Monday, December 12, 2005

The Death of Democracy Is Greatly Exagerated.

Make no mistake, Sub. H.B. 3 -- the "Election Reform" legislation due for vote in the Ohio Senate tomorrow -- is not a good bill. It creates a bunch of bureaucratic hoops to solve a voting fraud problem that doesn't exist. It creates rules that could be subject to Election Day abuse by overzealous poll workers. And it comprises the sum total of election reform we can expect from the legislature in a state that sorely needs real reform. It shouldn't be law.

But the sky is not falling.

Some fairly hysterical claims are circulating about this bill. Typical is this piece at written by Stolen Election alarmists Bob Fitrakis & Harvey Wasserman. "A law that will make democracy all but moot in Ohio is about to pass the state legislature and to be signed by its Republican governor." Mercy. The article quickly wanders away from H.B 3 to revisit oft-told tales of '04 Election theft. They also reiterate the newish charge that the RON election was stolen -- some time when the hour is not so late I will explain why this is the Stupidest Conspiracy Theory Ever.

I've spent the better part of the day trying to track this bill down. Common Cause Ohio outlines the legislative history up to now. The Ohio Legislature website has a bill analysis of Sub. H.B. 3 as passed by the House. Whatever amendments the Senate Committee introduced aren't anywhere I can find. Here is the page from containing links to all things Sub. H.B.3, if you want to follow along. I'd recommend the Bill Analysis as passed by the House, rather than the actual 400+ page bill, but it's your life.

The chief objection to the bill is the Voter ID requirement. HB 3 as passed by the House requires ID only of first-time voters who registered by mail and did not provide a prescibed form of ID with registration. Republicans in the Senate committee amended this to include every voter every time. The Beacon story today describes the rancor within the Committee hearings, but unfortunately doesn't note that the bill was amended at that time. We can only hope that with a real grassroots lobbying push while the bill is in conference (to reconcile the differences between the two) we can push back and settle with on the original House version. I fear however that the left wing groups screeching about the Death of Democracy will not join in an effort to lobby for a compromise.

Even with the Senate amendment, the ID provision is unfortunate, but not The End of us All. What irks me is that we will have to engage in some serious election protection every November to make sure all the rules are followed and that voters -- especially the most vulnerable voters -- are respected.

The other provisions that supposedly make democracy moot simply aren't as onerous on inspection. I should caveat that again the Senate could have amended the bill worse, but I doubt it. One provision that has been subject of bumper sticker sloganeering is that under this bill "You can't contest a Federal election! Ever!! Just like that, they just, just, just eliminate election contests!!!!"

Anyone who has spent a tender moment or two with the Supremacy Clause of the U.S. Constitution knows that can't be true. In fact, the bill merely requires people contesting Federal elections to do so under Federal law. It eliminates a State law governing such a contest. The ins and outs of this I don't know -- it may well be that Ohio had a friendlier standard, though again that would rub up against the Supremacy Clause. The point is, contesting a Federal election isn't impossible, just different.

Similarly, the new rules for registration drives aren't as bad as advertised. Did anyone really think the Ohio Restoration yahoos -- who are all about registering new wingbats -- would let the GA seriously crimp their plans. The rules apply simply to compensated registration drive workers. If the left wants to put volunteers together for registration drives, I can't find anything changing their rules. If someone wants to hire vagrants for the drive, things get much more difficult. Similarly, the provisions regarding petition signature gatherers will only really effect paid signature gatherers.

Look, all this is a pain, to be sure. But if the left wants to start winning in Ohio, we need to put together real grassroots networks anyway; the sort of networks that can engage vulnerable populations with voter education and protection efforts, and register voters and circulate petitions with volunteers. If viewed as a challenge instead of a death knell, H.B. 3 could end up as a boon to the left.

By all means, follow Eric's advice and voice your objections to the bill. (Since my Senator is one of the sponsors -- Kevin Fucking Coughlin -- I'll save my dime.) Especially call in if we can reverse the Senate amendment in Conference. But democracy will still be here when you get back.

UPDATE: An Anonymous commenter (see below) says that no Federal law exists under which Federal elections may be challenged. I don't have time to check the sites now, but have a look. I stand provisionally corrected.


Model 500 said...

Pho: Nice, thoughtful look at the bill. The Fitrakis brigade can always be counted on to be shrill drama queens.

On the other hand, even the blue hairs at the League of Women Voters are using the term "voter supression."

This is a bad bill and it will hurt Democrats.

Brew said...

There is a somewhat onerous change in the way recounts are handled. It would increase the cost of a recount to make it somewhat prohibitive.

Anonymous said...

Federal challenges are eliminated, because there are no contest provisons in federal law for federal elections, with the possible exception of the seating of Presidential electors. That leaves it up to Congress, and only for the Presidency.

Click here for source, Daniel Tokaji, assistant professor of law at OSU, in testimony before the Ohio House Elections Committee, page 4 of pdf.

To quote:

The other provision eliminates Ohio's contest for all federal elections, inclusing both presidential and congressional contests. Sub HB 3 provides that such contests "shall be conducted with the applicable provisions of federal law."

It is not clear what law this is referring to, as there is no analogous federal statute providing for contests. Perhaps "federal law" refers to the timetable for electoral ballot counting. Yet federal law contains no contest provision, but instead requires Congress to defer to the states, in cases where there's been a "final determination" of any election contests or controversies by the safe harbor date.

The language of Sec. 3515.08 is not changed from the time Tokaji testified. See here.

Scott Piepho said...

As always, thanks all for commenting.

I agree that it's a bad bill, the result of one-party rule, the result of that party being utterly venal and corrupt. I just wanted to offer some perspective, especially after getting the freepress piece emailed to me. And also to talk about some ways in which we can use it as an rallying point.

Anon, I've updated the post flagging your information in the comment. I'll try to run that down later this week, time permitting. Thanks again.