On Tuesday the Brennan Center for Justice at NYU School of Law sent out an alert highlighting the problem. They have sent out letters to 16 secretaries of states, including in Colorado, urging them to take precautions with the machines, including reminding voters to “carefully confirm their candidate choices on the accompanying paper receipt attached to each iVotronic machine.”

According to the Brennan Center:

Early voters in West Virginia and Tennessee have reported a high incidence of “vote flipping” on iVotronic electronic voting machines. Here, voters selected one candidate for President by touching the screen, and watched the machine switch their vote. ??16 states (Arkansas, Colorado, Florida, Indiana, Kansas, Kentucky, Missouri, Mississippi, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin) currently use iVotronic voting machines, and there is a real chance that voters using these machines will experience “vote flipping” if the problem is not addressed before the election.

The iVotronic machines were among those that were decertified late last year, and later recertified by Colorado Secretary of State Mike Coffman after pushback from clerks and recorders across Colorado who argued it was too late to scrap the use of the electronic machines in time for the 2008 election.

According to the Colorado Secretary of State’s 2007 inventory report on voting equipment, the IVotronic machines are in use in Jefferson and Mesa counties.

Without any data showing that people are illegally casting votes, opponents have often described largely Republican-led efforts to install proof-of-citizenship requirements to vote a “solution in search of a problem.”

…

In 2006, Balink published, courtesy of El Paso County taxpayers, a newsletter that contained a letter to constituents demanding to know, “Where’s the outrage?” and likening illegally voting to the “threats” of gay marriage and people trying to take the “Christmas” out of Christmas trees.

This year, Balink hasn’t been making such rhetorical comparisons. But he is still among the chief proponents of requiring people to prove citizenship and provide photo IDs before voting. Last week, he testified to the legislative committee that an informal, unscientific poll he conducted in his office showed that 97 percent of the people who responded agreed with him.

And, to his hometown daily, Balink has indicated that, “while he would prefer the Colorado Legislature pass a law, he is willing to unilaterally enact the policy in El Paso County to spark a lawsuit that would put the issue in front of a judge.”

Currently, Colorado allows voters to produce a wide variety of identification proof, including util  ity bills, bank statements, certified birth certificate or photo ID.

With just six days remaining in the 2008 Colorado legislative session, it’s highly unlikely that Republican voter ID proponents could muster the political will to re-introduce the measure. However, the Supreme Court’s ruling will most certainly reinvigorate the issue as a conservative rallying point heading into the election season.

And with such a political hot potato, misinformation — both intended and not — has made its way into rushed press reports.

The Indiana law was not found to be constitutional
U of Miami law professor Michael Froomkin is careful to make the distinction that the opinion does not find that the voter ID requirement is constitutional — only that it is not unconstitutional.

Froomkin writes on his blog, Discourse.net:

Today’s Supreme Court opinion striking down the first set of challenges to Indian’s voter-ID law will probably create an electoral nightmare, and will probably disenfranchise many voters – although how many is disputed. It’s highly likely that those voters – maybe even tens or even conceivably hundreds of thousands of them – would mostly vote Democratic, at least if they voted their pocketbooks, since they are overwhelmingly likely to be poor. Voters without ID will only be allowed to cast provisional ballots, and will have to appear within 10 days with an ID or with an affidavit explaining why they don’t have one. In practice, few if any of these provisional ballots will ever be counted.

But while the opinion may be an electoral nightmare, three things keep it from being the doctrinal nightmare that it could have been: the procedural posture, some of the facts, and the fractured nature of the opinions. Unfortunately, this case is going be spun as holding that “Voter ID laws are constitutional” when in fact it holds only that they are not per se unconstitutional.

Procedurally, this was a facial challenge to the statute. A facial challenge is one where the plaintiffs argue the statute is invalid by its nature and should not be applied to anyone. Rejection of a facial challenge means that it is still open to individual plaintiffs or groups of plaintiffs to explain how the law discriminates unfairly against them given their particular circumstances and should not be applied to them. That’s why the three most conservative Justices wrote separately: they wanted to prevent future fact-based challenges. And on this, they failed.

The barriers of photo ID laws for minority, poor and elderly voters are very real
Supporters of the Indiana law claim that the harms are overstated.

At an American Constitution Society for Law and Policy panel held last fall before Crawford v. Marion County Election Board was heard by the court, voting rights expert Julie Fernandes discussed her concerns about the potential for disenfranchising voters without photo IDs.

The political stakes — past and present — of institutional voter disenfranchisement
Political author, journalist and blogger Rick Perlstein (by way of Digby) wrote nearly a year ago of historic GOP efforts to trim voter rolls of likely Democratic Party supporters by any means necessary:

Of late, conservatives have been spreading a series of fairy tales about Democratic “voter fraud.” Again and again and again, the tales have been proven to be frauds themselves.

The “vote fraud” fantasies are tinged by deeply right-wing racial and anti-urban panics. I’ve talked to many conservative who seem to consider the idea of mass non-white participation in the duties of citizenship is inherently suspicious. It’s an idea all decent Americans should consider abhorrent. It is also, however, a very old conservative obsession — one that goes back to the beginnings of the right-wing takeover of the Republican Party itself.

Let me show you. Read this report from 1964, running down all the ways how Barry Goldwater’s Republican Party was working overtime to keep minorities from voting. The document can be found in the LBJ Library, where I researched my book Before the Storm: Barry Goldwater and the Unmaking of the American Consensus.

Adam Bonin at DailyKos sarcastically raises the “Hollywood defense”:

…no one’s ever tried to commit voter fraud like this, but they’ve done it some other way, and, um, what’s that historical answer?

