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Going for the Files in the Houston Election Challenge
by Greg Moses
Saturday, Feb. 12, 2005 at 8:08 AM
gmosesx@prodigy.net
Before the original files of the election challenge slip into archives, there are some questions to ask in behalf of voters rights in Houston.
On the surface of things, voters in Houston have
finally been allowed to assert their preference in the
November election of Vietnamese immigrant Hubert Vo to
the state house. The long-time Republican incumbent
last week finally withdrew his legislative challenge
following publication of a Republican-led
investigation that recommended in Vo's favor.
Not far beneath the surface of things however,
larger questions linger, and they should not be swept
under the rug. There are questions of precedent: do
we want to normalize this kind of legislative contest
in close elections? There are questions of racist
media bias: why is the major daily now reporting that
the case had obvious merit from the start? And there
are questions of fairness: why should the alleged
wrongdoings of voters be more worthy of attack than
the alleged wrongdoings of Republican lawyers who go
after them?
Houston blogger Greg Wythe of GregsOpinion.Com
speaks plainly about one voter rights issues that
lives in the aftermath of the attempt to overturn the
Vo election. By treating this unsuccessful
legislative challenge as a 'good fight', a worrisome
attitude is developing that makes these ugly
proceedings more likely next time around.
"Taylor and Co. [the attorneys who pressed the
legislative contest] just want to be able to get away
with more challenges of the voters' will," writes
Wythe. "Plain and simple. They want more people to
vote by provisional ballot. They want more votes they
can kick out if they disagree with the outcome. In
short, the problem with democracy to Andy Taylor is
just that too damn many people vote. Democracy would
be fine and well, I suppose, if we just left it to the
party bosses of the GOP primary and left it at
that."
To Wythe's worthwhile suspicion, allow me to add:
The 'provisional ballot' method that was ushered in
via the so-called Help America Vote Act (HAVA) not
only segregates ballots of voters who are judged to be
questionable on election day, but the process also
makes it possible to preserve a public record of how
the ballots were cast.
Each provisional ballot is supposed to get a
"retrieval code" which helps to segregate the vote.
But this also means that voter preference is
technically knowable without having to ask the voter.
And this means that in a contest where lawyers are in
constant dialogue with election officials, the
temptation presents itself in a palpable way, to
discern a voter's preference while deciding which
voters to discredit.
In contrast to blogger Wythe's concern that the
election challenge raises dangers of partisan
manipulations, a Houston Chronicle news story this
week reports that the election challenge was
compulsory from a fairness point of view and that the
attorney who pursued the challenge was a sort of moral
hero who took the hard road that others in the GOP
would have been publicly embarrassed to take.
The Chronicle news report in fact presents an
argument that the election was worth overturning on
its face had there been enough political courage among
Republicans to do the right thing. Since the GOP was
too shy to take such a public stand, they needed an
upright attorney to set the system straight.
Here is the Houston Chronicle account passage
from Feb. 10:
Taylor [the GOP attorney] won points
for taking on a cause that made some Republicans
uneasy. The election was close enough, and the
eligibility of enough voters was in question, that
someone in the GOP had to pick up Heflin's case.
Heflin asked the House to overturn the election —
and a partisan bloc vote could have done that in the
GOP-controlled body.
But it would have meant voting against Vo, the
first Vietnamese immigrant elected to the House and a
member of a constituency, Asian-Americans, that both
parties covet.
Taylor wasn't faced with that political dilemma,
and Heflin became the latest GOP legal cause he's
championed.
If I am correct about the logic of the Chronicle's
"news report" then an assumption is being nurtured
that any close election morally deserves the kind of
treatment to legislative challenge that we've just
witnessed. What this means to voters of Houston and
to subscribers of the Houston Chronicle is that next
time there is a close election, they should prepare
for lawyers to swoop down upon them while Chronicle
reporters applaud.
Actually, I much prefer the Houston Chronicle's
editorial position on this issue, which recently
called for the challenger to withdraw, because the
pretext for the contest was not supported by
evidence.
Said the editorial board on Jan. 31: "As the
participants commenced sorting through disputed votes,
it soon became clear that rather than some grand
conspiracy, irregularities documented were of an
accidental nature and not orchestrated by either
candidate."
The Chronicle news item, ten days later, only makes
logical sense if we draw out its most significant
hidden premise: that there was very good reason to
suspect that the rate of illegal voting fell more
heavily on one side rather than another.
Contrary to what the recent Chronicle news report
asserts, it would not be enough to suppose that the
combination of close election and illegal voters is
enough to trigger a likely reversal of an election.
One has to suppose in addition that illegal voters are
unevenly distributed among the partisan camps.
So long as we presume that the rate of illegal
voting is evenly distributed across parties, the raw
number of illegal votes means nothing. And until we
have clear evidence in the matter, we should not go
around accusing one class of voters of having obvious
tendencies to vote at higher rates of illegality.
Especially, we should take notice that this is
Black History month in Texas, too. This the worst
time to be smuggling bigoted assumptions that
criminalize "Southside" voters, especially when those
assumptions already go against the better judgment of
the Chronicle editorial board (who endorsed the GOP
candidate in the first place) and the Republcan-led
investigation (which could not have been more patient
with the challenger's attorneys).
Newspaper reports should not criminalize entire
classes of voters without very clear evidence. But
the Chronicle's assumption of Feb. 10 only makes sense
if we criminalize Vo's "Southside" voters, contrary to
all evidence that GOP lawyers were able to muster.
In fact, as blogger Wythe points out, following a
tip by Vo attorney Larry Veselka, the only two votes
that one might want to call intentionally illegal were
votes initially cast for Vo's opponent. So if we are
considering evidence rather than bigotry, the facts
show that "the eligibility of enough voters" to
overturn the race was NEVER in question.
In the end, I am hoping that the Houston Chronicle
writers who last week built barricades against pending
issues of voters rights (including
a swipe at this writer) will come to be guided by
the general principles of their own editorial
board.
The writers have not been fair to the voters of
Houston, especially not to the emerging grassroots
voters. In the aftermath of the thorough
investigation by Master of Discovery Will Hartnett
(R-Dallas), it is a completely insupportable claim to
say at this point that "the eligibility of enough
voters was in question, that someone in the GOP had to
pick up Heflin's case." In fact, as I have argued,
the conclusion only follows from a premise that is
bigoted against the 'Southside' voters in this
race.
Racist is the word for this kind of news reporting,
which is very sad to see at any time; but from a major
metro daily during Black History Month in the year
2005? The more I write about it, the angrier I
get.
Yet, we must say that it is never too late. And we
can encourage Chronicle reporters to take guidance
from their editorial board and begin focusing on the
rights of Houston voters rather than the careers of
Republican lawyers.
Next week, the Texas Civil Rights review has an
appointment to view all the original documents in this
election challenge. We will see for ourselves if
there is any truth to reports that irregular
depositions were submitted by GOP attorneys or whether
those same attorneys improperly affected voter
registrations during the course of investigation.
We'll go it alone if we have to. But it should be
pointed out in advance that the room containing the
documents has room for more than one curious reporter
at a time.
texascivilrightsreview.org/phpnuke/
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