Posts by Steven Rosenfeld

See (Literally) Why Al Franken is Gaining Votes
Posted by Steven Rosenfeld, AlterNet on November 20, 2008 at 5:14 PM.

The reason Minnesota's Democratic senatorial candidate, Al Franken, is poised to catch up with and possibly beat the Republican incumbent, Norm Coleman, is vividly demonstrated on the Minnesota Public Radio website.

This report shows varieties of sloppy writing by voters who used pens to mark their paper ballots -- marks that could not be read by optical-scan computer counters. You literally can see examples of ballots that were not counted in the tally on Election Night and decide how you would count them: for Franken or Coleman.

Apparently, Franken is benefiting from what appears to be sloppier writing by Democrats than Republicans. As of late Wednesday, he was trailing by 168 votes and gaining on Coleman.

Read the rest of the post on the flip side »

Convicted Senator Ted Stevens Now 814 Votes Behind in Alaska
Posted by Steven Rosenfeld, AlterNet on November 13, 2008 at 9:30 AM.

Ted Stevens, the longest-serving Republican U.S. senator who recently was convicted of corruption, has lost his lead in Alaska's Senate race to his closest rival, Democrat Mark Begich, as of late Wednesday, according to an update released by the state's Division of Elections.

The results are continuing to trickle in because the state's Division of Elections is in the process of counting some 40,000 outstanding absentee and early votes. Until Wednesday's counting, Steven was ahead by more than 3,000 votes. In addition to the uncounted absentee and early votes, there are an additional 5,000 so-called "question" ballots that have to be verified before being counted.

The agency's report, showed Begich, who was losing after election night, now leading Stevens by 814 votes -- 132,196 to 131,382 -- with the state still to count roughly 40,000 more ballots over the next week.. There are three other minor party candidates in the race, as well as write-in votes.

Stevens has been convicted in federal court of political corruption charges, leading to much speculation about his political fate if he wins re-election. He is the Senate's longest-serving Republican.

Obama Transition Team Rejects Lobbyists: Why It Matters
Posted by Steven Rosenfeld, AlterNet on November 11, 2008 at 3:38 PM.

The Obama Transition Team has issued rules for lobbyists who want to advise the incoming administration. The rules seek to stop Washington's revolving-door culture where insiders gain access and information inside government, and then use that knowledge to help paying clients accomplish their goals.

According to a press release saying these are "the strictest, and most far reaching ethics rules of any transition team in history," the guidelines are:

• Federal Lobbyists cannot contribute financially to the transition.
• Federal lobbyists are prohibited from any lobbying during their work with the transition.
• If someone has lobbied in the last 12 months, they are prohibited from working in the fields of policy on which they lobbied.
• If someone becomes a lobbyist after working on the Transition, they are prohibited from lobbying the Administration for 12 months on matters on which they worked.
• A gift ban that is aggressive in reducing the influence of special interests.

It remains to be seen who will grumble about the new lobbyist rules issued Tuesday. Curiously, the Obama transition's press release quoted two well-known Washington centrists who reluctantly praised the policy.

"The ethical guidelines released today for the Obama transition are tough and unequivocal," said Thomas Mann of the Brookings Institution. "They will prevent some honorable people with rich experience from serving in the transition. That is a real cost but it is more than balanced by the strong signal sent by the President-elect. He aspires to attract to government able individuals whose highest priority is to serve the public interest. This is a very constructive step in that direction."

Read the rest of the post on the flip side »

Obama Victory Boosts Gun Sales
Posted by Steven Rosenfeld on November 9, 2008 at 12:03 PM.

The victory by Barack Obama and Joe Biden has already caused an economic boomlet, though one of arguable merit.

According to Reuters, gun sales have taken off red states following last week's presidential election. The hottest item apparently include makes and models of guns that are seen as being likely targets of new gun control laws.

The article said:

Sales of rifles, pistols and ammo are surging in parts of the United States, as many gun owners fear President-elect Barack Obama's administration may seek to tighten ownership of certain weapons.

"The day after the election, I had many more calls than usual from people looking for semi-automatic rifles," said David Greenberg, the owner of the Second Amendment Family Gun Shop, in Bisbee, Arizona, who sold out of AR-15 rifles in recent days.

"There seems to be a fear they will be banned, and it's fairly likely," he added. "Obama and Biden are driven to eliminate firearms from the face of the country."

Here's the rest of the Reuter's post.

International Observers Give 2008 Election a Passing Grade
Posted by Steven Rosenfeld on November 8, 2008 at 5:44 PM.

