Obama lawyers defend ‘vote fraud’ efforts

(Photo/nathangibbs, Flickr)

(Photo/nathangibbs, Flickr)

As Republican charges of “fraud” and Democratic claims of “voter suppression” have escalated in the home stretch of the presidential campaign, liberal activists have started blasting Sen. Barack Obama’s presidential campaign’s “voter protection effort” for not doing enough to ensure that all Democratic votes will be counted on Election Day.

Liberal bloggers want Obama to do more to publicize voting problems, such as technical glitches in voting machines and GOP efforts to hold down turnout in the same way it has countered Republican-generated smears and robocalls.

“I remain not just exceedingly skeptical, but downright furious at the party’s brazen willingness to allow millions of votes to go either uncounted, incorrectly recorded, or recorded in such a way that is 100% unverifiable by any human being,” voter protection blogger Brad Friedman wrote in his blog last week.

“They need to get over their tortured thinking that discussing these issues somehow depresses turnout. There is zero evidence for that thinking,” Friedman, author of Bradblog, wrote in an e-mail.

Obama’s chief election law attorney Bob Bauer downplays the criticism, saying evidence from the 2004 election shows that highlighting problems with voting machinery and voter suppression turns off Democratic voters.

“It’s never helpful if the environment is filled with hyperbole about false claims. Voters don’t want to hear it,” Bauer said in a phone interview on Thursday. “We’re not going to fall for [the Republicans’] public relations bait. But if they take a concrete action, we will respond to it.”

Bauer maintained that the Obama campaign has moved quickly to respond to technical problems with voting equipment and to quell efforts to deceive voters.

In northern Nevada, he said, Hispanic voters received calls telling them that they could vote by phone. The Obama campaign responded to set the record straight. When voting machines started flipping votes for Obama to McCain, lawyers from the campaign’s Machine Task Force were dispatched to West Virginia recently to make sure the machines will be recalibrated.

The campaign, however, has not held a single press conference to highlight such problems.

Bauer and other lawyers close to the campaign said that the campaign’s voter protection effort is more aggressive, more robust and started earlier than it did four years ago.

The campaign has hired more than 100 paid staffers and full-time volunteers to work on voter protection issues, according to a memorandum sent to members of Congress last week from the DNC’s staff attorney, Justin Levitt.

Underscoring the campaign’s view that voter protection is as much about winning a public relations battle as it is a legal one, Bauer and the DNC’s outside counsel, Joseph Sandler, have hired Jenny Backus, a Democratic strategist, as a spokeswoman.

“[Sen. John] Kerry had amassed a pretty large operation himself in terms of having lawyers out there ready to pounce,” said Kenneth Gross, a campaign finance and election law attorney in the Washington, D.C. office of the firm Skadden, Arps.

“Whatever Kerry had is that much more sophisticated and that much more vibrant. [Obama] has both depth and breadth. They are poised to bring action if there are irregularities on Election Day.”

Like Kerry’s campaign four years ago, the Obama campaign has hired a “voter protection coordinator.” The staffer, usually a lawyer, has worked with the campaign’s field organizers to help register and educate voters, consulted with local and state officials to identify potential problems, and implemented a massive lawyer recruitment program to get volunteers to the polls on Election Day.

In Michigan, the campaign and the state party share the same attorney, Mary Ellen Gurewitz, an election law specialist with the Detroit firm of Sachs Waldman. Renee Paradis, who had served as an attorney at the Brennan Center for Justice, is the campaign’s voter protection coordinator.

Obama’s attorneys in Michigan and elsewhere have operated under the premise that more votes are lost to incompetence than fraud or suppression, although they are keeping tabs on proactive suppression efforts.

Friedman disputes that premise, saying one of the most serious issues is with electronic voting machines that are prone to error, because there is no way to know whether a vote has been lost.

“They are making no effort to remove these machines,” Friedman said. “It’s exceedingly troubling … The answer is to get them the hell out service.”

