No Comment — October 26, 2008, 9:27 am

Will Justice Hack the Vote?

In my article “Vote Machine: How Republicans Hacked the Department of Justice”, I surveyed the ways in which the Bush Administration systematically uses the Department of Justice to advance its position in electoral contests around the country. The techniques have been varied and ingenious and are not limited to the now-obvious shenanigans in the Voting Rights Division. In fact, a series of high-profile political figures were targeted with bogus prosecutions in the midst of election cycles—the case of Alabama Governor Don Siegelman, in which Karl Rove lurked detectably in the background, is now perhaps the best known of these. The U.S. Attorneys scandal was, as the Inspector General’s report has now confirmed with copious evidence, largely about the manipulation of elections, and the weight and substance of the allegations–coupled with the stonewalling by Rove, Gonzales, and others–was more than enough to convince the attorney general of the need for a special prosecutor to delve into the matter.

These abuses were cataloged in the Ashcroft and Gonzales Justice Departments, of course. But has Attorney General Michael Mukasey, who entered office with a firm pledge to put a stop to the political skulduggery at Justice, kept his promise? Maybe not. Right now the spotlight is on Mukasey, and in the next days he will make his decision to be an agent of Republican voter suppression, or not.

The immediate question comes out of Ohio, the birthplace of presidents—Republican presidents, that is. Ohio has the strongest G.O.P. profile of the states of the old rustbowl Midwest. Republicans don’t win the White House without Ohio—it’s that simple. But the Ohio G.O.P. has fallen on extremely hard times. Corruption scandals touching much of the state’s G.O.P. hierarchy and general disenchantment with the performance of George W. Bush, the most disapproved-of president since pollsters started asking that question in the waning days of World War II, have put the party’s privileged position in jeopardy. Ohio voters dealt a severe rebuke to the G.O.P. in 2006, and current polling suggests that they are about to do it a second time, in just a week. In the view of the Ohio Republican leadership, emergency measures were necessary to stem a Democratic tide. So they turned to the old standard, the “voting fraud” fraud. With the voting rolls swelled with new registrants who are largely Democrats and disproportionately drawn from students, minorities and lower and middle income groups, Ohio Republicans knew exactly where to strike: they developed a series of tactics designed to ensure that the roughly 200,000 new voters would not be able to vote, and if they did, their votes could be tossed.

Their ploy has been to press the Ohio secretary of state to provide information on newly registered voters so that the registrations can be challenged on “mismatches,” that is, any discrepancy between the registration data and other official databases. A mismatch can occur when numbers are transposed in an address or birthdate, when punctuation conventions differ (for instance, whether a period appears after “Jr”), when a portion of a name is represented by an initial instead of being spelled out, or when an address includes an abbreviation rather than a fully spelled word (“Ave” or “Av” rather than “Avenue”). The Ohio G.O.P. are set up to challenge each such discrepancy and thereby to disqualify the new voters. And of course they do this not because they suspect fraud but to gain a tactical advantage—the new registrants are overwhelmingly Democrats.

The first Republican ploy was to sue in federal court. After a panel of the Court of Appeals ruled for the voters, the Republicans took the matter to the entire court en banc. The Sixth Circuit is known as the most politically polarized court of appeals in the United States, and the Republicans reckoned that the Republican majority of the judges would stay faithful to the party that put them in place. They were not disappointed in this expectation. However, the Supreme Court surprised many observers by overturning the G.O.P. victory on highly technical grounds.

With the clock ticking, however, the Republican Party still had one trick up its sleeve. It decided to instruct the Justice Department to implement its plan—doing an end-run around the Supreme Court’s ruling. The Washington Post reports the details: House minority leader John Boehner, the senior figure of the Ohio G.O.P., wrote Attorney General Mukasey demanding he implement the Republican voter-suppression plan in the guise of an investigation of “voter fraud.” When Mukasey did not respond to Boehner’s prompts, the latter went to the White House. The White House in turn asked the Justice Department to look into the matter.

The sequence of steps here demonstrates how the G.O.P. views the Justice Department as a tool for the implementation of their put-down-the-vote project. Will Mukasey play their game and enlist the Justice Department in a transparent effort to disenfranchise new, overwhelmingly Democratic voters? The inspector general’s report on the cashiered U.S. Attorneys concluded that similar manipulation of the Justice Department by Karl Rove in the 2006 election cycle was highly abusive. Mukasey applauded this report. But Mukasey has so far been painfully faithful to his master in the White House, and this matter may be no exception.

If Mukasey acts favorably on the G.O.P. request, he will be using his office and the Justice Department for a political purpose. The federal voting rights statute nowhere requires the check against parallel records demanded by the Ohio Republicans, nor is that test a logical indicator of voting fraud. The fraud would occur, for instance, if a person registered and attempted to vote in a name not his own because he was not entitled to vote or because he wanted to cast multiple ballots. But careful investigations of such claims over the past several years have turned up no cases in which these widely broadcast suspicions are validated. Curiously, Mukasey’s law firm did the right thing when he was a partner there. It served as pro bono counsel to a group of Ohio community action organizations who successfully opposed the G.O.P. initiatives on voter suppression in a federal court lawsuit and secured a stipulated settlement with the Ohio Secretary of State in which she agreed that she would not implement just the sort of program the Republicans are now seeking. It was that litigation success for voter’s-rights advocates that led to the Republican Party’s desperation tactics. But the current appeal puts a direct question to Mukasey: Will he and his department stand on the side of the voters seeking to exercise the most fundamental of the democratic franchises? Or will they become partisan tools intent on disenfranchising citizens because of distaste for how those citizens are likely to vote? The question could not be clearer.

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