Thursday, October 21, 2004

Dismantling democracy

If you thought Florida in 2000 was a debacle that inflicted a grievous wound on American democracy, just wait. Thanks to Team Bush, the 2004 election is shaping up to make that look like a tea party.

Think Florida times 10. And then think about the shambles that will remain of our democratic institutions afterward.

Of course, we've long observed the Republican party's growing hostility to the democratic process, evidenced not just by the Florida debacle but a whole host of subsequent events -- the Texas redistricting, the California recall, and many more.

This week in the Village Voice, Rick Perlstein has penned a must-read survey of the damaged state of things now, and the long-term consequences, titled "The End of Democracy: Losing America's birthright, the George Bush way". A key quote:
Thomas Mann is a senior fellow in governance studies at the Brookings Institution, noted for his deliberateness of manner, his decency, and his near religious devotion to the ideal of bipartisan comity. Now, he says, "I see the damage to our system and our sense of ourselves as a democratic people as really quite substantial. . . . The consequences of both the policies and the processes have been more destructive of our national interest and our democratic institutions than any president I know." When someone as level-headed as Tom Mann begins to worry for the future of our democracy, that's news.

Perlstein goes on to discover that not only does this problem loom for America, but the Loyal Opposition Democrats -- led by a cadre of spineless consultants -- evidently have no intention of seriously directly confronting it.

The likelihood of election-day problems -- and a protracted post-election legal battle, in which Team Bush once again attempts to litigate its way into the White House -- is growing especially evident in the litany of indications that the GOP is engaging in a widespread campaign of Florida-style dirty tricks in battleground states around the country.

The state most likely to be this year's Florida is Ohio. Already, we have the state's Republican Secretary of State refusing to comply with a federal judge's order to deal appropriately with inconsistent provisional-ballot rules:
With the Nov. 2 election fast approaching, Carr had suggested that Blackwell file two possible directives: one that complies with Carr's ruling and another if Blackwell wins his appeal.

But Blackwell filed only one proposed directive Monday, and Carr determined it did not comply with his order. The judge called that "inexplicable.''

"Ignoring this court's clear command is one thing; it is another thing, and under the circumstances even more blameworthy, to leave Ohio's election officials utterly without guidance about how to apply HAVA's provisions,'' Carr wrote.

That's not all. It seems that a team of GOP operatives working in South Dakota was forced to resign over electoral hanky-panky. The problems in South Dakota were so pronounced that the Republican former governor, Bill Janklow, publicly denounced the GOP get-out-the-vote campaign as one in which workers were being encouraged to cheat.

So what did Team Bush do with these miscreants? As Josh Marshall reported last week, they sent them to head up the effort in Ohio:
Today comes news, however, that Russell -- still under investigation in South Dakota -- has been reassigned to run President Bush's get-out-the-vote operation in Ohio. Russell will now "lead the ground operations" for Bush in Ohio, according to an internal Republican party memo obtained by the Sioux Falls Argus Leader.

And Russell's bringing along with him to Ohio three of the five other GOP staffers who had to resign in South Dakota and are similarly under investigation in that state.

The Argus-Leader report details this:
When South Dakota Republican Party Chairman Randy Frederick announced the resignations of Russell and five others Monday evening, he said the state party has a "zero-tolerance policy."

But an internal Republican Party memo obtained by the Argus Leader said Russell would be going to Cleveland "to lead the ground operations" for President Bush and Vice President Cheney there.

South Dakota isn't the only place where decent Republicans have raised red flags. In New Hampshire, there was a denunciation of similar misbehavior made by former Sen. Bob Smith, an ultraconservative Republican. This time, it involved the activities of one Jim Tobin, who with a group of other GOP operatives was involved in organizing the election-day jamming of Democratic GOTV phone lines in that state -- a criminal activity. Once again, Josh Marshall points out, "The guy who helped organize election tampering last cycle gets appointed by the Bush campaign to run their election operation this cycle."

Of course, it doesn't exactly help that, as the Nashua Telegraph pointed out, the Ashcroft Justice Department dragged its feet bringing this matter to light.

Similar tactics are cropping up in battleground states around the country. Recent news reports detailed Republican attempts to relocate polls in black-majority precincts in Philadelphia, unsuccessfully. In western Pennsylvania, Republican operatives have been signing up new voters -- but not if they're Democrats:
"We were told that if they wanted to register Democrat, there was no way we were to register them to vote," said Michele Tharp, of Meadville, who said she was sent out to canvass door-to-door and outside businesses in Meadville, Crawford County. "We were only to register Republicans."

This latter tactic, in fact, has been cropping up wherever Republicans have attempted to sign up new voters. It's been reported occurring in Oregon and Nevada as well.

