October 30, 2008
We, the undersigned non-governmental organizations in the United States, hereby petition the United Nations through the Economic and Social Council for protection of our human rights through provision of election observers and monitors for the upcoming US Presidential election on November 4th, 2008. We request observers to assess the breadth of voting irregularities and document any voting rights violations that may occur during this 2008 presidential election.
In light of the critical importance of the right to representation in our government, guaranteed through US law including documents such as the Bill of Rights and Constitution and legal precedent, as well as United Nations documents to which the US is a party such as the UN Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, we are requesting international assistance in providing non-partisan witness to the process and assuring to the extent possible universal voting rights for the entire US citizenry this November, 2008.
We are requesting this assistance due to serious concerns regarding enfranchisement in the upcoming 2008 presidential election based both on historical discrimination and exclusion of the rights of certain populations to vote and have their votes counted. There is broad evidence from both the US Presidential elections of 2000 and 2004 that there were patterns of election fraud, voter suppression and intimidation. The gold standard of predicting the outcome of elections, exit polls, which have continued to be more reliable over time, showed clear victory of the Democratic Candidate in both of these Presidential elections; a much delayed count of all the actual ballots in Florida from the 2000 elections, showed that the Democratic Candidate had in fact won the vote; unfortunately, a complete recount had been denied at the time of the election.
While the world is perhaps most aware of evidence in the state of Florida in 2000 and the state of Ohio in 2004, there are much broader patterns of tampering with the vote that lead numerous election experts and much of the US public to believe that the US may have experienced two illegitimate elections. This on top of and potentially informed by historical problems and voting rights violations in previous elections as well as significant evidence of violations leading up to this 2008 election and reasons to believe election fraud and voter suppression may be equally or more widespread this election. Sources of possible remedy from within the US, as well, to date, have been attempted and insufficient to protect our rights or the integrity of our elections.
We recognize that the most fundamental purpose of election observers is to verify the fairness of elections. We also recognize that the baseline of international standards for fair voting cannot be met in the US electoral system which essentially consist of 52 different electoral states each of which is overseen by a politically partisan administration [1]. However, it is the very partisan nature of our oversight that determines the critical need for non-partisan observers from outside our country. Given the world impact of US elections and our government’s stated mission of bringing democracy to the rest of the world, the importance of world scrutiny of the reasonable accuracy of US elections is critical both to protection the human rights of the US people and the interests of the rights of many across the world.
Importance of the Vote
As is clear historically, the concept of one vote per person, which was enshrined in the founding documents of the United States and subsequently fundamental to the concept of international human rights, has been a critical rallying point and motivation in the concept of a government by and for the people. That motivation led to a historical expansion over time of the right to vote within the US and elsewhere in the world. It is that impetus to fight for the right to vote and the impact of the vote that has fed much of the movements and inspiration of many otherwise oppressed groups within the United States. There is, of course, the countervailing force in the United States that was also enshrined in those documents initially which limited that right to vote to a minority of white men with property. We, in approaching the United Nations, continue the quest for real enfranchisement for all people in the United States, and to request international assistance in fulfilling the promise inspired by the US Constitution.
Basis in international instruments
We are seeking the assistance of the United Nations under sections of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. Within the Universal Declaration of Human Rights, Article 21 provides for the right “of free assembly and association”[2] The International Covenant on Civil and Political Rights in Article 25(a) speaks of the right “to take part in the conduct of political affairs directly or through freely chosen representatives”[3], which in this country requires a fair and genuine vote. Section B speaks to the right “to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage”[3]. In addition, the International Covenant on Civil and Political Rights speaks to the right to have an impartial tribunal to which one may bring any such issues or rights that are violated as specified in the International Covenant on Civil and Political Rights.
The Convention on the Elimination of All Forms of Racial Discrimination opens by speaking “to respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”[4]. In addition, it underlines the need to take “all steps to speedily eliminate racial discrimination throughout the world and secure understanding of and respect for the dignity of the human person”[4]. Article 1 says that “This convention shall mean that any distinction, exclusion, restriction, or preference which has the purpose or effect of nullifying or impairing exercise on an equal footing of human rights and fundamental freedoms in political, social, or any other field of public life”[4]. In addition, signatories to this convention, which includes the United States, are required under Article 2 to “pursue all appropriate means without delay a policy of eliminating racial discrimination”[4]. That each State Party under Art. 2, 1(b) “undertakes not to sponsor, defend, or support racial discrimination”[4], and under Art.2, 1(c) to take “effective measures to review governmental, national, and local policies and to rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination”[4]. And, these State Parties are supposed to “condemn all organizations which tend to justify discrimination”[4, Act.4]. Under Article 4(c) “public authorities or public institutions” are not permitted “to promote racial discrimination”[4]. In specific, under Article 5(c) political rights are protected, in particular: the right “to participate in elections, to vote, and to stand for election on the basis of universal and equal suffrage to take part in the government as well as in the conduct of public affairs at any level and to have equal access to public service”[4]. In addition to guaranteeing the right to participate through the vote in governmental and public life, under Article 6(f) is the requirement that state parties “shall assure everyone through competent national tribunals or other state institutions protection and remedies against any acts of racial discrimination as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered”[4].
Under all of these instruments of United Nations and international law, we are requesting assistance, specifically because we have found that “all available domestic remedies” were “invoked and exhausted” (as referred to in Art. 11, Sect. 3 of the ICERD) regarding voting rights violations and more especially voting rights violations of communities of color in the 2000 and 2004 US Presidential Elections.
The History of the Vote in the United States
While there is a history of successful struggle for the expansion of voting rights within the US and a history as well of violations of voting rights, in the next section of the document, we will review some of that history and then discuss some of the violations that epitomize the problems in the 2004 US presidential elections and then examine the attempt at remedying that situation and the ways in which each of those pathways became a dead end for the voters to seek redress.
