Archive | September 2014

Voting wars, election-rigging in full effect heading into U.S. midterm season


With mere hours before polling stations were scheduled to open in Ohio for early voting in November’s midterm congressional elections, the Supreme Court on Monday blocked voters from beginning to cast their ballots. In a 5-4 party-line vote, the Justices backed a Republican plan to limit early voting in Ohio by granting the state’s request to stay decisions of lower courts that threw out the state’s new plan, passed by the Republican-led legislature.

Last week, the Sixth Circuit Court of Appeals had upheld a lower court’s ruling in in NAACP v. Husted, which stopped new restrictions on early voting in Ohio from taking effect. The case concerned a state law passed earlier this year eliminating Ohio’s limited window for same day registration and early voting, which tens of thousands of voters have taken advantage of in the past two presidential elections.

Evidence presented in the lower court showed that African American, low-income, and homeless voters were more likely to use this voting opportunity. The Sixth Circuit affirmed the district court’s preliminary injunction, based on its conclusion that the NAACP and other plaintiffs had shown likely violations of both the Constitution and the Voting Rights Act.

Ohio’s Republican Attorney General and Secretary of State, however, immediately filed an emergency petition with the United States Supreme Court to block the Circuit Court’s ruling.

Now, the Supreme Court has sided with the Ohio Republicans, who argued that Ohio’s early voting opportunities are more generous than most states’. Further, as Ohio’s Republican Secretary of State Jon Husted argued, the ruling by the lower court “eliminates elected officials’ ability to do what we elected them to do . . . Whether we vote 35 or 28 days, by mail or in person this November, elected officials and not federal judges should be making Ohio law.”

There has been a lenghty legal battle over voting in Ohio since 2004, when long election-day lines meant some Ohio residents missed the chance to vote. Laws passed by Democratic-controlled legislatures have created extensive early voting opportunities, but when Republicans have controlled the legislature, they have sought to roll back those laws.

International election observers from the Organization for Security and Cooperation in Europe have generally welcomed the implementation of early voting in the United States as an important component of addressing the country’s notorious election day capacity problems. OSCE observers noted for example in 2008:

While prior to the elections concern was expressed over the ability to process the expected record turnout, the large amount of early voters likely played an important role in making election day successful and absent of major problems. Still, it is clear that early voting did not remedy all capacity problems, as witnessed by voters having to wait to vote for often many hours in numerous places around the country.

The Ohio case is not the only one being currently decided in the courts. In fact, with midterm elections less than six weeks away, the rules for voting in several states are still unclear. Courts are currently considering challenges to voter ID requirements in Texas and Wisconsin, and whether new restrictions on early voting in North Carolina and Ohio should stay in place. All this uncertainty is making the jobs of election administrators more difficult.

“Voters and elections officials need to know what the rules of the game are going to be several weeks before the election,” says Daniel Tokaji, an election law expert with the Moritz College of Law at Ohio State University.

But right now in several places, they don’t, he says.

As electionlineWeekly reports,

Nowhere does it seem have recent court rulings been more acutely felt than in Wisconsin.

Last week the 7th Circuit Court of Appeals reinstated the state’s voter photo ID law and now elections officials, state agencies and colleges and universities are scrambling to not only inform voters about the law, but make sure voters have the necessary ID.

The state’s Government Accountability Board (GAB) said at a press conference following the ruling that they are taking “extraordinary efforts” to put the ID law into place.

“Implementing the photo voter ID law close to an election will not be easy,” GAB Executive Director Kevin Kennedy said at the press conference. “But the GAB and Wisconsin clerks are up to the challenge.”

The Florida Supreme Court is currently considering a case over the state’s congressional district map, which opponents say has been gerrymandered, or purposefully drawn to give unfair electoral advantage to one side. Last Friday, the court heard arguments over whether documents that played a central role in a redistricting trial which compelled the state legislature to redraw its congressional districts should remain secret or be made public.

As reported by the Florida Herald-Tribune,

In dispute are 41 pages of documents from Pat Bainter, a Gainesville-based Republican consultant who runs Data Targeting. The documents played a central role in Judge Terry Lewis’ decision this year to reject Florida’s congressional redistricting map, ruling that two districts violated the state constitutional ban against partisan line-drawing.

Although Data Targeting was not directly named in the lawsuit that challenged Florida’s 27 congressional districts, the groups that sued contend the documents proved that the consultants worked in concert with Republican legislators to violate the state’s Fair Districts amendments. The Florida Supreme Court is under no time constraint to issue a ruling and it’s unclear when a decision is expected.

All of the cases currently working their way through the courts and causing such confusion for election officials and voters  have one thing in common. The root problem is that partisan interests are given free reign over election administration in the United States. From the national level to the state level to the local level, elected representatives and partisan hacks manipulate and game the system to ensure preferred electoral outcomes, in a system generally out of step with international electoral standards.

