As we reported last September, the U.S. Dept. of Justice found that the state Republicans' Congressional redistricting map for Texas, as signed by Gov. Rick Perry, was in violation of the federal Voting Rights Act. The DoJ found that the new plan --- which added four Congressional seats in the state after an increase in population was found by the 2010 Census --- was purposefully discriminatory against minority voters.

The DoJ asserted that the plan "was adopted, at least in part, for the purpose of diminishing the ability of citizens of the United States, on account of race, color, or membership in a language minority group, to elect their preferred candidates of choice to the Texas House of Representatives."

Texas appealed that ruling to a Federal District court which made its ruling yesterday. They agreed with the DoJ that the state was discriminating against it's own minority citizens, as Ari Berman reports at The Nation...

Berman has more details on the specific findings in the ruling, and notes that a lawsuit filed by civil rights groups late last year asserts that "even though Whites’ share of the population declined from 52 percent to 45 percent, they remain the majority in 70 percent of Congressional Districts." He also notes that the court found "Texas Republicans not only failed to grant new power to minority voters in the state, they also took away vital economic resources from minority Democratic members of Congress."

The state may now, and likely will, appeal the ruling to the U.S. Supreme Court. In the meantime, says Berman, "An interim map drawn by a federal court in San Antonio in February will be used for the 2012 election."

Earlier this year, the DoJ similarly rejected a new polling place Photo ID restriction law enacted by Republicans also in violation of the Voting Rights Act. Based on two differing sets of data supplied by the state, the DoJ found [PDF] that currently registered Hispanic voters were anywhere from 46.5% to 120% more likely than registered white voters to lack the type of state-issued Photo ID which would now be required to vote under the GOP's new law.

The state appealed that ruling as well to the same federal District Court panel in D.C. which heard the redistricting case. Their ruling on the Photo ID restriction law is expected very soon.

UPDATE 8/30/12: The federal court has similarly rejected the Texas Republicans' polling place Photo ID restriction law, finding it, like the Congressional Redistricting map, to be purposefully discriminatory against minorities. Full details on that ruling now here...

Apparently, they never learn. Or they just don't care.

It's Primary Election day in Alaska today, with voters heading to the polls to cast mostly paper ballots for U.S. House of Representative candidates, state House and Senate candidates and two ballot measures (one concerning property taxes and another concerning new Alaska Coastal Management Program standards for the review of projects in coastal areas.)

While turnout is expected to be low, at least the Diebold optical-scan machines are fully rested and ready to go after their lengthy "sleepovers" at poll workers' houses in the days prior to today's elections! Yes, the state of Alaska still sends their incredibly vulnerable Diebold optical-scan systems home with poll workers days before the election, where they can do whatever they like with them, so they can bring them to the polls on the morning of Election Day.

For example, here's a photo of one of those machines that will be in use today, as obtained from an Alaskan source over the weekend by The BRAD BLOG. The machine appears as if it has received a full going over at the workshop of one of the poll workers who enjoyed the time spent with their machine during the several days of "sleepover" over the past week...

Alaska, like some 24 states across the country, still uses the exact same system which was used to flip an entire mock election in Leon County, FL in such a way that only a manual hand-count of the paper ballots would have revealed that the results had been reversed after the machine's memory card was accessed and manipulated by a computer security expert. The haunting event was revealed in the climactic final scene of HBO's Emmy-nominated 2006 documentary Hacking Democracy. [The full scene is also embedded below.]

The photo above from an Alaskan poll worker is the same system seen being hacked in Leon County, FL in the HBO film. The only difference is that Diebold removed their name from many machines afterward, given the hit their company took when their then CEO promised to deliver the state of Ohio to George W. Bush in a Republican fund raising letter before the 2004 election.

Of course, there are "tamper-evident" security seals placed over some of the most vulnerable parts of the optical-scan systems, and those could never be defeated without leaving visual clues behind, right?

Well, funny thing. In Alaska, when a security seal is discovered broken on their tabulation computers --- if they are discovered broken --- poll workers are instructed to simply replace it with another one and start the voting, as both several poll workers, as well as an Alaska election official (who has now been fired) confirmed with The BRAD BLOG. Several seals, the now former Alaska election official told us when she still had a job, are provided to poll workers to make replacing broken seals very simple, as seen in this next photo...

