Michael Gaynor
July 27, 2014
Election results should be trued, not skewed, Judge Atlas
By Michael Gaynor

Judge Atlas should not allow a United States Senate nomination to be awarded on the basis of illegal votes by delaying access to the materials needed to check.

To true or to skew (the Mississippi United States Senate Republican runoff results)?

For Catherine Engelbrecht, founder and head of True the Vote, it's no contest. She's trying to have the results trued, however that works out.

Now that is the question to be answered by Nancy Friedman Atlas, a Texas senior federal district court judge sitting by designation in Mississippi on the True the Vote case against the Mississippi Secretary of State, the Mississippi Republican Party and the election commissions in nine Mississippi Counties that resulting from the United States Senate Republican nomination race between incumbent Senator Thad Cochran and challenger Chris McDaniel, but bested Cochran in the primary without winning a majority of the votes cast in the Republican primary.

True: "being in accordance with the actual state of affairs" or "corrected for error" (www.merriam-webster.com/dictionary/true).

Skew: "to change (something) so that it is not true or accurate" or "to make (something) favor a particular group of people in a way that is unfair" (www.merriam-webster.com/dictionary/skew).

Engelbrecht's True the Vote is a nonpartisan, voters' rights and election integrity organization that motivates and equips volunteers for involvement at every stage of America's electoral process by providing training, technology, and support to "fellow citizens so that they can ensure election integrity in their own communities" (http://truethevote.org/aboutus).

Since the National Voter Registration Act preempts Mississippi state law, True the Vote is trying to exercise its right to access un-redacted voter registration applications, absentee applications and poll books and being forced to sue.

Curiously, Judge Atlas questioned True the Vote's motives in bringing its lawsuit, but not the motives of those who denied access. True the Vote sued after being denied access to voting records.

"Isn't there more going on here that you want all the information about voters?" Atlas asked during the hearing last Thursday.

Apparently Her Honor did not understand that True the Vote wants all legally cast votes counted and no other votes counted and "all the information about voters" is identifying information useful in proving or disproving that a vote was properly cast.

Judge Atlas is not only supposed to be impartial, but also to appear impartial. She is not supposed to be blind to the possibility that voter fraud decided the runoff election or to dawdle in deciding the True the Vote case.

Neverhtless, Judge Atlas insisted at the hearing, "This is not a case of voter fraud. It's whether the National Voter Registration Act was complied with and whether it preempts state statute. This case is about transparency of the voter process with the counter issue of voter privacy."

Yes and no, Judge Atlas. This is a case to permit a determination of whether they was voter fraud and, if so, whether the candidate who got the most counted votes also was the candidate who received most of the lawfully cast vote. There's no time to waste and the voters of Mississippi are entitled to know the truth.

Stated otherwise, this is a case to permit a determination as to whether the runoff election votes were lawfully cast and properly counted and to ascertain who should be declared the winner in time for it to matter.

True the Vote wants to access personal information about voters, such as full names, dates of birth, and addresses.

That's to be expected. That kind of information would help to show whether, for examples, a person who voted in the Mississippi Democrat Senate primary subsequently voted in the Republican Senate runoff, which is prohibited under Mississippi law, and a person who obtained an absentee ballot based upon age was entitled to do so.

Judge Atlas opined that it would be simpler and cheaper for True the Vote to only look at crossover votes from people who voted in the June 3 Democratic primary and then the June 24 Republican primary runoff, rather than review voters' full spectrum of private information.

True the Vote preferred to be thorough.

Her Honor's apparent interest in simplifying her own task in this case and saving True the Vote money too may be well intentioned, but the law does not limit access to information only as to people who voted in the June 3 Democratic primary and then the June 24 Republican primary runoff.

As stated in True the Vote's trial brief:

"The NVRA requires public disclosure of voter birthdates in certain registration and eligibility materials.

"The Public Disclosure Provision of the NVRA encompasses the materials and information requested in this suit, including birthdate information. The National Mail Voter Registration Form – a federally created form that states must accept under the NVRA – requires just the information Mississippi now seeks to redact. See 11 C.F.R. 9428.4; Gonzales v. Arizona, 677 F.3d 383, 395-96 (9th Cir. 2012). The public disclosure provision allows for disclosure of NMVRF applications. Given that the use of this form was authorized simultaneously with the public disclosure provision and contains voter birthdates, there can be no question Congress intended such information to be disclosed under the statute."

