Transcript

Election 2008: Election Law (and How They Break It)

Allen Raymond and Daniel P. Tokaji
Author, "How to Rig an Election"; Associate Director, Election Law @ Moritz, Ohio State University
Tuesday, October 7, 2008; 12:00 PM

"How to Rig an Election" author Allen Raymond -- convicted of jamming New Hampshire Democratic Party phone banks on Election Day in 2002 -- and Ohio State University Election Law center Associate Director Daniel P. Tokaji were online Tuesday, Oct. 10 at noon ET to discuss election laws, how campaigns get around them, and the challenges that are being and may be fought in the courts this year.

The transcript follows.

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Harrisburg, Pa.: Are there states where it is illegal to mass-mail absentee voter registration forms? I see all my Republican friends received their forms in the mail recently. Is this a good strategy, and isn't it open for potential abuse, given that in Pennsylvania one is supposed to vote by absentee if one is away from the city for the day and not because it is convenient?

Daniel P. Tokaji: In recent decades, there has been an increasing trend toward absentee voting. A majority of states now allow "no excuse" or "no fault" absentee voting, which -- as the name suggests -- allows voters to cast absentee ballots regardless of whether they have a reason for not going to the polls on Election Day. I think it's a good strategy for the parties to send out absentee voting applications to their voters -- as the McCain campaign has done this year in my state of Ohio, which has no-excuse absentee voting. Without having reviewed all 50 states' laws on the subject, I can't say whether any have laws on the books that restrict mass-mailing absentee voter applications, but off the top of my head it's hard for me to see how this practice could be prohibited without violating the U.S. Constitution. Of course, if a voter lives in a state that requires an excuse to vote absentee, and makes a false statement on his or her absentee ballot application -- falsely stating, for example, that he or she is disabled -- then that voter could potentially be subject to criminal sanctions.

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Arlington, Va.: Isn't most election law useless? The Republican National Committee filed complaints that Obama accepted some small amount of foreign contributions -- will it be 2010 or 2011 before any ruling on this charge is issued? By then we'll be either two years into the Obama administration or in year five of Obama's Senate term.

Daniel P. Tokaji: I don't think most election law is useless, though it's sometimes underenforced or not followed. And that's what courts are for: to make sure that the law is followed. That's why I tend to think that most of the complaints regarding excessive election litigation are misguided. Often, lawsuits are necessary to protect voters' rights

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Crystal Springs, Miss.: Do you mean to tell me that someone actually can rig an election? I always thought that it was just something people were saying to make conversation.

Allen Raymond: There's rigging elections with illegal tactics, (e.g. the New Hampshire phone-jamming effort that I can speak to), and there's the rigging by use of responsive cord messages that are effective in getting voters to even vote contrary to their self-interest.

Daniel P. Tokaji: We've got to be clear what we mean by "rigging" an election. The parties and candidates always will try to work the system to their strategic advantage; so long as they do so within the boundaries of the law, that's perfectly okay. No one said that democracy would be clean or tidy. The big problems come when political operatives or the government try to twist the rules to their advantage. An example is a recent attempt in Ohio, to require that voters to be registered for at least 30 days before even requesting an absentee ballot -- on pain of possible criminal prosecution. This was a prime example of vote suppression, in my opinion, and has no place in our democracy. Fortunately, that attempt to impose new, illegal impediments to the right to vote was rejected by both the state supreme court and the federal courts.

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Arlington, Va.: Mr. Raymond, you're a true credit to democracy. What new profession will you attempt to corrupt now that your career in politics is over?

Allen Raymond: Not sure yet -- what industry to you suggest?

Allen Raymond: Attempted humor aside, the reason I wrote the book is best summed up by Justice Brandeis: "Sunlight is the best disinfectant, electric light the best policeman."

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Dunn Loring, Va.: Several liberal groups are seeking volunteers to monitor polling places so the election won't be stolen. In your opinion, are the monitors going to stop the type of fraud and voter denial efforts that already have been documented, such as in Ohio where a federal court has rebuffed the Democratic Secretary of State's efforts to deny absentee ballots, or in several states where ACORN has been accused of submitting false ballots?

Allen Raymond: This is probably best addressed by Prof. Tokaji. My thoughts are forthright: In what is likely to be a very close election (although that is not the picture we have today as the economy boosts Sen. Obama's candidacy), it is an all-hands-on-deck scenario for both parties. If either party that wakes up on the Wednesday following the election and feels they didn't leave everything they have on the field of play (legal, mind you) will be regretful.

