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Blogger crystal balls: Cloudy election results, clear polling problems

Here in California, where the polls are still open, blogger crystal balls are cloudy on election returns but clear as a bell that plenty of Americans had trouble casting their ballots.

What I'm reading is disturbingly spotty -- for every good-news story ("yay, I voted and I have the sticker to prove it!") there's another disheartening enough to make me want to revoke Jimmy Carter's passport and tell him about the lust in my heart for a voting process that works for all Americans.

Case en pointe: Check out these two entries from the Electionline.org blog, where "the nation’s only non-partisan, non-advocacy website" sent monitors to different states:

The Good News

4:30p.m. - Sean Greene, Cleveland, Ohio The presiding judge at Holy Trinity Baptist Church, another 4 precinct polling place, said that the election is going wonderfully so far. They have not had problems enforcing voter ID. Most of the voters have showed driver's licences, one person brought a gas bill, and two brought passports. As passports are not an acceptable form of identification, they were requirted to show another form of ID, which they did.As of 2 p.m., 520 voters had cast ballots at the polling place.

The Bad News

2:00 p.m. Dan Seligson, East Hartford, Connecticut There has been a lot more concern about the new machines here, including a man who said he accidentally voted twice because he couldn't figure out the grid-style ballot, a woman who groused about the hackability of the electronic vote tabulator used with the precinct-count optical scan, concerns about the location of ballot questions on the right side of the page (they were at the top of the lever machine interface) and a number of voters wondering why the swtich had to happen at all. Some elderly voters said they liked the system "a lot" saying it was "easy and straight-forward."

Sigh. Voters of all political, demographic and geographic stripes are reporting trouble at the polls, whether they are voting in cities, in rural areas or via absentee ballot. Writing on her blog, Anderson@Large, Faye Anderson offers a similar take on reports rolling in from the African-American community:

"Peteey Talley, convener of the Ohio Coalition on Black Civic Participation, reported on the difference that voter education has made in Ohio. Talley said her coalition got the word out that people could vote early, which has cut down on long lines. Poll workers were less stressful because there were fewer voters.

OK, the bad news. Dr. Joe Leonard of the Black Leadership Forum and Kirk Clay of Common Cause reported on calls to the National Voter Hotline 1-866-MYVOTE1. Kirk gave a breakdown of the problems:

21% Voter Registration. In many cases, the registration forms completed at the Department of Motor Vehicles were not forwarded to local boards of elections. 13% Absentee Ballots. People don’t trust voting machines so they requested absentee ballots and are angry that they never received them. 6% Voter ID 4% Voter Verified Paper Audit Trail 4% Coercion or Intimidation

Dr. Leonard said: My greatest fear is that voter confidence will begin to wear because of distrust of our electoral system. Callers are saying, ‘I don’t know whether my vote will be counted.' "

I didn't even get a chance to read about it this morning before I heard about it in person, when I walked into the Web 2.0 conference today and sat down next to Jessica Hardwick. She relayed a story that Elisa Camahort posted for her:

"I take my right to vote very seriously, so I was quite dismayed when I received my sample ballot in spanish," Jessica told Elisa. "I called the Registrar of Voters and after navigating the somewhat confusing voicemail prompts, I reached a human. She explained that sometime in the last year a postcard was mailed requesting language preferences for sample ballots, if no response was received the default was Spanish. I was taken aback to learn that the default was a language other than the offical language, but requested a new ballot in english, stating the urgency as I would be away from my polling place and I needed to cast an absentee vote. A week later, I had still not received a ballot so I requested another, and 5 days after that I logged yet another request. Now, on election day, I am 60 miles from my polling place, and won't be home until well after the polls close, I never received a new ballot in english, and I will not be able to participate in today's election. In short, because of bureaucracy, I was denied my legal right to vote."

