Is the Daily Kos' Marko Moulitsas encouraging voter fraud?

by John Bambenek

Yesterday, I filed a complaint with the Michigan Attorney General against Daily Kos' blogger Markos Moulitsas, requesting an investigation into whether Moulitsas is encouraging voter fraud in next week's Michigan GOP primary.

The idea of the freedom to vote is part of the bedrock foundation of this nation.  Vote fraud is not a new concept; likely it reaches back even to the time of the founders.  However, once vote fraud is discovered, it should be prosecuted aggressively like all flagrant violations of the law. Daily Kos' call, under the direction of Markos Moulitsas himself, for a conspiracy to commit massive vote fraud during the Michigan primaries may be one of those serious attempts to circumvent election law.

In Daily Kos' January 10 posting entitled "Let's have fun in Michigan," Moulitsas called on Democrats to cross party lines and vote in the Republican primary for the express purpose of helping Mitt Romney win.  Romney, he says, will be a "weak" opponent for the Democrats in November.  Daily Kos makes no attempt to hide the fact they are influencing Republican primaries as Democrats to benefit Democrats. 

Moulitsas' call could be felonious. Michigan state law clearly indicates that unqualified electors voting in elections is a felony.  It also specifies that counseling or aiding someone to vote in an election they are unqualified for is also a felony.  Election law clearly specifies that to vote in a party's primary, one must actually belong to that party. 

Compromising the power of the vote in this country is a direct attack on the very foundation of our freedom. While much can be said about the closed primary system of which I am no fan, it is the law of the land and undermining that system for partisan gain is an invidious attempt to disenfranchise voters, and simply cannot be allowed to stand.

The parties do have free association rights which allow them the constitutional right to declare who are and are not members and, by extension, those who cannot interfere in the workings of that political organization.  Republicans alone should choose Republican candidates.  Democrats alone should choose Democrat candidates.  The same goes for third parties.

Markos, posting under his own name, may have engaged in a conspiracy to commit vote fraud by counseling Democrats to vote in the Republican primary for Mitt Romney.  The motto for this campaign is "Democrats for Romney: Because the Republicans Deserve the Very Worst." 

That motto says something about those who claim to love America as they so frequently display their hatred for other Americans. More importantly, it advertises the fact that Democrats -- who have no intention of changing parties -- may attempt to interfere with the Republican Party's internal workings. 

While appearing to encourage vote fraud, the Daily Kos may also be encouraging an attempt to subvert Republicans' constitutional right of free association and, at the same time, could be perpetuating a conspiracy to disenfranchise Republican voters and dilute their votes.

Vote fraud happens, and living in Illinois, I am no stranger to it.  Make no mistake, the Daily Kos' posting could be a direct attack on the democratic elements of our Republic, which is exactly why I have filed a criminal complaint in the matter. 

Such public and flagrant disregard for not only Michigan's election laws, but the rights of fellow citizens cannot be overlooked or tolerated.  Doing so will simply encourages a state of lawlessness in our election system.  While monikers such as "they can't cheat if it's not close" may be emotionally satisfying, any such alleged attack against our Republic and its laws should not be shrugged off.

If you agree that the integrity of the vote should be protected and that every vote should count, please contact the Michigan Attorney General, Mike Cox, at miag@michigan.gov and encourage him to look into these allegations.  Cox's office may also be contacted at (877) 765-8388.  Additional contact information may be found here.

John Bambenek is the Assistant Politics Editor for BC Magazine and is an academic professional for the University of Illinois. By trade, he is an information security professional, part of the Internet Storm Center and a courseware author and certification grader for the GIAC family of security certifications. He is a syndicated columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education.

Comments

[Dalybill]

Democrats message is so weak and as been so weak for so long, vote fraud, for them is studied and practiced to a fine art.

[Robert]

Unless the laws have been changed since the 1972 incident cited by the Daily Kos, Michigan is an open primary state and as such anyone can vote in them regardless of party affiliation. If the laws have changed, that would be a different story.