The Office for Democratic Institutions and Human Rights, which monitors election across the globe, has given the 2008 U.S. presidential a passing grade while highlighting some well-known problems with American elections.

The organization's report notes that there is no single federal agency in charge of U.S. elections, but instead a patchwork quilt of uneven state laws. The agency said that U.S. campaign finance laws that seek to limit the influence of political money were not effective. It said there were numerous conflicts of interest where officials overseeing state elections were affiliated with political parties or running for office themselves. It said that the secrecy of the ballots was not always maintained with early voting and voting by mail. It said there were "minor" technical problems associated with voting machines but they were not widespread enough to undermine the process.

It noted how many states had differing voter registration, voter list maintenance and voter ID standards. It noted how allegations of voter fraud were raised before Election Day, saying the truth of those claims were assessed by judges in state and federal courts. It noted that many states experienced voters waiting in long lines. It said there were 22 independent and third-party candidates who ran in more than one state.

The international team sent representatives to 26 states and Washington, DC. States whose laws do not allow international observers were: Alabama, Arizona, Florida, Georgia, Ohio and Texas. Observers had problems watching in Colorado, Louisiana, Pennsylvania and Virginia.

To read the report, click here.

Turnout High, but Some Polling Place Issues in Philadelphia
Posted by Steven Rosenfeld on November 4, 2008 at 11:00 AM.

Election Day started with heavy turnout in Philadelphia, where polling places quickly saw lines build and the biggest problems were new voters whose names were not on precinct lists and electronic voting machines that did not not work at the day's start.

The voter registration issues appeared to be more widespread, as election protection officials from the Obama campaign and the non-partisan "Committee of 70," a local watch group, noted that many people who had received voter registration cards in the mail were not listed on their precinct voter rolls.

Calls by those election protection officials to the city's Board of Election revealed that those voters' names were on the city's central voter list, which should entitle them to vote with a regular ballot. However, the BOE's instructions to precinct judges, according to these poll watchers, was that anybody who was not on precinct lists should be given a provisional ballot. Those ballots must be verified after Election Day before being counted.

The impact of this voter list snafu -- explained by one ward committeeman as a paperwork backlog by election administrators in this Democrat-controlled city -- is hard to gauge. At several polling places, the estimate was that perhaps as much as 5 percent of the voters were receiving provisional ballots.

Read the rest of the post on the flip side »

Virginia: Monday Court Action Could Benefit GOP
Posted by Steven Rosenfeld on November 3, 2008 at 8:12 PM.

There were several legal developments in Virginia late Monday that could benefit John McCain if the race in that state is close. First, a federal appeals court rejected the NAACP's suit asking that polling place hours be extended to accommodate African-American voters, although the NAACP said it would return to court on Tuesday if voters were stranded in long lines. The Moritz Law School blog said:

"After losing its request for relief this afternoon ... the Virginia NAACP announced that it is prepared to go back to court tomorrow (Election Day) if lines at the polls are too long. Presumably, it would renew its request, made previously in its pending case, for the court to order emergency back-up paper ballots and/or an extension of polling hours. Presumably, this statement means that the NAACP has decided not to attempt any appeal of today's ruling in the Fourth Circuit."

Meanwhile, the McCain campaign has filed a suit against the state of Virginia seeking extra time for absentee ballots sent overseas to soldiers to be counted. Rich Hasen, editor of the ElectionLaw blog, said he did not think the courts would be persuaded by McCain -- although other GOP allies might be more successful.

The McCain campaign likely doesn't have standing to bring this suit; only DOJ does (and don't count them out!). I see this as the politics of the situation, this is the final (?) Hail Mary of the McCain campaign. The suit wants to require Virginia to wait 10 days for additional military ballots (to November 14) before certifying federal election results in Virginia, which could be very important only if the race is very close and turns on Virginia. Of course, election law aficionados remember the role military ballots played in the results of election 2000.

In other words, stay tuned.

Unfinished Business: Did the GOP hack the 2004 Ohio Vote?
Posted by Steven Rosenfeld on November 2, 2008 at 7:40 AM.

As the 2008 presidential election heads to Tuesday's vote, there is some unfinished business concerning 2004 presidential election -- and whether the Republican Party had the means to electronically alter the vote count -- that will come before a federal court in Ohio on Monday.

At issue is whether Republican computer consultants, working for then Secretary of State and Bush-Cheney campaign co-chair, J. Kenneth Blackwell, had the technical capacity to collect the electronic vote totals that were being reported on Election night by Ohio's 88 county boards of elections -- and delay publishing them on the state of Ohio's election results website until the numbers ensured a George W. Bush victory.