Otherwise valid provisional ballots cast at the wrong precincts in Ohio, through no fault of the voters, must be counted, according to a ruling issued by a federal judge on Monday.

The decision, which otherwise seems like common sense, comes in the wake of tens of thousands of provisional ballots going uncounted after the 2008 Presidential election thanks to a provision in Ohio law which discards such ballots, even in the case where a poll worker has improperly instructed a voter to cast his or her ballot in the wrong place.

The ruling is a defeat for Ohio's Republican Sec. of State who, after working towards inclusiveness and voting rights earlier in his tenure, seems to have taken a hard right turn in many of his decisions of late, as the Presidential Election nears.

As we noted last month, an investigative report by the Cincinnati Enquirer's Barry M. Horstman found that some 40,000 provisional ballots cast in the 2008 general election were never tallied, even though many of them were cast in the right polling place, but at the wrong "precinct" table, as precincts have been combined into the same building over the years in the Buckeye State.

A voter might line up to vote at the wrong table/precinct, for example, only to be told they weren't found on that precinct's voter rolls and, rather than be directed by the poll worker to the correct "precinct", instructed to cast a provisional ballot at that table instead. That vote, before Monday's ruling, under existing Ohio law, would go uncounted. Many of those provisional ballots were cast in predominantly Democratic-leaning counties.

The Enquirer warned in their report last month that "tens of thousands of ballots are likely to be disqualified" once again in the key swing-state, during the 2012 Presidential election unless the provision was changed, as recommended by state election officials after the 2008 election.

On Monday, U.S. District Judge Algenon L. Marbley, citing Bush v. Gore of all things, ruled against Ohio Sec. of State Jon Husted (R), whose spokesman responded: "We respectfully disagree with the judge's ruling and will likely appeal."

Marbley found that Husted's belief that such ballots should not be counted "belies a fundamentally misguided view that the state need not protect the right to vote of individuals who, for any number of reasons, are required to cast a provisional ballot"...

Guest blogged by Ernest A. Canning

In a case where the employment of several members of the United Public Workers (UPW) was terminated after they failed to fully participate in unpaid, off-duty campaign activities on behalf of a union-supported Congressional candidate, three Republican members of the Federal Elections Commission produced an astounding Aug. 21 decision. They ruled that it is perfectly lawful for unions and corporations to compel their members and employees to engage in such activities, sans compensation, as part of "independent campaign efforts."

In their "Statement of Reasons" [PDF], the three GOP Commissioners explained the basis for their remarkable ruling.

They acknowledged that the Federal Election Campaign Act of 1971, 2 USC §441b(a), as well as FEC "regulations prohibit a labor organization [or a corporation] from facilitating the making of a contribution by means of 'coercion, such as the threat of a detrimental job action...to make a contribution or engage in fundraising activities on behalf of a candidate." But, they wrote: "These provisions do not apply to UPW's independent campaign efforts."

The FEC's three Republican appointees thus presented not only a novel but a remarkable extension of Citizens United given that 2 USC §441b(c) makes it "unlawful" even for a corporation's or union's "segregated fund" to provide "anything of value" that is secured by a threat of financial reprisal. The statute mandates that employees must be told about their "right to refuse to so contribute without any reprisal."

In their separate "Statement of Reasons" [PDF], the three FEC Democrats, along with Office of General Counsel (OGC), found a clear-cut violation of Section 441b. "Nothing in Citizens United," the FEC Democrats opined, "suggests...that the Court intended to expand the rights of corporations and unions at the expense of their employees' longstanding rights to be free from coercion and to express or decline to express their political views."

According to the Congressional Research Service [PDF], at least four votes are required for the FEC "to exercise core functions." Thus, the 3-3 deadlock prevented the FEC from disciplining the union for anything beyond the fine for non-reporting of the "independent expenditure."

Setting aside the fact that the OGC's and FEC Democrats' interpretation appears to find direct support in the language of Section 441b of the U.S. Code, there's a fundamental constitutional issue that arises from the disturbing GOP interpretation of Citizens United which neither side addressed --- slavery!...

Late last week, Scott Keyes at ThinkProgess reported on a "Majority Victory for Voting Rights Advocates as California Legislature Approves Election Day Registration".

