The Half-Baked Baker Carter Commission

April 19, 2005

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So, Jimmy Carter and James Baker are sitting at a table, and Carter starts talking about the disastrous election of 2000 in Florida…. It sounds like the start of a joke. It was actually the start of the first meeting of the Baker-Carter Commission on Federal Election Reform in Washington, D.C., on April 18th. Baker didn’t do much bragging about his role in Florida. In fact, there was more than one occasion during the meeting on which Baker notably kept silent. But, more on that later.

The primary question in the minds of many people I spoke to in the meeting and outside it was: “What the heck is James Baker doing on a commission to reform elections?” Former President Carter said more than once that Baker had been his first choice to co-chair the commission and was his second favorite Republican (second to Gerald Ford). Carter and Baker once worked together on monitoring elections in Nicaragua. Baker said he was encouraged to participate by President Bush and Republican party leaders.

Some background on the creation of this odd-couple commission can be found on Brad Blog, which reports that a group called the American Center for Voting Rights appeared out of nowhere on March 17th, was the only voting rights organization to testify at a U.S. House committee hearing on the 2004 election on March 21st, and praised the Baker-Carter Commission on March 24th just 24 minutes after its creation was announced to the surprise of real voting rights groups. ACVR, as Brad Blog reports, was created by Jim Dyke, the Communications Director for the Republican National Committee and Mark F. (Thor) Hearne, the lead National Counsel for Bush/Cheney ’04 Inc. The group’s tax status is 501c3, which requires that its activities be non-partisan, and its representative never mentioned in congressional testimony its relationship with the RNC and Bush/Cheney.

Those involved in voting rights issues are aware that, unlike Republican-chaired hearings in Washington, hearings held in Ohio in the months following last year’s election included many points of view and resulted in a 102-page report on election fraud in that state. The driving force behind those hearings and the subsequent January challenge to the Ohio results in Congress was Ranking Democratic Member of the House Judiciary Committee John Conyers.

Hence the second question in many people’s minds on Monday: “Why the heck wasn’t Congressman Conyers testifying at this meeting?” The short answer is that the commission would not allow him to do so. This letter that Conyers sent to Carter on April 11 should shed some light on why.
In this letter, Conyers does two things that were not done by any speakers on Monday. He questions the inclusion of Baker on the commission, and he questions the validity of the official results in the Bush-Kerry election.

That’s right. An election reform commission has been created in the wake of massive public outrage over an election, and following the historic challenge in Congress of the Ohio results, and not a single speaker at Monday’s meeting raised the question of whether the election system functioned adequately to conclude that Bush won the 2004 election.

Monday’s meeting was referred to as a public hearing on the website, but the public was not invited. The 21 commission members heard presentations from 12 speakers on three panels, then met in private for an hour, posed for a photo, and held a press conference at which Carter and Baker took four questions from the press.

At the press conference, Carter predicted what the commission might do in its report, planned for September, following a June 30th meeting at the Baker Institute at Rice University. Carter and Baker listed various things that the commission would not do, and a number of areas in which it would likely produce recommendations to Congress, to the Democratic and Republican Party leaders, and to state legislators and secretaries of state.

The most definite prediction, as well as the most encouraging, was one Carter made a number of times. “We might very well,” he said, “recommend electronic voting systems with a paper trail.” More than once, Carter described what he has in mind for a paper trail. In various countries where the Carter Center has monitored elections, he said, people vote on an electronic machine, which prints out a paper ballot, which the voter can check and then place in a ballot box. Random checks can then verify an accurate electronic count by comparing it to the paper count. “I have no disagreement,” Baker said of this proposal.

Paper ballots have been a top demand of numerous organizations seeking to reform U.S. elections. At Monday’s meeting this demand was voiced by Prof. David Dill, Professor of Computer Science at Stanford University and founder of The Secretary of State of Kansas, Ron Thornburgh, argued against paper ballots, not because he claimed electronic machines could provide reliability on their own – no one claimed that – but because some new, as yet unimagined, technology might someday be able to do it, and because the disabled prefer electronic machines.

Carter pointed out that the law could always be changed if technology changed, and that audio could be added to the machines to help the disabled. In fact, it seems entirely possible to make machines and polling places far more friendly to the disabled while producing a useful paper trail. Changes like adding wheelchair accessibility, parking, and trained staff, and updating voter databases with data from Medicaid offices don’t conflict with requiring a paper trail.

