From Abu Ghraib to Gitmo

JB

From the New York Times:

The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion "tantamount to torture" on prisoners at Guantánamo Bay, Cuba.

The finding that the handling of prisoners detained and interrogated at Guantánamo amounted to torture came after a visit by a Red Cross inspection team that spent most of last June in Guantánamo.

The team of humanitarian workers, which included experienced medical personnel, also asserted that some doctors and other medical workers at Guantánamo were participating in planning for interrogations, in what the report called "a flagrant violation of medical ethics."

Doctors and medical personnel conveyed information about prisoners' mental health and vulnerabilities to interrogators, the report said, sometimes directly, but usually through a group called the Behavioral Science Consultation Team, or B.S.C.T. The team, known informally as Biscuit, is composed of psychologists and psychological workers who advise the interrogators, the report said. . . .

The report of the June visit said investigators had found a system devised to break the will of the prisoners at Guantánamo, who now number about 550, and make them wholly dependent on their interrogators through "humiliating acts, solitary confinement, temperature extremes, use of forced positions." Investigators said that the methods used were increasingly "more refined and repressive" than learned about on previous visits.

"The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture," the report said. It said that in addition to the exposure to loud and persistent noise and music and to prolonged cold, detainees were subjected to "some beatings." The report did not say how many of the detainees were subjected to such treatment.

These disclosures are a black mark for our country, but it will be an even worse thing if no one in Congress or the Executive makes a fuss and tries to do something about this.

Fools Rush In Where Foreign Banks Fear To Tread

JB

Investors and market analysts are increasingly worried that the last big source of support for the American dollar - heavy buying by foreign central banks - is fading.

The anxiety was on full display Friday, when the dollar abruptly slid to a record low against the euro after a report suggesting that the Chinese central bank might start to reduce its holdings in the American currency.

Though Chinese officials later denied the report, and the dollar recovered, analysts say the broader trend is that foreign governments are becoming less willing to finance the growing debt of the United States government.

The White House and Republicans in Congress are all but certain to embrace large-scale government borrowing to help finance President Bush's plan to create personal investment accounts in Social Security, according to administration officials, members of Congress and independent analysts.

Insufficient Investment in Technology

JB

No muss, no fuss, no protesting in the streets.

Yabba Dabba Doo!

JB

Only about a third of Americans believe that Charles Darwin's theory of evolution is a scientific theory that has been well supported by the evidence, while just as many say that it is just one of many theories and has not been supported by the evidence. The rest say they don't know enough to say. Forty-five percent of Americans also believe that God created human beings pretty much in their present form about 10,000 years ago. A third of Americans are biblical literalists who believe that the Bible is the actual word of God and is to be taken literally, word for word.

When will the media stop misleading the American public?

Kristoff on Anonymous Contributions

Ian Ayres

The FCC's authority to regulate indecency.

JB

The FCC has apparently gotten bored regulating the airwaves and wants to get into the cable and satellite radio games from which they've traditionally been barred on the grounds that, unlike the broadcast spectrum, we're not talking about a crowded public resource.

The FCC's authority to regulate indecency consistent with the First Amendment comes from the claim that children are always present (or potentially present) in the audience and that television is a "pervasive" medium. What does this mean? Let me explain by quoting from a first amendment and telecommunications scholar well known to readers of this blog:

Television is pervasive because it is difficult to keep it away from children and children away from it. Once television is in the home, parents must continually supervise what children watch, which is difficult and time-consuming. Many households now own multiple television sets, so that children can watch in the privacy of their own room, away from parental supervision. It is always possible for parents to remove television completely from the home. However, because of television's cultural importance, many parents do not feel able or willing to deny their children the right to watch television at home, especially when the children can watch it at their friends' houses.

Although concerns about children make the most sense doctrinally, it's important to remember that they have little to do with scarcity. Even if there were 500 channels, the problem of parental supervision would still exist, and might even be enhanced. Nor does this justification for regulation turn on the fact that broadcast television is an especially powerful medium of communication, or that it is conveyed in the easily assimilable form of pictures. Parents can watch rented movies on a VCR that are every bit as unacceptable for children as anything one might watch on television. But these movies cannot be regulated in the same way that television broadcasting can.