Lest Judge Atlas think that disclosure of birthdates is arbitrary, a helpful True the Vote footnote explained that such disclosure "is justified for at least six reasons, only some of which are due to the existence of numerous persons with the same name: (1) birthdates on election records, particular voter rolls and pollbooks, are necessary to connect such records with a voter's official registration and application to vote to ensure the voter is properly registered; (2) birthdates are necessary to search conflicting or duplicate voter registrations across counties; (3) age-related information ensures a citizen is age-eligible to vote. See MISS. CODE ANN. 23-15-11; (4) birthdates ensure eligibility of absentee voters requesting to vote absentee because they are over sixty-five years of age. See MISS. CODE ANN. 23-15-627; (5) birthdates on official voter rolls and pollbooks is necessary to detect persons who cast votes in the names of registered voters who are deceased by enabling a party to search by birthdate for corresponding death records. Because many people may share the same name, the date of birth match from a voter record is essential to make a match with external death records; and (6) birthdates are necessary to distinguish between voters with similar names or voters with duplicate entries in voter pollbooks with distinct voter identification numbers due to multiple registrations or a name change (due to marriage, etc.), among other reasons."

Lest Judge Atlas think that she should decide public policy herself, the True the Vote brief respectfully explained:

"The Fourth Circuit in Project Vote/Voting for America, indicated...that this Court need not endeavor to strike the proper balance between transparency and voter privacy. 813 F. Supp. 2d 738, 744 (E.D. Va. 2011) aff'd and remanded, 682 F.3d 331 (4th Cir. 2012). That is a policy question properly decided by the legislature, and Congress has answered the question by enacting NVRA Section 8(i)(1). As the Fourth Circuit held, Congress has already weighed privacy interests against transparency and has come down on the side of disclosure of the information True the Vote requests:

It is not the province of the court . . . to strike the proper balance between transparency and voter privacy. That is a policy question properly decided by the legislature, not the courts, and Congress has already answered the question by enacting NVRA Section 8(i)(1), which plainly requires disclosure of completed voter registration applications. Public disclosure promotes transparency in the voting process, and courts should be loath to reject a legislative effort so germane to the integrity of federal elections.

Project Vote/Voting for America, 682 F.3d at 308. Thus, Congress has concluded public disclosure of voting information, including voter birth dates, promotes transparency in the voting process and federal courts have upheld same."

Ironically, radical Project Vote's ealier litigation success redounds to the benefit on non-partisan True the Vote in its Mississippi case.

As explained upon in the True the Vote brief:

"Federal courts have concluded state laws requiring redaction of birth dates conflict with the NVRA.

"Project Vote/Voting for America, Inc. v. Long guides this analysis. In that case, Project Vote sued the Virginia Secretary of State seeking an injunction requiring disclosure of completed voter registration applications based on claims of federal preemption. Virginia moved to dismiss the complaint, claiming Project Vote lacked standing to bring the suit and that completed voter applications are not subject to the Public Disclosure Provision. Id. at 740. Virginia further claimed birthdates were protected. The district court granted summary judgment in favor of Project Vote, holding that the Public Disclosure Provision unambiguously required disclosure of voter registration applications and that contrary Virginia law was preempted by the NVRA: "The NVRA's public disclosure provision grants the plaintiff access to completed voter registration applications with voters' SSNs redacted for inspection and photocopying. Furthermore, to the extent that any Virginia law, rule, or regulation forecloses disclosure of completed voter registration applications with voters' SSNs redacted, the court FINDS that it is preempted by the NVRA.