Ooof. Liz Henry helpfully recommends above that Jessica obtain a translator, but given the size of California's absentee ballots this year, it would be challenge. In case any of you non-Californians doubt me, check out the Proposition Song recommended by Chris Nolan, on her network homepage in honor of California's "really long, almost incomprehensible election ballots":

Nolan then gets straight to forcing her political bloggers to predict the outcome of Election '06 and gets -- a dead heat. She herself predicts that Republicans keep the House and lose the Senate: "House stays Republican by 8 seats (226 Republicans, 209 Democrats). Senate goes Democratic by 2. 50 Dems, 48 Republicans and 1 Independent. Sen. Joe Lieberman gets sweet revenge."

Until elections are verified and challenges swept away, I'm still hard-pressed, post Election 2000, to even link any results. I'm still focused on process -- so here's a huge curtsey in the direction of Mediagirl, who above has offered up my favorite quote of Election 2006 thus far:

"I don't mean to be a tinfoil hat Cassandra. But it's our vote, and as imperfect as politics are, the least we can do is make sure that the jokers who are elected are the real winners of the vote." - Mediagirl, commenting on BlogHer about why she chose to vote today via paper ballot

I say give this woman a tinfoil tiara.

If you're braver than I am and willing to watch the election results, here are some links:

From the left: The Huffington Post DailyKos From the right: Pajamas Media Memeorandum From the media: Washington Post USA Today
Cross-posted from BlogHer

If Bill O'Reilly has accessed medical records for Kansas women and girls, someone broke the law

Have women and girls in Wichita and Overland Park, Kansas, and their private medical records become pawns in the state attorney general election?

In this weekend's video from the Bill O'Reilly show on Fox News, called "Tiller the Baby Killer Part 2," Mr. O'Reilly tells Kansas Attorney General Phil Kline that Mr. O'Reilly has accessed medical records for 90 women and girls in the Wichita and Overland Park areas of Kansas:

Bill O'Reilly: "Our information says that on almost every medical sheet - obviously we have a source inside here - it says depression [as the reason for the abortion]. So I don't know if you have seen this information or what..."

Here's the problem with Mr. O'Reilly's statement: He states that he has either access to the records or access to someone who is telling him the contents of these medical records--medical records that were released into the custody of Mr. Kline, who has been charged by the Kansas Supreme Court with protecting their privacy. The privacy of these 90 women and girls who live in the Wichita and Overland Park areas and their medical records is exactly the reason the Kansas Supreme Court initially barred Mr. Kline -- barred the state attorney general -- from accessing these records from February to October of this year.

Some backstory: Mr. Kline (who is against legal abortion) said he wanted the records to "investigate potential violations of state restrictions on abortion and suspected rapes of children" that the clinics weren't reporting, according to this ABCNews story. Mr. Kline also said at the time that the patients' names were not of interest to him, saying "They are under no criminal liability or investigation. Their privacy will be protected." When the records were finally released to Mr. Kline last month, the names had been eliminated by the court (they were "redacted" or crossed out in the documents).

I see in today's Kansas City Star that Mr. Kline denies that he or anyone on his staff was the "source inside" that Bill O'Reilly said gave him information he talked about on last night's show. Mr. O'Reilly is not a journalist - he's a commentator who has a television show where he discusses his opinions, much like Rush Limbaugh.

In that context, it's not clear yet whether we're dealing here with Mr. O'Reilly's inflammatory approach to questions or whether someone has actually "broken state or federal laws by divulging patient information or whether O'Reilly or his staff had viewed any records themselves" as a Gainesville.com article reports. Mr. O'Reilly has yet to respond to questions by reporters.

The consequences for Attorney General Kline and his office would be disastrous if an investigation reflected that he or a member of his staff leaked the information to Mr. O'Reilly and his television show. Two words come to mind: disbarment and impeachment. Because the Kansas Supreme Court has already made it clear that Kline's first duty -- and that of the district court judge overseeing this investigation -- is to protect the privacy of the citizens whose records he has.