This . . . rationale for broadcast regulation is often described as the protection of children, but the real issue is parental control. The two are not necessarily the same. We generally assume that parents love their children and discipline them in ways that are, on the whole, best for them. But parents do not always do so, and we do not second-guess their decisions except in extreme cases. Parents are currently free to bring home R-rated videos full of violence and nudity and let their children watch them. They can subscribe to premium cable channels showing these movies and leave their cable lock boxes unused. If violence and indecency really are bad for children, and we think protection of children is paramount, we should take steps to criminalize such behavior, whether or not parents misguidedly believe such exposure is harmless. Yet I suspect that such proposals would be severely criticized, and not merely by civil libertarians. Most parents do not want the government deciding what is best for their children when the decisions are contrary to their wishes; they want the government to assist them in controlling their children in ways they think appropriate.

This argument has always struck me as somewhat of a dodge. A majority of American homes have cable, and they get access to free broadcast channels through their cable box. It's silly to say that Janet Jackson can't show her nipple on channel 5 but she can show it on channel 75 because channel 75 is a cable channel and channel 5 is a broadcast channel viewed on cable. The FCC is making the converse argument: because a majority of homes now experience broadcast channels through cable, it makes no sense for broadcast channels to be bound by indecency requirements but cable channels (which are accessed through the same remote control) to be free of these requirements.

One argument that courts have often made is that cable is different because it's easier to block cable channels; parents can just use a cable lock box that blocks access to an entire channel. But parents could also use V-Chips if they wanted. They just don't want to, or haven't bothered to learn how to. If cable should be free of indecency regulation because cable channels can be blocked, broadcast television should also be free of indecency regulation because broadcast channels can also be blocked. In fact, the V-Chip allows broadcast channels to be blocked with far more precision than by using a cable lock box.

In fact, the argument for different standards for cable and broadcast turns out to be entirely pragmatic. Essentially we have a compromise in the United States: Parents get a "safe" set of channels that their kids can watch without concerns about indecency. The government has decided that these "safe channels" will be the free broadcast channels during normal viewing hours. (Note that the broadcast indecency regulations don't apply from 10:00pm to 6:00am). The choice makes some sense because it costs parents the least amount of money to receive these channels. On the other hand, parents are responsible for supervising their children for any other media choices they bring into the house, including cable television, satellite, dvds, and vcr tapes.

I think this is the pragmatic compromise on which indecency regulation is actually based, whatever courts happen to say in their opinions. It's not clear that this compromise is entirely consistent with the First Amendment. But assume for the moment that it is. If this is the real point of the compromise, the First Amendment problems don't go away if the FCC begins imposing indecency regulations on cable and satellite programming. In fact they become much worse. I think that if the FCC starts to apply indecency regulation across the board to cable and satellite, courts will strike it down, and they should.

UPDATE: Marty Lederman's comment following this post points out quite correctly that Congress has never given the FCC the same statutory authority to regulate cable indecency that the agency possesses to regulate broadcast indecency, and that is why new legislation would probably be required to expand its powers (That legislation would probably be unconstitutional, in my opinion, for the reasons described above). Local governments, however, have passed cable indecency ordinances in the past, and courts have struck these down on constitutional grounds, see, e.g., Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985), along the lines discussed in the post-- i.e., that cable is different from broadcast because you invite it into your home. Congress also passed cable indecency regulation in the 1996 Telecom Act requiring segregation and blocking of indecent content on certain cable channels. The Court struck down most (but not all) of this in the Denver Area and Playboy cases.

A few thoughts about freedom of speech in 2020

JB

This is a large subject, but here are a few of my initial thoughts.

To understand some of the most important free speech issues of 2020, we must begin by noting that wealth in the American economy will increasingly be devoted to knowledge production. Ownership of information distribution networks and intellectual property will increasingly be major determinants of who has power and money in American society and who does not.

By 2020 the ideological drift of the First Amendment will have proceeded apace, and the First Amendment will have emerged as a major anti-regulatory device, just as freedom of contact did in the gilded age. We have already seen intellectual property emerge as the other major set of rights defended by (and expanded on behalf of) business. However, freedom of speech and intellectual property are in tension with each other, so that new legal theories will emerge harmonizing them in ways that will serve the interests of business enterprises. Some business enterprises will focus more heavily on the defense of information distribution networks (cable, satellite, broadcast, Internet) from regulation, while others will push harder for legal protection of intellectual property rights (as well as anticircumvention rights and technological design mandates such as we find in the Digital Millenium Copyright Act and the FCC’s digital broadcast flag policy). Still other business interests will use the First Amendment to defend the accumulation and sale of personal data, arguing that privacy protections violate the First Amendment’s right to collect and distribute information.