In the spring of 2007, AlterNet was first to publish a report -- written by me, Bob Fitrakis of Columbus, Ohio, and anonymous citizen journalists from E Pluribus Media -- that documented how the official Ohio Election Night results website was hosted on servers in Tennessee that also were home to hundreds of other GOP websites. The speculation then, and now, was whether the GOP had the means -- just as anyone who has access to a website's content management system does -- to review what is being published, and edit it if necessary, before making it live online.

In other words, we believed that events on the ground on Election Night 2004, such as a declaration of a homeland security alert in Warren County, where all the ballots were taken by local law enforcement to a locked warehouse, and wildly high voter turnout figures from several of the state's southwestern Bible Belt counties that were the last in the state to report, when there was no video tape of polling places from those counties jammed with people, all covered up an intentional GOP data diversion scheme to alter the results. Subsequent analysis of precinct-by-precinct results found, for example, more than 10,000 people in these same evangelical-rich counties who voted for Bush and in favor of gay marriage, a highly implausible claim, if the official results were true. All these factors have led a small team of lawyers in Columbus to methodically use a federal voting rights lawsuit to do discovery into what happened on Election Day in 2004, including looking at the Ohio's computer infrastructure that collated the vote count and reported it to the world.

Already, this litigation has revealed that nearly two-thirds of Ohio counties defied a federal court order and destroyed the 2004 ballots. meaning an accounting by academics or a 'recount' well after the fact would be impossible. But on Monday, in federal court in Cleveland, Ohio, the GOP's computer IT guru, Mike Connell, is scheduled to be deposed. As a very good report in EPluribusMedia.net sums up, the lead attorney in this case, Cliff Arnebeck of Columbus, believes that his questioning will reveal much about the GOP's capacity in 2004 -- and today -- to intercept and potentially alter electronic vote counts.

As Arnebeck told EPluribusMedia:

Read the rest of the post on the flip side »

Advocates Warn 31 States They Could Lose Votes
Posted by Steven Rosenfeld on October 30, 2008 at 6:19 PM.

Three voting rights organizations are urging election officials in 31 states to verify the vote counts on one commonly used voting machine -- made by Premier, formerly Diebold. They say county officials need to use calculators on Election Night to ensure the machine's tabulations are accurate. Here's their release:

October 30, 2008 - Today, three voting rights watch dog groups, the Brennan Center, Verified Voting, and Common Cause released an advisory to election officials warning that voting systems in specific states may not total votes correctly if proper procedures are not followed, and stressing that all vote totaling should be manually checked. The warning cited an August 19, 2008 product advisory notice issued by Premier voting systems, formerly Diebold, which acknowledged that the voting system does not always aggregate machine totals correctly when it is compiling votes from multiple polling locations.

"What this means is that votes are intact in the machines, but when they are all compiled by the Premier tabulator at the county level, a number of them may be lost." said Bob Edgar, President of Common Cause. "To guard against this loss, election officials must manually check the math of the central tabulators by adding up the precinct votes themselves with a calculator."

The defect may be in place in as many as 31 states that use Premier voting systems in some or all of their counties. The states include AK, AZ, CA, CO, CT, DE, FL, GA, IA, IL, IN, KS, KY, MA, MD, ME, MI, MN, MO, MS, NH, OH, PA, TN, TX, UT, VA, VT, WA, WI and WY. All of these states use the Premier equipment, but the product advisory from Premier indicated that states which use GEMS tabulator versions 1.20.2 and earlier are definitely vulnerable to the flaw.

Officials in Butler County, Ohio, raised the problem with the Premier equipment when 150 votes from a memory card were dropped following the March primary earlier this year. Eight other Ohio counties experienced the same problem during the March primary. Fortunately, no votes were irretrievably lost in any of these counties because election officials caught the error before the primary results were finalized. However, the Ohio Secretary of State is suing Premier for breach of contract related to these events.

In August of this year, Premier issued a Product Advisory Notice outlining the major defect. According to the advisory issued by Premier:

"Premier Election Solutions has determined that a sharing violation may occur in the GEMS poster during simultaneous uploading of results from multiple memory cards resulting in the contents of the affected memory card(s) not being posted to GEMS. Note that in this situation, the AVServer console will indicate the affected upload of memory card(s) has been successful, (green arrow), when the upload has not, in fact, been successful."

Read the rest of the post on the flip side »

More Pro-Voter Legal Decisions in Swing States
Posted by Steven Rosenfeld on October 29, 2008 at 4:54 PM.