“One infamous example is the New York City elections of 1868. William (Boss) Tweed set about solidifying and consolidating his control of the city. One local tough who worked for Boss Tweed, “Big Tim” Sullivan, insisted that his “repeaters” (individuals paid to vote multiple times) have whiskers:

‘When you’ve voted ‘em with their whiskers on, you take ‘em to a barber and scrape off the chin fringe. Then you vote ‘em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ‘em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ‘em plain face. That makes every one of ‘em good for four votes.’ — A. Callow, The Tweed Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)).”

Yes, America, they’re using Gangs of New York to justify this.

Tuesday’s editorial in the New York Times also reminds us of the true stakes of the court’s decision — some voters are more equal than others:

Hovering over Monday’s decision was a case that was not mentioned: Bush v. Gore. In 2000, the Supreme Court took seriously the claims of one individual — George W. Bush — that his equal protection rights were being denied by a state election system, and the court had no hestitation [sic] about telling the state what to do.

On “60 Minutes” on Sunday, Justice Scalia yet again told the public to “get over” that ruling. There are many good reasons to remember Bush v. Gore, and Monday’s ruling was a reminder of one of them. Seven years after it invoked the Constitution to vindicate what it saw as Mr. Bush’s right to fair election procedures, we are still waiting for the court to extend this guarantee with equal vigilance to every American.

Specifically, the bills were among several that House Minority Whip Cory Gardner, R-Yuma, asked his colleagues to co-sponsor “as a showing of caucus unity” in a letter dated Dec. 27.

The issue is not Colorado-specific. Most Democrats and progressives, as well as people who work with the indigent, low-income, elderly and minority populations, have argued that forcing people to show photo IDs, or to prove their citizenship, would create roadblocks and disenfranchise blocs of American voters.

Furthermore, there is no proof that people are trying to cast votes illegally in the United States.

In fact, voter turnout in the United States has decreased in recent decades; in 2004, the last presidential election year, a little more than 55 percent of the voting-age population turned out, compared with 63 percent in 1960.

Currently, voters in United States elections must already be citizens. In Colorado, a number of documents have been deemed acceptable forms of identification when voters show up to their polls, including photo IDs or passports, as well as a copy of a current utility bill, a bank statement and paycheck, or a government document that shows the name and address of the voter.

Without any data showing that people are illegally casting votes, opponents have often described largely Republican-led efforts to install proof-of-citizenship requirements to vote a “solution in search of a problem.”

In Colorado, much of the GOP charge to install voter ID and citizenship laws is being led by Bob Balink, the clerk and recorder of the state’s most populous county, El Paso. Colorado’s Republican Secretary of State Mike Coffman has also been on board with the idea.

In 2006, Balink published, courtesy of El Paso County taxpayers, a newsletter that contained a letter to constituents demanding to know, “Where’s the outrage?” and likening illegally voting to the “threats” of gay marriage and people trying to take the “Christmas” out of Christmas trees. 

This year, Balink hasn’t been making such rhetorical comparisons. But he is still among the chief proponents of requiring people to prove citizenship and provide photo IDs before voting. Last week, he testified to the legislative committee that an informal, unscientific poll he conducted in his office showed that 97 percent of the people who responded agreed with him.

And, to his hometown daily, Balink has indicated that, “while he would prefer the Colorado Legislature pass a law, he is willing to unilaterally enact the policy in El Paso County to spark a lawsuit that would put the issue in front of a judge.”

Balink’s rationalization recently prompted the president of the Colorado Springs branch of the National Association for the Advancement of Colored People, and the director of the watchdog group Citizens Project, to pen a critical – and pointed – response. Their letter was published in the Colorado Springs Independent and the Gazette – and redistributed widely.

Here it is:

Proof of Citizenship Would Threaten Voting Rights

Voters should be alarmed by El Paso County Clerk and Recorder Bob Balink’s proposal that people registering to vote provide proof of citizenship. Although showing proof of citizenship might sound reasonable at first glance, such policies have only one effect: suppressing the constitutional voting rights of American citizens, especially the elderly and minorities and those with low incomes. Many people simply don’t have their birth certificate, which can be very difficult to obtain for people with limited resources.

Recent studies, such as those conducted by the Brennan Center for Justice at the New York University School of Law, have explored the questions of who has proof of citizenship and whether voter fraud by noncitizens is a problem that threatens election integrity in the United States.

The studies found that 7 percent – or more than 13 million Americans – do not have ready access to the documents that can definitively prove citizenship: a birth certificate, naturalization papers or a U.S. passport. Not surprisingly, the studies also found that those who most often lack proof of citizenship are poor, elderly or from racial and ethnic minority groups.

Furthermore, studies show that requiring proof of citizenship appears to do nothing to ensure election integrity while negatively impacting civic participation. In Arizona, for instance, the only state that currently requires proof of citizenship, 35 percent of new registrants in the most populous county were rejected in 2005, and 17 percent were rejected between January and September 2006. Most are presumed to be legal citizens who did not have the required documents.

We write on behalf of a coalition of local civic-minded organizations that believe the rights of so many legal citizens should not be sacrificed when there’s not one single documented case of a non-citizen attempting to register and vote in the state of Colorado – much less El Paso County.

The right to vote is a cornerstone of democracy. Our elected county clerk and recorder should be in the business of defending that right, not creating barriers for legal voters. The current system of verifying voter citizenship by way of sworn affidavit is working. In the absence of any evidence to the contrary, we ask Balink to shelve this discriminatory proposal.

Rosemary Harris
President, Colorado Springs Branch NAACP

Barb Ferrill Van Hoy
Executive Director, Citizens Project

Cara DeGette is a senior fellow at Colorado Confidential and a columnist and contributing editor at The Colorado Springs Independent. E-mail her at cdegette@coloradoconfidential.com