Last week, Progressive Democrats of America and a coalition of other organizations submitted a list of recommendations for the commission to propose:

” Constitutional right to vote for all citizens, without exception
” Paper ballots as the official record of all votes cast
” Open source code for all machines used to count and/or tabulate the votes
” Independent analysis of all voting machine software and hardware before and after elections
” Unified national standards for national elections
” No vote machine company executive or employee involvement in campaign work for any candidate
” Random audit of 10% of elections
” 10-day period for voting
” Election day registration
” Voter identification by any official form of identification
” Independent non-partisan administration and multi-partisan observation of elections
” Voting rights restoration to convicted felons
” No computer networking of vote machines
” Publicly financed elections for federal offices and free access to public airwaves to all candidates
” Fair ballot access laws and access to debates for all candidates and parties
” Federal holiday for national elections
” Instant Run-off Voting and Proportional Representation
” Equal protection for voting rights nationwide
” Augmentation and reauthorization of the Voting Rights Act

The first of these has been addressed by a proposal from Congressman Jesse Jackson Jr. for a constitutional amendment, but it was not even mentioned at the Baker-Carter meeting. Also not discussed at all was voting machine company executives’ or employees’ involvement in campaign work.

Several other items were mentioned only in passing or not at all. Among those not mentioned at all were public financing of elections, access to airwaves, ballot access and debate access for candidates, instant run-off voting, and proportional representation. More than one speaker, including President Carter, did raise the question of why over 40 percent of Americans routinely do not vote. Each raised it as a mystery and presented no hypotheses to explain it.

A reporter from Scripps Howard at the end of the press conference raised a couple of the questions that had been ignored. He asked whether the commission might look into the possibility of limiting campaign adverting in the days before an election, and into providing free air time. Carter replied that the United States fails the standards that the Carter Center requires of other countries, not just because the United States lacks national election standards, but also because this country does not provide candidates with free access to the news media. But, said Carter, the questions raised refer to matters over which the states, not the federal government, have control – a claim for which Carter offered no evidence.

The first panel Monday morning was called “Elections and HAVA: Current Status.” HAVA is the acronym for the Help America Vote Act, the law that came out of some, but not all, of the Carter-Ford recommendations following the 2000 election, and which has not been fully funded by Congress. The first panel included Gracia Hillman, Chair of the U.S. Election Assistance Commission, which was established to oversee the implementation of HAVA, and Kay Maxwell, President of the League of Women Voters. Maxwell recommended not requiring a paper trail, but rather “performance standards,” requiring secure ballots, rather than “design standards,” telling people how to make them. Maxwell thought it would be harmful to change HAVA while it was still being implemented, a comment that Commission Member Tom Daschle said he supported. Hillman seemed to believe both that everything was fine and that not the lack of proper funding was a major drag on efforts to implement HAVA.

But the two people on the first panel whose proposals spoke most directly to the concerns of citizens were Chellie Pingree and Henry Brady.

Chellie Pingree, President of Common Cause, described problems encountered in 2004, including people waiting in line for hours, malfunctioning machines, arbitrary demands for identification, deletion of people from rolls, and unfulfilled requests for absentee ballots. “These are as serious as hanging chads,” she said and asked that the 2004 election not be judged just by its having been resolved out of court. Pingree recommended:
” easing barriers to voting,
” requiring all machines to produce a voter-verifiable paper ballot,
” providing better training to poll workers,
” making permanent federal and state commitments, not federalizing elections,
” and listening to the many concerned voters around the country.

Henry Brady, Professor of Political Science and Public Policy at the University of California, Berkeley, supported a recommendation from the Carter-Ford Commission that has not been acted on, namely creating a national holiday for election day. He also suggested that the HAVA requirement of statewide voter registration systems in each state by January 2006 appeared unlikely to be met by a number of states. If it was met, he said, it was not clear they would allow communication between counties, and was clear that they would not allow that between states. Brady proposed that the databases of registered voters in all states be accessible in real time at the precinct level, which would mean eliminating provisional ballots and allowing election-day registration. “We can check data in banking transactions,” he said. “There’s no reason we can’t do it with voting.”

The second panel dealt with “Access and Integrity.” The first speaker was Barbara Arnwine, Executive Director of the Lawyers’ Committee for Civil Rights. She worked with the Election Protection coalition which, she said, received 110,000 calls to its hotline on election day alone, and had written up 43,000 incident reports. These, she said, told a very different story from that told in the media, in which the election went smoothly last year. Arnwine described cases of polls that did not open or opened late or closed early, discriminatory challenges, untrained poll officials, too few voting machines, and failure to provide assistance to the disabled or those needing linguistic assistance. She recommended exploring the ideas of election-day registration and early voting.