Thank you!

[cherryl]

And we walk now with the shoe in on the other foot...Oops :)

[the wonderboy]

I'm pretty sure that Robert is right. I don't think this qualifies as vote fraud. It's probably unethical, but I don't think it's criminal.

[Cao]

John contacted the Michigan Attorney General, who is currently running for governor, to ask for an investigation into Kos' asking people to cross party lines to influence the vote in Michigan. Unfortunately for the KOS kids and KOS himself, according to what John learned from that contact, counseling people to vote for races they aren't qualified for is a felony there.

[Robert]

Is Michigan still an open primary state? If so, then how can "counseling people to vote for races they aren't qualified for" a felony? If it's a felony, why hasn't the Michigan Republican Party not faced criminal charges for the incidents cited in the Daily Kos article? Doesn't that strike you as being just a tad hypocritical?

[John Bambenek]

The Supreme Court has ruled that open primaries tarditionally understood are unconstitutional on free association grounds. In my complaint I cited the current law that says in primaries you can only pick up your own parties ballot.

[Bob]

As someone who lives in MICHIGAN, I think you should worry about your own state's primary and leave us alone. Get over it...

[Rick Sincere]

I am an election official in Virginia, which is an open primary state. (Voters choose which party's primary they wish to participate in, at their polling place on election day; there is no voter registration by party here.)

As I understand the law in Michigan and other states, it is legally possible for a voter to change his party registration prior to a party primary and then change it back at a later date. All of this is subject to those laws that govern deadlines for voter registration (for instance, in Virginia the deadline to register and be eligible to vote in an election is 29 days before that election) and other regulations, which vary from state to state.

As another commenter noted, what the Daily Kos is urging may be unethical, but it is not likely to be illegal.

[John Bambenek]

I very clearly cited the laws involved in the complaint to the AG. Yes, people can change their party on election day, just like they do in Illinois (and that's not really an Open Primary). However, you still must belong to the party you vote in. Party registration may be effected by choosing a particularly party's ballot on election day, but not everyone, for instance, can simply walk up and ask for the other party's ballot.

For instance, a Republican officeholder cannot take a Democratic ballot on election day (well they could, but it would be clear fraud).

The difference is subtle but important. By taking a certain parties' ballot on primary day, you are saying you belong to that party. In cases where that is clearly not so (i.e. party officials, elected office holders) you can be challenged very successfully or tried for vote fraud later because you are obviously lying (unless you have jumped parties, resigned parties, etc).

The difference here is that I'm not going after individuals, I'm going after Kos who is advocating for people who have no desire to change parties to vote in an election they are not qualified for. Yes, a particular voter may be changing their party registration on election day, but Kos is suggesting that people do this who have no intention to change parties, that is, in fact, apparently illegal. You are making an apples to oranges comparision and haven't read the laws I cited.

Sure, anyone can pick up any party's ballot they want on election day but in so doing they are saying they belong or choose to belong to that party. For one person of another party to do that to another party on election day, however, is fraud. That is also why I cited the perjury statute.

[lestatdelc]

And it's Fright-Wingers who complain about frivolous litigation?

The author of this doesn't even know what the hell he's talking about. In Michigan has no party registration when you register. It's binary. Either you're a registered voter, or you're not. Go look at their voter registration forms. There is no party declaration in it.

Oh, the guy's also not even from Michigan. How he thinks he has standing is beyond me if he even called anyone (i doubt it) given the complete lack of understanding of Michigan election law.

[Dave Dial]

Wow, Mr. Bambenek, you are a complete moron.

If you really work at U of I, they must be very ashamed. LOL!

I live in Michigan and voters can vote in whatever primary they want to. They don't ask what party you belong to, they ask which ballot you want.

Your 'unqualified electors' bit is easily understood. Except you and your other freeper buddies can't seem to understand it.