Voting restrictions to those with property were primarily lifted through the 14th amendment to the US Constitution [5]. Throughout the movements that worked to end slavery was the goal of changing US Constitutional law to consider African Americans equal in the eyes of the law including the right to vote. After the legal end of slavery the US Constitution was amended with the 15th amendment in 1870 and related legislation passed to prohibit the denial of voting rights “on account of race, color, or previous conditions of servitude”[5], although numerous barriers meant that practically disenfranchisement on the basis of race has continued. After two significant movements engaging thousands of women and their male allies, the women’s suffrage movements in the US succeeded in getting the 19th Amendment to the Constitution ratified in 1920 [5]. In response to continued activism and expansion of social understanding of equal rights in the last 50 year in the US, continued litigation, judicial decision and congressional action has removed barriers to the political participation of the Native Americans, disabled, those who are illiterate, without english language skills, removal of voting fees that excluded voters on the basis of class (24th amendment), and age (26th amendment) [5].
Throughout the Civil Rights period and the struggle for rights for people of color within the United States in the middle of the last century, voting rights was a clear focus of activity. During that time, there was an attempt to in various ways to fight the disenfranchisement particularly of African Americans in the South. The disenfranchisement was governmental in terms of statutes that allowed both legal denials of the right to register to vote and also capricious or arbitrary denials based on ways in which laws had been written that allowed for wide interpretation by local voting and elections officials. Through citizen activism, congressional remedies (such as the Voting Rights Act of 1965) were passed, judicial decisions solicited (in 1915, 1939, 1953, 1960, etc.) and the intervention of the federal government ended many of those practices [5]. However, informal practices and some legislation that translates in to racially-targeted disenfranchisement have continued since to intimidate voters.
Continuing History of US Voter Disenfranchisement
Referenced in the endnotes are some of the periodic examples that we documented and shared with other election activists but we are aware of on and off forms of different types of election fraud and voter suppression in some areas of the country. In the endnotes is an example from1996. Did these patterns of voter violation determine these elections? But it lays the groundwork for the belief in some quarters that a number of the things that happened in the Florida election of 2000 and in numerous parts of the US in the 2004 election are both unfortunately somewhat predictable, clearly violate voting rights, especially of voters of color and include intentional action of racial discrimination and also fit a historical pattern within the United States which we as the people of the US have yet to be successful in remedying.
Institutionalized policies that violate voting rights
This document will not directly address certain standing violations of international law around universal suffrage, which many non-governmental organizations in the United States are working to remedy. The most basic legal and perhaps underlying problem with commitment to voting rights is that while many other rights are enshrined in the US Constitution, the right to vote is not; although, the Constitution does specify that voting cannot be denied on the basis of various forms of discrimination [6].
One targeted violation of universal suffrage is a significant number of jurisdictions within which people who have committed various crimes, primarily felonies, even though they have served their time and fulfilled whatever their sentence requirements are continue in some states they are denied the right to reregister and vote. In Florida alone, with denial of the vote to ex-felons and related measures almost one third of African American men are disenfranchised.
An additional issue that impedes the possibility of a genuine democratic vote in the United States is the continuing existence of the electoral college. Rather than having votes count directly towards the presidency in the United States we have what is sometimes referred to as a holdover of aristocratic tradition, which is that we vote in our states, the winner of the majority of the popular vote in a particular state then actually wins the entire state. Each state is assigned a certain number of electoral votes based on census data and population statistics. Those votes all go to the majority winner of the popular vote in that state. This denies voters the impact of their individual votes. For instance, in the 2000 US Presidential elections, even in the official vote count, Gore won the popular vote and without the imposition of the Electoral College, would have won the Presidency. In fact in states that are relatively uncontested the electoral college process depresses the number of people that go vote, because it becomes a forgone conclusion based on polling data prior to a particular election that that state will go to a particular candidate, and therefore voter turnout is significantly depressed in those states [7, overview & timeline]
In addition, structural problems exist in US law that make elections both impossible to be fair and so complicated as to increase barriers to voting for regular voters. Our governmental system creates 52 different state election system – a number of which have significantly different systems some have described as over 13,000 different elections [8]. Each state imposes its own laws on its electoral system. In addition, each state system is overseen and administered by an elected Secretary of State who belongs to a particular party – therefore, ensuring that they cannot by definition be non-partisan. Unfortunately attempts to improve voting problems from the 2000 presidential election led to a further concentration of power in these now sometimes publicly proclaimed actively partisan overseers of our elections but to understand that, some history [9].
The Voting Rights Violations in the State of Florida, US Presidential Election of 2000
The situation with the Florida vote in the US presidential election of 2000 included violations which are described in much greater detail in an appendix and endnotes. However, it is important in this document to point out some samples of the length and breadth of the problems that voters faced.
The 2000 voting rights violations in Florida were both more subtle and in some ways therefore far more egregious. People who technically, legally should have been able to cast their ballot were unable to do so, for a wide range of reasons. Any number of these reasons, the US Commission on Civil Rights, which conducted an extensive public investigation of the allegations of voting irregularities, refers to in its June 2001 report as “either intentional discrimination against people of color or resulted in the denial of equal access while intent may be harder to determine” [10].
Violations through “Cleansing” of the Florida Voter Rolls Leading up to November 2000
There has to be a process by which governmental organizations can determine people who have died or moved or in other ways may be legitimately disqualified from voting. The government of Florida engaged in very unusual strategies for purging the voting rolls prior to the 2000 election. The “cleansing” as they call it of the voter rolls in Florida came about partly because extensive voter fraud that led to the passage of a new state law in 1998; a mayor of Miami, Florida in the previous election had been removed after it was found out that dead people had cast ballots in the election [11, Ch.5].
First they put the job of cleansing the voter lists out to bid to private agencies as opposed to using governmental agencies. They went with the bid that was the most expensive, which ended up costing $4 million [12, Origin]. The primary questionable issues revolved around the purging of people from the rolls based on this issue of being identified felons. While standard operating procedures that might have been used to both correctly identify and also cross check names to make sure people were not incorrectly removed from the rolls were proposed to the Florida Government, according to the Vice President of ChoicePoint, the Secretary of the State of Florida chose not to use them [11, Ch.5]. In fact the Secretary of State went the other direction and actually ordered the use of nonstandard means for both initially identifying who should be on the list and requested that the contractor, DBT not use standard procedures for cross matching [12]. Some requested procedures likely to significantly increase the number of “innocents” removed, DBT apparently objected to but were eventually ordered to use, [12, origin]. Therefore, the voter cleansing lists ended up including roughly 1% of the voting population in Florida, 3% of African American voters [12, Names were ordered]. The purge list eventually added up to around 180,000 persons, almost 66,000 of whom were included on the basis of being identified felons (although 8,000 names were later removed) [12, Controversy].