From a campaign horserace perspective, I am quite surprised that in such a close election, with the Kansas GOP undergoing a divisive conflict between fiscal and social conservatives, Mr. Kline chose to appear on a show by Mr. O'Reilly -- commentator famous for his socially conservative views, especially his belief that abortion should be illegal. (For more on Kansas, I recommend "Kansas Republicans evolve -- into Democrats: A popular incumbent governor persuades social moderates alienated by fights over abortion and Darwin to quit the GOP and run for office as Democrats" by Nadia Pflaum on Salon. The commercial's short and the article's worth it.)

Kansas' state-wide cultural divide is why Mr. Kline's is facing a serious challenge from Democrat Paul Morrison, who has made AG Kline's investigation into abortion clinic records a primary focus of the campaign months ago. The Lawrence Journal-World reported Sept. 6 that Morrison said "if elected attorney general he would end an investigation into two abortion clinics and instead commit the office’s resources to other uses, such as prosecuting domestic violence."

Will getting free commercial air-time on a Fox News show just days before the election backfire on Mr. Kline? It really depends whether Kansans agree with BlogHer's lefty political commentator Morra Aarons that this is a frightening violation of their privacy and that Mr. Kline's approach is "anti-woman". Click on that last link to join the conversation at BlogHer or I welcome your comments below.

Thanks.

Cross-posted from BlogHer.

"When a coalition includes ninjas, anything is possible..."

That headline belongs to Laura Scott (pingVision, rare pattern), who has done a terrific job covering the Internet Freedom and Nondiscrimination Act of 2006. Here's her lede:

"When a coalition includes ninjas, anything is possible

"It's not very often that you see MoveOn.org, the Christian Coalition, the Service Employees International Union (SEIU), the Gun Owners of America, the U.S. Conference of Catholic Bishops, the American Library Association, and Craig Newmark of Craigslist on the same side of the political fences. (Where's the ninja? Read on....)"

For anyone who missed Laura's previous posts on this topic, check out:

Because the phrase "net neutrality" doesn't blast off the screen

"Net Neutrality" under siege

I love how Ben Scott nails the central issue. Looks like he and Moby have done their part. And, to your point, it even looks as though the House may do the right thing. But as Public Knowledge notes at the end of that link, "It’s a little early to tell what will happen in the House now. In the past, when Judiciary and Commerce have passed separate bills, the Rules Committee got the unenviable task of figuring out how to deal with the competing interests."

If you care about this issue, here's a great place to email your representatives.

I also have to thank Laura for linking my 10-year-old's fave ninja site. This guy kills me. I'll be the one at BlogHer in a pair of black pyjamas, karate-chopping my way toward the drinks with the little umbrellas...

Diversity among legal bloggers?

Women make a strong showing in the legal blogging world, as Monica Bay and I (wearing my Inside Opinions: Legal Blogs hat) said on an audiocast aired by the Legal Talk Network this morning. If you listen in, you'll also hear that we discussed a number of familiar issues--albeit all too briefly--that I believe affect women attorneys and attorneys of color. Monica writes:

"You might be surprised that Lisa...and I both agreed that there are plenty o' women out there in the blawgosphere -- But you probably won't be surprised that we both feel an important issue is that mainstream media tend to ignore us and focus on the white males when citing our commentaries. (Lisa points to the coverage of Harriet Mier's nomination to the Supremes.)" [Here's the story by Ari Shapiro I mentioned - LS]

Hosts Bob Ambrogi and J. Craig Williams also interviewed Attorney Sean Carter, who blogs Lawpsided. Carter is a smart, funny man -- who took it well when I disagreed with him that the blogosphere is colorblind. I also went out on a limb and shared the very specific, private feedback I've gotten from some women attorneys who tried to balance the partner track, motherhood and blogging--and blogging lost. For the record, I've also spoken with two men who head up legal blogs who have tried to recruit women attorneys to blog with them and haven't had much success. Email me if you're interested.