[Free Spirit]

These voters do not INTEND to change parties; they HAVE changed parties. Whether they intend to change parties again the next day has nothing to do with it, as far as the State of Michigan is concerned. They are members of the party if they are registered as such, and, as such, are qualfied to vote in the party's primary.

If any of these voters hold offices in another party, they may be violating the rules of the other party, which probably stipulate that its officeholders must be party members. But they are not committing any kind of voter fraud.

[lestatdelc]

Michigan voter registration does not even include party affiliation.

[carbondale atty]

Michigan has open primaries, jackass. Good luck with your frivolous complaint-- I hope Kos files malicious prosecution charges against you.

[esjaydee]

This is gone beyond silly-you are making a fool of the republican party.

What part of the Michigan election law do you not get?!

Also-I read the post on DKos...did you just happen to omit the larger part of Kos' point-the one he makes about how the Republican party had played these games in several prior elections?

Get a grip! There is NO fraud.

[Ron Russell]

Ah, the sound of Right (actually wrong) Wingnuts going off the rails! How many more laughts can you provide Liberals like me? We're ROTFLOAO over this! Keep the nutty attacks coming boys, we're actually enjoying it (since you clearly aren't going to stop and just take your meds).

[slamkitty]

Desperation breeds all kinds of dysfuntional behavior. Good reminder for those of us on the left that these people never play fair. Their ends justify their means. They have bought their own lie that they are the party of "values" so they can act any way they please. It is fun to hear them whine, but keep in mind they will chew your head off if forced to.

[John Bambenek]

I am amused no one bothered to even look at the Michigan law to tell me I am wrong...

The Kos speaks... they listen.

[Ron Russell]

Come on John, if it was illegal, would the state officials need your advice? Oh, I forgot, only wingers have that Mojo! ROTFLMAO!

[John Bambenek]

I didn't give state officials advice, I gave them a complaint. I'm sure they have better things to do than troll the blogs on the off chance a yard ape decides to do something illegal, so as a good citizen, I brought it to their attention.

[prairie biker]

John,

heh. the statute you cited doesn't include the presidential primary. you really need to stay away from trying to interpret the law.

[Ish Ka-Bibble]

Why is it when the left uses the courts it's a symptom of our over-litigious society, but when a numbnut like Bambenek files a frivolous suit it's somehow heroic?

I hope that legal costs are assessed to him when his case rejected.

[Ish Ka-Bibble]

"I'm sure they have better things to do than troll the blogs..."

Whereas you have oodles of free time in which to jerk off.

Get a job, John.

[lestatdelc]

John, what part of voter registration process where there is no party identification at all do you not get?

Here...

http://www.michigan.gov/documents/MIVoterRegistration_97046_7.pdf

John, please point to any part of the Michigan registration form you can even register your party affiliation?

[John Bambenek]

When you ask for a specific party's ballot on primary day, you become a "registered member" of that party.

Try again.

[John Bambenek]

Prairie Biker-

The part of the law that deals with Presidential Primaries? You mean 168.41 et al (see citations aren't hard).

You're a little confused, Presidential Electors are delegates to the convention.

Nice try though.

[lestatdelc]

"When you ask for a specific party's ballot on primary day, you become a "registered member" of that party."

No you don't John. You haven't a clue about what you are talking about. Michigan voter registration does not even incorporate party affiliation. It is an open primary state where any registered voter can vote in either party primary ballot.

What part of this do you not get MICHIGAN VOTER REGISTRATION DOES NOT INCORPORATE PARTY AFFILIATION AT ALL...?

[John Bambenek]

lestadelc, are you slow? I'm not talking about voter registration... at all.

When you show up on election day, you say "I want a republican party ballot" you become Republican.

I'm not sure why you keep referring to voter registration, it has nothing to do with what I'm saying.

But please, keep showing how hollow your point is.