The governmental structure in Florida allows for the county election officers to use this information in an advisory capacity; some of them realized that the list was questionable and did not implement the purge: such as blank conviction dates, future convictions dates, had restored voting rights [12, The list]. The election official of Leon County did take the time with in-house experts to check each name on the purge list one by one [12, List accuracy]. They found that of the 694 named felons in Tallahassee, they could verify that only 34 of them, or 5% actually should have been excluded. This sample means that there’s more than a 99% chance that over 90% of those listed as felons on the 2000 Florida central voting file were in fact eligible voters [12, List accuracy].
A demographics expert David Bositis says that based on nationwide conviction rates, that the African Americans probably accounted for 46% of the ex-felon group wrongly disenfranchised [12, List demographics]. To look at just three counties, that would mean that in Hillsborough county where 11% of voters are black, 54% of the names on the list were black. Miami Dade county, 20% of voters are black, that means 66% of the names on the list were black. Leon county, 29% of voters are black, 55% of the name on the list were black [12, List demographics].
None of the names on the list were Hispanic because those had been explicitly dropped as per request of the Florida government. The focus on removing African Americans and purposefully not removing Hispanics is easily explicable because African Americans vote overwhelmingly democratic and Hispanics in Florida overwhelmingly republican [13].
Contrary to the International Convention for the Elimination of all forms of Racial Discrimination which requires a tribunal and the existence of such remedies, most of those purged have not had access to remedy the situation. Numerous purged voters were not even notified by the officials [11, Ch.2]. The poll workers were not properly trained to know how to use those fallbacks [11, Ch.4] and reportedly there was widespread inability of election poll workers to reach the supervisors of elections offices to find out how to handle such situations or double check people’s registrations [11, ch.2]. Many of the people who did get notification and attempted to prove that they were innocent have been unable to do so even to this date [11, Ch.5].
Other Voting Rights Violations in the Florida 2000 Presidential Election
Polling places were moved again primarily in African American districts it appears [11, Ch.2]; there was no notification on the previous polling place fo the new site [11, Ch.2]. If they went to the wrong polling place after that, they were not necessarily able to verify where they should have been [11, Ch.2].
Although Floridians are legally allowed three chances to cast a ballot, there was only an opportunity for a remedy if Florida voters knew that their ballot had not been readable or processible by the machine. Research again done by the US Commission on Civil Rights found that the election process itself led to African American voters being nearly 10 times more likely than white voters to have their ballots rejected [11, Ch.1]. This also impacted poorer counties which were much more likely to use voting systems with higher spoilage rates [11, Ch.1]. In Florida, with the number of precincts with the highest number of disqualified ballots, 83 of them are majority black precincts [11, Ch.1]. In two counties with disproportionately high numbers of African Americans and Hispanics, voting machines’ automatic capacity to check for spoiled ballots were actually turned off [11, Ch.8]. Even with the same voting technology was used, blacks were far more likely to have their votes rejected than whites [11, Ch.1].
Numerous more violations including registered votes not being allowed an affidavit nor the right to appeal those decisions, although such remedies do technically exist [11, Ch.2 & 7]. Polls being closed while voters were still waiting in line; being closed early [11, Ch.2]. There was a mysterious question of the Florida highway patrol conducting an unauthorized vehicle checkpoint close to the polling place in a predominantly African American neighborhood [11, Ch.2]. Although it’s not clear why that was, it appeared to local voters that that was to prevent people from feeling safe enough or being able to come vote [11, Ch.2].
Not at all unique to Florida people with physical disabilities or needing translation were unable to vote because the polling places were structurally inaccessible and improperly equipped [11, Ch.6]. Across the US, those with disabilities voted 15 to 20% below the national average.
The US Commission on Civil Rights identified the area of Palm Beach county, where specially designed ballots - called the butterfly ballot - clearly created a miscount in the votes [11, Ch.6].
Not documented in the US Commission on Civil Rights study were other significant violations of voting rights. Florida law requires the presentation of a photo ID when you go vote, although that’s often apparently not actually implemented in the voting procedure. However, there’s extensive anecdotal evidence that Latino voters in the more predominantly Latino sections of Florida were often required to have two ID [12]. Most US citizens don’t carry two picture ID anyway. But it was illegal that they were required to produce 2 forms of id; local poll workers reported that they were trying to avoid immigrants illegally voting.
Apparently there had been a government funded campaign leading up to the 2000 vote in Florida enumerating the ways in which voter fraud could occur, but not enumerating ways that you have a right to vote [11, Ch.4]. Government money had been spent on public service announcements, etc. to enumerate these potentially fraudulent means for voting, but no comparable money was spent on public service announcements to educate voters as to their right to vote [11, Ch.4].
All of the documented evidence through the US Commission on Civil Rights shows that literally tens of thousands of potential voters were denied the right to vote with a disproportionately high percentage of those being African American voters and certain segments of Hispanic voters. The other identified populations being those in poorer counties, people with disabilities, and these voters in Palm Beach who are overwhelmingly Jewish. All of these procedures violated voting rights, some of which were clearly direct consequences of actions by the Governor, the Secretary of State which is responsible for election procedures, and even some of the county level election officials. Some of these violations are clearly systematic across the board; some of them appear to potentially be incidental. However, they are significant enough to implicate that tens of thousands of voters clearly based on various different racial, nationality, and other minority categories were excluded from their right to suffrage in Florida during the US Presidential election in 2000.