Id. at 744. The district court granted prospective relief requiring Virginia to permit inspection and copying of the records with only voter's social security numbers redacted. Id.On appeal, a unanimous Fourth Circuit panel affirmed the district court, holding that the Public Disclosure Provision encompassed the requested records. 682 F.3d 331, 307-08 (4th Cir. 2012). Then noting that social security numbers are 'uniquely sensitive,' the Court concluded that other information released in voter applications, including voter birthdates, did not implicate the same level of privacy concerns as social security numbers. Id. It observed that Congress required privacy concerns relative to the Public Disclosure Provision to be balanced against the many benefits of public disclosure. Id. The Court noted:

[i]t is self-evident that disclosure will assist the identification of both error and fraud in the preparation and maintenance of voter rolls. State officials labor under a duty of accountability to the public in ensuring that voter lists include eligible voters and exclude ineligible ones in the most accurate manner possible. Without such transparency, public confidence in the essential workings of democracy will suffer.

Id. at 308. The court of appeals then remanded the case to the district court.

On remand, Virginia again asked the district court to redact the month and date of voter birthdates. The district court denied Virginia's request to redact the records pursuant to state law and entered injunctive relief, citing the Fourth Circuit's holding."

In addition, the Fifth Circuit appears to concur. As stated in the True the Vote brief:

"5. The Fifth Circuit has not rejected Project Vote/Voting for America's holding, but cites it for the propositions raised in this case.

"The Fifth Circuit has twice held Project Vote/Voting for America applies to records in the government's possession, as the records at issue in this case. See Voting for Am., Inc. v. Andrade, 488 F. App'x 890, 902-03 (5th Cir. 2012); Voting for Am., Inc. v. Steen, 732 F.3d 382, 399 (5th Cir. 2013). It has contrasted Project Vote/Voting for America's holding under the NVRA from records in the hands of VDRs – volunteer deputy registrars – who register voters in voting drives and are not subject to the NVRA's provisions. In Voting for America, Inc. v. Andrade, the Fifth Circuit observed:

Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir.2012) is not to the contrary. That case specifically addressed records in the government's possession, rather than in the hands of VDRs. Indeed, the NVRA only applies to records 'maintain[ed]' by the State. . . The entire purpose of 1973gg-(6)(i) is to facilitate public inspection of public records, and possession by a county-appointed VDR, perhaps one of hundreds in a given county, does not equate to a public record. Moreover, precluding photocopying until the applications have changed hands is not mere 'administrative chicanery,' but protects voter privacy. The Fourth Circuit highlighted that fact, noting that social security numbers may be redacted from applications processed by the State before being 'ma[d]e available' to the public. This additional privacy protection is unavailable where the State has not yet received the applications.

Voting for Am., Inc. v. Andrade, 488 F. App'x 890, 902-03 (5th Cir. 2012). The Fifth Circuit affirmed this holding in Voting for Am., Inc. v. Steen, 732 F.3d 382, 399-400 (5th Cir. 2013) ('we disagree with the district court's reasoning that the applications received and delivered by VDRs are within the "constructive possession" of the state. . . Moreover, allowing VDRs indiscriminately to photocopy registration applications places at risk the private information, e.g., social security numbers, they contain, because Steen and counties have limited means to enforce privacy protections against temporary volunteers.').

"Because True the Vote is requesting records of the state and its counties and not VDRs, none of the factors present inAndrade and Steen are present here to distinguish the Fourth Circuit's treatment of the NVRA and its public disclosure provision."

Although the Mississippi Supreme Court ruled, 5 to 2, last Thursday that it won't reconsider its ruling under Mississippi law that voters' birthdates must be redacted before poll books are opened for public inspection in a case brought by McDaniel, the principle of federal preemption is clear and compelling and therefore True the Vote's case is clear and compelling.

Justice delayed is justice denied, and Judge Atlas needs to act.

Judge Atlas should not allow a United States Senate nomination to be awarded on the basis of illegal votes by delaying access to the materials needed to check.

Unfortunately, Judge Atlas seems to be in no hurry to decide and straining mightily to find reasons to make voter fraud harder to expose instead of easier. She professed concern that while True the Vote leaders might have the best intentions to protect voters' privacy, others could be "fraudsters" who would use birthdates to steal people's identity, and dread that a database with information about millions of voters "sounds like the NSA" and could be hacked.

Near the end of the hearing last Thursday, Judge Atlas declared, "I have no horse in this race on the merits of any election that ever happens in Mississippi."