[lestatdelc]

Read the third bullet form Fox News here:

http://www.fox47news.com/news/local/13682602.html

"• There is no party membership requirement to participate in the primary and voting a particular ballot does not register the voter as a member of that party."

My god your dumb. When you previous frivolous lawsuit was thrown out of court, didn't that tip you off that you haven't a clue about the law?

[lestatdelc]

So are you saying that Fox News is lying John?

[John Bambenek]

I'm saying I don't get my legal information from a local fox affiliate. You can be wrong without lying... a fact that is often missed by the left.

[lestatdelc]

LOL, so you are saying that Fox News got it 100% wrong?

So please point to the law or the statutes that make a registered voter requesting a ballot of a particular party registers them in that party.

[John Bambenek]

I did, it's in the complaint were I cite specific statutes, so instead of taking some local news affiliate article and running with me at it, why don't you head over to the law I cited or find some court cases and we can talk.

[lestatdelc]

The statues you cite have no restrictions on voters and party id. I looked them up.

"168.534 General primary; time; party candidates to be voted for; condition to nomination.
Sec. 534.

A general primary of all political parties except as provided in sections 532 and 685 shall be held in every election precinct in this state on the Tuesday after the first Monday in August before every general November election, at which time the qualified and registered voters of each political party may vote for party candidates for the office of governor, United States senator, representative in congress, state senator, representative in the legislature, county executive, prosecuting attorney, sheriff, county clerk, county treasurer, register of deeds, county auditor, drain commissioner, public works commissioner, county road commissioner, county mine inspector, surveyor, and candidates for office in townships. A nomination for an office shall be made only if the official is to be elected at the next succeeding general November election."

Michigan law allows any registered voter to vote in either parties ballot in the primaries. And neither 168.932a, 750.157a nor 168.534 say anything on balloting registers someone with a party depending on a ballot selection.

[John Bambenek]

"registered voters of each political party may vote"

Try again.

[lestatdelc]

Exactly John, registered voters of each party may vote... they may vote for either party's ballot.

You will also note U.S. President is not listed in 168.534.

Furthermore, you have yet to point to the law (any law) which registers a voter depending on which party ballot they choose in the primary. Which is what you were claiming the laws you cited in your complaint showed. So point to it.

[John Bambenek]

FYI, open primaries are unconstitutional, see:

NAACP v. Alabama
Gitlow v. New York
Tashjian v. Republican Party of Connecticut
Miller v. Brown

[John Bambenek]

Also, read 168.615c.

Particularly this:

In order to vote at a presidential primary, an elector shall indicate in writing, on a form prescribed by the secretary of state, which participating political party ballot he or she wishes to vote when appearing to vote at a presidential primary.

Read the rest, such as the entire list being disclosed to party chairmen, etc.

[Bruno]

John,

You do have certain skill in riling the KOZinostrum.

If nothing else, you've exposed an inconsistency in MI election laws, which are ambiguous, at the very least.

My guess is that (as with most ambiguous laws) the intent is to create a situation where enforcement of laws can be selective.

I hope to one day be called "dumb" by a person who can't distinguish between "your" and "you're."

These folks are entertaining, at the very least.

[lestatdelc]

ROFL

"Sec. 615c.

(2) An elector shall not be challenged at a presidential primary based upon the participating political party ballot selected by the elector. An elector may be challenged only to the extent authorized under section 727."

Kinda shoots your entire premise apart doesn't it?

[TheSquire]

When I was reading this thread over, I decided to go poke around the Michigan electoral code myself. What struck me, besides 168.615c subsection 2, was the constant and repeated use of the phrase "registered and qualified elector". Even your original post, John, which includes the language of 168.932a subsection c, makes mention of this. While you, John, apparently went and assumed that the qualifications mentioned had to do with party status, I was wondering "What exactly makes an elector "registered and qualified"? Unsurprisingly, the Michigan Legislature foresaw this question and furnishes us with 168.492:

"Sec. 492.