During the interview, the opportunity arose to mention a number of legal BlogHers, including Denise Howell and Cathy Kirkman, so I took it. Monica added Carolyn Elefant's name. I also recommended an exciting new entry in the legal blogging world, Blackprof, featuring professors Dorothy Roberts, Sherrilyn Ifill, Adrien Wing and Tracey Meares. (Hrmmm, given the conversational turn toward private practice, I didn't mention BlogHer's other academic blawggers, Lauren Gelman and Wendy Seltzer. Did I miss anyone else?)

Kudos to Williams and Ambrogi for investing air-time on the topic of diversity and blawgging. At the end of the interview, Williams offers to review and consider linking anyone who write to him here. I urge you take him up on it! And, as always, your thoughts are valuable -- I welcome the opportunity to continue the discussion here.

Chief Justice-in-waiting John Roberts

For the record, here's a selection of my recent Law.com blog posts about the nomination and approval of John Roberts as the 17th Chief Justice of the United States Supreme Court. I'll add to this list as appropriate. The most recent post is listed first:

• Updated 9/29:
  • John Roberts is Chief Justice; Nay votes mirror Rehnquist's
  • In the cross-hairs: Legal abortion
  • Nominee number two? Meet Maureen Mahoney
• Updated 9/22: Roberts' lucky thirteen: Nomination goes to Senate floor
• Updated 9/21: Supreme Buzz: Senate Committee votes tomorrow
• A Supreme challenge: Filling Sandra Day O'Connor's seat
• Senate Dems to Roberts: We can handle a William H., Jr. It's Antonin and Clarence who keep us up nights ...
• "I think I have been more forthcoming than any of the other nominees"
• Supremely hilarious
• Live bloggers to watch
• An "acerbic" pen...who really thought that way?
• Roberts and Youngstown
• Roberts and the "super-duper precedent," Roe v. Wade
• Bashman on Roberts: "He's masterfully evasive"
• The "umpire" is in? John Roberts' opening remarks to Senate
• Just in time for Roberts' Senate appearance: Ohio teens, adult women have new abortion restrictions
• Nominee #2: Same names, different day
• Roberts nomination upgrade: Chief-justice-in-waiting

Nancy (dis)Grace?

Note: I just posted this comment at Legal Blog Watch. All comments welcome there.

Why is Nancy Grace still on CourtTV and CNN, given her record?

"Can you imagine letting this wounded duck back into the well of a court while a jury is in the room?" asks Norm Pattis, Law.com blogger, in a post about Monday's ruling by the 11th U.S. Circuit Court of Appeals on the conduct of CourtTV commentator and anchor Nancy Grace.

I think -- as journalist and a blogger -- that Pattis has sketched a strong case for Grace's resignation, or for CourtTV and CNN to remove Grace from the air as a public service to viewers, although Pattis doesn't think it would ever happen:

"Will this latest ruling affect her credibility as a television commentator? Of course not. The public doesn't read appellate decisions. The public only knows what the camera exposes," Pattis writes.

Here I will piggyback on Pattis' perspective: I think Monday's decision by the 11th U.S. Circuit Court of Appeals has negatively affected Nancy Grace's credibility as a legal commentator and I think its the responsibility of CNN and CourtTV to either disclose these decisions to the audience and/or take action.

Here's why: On Monday, Grace was admonished for the third time for her conduct as a prosecutor in Georgia, this time by the 11th Circuit. The court, however, still "upheld a triple murder conviction won by Grace, explaining that her actions didn't change the result of the trial." Here's an excerpt from the full story by John Ringell of the Fulton County Daily Report:

"The three-judge panel on Monday criticized Grace for not following her obligations to disclose to the defendant's lawyer information about other possible suspects. The 11th Circuit also agreed with a magistrate who found it hard to believe that Grace did not knowingly use a detective's false testimony that there were no other suspects ... Grace on Tuesday denied hiding that other people might have been involved with the crime, noting one of her witnesses said so in open court ..."

In his post on Crime & Federalism, Pattis details each appellate court admonishment of Grace, as a public record of her misconduct:

"Grace's conduct as a prosecutor has gleaned the following commentary by reviewing courts. She has "demonstrated disregard of the notions of due process and fairness;" her conduct was "inexcusable," wrote the Georgia Supreme Court in Carr v. State, 267 Ga. 701 (1997).

