'Provisional' Democracy
Will Democratic lawyers make voter fraud easier?
wsj.com
Friday, October 22, 2004 12:01 a.m.
Here we go again. If you thought the aftermath of the 2000 election was messy, this year's Presidential contest may well make Afghanistan's recent vote look like ancient Athens. A major problem--or opportunity, if you're a lawyer--is something called "provisional balloting," as we'll explain below.
Let's first stipulate that both parties plan to fight over votes, and that both sides have some scoundrels who will cheat. But in the run-up to this Election Day, by far most of the accusations and the lawsuits have come from the Democrats. Even before votes are cast, they're accusing state ballot officials of conspiring to deny voters access to the polls.
Newsweek--hardly a Republican organ--reports that nearly every big battleground state "is being hit with a crush of Democratic Party lawsuits charging that the application [of antifraud laws] is arbitrary and unfair." In Florida, Democrats have filed no fewer than 10 suits against GOP officials. In New Mexico, Democrats managed to overturn a token photo ID requirement.
The race card is a big part of this strategy, as the nearby liberal political mailer shows. John Kerry and John Edwards regularly tell crowds that a million blacks had their votes "stolen" four years ago and that countless others were kept from the polls. Never mind that Janet Reno was the Attorney General in 2000, and that she dispatched platoons of lawyers to search for evidence of disenfranchisement and found nothing worth reporting. Yet on Saturday Mr. Edwards told a group of mostly black supporters, "We know they're going to be up to their old tricks, right, trying to keep you from voting."
Beyond firing up black turnout, this all looks like a setup to fight any close outcome in court. A Kerry/Edwards "Election Day Manual" that surfaced last week gives the game away: "If no signs of intimidation techniques have emerged," says the manual, "launch a pre-emptive strike," complete with press releases quoting "party/minority/civil rights leadership as denouncing tactics that discourage people from voting." Finally, a pre-emption doctrine that liberals can support.
In particular, Democrats have been promoting the use of "provisional" votes. Under the 2002 Help America Vote Act, anyone who shows up at the polls on Election Day is entitled to cast a ballot even if he isn't registered. Such a provisional ballot is then supposed to be set aside and investigated to make sure it is legitimate. The rules for verifying these ballots are up to the states, and in Colorado in 2002 some 3,000 provisional ballots decided the outcome in the Seventh Congressional District. It took the district's three counties, each of which had different rules for counting the ballots, 35 days to finish.
So in addition to delaying the election outcome for days, provisional voting has the potential to create all sorts of legal mayhem. Liberal groups have been suing around the country to overturn laws requiring that a provisional vote at least be cast in the precinct in which the person resides. In Ohio, Jesse Jackson mentioned Bull Connor this month in denouncing GOP Secretary of State Ken Blackwell for defending provisional ballot rules that were unanimously (and bipartisanly) adopted last year. And sure enough, a federal judge recently obliged and overturned the law.
Someone could now presumably cast provisional votes in several Ohio precincts on Election Day, in the hope that they aren't compared across district lines and more than one would be counted. In a close race, partisans will surely demand that all such votes be counted--and will accuse anyone who objects of denying voter access, or of racism if the provisional voters are minorities.
You don't have to be a cynic to imagine that some polling places will be rushed with dozens, even hundreds, of unregistered voters, perhaps just as the polls are scheduled to close. The right to cast a provisional ballot will then become an excuse to sue to keep polls open later, which is precisely what happened in 2000 in St. Louis and might have cost then-Senator John Ashcroft his seat. Any refusal would be cause for another equal-protection lawsuit that could take weeks to settle.
Don't take our word for it. Listen to John Kerry, who laid out the strategy at a rally in April: "We are going to bring legal challenges in those districts that make it difficult for people to register," and his aides are telling reporters they'll insist that "every vote is counted," implying every provisional vote.
Not that the partisans care, but there's a larger principle that is in danger of being trampled here. A fair election requires two things: The ability to cast a ballot but also the confidence that any vote is honestly cast. The count-'em-all-legal-or-not-and-sue strategy stomps on the second principle in order to serve the first. Denying the right to vote was common in many areas before the Voting Rights Act of the 1960s, but there is no evidence that it was a problem at all in 2000.
What we are seeing now isn't an attempt to prevent injustice but looks to be a calculated political strategy to create enough confusion at the polls to justify legal challenges that will cloud any close Presidential outcome. Let's hope we have a clear winner on Election Night, or we may all wish we were in Afghanistan.
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