This is not a normative claim; it is a positive prediction about how law will be harnessed to serve the interests of economic power. Whenever a new source of wealth emerges in American history, the Constitution will be employed to protect that wealth regardless of the public interest.

If this prediction is correct, what should the progressive response be? It seems to me that progressives must defend the underlying values of freedom of speech regardless of what the actual doctrines of the first amendment and intellectual property turn out to be in 2020. Those values will only partially overlap with the interests of businesses who make their profits from ownership of distribution networks and the delivery of intellectual property; indeed, in many respects they will run counter to those interests. Moreover, because free speech values and intellectual property are partially in conflict (as well as partially mutually supporting) progressives will also have to make their own way of making them live together and work together.

Again, the key point is to think in terms of free speech values, not in terms of existing doctrinal categories. Those doctrinal categories are always “fighting the last war,” that is, they are always attempting to secure paradigmatic claims from previous struggles about civil liberties, as well as reflecting the compromises and defeats that emerged from those struggles.

In the future, we should focus on several key themes:

(1) Developing and protecting the infrastructure of free expression. Freedom of speech is a product of culture, institutions, and legislative and administrative regulation as well as a product of judicial protections of negative rights. A culture of free expression requires institutions like schools and libraries that promote the dissemination of knowledge and a public sphere where discussion can occur. The infrastructure of free expression has always been partly in private and partly in public hands; in the future it is likely to be increasingly privatized. As a result, progressives should push for regulations and programs that promote education and the free distribution of knowledge and opinion.

(2) Promoting a democratic culture. To a large degree, the progressive agenda in the First Amendment was shaped by the presence of television, a unidirectional form of mass communication that is owned by a relatively small number of persons and that lacks interactivity. The public sphere of 2020 will increasingly be shaped by new media which are interactive, bidirectional, and in which huge numbers of people can participate. The goal of progressives must be to promote a democratic culture, a culture in which individuals have a fair chance to shape the forms of culture that in turn constitute them as individuals.

(3) The role of institutions. In the areas I’m discussing in this posting, free speech values will mostly be secured through the design of institutions, through legislative and administrative regulation, and through the design of technology. As a result, courts will have only a limited role in securing free speech values for new media in the next several decades. This does not mean that the Constitution and constitutional norms are not involved; it simply means that people will have to make constitutional arguments about how to protect the values of freedom of speech in the context of other institutions.

Intellectual property is a good example. It’s very difficult to create a set of judicial doctrines (like those in New York Times v. Sullivan, for example) that will adequately protect free speech interests as intellectual property law continues to metastasize. Courts can do something here, but only so much. For example, they cannot create elaborate licensing schemes for all relevant stakeholders by judicial decree, nor can they order that technologies be designed in one way rather than another; that is especially so because technological innovation proceeds regardless of what courts might want to do in the short run.

This means that much of the heavy lifting for the protection of free speech values will have to be done by technologists, legislatures, and administrative agencies. Through technological design and administrative regulation, we must continually push for rules that protect the values of interactivity and of a free and democratic culture. In technology, this means coming up with ever new ways of harnessing individual participation and communal effort. In regulation, it means not allowing large entrepreneurs either to monopolize or block participatory and communal technologies for mass communication.

To some extent, progressives will likely be outgunned by the superior lobbying efforts of business, both at the national and international levels. That does not counsel despair. Rather, it means that progressives must find alliances with a variety of different interests in the business community to help us fight our battles over technological design and regulation. No one should for a moment believe that because the issues are technical and regulatory they do not involve constitutional values. The Constitution lives (or dies) inside the technological and regulatory designs of new media of mass communication.

(4) Educational rights. In Rodriguez, the Supreme Court considered and rejected the idea that the First Amendment was the source of any important rights to educational opportunity. Many things about Rodriguez were misguided, and this was one of them. Freedom of speech means little if people do not have the opportunity to develop their minds. Freedom of speech does not begin when people open their mouths; it presupposes that people have a fair chance to obtain the knowledge and skills that enable them to participate in a democratic society. That is what a democratic culture means.