The US Commission on Civil Rights functioning as the kind of independent tribunal specified in the International Convention for the Elimination of all forms of Racial Discrimination [4] put forward extensive recommendations. Recommended litigations were overwhelmingly never undertaken.
As part of our petition to the United Nations for election observers and monitors, it’s important to note that while there was extensive documentation of what happened in Florida, there was some similar evidence across the country showing that thousands of ballots don’t get counted regularly and that a much higher proportional number of those are African American voters.
In the vote count that was certified by the Supreme Court, which is the highest body of the judicial branch in the United States, President Bush won by 537 votes. The examples given already of missed votes implies that that margin was certainly not enough to claim victory for Bush. The Florida Ballot Project, which was undertaken at the University of Chicago sponsored by a consortium of the major US news organization conducted a comprehensive review of all the uncounted ballots. Its findings showed that Gore would clearly have won in a statewide recount in which all ballots were counted [14].
2000 US Presidential Election Time Line of Events
Before the polls had closed, the major news outlets had called Florida for Gore [7, Election results]. This is based on exit polling, which is considered very reliable through a consortium that the major television networks and Associated Press put together called the Voter News Service. By the end of the night, the election had been called for Bush but due to the narrow margin of the vote, Florida law requires a recount. The Florida Supreme Court eventually ordering the recount while the Secretary of State’s office had tried to avoid a recount on a number of bases [7, Election results]. On December 4th, the Supreme Court eventually nullified the decision of the Florida Supreme Court to recount saying that the result had to be certified by a certain date based they said on the fact that the Florida Supreme Court had decided to bypass state election laws for what they considered “imprecise grounds” [15]. The final decision came late that night of December 12th when the US Supreme Court handed down two decisions for Bush [7, Overview & timeline] based on, the Supreme Court Justices said, the differing vote counting standards in different counties and the lack of a single judicial officer to oversee the recount [15]. The next day, December 13th, Gore conceded the presidency [7, Overview & timeline]. On January 6th, 2001 Congress had to certify the electoral college vote [7, Overview & timeline]. While several members of the House of Representatives of the US Congress filed objections to the electoral votes, their objections could not even be heard because they could not obtain the required signatory of a single senator [7, Overview & timeline].
Based on the experience of 2000 not only in the spotlighted state of Florida but in lesser stories from other battle-ground states in 2000, a consortium of organizations filed with the United Nations a request for international observers [16]. That request outlined actions taken by the US Commission on Civil Rights and on the face of it the Help America Vote Act in Congress to address some of these voting rights violations. However, given the overwhelming lack of meaningful action by governmental bodies, the mostly regressive role of the media which is legally supposed to assist in our ability to protect our rights as a watchdog for government but played the opposition function, and limited abilities even with extensive efforts of the NGO’s on the ground, the need for international oversight seemed clear.
In addition, the fears and concerns expressed in that brief of the potential abuse of a heightened fear level created by relatively amorphous terrorist alerts and increasingly subtle and broad-reaching voter violation and election fraud techniques were painfully accurate in the unfolding of the 2004 Presidential Election [Appendix B].
While attempts were made, the widespread violations appeared indeed more egregious and more extensive. And while it took years for actual evidence to be brought to light, that they were consciously and effectively disseminated broadly. European Observers did come to the US in limited numbers but more importantly their impact was severely stunted by their exclusion from the various sites where they were perhaps needed most and once again the counterproductive, irresponsible lack of coverage by the major US media of their report [17]. Their report provided a broad and factual condemnation of voting problems that was also documented by others as widespread evidence of election fraud and voter suppression; all of which major US media also unethically ignored.
A small movement of ongoing election focused action did, however, come into being – getting an objection to the Ohio Vote filed in Congress (even though it was not voted for) [18], significant voting improvements and some significant public awareness.
None of which has been sufficient to get enough significant legal changes nor citizen involvement, to mitigate the clear need for election observers in 2008. If nothing else, they must document and expose to the rest of the world – that we cannot guarantee our voting rights, nor even enough integrity in our complicated and partisan system that the 2008 Presidential Election will have integrity, integrity which both the elections of 2000 and 2004 clearly lacked.
US Presidential Election 2004, Violations become more widespread
The relative focus on one state of violations after the 2000 election, expanded to numerous reports in 2004– over 11,000 to one hotline alone [19], with the numerous election fraud and voter suppression techniques repeated seemingly randomly in different parts of the US.
Again, like in 2000, exit polling called the election one direction and the vote tallies went the other way [20]. As we found out once the media consortium, that was worried about the 2000 Florida vote discrepancies, actually got the votes counted: exit polls were right in 2000 Florida. In fact, many experts believe that the one reliable and historically incredibly accurate election measure is exit polls; and their precision continues to improve according to all the exhaustive research and statistical and methodological analyses [21].
So, the vote count divergence from the 2004 exit polling results, which were more extreme and present in every battleground state than 2000, was even more disturbing [20]. Each of these statewide discrepancies between exit polls and vote tallies were essentially statistically impossible to ascribe to random factors since they all benefited Bush [8]. And once again, the media continued to move farther from its non-partisan role as a reporter of the facts implying that there must be something bizarrely wrong about the exit polls as opposed to the more factually based questioning of the vote count itself [22].
The overwhelming accuracy of the exit polls has been proven several ways by statistical experts. The last minute significant shift in the exit polling data towards Bush was statistically impossible given the number of additional votes reported in Ohio [22A]. Analysis of exit poll data posted prior to the significantly altered final posting, showed no bias in reporting that could have explained a pro-Republican vote count divergence from the exit polls [23]. The incidence of divergence being tied to particular types of voting machines in an indepth study of Ohio again points to tampering of the vote count not exit polling problems [23A].
Critically important and most disturbing is that exit poll discrepancies were most evident and only really significant in 10 of 11 battleground states. The discrepancy between predicted spread between the two major presidential candidates in percentage of the vote based on exit polls versus the spread based on reported vote tallies in the battleground states was: Colorado (3.4% toward Bush), Florida (4.9% toward Bush), Iowa (2.2% toward Bush), Michigan (1.6% toward Bush), Minnesota (5.5% toward Bush), Nevada (3.9% toward Bush), New Hampshire (9.5 toward Bush), New Mexico (3.7% toward Bush), Ohio (6.7% toward Bush), Pennsylvania (6.5% toward Bush), Wisconsin (no discrepancy). The collective discrepancies in just the three key battleground states of Ohio, florida and Pennsylvania together makes the likelihood one in 250 million [20].
