Friday, October 22, 2004

Why Kerry Needs to Win Big 

We have been depressing our friends lately by insisting that John Kerry will have to win by at least five percentage points in order to avoid having the election hijacked out from under him, and we are therefore grateful to our distinguished colleagues at Cursor for pointing us to Orcinus -- where David Neiwert, who shares our opinion, has put together a useful overview of recent Republican efforts to suppress the vote. Although much of the information will be familiar to loyal Zemblans, the piece is of special interest for Neiwert's take on the ruling last week by Judge Richard Posner in the case of a single mother who had sued to ease the state of Illinois's outmoded and stringent absentee-ballot requirements. As Rick Perlstein reported in the Village Voice:
Judge Richard Posner of the Seventh Circuit, a prominent conservative intellectual and vocal Bush supporter, handed down a capricious, flippant dismissal of the complaint, ignoring key portions of its argument and simply inventing others. (The plaintiffs wanted the court to "decree weekend voting," he fantasized, wondering whether a federal court would soon "have to buy everyone a laptop, or a Palm Pilot or Blackberry?")

Bad enough if it only affected Illinoisans. Here's the scary part: Posner worded his ruling in such a way to make it difficult for anyone to challenge any voting statute passed by any state legislature anywhere . . . .

The bottom line: Posner's precedent gives much more discretion to states like Ohio and Florida to take action to restrict voting opportunities, especially for working people. And it was handed down, conveniently, two weeks before Election Day.
You may remember Posner from various television panels in the immediate aftermath of the Supreme Court decision; he was probably the most prominent jurist willing to mount a public defense of Bush v. Gore. Neiwert says:
It probably shouldn't surprise us, though, that Posner's precedent will make it more difficult to challenge states when they restrict voting opportunities, especially working people and low-income voters. That is, after all, the cornerstone of nearly all the Republican vote-suppression tactics.

And it certainly shouldn't surprise us that it is Posner who is doing this. He is, after all, one of the foremost defenders of the Supreme Court's corrupt Bush v. Gore ruling.

Posner has authored no less than two books defending the ruling -- not on the basis of its legal grounding, which even he admits is shaky at best. Rather, Posner argues that the Court made a "pragmatic" decision aimed at reducing the turmoil and potential violence that loomed if the decision on who would become president were forced to drag out in the manner prescribed by the Constitution.

It's worth remembering that only one side in the Florida debacle threatened violence and turmoil, and that was the Republican side. Obviously, as we saw in the aftermath, Democrats were not inclined to have responded violently to a Bush presidency; but Republicans had already rioted to shut down voting in Miami, and were responsible for ugly demonstrations that forced pro-Gore demonstrations to shut down in Palm Beach. Nearly the entirety of violent rhetoric and behavior around the Florida fight emanated from the right.

Posner's "pragmatic" argument, as such, is an apparent self-interested capitulation to mob rule. Under his formulation of things, the Republicans on the Supreme Court acted as they did so that Republicans would not resort to violence to get their way.

Moreover, Posner conceded in his book Breaking the Deadlock that in fact a majority of voters in Florida had punched their ballots for Gore. So in essence the Court's "pragmatism" actually overturned the democratic result and thus disenfranchised thousands of voters. Posner clearly approves of this.
In the second book, Law, Pragmatism, and Democracy, Posner lays out two competing visions of democracy: "Concept I" democracy, based on the Athenian model, in which the politicians (and the voters) are presumed to be civic-minded, placing the public interest above their own; and Posner's preferred model, "Concept II" democracy (described here by Paul Horwitz):
This is a brazenly unromantic vision of democracy - one that treats politics "as a competition among self-interested politicians, constituting a ruling class, for the support of the people, also assumed to be self-interested, and to be none too interested in or well informed about politics."

Not surprisingly, Posner's model of democracy looks not to ancient Athens but to the market, Posner's favorite model. It divides our democracy into two distinct classes: the class of voters-as-consumers, and the "sellers" - the elite class of elected officials and their appointees. These elite rulers market their views to the voters and so compete for electoral advantage.
Neiwert's conclusion? "What Posner advocates is not democracy. It is plutocracy. And if the anti-democratic forces behind Team Bush have their way, they will be able to point to Posner's ruling as the roadmap for installing it."

SIDEBAR: Neiwert has also posted Parts IV and V of his essential essay "The Rise of Pseudo-Fascism":
IV. The Apocalyptic One-Party State
V. Warfare by Other Means
UPDATE: From a story we ran on Monday:
[Ohio Secretary of State Kenneth] Blackwell had issued a directive that election workers not give provisional ballots to people who appear at the wrong precincts, but U.S. District Judge James Carr in Toledo ordered the Republican Secretary of State to count those ballots.
From Josh Marshall, earlier today:
Someone in Columbus Ohio seems to be calling voters, impersonating an employee from the local election board, and telling folks that the location of their precincts has been changed. The recipients of the calls seem to be disproportionately elderly.
UPDATE II (via the All Spin Zone): From the Albuquerque Journal:
Kim Griffith voted on Thursday— over and over and over.

She's among the people in Bernalillo and Sandoval counties who say they have had trouble with early voting equipment. When they have tried to vote for a particular candidate, the touch-screen system has said they voted for somebody else.

It's a problem that can be fixed by the voters themselves— people can alter the selections on their ballots, up to the point when they indicate they are finished and officially cast the ballot.

For Griffith, it took a lot of altering.

She went to Valle Del Norte Community Center in Albuquerque, planning to vote for John Kerry. "I pushed his name, but a green check mark appeared before President Bush's name," she said.

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