(5)Government accountability and transparency of power. The Bush Administration has demonstrated that if a government wishes to shield increasing amounts of information from the public, it can do so. In the 1970's the Supreme Court refused to extend the free speech principle to rights to know what government officials were doing. (The major exception is access to (some) judicial proceedings.). Possibly judges cannot fashion administrable rules in this area. Even if that is so, that does not mean that free speech value are not implicated. To the contrary, the more we learn about the current administration’s methods, the more we are reminded that lack of government accountability usually leads to abuses of power.

Attorney General Denounces Rule of Law As Aid To Terrorism

JB

Departing Attorney General John Ashcroft on Friday lashed out at federal judges who have dealt setbacks to President George W. Bush's anti-terrorism and wartime policies, accusing them of "invasive oversight and micromanagement."

"The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war," Ashcroft said in his first speech since his resignation became public Tuesday.

"These encroachments include some of the most fundamental aspects of the president's conduct of the war on terrorism," he told the Federalist Society, a conservative lawyers group with close ties to the Bush administration.

Over and over again John Ashcroft has asserted that he needs virtually absolute, unreviewable powers to make this nation safe. And each time he has exercised these powers, he has abused them. In the past four years he has proven himself repeatedly to be little more than a shameless, incompetent demagogue.

The rule of law exists for a reason. It exists to protect us from people like John Ashcroft, the nation's chief law enforcement officer.

Chile's New Idea

Ian Ayres

The Gonzales Nomination

JB

Gonzales is not a doctrinaire conservative. He is a loyal servant and friend to the President. He is a team player. It is unclear what his deepest moral convictions are. But however fine a fellow he is, he has done something that is, in my mind, inexcusable. He commissioned and put his name on a series of despicable legal memos that justified torture and prisoner abuse and that tried to avoid America's obligations under international law. In ordinary times, this would in itself be disqualifying. But, alas, these are not ordinary times.

It is time for those who think the Bush Administration has gone too far to stand up to the President, to make the legal case against his Administration's policies and appointments. For years conservatives railed against judicial activism. It is time for liberals to start railing against government officials-- including judges-- who show disrespect for basic Rule of Law values, who flout basic protections of American constitutional law and international human rights law, and who seek to concentate ever greater power in an unaccountable executive.

Even if (and especially if) Gonzales is confirmed, it is vitally important to make these points loudly and often. Liberals must stand for something other than the correctness of Roe v. Wade. There are important constitutional, legal and democratic values at stake in the next four years. They have been repeatedly sacrificed by this Administation, in its fetish for secrecy and unaccountability and its endless thirst for unreviewable power. And the President seems to have taken from his victory at the polls the belief that he is entitled to seize even more power and cut even more corners. It is important to begin making the case before the American people that our Constitution, our democracy, and the Rule of Law itself have been placed in jeopardy-- not by the decisions of activist judges in Massachusetts, but by overweening and ambitious members of the Bush Administration-- and that the legal and constitutional values we hold dear must be preserved and defended vigorously or they will slowly but surely be dissipated. Daring to ask why a former judge who has defended the President's right to torture and mistreat prisoners in violation of international law should be made the nation's chief law enforcement officer is a good place to start.

What Brown Teaches Us About Constitutional Theory

JB

This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time.

Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities.

Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.

Latinos as Swing Voters

JB

I have always believed that the Republicans don't have to win a majority of the Latino vote to be competitive-- they only have to win 35 to 40 percent. Bush did much better than that, and it is a major reason why he won the 2004 election.

If Republicans can consistently win 35-40 percent of the Latino vote, Democrats will consistently lose. That means that Democrats have to pay much more attention to Latino voters. Latinos have become an important group of swing voters-- possibly the most important group-- and we can expect that both parties increasingly will attempt to appeal to their interests in the coming years.

