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Marjorie Cohn: Litigating The Election

Litigating the Election

By Marjorie Cohn
t r u t h o u t | Perspective
Monday 22 November 2004

Without much fanfare, a number of lawyers are busy mounting court challenges to the election. Lawsuits have been filed and other actions are being taken in Ohio and Florida, the two key electoral states. Members of Congress have demanded a General Accountability Office investigation of the election. The largest Freedom of Information Act request in the nation's history has been launched, and other efforts are in the works.

Is there substance to these challenges? On Thursday, the University of California's Berkeley Quantitative Methods Research Team released a statistical study - the sole method available to monitor the accuracy of e-voting - reporting irregularities associated with electronic voting machines may have awarded 130,000-260,000 or more excess votes to Bush in Florida. The three counties where the voting anomalies were most prevalent were also the most heavily Democratic: Broward, Palm Beach and Miami-Dade, respectively. The official tally in Florida shows Bush with 380,978 more votes than Kerry.

Recount, Lawsuits, Hearings in Ohio

Green Party candidate David Cobb and Libertarian Party candidate Michael Badnarik have sought a recount of the votes in Ohio. A demand for a recount can only be filed by a presidential candidate who was on the ballot or a certified write-in candidate. Alleged improprieties in Ohio include mis-marked and discarded ballots, problems with electronic voting machines, and the targeted disenfranchisement of African-American voters. Although a recount doesn't typically begin until after the vote has been certified (December 6), Cobb and Badnarik have asked for the recount to proceed forthwith for fear there won't be sufficient time to complete the recount in time for the December 13 date on which the Ohio presidential electors will meet.

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Bush now leads Kerry by about 136,000 votes in Ohio. A battle is looming over nearly 155,000 provisional ballots, which might decide who really won the election. The Ohio Democratic Party has joined a lawsuit by elector Audrey J. Schering, which asks U.S. District Judge Michael H. Watson to order Ohio Secretary of State Kenneth Blackwell to impose uniform standards for counting provisional ballots on all 88 counties. The lawsuit cites the U.S. Supreme Court's opinion in Bush v. Gore, which "held that the failure to provide specific standards for counting of ballots that are sufficient to assure a uniform count statewide violates the Equal Protection Clause of the United States Constitution." Attorney Donald J. McTigue, who filed the suit, told me that although many of the provisional ballots are being counted, his client is concerned about those that are not being counted. Blackwell has provided only limited instruction about which provisional ballots to count. But many doubts remain about how different election boards determine whether someone is a registered voter. Some may type the name in on a computer; others may look for typographical errors; still others may look at the hard copy. McTigue worries that there is no way of knowing what each board is doing. Do they go back to the purged files? Were they properly purged?

Of the 11 counties that had completed checking provisional ballots by Wednesday, 81 percent have been ruled valid. McTigue expects the counting of provisional ballots to last at least two more weeks.

On Election Day, Sarah White filed a class action against Blackwell and the Board of Elections of Lucas County, claiming they violated the Help America Vote Act, passed in the wake of the 2000 election debacle, that gives voters in federal elections a right to cast provisional ballots. White claimed that although she requested an absentee ballot one month before the election, she never received one. Blackwell ruled that persons who had requested, but not received their absentee ballots, would not be permitted to cast a provisional ballot. U.S. District Judge David A. Katz, however, ordered that "the Board of Elections of Lucas County shall immediately advise all precincts to issue provisional ballots to those voters who appear at the voting place and assert their eligibility to vote, including that the voter is a registered voter in the precinct in which he or she desires to vote, and that the voter is eligible to vote in an election for Federal office."

Last week, the Ohio Election Protection Coalition held public hearings in Columbus. Extensive sworn and written testimony of Ohio voters, precinct judges, poll workers, legal observers, and party challengers revealed a widespread and concerted effort by Blackwell to deny primarily African-American and young voters the right to cast their ballots within a reasonable time. Precincts were deprived of adequate numbers of voting machines, so voters waited in lines from 2-7 hours, even though 68 electronic voting machines remained in storage and were never used on Election Day. Blackwell, who oversaw the election in Ohio, also served as co-chair of the Ohio Bush-Cheney reelection campaign. Lawyers for the Ohio Election Protection Coalition plan to use the testimony from the Columbus hearings to challenge the results of Ohio's presidential vote in the state Supreme Court next week.