The new EDR law, which is, as Keyes reports, "on the cusp of passing", is expected to be signed by Gov. Jerry Brown (D) and would, indeed, be a victory for voters in the Golden State.

According to the NYU's Brennan Center for Justice, "Election Day registration boosts turnout by approximately 5–7 points in those states that allow eligible citizens to register on Election Day --- with a decreased dependence on provisional ballots and without any reported increase in voter fraud."

If passed and signed as expected, however, the law --- a welcome expansion to the franchise amidst recent draconian Republican efforts to restrict voting rights --- would not take effect until 2015 or later, according to Dean Logan, the Registrar-Recorder/County Clerk for Los Angeles County, the largest voting jurisdiction in the nation.

"The bill's implementation is tied to completion of the Vote Cal statewide voter registration database; which is a ways off," he told The BRAD BLOG on Friday. Logan says he is "Generally...supportive of the bill and to expanding access and options for voters," though he notes that "L.A. County has not taken a formal position on it."

While the new law will, no doubt, be a net plus for voters here in California, and for the pro-democracy movement across the country over all, there are a few other issues with the way the law has been written which might make it slightly less of a plus for voters than apparent at first blush, as Logan helped us to understand...

Another day, another allegation of voter fraud by Republicans. This one, courtesy of WKOW's 27 News in Madison, Wisconsin...

Yes, it looks like, once again --- no matter what the professional GOP "voter fraud" fraudsters and clowns like John Fund, Hans von Spakovsky and Matthew Vadum claim --- if there is an epidemic of "voter fraud" in this country, it seems that its not Democrats, but Republicans, and often very very high-profle Republicans at that, who are carrying it out.

But wait! There is still more absurdity and/or irony and/or hypocrisy in this case...

Please get it straight: the concern is about "polling place Photo ID restrictions" not "Voter ID".

I've tried to warn progressives about this for years, to little avail, but discussing concerns about "Voter ID" is akin (pun intended?) to talking about "Legitimate Rape".

After all, everyone is against "legitimate rape"! But using that phrase, as most instinctively seem to understand, allows for the misleading subconscious notion idea that there is some other kind of rape that is less "legitimate".

In the same way, "Voter ID" is quite reasonable sounding --- after all, who could be against the reasonable sounding idea of identifying oneself before voting? --- but Republican-enacted polling place Photo ID restrictions are a different matter all together. Republicans know that very well, even if Democrats still can't seem to get it.

Both phrases, "Legitimate Rape" and "Voter ID", each reasonable sounding enough, miss the point and are tremendously misleading. Republican vote suppressors know that, so they love it when Democrats and progressives and voting rights advocates use the phrase "Voter ID" instead of "polling place Photo ID restrictions."

The fact is, the majority of states already require some form of reasonable identification of voters before voting, at least at the polling place. For that matter, federal law --- the Help America Vote Act (HAVA) of 2002 --- already requires "Voter ID" in all 50 states when voting for the first time at the polling place, if the voter did not register in person and present ID at that time...

With the partisanship heating up in the battle for voting rights in Ohio again this year --- as Republican Sec. of State John Husted actually threatens to fire two Democratic Board of Election officials in Montgomery County for daring to vote in favor of expanded Early Voting hours --- it seemed a good time to check in with the former Sec. of State Jennifer Brunner (D).

All of this comes on the heels of the Obama Administration suing to restore Early Voting for all on the last three days before the election, which Republicans are now allowing only active duty military members in Ohio to do, and after previous rulings by Husted resulted in expanded Early Voting hours in Republican-leaning counties, and no expanded Early Voting hours in the largest Democratic-leaning counties.

Brunner (author of the forthcoming Cupcakes & Courage) joined me on today's BradCast on KPFK/Pacifica Radio here in Los Angeles and offered some inside skinny on what she did in 2008 to help correct the 2004 disasters that plagued the state during that year's Presidential election debacle under her horrible predecessor, J. Kenneth Blackwell (R) --- who also served as co-chair for the Bush/Cheney re-election campaign while serving as the state's chief election official --- and what now seems to be going on under her successor Husted, as he limits Early Voting hours across the entire state, despite the great success it has been up until now for voters there.