"Her closing argument in another case "exceeded the wide latitude" afforded counsel. She argued the heinousness of drug-related murders and serial rape in a heroin trafficking conviction. Bell v. State, 263 Ga. 776 (1994).

"And most recently, she "played fast and loose with her disclosure obligations" as regards exculpatory evidence, a third court found in a habeas case. Stephens v. Hall, (N.D.Ga. Sept. 11, 2003)"

Today, Grace is no longer in Georgia courtrooms. But she is in many American living rooms, as the host of "Nancy Grace" on CNN's Headline News, as well as on CourtTV. The question is whether her conduct and credibility as a lawyer impinges upon her credibility as a legal commentator -- suspect in my book for some time.

Should she still be there? Comments are open on Legal Blog Watch.

Related posts:

• The Volokh Conspiracy/Orin Kerr: Prosecutorial conduct by Nancy Grace?
• How Appealing/Howard Bashman: Linked here.
• TalkLeft: The Presumption of Guilt Never Rests

Publisher v. author: Arguing the legacy of Justice Blackmun

Via Legal Blog Watch 4.19.05: While I could easily have written the headline "Exceptional periodical's internal bloodletting boils out onto Web site," I decided instead to widen the piece to incorporate the insights of Law.com bloggers and reporters. While I respect the Legal Affairs editors' decision to print the piece despite strong internal disagreement over its accuracy (which I cannot imagine was a surprise), I am also impressed by one former Blackmun clerk's data: If it is true that Garrow only examined 1.5 percent of the cases, or only five percent of the cases and still didn't interview Blackmun's clerks or others intimately involved with the court at that time, he may have irrevocably harmed his case. Decide for your self--and thanks in advance for posting any comments there:

• Arguing the legacy of Justice Blackmun

The legacy of late Supreme Court Justice Harry Blackmun is undergoing serious debate, in the wake of David Garrow's article in Legal Affairs magazine -- and the magazine chairman's note of rebuttal to the article's content.

Garrow's piece is "fair, insightful and scathing," in the opinion of Volokh Conspirator Jim Lindgren, who recently wrote an op-ed in The Wall Street Journal advocating term limits for Supreme Court Justices. "It appears that Blackmun lacked the talent to serve on the Court, deferring to clerks much brighter than he was to an extent that is unacceptable."

Garrow's biggest critic, however, appears to be Legal Affairs magazine's own chairman, Seth Waxman. The site has posted Waxman's open response to the editors, in which he calls the issue a "jarring anomaly" and says he is left "saddened, that this issue of Legal Affairs departs from its worthwhile mission." Why? Waxman writes,

"One would barely know from this one-sided treatment what a recently published excerpt from Linda Greenhouse's forthcoming study of the Blackmun papers, Becoming Justice Blackmun, reveals: that while Justice Blackmun (like others, one would hope) encouraged his law clerks to write freely and forcefully within the confines of his chambers, he often rejected their recommendations and indeed composed his own analytic memos for each of the several thousand cases in which he participated over a 24-year tenure."

Waxman's letter is followed on the same Web page by a rebuttal to Garrow's piece written by former Blackmun clerk William Alden McDaniel Jr., who lays out some numbers about Garrow's sample that are important if they are accurate. McDaniel writes,

"Justice Blackmun wrote 835 opinions while serving on the court: 313 majority opinions, 238 concurrences, and 284 dissents. Mr. Garrow examines barely 12 of those opinions, less than 1.5 percent. Based on this meager sample, Mr. Garrow uses his purblind analysis to trump up a charge that Justice Blackmun committed a "scandalous abdication of judicial responsibility."

