View From a Height
Commentary from the Mile High City
Tuesday, September 28, 2004

The Denver Post Does Voter Registration 

I've just finished (ahem, just finished, hint, hint) a contract devoted to helping a company improve its Sarbanes-Oxley compliance. Sarbanes-Oxley was a law passed in the wake of the corporate scandals, and the section in question requires companies to have very strong internal controls as information passed from system to system, and to document those controls thoroughly. Data may pass from a billing system to a financial accounting system to a mangerial accounting system to a payroll system, even to a payment system. These controls prevent anyone from having direct access to the data, and so prevent some enterprising IT professional from, hooking up the electronic equivalent of a siphon line onto the cash flow. Or to prevent them from pulling an Enron at the behest of Upper Management.

Let's just say that if the same standards were applied to Colorado's voting procdures, Common Cause's Pete MaySmith, the Secretary of State, and every county elections official would be perp-walked out of their offices live in prime time, and we'd all assemble in a school auditorium for a show of hands November 2.

For a sense of how the media is treating voter registration rules, take a look at Monday's Denver Post (New rules may tangle vote). It consists almost entirely of quotes from Common Cause and the liberal Bighorn Center, and worries almost exclusively about disenranchisement. Reporter Susan Greene dismisses fraud concerns with a sentence noting that Colorado has no history of fraud.

Since Florida in 2000, when the outcome of the presidential election was in doubt for five weeks after the balloting, much attention has been paid to eliminating snags that kept as many as 3 million votes from being counted nationwide. Measures passed to prevent further problems, however, are raising new concerns.

No source is given for these numbers. John Fund in his superb Stealing Elections, suggests that they are much more mythology than reality. In any event, calling them "votes" is like calling Kobe Bryant's accuser a "victim" before he'd be convicted: it presumes the outcome. In this case, it presumes that the ballots were from legitimate voters, legitimately cast.

"We're on a collision course of conflicting laws and regulations," said Pete Maysmith, director of Colorado Common Cause, which last week sued Davidson over new rules it says will disenfranchise voters. "It has the potential to leave people on the outside of the polling place looking in on Election Day."

After the Florida debacle in 2000, Colorado's legislature and Congress sought to ensure no voter will be turned away from the polls again.

Yes, but they also sought to ensure that people couldn't vote twice, or under someone else's name, or in different jurisdictions. Quotes from the Dems: 1, Republicans: 0.

State and federal lawmakers passed measures providing for emergency, or "provisional," ballots - those cast by voters who forgot IDs or whose names don't appear on registration rolls. They're counted only when verified after an election.

In Colorado, the program had great success in the 2002 election, when 24,099 of 27,366, or 88 percent, of provisional ballots cast were accepted and counted. Of those, half came from voters who requested absentee ballots, which they either lost, filled out incorrectly or never received by mail.


Soon after, Republican state Rep. Rob Fairbank of Littleton successfully pushed to limit the number of provisional ballots made available and counted. The law he sponsored requires identification from people casting provisional ballots and prevents voters who request absentee ballots from voting provisionally.

Fairbank called the law an anti-fraud mechanism: "We needed safeguards to know you were who you said you were and to make sure you weren't voting twice."

Had it been in place in 2002, the law would have kept about 12,000 provisional votes from counting, according to one official's testimony. As a result of the law, the percentage of provisional ballots that counted in the Aug. 10 primary was 65 percent, down from 88 percent in 2002.

The number of provisional ballots rejected in August exceeded the margin of victory in at least three races, according to Fair Vote Colorado, a nonprofit group researching the effects of election laws. Had more been counted, the race to replace U.S. Rep. Scott McInnis and primaries for the Douglas County Commission and state House District 52 could have ended differently.

"When the number of rejected provisional ballots is larger than the margin of victory because of these laws, you have elections being decided by state legislators, not voters," said Mary Wickersham, who spent four years researching state election law for Denver's Bighorn Center for Public Policy.