Lawsuits in Florida

On Election Day, the American Civil Liberties Union of Florida and Florida Legal Services sued Miami-Dade County and Broward County election officials in U.S. District Court for denying voters sufficient time to mail in absentee ballots. The Broward County Supervisor of Elections sent 13,300 absentee ballots to voters late. Plaintiffs Fay Friedman, Adam Meyer, and Daniel Benhaim claimed the two counties violated the Civil Rights Act of 1964 and the First and Fourteenth Amendments because they did not receive their absentee ballots until Election Day, and it was therefore impossible to comply with state law requiring persons who are out-of-state but present in the U.S. to submit absentee ballots by 7 P.M. on Election Day. Under Florida state law, a separate rule gives more time to absentee voters outside the U.S., who may postmark their ballots by November 2 as long as the ballot arrives within 10 days after the election. JoNel Newman, a Florida Legal Services attorney, says, "The rules governing absentee ballots should apply equally to every voter, whether they are temporarily in other parts of the country or overseas." On Tuesday, U.S. District Court Judge Alan Gold denied plaintiffs' motion for a preliminary injunction to include the late ballots in the final vote tally; however, the lawsuit remains alive for trial on a request to apply the late counting rule used for foreign absentees to domestic ballots.

Opponents of slot machines at South Florida pari-mutuels filed a lawsuit seeking an official recount of about 78,000 absentee ballots cast in Broward County on Amendment 4. About 94 percent of the new votes on the amendment were "yes" and only 6 percent were "no," a "statistical anomaly." No hearing has yet been scheduled on the case.

Recount in New Hampshire

Pursuant to a request by Ralph Nader, votes in some New Hampshire towns are being recounted. An analysis showed wide differences in voting trends between the 2000 and 2004 elections; about three quarters of precincts with severe changes used Diebold optical scanning machines. Last week, Diebold agreed to pay $2.6 million to settle a lawsuit with the state of California. Diebold officials misled state leaders about the security and certification of its products to get payments from the state, according to California Attorney General Bill Lockyer. Diebold, which helped to count the Ohio vote with e-voting machines and optical scan machines, is headed by Republican CEO Wally O'Dell. Last year, O'Dell wrote to Ohio Republican donors, saying he was "committed to helping Ohio deliver its electoral votes to the President next year."

Lawsuits Challenge Mayoral Results in San Diego

Election results in San Diego's mayoral race remain in doubt. The unofficial tally shows Mayor Dick Murphy the victor. But write-in votes for Donna Frye have been excluded because voters did not darken the oval on the left of the line where they wrote in Frye's name. A lawsuit seeks to force the county registrar of voters to count the excluded write-in votes, which many believe will tip the results in her favor. Two other lawsuits are attempting to have Frye's candidacy ruled illegal and force a runoff between Murphy and Supervisor Ron Roberts. Frye ran on a platform critical of Murphy's financial leadership and the culture of secrecy at City Hall.

Congressmen Request GAO Investigation

Three members of Congress - John Conyers, Jr., Jerrold Nadler, and Robert Wexler - wrote to the Government Accountability Office on November 5, requesting an immediate investigation of the efficacy of voting machines and new technologies used in the 2004 election, how election officials responded to difficulties they encountered, and what we can do in the future to improve our election systems and administration. The Congressmen cited an electronic voting system in Columbus, Ohio, that gave Bush 4,000 extra votes; an electronic tally of a South Florida gambling ballot initiative that failed to record thousands of votes; a North Carolina county that lost more than 4,500 votes due to a mistaken belief by officials that a computer that stored ballots could hold more data than it did; a substantial drop off in Democratic votes in proportion to voter registration in counties utilizing optical scan machines that was apparently not present in counties using other mechanisms; and numerous reports from Youngstown, Ohio, as well as Palm Beach, Broward and Dade counties in Florida, that voters who attempted to cast a vote for John Kerry on electronic voting machines saw their votes instead recorded as votes for Bush.

Freedom of Information Act Requests, a nonpartisan, nonprofit consumer protection group for elections, has filed the largest Freedom of Information Act request in history. It seeks the internal computer logs (which are public records ) from voting machines from every county that used electronic voting machines. The organization has initiated fraud investigations in selected counties. It needs lawyers to enforce public records laws, as well as computer security professionals and citizen volunteers.

Open Records Act Motions

Cindy Cohn, Legal Director of the Electronic Frontier Foundation in San Francisco, told me that independent testing of voting machines could shed light on why so many people who tried to vote for Kerry saw their votes registered for Bush. Her organization is moving under the Open Records Act, which allows people to see government records, to gather information, including the impoundment of voting machines, in some counties in Florida, Ohio, New Mexico and Pennsylvania that had serious problems with the machines. Local counsel are needed to help with this effort. Cohn can be contacted at

Results Not Final Until January

Although John Kerry conceded that George W. Bush won the election, a candidate's concession is not legally binding. Electors will be certified on December 7, which gives a presumption of legitimacy to the vote; but electors actually vote on December 13. These votes are not opened by Congress until January 6, so there is still time to challenge the results in key states such as Ohio and Florida. A challenge requires a written objection from one House member and one senator. If that objection is recorded, both Houses separate again and they vote by majority vote as to whether to accept the slate of electoral votes from that state.

Bush is claiming he has a mandate, planning to spend his "political capital." Curiously, virtually all of the so-called "anomalies" in the voting results favor Bush. The electors have not yet voted; the election results are not yet final. In the words of Yogi Berra, "It's not over until it's over."


Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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