Obama Lawyers Defend ‘Vote Fraud’ Efforts
As Republican charges of “fraud” and Democratic claims of “voter suppression” have escalated in the home stretch of the presidential election campaign, liberal activists have started blasting Sen. Barack Obama’s presidential team’s “voter protection” effort for not doing enough to ensure that all Democratic votes are going to be counted on Election Day.
Many activists say that voting machines have been demonstrated as vulnerable to tampering, and when there is no paper trail of the votes cast, problems are possible. These advocates are worried that Obama’s campaign is not doing enough to make sure that the electronic voting machines are properly calibrated — so that a vote cast for Obama goes to Obama.
Illustration by: Matt Mahurin
They are also concerned that the Obama campaign’s legal effort has been not been aggressive enough. They point to Pennsylvania, where the NAACP sued to force the Democratic-controlled state government to provide paper ballots where electronic voting machines have failed. The NAACP won the suit — but the Obama campaign never joined in.
Liberal bloggers talk about how Obama could do more to publicize voting problems — like technical glitches in voting machines and GOP efforts to hold down turnout — in the same way it has countered Republican-generated smears and robocalls.
“I remain not just exceedingly skeptical,” the voter protection blogger Brad Friedman wrote in his blog, Bradblog, last week, “but downright furious at the party’s brazen willingness to allow millions of votes to go either uncounted, incorrectly recorded or recorded in such a way that is 100 percent unverifiable by any human being,”
“They need to get over their tortured thinking that discussing these issues somehow depresses turnout,” Friedman wrote in an email, “There is zero evidence for that thinking.”
Obama’s chief election law attorney, Bob Bauer, disagrees with that argument. Bauer says that evidence from the 2004 election demonstrates that highlighting problems with voting machinery and voter suppression turns off Democratic voters.
“It’s never helpful if the environment is filled with hyperbole about false claims.” Bauer said in a phone interview Thursday, “Voters don’t want to hear it. We’re not going to fall for [the Republicans’] public-relations bait. But if they take a concrete action we will respond to it.”
Bauer maintains that the Obama campaign has moved quickly to respond to technical problems with voting equipment and quell any efforts to deceive voters.
For example, in northern Nevada, Bauer said, many Latino voters had received calls telling them that they could vote by phone. The Obama campaign responded to set the record straight.
When voting machines used in early voting started flipping Obama votes to McCain recently, lawyers from the campaign’s Machine Task Force were dispatched to West Virginia to make sure the machines were properly calibrated.
The Obama campaign, however, has not held a single pres0s conference to highlight these issues.
Bauer and other lawyers close to the campaign, however, said that the campaign’s voter protection effort is more aggressive, more robust and started earlier than that of the Kerry campaign four years ago.
The Obama team has more than 100 paid staffers and full-time volunteers working on voter protection, according to a memorandum sent last week to members of Congress from the Democratic National Committee’s staff attorney, Justin Levitt.
In addition, since the Obama campaign asserts that voter protection is as much a public-relations battle as a legal one, Bauer and the DNC outside counsel, Joseph Sandler, have hired Jenny Backus, a Democratic strategist, as a spokeswoman.
“[Sen. John] Kerry had amassed a pretty large operation himself in terms of having lawyers out there ready to pounce,” said Kenneth Gross, a campaign finance and election law attorney at Skadden, Arps. “Whatever Kerry had, is that much more sophisticated and that much more vibrant…. They are poised to bring action if there are irregularities on Election Day.”
Like Kerry four years ago, the Obama campaign hired a “voter protection coordinator.” This staffer, usually a lawyer, works with field organizers to help register and educate voters, consults with local and state officials to identify potential problems and implements a lawyer recruitment program to get volunteers out to the polls on Election Day.
In Michigan, the campaign and the state party share the same attorney, Mary Ellen Gurewitz, an election law specialist with the Detroit firm of Sachs Waldman. Renee Paradis, a former attorney at the Brennan Center for Justice, is the campaign’s voter-protection coordinator.
Obama’s attorneys, in Michigan and elsewhere, say that more votes are lost to incompetence than fraud or suppression. But they are, nonetheless, trying to keep tabs on proactive suppression efforts.
Friedman, the blogger, disputes this. He says that one serious issue is with electronic voting machines that are prone to error, because there is no way to know whether a vote has been lost.
“They are making no effort to remove these machines,” Friedman said. “It’s exceedingly troubling.”