Daniel P. Tokaji: I do think having observers at the polling place on Election Day is an effective way to reduce the possibility of election manipulation. The idea is that, if each party has observers watching the conduct of elections, both sides will behave. Observers can, for example, help make sure that identification requirements aren't applied in a discriminatory manner. For those citizens interested in trying to do their part to make our democracy work better, volunteering to be a poll worker or election observer is a great way to help.

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New York: What percentage of voter-disenfranchisement tactics are conducted by Republicans versus Democrats? Seems the only ones I've heard about lately involve Republicans making rules (and bending them) to disenfranchise Democrats, but I'm guessing the Democrats also are doing similar things, no? If so, why do I only hear about GOP shenanigans?

Allen Raymond: I cannot assign a percentage. Voter suppression historically tends to be a GOP objective, as Democrats have long out-registered Republicans (with exception). This year's voter registration clearly favors the Democratic ticket (see Virginia); therefore, voter suppression tends to be more systematic in the GOP (e.g. caging) because polarization and low turnout historically favors GOP candidates.

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Alexandria, Va.: Do Christian reconstructionist brothers Bob and Todd Urosevich determine the outcome of presidential elections? They control the two largest voting machine companies, Election Systems and Software and Premier Election Solutions (formerly Diebold Elections Systems). Christian reconstructionists wish to reconstruct the nation as a Biblically based theocracy, including execution for blasphemy, adultery and witchcraft (although they are not quite as extreme as the theonomists, who support stoning). Google "Christian Statesman" stoning.

Allen Raymond: I can't speak to that precisely, but as to doubts about the deployment of new technologies, it is important for the deploying institution (e.g. secretaries of state) to address all problems seriously, as new technologies are inevitably going to produce suspicion that needs to be addressed and removed.

Daniel P. Tokaji: I understand the concerns regarding new voting technology, but we should keep in mind that elections in most places have been dependent on electronic vote-tabulation for some time now. The key to secure elections is to have good procedures in place -- including rigorous testing -- and to make sure they're followed by poll workers and election officials. The mantra for secure elections should be: "Test, test, test. Train, train, train."

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Crestwood, N.Y.: If you (Mr. Raymond) had had the chance to alter the vote of an entire state through electronic hacking, and to have changed the outcome of a presidential race, would your system of ethics have permitted it? The reason I ask is because it appears that people of Mr. Raymond's ilk seem to believe that the GOP has a divine right to rule, and that any victory by a Democrat is illegitimate. (Many democrats feel the same way, but all they do is blame the voters for stupidity and failure to see their own best interests.) You can see this today, with McCain's people wearing "Obama presidential seal" buttons, mocking the man who might be our next president. It's the same mentality that you would see in third-world countries where elections routinely are rigged. They simply can't and won't accept an unfavorable outcome. How does this mindset come about?

Allen Raymond: I am familiar with a win-at-all-costs mentality. If your question is if I personally would stuff a ballot box, no I wouldn't. But I'm only a drop of water in a wide and deep sea.

Daniel P. Tokaji: I agree that some political operatives have a win-at-all-costs mentality, though I don't think the GOP has a monopoly on this mentality. I also think that there's an unfortunate tendency on both sides to believe that, if the other side won, they must have done so by cheating.

One can make a plausible argument, in my opinion, that chicanery in Florida cost Democrats the 2000 election, given the tiny margin of some 500 votes (as I recall), but it's much more difficult to make this argument with respect to Ohio 2004, given that President Bush wound up winning by more than 118,000 votes. You can disagree with many of the decisions made by Ohio's Republican Secretary of State Ken Blackwell in that election -- as I have done -- but that doesn't mean the election was stolen. In general, I think those on both the left and right would do well to back off the "stolen election" rhetoric, which often can distract us from the most serious problems plaguing our democracy.

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New York: John Fund, who wrote a book recently about the (bogus) right-wing issue of voter fraud, is talking constantly about how the Democrats are going to try to get election officials to count the votes of people who are unregistered via the provisional ballots. One of the reasons why they would want to do this -- aside from making the lines so long that people would not be able to devote the time, is to throw the election into doubt and have the courts intervene, (which we know they are willing to do.) I suspect it isn't going to be close enough at this point to work, but if it is, the fact that Obama will be winning with a lot of new younger voters and minorities is likely to create the myth that he is an illegitimate president, won't it?