While divisive and supposedly prejudiced-based voting patterns were used by opinion-makers to explain Bush’s sudden victory [24], exit polls showed that Bush’s win was a wide-spread statistically essentially impossible outcome. The only realistic explanation is undergirded by extensive evidence of election fraud and voter suppression. By January of 2005, when voters organized to get an objection to the Ohio vote count filed in Congress, we, core leaders of the Coalition Against Election Fraud [25], began to suspect that the techniques used to subvert the outcome had to have been almost distributed like a smorgsbord of fraudulent and suppressive options through clandestine, right wing networks across the US. Since then, the evidence has become clearer and more stark of the fraud and suppression and possible avenues of organized dissemination.
Robert F. Kennedy, Jr. more recently came to the same conclusions: “After carefully examining the evidence, I've become convinced that the president's party mounted a massive, coordinated campaign to subvert the will of the people in 2004. Across the country, Republican election officials and party stalwarts employed a wide range of illegal and unethical tactics to fix the election” [8].
The outline offered here is a small overview of information that can be found more extensively – Coalition Against Election Fraud report provided to Congress before the filing of the objection to the 2004 Ohio Vote [25], reports from the Ohio Recount [27], Robert F. Kennedy’s extensive piece, “Was the 2004 Stolen Election?” [8], Congressman Conyers Hearing investigating the 2004 Ohio Vote [28].
2004 US Presidential Election Violations: Case Study of the Battleground State of Ohio
The following is an abbreviated version of Robert F. Kennedy’s extensive piece, “Was the 2004 Stolen Election?” [8]:
“A review of the available data reveals that in Ohio alone, at least 357,000 voters, the overwhelming majority of them Democratic, were prevented from casting ballots or did not have their votes counted in 2004 [29] -- more than enough to shift the results of an election decided by 118,601 votes (See Ohio's Missing Votes) [30]. In what may be the single most astounding fact from the election, one in every four Ohio citizens who registered to vote in 2004 showed up at the polls only to discover that they were not listed on the rolls, thanks to GOP efforts to stem the unprecedented flood of Democrats eager to cast ballots [31] And that doesn't even take into account the troubling evidence of outright fraud, which indicates that upwards of 80,000 votes for Kerry were counted instead for Bush. That alone is a swing of more than 160,000 votes -- enough to have put John Kerry in the White House [32].
In Ohio, officials purged tens of thousands of eligible voters from the rolls, neglected to process registration cards generated by Democratic voter drives, shortchanged Democratic precincts when they allocated voting machines and illegally derailed a recount that could have given Kerry the presidency.
What's more, Freeman found, the greatest disparities between exit polls and the official vote count came in Republican strongholds. In precincts where Bush received at least eighty percent of the vote, the exit polls were off by an average of ten percent. By contrast, in precincts where Kerry dominated by eighty percent or more, the exit polls were accurate to within three tenths of one percent -- a pattern that suggests Republican election officials stuffed the ballot box in Bush country [33].
A precinct in an evangelical church in Miami County recorded an impossibly high turnout of ninety-eight percent, while a polling place in inner-city Cleveland recorded an equally impossible turnout of only seven percent.
In Warren County, GOP election officials even invented a nonexistent terrorist threat to bar the media from monitoring the official vote count [34].
Congressman Conyers and the committee's minority staff held public hearings in Ohio, where they looked into more than 50,000 complaints from voters [28] Instead of welcoming the avalanche of citizen involvement sparked by the campaign, Blackwell permitted election officials in Cleveland, Cincinnati and Toledo to conduct a massive purge of their voter rolls, summarily expunging the names of more than 300,000 voters who had failed to cast ballots in the previous two national elections [35]. In Cleveland, which went five-to-one for Kerry, nearly one in four voters were wiped from the rolls between 2000 and 2004 [36].
Thousands of duly registered voters were deprived of their constitutional right to vote -- often without any notification -- simply because they had decided not to go to the polls in prior elections [37]. In Cleveland's precinct 6C, where more than half the voters on the rolls were deleted [38] turnout was only 7.1 percent [39] -- the lowest in the state.
According to the Conyers report, improper purging ''likely disenfranchised tens of thousands of voters statewide” [40].
Ohio was in the midst of the biggest registration drive in its history. Tens of thousands of volunteers and paid political operatives from both parties canvassed the state, racing to register new voters in advance of the October 4th deadline. To those on the ground, it was clear that Democrats were outpacing their Republican counterparts: A New York Times analysis before the election found that new registrations in traditional Democratic strongholds were up 250 percent, compared to only twenty-five percent in Republican-leaning counties [41].
the Republican National Committee and the Ohio Republican Party attempted to knock tens of thousands of predominantly minority and urban voters off the rolls through illegal mailings known in electioneering jargon as ''caging.'' During the Eighties, after the GOP used such mailings to disenfranchise nearly 76,000 black voters in New Jersey and Louisiana, it was forced to sign two separate court orders agreeing to abstain from caging [42]. But during the summer of 2004, the GOP targeted minority voters in Ohio by zip code, sending registered letters to more than 200,000 newly registered voters [43] in sixty-five counties [44]. On October 22nd, a mere eleven days before the election, Ohio Republican Party Chairman Bob Bennett -- who also chairs the board of elections in Cuyahoga County -- sought to invalidate the registrations of 35,427 voters who had refused to sign for the letters or whose mail came back as undeliverable [45]. Almost half of the challenged voters were from Democratic strongholds in and around Cleveland [46].
