GEF @ 7:24 PM ET
As the 2008 presidential election heads into its final week, the current president threw a political wild card on table late Friday, when he asked Attorney General Michael Mukasey to investigate the status of 200,000 Ohio voters.
George W. Bush’s request, if honored, could be politically explosive. It would remind voters of the Department of Justice’s partisan abuses of power in the scandal surrounding the firing of seven U.S. attorneys in 2006 who did not deliver ‘voter fraud’ convictions.
It could be a big distraction, drawing attention away from issues that call for legitimate DOJ intervention, such as shortages of voting machines in minority precincts in Virginia and Pennsylvania, compared to nearby white precincts. That disparity would violate existing civil rights law.
Or it could interject a complicating dynamic into the already heavily litigated Ohio general election, by adding the Department’s weight to GOP legal claims that pre-emptively question the legitimacy of a close vote count in a key battleground state.
Either way, the Department must choose if it will remain silent or get involved in an action that would go well beyond its historic role of quietly monitoring elections and avoiding messages to voters.
“This is taking the politicization of this to a new level, and the last thing we need is for the elections officials and voters of Ohio to be put in a chaotic situation in the last days before the election,” Jon Greenbaum of the Lawyers’ Committee for Civil Rights Under Law, told the Washington Post, reacting to the White House request.
The White House, according to the same Post report, described its actions as a routine referral to a federal agency as requested by a member of Congress, House Minority Leader John Boehner (R-OH). Boehner had written to Mukasey early last week but received no response.
The Obama campaign reaction was to send the fourth letter this month to Mukasey urging he ensure the Department does not interfere “to satisfy desperate partisan political demands.”
“For the Department now, in response to the intense politics of the moment, to abruptly intercede in the current work of state and local officials would inflict incalculable damage — further and irreparable damage — to your office and to the reputation of senior federal law enforcement,” said Robert Bauer, Obama campaign counsel.
Bauer’s “further” damage was a reference to media leaks by FBI officials confirming it was investigating ACORN, a low-income advocacy group, for voter registration issues. That disclosure violated Department rules and Bauer asked Mukasey to instruct a special prosecutor in the U.S. attorney firing scandal to investigate the leak. Like Beohner’s request, Mukasey also did not respond to Bauer’s request.
The Real Issue
At issue in the White House pressure tactics is how the GOP may be able to contest the vote count if the results are close.
Republicans in several battleground states have sought to challenge the validity of hundreds of thousands of voter registrations using a gray area of federal election law and error-prone databases.
The Help America Vote Act of 2002 (HAVA) instructs states to use Social Security and driver’s license databases to verify voter registrations, but leaves it up to states how to specifically do that. In Ohio, for example, the Secretary of State, Democrat Jennifer Brunner, has issued for local officials to follow.
The absence of specific federal guidelines on using the Social Security and state motor vehicle databases to verify registrations is compounded by another factor: the fact that these records, especially Social Security data, have error rates as high as 28.5 percent when used for verifying voter registrations.
These factors are behind the GOP’s assertions that key battleground states like Ohio and Pennsylvania are facing major ballot security crises that threaten the legitimacy of the vote.
In various lawsuits, the GOP has argued that registrations that did not match these databases be segregated and treated as a separate class of voters. The GOP said these voters should receive provisional ballots, which would have to be verified before being counted.
But, so far, most state and federal courts have rejected the GOP’s legal arguments. Late last week, a Wisconsin court told that state’s attorney general, a McCain campaign co-chair, that he did not have the authority to sue on this issue. Moreover, in Ohio, the GOP’s lawsuit went all the way to the U.S. Supreme Court, where it sided with Brunner. The Ohio secretary of state, a former judge, said her office had met HAVA’s requirements by promulgating its own procedures to verify voter registrations.
Soon after the Supreme Court ruling, several Republican House members started lobbying the Justice Department to intervene. At the same time, Brunner issued new directives — which have the force of law — telling Ohio’s 88 county election boards they count not bar anyone from voting because of ‘no-match’ voter registration issues.
The White House then asked the Justice Department to intervene after Brunner’s latest directives.