Eighty-Sixing Civil Rights?

Reflections on a “Smokescreen”

By Greg Moses

[Note: In a petition filed on Dec. 17, plaintiffs revised the language. The term

“smokescreen” has been replaced by “deliberate provocation” (in paragraph 80 of the revised



Legal papers

filed Monday in Ohio (and circulated quickly over the internet) allege that civil rights violations

were deliberately used as “smokescreen” by Republican strategists who hoped to distract attention away

from tactics of “traditional vote fraud” such as ballot stuffing. At first glance, this allegation

appears to encourage a concept of Ohio vote fraud whitewashed of civil rights abuses, but a more

careful reading is in order.

A more careful reading of the legal language suggests that

civil rights abuses were important tactics for Republican victory, but their effects could not be

precisely counted in advance. So in order to “control absolutely the outcome of the election,”

Republican strategists also needed to engage in systematic vote fraud. In the end, alleged vote fraud

guaranteed success of vote manipulations begun by alleged civil rights abuses, denying “minority”

voters their preference for a Democratic President. In paragraph 86 of the petition, plaintiffs

introduce their “smokescreen” charge:

“Unconstitutional discrimination served as a

smokescreen to distract attention from vote fraud needed to control absolutely the outcome of the

election. The discrimination served to decrease the vote for candidates Kerry and Connally by an amount

which could not be known precisely in advance. The vote fraud served to control precisely in certain

critical counties the certified vote for candidates Bush, Cheney, Kerry, Moyer, and Connally by amounts

which (when taken in the aggregate) could be known in advance and which would be sufficient to control

the outcome of the election.”

In Monday’s legal challenge to the Ohio election, Moss v.

Bush, lawyers mirrored the logical priorities set by Republican strategists, focusing first on the

precision of vote fraud allegations, then (in paragraph 104) turning attention to alleged civil rights

abuses, which would be more difficult to quantify in terms of votes gained or lost. But we should be

careful to go no further in our reflection of Republican “smokescreen” tactics. We should never allow

ourselves to treat civil rights abuses as smokescreens, so long as the abuses are real.

The remarkable legal petition filed on behalf of Ohio plaintiffs relies heavily on exit poll

data to make its case for election fraud. The exit polls demonstrate that the certified results in

Ohio defied the will of “minority” voters. According to CNN’s version of the Ohio results, Kerry was

the preferred candidate for 84 percent of African American voters and 65 percent of Latinos. White

voters split in Bush’s favor, 56 percent to 44. On the basis of these facts, attorneys might well have

argued that vote fraud served as a precise mechanism for denying civil rights in force and fact. Where

vote fraud serves to disenfranchise the will of civil rights classes, doesn’t vote fraud itself

contribute to “unconstitutional discrimination”?

While the “smokescreen” language in

paragraph 86 seems to collude with Republican strategists in taking civil rights abuse as something

apart from and less serious than vote fraud—something to be “seen through”–a more careful reading of

the petition suggests that lawyers for the plaintiff were not themselves treating civil rights abuses

as mere “smokescreen.” In fact, if the plaintiffs are correct in their allegations, then the will of

voters of color (in Ohio and elsewhere) was denied by a combination of precise and imprecise means.

While mechanisms of discrimination and intimidation may be imprecise (call them brutish if you will)

and difficult to remedy, vote fraud is more immediately calculable and easier to appeal.

Let the attorneys argue, if they want to, that a challenge made on grounds of civil rights

or “unconstitutional discrimination” simply would not be treated with the urgency or seriousness as

charges of vote fraud. Fine. Let the attorneys tell us that civil rights violations in the election

process have limited remedies under the law as we know it. Fine. Such explanations would help to

restore the centrality of civil rights as an aspiration of the coalition that just had their election

stolen away.

The “smokescreen” language in the legal petition makes sense only if

Republican strategists intended the spectacle of civil rights abuse to stand in public perception as

the common sense account of everything that went wrong. But massive violations of civil rights and

voter rights cannot be written off as smokescreens only, unless racism is the ultimate reality that

we’re still trying to hide.

If the Ohio legal petition is correct in its allegations,

then it portrays a process of deliberate manipulation that begins and ends with overt attempts to

frustrate the will of classes of voters protected by civil rights. The ultimate remedy to such

assaults should come in the form of a politically coherent coalition of civil rights voters, including

white voters, who are resolved to win back the eroding high ground of a civil rights democracy in the


Revised Dec. 15, 10:00 a.m. CST

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