Legal Times' Tony Mauro yesterday quoted Legal Affairs editor and president Lincoln Caplan as saying he was satisfied that the article was fair and accurate, that while "'it would have been acceptable and sensible to enhance the archival work' with views of the clerks, but not required."  Elsewhere in the article, Mauro quotes a number of Blackmun clerks who echo their colleague McDaniel's criticisms. Mauro writes:

"[Randall] Bezanson, like others interviewed, said Garrow's interpretation might have been different if he had sought the perspectives of the clerks whose memos he cited. Asked about that point, Garrow said his goal in the article was 'to put the documentary record out there without people doing a lot of backing and filling.'"

Volokh Conspirator David Bernstein pooh-poohs the value of interviewing clerks in "Obsequious Former Supreme Court Clerks: ... Have you ever seen a story about a Justice where the clerks are portrayed as anything but adoring? Blogfather Eugene Volokh, however, disagrees. Holding forth on the fundamental motivations of loyalty, professor V. writes, " such loyalty doesn't deserve the more or less unalloyed condemnation that the term "obsequiousness" suggests."

plus

Barbie v. Bratz: Federal court prepares to doll up

Help save the endangered gizmos!

Will BigLaw start marketing fee flexibility?

How one law firm blew a PR oppty to get buzz

Beyond the buzz: Knowledge Management

"No 'Constitution in exile'?" Pattis disagrees with Volokh Conspirators

Apple v. Does: Bloggers file amicus brief

Via Legal Blog Watch 4.12.05

• Apple v. Does: Bloggers file amicus brief

Eugene Volokh has announced that  "The (Mostly) Bloggers' Amicus Brief in the Apple v. Bloggers Case is here." He writes:

"The amici on whose behalf the brief is filed include Jack Balkin, Michael Froomkin, Joshua Micah Marshall, Markos Moulitsas (the Daily Kos), Glenn Harlan Reynolds (InstaPundit), and me. Many thanks to Lauren Gelman, who wrote the brief. How Appealing posts about this, and links to an easy-to-read [complete] list of the amici."

How to blog anonymously and not get fired

Via Legal Blog Watch 4.11.05:

• How to blog anonymously and not get fired

  Monday rhymes with yuck? Wondering how to pursue a little therapy, blog-style, without getting canned? Bob Ambrogi and The Volokh Conspiracy's Orin Kerr recently recommended the Electronic Frontier Foundation's tips on anonymous blogging. Ambrogi wrote:

  "Law firm associates (or even partners) who want to blog without risking their jobs should check out How to Blog Safely (About Work or Anything Else), a how-to guide for bloggers worried about protecting their privacy and free speech. Published by the Electronic Frontier Foundation, the guide covers basic measures people can take to keep their blogs anonymous and explores what the law says about discussing work-related issues online."

  Not that you have to start your own blog to post anonymously about work...

Jim Lindgren: How Wonkette lost her job at The Chronicle?

I just posted this piece at Legal Blog Watch--thanks in advance for posting any comments there.--LS

Jim Lindgren tells a story on The Volokh Conspiracy today about Michael Bellesiles' disgraced book, "Arming America: The Origins of a National Gun Culture" that may be new to you -- I know some details are new to me. Like the fact that Wonkette, or Ana Marie Cox, may have lost her job at The Chronicle of Higher Education because she was doing too good a job of investigating Michael Bellesiles for her then-employer. Like the fact that Bellesiles' book was cited and then un-cited in appellate law, as described by this excellent article from the Idaho Librarian.

But I'm getting ahead of myself. First, the back story. You may remember that Bellesiles eventually resigned from Emory University. After staunchly defending his book, "Arming America: The Origins of a National Gun Culture," against criticism of his research and findings, Bellesiles offered his resignation when an academic investigative committee "researched the allegations of scholarly fraud and concluded that Bellesiles was guilty of both substandard research methodology and of willfully misrepresenting specific evidence in" the book. (Quote source: The Emory Wheel. Hat-tip: Gordon Smith.)

One of Bellesiles' leading critics at the time was none other than blogger Lindgren. Working with Justin Lee Heather, he published "Counting Guns in Early America" in the William and Mary Law Review. It's a shocker -- as Lindgren later wrote for The Yale Law Journal...