Every person who has the following qualifications of an elector, or who will have those qualifications at the next election or primary election, shall be entitled to be registered as an elector in the township, city, or village in which he or she resides. The person shall be a citizen of the United States; not less than 18 years of age; a resident of the state for not less than 30 days; and a resident of the township, city, or village on or before the thirtieth day before the next regular or special election or primary election."

One will note that there is no mention of party status in this definition of a "qualified elector". No where else in the code is party status listed as a qualification to vote. In fact, Section 615c subsections 1 and 2 provide that any elector may take a primary ballot, and that no elector may be challenged based upon their party status, only allowing challenges under Section 727. Section 727 likewise omits party status as grounds for challenge. Also, in the section of code describing how primary elections shall be conducted, Section 575 states:

"After the polls are opened at a primary election, any elector who is legally registered and qualified shall, before entering the booth or voting compartment, be furnished a party ballot, together with any other ballot or ballots to be voted at that primary election."

Having previously read section 492, one sees in this section that the law does not restrict the elector to taking his/her own party's ballot, but merely states that the elector be furnished with a party ballot.

While I will be the first to admit that I am not a lawyer and that what I have written is based upon my own plain reading of the law, it looks to me as if the Michigan legislature did a decent job of intentionally writing their state's laws so as to have an open primary system. Electors may choose whichever party's primary ballot they want, they are unable to be challenged on their choice based on past party status, and all government-held records of party choice are destroyed as soon as allowed by Federal statute, which is 22 months after the election. While it may not be nice to do, what Kos is proposing is legal and has been done in the past. I profess no knowledge of case law, Federal or otherwise, concerning open primaries, but based upon the statutes of the State of Michigan, I personally see no legal grounds for complaint.

[TheSquire]

John, in your earlier comment you said:

"I'm sure they have better things to do than troll the blogs on the off chance a yard ape decides to do something illegal, so as a good citizen, I brought it to their attention."

The term "yard ape" caught my attention so I have to ask are you, by implication, calling Kos childish, or are you intending to use a racial slur against a US Citizen, a Decorated Veteran of the United States Armed Forces, and an actual lawyer?

[Bruno]

John,

As I read through the cases you posted above, it struck me that you are actually on to something here.

[As and aside...My search also dug up the old FEC complaint. I wonder if all those lefty and righty bloggers that thouroughly trashed you on the issue ever stopped to think that your case provided a PRECEDENT that basically ended up PROTECTING all bloggers/activists from party or candidate harrassment? Nah! They all seemed too busy coming up with insults. Stunt or not, I saw it as serving a very good purpose.]

In the case at hand, I think you are again (perhaps unintentionally) exposing an interesting issue.

The court cases clearly show that the spirit of KOZ's ploy (Dems' picking Romney in MI) is considered unconstitutional...

(but hey, why read cases when you can parse legislative code)...

Your complaint, and the ensuing parsing by partisans, provides another irritating grain of sand that might yet yield a pearl.

Here is my take on the issue. While case law clearly provides lip service to the idea that "parties have a right to determine who votes in their primaries" (right to association), the post 17th Amendment zeitgeist is evident in the clearly ambiguous election codes now evident in most states.

The case law seems to protect the interests of the 2-party system (something I'm beginning to view as damaging to the nation) while the election codes seem to be bending over backwards to allow anyone to vote in any election they choose (as long as they forego the opportunity to vote in another party's process.)

IF the trolls here could stop tossing insults for a few seconds, they might see the value in your complaint. It exposes another dirty little flaw in our system (IMO).

The nutroots did their part in getting Dems in power in 2006 (give credit where it is due). The Religious right has also done its part in making the Republican party the power it(still) is today.

What good has it done either of them? Neither party is responsive to its "base."

Both parties are responsive to the corrupt interests that fund them. (Big Oil, Big Insurance, Big Pharma, Big Union, Big Public Empl. trough feeders, Big Education)

The faster Kos' mischief and your clarifying complaints keep coming, the faster we can weaken, and then gut, the 2 -party system. For that is what both of you are doing.