She explained the constitutional powers of the Ohio Sec. of State and told me she believes the attempt by Republicans to shorten weekend Early Voting hours --- which were allowed as recently as this year's primary elections in Ohio --- was "clearly aimed at 'Souls to the Polls'," the effort by African-American churches to encourage their congregations to get out and vote on the Sunday before the election.

The result of all of this right now, as the former Secretary of State understated it during our conversation: "A bit of a donnybrook in Ohio."

I asked for her response to the remark by Doug Preisse, Chair of the Franklin County Republican Party and a member of the county's Board of Elections when he said he felt "we shouldn't contort the voting process to accommodate the urban --- read African-American --- voter-turnout machine." She said she felt that that --- and his response to Democrats' charge that Republicans are trying to suppress the vote is "bullshit, quote me" --- was all "very unfortunate."

"We're already in a rancorous climate, starting from Congress and the Presidential election on down," she said. "Why stir up the pot and pit voters against each other? Enough of that was done in 2008. There was so much political capital spent in 2008 on whipping up these fake allegations of voter fraud and now four years later, people realize --- what were there, ten cases around the country since 2000? --- this is so unnecessary."

"The bottom line is," she continued, "voting is not a partisan issue. It should never be a partisan issue. Having control of the rules is not political booty. It really should be a place where everyone walks into that room, they drop their partisan cloak, they stand up, they act like grown-ups, and they say 'Let's do what's fair, because our future depends on it.'"

All of that, and more, follows in today's BradCast...

Download MP3 or listen online below [appx 58 mins]...

Guest blogged by Ernest A. Canning

Pennsylvania has refused to turn over documents that the U.S. Department of Justice (DoJ) had sought in order to determine whether the state's new polling place Photo ID restriction law is in violation of Section 2 of the Voting Rights Act (VRA) and other federal laws.

As previously reported by The BRAD BLOG, on July 23, Assistant Attorney General Thomas E. Perez submitted a four-page letter [PDF] to Carol Aichele, the Acting Secretary of the Commonwealth of Pennsylvania (coincidentally, the wife of Gov. Tom Corbett's Chief of Staff), requesting information in electronic format for 16 broad categories of documents that the DoJ felt were needed to evaluate whether the Keystone State's Photo ID law complied with federal laws barring discriminatory election laws.

In an Aug. 17 letter [PDF], the Commonwealth's General Counsel, James D. Schultz, responded to Perez, by telling him that PA would not comply with what Schultz described as an "unprecedented attempt to compel [PA], a state not within the purview Section 5 of the VRA, to present information concerning compliance with Section 2 of the VRA."

Section 5 of the VRA requires some 16 different jurisdictions in the U.S., with a history of racial discrimination, to get pre-clearance for new election-related laws. Pennsylvania is not one of those jurisdictions. However, all 50 states are barred from instituting discriminatory laws under Section 2 of the act.

Schultz accused the DoJ of targeting "a growing number of states…simply because they instituted legislation designed to insure the integrity of the voting process"...

I actually feel sorry for Pat Kerby, the Republican delegate to the Republican National Convention from Nevada who attempted to add an amendment calling for paper ballots --- so nobody would have to trust in the "voter machine fairy" --- at the RNC's Platform Committee on Tuesday.

The poor fellow seemed to want the right thing, but by the time other members of the Committee amended the amendment, several times over, the original was completely gutted in favor of electronic computer tallies with no actual way to verify the accuracy of those tallies.

It seems the good-natured Kerby never knew what hit him, as he generously supported each change to his amendment, deferring to others who appeared to know more about voting, like fellow committee member Kansas Sec. of State Kris Kobach (responsible for the state's polling place Photo ID restrictions to help curb non-existent polling place voter fraud in Kansas, as well as serving as the author of Arizona's infamous anti-immigrant "Papers Please" law, most of which was found unconstitutional by the U.S. Supreme Court recently.)

It was a good idea, but Kerby wasn't clear on the exact language he needed to use and that opened up the door for others on the committee --- who have more confidence in unverifiable electronic voting machines than in paper ballots --- to completely gut the original amendment, compared to the one originally introduced during the proceedings.

Kerby's initial amendment read as follows:

While (most) electronic voting systems don't print "paper ballots" in general --- they print so-called "Voter-Verifiable Paper Audit Trails" (VVPATs) which may or may not reflect the actual intent of the voter, may or may not be verified by the voter as accurate, and are not actually counted by anyone, in any case (the internally recorded electronic results are used instead) --- it seems as if Kerby had the right idea, in general. At least as he offered a perfect description of his reasons for wanting to add include the amendment in the party's platform...

