Judge allows lawsuit challenging adequacy of Ohio election system

Allows Historic Voting Rights Action to Proceed - Warning Bell in Ohio

Warning Bell in Ohio

Tova Andrea Wang
The Century Foundation

12/6/2005

A federal court in Ohio has just issued a decision that has potentially enormous significance for elections all over the country. In The League of Women Voters et al. v. Blackwell, a federal judge denied a motion to dismiss by the Governor and Secretary of State. Instead, he ruled that if the League and other voting rights organizations can demonstrate there were “systemic breakdowns” in the election system that led to widely disparate levels of voting access throughout the state in 2004 (and for over three decades before that), the state likely violated the Equal Protection Clause of the Constitution.

Judge James G. Carr writes,

"Put simply, LWV contends that defendants’ election system provides different voting rights to different citizens based solely on where those citizens happen to reside and vote. Some citizens get short lines, properly functioning voting machines, well trained and informed poll workers, accurate registration information, and the opportunity to cast unencumbered absentee or proper provisional ballots.

Other citizens, due to the vagaries of residence and registration, encounter long lines, defective voting machines, ill-trained and uninformed poll workers, inaccurate registration information, and absentee or provisional ballots that are ultimately deemed invalid.

If LWV’s allegations are well founded, defendants may be depriving citizens of the franchise depending on where they live in violation of the equal protection clause."

snip

What makes this case all the more interesting is that the judge found that the Governor and Secretary of State were the proper defendants in the action. In other words, those at the top will be held responsible for ensuring that our democracy is equally accessible to all voters—regardless of race, ethnicity, and yes, where they happen to live.

It also shows that no matter how many laws the federal or state government passes, if elections officials implement them in a wrongful or incompetent manner, true election reform can never have real meaning.

snip/wow!

http://www.tcf.org/list.asp?type=NC&pubid=1153





Court Allows Historic Voting Rights Action to Proceed against Ohio Governor and Secretary of State; Non-Partisan Lawsuit Seeks to Redress Constitutional Defects in the Ohio Elections

December 05, 2005

snip

The court specifically rejected arguments by the defendants that state officials are not responsible to protect voters' rights in Ohio. The court stated that even "inaction that diminishes the right to vote" may be unconstitutional

under the Equal Protection Clause and that state officials "cannot adopt policies leading to disparate treatment of those voters and thereafter plead 'no control' as a defense." The court held that if the defendants acted with "deliberate indifference" and that indifference resulted in injury to the voters, the state defendants would be in violation of the Due Process Clause. The court dismissed as premature one statutory count under the Help America Vote Act. The court has set the case for trial in June 2006.

snip

The lawsuit does not challenge the results of any past elections. Instead, it seeks to protect the rights of Ohio voters in future elections.

Filed originally in federal court in Toledo on July 28, 2005, the complaint chronicles deficiencies over more than three decades, including widespread problems with the voter registration system, the absentee and provisional ballot processes, the training of poll workers, the organization of polling places and precincts, and the allocation of voting machines. The lawsuit seeks to compel the state defendants to carry out their duties to protect the fundamental right to vote in time for the November 2006 general election. The relief sought would require the state defendants to exercise their authority to repair the problems at all stages of the Ohio elections process. This will include removing the burdens that disenfranchise Ohio voters and, as a practical matter, make the ability to vote vary widely from county to county.

snip

http://home.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=20051205006032&newsLang=en





Judge allows lawsuit challenging adequacy of Ohio election system

Associated Press

TOLEDO, Ohio -

snip

Secretary of State Kenneth Blackwell and Gov. Bob Taft had sought to dismiss the complaint, saying it should be directed at individual counties with election problems. The lawsuit also names Blackwell's predecessors dating back to the 1970s, including Taft.

"There is no question that LWV (the League) has alleged actionable constitutional violations," Toledo-based U.S. District Judge James Carr wrote on Friday, rejecting the request. "What remains is whether Secretary Blackwell and Gov. Taft are legally responsible for those violations."