More on Black Disenfranchisement in Florida in 2000

JB

But the black disenfranchisement I'm referring to happened well before the election occurred. This from my 2001 article:

Concerned about alleged voter fraud in the 1997 Miami mayoral election, Florida state officials hired Database Technologies, a private firm with Republican connections, to purge the voter rolls of suspected felons. “Suspected,” it turned out, is the key word, because a substantial number of the purged voters turned out to be guilty of nothing more than the crime of being African-American. Although Database Technologies repeatedly warned that their methods would produce many false positives, Florida officials insisted on eliminating large numbers of suspected felons from the rolls and leaving it to county supervisors and individual voters to correct any inaccuracies. Clay Roberts, director of the state’s division of elections, explained that “[t]he decision was made to do the match in such a way as not to be terribly strict on the name.” Indeed, the list was so inclusive that one county election supervisor found that she was on it. It is estimated that at least fifteen percent of the purge list statewide was inaccurate, and well over half of these voters were black. When these unsuspecting voters arrived at their precincts on November 7 in order to exercise their “fundamental political right” to the franchise, they were turned away. Any protests were effectively silenced by the bureaucratic machinery of Florida law. As the U.S. Civil Rights Commission put it, “[p]erhaps the most dramatic undercount in Florida’s election was the nonexistent ballots of countless unknown eligible voters, who were turned away, or wrongfully purged from the voter registration rolls by various procedures and practices and were prevented from exercising the franchise.” Those voters, wrongfully excluded from the rolls, were almost certainly more than enough to overcome George W. Bush’s 537 vote margin in Florida.

The Election of 2000 is over

JB

Here is what I wrote in October 2001 about the Presidential election of 2004. (This is from a book on Bush v. Gore edited by my colleague Bruce Ackerman):

The meaning of the 2000 election-- and hence the legitimacy of the Bush presidency-- has yet to be determined. If the Democrats win both houses of Congress in 2002 and then regain the presidency in 2004, they will have delivered as solid a rebuff to Bush's legitimacy as is possible in the American system of government. We the People will have rejected the Supreme Court's imperious decision to hand Bush the White House. In hindsight, the election of 2000 will have been judged a mistake, and-- for reasons that I will explain shortly-- the more mistaken it seems, the more it will throw into doubt the legitimacy of how Bush obtained power in the first place.

On the other hand, if George W. Bush wins a second term in office by a decisive margin, this will bestow legitimacy on his first term retrospectively, and will tend to confirm the wisdom of the Supreme Court's intervention, if not the precise reasoning of Bush v. Gore. The election of 2000 will be considered at most a tie, which gave Bush the opportunity to establish that he truly did represent the will of the People. Because there was no constitutional harm, there was no constitutional foul.

With the ashes of the World Trade Center still smoldering as I write these words, the country is likely to give George W. Bush every opportunity to demonstrate his qualities of leadership. If he makes the most of that opportunity, he will be rewarded with reelection and the mantle of legitimacy. But as every politician understands, a great deal can happen in four years. No one knows how long the current crisis will last, how well the new president will lead, or whether economic and domestic problems will eventually overtake concerns of foreign policy.

Make no mistake: the meaning of the 2000 election-- and the legitimacy of the Bush presidency-- are still very much up for grabs. Unplanned and unexpected events will test the mettle of both parties and shape the meaning of the Bush presidency. If the Democrats play their cards right, and the Republicans are foolish, the Republican Party will be punished for overreaching and the verdict of history will be that the election was illegitimate or at least dubious. Bush v. Gore and black disenfranchisement will be viewed as blemishes on the American system of justice that were corrected by a wise citizenry. On the other hand, if the Republicans rise to the occasion and the Democrats misplay their hand, George W. Bush will win the White House in 2004 and establish his legitimacy. Bush v. Gore will be seen as badly written but irrelevant, and black disenfranchisement in Florida will be excused or conveniently forgotten.

I still think this is largely correct. Bush demonstrated his political legitimacy through the combination of the 2002 and 2004 elections. I do believe that the Supreme Court's decision in Bush v. Gore still remains a stain on their reputations. However, because Bush was not able to appoint any new Justices until he won an electoral majority, the stain is somewhat less severe than it would otherwise have been. Less severe, but not wholly eliminated: Incumbents have natural advantages in getting reelected; black disenfranchisement and Bush v. Gore guaranteed that George W. Bush, and not Al Gore, would receive the benefits of incumbency going into the 2004 election. Nevertheless, Bush made the most of the opportunity he was handed to demonstrate that he had majority support. Although he did not win by a decisive margin, he did win an absolute majority in a close election, while increasing Republican representation in both the House and the Senate. And we must remember that, prior to that, he had also increased Republican representation in Congress in the 2002 election.

