grand children that the only way you will ever have peace is if you constantly write in Peace as a Candidate.

Game over you lose you damn Machine.

Print that. Copy that this is your Freedom people

[Cowboy Joe2k]

240. This is the only way you the People will eve win.

Copy that this is your Freedom people Send this to you Friends and neighbors. This is the last chance for peace. They know this is out their, and they know that if they can keep dividing you they can continue to conquer you. So the only way they will ever silence you is to kill you. Demand a vote for Piece. Every body just put down your weapons take a step back and tell your community's to vote for peace. This is the only way we will take down this monster and we must do it now!!!

Send this to every one. it is My gift to you people. Humans %100 democracy. These Machines will never rule our society. that is what is at stake here. on any balot in any election Write in Peace on Paper Ballots. and demand that they count them infront of you. So that way when they rig the machiens again they will have to stop all this killing. if they refuse We the world population. the right to vote any way, this is the only way to catch them read handed doing it.

Print that before they try to kill you again. this is how you can easily win in 08. The World Population are with you. You can beat every election that way. Because None of them Stand for Peace. If any of them did we would come out and Vote in Droves. But it matters not The intelligent people get to finally bring piece to this planet.

[geo]

242. UPDATE: Summary on the way. Please check back soon!

:) -G

[4democracy]

243. Kicking hard

[Cowboy Joe2k]

245. Kick this for the love of Humans because it is all that will save you now.

If you ever get the chance to Vote Again, Use Paper Balots and cast your vote for peace. This is what you wanted your Planet taken over by your selves. if you don't kick hard they will bury it under all these mounds of crap. every one in every comunity needs to go and Right letters to our comunity. Demand that they Give back your Human rights, lest you lose them to this machine. The people of this Planet need the right to ask ourselves to stop killing each other.

Damn you you stupid machine.

[Cowboy Joe2k]

246. Kick this to every human on the planet.

Kick this. This is all we hoped for this is what the world needs tied up in a bow. For the holiday this is what the world needs now. entire world Peace. Kick this if you ever thought you were free. http://www.democraticunderground.com/discu...2&mesg_id=79652

Kick this every chance you get least you wined up kicking the damn thing for ever. http://www.democraticunderground.com/discu...2&mesg_id=79652

Kick this. this is the one little bit of information that can save the world.

http://www.democraticunderground.com/discu...2&mesg_id=79652

I may have bargained a solid argument to avoid getting stuck in this damn contraption.

[Cowboy Joe2k]

247. Give up, you can't confuse us any more, we figured out

Your media plot. what the fuck. what numbers are acurate. Does anybody know? does any body know why we are spending 3.5 Million dolors to tell our kids not to have sex. We see what your doing, and we refuse to stay slaves to thease machines.

[Cowboy Joe2k]

248. You will never scilence me. Call Fox Bush Apologise to your

Humans you mind controling facist. wake up, there are more important things to think about. I better not here one more terror warning. Nock it off. We now the truth. you will never scilence the humans.