Hopefully not.

Then Judge Atlas, a Clinton appointee, will hasten to give True the Vote the same access to voter birthdates as radical Project Vote got in court.

As stated at www.discoverthenetworks.org/printgroupProfile.asp?grpid=6966:

"Project Vote is the voter-mobilization arm of ACORN. It is a 501(c)(3) non-profit organization whose professed purpose is to carry out 'non-partisan' voter registration drives; to counsel voters on their rights; and to litigate on behalf of voting rights – focusing on the rights of the poor and the 'disenfranchised.'"

"Election Administration Program: '[This program] encompasses every aspect of election implementation, from voter registration application design to voting booth placement to vote counting and everything in between. Working in neighborhoods nationwide, Project Vote documents voting problems and works closely with elections officials, secretaries of state, and state legislators to enact proactive, pragmatic solutions. A central component of our work is the inclusion of low-income and minority voters through the involvement of our community partners.'"

"The stated purpose of Project Vote is to work within the system, using conventional voter mobilization drives and litigation to secure the rights of minority and low-income voters under the U.S. Constitution. However, the organization's actions indicate that its true agenda is to overwhelm, paralyze, and discredit the voting system through fraud, protests, propaganda and vexatious litigation. In this respect, Project Vote is following the so-called 'crisis strategy' or Cloward-Piven Strategy pioneered during the Sixties by Columbia University political scientists Richard Cloward and Frances Fox Piven.

"As a follow-up to their effort to collapse the welfare system in the 1960s, in 1983 Cloward and Piven founded the Human Service Employee Registration, Voting and Education campaign Fund (Human SERVE Fund). Its objective, they said, was to increase voter turnout among the poor. But unlike Project Vote, Human SERVE did not rely on conventional door-to-door canvassing, or even on the more effective method of registering people in food stamp and unemployment lines which Project Vote had pioneered. Rather, Human SERVE lobbied government officials directly to enact laws and regulations directing public employees to offer to register citizens applying for services at government agencies. This effort realized its grandest ambition on May 20, 1993, when President Clinton signed the National Voter Registration Act of 1993 – commonly called the 'Motor-Voter Act.' It ordered every state to provide resources enabling people to register to vote at state agencies, at the same time they applied for drivers' licenses, welfare, Medicaid and disability benefits. In June 2000, Cloward and Piven dissolved Human SERVE, leaving to ACORN and Project Vote the task of making the Motor Voter 'crisis strategy' work at the polls. It did, in fact, fuel an explosion of fraudulent voters."

"A persistent pattern of lawlessness has followed ACORN/Project Vote activists over the years. For example, one Project Vote contractor – a single mother of three – forged 400 voter registration cards in 1998. 'Some of the addresses listed on these applications were traced to vacant lots, boarded-up buildings, abandoned buildings, and nonexistent house numbers,' notes a report by the Employment Policies Institute. Former Miami-Dade field director for ACORN's 2004 voter mobilization Mac Stuart has testified that fraud is standard procedure for ACORN/Project Vote canvassers – behavior that is not only tolerated but encouraged by supervisors. '[T]he voter registration project has been operating illegally since it started,' Stuart told investigators.

"In the 2004 election cycle, ACORN and Project Vote canvassers fanned out by the thousands across battleground states, turning up repeatedly in press reports and on police blotters in connection with fraudulent petitioning and voter registration. Canvassers were caught or accused of filing registrations in duplicate, filing them for deceased or imaginary people or, in some cases, destroying large numbers of Republican registrations.

"In 2008, Barack Obama's presidential campaign furnished Project Vote with a list of donors who had already contributed (to the campaign) the maximum amount of money permitted by law. Anita Moncrief, a former Washington, DC staffer for Project Vote, later revealed that her organization had contacted these big donors and urged them to give money to Project Vote – money which could then be funneled directly into the Obama campaign coffers, thereby evading election-law limits on campaign contributions.

"As of December 2011, Frances Fox Piven was a member of Project Vote's board of directors."

Would Judge Atlas somehow decide that even though Project Vote is entitled to voter birthdates, True the Vote isn't?

Not if she's impartial.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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