Trevor Potter, John McCain's lawyer, said it all yesterday on the election law listserv, but it was not, we must be sure, how he meant to be understood.*  He showed up with messages in defense of the Republican Party’s honor, defending it against the suit brought by the Obama campaign, the DNC, and voters over the planned use of foreclosure lists to challenge voters.   Potter did not turn in a convincing performance but it was a revealing one; it could not help his cause because it made all too plain what that cause is and what, sadly, its defense requires.

     Trevor was bothered by Rick Hasen’s observation that Potter circulated, apparently endorsing, the Macomb Party Chair’s charge that the real issue was voter "fraud."  The Chair, the loose-lipped Mr. Carabelli, proclaimed that "in 2004, at least 46 long-deceased voters managed to rise from their graves and vote in heavy Democrat-leaning precincts.  That’s the kind of ballot integrity Democrats favor in Michigan."  Rick Hasen pointed out that this was "unsubstantiated"; Potter disagrees, referring to "data" in a footnote in a Michigan Supreme Court Opinion.  In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444 (Mich. 2007).  There one can find assertions presented by an unidentified amicus curiae about these 46 voters.

     On the most generous view, this is far from "data," and it does not contradict Rick’s justified criticism that this is not substantiated proof of voter fraud.  These were not claims tested in a court of law, subjected to rigorous evidentiary standards.  Parties to the action did not present them.  An amicus brief put these claims forward, and the Court, needing something about fraud to answer a sharply worded dissent, cited these claims—in a footnote.  This was the best that it could do.  It left to the Supreme Court all mentions of "Boss Tweed."  See here. 

     But Potter ignores the remaining part of the Carabelli complaint:  "That’s the kind of ballot integrity Democrats favor in Michigan."  What might the "data" be for this?  The footnote says nothing about Democratic Party's responsibility, unless one places any weight on an inference drawn from the location of the alleged fraud in "Democrat-leaning precincts."  Carabelli adopted this inference; Potter seems to have accepted it, declaring the Carabelli statement to anchored in "data."

     This is indeed the strategy behind Potter’s and other Republicans’ "anti-fraud" rhetoric:  they would like to impute to Democrats an institutional commitment to fraudulent voting.  Because, as they well know, unless they can make the Democrats out to be plotting fraud, they are stuck with scattered "data" of the meager, untested quality appearing in footnote 110 of the opinion he cites.  Potter, Carabelli and Company need to fatten up these slim pickings, inflating them into overt acts committed in furtherance, and representative, of a conspiracy.  They are "substantiated" by reference to the whole picture, we are supposed to believe: they are part, you see, of a pattern.

     Let’s see how this arguments reads:

1.  An amicus in a court case alleges fraud, identifying 46 "dead voters" in the 2004 election.

2. A Court cites this in a footnote.

3.  Carabelli states them as fact.

4. Carabelli then assigns institutional Democratic responsibility for, or partiality toward, this alleged fraud.

5. This is "data," good enough for Trevor Potter.

     What slop this is, but Potter imagines it to be a fine brew.

     On the other side, of course, we have the long history of documented Republican Party vote suppression developed and executed at the highest institutional levels.  We need only look at recorded law enforcement actions, at the findings against Republican "caging" and the imposition of remedies provided by law.  This legal history is not crammed in a tight time period:  it is, as Chandler Davidson and others have shown, a programmatic party commitment pursued over many decades.    The party is quite proud of it:  it holds conferences (of the Republican National Lawyers Association) and otherwise holds forth on the topic, and it looks forward to the quadrennial re-publication of John Fund’s compendium of anecdotes.  And their representatives go about "caging" as one of their preferred strategies for controlling the" fraud" that is always present to their fevered minds or part of their strategic calculations.

     Against this history, Potter asks that we credit the denials of Carabelli.  He said he did not mean it, didn’t he?  Not exactly:  recently, a Michigan radio station I was invited to call into played a tape of this "denial."  Perhaps before the national party had squeezed the last bit of candor out of him, Carabelli huffed only that he had been "misinterpreted" and that he had answered a "leading question." 

     As denials go, this one is in need of work; and whatever it is, it is not of the absolute and unqualified kind.  What leading question might he have been asked?  Perhaps it was, "Are you planning to use foreclosure lists to challenge voters," to which he seems to have answered "yes."  That the question was leading does not render the answer false.  About the nature of the "misinterpretation," Carabelli said nothing.  He was lost: his handlers up the chain had yet to descend upon him.

     Potter asks—why not reach out to us?  He favors a bi-partisan approach "to ensure such challenges [based on foreclosure lists] are not made by either party."  Democrats have never considered such challenges—it is odd that Potter would think otherwise, since Democrats allegedly "favor" fraud.  It is, at any rate, a mystery why we would need a bipartisan agreement to "assure" that Democrats as well as Republicans would not do what no one has ever suggested that Democrats would do in the first place.  And what exactly in the campaign so far would encourage Democrats to expect good faith from the Republican Party or the McCain campaign?
 
     Potter tries out a ploy and asks of the election law listserve that it be treated as a serious argument.  It is not serious at all, but anybody who has followed the institutional Republican treatment of voting rights, particularly in vulnerable communities, should take it seriously, if not in the way that Trevor hopes and intends.  It should be taken seriously as a ruthlessness in the defiance of law and the cold disregard of rights on the part of the "do anything to win" crowd.

Bob Bauer       

     *Under listserv convention, a listserv contributor may not be identified without consent, but a reporter called to inform me that Potter had given it.