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electionline Weekly - May 11, 2006
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I. In Focus This Week

Director's Note: Assertion Is Not Proof (At Least Not in Court)

By Doug Chapin

Vizzini: "He didn't fall?!? Inconceivable!"
Inigo Montoya: "You keep using that word. I do not think it means what you think it means."

- The Princess Bride

A recent case in Indiana offers an excellent opportunity to discuss the power of evidence (i.e. good research) in ongoing debates over election reform.

Indiana Democratic Party v. Rokita concerns the objections of Democrats and minority voters to the Hoosier State's new voter identification provision, Senate Enrolled Act 483 (SEA 483). The new law requires all in-person voters to provide Indiana- or federally-issued photo ID including an expiration date and a name matching the voter's registration record. (The specific criteria are listed here).

After SEA 483 became law in 2005, plaintiffs in the Indiana case launched a broad attack on the law in federal court. Their complaint was similar to that of the plaintiffs in the Georgia voter-ID case (Common Cause v. Billups), who successfully convinced a federal judge in 2005 to halt enforcement of the Peach State's ID law, which itself is very similar to Indiana SEA 483. The Georgia law was subsequently revised by the Legislature and is currently awaiting judicial approval.

Unfortunately for the Indiana plaintiffs, their results in court were not similar to Georgia's. In April, U.S. District Judge Sarah Evans Baker issued a ruling dismissing the plaintiffs' case and allowing SEA 483 to remain on the books.

While the plaintiffs have vowed to appeal (and will be getting assistance from Democratic National Committee Chair Howard Dean to do so), the damage to their case is already done.

· Indiana's May 2 primary went ahead as scheduled, and as some Democrats' predicted, there were reports of hundreds of voters experiencing difficulties with the requirements of SEA 483;

· Moreover, Indiana Secretary of State Todd Rokita ® said voter ID was not the biggest problem on primary day. Rather, he told The Indianapolis Star that polling place accessibility for the disabled - a change pushed by Congressional Democrats as part of HAVA - "caused more disenfranchisement than anything else. . . . Yet you don't hear them [Democrats] complaining about that"; and

· Worst of all for the plaintiffs, the Indiana case has been cited by pro-ID forces as a reason to reinstate the Georgia voter ID law and support other voter ID efforts around the country.

What went wrong for the Indiana plaintiffs? Quite simply, they didn't prove their case - and herein lies the lesson for would-be reformers nationwide.

Facts Matter: or, Hell Hath No Fury Like a Judge Irritated
Judge Baker notes at the outset of her opinion that "[t]his litigation is the result of a partisan legislative disagreement that has spilled out of the state house into the courts." The Indiana plaintiffs - like their counterparts in Georgia and elsewhere - fought voter ID bitterly in the state legislature, voicing concerns about its racial and political impacts. Once they lost in the political arena, they took their fight to the courts, as is their right.

Unfortunately for them, they seem to have forgotten to bring much of a case.

The plaintiffs were apparently very strong on the state's lack of evidence in support of SEA 483, but failed utterly to produce any evidence that the new law would disenfranchise anyone.

Judge Baker's ruling is astonishingly forthright in its rejection of the plaintiffs' case. Using forceful and dismissive language that one observer termed a "legal spanking"; she questions their evidence, dismisses their experts, and ridicules their arguments in a scathing 127-page opinion. Baker is especially adamant about the plaintiffs' failure to provide any evidence - which emerges at several points:

· "Plaintiffs . have not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of SEA 483 or who will have his or her right to vote unduly burdened by its requirements" (p. 3);

· "Plaintiffs . have failed to demonstrate that strict scrutiny of SEA 483 is warranted, primarily because they have totally failed to adduce evidence establishing that any actual voters will be adversely impacted by SEA 483" (p. 76); and

· "Plaintiffs have failed to produce any evidence of any individual, registered or unregistered, who would have to obtain photo identification in order to vote, let alone anyone who would undergo any appreciable hardship to obtain photo identification in order to be qualified to vote . Plaintiffs assert that they know of people (or know of people who know of people) who claim they will not be able to vote as a result of SEA 483 . [N]one of these allegedly affected individuals has been identified by name, let alone submitted an affidavit" (p. 81).

Compare this with the injunction issued in the Georgia case, which devotes nearly five pages (pp. 29-34) of citations to witness statements and affidavits detailing named individuals' difficulties with that state's new voter ID requirement.