The nexus of much of this activity, as Salon reported, is the GOP consultancy Sproul and Associates:
During the past week and a half, several former employees, elections officials and others across the country who've had dealings with the firm have revealed to various local media outlets Sproul's methods for boosting GOP registration in key swing states. The accounts allege that Sproul's workers were encouraged to lie, cheat and, according to Eric Russell, a former Sproul employee in Las Vegas who first told his story to a local television station last week, even destroy the registration forms of Democrats who'd registered to vote with Sproul canvassers. Sproul has denied those charges, variously challenging the veracity of its former employees; but taken together, the stories are compelling, and they may provide an early glimpse into the kinds of shady tactics Republicans are using to win at the polls this year.

For a useful overview of all these Republican vote-fraud efforts, be sure to check out Steve Gilliard's handy rundown.

What really caught my attention, though, was a sidebar Perlstein wrote for the Village Voice piece about a very recent federal court ruling on voting rights:
It's easy to vote absentee in Illinois if you meet certain qualifications, like being out of your home county on Election Day. It's also easy if you don't meet those qualifications: You just lie. In fact, greasy machine pols have been known to exploit the present system to cast "votes" for their entire block. Juliet Alejandre is one person who didn't qualify, and who wasn't prepared to lie. Going to school full-time and working nights, the single mother says that the last time she tried to vote she left much of the ballot incomplete because she was terrified her unminded toddler would fall off the stage upon which the booths sat. So with three other working moms, Alejandre sued in federal court to order the state legislature to revisit its horse-and-buggy absentee statute to make reasonable provisions -- whether by extending voting hours, changing absentee requirements, or instituting a universal vote-by-mail system like the one that's worked well in Oregon.

This past Friday, 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 decision is diabolical -- a perfect counterpart to this season's Republican strategy of drowning voting-rights complaints in a sea of moral relativism. One example: A goal of the plaintiff's case was to stop existing fraud by making Illinois's vague and antiquated absentee regulations more uniform and fair. Instead, Posner argued that the plaintiff's commonsense request for a second look at the statutes opened the door to fraud.

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.

It's worth noting that Posner's ruling was handed down with unusual speed -- suggesting he reached it in time for the election. You can read the ruling here [PDF file] and the relevant briefs here.

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.

As Sanford Levinson observed:
But, of course, the very basis of the "pragmatic" defense of Bush v. Gore is that such a development would have been accompanied by significant political turmoil, perhaps widespread disorder, and that avoiding such political chaos was a value of fundamental importance.

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.

Paul Horwitz, in a review of Posner's second book on the case, Law, Pragmatism, and Democracy, observes:
Posner also offers a pragmatic defense of the Supreme Court's work in Bush v. Gore -- one that is less convincing than his attack on Clinton v. Jones. He aptly calls Bush v. Gore "the most execrated modern decision of the Supreme Court." The opinion itself, Posner admits, is "at worst . . . a very bad decision."

But he nevertheless defends it on pragmatic grounds. He sees it as a reasonable response to a potential political crisis -- in which former Treasury Secretary Lawrence Summers would have become Acting President, and the nation would have been paralyzed by bitter political struggle.

Greg Morrow has observed that this argument is just plainly wrong:
Avoiding a potential constitutional crisis is indeed a pragmatic and reasonable goal. However, Bush v. Gore wasn't it. We hadn't exhausted the statutory remedies for the circumstance, let alone the constitutional remedies -- remedies which we knew worked because they had worked in previous cases!

Perhaps most disturbing is the view of democracy that Posner reveals in this text. Horwitz sums it up neatly:
Posner contrasts two visions of democracy. One, which he calls "Concept 1 democracy," is familiar enough to readers of law journals: it is so-called "deliberative democracy." In Concept 1 democracy, voters and politicians alike are expected to be civic-minded, debating one another town-meeting-style with the public interest in mind rather than their own selfish ends.

This kind of democracy, Posner argues, is a pipe dream. It is all very well to talk about deliberative democracy in the safe precincts of the "faculty workshop," in which all the participants are equally gifted (or glib) and all agree on the basic premises of the discussion. But, he argues, nothing in the capacity of the American people, or in the varied and intractable nature of their differences, suggests that they are likely to turn our polyglot democracy into a new Athens.

As a result, Concept 1 democrats who acknowledge this state of affairs may be forced to substitute deliberation by elites - especially judges - for popular deliberation. That result is deeply anti-democratic.

For his alternative, "Concept 2 democracy," Posner draws on the work of Joseph Schumpeter. 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.

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.

Our only hope, really, is a massive tide of Americans coming out to the polls on Nov. 2 in such numbers that they overpower the Republican strategy. Democracy itself is at stake.

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