By law, each voter was supposed to receive a hearing before being stricken from the rolls [47]. Instead, in the week before the election, kangaroo courts were rapidly set up across the state at Blackwell's direction that would inevitably disenfranchise thousands of voters at a time [48] -- a process that one Democratic election official in Toledo likened to an ''inquisition” [49]. Not that anyone was given a chance to actually show up and defend their right to vote: Notices to challenged voters were not only sent out impossibly late in the process, they were mailed to the very addresses that the Republicans contended were faulty [50]. Adding to the atmosphere of intimidation, sheriff's detectives in Sandusky County were dispatched to the homes of challenged voters to investigate the GOP's claims of fraud [51].”
What Robert F Kennedy, Jr.’s listing of many of the most important impacts of 2004 Ohio election fraud does not highlight some of the stark voter suppression and illegal activity.
There are numerous reports of voters who ran into serious problems when they went to vote. Some found that their names were already crossed off so that poll workers told them they had already voted – and yet, they had not [52]. More terrifying was the experience of voters who were ‘challenged’ when they sought to vote. Not only was the seeking of lists of voters to challenge by the Republican Party in more people of color districts already ruled illegal by the courts in the 80’s but allowed by then Ohio Secretary of State but the ‘challenging’ process itself done in a physically intimidating and illegal manner [53]. Legally a challenge is supposed to be of a specific voter – the challenger awaits that voter presenting themselves and is supposed to approach the poll-worker when that name is called and request a ruling by the head of polling staff for that precinct. However, at best, teams of challengers would await the name of a voter being called and then reports describe voters being encircled by usually three large men and yelled at and told they cannot vote. In addition, in some polling places these teams of challengers would wait by the entrance and confront voters based on appearance before they ever got to present themselves and have their name called by poll-workers [54].
Important violations only came to light because third party candidates, lead by Green Party Presidential Candidate David Cobb used their legal standing in Ohio state law to call for a recount [55] (since, like in 2000, the Democratic Presidential Candidate conceded the election before fighting the violations of so many people’s human rights to vote). This recount was first illegally thwarted in a number of ways and then illegally terminated by the highly partisan Ohio Secretary of State [56].
While a quick review of their findings overall cannot be replaced, some egregious examples of voting rights violations must be specifically included here. A key factor in the final vote count going to Bush was unusually high percentages of ‘undervoting’ and overvoting’ in some counties (leaving the Presidential preference blank or voting for both candidates). While recount volunteers were illegally denied the right to photograph or in anyway physically document the occurrence or hold back an example, they did swear out affidavits [57]. In more than one local recount, ballots were found to have been apparently pre-marked for President Bush, that is ballots had apparently had the Bush ‘oval’ blackened before voters used them – creating overvotes that had been invalidated if a the voter had colored in the Kerry oval as well [57]. In one bizarre locale, tiny white stickers had been placed over Kerry ovals on numerous ballots – one recount volunteer lifted some of these ovals to find a blackened in Kerry oval underneath – rendering these ballots ‘undervotes’ or in cases where the Bush oval had also been colored in, actually switching these votes to Bush [57]. Election officials explained that some ingenious poll worker must have had the perfect white oval stickers printed on their own and used them unbeknownst to election officials [57]. It is curious to imagine how they would have known exactly what sticker to produce or how no one would have seen them using them!
Finally, unfortunately, as we feared it is possible that the use of a ‘terrorist threat’ may have been the final step in a successful and actually cordinated plan to throw the Ohio vote and therefore enough Electoral Votes to Bush to win the national election. Ohio is a state with literally dozens of counties and the pattern of election fraud and voter suppression varies extensively – with the most obvious voter suppression in the most Democratic leaning, often lower income and people of color areas of the state and the less obvious and therefore less expected election fraud that vastly increased the Republican vote in typically Republican strongholds [58].
But for the win in Ohio to be effective, it was important that the Ohio vote not come under significant scrutiny and so it needed to be decisive enough so that Ohio law that mandates an automatic recount in close enough elections not be triggered. Scrutiny – as it did later – would surely have brought to light the complex and often extreme measures taken.
We believe that the numerous techniques used in such varying circumstances were not trusted to be predictable enough, nor secure what was probably the required goal – a win too decisive to trigger an automatic recount. They needed one tabulation center that was available to ensure the needed margin of victory. Ideally, a Republican stronghold where such action would not have been suspected in advance (tampering in Democratic stronghold would have been) and where they could exempt themselves from any of the normal media scrutiny. Warren County under a “terrorist” alert declared by election official fit the bill. Claiming that the FBI had called in a warning, they threw out not only the media but the police and barricaded themselves in with the tabulations behind New Jersey barriers, etc. for the whole night [59]. We suspect that they were awaiting notification of vote totals from across the state and then supplied their own overwhelming – and statistically highly improbably – landslide of Bush votes for their County that provided the sufficient margin necessary to avoid a recount. The only problem would be that the FBI would and did report no terrorist threat was ever made nor such an alert ever called in to the County’s election officials [59].
The Conyers’ report includes the conclusion, “It is impossible to rule out the possibility that some sort of manipulation of the tallies occurred on election night in the locked-down facility” [60].
But in the media’s rush to anoint Bush, the Republican’s burying of their actions and the Democrats’ swift capitulation, they had successfully delayed any scrutiny until the national government’s attention had moved on.
2004 Examples of Election Fraud and Voter Suppression spread across the US.
While we have more details for the election fraud and voter suppression in Ohio because it was the focus battleground state for the 2008 presidential election, techniques used there both for election fraud and voter intimidation were witnessed in many other places across the country.
In “Was the 2004 Stolen Election?”, Robert F. Kennedy, Jr., summarizes some of the nationwide realities from the 2004 Presidential Election [8]:
“Nearly half of the 6 million American voters living abroad [61] never received their ballots -- or received them too late to vote [62] -- after the Pentagon unaccountably shut down a state-of-the-art Web site used to file overseas registrations [63]. A consulting firm called Sproul & Associates, which was hired by the Republican National Committee to register voters in six battleground states [64], was discovered shredding Democratic registrations [65]. In New Mexico, which was decided by 5,988 votes [66] malfunctioning machines mysteriously failed to properly register a presidential vote on more than 20,000 ballots [67]. Nationwide, according to the federal commission charged with implementing election reforms, as many as 1 million ballots were spoiled by faulty voting equipment -- roughly one for every 100 cast [68]
In a piece “Steal Back Your vote” [69] Gregory Palast points to 1.1 million provisional ballots that went uncounted in the 2004 elections as proof that provisional ballots often go uncounted.