As with their excellent analysis and database last week finding just ten (10), total, cases of in-person voter fraud in all 50 states since 2000 which might have been deterred by polling place Photo ID restrictions, News 21 --- an investigative reporting project of the Carnegie Corporation and Knight Foundation, based at the Walter Cronkite School of Journalism --- has published yet another report today that will come as little surprise to long time readers of The BRAD BLOG.

Still, it's helpful to see such reports published at outlets like NBCNews.com which is serving as a partner in the project, since, apparently, it's not enough for us to offer nearly a decade of independently verifiable reports blowing the same whistle on the same scams.

Today's new report focuses on the Rightwing/corporatist American Legislative Exchange Council (ALEC)'s role in promoting disenfranchising polling place Photo ID restriction laws, as proposed by Republican legislators in dozens of states over the past two years...

While Ethan Magoc's News21 report mentions ALEC founder (and "conservative movement" demi-god) Paul Weyrich, this :40 second clip of Weyrich --- which we refer to as The Rosetta Stone of the Modern-Day Republican Voter Suppression Movement --- supplies the full context for ALEC's push to disenfranchise largely Democratic-leaning voters through the polling place Photo ID restriction legislation that its members have been introducing in state after state over the past two years...

Go read News21's report in full, though we'd like to offer just one or two minor quibbles to it...

Longtime readers of The BRAD BLOG know, by now, that disenfranchising polling place Photo ID restrictions have nothing to do with stopping voter fraud, and everything to do with stopping legal, Democratic-leaning voters from casting their legal vote.

They also know that while Republicans have long pretended there is massive Democratic voter fraud occurring, what they don't want you to know is how many Republicans --- very high-level Republicans, in fact --- are actually committing real fraud (both election fraud and voter fraud), as we summarized once again last week after four GOP U.S. House staffers of Rep. Thad McCotter (R-MI) were charged with 36 criminal felony and misdemeanor election fraud-related charges for allegedly turning in fake signatures and petitions in a failed scheme to get McCotter on the ballot this year.

And what do we learn just days later? Another Republican appears to be involved in another massive election scheme --- this time, to fraudulently defeat a fellow Republican. And, as is almost always the case, no polling place Photo ID restrictions in the world would have deterred the allegedly fraudulent absentee ballot scheme (which is said to have included illegally changing Democratic registrations into Republican ones, among other appalling crimes)...

Guest blogged by Ernest A. Canning

On Friday, U.S. District Court Judge Donovan W. Frank dismissed an amended complaint seeking to end Election Day Registration in Minnesota, as filed by a number of right-wing organizations in Minnesota Voters Alliance v. Ritchie.

In his 22-page Memorandum of Opinion and Order [PDF], Judge Frank rejected the plaintiffs central claim that MN Secretary of State Mark Ritchie and other election officials "violated the rights of eligible voters by diluting their votes with the votes of EDRs [Election Day Registered voters]."

Plaintiffs claims, the court stated, were "based on the erroneous premise that election officials must verify voters' eligibility before their votes are counted." Citing appellate authority, the court noted that "flawless elections are not constitutionally guaranteed" and that the plaintiffs had failed to allege facts that would establish that state election officials "engaged in invidious discrimination or intentional misconduct."

Judge Frank also ruled that the plaintiffs had admittedly failed to exhaust state remedies which would have permitted them to challenge an individual's eligibility to vote.

While Election Day Registration in MN is preserved, for now, it remains at risk thanks to a second prong attack on the state's popular, and inclusive, program ...

By Ernest A. Canning and Brad Friedman

We now have yet another ominous sign of trouble that may be on the horizon for this November's election. As if we needed yet another sign. And, once again, the concerns come via failures on paper ballot-based optical-scan computer tally systems.

Election officials in Genessee County, Michigan have acknowledged failures by the county's M-100 model optical-scan system, made by Election Systems and Software, Inc. (ES&S), during its Aug. 7 primary.

