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Law Bloggers Take Both Sides of Ohio Voter Fraud Debate

Depending upon your political views, conservative radio talk show host Rush Limbaugh's Operation Chaos campaign, exhorting Republicans to switch sides and vote for Hillary Clinton in the Democratic primaries to prolong the race, is either smart strategy or smarmy politics.  But is it illegal?  That's the question that two top law bloggers, Talk Left's Jeralyn Merritt and Election Law Blog's Rick Hasen took up in this televised debate moderated by MSNBC's Dan Abrams.

Before we get to the videotape, here's a little bit of

background.  Once John McCain locked up the Republican nomination after Super Tuesday, Republicans no longer had reason to vote for him in later primaries.  So they began to consider other strategic ways to cast their votes.  Spurred by talk show hosts like Rush Limbaugh, many Republicans decided to switch parties and vote Clinton -- either to prolong her battle against Obama or because they believe that she is easier to beat than Obama in the general election.  The strategy worked; many believe that Republican turnout in Ohio and Texas helped propel Clinton to victory.

But at a cost: By switching sides to game the election, Republican voters may have run afoul of Ohio law, explains Ari Melber of The Nation. Ohio law requires citizens to genuinely support a political party to vote in its primary.  Moreover, they must sign an affidavit pledging, under penalty of falsification, an affiliation with the party and support of its principles.  Several Internet postings by, and newspaper interviews of, turncoat Republicans suggest that at least several engaged in bad faith, crossover voting. 

So what say the experts? Talk Left's Jeralyn Merritt acknowledged that in most cases, voter fraud might be tough to prove.  But Merritt noted that some voters boasted online (in blog posts and chat rooms) about changing sides to game the elections.  These cases, Merritt suggested could and should be actionable so as to deter turncoat politics in future elections.  Merritt also went so far as to suggest that Limbaugh "aided and abetted" in a crime by urging voters to switch sides to cause chaos.

Hasen disagreed as to Limbaugh's liability, saying that it's unlikely that Limbaugh was aware of Ohio's affidavit requirement.  Moreover, Hasen seemed to think that the issue in Ohio is a bit of a red herring, given that Ohio is the only state that requires voters to swear out an affidavit regarding party affiliation.  Hasen suggested that if Ohio is concerned about voters gaming the election, it could simply conduct closed primaries and prevent voters from switching sides on election day. 

From my perspective, those who seek to prosecute crossover voters should be careful what they wish for -- because at some point, they too, might want the ability to use a vote strategically.  Indeed, that's what many liberal voters did back in the 2000 race, when they orchestrated a "voter swap."  Essentially, voters who wanted to support Ralph Nader in a state, like Florida with a tight race between Bush and Gore could agree to "swap" their vote with someone in a Democratic-secure state, like Maryland.  A California federal court shut down a Web site designed to facilitate vote swapping, but the Ninth Circuit reversed, finding that the site did not offer to buy or sell votes and was protected by the First Amendment

Voting is, by its nature, political, so we should be careful about attacking those who use their votes strategically to promote a political agenda, if only because we don't know when we may want to do the same.

Posted by Carolyn Elefant on March 25, 2008 at 03:46 PM | Permalink | Comments (4)


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