Ultimately, it won’t be clear whether the Obama campaign’s legal effort has been a success until Nov. 5. But Edward Foley, a law professor at the Mortiz College of Law at Ohio State University, remains concerned that in some states, like Pennsylvania, the lack of a paper trail could undermine the outcome of the election.
Lawyers in Michigan said they have identified trouble spots from previous elections. They say they have made sure that precincts are prepared to handle what is expected to be record turnout.
Efforts to make Election Day go more smoothly are expected to include: handing out sample ballots, dividing long lines alphabetically, posting easy-to-read signs and monitoring to ensure that voters are standing in the right place if a polling station includes more than one precinct.
In New Mexico, Ann Marie Puente, an official with the Travis County Democratic Party in Texas, is the Obama campaign’s voter protection coordinator. She has one deputy. Neither are lawyers but they are building a network of more than 600 out-of-state lawyers to help on Election Day.
In Colorado, the Obama campaign has set up a similar structure with Tim Karpoff, a lawyer from the University of Chicago who worked for Kerry in 2004, heading up the voter protection effort in Wisconsin.
In October, Obama campaign aides sent an email out, seeking volunteers for Spanish-speaking poll workers and watchers. As of Oct. 22, only a small portion of Denver’s polling stations had the requisite number of Spanish-speaking staffers as required by state law.
The campaign also asked for volunteers to head to various counties around the state with sizable Spanish-speaking communities.
As for litigation, Bauer has settled on a strategy of surgical legal strikes, while relying on liberal advocacy and civil-rights groups to stop any efforts to disenfranchise eligible voters.
Though not a hard and fast rule, Democrats expect to take legal action in states where Republicans control the election and voting processes; while Republicans expect to do the opposite.
“If your party is in control in that battleground state, the national campaign will leave it to the local officials,” Gross said. “If your person is not in power they start to get very anxious and paranoid.”
Bauer has won a suit in Michigan and in Montana last month. In Michigan, Republicans promised not to specifically challenge voters whose homes had been foreclosed. In Montana, a judge blocked the Montana’s Republican Party’s effort to declare thousands of voters ineligible.
In Ohio, the Supreme Court ruled that citizens could register to vote and cast a ballot on the same day during the state’s early voting period. In Indiana, state Republicans failed to centralize early voting sites in a government building; state courts ruled that satellite centers for early voting will remain open.
The NAACP won its lawsuit in Pennsylvania and in Colorado, advocacy groups won a commitment from the Republican secretary of state not to purge voters from registration rolls. In New Mexico, the ACLU and Mexican American Legal Defense Fund have filed separate lawsuits alleging GOP-sponsored voter intimidation and suppression. They have not been resolved.
For a list of pending lawsuits across the country, go here.
“No question that the Republicans have put [up] a good bit of activity and tried at a very high level to run a challenge program at a very high level. If you take a look at [their] record of success, it is dismal,” Bauer said. “They have lost in every state where we have engaged with them.”
Friedman says the Obama campaign still needs to be more aggressive.
“They need to bring lawsuits loudly and immediately, dozens of them, wherever necessary,” he wrote in an email.
Bauer says he has made a conscious effort to fight the legal battles on his terms rather than McCain’s. He held several conference calls with reporters after Republicans accused the Assn. of Community Organizations for Reform Now, or ACORN, and the Obama campaign of working together to register fraudulent voters.
But rather than engaging McCain’s “Honest and Open Election Committee,” led by former GOP Sens. John Danforth (Mo.) and Warren Rudman (N.H.), Bauer turned the tables on McCain’s campaign by calling on the U.S. attorney general to investigate links between McCain’s campaign and federal law enforcement officials.
In a letter sent to Atty. Gen. Michael Mukasey on Oct. 20, Bauer asked that DOJ’s special prosecutor investigate “an emerging pattern of apparent unlawful coordination” between the McCain campaign, DOJ and Republican officials at the state level.
Four days later, Bauer sent Mukasey a letter asking him not to follow up on a White House request to intervene in Ohio and elsewhere to set up a system to challenge voters’ eligibility. Mukasey subsequently said he would not intervene.
In focusing on Mukasey, Bauer tied GOP efforts at encouraging state and federal officials to investigate voter registration fraud back to the Bush administration’s firing of eight U.S. attorneys for political reasons, including their unwillingness to pursue voter fraud cases. A special prosecutor is examining whether DOJ officials violated federal criminal law.