Daniel P. Tokaji: I tend to agree that claims of voter fraud are greatly exaggerated. The media love to seize on instances of alleged voter fraud, but when you actually look closely, there's much less there than meets the eye. Take the state of Indiana, the photo identification law of which recently was upheld by the Supreme Court. That state couldn't show a single instance of voter impersonation -- the only problem that an identification law purports to address -- in its entire history. Not one.

I do think that claims of voter fraud often are made for the purpose of enacting stringent requirements that will suppress the vote. This is nothing new. It's been going on for a long time, from the suppression of immigrants' and laborers' voting rights in the 19th Century to the massive disenfranchisement of Southern blacks through most of the 20th century. Electoral integrity often is used as an excuse for rules designed to make it more difficult for some citizens to vote. But should Sen. Obama be elected president, I doubt that it will cast much doubt on his legitimacy, except perhaps among those who already are predisposed to distrust him.

Allen Raymond: An Obama victory will be very real to the GOP, particularly (as you rightly point out) if current trends continue in Sen. Obama's favor. I agree with Prof. Tokaji that the kinds of fraud Mr. Fund writes about is overblown and not systematic -- unlike tactics employed by the GOP like caging.

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Jacksonville, Fla.: I hope you are going to have scores of legal watchers in Duval County -- whose election clerk is notoriously ethics-challenged, the opposite of transparent (probably corrupt) and aggressively pro-Republican in rigging county systems against Democrats, especially in poor and black areas. I don't know how he has gotten away with what he has, but surely Duval County will be critical in this election (again -- it just didn't get the attention it should have before). Please tell me there are going to be legal representatives and reporters looking over the clerk's, county's and city's shoulders for this election. The rigging cannot stand. Please?

Allen Raymond: I cannot speak to Duval County, Florida directly, but if polling trends in the state continue, McCain won't have a basis to challenge an Obama victory.

Daniel P. Tokaji: I can't speak specifically to Duval County. But I do believe that, when it comes to protecting voters' rights, sunlight is the best disinfectant. Reporters, election observers and, yes, lawyers, can do a lot to prevent vote suppression. Nonpartisan voting rights groups like the Lawyers' Committee for Civil Rights are mounting a nationwide election-protection effort to make sure that voters' rights are protected this year.

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Re: GOP vs. Democrats: What's the biggest actual case of voter fraud that the GOP uses as support for its voter disenfranchisement schemes (caging, etc.).

Allen Raymond: The most significant in my opinion is the National Ballot Security Task Force in New Jersey in 1981. The result was the state and national GOP signing a pledge in U.S. District Court not to intimidate voters in the future (some apply the ensuing consent decree to apply to voter caging). Regardless, Tom Kean defeated Jim Florio by 1700 votes.

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Voter Fraud?: What's the biggest case of voter fraud you guys ever have heard of? Was it thousands of fraudulent votes? Hundreds? Dozens? Where did it happen, and why? Was anybody sent to prison?

Allen Raymond: See the previous for my answer. In this instance in New Jersey, off-duty law enforcement were assigned to stand at urban polling places wearing black arm bands with NBSTF inscribed, with sidearms on display. That's enough to scare anybody, much less a community already rightly suspicious of law enforcement.

Daniel P. Tokaji: You'd probably have to go pretty far back in history to find the biggest case, maybe to the 19th Century. One of the most famous (or infamous) is Lyndon Johnson's election to the Senate in 1948, when 202 new votes for Johnson were found, giving him an 87-vote victory. Nowadays voter fraud is very rare, especially at the polling place. You'd have to be pretty dumb to try to go to the polls pretending to be someone you're not, given the possibility of criminal prosecution. In the very rare instances that voter fraud occurs today, it's usually done with mail-in absentee ballots. But even this is hard to get away with.

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New Orleans: Out of curiosity, how do you categorize things like voter intimidation efforts, hours-long lines to vote, roll purges, mailings with the wrong times and dates for voting, and sheer incompetence (e.g. in last weekend's primaries here, absentee ballots were not included in the packets sent to polling places) in relation to "rigging" an election?

Allen Raymond: As to hours-long lines, a case can be made that there was a systematic effort to increase the time it took to vote in certain minority districts in Ohio in 2004, with the probable intention of discouraging voters from sticking it out to cast a ballot (people are busy and most cannot allocate five hours to voting on an otherwise ordinary Tuesday). That is one of the allegations I read that have been made against Ohio Secretary of State Blackwell. Misleading and even false flyers and mailings do happen with the clear intent to misguide voters. Sheer incompetence speaks for itself.