This history here seems to be fair enough. Still, I'd like to know what official, working for what county or state office, made that estimate of 12,000 additional ballots rejected.

Notice, though, the disconnect between registration requirements and balloting requirements. Under the State law, according to the Jefferson County Clerk's office, the County is required to register someone who signs a piece of paper with their name, address, and birthdate. Under federal law, and according to the rules Common Cause wants to impose, that person could then vote provisionally without showing any form of ID, since provisional voting was created for the express purpose of accomodating people who don't bring ID to the polls.

As for Ms. Wickersham, to put it bluntly, this is like claiming that if a bank auditor determines more checks to be fraudulent than you have money in your account, he's the one responsible for your impending bankruptcy. Just as the money sent to impound never really belonged to you, so the ballots being rejected should never have been counted in the first place. It's precisely when the number of ballot rejected exceeds the margin of victory that election officials have been at their most heroic in protecting the integrity of the process.

References to Dems: 3, Reps: 1. Fair Vote Colorado is run by a Bighorn Researcher and a former Democratic operative.

Mark Silverstein knows firsthand the frustration of not having his vote counted.

In August, the lawyer for the American Civil Liberties Union rode his bicycle to his polling place without his driver's license, and an election judge twice told him he wouldn't be able to vote without his ID.

So Silverstein cast a provisional ballot and filled out an affidavit requiring that he list his driver's license or state ID numbers. He hadn't memorized them, and left the question blank.

As is his right, Silverstein then followed up to make sure his vote counted. The Denver Election Commission told him it didn't. But after several letters and phone calls, he said, officials still haven't explained why, as the law requires.

"It's likely that scenario was repeated in multiple polling places around the state," Silverstein said.

Not that we can ever prove what's in someone's mind, but how much you want to bet that Mr. Silverstein showed up without ID on purpose, to provide a test case? Seriously, who goes out biking without a driver's license, or some form of id? And I'm supposed to believe that this attorney for the ACLU doesn't know his own Social Security Number?

This whole section devoted to the misadventures of one either mischevious or addle-brained ACLU attorney will count only once. Dems 4, Reps 1.

Under the ominous heading, "Voters Without a Voice," we read:

Like Silverstein's, the votes of three plaintiffs named in last week's Common Cause lawsuit didn't count in the August primary.

Elizabeth Schulte of Denver, for example, couldn't vote provisionally because she didn't receive her absentee ballot. And Peggy Tibbetts of Silt didn't have an ID and left her polling place without casting a provisional ballot after a Garfield County election judge said it wouldn't be counted.

The lawsuit - scheduled to be heard Tuesday in Denver District Court - seeks to stop two state rules making it tougher to cast provisional ballots and the state law requiring voters to present driver's licenses, utility bills or other forms of identification at the polls.

Plaintiffs say requiring IDs amounts to a poll tax because most forms of ID cost money.

"You can't have election rules that disenfranchise certain people, like minorities and the poor. Our constitution protects against it," said Common Cause attorney Martha Tierney.

Doran said IDs are needed to prevent double voting. She had no specific information last week backing up her claim that voter fraud is a problem in Colorado.

Watchdogs counter that election law should widen access to voting, not limit it. They say security concerns pale compared to the need to protect basic democratic rights.

"The undocumented specter of voter fraud doesn't outweigh the primary responsibility of state and federal law to protect all citizens' right to vote," Wickersham said. "We must not erect barriers to the most basic act of democratic participation."

In this string of non-sequiturs and self-righteous lecturing, the notion that requiring people to have ID is equivalent to a poll tax stands out as the most specious.

I know from poll taxes. They used to have poll taxes in southern Virginia, and my great uncle Joe used to hand out the money to Democratic voters in his district to pay it. This is not a poll tax.

Quote count, Dems 8, Reps 2. And that's not counting the Post reporter's insta-rebuttal to Ms. Doran.

John Fund points out that Democrats are overwhelmingly concerned with expanding the franchise, Republicans concerned with following the rules, by something like 60%-20% for each party. What does this tell us about the Post's sympathies?

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