There were two important legal decisions on Wednesday that should help voters in Pennsylvania and Ohio.

In Pennsylvania, a federal district court ordered Secretary of the Commonwealth Pedro Cortes, a Democrat, to provide backup paper ballots if at least half of the voting machines break down in a precinct. Voting rights activists had sued the state, saying the ballots were needed because of voting machine problems during the 2008 primary, particularly in low-income neighborhoods. The plaintiffs presented their testimony at an eight hour hearing Tuesday.

"This is a huge victory for the voters of Pennsylvania," said John Bonifaz, legal director for Voter Action and co-counsel for the plaintiffs. "This ruling will ensure that many voters across Pennsylvania will not be disenfranchised when voting machines break down on Election Day."

The court's opinion and order said:

If 50% of electronic voting machines in a precinct are inoperable, "paper ballots, either printed or written and of any suitable form," for registering votes (described herein as "emergency back-up paper ballots") shall be distributed immediately to eligible voters pursuant to section 1120-A(b) of the Election Code. Emergency back-up paper ballots shall be used thereafter until the county board of elections is able to make the necessary repairs to the machine(s) or is able to place into operation a suitable substitute machine(s).

The coalition that sued the state included Voter Action, the NAACP Conference of Pennsylvania, the Election Reform Network, The Public Interest Law Center of Philadelphia and other private attorneys.

Meanwhile, the New York Times is reporting that the Justice Department will not push the state of Ohio to reveal the names of voters "whose registration applications did not match other government databases."

"The decision comes about a week after an unusual request from President Bush asking the department to investigate the matter and roughly two weeks after the Supreme Court dismissed a case involving the flagged registration applications," the Times' Caucus blog reported.

Ohio election officials contacted earlier in the day by AlterNet said the same thing, noting that career attorneys at the Justice Department -- who either would be leaving the government or seeking to stay on during the next administration -- would not want to put their careers at risk by pursuing such an overtly partisan intervention, despite pressure from the White House and congressional Republicans.

The bottom line in both these developments is the rights of voters, particularly in swing states, appear to be trumping partisan considerations or known shortcomings of the voting machinery.

Senator Palin? No, Not Her. The Dude!
Posted by Steven Rosenfeld, AlterNet on October 28, 2008 at 9:11 PM.

There's lots of smart and fun speculation on the law blogs about Sarah Palin's future.

We all know that Alaska's Sen. Ted Stevens, now convicted of political corruption charges, has been urged to step down by many, including John McCain and Alaska Gov. Sarah Palin. That is the root of the speculation that Gov. Palin might want to appoint herself as Sen. Palin, should Sen. Stevens step down -- although there is no sign that the Senate's senior Republican senator is inclined to do so.

But anyway, Sarah Palin's future is a hot topic -- notwithstanding that event on Nov. 4.

Here's how Rick Hasen's Election Law blog has pondered the prospects for a self promotion (headline included):

The Alaska Senate Vacancy Issue is Even More Interesting Than I Thought

In this post from yesterday (which contains a correction about the earlier New Jersey case), I wrote about the rules which would apply if Senator Stevens decided to resign before his current term ends. I cited to provisions of the Alaska Elections Code that I took from the Alaska legislature's website.

It turns out, however, that voters passed an initiative in 2004 (in response to the then-governor appointing his daughter to a vacancy) which changed the method of filling vacancies. (The full text of the current Alaska statute is after the jump.)

But it gets better. Because this statute was passed by initiative, there's a question whether it violates the 17th Amendment, which provides in Clause 2: "When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." The people, through the initiative process, get no role.

Here's the rest of Rick's blog entry. Now, this is interesting enough, but Edward Still's blog on law and politics has another take. He says that the telegenic vice presidential candidate would be barred by Alaska law from accepting a lucrative television deal while still in office, but not a big book deal.

Read the rest of the post on the flip side »

Online Tool to Document Voting Issues
Posted by Steven Rosenfeld, AlterNet on October 28, 2008 at 4:00 PM.

Rob Stuart, president of Evolve Strategies has a new web-based tool for voters to report Election Day problems. Here's how he described it:

Be a part of the election protection network.

In this year of record voter registration and new voters heading to the polls, VoterStory.org has launched a non-partisan voter complaint system as a networking resource for people who face difficulty casting a ballot and for groups monitoring the polls on Election Day, November 4. By filling out a form on the VoterStory web widget, voters will not only have their stories heard; they will also have their complaints promptly addressed by qualified organizations in their communities. Voter Action’s Watch the Vote program will use the VoterStory data along with data from the 1-866-MyVote1 hotline in order to ensure that any problems with the election administration are reported and addressed.