Carr also refused to move the lawsuit to the Columbus court from Toledo.

Carr did throw out one claim that the state is not meeting requirements of the federal law meant to make voting easier. Ohio has until next month to comply, and the last 44 of the 88 counties expect new voting machines this month, Blackwell spokeswoman Carlo LoParo said.

snip

http://www.ohio.com/mld/beaconjournal/news/state/13335226.htm

:bounce: :bounce:

Thanks for posting! Recommended & celebrated, of course :toast:

We still have Blackwell and we still have O'Dell and his Diebold voting machines here in Ohio. And we will still hae questionable elections until they are dealt with.

Whatcha gonna do about it?

Looks like this lawsuit is trying to make a difference, but your indifference to it makes me wonder if you understand or really care.

I think it was Stalin that said its not who votes that counts. Its who counts the votes. I am a registered Ohio voter. I care a lot that my vote counts. What good does it do to make sure more people can vote with less hassle if the machines are still crooked and those who count the votes are still crooked. Look at what just happened here with issue 2, 3, 4, and 5. 44 of Ohio's counties just used new Diebold machines for the first time. The other counties will have them in time for 2006 elections. These machines were forced on Ohio by Blackwell. That is what I meant by So? We are locking the hen house, but the fox is still in there.

The converse is also true. That is, what good are trustworthy processes for recording and tabulating votes if citizens are thwarted in their attempt to vote? (No system can count votes that were never cast.)

The key encouraging thing about this decision is that it constitutes a critical step toward recognizing the following simple truth:

We the People, through our representatives, have defined election laws to ensure elections that are free and fair and reflect our will. A free and fair election is one in which every citizen has an equal opportunity to cast their vote and have that vote accurately counted. Any rationalization that justifies violation of this right cannot be tolerated.

Cynical misuse of our courts and a fascist view of the law continues to block our ability to make progress in our fight for trustworthy elections. Anything that breaks through the muddled thinking -- as I believe this does -- supports progress on multiple fronts.

Certainly, secret vote counting is intolerable and puts the power to control the outcome in the hands of the counters, but we cannot get so lost the fight against the machines that we neglect the other critical requirements of a trustworthy election.

To have confidence, the processes for qualifying to vote, registering, casting votes, tabulating votes, reporting results and verifying results must be open, understandable, and accessible to all. The guy down the street who dropped out of high school must be able to make sense of the how every aspect of our elections are conducted. (He may or may not bother to find out, but if he does, he needs to be able to make sense of it all.)

Added on Edit:
When people break through the thinking that blocks action, change can come very fast. If we only made one change to our laws, we could virtually eliminate fraud. Simply make attempt to manipulate the outcome of an election by preventing voters from registering, suppressing the vote, or corrupting the count a capital offense. By and large, these people are cowards. They leave fingerprints on their actions and they know it. Few, if any, would try to corrupt the process in the face of such dire consequences.

I just read your other posts. I agree with you 100%. But how do we insure that local, state, and federal officials are honest? We need non-partisan voting officials, one of the very issues that was defeated here in Ohio.

The Ohio Republican Syndicate is in trouble. Nye is the thin end of the wedge for investigation and prosecution. Now Liebald is facing a class-action suit for stock manipulations and improprieties...*ahem*...ALLEGED improprieties. Even if the Democrats are moribund in OH, the current crop of Repugs is likely to be replaced by lesser evils.

If this lawsuit is the crack in the dike that leads back to Rove my prayers will be answered. There was a picture on election night of Rove talking on the phone. I want to know what time that picture was taken and who he was talking to and what about. Blackwell? I want to know why Kerry conceded within hours. Threatened? I want to know why Bush hasn't fired Rove. Because Rove knows who stole the election and how? Because if Rove goes, Bush goes? I want to see Rove in the pit with the pendulum swinging lower and lower. Maybe this judges decision is the beginning of the end of Rove.

of the Constitution..." INDEED!

Here's hoping that it blows the lid off of the whole issue of election fraud, and that some real reform will result.