These evidentiary issues alone would have been fatal, but apparently Judge Baker was also less than impressed with the plaintiffs' presentation of their case:

[O]ur task in ruling on the complicated issues in this case has been impeded, not so much by the expansive scope of the litigation as by the haphazard, "shot gun" approach utilized by the attorneys in raising these difficult issues and then leaving them unsupported by evidence or controlling legal precedent. The briefing was fraught with inaccurate citations to the record, mischaracterized evidence in the record, and misrepresented holdings in the case law.To require the Court to sort everything out and make legal sense of it, is a dereliction of counsels' responsibilities and an abuse of the court's scarce resources. None-the-less, we have done the best we can under the circumstances.

(pp. 5-6, note 6)

Given the combination of nonexistent evidence and dubious presentation, it is hardly a surprise that the Indiana case was unsuccessful. [NOTE: Baker's litany of irritations brings to mind one of my favorite law review texts: Ninth Circuit Judge Alex Kozinski's classic The Wrong Stuff . A must-read for lawyers and clients alike].

Whether your response to the Indiana case is schadenfreude or relief - or something in between - there is a powerful lesson for everyone involved in the field of election reform.

What's the lesson?
The lesson, quite simply, is something my 12th grade Civilizations teacher - who was a student of rhetoric if not a fan of student rhetoric - repeated almost every day in class:

Assertion is not proof.

This principle, known informally as "saying it don't make it so", is good advice for anyone involved in any aspect of the current election reform debates - not just voter ID. It is even more important in litigation, where, especially in federal court, the demand for evidence is paramount.

The demand for "proof" can be frustrating for advocates, especially given that "assertion" is often sufficient to prevail in the political and legislative arenas. And yet the effort to gather evidence - and present it to policymakers as changes are considered, even if that evidence is ultimately rejected - can pay dividends if and when the battle shifts to the courtroom.

In court, decisions of the executive and legislature are generally given great deference as co-equal branches of government. But if plaintiffs are able to demonstrate that a change was enacted despite evidence that the result could be unlawful or unconstitutional (as plaintiffs did in Georgia) then the likelihood of convincing a judge to agree increases dramatically.

Note that this is not an equal burden. Arguing that proponents of a change have no evidence in support of their position (as did the Indiana plaintiffs) is necessary but insufficient. In court, ties -- even scoreless ones -- generally go to the government.

In the end, failure to collect or present evidence that a challenged law or policy is harmful leaves a judge with no choice but to defer to the status quo, as did Judge Baker: "[w]e have no basis to conclude that the General Assembly's legislative judgment in enacting SEA 483 was grossly awry" (p. 87).

At the end of the day, good evidence doesn't always win - but bad evidence (or worse, no evidence) almost always loses.

In other words, assertion is not proof - at least not in court. But assertion plus evidence (and a well-crafted argument) comes a lot closer.

II. Election Reform News This Week

• In the wake of the discovery of a "serious" security hole in Diebold touch-screen voting systems, election officials in at least three states are issuing directives detailing additional steps that should be taken to safeguard the vote, The Associated Press reported in a story published in the Monterey County Herald. The security flaw was first discovered by Blackboxvoting.org, and reported on the Web site InsideBayArea.com. One computer expert and voting system evaluator called the flaw "worse than any of the others I've seen. It's more fundamental." [NOTE: The public report has not yet been released.]

• A technology panel in Palm Beach County, Fla. this week endorsed paper trails for electronic voting systems, but faces a significant road block - the state has not certified any DRE with voter-verified paper audit trails for use in the state. The Palm Beach Post reported the panel did not decide whether to stick with the county's existing touch-screen system and add printers or purchase new machines.

• Despite issues with an electronic voting machine vendor leading up to the vote, West Virginia's chief election official said Tuesday's primary went more smoothly than some in the past, at least according to the reduced number of complaints logged on a state phone line, the Pittsburgh Tribune-Review reported. "Despite a reported programming glitch that election officials fixed before yesterday's voting, almost all of the 40 voters who spoke with the Tribune-Review outside Morgantown polling places said they're confident their votes will be counted properly." The secretary of state has filed a complaint about the vendor, ES&S, with the federal Election Assistance Commission.

• Arizona's election procedures and machines were the target of two lawsuits this week. Several Latino advocacy groups are challenging the state's voter ID rules in federal court, The Arizona Republic reported. A California-based nonprofit is suing the state for its use of Diebold and Sequoia electronic voting machines, The Associated Press reported on AZcentral.org.