Lawyers in Michigan said they have identified trouble spots from previous elections, made sure that towns and cities are prepared to handle what is expected to be record turnout, and helped prepare local officials to make the process as efficient as possible.

That means handing out sample ballots to those standing in line, dividing long lines alphabetically, posting easy-to-read signs, and combing the lines to make sure people are standing in the right place if a polling station includes more than one precinct.

In New Mexico, Ann Marie Puente, an official with the Travis County Democratic Party in Texas, is the Obama campaign’s voter protection coordinator. She has one deputy. Neither are lawyers, but they are both building a network of more than 600 out-of-state lawyers to help on Election Day.

In Colorado, the Obama campaign has set up a similar structure with Tim Karpoff, a University of Chicago trained lawyer who worked for Kerry in Wisconsin in 2004, heading up the voter protection effort.

In October, Obama campaign aides sent an e-mail to volunteers looking for Spanish-speaking poll workers and watchers. As of Oct. 22, only a small portion of Denver’s polling stations had the requisite number of Spanish speaking staffers as required by state law.

The campaign also asked for volunteers to head to Adams, Conejos, Costilla, Otero, Pueblo, Rio Grande, Saguache, Weld, Alamosa, Archuleta, Bent, and Las Animas counties, all of which have sizable Spanish-speaking communities.

An attorney volunteering for the campaign and the DNC Latino Voting Task Force also asked for “Spanish-speaking assistance in testing the counties’ compliance with language accessibility laws.”

As for litigation, Bauer has settled on a strategy of surgical legal strikes rather than carpet-bombing the country with lawsuits, while relying on liberal advocacy and civil rights groups to stop efforts to disenfranchise eligible voters.

Although not a hard and fast rule, Democrats normally will take legal action in states where Republicans control the election and voting processes and Republicans will do the opposite.

“If your party is in control in that battleground state, the national campaign will leave it to the local officials,” Gross said. “If your person is not in power, they start to get very anxious and paranoid.”

Bauer has won suits in Michigan and Montana while the Republican Party has lost suits in Ohio and Indiana. Interest groups have sued Republicans in Pennsylvania, New Mexico and Colorado and forced Republican officials to settle the disputes on terms favorable to Democrats.

“No question that the Republicans have put [up] a good bit of activity and tried at a very high level to run a challenge program at a very high level. If you take a look at [their] record of success, it is dismal,” Bauer said. “They have lost in every state where we have engaged with them.”

Friedman says the Obama campaign still needs to be more aggressive.

“They need to bring lawsuits loudly and immediately, dozens of them, wherever necessary,” he wrote in an e-mail.

Bauer says he has made a conscious effort to fight the legal battles on his terms rather than McCain’s. He held several conference calls with reporters after Republicans accused ACORN and the Obama campaign of working together to register fraudulent voters.

But rather than engaging McCain’s “Honest and Open Election Committee,” led by former GOP Sens. John Danforth (Mo.) and Warren Rudman (N.H.), Bauer turned the tables on McCain’s campaign by calling on the U.S. attorney general to investigate links between McCain’s campaign and federal law enforcement officials.

In a letter sent to Attorney General Michael Mukasey on Oct. 20, Bauer asked that DOJ’s special prosecutor investigate “an emerging pattern of apparent unlawful coordination” between the McCain campaign, DOJ and Republican officials at the state level.

Four days later, Bauer sent Mukasey a letter asking him not to follow up on a White House request to intervene in Ohio and elsewhere to set up a system to challenge voters’ eligibility. Mukasey subsequently said he would not intervene.

In focusing on Mukasey, Bauer tied GOP efforts at encouraging state and federal officials to investigate voter registration fraud back to the Bush administration’s firing of eight U.S. attorneys for political reasons, including their unwillingness to pursue voter fraud cases. A special prosecutor is examining whether DOJ officials violated federal criminal law.

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Jonathan E. Kaplan

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