"Once you sign that provisional ballot, the chances are officially one in three that your ballot will be thrown in the garbage can," said Palast.
Palast told Truthout: "All you need is the most minor error, like you didn't use your middle initial in your registration; not enough postage cost a third of a million votes in the US the last time around because most ballots are two stamps, not one.”
Because of the number of different techniques employed, it was easy for those who wished to undermine the credibility of the accusation that the election was stolen. One could ask how could such a broad range of techniques have been used in differing combinations with differing impacts in widely divergent locales?
Extensive violations in Florida while not under the spotlight like in 2000 were repeated. Voters purged in 2000 – overwhelmingly people of color - had been almost completely unable to get reinstated by 2004 [70]. Questionable voting machine tallies were reported in various parts of the state – hard to prove without a paper trail on many of the most questionable voting machines – was made credible by an almost unbelievable story of the purposeful trashing of machine tapes in a clandestine effort in one County that was uncovered by dogged activist insistence [71]. Numerous stories of physical intimidation especially of voters of color: “your kind is not welcome to vote here” spit into the face of voters by teams of large, white men [72]. Polling places moved last minute with no forwarding addresses [11]. Voter registrations not processed from many sources including especially from the Registry of Motor Vehicles [11]. Voters especially with Latino surnames illegally required to show two forms of identification in some counties [73]. And the list goes on.
Reports from New Mexico are equally chilling – including purposive trailing of Native American voters [73A], illegal requests for more than one form of identification from Latino voters [13], and intimidating ‘challenges’ from organized teams at the polls again focused primarily on Latino voters. These are just some of many other examples also including registrations unprocessed, etc., in addition to the mysterious disappearance of votes in primarily Democratic-leaning counties which were three times to margin of Bush’s victory vote count in the state [74].
Equally important were sometimes violent intimidation of election protection, citizen volunteers. A number of bomb threats reported in the lead up to the elections, included an office in rural Pennsylvania [75]. In the same area three young election volunteers were told they were going to be killed, and were jumped by a group of men who beat on of them to the point of his injuries being life threatening when they finally got away and got to a hospital [75]. In addition, numerous election protection volunteers were threatened with arrest or actually arrested for such clearly legal activities as helping votes figure out which line to stand in at polling places that had more than one precinct of voting taking place in the same location [76]. Clearly all of these represent a chilling effect long beyond the 2004 election itself.
While we reference here reports that readers can research, there was one technique which was clearly repeated in very scattered locations but which could not simply have been product of happenstance.
Fliers were distributed in neighborhoods which were likely to be overwhelmingly new voters whose information about voting and their rights were likely to be very minimal – and therefore made them easy prey for this technique. Fliers of which we obtained copies were distributed that told people several reasons why – although they were registered- they were not going to be able to vote on election day. These fliers stated that you could be arrested and in some examples even have your children taken if: you have already voted in the last year; had been convicted of a crime; had outstanding parking tickets; a member of your family had committed a crime. The wording of these fliers were verbatim for most of their content; and the fonts and lay-out of some of our sample fliers were exactly the same. The samples we obtained evidence of were from Milwaukee, Pennsylvania, Ohio and a Haitian enclave in Florida although simpler fliers were reportedly used in other parts of the country as well [77].
Not outlined here at all are the numerous targeted violations of rights of younger voters who turned out in 2004 in record numbers, and yet, many of whom were denied to right to vote or whose voters were never counted [77A].
We believe that these techniques were compiled for use across the US from historical use in local elections over previous decades and then disseminated as a sort of smorgsbord of options offered to volunteer, right wing activists and possibly more organized entities across the country. And that different recipients chose different techniques off the list as they deemed most feasible in their local work. This created a patchwork that had the potential appearance of local instigation, but as we review evidence since 2005 and especially in the lead up to 2008, the clear role of at least elements of the Republican Party can no longer be denied.
The new factor in 2000 and 2004, of course, were the expansion of electronic voting machines – often without paper trails. These machines have been provided by private industry which claimed proprietary ownership of their programming codes and created a completely opaque and overwhelmingly unaccountable system of vote counting. Added to this, vote tallies have become increasing transmitted to central tabulating systems electronically. This left powerful controlling interests in decidedly undemocratic institutions. In fact, many of the owners of these companies in this industry were unabashedly partisan [78]. Not only have a number of studies shown the hackability of these machines themselves and transmission systems of the vote but without paper trails there is simply not basis for audit [28]. In 2004 examples of voting problems led to numerous examples not only of vote flipping but in one extreme example, all the voting machines in one state were locked down for more than six months because of evidence of vote tampering that was considered valid enough by legal authorities so that all of the machines in the state were considered potentially evidence in a broad based vote tampering scheme.
It has since come to light that one of White House Carl Rove’s deputies was the point person for coordinating a number of these activities in 2004 - confirming for at least certain techniques that there was broad-reaching coordination of election fraud and voter suppression [79].
How Domestic Remedies for the US Voters in the 2004 US Presidential Election Failed
Given clear proof that the 2000 Florida vote had it been decided by an actual vote count would have gone to Senator Gore, one would expect the national leadership of the United States founded on principles of democracy to have gone to lengths to both document what went wrong in the lead up and follow-through of the presidential election. Similarly, state and local election divisions would express concern and help to implement better protections.
The problems with the US Presidential vote on November 2000, particularly as documented in the state of Florida, were problems that had been to some extent set up prior to the day of the election itself. Decisions made by the Governor and Secretary of State of Florida led to a situation where a “genuine” election as designated in the ICERD was impossible. The fact that the trail in Florida was established prior to the actual date of the vote raises the question of whether there is the potential for real remedies within our present governmental constellation. It is raised because the state with the most contested election results in 2000 was governed by the brother of the US presidential candidate that was ultimately declared victor. The role of the Florida governor in impacting the purging of voter registrations is clear. The Secretary of State at the time, whom the report from the US Commission on Civil Rights points to several times as an appropriate target of litigation was the co-chair of the Elect Bush campaign[11]. In addition, the fact that so many of the voting violations occurred in low income and people of color communities also points to a pattern of racial discriminatory behavior.
