See No Evil
Eyes Shut to 2004 Election Irregularities Recall 2000 All Over Again
By Paul Rosenberg, Senior Editor  

     For many of those who saw Michael  Moore’s “Fahrenheit 9/11,” the most memorable  part  had nothing to do with terrorism or the invasion of Iraq . Instead, they were struck by the parade of African-American Congressmembers objecting to the conduct and official outcome of the 2000 Presidential Election in Florida—a parade of objections that came to naught because no Senator would join them in their objection. This precluded a Congressional debate on whether to accept Florida ’s electoral votes, as required by the Electoral Count Act of 1887, passed after the deeply divisive Hayes-Tilden election of 1886. Eventually, independent analyses would show that Gore actually received more votes, and would have been elected if valid overvotes had been counted, as the judge presiding over the recount intended. But this did not come out until after 9/11, and was buried by the corporate press in a show of national unity. Still, nearly 50 percent of all Americans regarded Bush’s election as illegitimate shortly before the 2004 elections.
     Amazingly enough, in the first week of 2005, America seemed headed for a repeat performance, as Congressional investigators looking into the conduct of the 2004 election in Ohio battled media indifference and struggled to find a Senator to join in their objections—though activists hold out the hope that several will step forward as a group, defusing anticipated ad hominem attacks. This time out, most Democrats accept Bush’s victory. But around 20 percent of the whole population does not—despite a virtual media blackout of the problems involved and the charges raised, and Kerry’s betrayal of his promise to fight for every vote to be counted. Dozens of websites continue to track new developments and evidence of irregularities.
     On December 31, Congressmember John Conyers, Jr., Ranking Member on the House Judiciary Committee, sent a letter to all 100 senators, informing them that “I and a number of House Members are planning to object to the counting of the Ohio votes, due to numerous unexplained irregularities in the Ohio presidential vote, many of which appear to violate both federal and state law,” and asking for their support: “I am hoping that you will consider joining us in this important effort to debate and highlight the problems in Ohio which disenfranchised innumerable voters.”
     Conyers does not claim that Kerry won Ohio outright—only that severe irregularities and voting rights violations occurred, which need to be seriously investigated, remedied and prevented from recurring. Supporting Conyers’ efforts would do no more than ensure that both houses conduct a two-hour discussion and debate about the conduct of the presidential election in Ohio . Republican majorities in both houses ensure that neither would overturn the election.
     But even a discussion of the irregularities in Ohio is beyond the pale in Republican eyes, and Democratic senators seem to agree so far. Given the racial patterns evident in major irregularities—such as distributions of voting machines, ballot spoilage and registration problems—there is a strong parallel to the pre-Civil Rights era, when the threat of a filibuster kept the Senate from ever debating a federal anti-lynching law.
     This “see-no-evil” outlook was captured in Justice Scalia’s opinion on the restraining order in Bush v. Gore in 2000, which stopped the recount of votes. Scalia argued that allowing the recount to continue would constitute “irreparable harm” to Bush, because it would undermine his credibility if the vote turned against him, and the Supreme Court then threw out the vote, in effect appointing him to office.  He wrote, “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”
     Justice Stevens, in dissent, tartly retorted, “Counting every legally cast vote cannot constitute irreparable harm,” while Constitutional scholars pointed out that Congress itself was the legally designated body to making such decisions, both under the Constitution and the 1887 Electoral Count Act. But the Court’s conservative majority seemed eager to prevent the decision from going to a political body, where it would have to be politically defended.
     While Conyers has spearheaded a vigorous investigation by members of his Congressional Committee, Republicans have boycotted his hearings, election officials, pollsters and media organizations have defied requests for information, and no senator has stepped forth to support these efforts prior to Jan. 6, despite the Kerry Campaign pledge to fight to make sure that every vote was counted—a pledge that was repeated after the election, only to be reversed a few hours later, when Kerry conceded, prematurely according to critics.
     Among the key barriers in the way of getting at the truth are:
(1) Ohio Secretary of State Kenneth Blackwell (a co-chair of Bush’s campaign in the state)  has replicated the  partisan stonewalling of Florida Secretary of State Katherine Harris (a co-chair of Bush’s campaign in the state) in 2000.  Blackwell threw up numerous barriers to new registrations and voting, backing down on several fronts only under severe pressure and/or legal decisions against him. After the election, Blackwell first dragged out the certification process, and then helped undermine the proper conduct of the recount by failing to enforce the law. Hand recounts of three percent of precincts, randomly selected, were supposed to trigger full recounts if substantial deviations were found. But many counties selected precincts non-randomly, allowed machine manipulations to minimize deviations, and failed to examine glaring discrepancies.
     “You’re allowing the original error to be repeated a second time, so it’s not a meaningful recount,” said Common Cause lawyer Cliff Arnebeck, a lawyer representing voters in a separate challenge to the election.
     Blackwell also refused to answer numerous questions put to him by Conyers congressional investigation.
(2) Ohio State Supreme Court Chief Justice Thomas Moyer, who has refused to remove himself from a case challenging the results of the presidential election, despite the fact that he is the defendant in a parallel lawsuit challenging his election on related grounds. The two suits were originally filed as one, which Moyer dismissed, claiming that only one election could be challenged in a single suit. Moyer also denied motions to expedite proceedings and preserve evidence held by county election boards, effectively ensuring Bush’s election.
     “The important thing about the judicial process is the concept that you have a neutral judge,” said Arnebeck, lead attorney on the suit. “It’s disappointing that doesn’t seem to be the priority here.”
(3) Private companies in the voting machine business, who have stonewalled attempts to examine their software, tabulation procedures and other matters that have traditionally been in the hands of local officials and ordinary citizens at the precinct level. Company employees even “adjusted” machines prior to the recount, so that discrepancies in the hand recount of three percent of precincts would not trigger a full hand recount of all precincts.
(4) Private pollsters and news organizations that have withheld raw exit poll data, specifically requested by Conyers. Exit poll data early in the day indicated a sweeping Kerry victory. Ordinarily, Democratic voters, disproportionately working class, turn out more heavily after work. One analyst, University of Pennsylvania professor Steven F. Freeman, has calculated that the odds of Kerry’s losses in Florida and Ohio, and near-loss in Pennsylvania compared to his exit polling was about 662,000 to 1. Other analysts dispute this, pointing to other instances when exit polls have been wrong, and highlighting differences in exit poll reliability in different situations. But the raw data being withheld could go very far toward settling these disputes, one way or the other.  Without it, deep uncertainties remain.
     The deepest uncertainty is why Republicans are fighting so hard to prevent a full airing of the facts.  If Bush really won, and they are so confident, critics ask, what have they got to hide?
     One of the most prominent, well-organized online critics, known simply as Georgia10 at DailyKos.com, put it like this:
     “What happened in Ohio happened in every battleground state.  There are fundamental unanswered questions, which must be answered before we so quickly declare that the 2004 election went off without a hitch.  We have a clear choice: accept the dangerous and unjust status quo, or act immediately for investigation and reform.”