Thank you. As Kos' original post implies. a nation where left right and center can vote freely (let individuals "associate" and stop protecting "parties") is a "center-right" nation that elects "McCains."

[John Bambenek]

TheSquire-

Well, I learn something new everyday. I went to urban dictionary to look up "yard ape" to see what the heck you were talking about... I was using it in the sense of #3, but see that it has been used as a racial slur too, didn't know that and apologize.

However, Kos isn't a "decorated veteran". He did serve, sure. But unless anyone who serves becomes a "decorated veteran", then you're just saying that in a way to shut down conversation. Just like a true liberal, its about the messenger, not the message. He's also not a lawyer last time I checked.

[prairie biker]

John,

Let's pretend for just a minute that your complaint has some merit (it doesn't - but let's pretend). Not being a citizen of Michigan or situated in any possible way to suffer harm as a result of Michigan's (Constitutional) open primary system, how do you figure you have standing to make a criminal complaint in that state?

[John Bambenek]

First, I'd like to thank Champaign-Urbana's distinguished legal scholar prairie biker for gracing us with his presence.

Ok, let's pretend I was a citizen Michigan and I was situated to suffer harm as a result of Michigan's election (by the way, I cited the court cases that clearly say unequivocably open primaries are unconstitutional in all their forms). I **STILL** couldn't file a criminal complaint. Let's go further, let's say I was a lawyer empowered by the Michigan Republican Party. I **STILL** couldn't file a criminal complaint.

That's why it's pretty smart of me not to actually file a criminal complaint but instead send a complaint to the Attorney General of Michigan so *HE* can file a criminal complaint. You know, because only prosecutors can (generally) file criminal complaints.

Standing doesn't matter when you are petitioning your government leaders, mostly because you aren't talking about a legal process at that point.

I would think a distinguished legal scholar such as yourself would know the difference.

[prairie biker]

Okay, so then you now admit that what you stated above ("...which is exactly why I have filed a criminal complaint in the matter...") isn't true.

We'll move on to the next part, which is why your argument has no merit. Not a single one of the cases you cited states unequivocally that open primaries are unconstitutional. Let's go down them by roll:

NAACP v. Alabama - this is a case about free association and whether or not the NAACP had to disclose their membership. NOT about primaries, although I can see why you would want this to be part of any such argument.

Gitlow v. New York - this is a landmark case that all first year law students learn because in it the USSC decided that the Bill of Rights applied not just to the Federal Government, but to the states as well. NOTHING to do with primaries here either, but again, a useful tool.

Tashjian v. Republican Party of Connecticut - I'm really not sure where you're going with this. The Court struck down Connecticut's statute that closed their primary system. The decision of the Court was that state parties could make their own rules about who to let participate in the primary. In effect, they mandated an open primary.

Miller v. Brown - while not a USSC decision (4th Circuit Court of Appeals) it still has some merit as it follows the exact same logic as that of Tashjian - that a party can freely associate with those whom it chooses. However in this case the Court chose to close the primary system instead of open it, because that is what the party wanted. They didn't hold that all open primaries are unconstitutional, simply that Virginia's was because it went against the wishes of the party.

What you've done here John, is show that political parties have a protected right of free association, not that open primaries are unconstitutional. If you had gone the extra mile to show that Michigan's Republican Party wished to exclude potential raiders from the primary, you might have a legitimate argument. But, until then .....

[John Bambenek]

Ok, in my column I wasn't technically accurate, fine. That's a far cry from not true.

Political parties have free association, exactly... which means they have freedom to "not associate" and freedom to do their own leadership elections without outsiders interfereing... In theory, parties could open up of their own accord, but forcing by law is unconstitutional... so fine, to be strictly technical, a legally-imposed open primary is unconstitutional which is exactly what you came up with. Thanks for doing the footwork.