I'm not happy about the turn of affairs, but I consider myself a member of the reality based community, and that means that I accept recalcitrant experience even when I don't like it.

That the 2000 election is finally over does not mean, however, that Bush v. Gore and black disenfranchisement were perfectly ok. Rather, it means that not every injustice is remedied in an imperfect world, and that the Democrats have to regroup and move on. I think they can do this, particularly because I believe that voters will tire of this President more quickly than most people expect. His approval ratings in the fourth year of his presidency suggest that many were already quite tired of him, but simply not yet willing to change horses in midstream.

It may seem strange to put it in this way, but the Democrats now have the singular advantage of powerlessness: They have four years to think deeply about what they believe and the direction the country should take while the Republicans, who now control everything, have complete responsibility for getting us out of the mess they have created. The Democrats are set upon a journey in the wilderness. From such journeys salvation often comes.

Divide and Conquer

JB

Here are the opening paragraphs:

The election of 2000 is finally over. George W. Bush has won his majority.

The president will tell you that his is a majority of faith: faith in his leadership, faith in his policies and faith in his values. In fact, it is a majority forged from fear: fear of terrorism, fear of uncertainty and, above all, fear of homosexuals.

The president's chief political adviser, Karl Rove, made no secret about his strategy. To win re-election, Bush would have to stoke up his base of religious conservatives and get them so excited and angry that they would turn out in huge numbers. Referendums on same-sex marriage in 11 states - including swing states like Ohio - helped push them to the polls.

For decades, Republicans used coded appeals to race to win voters. Richard Nixon spoke about "law and order," Ronald Reagan bashed "welfare queens" and supporters of President Bush's father raised the specter of Willie Horton. In 2004, the Republican Party has finally gotten beyond race baiting. "Moral values" is the new code. It does not mean morality, for burdening the poor to pamper the rich is hardly moral. It means opposition to homosexuality and secularism. The new slogan of the Republican faithful is simple: We're here, we think you're queer, and we can't get used to it.

That Damned Electoral College

JB

Here's the thing. I've never liked the Electoral College. I regard it as a relic of slavery and inherently anti-democratic. I believe that the person who wins the popular vote should be President, and Presidents who win the electoral college without winning a plurality (or a majority) of the popular vote have serious problems of legitimacy. That goes for John Kerry just as much as it does for George W. Bush.

Of course Kerry was certainly legally entitled to try to show that he won Ohio, and he might even have done it. But it would not have been wise.

Now it's time for all of those who supported Kerry and opposed Bush to lick our wounds and contemplate the country's future. This is a loss, and a bitter loss at that. But it is not the end. It is the beginning of the future, and we have to have faith that things will eventually get better and that the things we believe in and the values that we stand for will ultimately win the day.

What You Need to Know About Ohio

JB

The Help America Vote Act (HAVA) passed by Congress in 2002, required that states allow voters to cast provisional ballots if their right to vote is in doubt, and the right to have provisional ballots counted if their ballot is eventually determined to be valid. But HAVA leaves to the states to determine the standards for validity. Nevertheless, lawyers for the two sides may raise legal challenges under both Ohio law and federal law. The reason is another relic of the 2000 election, the Supreme Court’s decision in Bush v. Gore.

A majority of the Justices in Bush v. Gore held that Florida judicial officials violated the Equal Protection Clause when they recounted ballots without a uniform statewide standard to determine the voters’ intentions. Unlike Florida in 2000, Ohio election law has a uniform standard for determining the validity of punch card ballots: At least two corners of the punch card must be detached for the vote to be counted as valid. But plaintiffs can raise further legal challenges for provisional ballots and absentee ballots, because Ohio law does not provide clear standards for counting them.

Ohio’s secretary of State, Ken Blackwell, issued a directive on Friday, October 29, 2004 about how to count provisional and absentee ballots. Audrey Schering, a voter in Hamilton County Ohio, challenged that directive on election day, arguing that it doesn't’t give sufficiently clear standards for counting those ballots– that is, that it violates the equal protection theory of Bush v. Gore.