According to the county's Supervisor of Elections and Vital Records, Doreen D. Fulcher, the system experienced paper jams that resulted in ballots being fed through the system more than once. Fulcher, who also noted that there were a "number of ballots cast" that "didn't initially match poll book numbers," downplayed the scope of the problem. Flint's MLive, however, reported that the County Board of Canvassers were "still unraveling" the problem ten days after the election.

It is not the first time the M-100, set to be used in 32 different states again this November, has caused headaches for election officials and voters. The systems have a documented record of failing to count the same ballots the same way twice during pre-election testing. Nor is it the only optical-scan system made by ES&S, the largest e-voting vendor in the nation, that has failed time and again during elections.

As The BRAD BLOG previously reported, ballots obtained by the New York Daily News through a public records request revealed that ES&S op-scan systems used in a South Bronx precinct in 2010 failed to count some 70% of the paper ballots correctly in that year's primary election. In November's general election that year, some 54% of the ballots were mistallied at the same precinct.

The South Bronx used the newer ES&S model DS200, which the company confirmed could overheat, causing anywhere from 30% to 70% of the votes scanned by the machines to be erroneously discarded or erroneously counted. Thus, in the case of New York, that meant that tens of thousands of perfectly valid votes went uncounted, while thousands of "phantom votes" in races that voters hadn't intended to vote in at all were counted as valid.

The confirmation of the New York failure came almost two years after the election, once the newspaper was finally able to review the paper ballots by hand, under public records laws.

While Genessee County used the earlier ES&S Model M100, as we previously reported, the unreliability of opaque optical-scan computer tallying systems are, by no means, confined to the DS200 or, for that matter, to ES&S systems. Similar systems will once again be used across the entire country this November, to tally the Presidential election and all the races below it...either accurately or not...

Some good-ish news late tonight for Florida voters, and more bad-ish news for Republican Gov. Rick Scott and friends, as reported by AP:

To unpack this (without having looked at the actual ruling yet), while this is certainly positive news in general, it only applies to the five counties in Florida covered by Section 5 of the Voting Rights Act (VRA). Those jurisdictions require pre-clearance from either the U.S. Dept. of Justice or a 3-judge panel from the U.S. District Court in D.C. for new election-related laws, thanks to the long history of racial discrimination in those jurisdictions.

Three of the counties, Hardee, Hendry and Monroe are fairly small, with fewer than 100,000 voters. Collier (home of Naples) has a population of more than 300,000 and the largest of the five, Hillsborough, is home to Tampa, with a population of about 1.2 million voters. It will also be the home of the upcoming Republican National Convention.

As AP notes, that could mean that only those five counties have 12 days of early voting, while the rest of the state (the other 62 counties), are still restricted to 8. Given that Republicans hung a hat on pretending to demand consistent rules across the state for vote counting during the Bush v. Gore fight in 2000, and that the state Supreme Court agreed, I imagine another fight may be in store on this matter, and how the Republican-run state will --- or won't --- enact consistent Early Voting hours across the state.

This case was decided by the U.S. District Court in D.C. because the state of Florida decided to bypass the DoJ, thinking they'd have better luck with the court system. They were wrong.

It's been a tough year for the state of Florida's attempt to game the voting system in their favor this year, so far, under the rule of their Tea Party Governor. Though, lord knows, they've tried.

In May, a federal judge blocked the bulk of their new voter registration restrictions which had forced the League of Women Voters to call off their registration drive in the Sunshine State for the first time in 72 years, rather than face onerous new rules, fines and even jail time. Last month, after almost all of the state's Supervisors of Elections refused to carry out a hugely flawed voter roll purge of "potential non-citizen voters" (almost all of whom were not), Scott and his hand-picked Sec. of State Ken Detzner were forced to halt their purge (subsequently misreported by the corporate mainstream media), even after pretending the federal government was blocking the purge to keep non-citizen voters on the rolls (they weren't, and Florida knew it, as documents we published exclusively proved.)

Oh, and then there was the former state Republican Chair who admitted, under oath, in a 630-page deposition, that party officials "were talking about voter suppression and keeping blacks from voting," during his tenure.

Here's a thought, Florida Republicans: Come up with good ideas that help the citizens of the state by improving their general welfare and domestic tranquility and maybe they'll just vote for you all by themselves without you having to game the system and suppress the vote. Or, you can just keep doing what you're doing.

[Hat-tip @JeffersonObama on the Twitters.]