K&R

http://www.truthout.org/docs_2005/120605D.shtml

House Bill 3 has already passed the Ohio House of Representatives and is about to be approved by the Republican-dominated Senate, probably before the holiday recess. Republicans dominate the Ohio legislature thanks to a heavily gerrymandered crazy quilt of rigged districts, and to a moribund Ohio Democratic party. The GOP-drafted HB3 is designed to all but obliterate any possible future Democratic revival. Opposition from the Ohio Democratic Party, where it exists at all, is diffuse and ineffectual.

HB3's most publicized provision will require positive identification before casting a vote. But it also opens voter registration activists to partisan prosecution, exempts electronic voting machines from public scrutiny, quintuples the cost of citizen-requested statewide recounts and makes it illegal to challenge a presidential vote count or, indeed, any federal election result in Ohio. When added to the recently passed HB1, which allows campaign financing to be dominated by the wealthy and by corporations, and along with a Rovian wish list of GOP attacks on the ballot box, democracy in Ohio could be all but over.

<snip>

With campaign finance, voter registration, electronic voting, public recounts, district gerrymandering and overall electoral administration now firmly in the pocket of the GOP, and with Democratic opposition that is virtually non-existent on the issue of vote fraud and election manipulation, there is little reason to believe the Republican grip on Ohio will be loosened at any point in the near future.

In traditional terms, the scandal-ridden Ohio GOP would appear to be more vulnerable than ever. Governor Robert Taft has become the only Ohio governor to be convicted of a crime while in office. With an astonishing 7% approval rating, he has been compared to Homer Simpson by the state's leading Republican newspaper. Republican US Senator Mike DeWine appears highly vulnerable. The GOP has never won the White House without winning the Buckeye State.

But HB3 will solidify the GOP's iron grip on the electronic voting process and all that surrounds it. Unless they break that grip, Democrats who believe they can carry any part of Ohio in 2006 or 2008 are kidding themselves.

"HB3's most publicized provision will require positive identification before casting a vote. But it also opens voter registration activists to partisan prosecution, exempts electronic voting machines from public scrutiny, quintuples the cost of citizen-requested statewide recounts and makes it illegal to challenge a presidential vote count or, indeed, any federal election result in Ohio. When added to the recently passed HB1, which allows campaign financing to be dominated by the wealthy and by corporations, and along with a Rovian wish list of GOP attacks on the ballot box, democracy in Ohio could be all but over."

jeez. Can they really do this?

:grr:

The machines can be shown to have produced impossible results (the recent OH initiative), to be easily hackable, eminently capable of being fraudulently programmed at the factory, etc. Almost any computer scientist could testify to these "facts."

Why is this not vote manipulation? When the elections officials make it not only possible but also almost certain that fraud will take place, why is this not voter manipulation, and when you manipulate the vote for a desired outcome, NOTHING SUPPRESSES THE VOTE MORE THAN THAT. Elections officials have a responsibility to ASSURE that the vote is transparent and fair it seems to me. Why is it not possible to take this to court?

There is incontrovertible evidence IMO.

And also, IMO, it needs to be kept separate from the machine thing because the remedy is quite different. No amount of PBHCs or random audits will restore the vote of someone who didn't get as far as the precinct.

Plus it's a civil rights issue.

This is EXCELLENT news.

"the judge found that the Governor and Secretary of State were the proper defendants in the action. In other words, those at the top will be held responsible for ensuring that our democracy is equally accessible to all voters..."

In other words... quit passing the buck down the line.

You live to fight another day in court. Great news! Kudos to
The League of Women Voters et al. :applause::applause::applause:



Sonia

limit access to voting, the larger issue of transparent and verifiable voting is still out there! Still a positive step!

Finally! A form of "The Question" expressed in a judicial decision.