Since that time, the non-governmental organizations—including The National Association for the Advancement of Colored People, The Advancement Project, American Civil Liberties Union Foundation, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund and People for the American Way Foundation —took Florida to court and also worked extensively with the US Commission on Civil Rights [11]. It should have led to some remedies in terms of action by the executive either in Florida or at a national level. However, the voting people of the US had no significant success in getting redress from the executive branch either in Florida or at a national level. {Appendix B}
The recourses that should have be available to disenfranchised voters both in terms of a genuine recount and significant changes toward ensuring that this kind of voter disenfranchisement, especially its discriminatory nature were found to be insufficient – whether through executive, legislative, judicial branches of government, through the primary opposition party, through the media or even the significant attempts of non-governmental organizations.
Failures for redress since 2004
Because the attention paid to election problems in the 2004 election was both more extensive and more pre-emptive, it has helped fuel important election law changes and awareness, the more flagrant bias in the role of the federal government in election law enforcement priorities and what appears to be continued refinement and condoning of election fraudulent and voter suppressive action in certain right wing segments of the US population has probably worsened the situation.
It is an almost unchallenged finding that individual voting fraud – that is the actual casting of ballots illegally is extremely unusual according to all research. Yet, the Federal government shifted its resources from supporting continued expansion of the number of people registered to vote and ensuring their real ability to vote and have their vote counted to what appears to be a singular focus on trying to prosecute individual voter fraud [9]. This strategy included by what has come to light as likely illegal firing of federal prosecutors unwilling to follow this shift. One prosecutor who did try to prosecute all the cases brought to his attention found that only one case even had enough legal basis to attempt prosecution in his entire state of New Mexico [9]. This federal use of most justice department voting rights resources in fact turned up almost no successful prosecutions in the entire country.
On the other hand, the legal, important and very revealing attempt to get a vote recount of the Ohio 2004 election was illegally thwarted by tampering and violation of random sample vote counting procedures condoned by the highly partisan Ohio Secretary of State who eventually prematurely shut down the recount [56]. Small citizen activist groups in a number of states used their resources to follow-up on election protection reports of violations and gave some public exposure to the rampant voting violations in many parts of the US. This lead to a unique campaign of getting state electoral colleges which had always played a purely pro forma role in confirming the winner of the vote tallies in their state to request that Congress object to the vote count in the states with the greatest evidence of vote-tampering [80]. All this activity in 2004, lead to pressuring and identifying some Senators willing to join House members in filing an objection to at least the Ohio vote count – so that for one day, both houses of congress held a televised debate of the validity of the Ohio vote tallies – even though not nearly enough congressional support had been garnered to approach being able to block the Congressional acceptance of the Ohio vote results and therefore the National election results [18].
Out of frustration, the head of the Congressional Black Caucus, Congressman Conyers, called for a Congressional hearing in Ohio which is described above. The results of this hearing – while admittedly not nearly indepth enough and without real resources to act on its findings in Congress – are a must read and devastating [28]. It exposed the broad range of election fraud and voter suppression, including conclusive testimony from a whistleblower in the computer programming industry that irrefutably exposed the vulnerability of the DRE voting machines and the overwhelming inability of the best democratic institutions to impose any accountability on this technology both in the vote counting and transmission of the tallies themselves – underscoring the critical need for a return to universal paper ballot based voting and questioning any role for DRE machines as presently designed and programmed [28]. One New Mexico study showed that Latino voters were 5 times more likely to have their vote discounted on a machine than those counted on paper ballots [9].
Unfortunately, national intervention on behalf of increase voters’ rights and protections has been negligible. The help America Vote Act of 2002 that was supposed to address some of the problems from the 2000 Presidential Election has come to play a negative role possibly through intentional guidance by national governmental players [28]. The Ohio congressional hearing while it and other actions lead to some good Congressional legislation being filed and a grassroots struggle for a real voters’ bill of rights, none of this brought real fruition in national action.
Congressional elections in 2006 and other lingering evidence of major voting violations because of DRE-style voting machines have lead to a number of successful campaigns that have lead to a reinstitution of paper ballots and paper trails in a number of states [81]. In some significant jurisdictions, DRE machines have been replaced and in more state a voter-verified paper trail has been instituted – often thanks to citizen action on a state-by-state basis. With more states approaching a solid standard of voter verified voting. However, 22 states including swing states are still voting on paperless, questionable DRE-style voting machines [82].
Some courageous Secretaries of State have worked to reverse bad policies on use of machines as well as voter purges and other anti-suffrage campaigns but with mixed success not always backed by the role of federal courts unfortunately and still partisan. In Ohio, where republican outreach efforts used slightly misprinted absentee-ballot forms with an extra box, possibly thousands of voters did not additionally sign off that box. The Ohio Supreme Court intervened and ordered the Democratic Secretary of State to count the votes. A similar case of an extra box on Colorado registration forms has so far lead to the Republican Secretary of State denying 6,400 new voter registrations and no Colorado Supreme Court intervention so far [82A].
In the opposite direction, some key of states have seen right wing citizen campaigns and often passage of new anti-suffrage initiatives such as the passage of requirements for voters to show identification such as state identification cards to be able to vote in two dozen states [9]. 1 in 8 US citizens lack such identification – which in many cases creates the equivalent of a poll tax since such identification can be a significant investment for low-income voters and may require a number of hours travel to acquire. And unfortunately most legal challenges to such laws have failed. 1in about 10 white voters lack such identification, about 2 in 10 among African Americans – a clear violation of international law and still the subject of future litigation in the US no doubt – but not in time for the 2008 Presidential election [9].
Since 2004, there has been increased voter and election protection attention and activism – some in response to continued dangerous interventions on the part of government officials.
Even s