Provisional ballots are reviewed by election boards in each of Ohio’s 88 counties, with two Democrats and two Republicans sitting on each board. Three members of the board must agree to count a provisional ballot. Schering argues that Blackwell’s directive is so barebones and vague that different boards may apply different standards to determine whether a voter is eligible, in violation of Bush v. Gore.

What happens if Blackwell clarifies his ruling? Then another aspect of Bush v. Gore kicks in. Three Justices– Chief Justice Rehnquist, Justice Thomas, and Justice Scalia-- argued that Article II, section 1 of the Constitution requires that the rules for counting ballots for Presidential electors must be determined by the state’s legislature before the election is held. If Blackwell’s clarification was considered a change in the rules not authorized by the Ohio legislature, one or the other side could argue that he acted in violation of Article II, section 1.

Remember that this is only about the first count of the ballots. If the margin is small enough after the provisional and absentee ballots are counted, either side may request a recount or stage an election contest. (Here are Ohio's recount procedures).

Note that under Ohio law a recount is automatic if the margin of victory (after taking all provisional and absentee ballots into account) is less then one quarter of a percent. In this case, that's around 13,000 votes.

Belshazzar and Bush, Part II

Ian Ayres

The Return of the Repressed

JB

A majority of voters - and an overwhelming number of African-Americans - said they were concerned that their own votes would not be counted properly, and one-third said they expected to encounter problems when they went to vote, the poll found. Nearly 80 percent of black respondents said they expected that some states would make a deliberate effort to prevent them from voting tomorrow.

The anxiety appears to be a legacy of the disputed election of 2000: [45 percent] of respondents in this latest poll said they did not think Mr. Bush legitimately won the presidency in 2000, compared with [50] percent who considered the outcome legitimate. [N.B. these numbers were incorrectly switched in the original NYT article]

We will see if that fact has any consequences today.

And the Return of Repression. . . .

JB

In a day of see-sawing court rulings, a Federal appeals court ruled early Tuesday morning that the Republican Party could place thousands of people inside polling places to challenge the eligibility of voters, a blow to Democrats who argued those challengers will intimidate minority voters.

The ruling, by the United States Court of Appeals for the Sixth Circuit, in Cincinnati, reversed two lower courts that had blocked the challenges just a day before. It also came as squadrons of lawyers from both parties in Ohio and other swing states from Pennsylvania to Florida to New Mexico were preparing for Election Day skirmishes that will include using arcane laws that allow challenges at the polls. . . .

The battle over Election Day challenges has been most intense in Ohio, not only because the race here is so close and so vital to President Bush and Senator John Kerry, but also because the Republican Party has announced larger and more aggressive plans to challenge voters here than in other states.

The Republicans contend that challenging - a practice that has been allowed under state law for decades but rarely used - will weed out fraud often missed by election workers. Democrats assert that the challenges would disproportionately single out low-income and minority voters, which Republicans deny. . . .

In a similar and perhaps redundant decision in New Jersey, a federal judge, Dickinson R. Debevoise, ruled Monday that the Republican National Committee and people under its control may not challenge Ohio voters using a list of 35,000 people prepared by local Republicans here. The list is based on mail returned as undeliverable.

Judge Debevoise, ruling on a challenge filed by minority voters in Federal District Court in Newark, based his order Monday on a 1982 decision that prohibited the Republican National Committee from using so-called ballot security measures to frustrate efforts by members of minorities to vote. Judge Debevoise ruled that the 1982 decision, a consent order entered as part of a settlement in New Jersey, was national in scope and continued to be in effect.

Lawyers for the Republicans filed an immediate appeal to the federal appeals court in Philadelphia.

Even as the Ohio dispute was working its way through the courts, lawyers in other states were gearing up for Election Day challenges.

In Philadelphia, Republicans have said they plan to challenge 10,000 voters in the heavily black West Philadelphia section because of what they say are concerns of registration fraud. Democratic Party lawyers are expected to ask judges to remove the challengers if they are overly aggressive.

In Florida, Republicans have said they will challenge 1,700 people with felons convictions if they show up to vote. Democrats have mustered thousands of poll watchers whose job will be to ensure that voters are not intimidated.

Belshazzar and Bush

Ian Ayres

Thanks, Andy

JB

Here is the Votemaster's latest set of polls, and his prediction about the final outcome.

From his mouth to God's ears.