In an effort to head off the arguments that she knew were coming, which would shift the focus to alleged fraud by individuals improperly voting, Arnwine said that incidents of ineligible voter participation were far less than one-tenth as widespread as the sorts of problems she had described.

The second speaker was John Fund, a member of the Wall Street Journal Editorial Board. Fund immediately focused on the question of ineligible voters, although he did not present any evidence or even claim that the problem was widespread. He proposed requiring photo IDs and requiring that states provide them free of charge through divisions of motor vehicles. He also recommended allowing provisional ballots only in a voter’s precinct, because local officials would, among other things, best be able to tell whether someone “looks as if they belong in the neighborhood.”

Colleen McAndrews, a lawyer from Santa Monica who served as treasurer of Arnold Schwarzenegger’s campaign for governor of California, generally agreed with Fund. “There’s paranoia in the country… I share Johns view that it’s not fraud but incompetence.” McAndrews recommended a new voter ID system. But she did not explain how that would address people’s concerns, most of which have been over issues like those Arnwine described.

McAndrews did express support for three proposals not yet implemented from Carter-Ford: full funding of HAVA, a national holiday for elections, and uniform poll closings in order to avoid the calling of elections, which suppresses voting in the West.

The fourth speaker was Arturo Vargas, Executive Director of the National Association of Latino Elected and Appointed Officials. He supported full funding of HAVA, electronic voting with a recountable paper trail, better training of poll workers, and reauthorization in 2007 of those parts of the Voting Rights Act that will then expire.

Vargas argued that requiring IDs suppresses voting by qualified voters. He offered as an example cases in which a change of address is made on voting rolls but not yet made on a driver’s license. Arnwine added that requiring people to take time of work and travel, sometimes long distances, to a DMV to obtain an ID will result in their not voting.

Asked about voting by ex-felons, Fund claimed that only states can address that issue, while Arnwine recommended that for federal elections states could be required to allow those who have served out punishment to have access to vote.

The third and final panel, dealing with “Voting Technology and Election Administration,” is the one on which Dill and Thornburgh spoke. Also speaking were Jim Dickson, Vice President for Governmental Affairs, American Association of People with Disabilities, and Richard Hasen, a professor of law at Loyola Law School.

Hasen presented statistics to show how little trust Americans have in our election system, but then proposed a federal voter registration and ID, including fingerprints, in order to boost voter confidence. But, again, no evidence was produced to suggest that any significant sliver of the distrust has anything to do with fraud by individuals.

Congressman Conyers released a statement following the commission meeting that pulled no punches:

“The first meeting of the Baker-Carter election commission was disappointing and, at times, outrageous and tainted with racially-charged innuendo. Let me make absolutely clear that I greatly admire former President Jimmy Carter and believe he was insightful and on-target throughout the hearing. However, given the incredible lack of balance and profound lack of good faith demonstrated by some of Carter’s fellow commissioners and many of the witnesses at this hearing, at times he seemed to be a very lonely voice of sanity.

“The remarks of Mr. James Baker, III, which were echoed by a number of right wing political operatives called as witnesses, seemed to have a singular purpose of spreading hoaxes and conspiracy theories about ineligible Democratic voters being allowed to cast votes. The remedy was cleverly repeated like a broken record, ‘photo ID, photo ID, photo ID.’ Right wing pundit John Fund was called as an ‘expert’ witness by the hearing and offered racially charged proposals with racially charged rhetoric….

“What can be said of a commission that holds such a hearing? What hope is there for the recommendations of such a Commission? I am scheduled to meet with Commission officials this week and I am trying very hard to have an open mind. But, frankly, at this point – seeing this first hearing – I think we should all be very wary of this Commission’s objectives.”
Conyers’ full statement:

At the press conference at the end of the day, Baker announced that the commission had decided not to take on “really volatile issues,” including the electoral college, redistricting, or voting rights in the District of Columbia.

Mark Plotkin of WTOP News Radio in Washington, D.C., asked why DC voting rights were off the table. Carter replied that he and Baker both supported DC voting rights but could not deal with that issue on this commission. Plotkin expressed surprise that Baker would support DC voting rights and asked the former Secretary of State to confirm that claim. After all, Baker had just called the issue “really volatile.” Baker stood and silently smirked. When pressed to speak, he said that the commission would not make any recommendations requiring constitutional amendments.

The next meeting of this commission will be on June 30th at Rice University.

David Swanson is a board member of Progressive Democrats of America

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