In order to make sure as many voters as possible have a way to report their problems, we are asking webmasters, bloggers and others with large online networks to help us in crowdsourcing this protection of the democratic process. The VoterStory.org web widget is available to be placed on any site, where it will offers an online voter complaint form that classifies problems and directs data to qualified voter protection organizations. It also promotes the 1-866-MyVote1 and 1-866-OurVote hotline numbers, where voters can find their polling place or file a verbal complaint. The widget is easy to install and unobtrusive, but can have a huge impact on the fairness of our electoral process. We hope that you will join VoterAction, The League of Women Voters of Pennsylvania, and other prominent partners in our network of election protection. For more information, and to download the widget, please visit us.

Bush Asks AG to Enter Ohio Voting Fray
Posted by Steven Rosenfeld on October 25, 2008 at 12:14 PM.

The White House apparently has asked the Justice Department to intervene in an ongoing dispute in Ohio where Republicans have thus far been unable to challenge the voter registrations of 200,000 or more Ohioans, according to a report in ConsortiumNews.com

The report, by Jason Leopold, begins:

Bush forwarded to Attorney General Michael Mukasey a Republican request that he intervene in the battleground state of Ohio to force 200,000 new voters to either verify the information on their registration forms or cast provisional ballots, which are often thrown out after the voter leaves the polling place.

Similarly, two years ago when Bush feared Democratic victories in congressional races, the President “spoke with Attorney General [Alberto] Gonzales in October 2006 about their concerns over voter fraud,” according to a Justice Department Inspector General’s reported released earlier this month.

You can read the rest of the report here. To date, Ohio Secretary of State Jennifer Brunner, a Democrat and former judge, has prevailed in numerous lawsuits on this issue -- including an appeal by the Ohio Republican Party that was rejected by the U.S. Supreme Court. You can expect more developments in this story next week.

A Pro-Voter Legal Opinion in Florida?
Posted by Steven Rosenfeld on October 25, 2008 at 9:00 AM.

The political blog at the St. Petersburg Times is reporting a story that almost sounds too good to be true.

Apparently, the attorney for the trade association of Florida's county election supervisors is telling the officials to ignore Republican Secretary of State Kurt Browning and not allow voter registration database mismatches to prevent anyone from voting with a regular ballot -- if they have the ID to clear up the discrepancy.

The post says:

An attorney for the Florida Association of Supervisors of Elections sent a letter to supervisors statewide today weighing in on the ongoing tiff between Pinellas County Supervisor Deborah Clark and Secretary of State Kurt Browning over voter verification at the polls.

The opinion of Ron Labasky: Clark is within her right to resolve discrepancies under the "No match" law on Election Day.

Browning, a former Pasco supervisor, has argued that matching problems need to be resolved before Election Day, and in those cases that are not the voter will be allowed to cast a provisional ballot that would count only if the discrepancies are resolved within two days.

Labasky writes "the statute does not preclude the applicant from providing that information at that time [at the polls], thereby obviating any need for subsequent contact with the supervisor, assuming that information is documented." Read the full letter here.

While there always is something in the fine print of election law and procedures -- particularly in Florida -- to give pause to optimism that all voters will be accommodated and see their votes correctly counted, this letter comes after several years of litigation by civil rights groups on this very issue.

Of course, one could think like a Republican election lawyer and ponder if following this advice sets up post-Election Day legal fights because these counties, should they do the right thing as suggested by their attorney, would be in violation of the state's top election official's directives (point one in a suit) and thus not all Florida voters would treated equally if different counties did different things (point two, an equal protection claim). That second issue was cited in the Bush v. Gore ruling that shut down the 2000 Florida recount.

Maybe such cynicism is unwarranted. Maybe Florida will finally have a fair presidential election. Maybe I'll keep my fingers crossed, but I won't hold my breath...

Lake County Indiana's Early Voting Upheld
Posted by Steven Rosenfeld on October 24, 2008 at 2:20 PM.

The Indiana Supreme Court denied an appeal by Republicans in Lake County, Indiana, who sought to close some early voting centers before Election Day.

The Progress Illinois blog predicted this would be the Indiana high court's ruling, which means voters in the cities of Gary, Hammond and East Chicago will be able to continue to vote before November 4.

One commenter on an election law list-serve said decision reflected well on the Indiana Supreme Court, where all the members have served together since 1999. Of the three justices voting to decline to hear the GOP's appeal, two were appointed by Democratic governors, and one by a Republican.