The Question (Posed to members of Congress in the fight for objections Ohio electors on January 6th):

Are hours-long poll-tax-lines for poor, minority voters AND none for affluent, white voters a tolerable condition for you? On January 6th, 2005, will you uphold the objection to electors from a state where this is the documented reality, or become complicit with the perpetrators of this condition?

to destroy the neutrality of the judicial system. Another "activist" judge who has the gall to believe in the rule of law! How dare he? Expect a vilification campaign and efforts to destroy this case in some way.

This needs to be followed closely and all dirty tricks exposed for what they are as soon as they happen.

We need those machines OUT of our polling places. For good. I don't trust them OR their manufacturers as far as I can pick up and throw one of the damn things.

taking place between the League of Womens Voters and Velvet Revolution as this suit progresses. And I'd bet 10 to 1, there will.

:woohoo:

and having driven to many of our crowded polling places that fateful November day, all I have to say is YAY!

This is a great step forward. I hope that getting rid of the machines themselves will be next.

:woohoo: Thanks, Wilms! K&R

p.s. WHAT ARE THEY HIDING?

Thank you sir, may I have another.


:thumbsup:

Blackwell in court if they get a fair hearing. They would not take this step if it were not absolutely justified. I take their word.

Great post.

December 06, 2005

Federal lawsuit alleging Ohio election system inadequacies moves forward

Katerina Ossenova at 11:32 AM ET

A federal judge has refused to dismiss a lawsuit that accuses Ohio election officials of violating constitutional rights to equal protection and due process. The League of Women Voters sued state election officials, claiming that the current system deprives citizens of voting rights, citing examples from the 2004 election . LWV insists that Ohio's system has harmed voters for 30 years by failing to issue absentee ballots, discounting legitimate ballots, and not accommodating disabled voters. It believes that improved training for local elections officials will work to redress these inadequacies. Secretary of State Kenneth Blackwell and Governor Bob Taft have vowed to fight the allegations. The lawsuit does not challenge the results from the Ohio presidential election even though a handful of challenges to recount procedures and other issues remain.

snip/tons of links

http://jurist.law.pitt.edu/paperchase/2005/12/federal-lawsuit-alleging-ohio-election.php

Even if this case proceeds, will it survive the appellate and/or SCOTUS?

This is an excellent development, but don't the effects of "deliberate indifference" also constitute an unconstitutional poll tax?

Lastly, can this case lead to practical injunctive relief prior to the 2006 elections?

I have been watching for news of "the lawsuit in Ohio" as I thought of it over recent months but only now realize that there are actually three separate cases (two of which have now been consolidated). In addition to the WLV case that is the subject of the OP, which alleges broad disenfranchisement, there are also two recount cases alleging that the way the recount was administered was unconstitutional. Judge Carr is presiding over all of them. There will be two trials, one for the WLV case and another for the two consolidated recount cases.

Here's an update from NVRI that makes all of that clear:



Here's the amended complaint for the recount cases:
http://www.nvri.org/about/ohio_cobb_badnarik_amended_091905.pdf

It's a multiple front battle, legal on many fronts, and legislative on many fronts. Let's keep the dice rolling and the pawns moving on the chessboard.
Please add your name to Rush Holt's H.R. 550 election integrity and securiy petition if you haven't done it yet.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x404110

"House Bill 3 has already passed the Ohio House of Representatives and is about to be approved by the Republican-dominated Senate"

The GOP-drafted HB3 is designed to all but obliterate any possible future Democratic revival.

"HB3's most publicized provision will require positive identification before casting a vote. But it also opens voter registration activists to partisan prosecution, exempts electronic voting machines from public scrutiny, quintuples the cost of citizen-requested statewide recounts and makes it illegal to challenge a presidential vote count or, indeed, any federal election result in Ohio. When added to the recently passed HB1, which allows campaign financing to be dominated by the wealthy and by corporations, and along with a Rovian wish list of GOP attacks on the ballot box, democracy in Ohio could be all but over."

HB3 will make it virtually impossible for any challenge to be mounted involving any votes cast or counted on electronic machines or tabulators -- meaning virtually every vote cast in Ohio.

http://www.lookingglassnews.org/viewstory.php?storyid=3922