View From a Height
Commentary from the Mile High City
Tuesday, October 05, 2004

View From the Trenches 

I'm neither an attorney nor a criminal, so I don't usually spend too much time in court, but I did spend today sitting in Denver District Court watching the sausages get made in Colorado's vote fraud case. Unfortunately, the proceedings were called to a halt at 5:30, with several defense (Secretary of State) witnesses left to be called. They'll be back at it tomorrow morning at 8:30, but I'm not sure I'll be there.

Still, the basic outlines of the case were clear, and we may be able to get some sense of how things will go.

First, Judge Bayless was not the presiding judge. The case had been moved to Courtroom 9, that of Judge Morris Hoffman (to whom we will not refer as "MoHo"). This is a somewhat heartening development. Judge Hoffman appears to be process-oriented rather than utility-oriented. He engaged in a debate over the University of Michigan's Grutter case, taking a focused, reasoned conservative position on the matter. He has also strongly criticized druge courts as counterproductive. However, Judge Hoffman is capable of telling the Secretary of State's office to pound sand, as he did in 1999 when he ordered a recount of signatures for a workman's comp ballot initiative petition.

Judge Hoffman set out his belief in his opening comments that what's at stake here is the conflict between two compelling interests: preventing fraud while letting everyone vote who's properly entitled to do so. John Fund couldn't have put it better. He repeatedly interrupted Martha Tierney, the lawyer for Common Cause during her opening statements to make several points, music to conservative ears. First, that the relative absence of voter fraud in Colorado in the past in no way meant that the General Assembly couldn't assess a current threat, and pass laws to deal with it. There is a compelling interest in preventing vote fraud, not merely punishing it. Secondly, that it wasn't the provenance of his court to determine the realism of that threat. Third, he was clearly skeptical of Tierney's argument that ID has a chilling effect if you can vote provisionally without it, making it clear that he would demand data, not merely anecdotal evidence to be persuaded.

Common Cause is also objecting to the Secretary of State allowing only Presidential votes to be counted when someone votes at the wrong precinct, if they weren't sent there by an election official. The Judge pointed out that precincts are written into the Colorado Constitution, putting Tierney on notice that it would take a lot for him to do anything to weaken the geographic basis of our political system. When the Secretary's attorney made this point, Judge Hoffman objected not at all.

Judge Hoffman also made clear what the state would have to prove. Standard stuff: if the state is going to demonstrate that it has a compelling interest in promulgating these rules, it has to show that the rules actually defend that interest.

In order to set the bar, the judge created the following hypothetical. Suppose I get up early, and my neighbor blogs, er, gets up late. Suppose that I vote as myself, get back in line, and vote for him. Then he gets up, discovers the he's already been voted for, and threatens to burn the place down. I have to present ID to vote as myself. But I don't need to present ID to vote as him: I vote provisionally. Since the election judge sees that he's already voted, he makes him vote provisionally, too. How does the county distinguish between the two provo ballots, and if they can't, what good has the ID requirement done? He kept coming back and coming back to this. Eventually, the state provided a good answer, but it took a little while.

I got the impression that the plaintiffs had spent a good deal of time researching the lack of voter fraud in Colorado, and they kept at it, even when the judge basically said he wasn't buying. I also got the impression that the plaintiffs never quite got to the level of "blowing up" precinct voting, as the Intervenors (see below) put it. The only point on which they might have had a case was the voiding of provisional ballots cast by those who had requested absentee ballots.

A couple of points on the parties involved. First, one of the Denver Election Commissioners, Sandy Adams, found three other voters throughout the state, to also object to the plaintiff's case. The lawyers representing them also represented Bob Beauprez in the 2002 voter mess, and this experience came in handy when they were discussing means of distinguishing competing absentee or provisional ballots. This group, which technically constitutes a third party, but who coordinated closely with the state, is called the "Intervenors."

Ah, but the plaintiffs had an election official of their own: one Susan Rogers, an Election Commissioner for Denver, too. While Martha Tierney complimented her afterwards on a job well done, I thought she was terrible. She had lots of opinions but few facts, couldn't respond when the Intervenors' lawyer pressed her on the expected volume of absentee and provisional ballots.

Finally, the plaintiffs tried to show that the 2003 primaries showed an increase in the percentage of provisional ballots disallowed. That somehow this was unfair. Yes, and a very high percentage of pitches thrown over the batter's head are called balls, too. Naturally, Spencer glommed onto the one race where the number of provos disallowed exceeded the margin of victory. The question itself assumes that there's something inherently wrong with disallowing a provisional ballot.

The state did eventually provide answers to all three plaintiffs' complaints. First, the sheer volume of absentee and provisional ballots will probably overwhelm any pre-existing systems for avoiding double-voting. Secondly, requiring IDs does in fact raise the bar significantly for impersonating someone else - you need to research their address and whatever personal information you can provide, rather than just know their names. My guess is that, in what the judge admits is a near-run thing, the plaintiffs have failed to make their case entirely, while the state has just squeaked through.

My only regret is that I won't be able to be there tomorrow for the finish. I'm sure the reporters from the Post will be disappointed.

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