Daniel P. Tokaji: I think it's hard to attribute the lines in some Ohio counties to Blackwell. Decisions about how many machines to buy and how to allocate them are made at the county level by bipartisan boards of elections, not the Secretary of State. The problem was that there simply weren't enough voting machines in some places. Some of the other problems with voting technology also are the result of administrative mistakes by election officials -- like in Maryland a couple years ago, where poll workers weren't given the cards needed to start the electronic voting machines, or in this year's primary when some precincts just ran out of paper ballots. Don't get me wrong, there are sometimes efforts to suppress the vote, perpetrated by partisan operatives and even by the government. But sometimes, what's viewed as an act of malevolence really is the result of incompetence.

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Los Angeles: Have you seen the film "Uncounted"? If so, what did you think of it?

Allen Raymond: I have not, but a quick Google has gotten my interest. Thanks.

Daniel P. Tokaji: Me neither.

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Washington: Are you familiar with the Web rumor that if you come to vote with, for example, an Obama T-shirt on, you will be turned away?

Allen Raymond: No, I'll mention that to my wife. The Internet is a fertile field for such rumors. Examples of such abuse have been given us by the Democratic presidential primary regarding false allegations about Sen. Obama's religious agenda.

Daniel P. Tokaji: There are some states that have strict electioneering rules, prohibiting even buttons or T-shirts supporting a candidate in or near the polls. You should check the rules in your state before you go vote. Or, to be safe, just bring a jacket or sweatshirt to cover up your candidate's name when you enter the polling place.

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New York: Why does it seem like the GOP's modus operandi is to deny as many people as possible the vote, while the Democrats' modus operandi is to register as many as possible? Is there something that the GOP fears if a lot of people vote? Wouldn't the numbers just go up proportionally? I don't understand their constant (and continuous) efforts to disenfranchise voters. Do you?

Allen Raymond: This is one of several reasons: Low turnout is an advantage to the candidate/party with the most money. Elections are a cost-per-contact business (television gross rating points, price of a stamp/bulk rate mail, cost of a radio spot, etc.). Therefore, smaller turnout allows the better-financed campaign the ability to more effectively target and turnout voters predisposed to vote for them or their issue.

Daniel P. Tokaji: I'm reluctant to speculate on the motives of the political parties generally. And it's important to remember that these parties consist of many, many people, some of whom have higher ethical standards than others. It's more important to focus on the effects of particular actions and inactions rather than on intent. With that qualification, I do think it's true that -- at least in this election season -- it's perceived to be to the Democratic Party's advantage to expand participation among groups that have been less likely to vote in the past, especially young people. But we should bear in mind that expectations don't always match reality. A lot of Republicans worried that the so-called "motor voter" law (the National Voter Registration Act of 1993) would disproportionately help Democrats, but that doesn't appear to have been the case.

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Tampa, Fla.: I'm a lawyer who'll be watching polls for Obama in Hillsborough County, Fla., for Obama. Any suggestions on what I should be on the lookout for?

Allen Raymond: Voter challenge lists, particularly those developed from foreclosure records.

Daniel P. Tokaji: Thanks for volunteering to help our democracy! I agree on the challenge lists. Also, make sure voters are directed to the right precinct if they show up at the wrong one. And make sure that the state's identification law is being applied in a consistent, nondiscriminatory way. Finally, if voters are at the right precinct but aren't on the registration list but say they registered, then they have a right under federal law (the Help America Vote Act) to cast a provisional ballot.

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Southwest Nebraska: Should election officials like Katherine Harris and Ken Blackwell be barred from holding positions in support of a candidate? What type of oversight should be in place

Allen Raymond: I agree there is a clear conflict of interest when a holder of a constitutional office that has oversight of elections is able to endorse a candidate. However: there is also a clear First Amendment right that cannot be denied. It is the imperfect secret sauce of the American republic.

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Like what?: In your opinion, if voter suppression isn't a serious problem, what are the "most serious problems plaguing our democracy"?

Allen Raymond: Voter suppression is a serious problem; a more serious problem is disinterest. After that, the fact that elections are big business encourages the participation of bad actors, which seeds voter mistrust and disenfranchisement.

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Allen Raymond: Thank you all -- my hope is that I was able to shine a little sunlight on the process.

Daniel P. Tokaji: And thanks for having me. The questions were great. It's been a pleasure to participate. Don't forget to vote on Nov. 4!

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