As the OSCE Office for Democratic Institutions and Human Rights rather mildly put it in its final report on the 2012 U.S. election:

General elections are administered at the state level and there is no federal election management body with oversight responsibilities. On the state level, administrative authority is vested in the respective state secretary or state election board. However, the greater part of election administration is typically delegated to county or lower-level election officials, resulting in a wide variety of electoral practices across the country. …

While some senior election officials are appointed, others are elected. Election administration bodies are often partisan, although 19 states and the District of Columbia provide bipartisan or independent bodies. Very few OSCE/ODIHR LEOM interlocutors raised concerns about the impartiality of county election officials. However, some county-level election supervisors ran on party tickets for re-election in 2012, raising possible conflicts of interest.

In order to avoid these conflicts of interest, the OSCE recommended that “if senior election officials at state and lower levels are elected, the states could consider holding such elections in non-federal election years, to avoid any real or perceived conflicts of interest.”

Further, “there should be a national body with sufficient resources and outreach capacity to provide guidance on election administration and serve as a central clearinghouse to develop good electoral practices. Congress should ensure that such a body has the necessary financial and human resources to fulfil these duties in an effective manner.”

Bombing Syria in violation of international law


Following President Obama’s announcement last week that the U.S. would be launching strikes against the Islamic State (also known as ISIS and ISIL) on both sides of the Syria-Iraq border, a growing number of international legal scholars and foreign governments are raising questions over the legality of such strikes, particularly as they pertain to action on Syrian territory.

The Syrian government and its allies in Moscow and Tehran have warned Obama that an offensive against within Syria would violate international law, with Iran’s foreign ministry saying that “the so-called international coalition to fight the [Islamic State] group … is shrouded in serious ambiguities and there are severe misgivings about its determination to sincerely fight the root causes of terrorism.”

Russia said it would not support any military action without a UN resolution authorizing it.

While administration officials have attempted to explain the domestic legal rationale for the strikes on the basis the 2001 and 2002 Authorizations for the Use of Military Force – unconvincingly to some, such as the New York Times, which pointed out that the 2001 law applied specifically to the perpetrators of the 9/11 attacks and al-Qaeda more broadly, but since al-Qaeda has disavowed ISIS the law clearly doesn’t apply to the current situation – it has offered no comparable justification under international law.

It has instead asserted without elaboration that borders present no constraints to U.S. military action. “We are lifting the restrictions on our air campaigns,” a senior administration official told reporters during a recent background briefing. “We are dealing with an organization that operates freely across a border, and we will not be constrained by that border.”

Under international law, however, borders most certainly do pose constraints. The sanctity of borders is enshrined in the UN Charter, which plainly states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Indeed, since the end of World War II, the international political system has been structured around three main principles: the equal sovereignty of states, internal competence for domestic jurisdiction, and territorial preservation of existing boundaries.

These principles have been violated repeatedly by the Obama administration over the years, especially in regards to drone strikes, and the administration has rarely even attempted to justify its actions under international law.

As John Bellinger writes at Lawfare, Obama administration officials “have been reticent about the international law basis for many U.S. actions, which is especially surprising given the Administration’s touted commitment to compliance with international law.”

One reason for the administration’s silence regarding the legal basis for the possible use of force against ISIS in Syria is that none exists, since the Bashar al-Assad regime has not consented to the use of force in its territory.

“This will leave the Administration to cobble together,” Bellinger writes, “a variety of international legal rationales.” Some of these might include the argument that ISIS is part of al-Qaeda and therefore part of the U.S. armed conflict, or perhaps a co-belligerency theory, or perhaps collective self-defense.

“Ultimately,” Bellinger speculates, “the Administration may choose not to articulate an international legal basis at all, and instead to cite a variety of factual ‘factors’ that ‘justify’ the use of force, as the Clinton Administration did for the Kosovo war.  But it would be much preferable for the Administration to provide legal reasons.”

This is especially true considering the fact that the administration has been waving around “international law” as a rallying cry to confront and isolate Russia over its alleged meddling in eastern Ukraine. As Secretary of State John Kerry said following the Russian annexation of Crimea last spring, “What has already happened is a brazen act of aggression, in violation of international law and violation of the UN Charter and violation of the Helsinki Final Act.”

President Obama gave a speech in May at West Point at which he touted principles of international law and the importance of the U.S. leading by example. “American influence is always stronger when we lead by example,” he said. “We cannot exempt ourselves from the rules that apply to everyone else.”

It is now Russia that is one of the strongest critics of the U.S.’s actions against the territorial integrity of Syria. Moscow said Thursday that air strikes against militants in Syria without a UN Security Council mandate would be an act of aggression.

“The U.S. president has spoken directly about the possibility of strikes by the U.S. armed forces against [Islamic State] positions in Syria without the consent of the legitimate government,” Foreign Ministry spokesman Alexander Lukashevich said.

“This step, in the absence of a UN Security Council decision, would be an act of aggression, a gross violation of international law.”

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