Author: mopress

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“smokescreen” has been replaced by “deliberate provocation” (in paragraph 80 of the revised

petition.)]

CounterPunch

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

USA.

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

The Republican-led attempt to unseat from the Texas Legislature newly elected Democrat

Hubert Vo, will require more voter intimidation, says a source close to the Vo campaign. In order to

prove that Vo does not deserve to keep his narrowly won seat, Republican attorneys will have to produce

alleged “illegal voters” in west Houston precincts, drag them into public view, and then compel them

to testify under oath who they voted for.

“Conceptually speaking,” says our source, “asking

people who they voted for has a lot of implications. The easy part of voting is knowing that no one

will ever know who I voted for. If this assurance is violated, then people may never vote against a

powerful person again. Making people disclose their votes is the ultimate form of

intimidation.”

Intimidation before, during, and after elections is the Republican way.

It is what connects Florida 2000 to Ohio 2004, and now to the Republican-led challenge against Hubert

Vo. For this reason you may stay tuned to the Texas Civil Rights review for further updates. We will

not be intimidated out of our civil rights.

The Texas Civil Rights Review is taking an

interest in the Republican-led effort to unseat newly elected Democrat Hubert Vo. As argued in a

recent article on the “Whitewashing of Election Fraud” (see below) we see the struggle to maintain

Vo’s seat as part of a national civil rights struggle.

Despite the intensity of the

Republican challenge so far, our source reports that “things are going well–so far all the signals

are in our favor.” Yet that seems difficult to believe this week.

“From the beginning

the Texas Speaker of the House has been sending signals that he doesn’t want to proceed with this

challenge,” reports our source. “But the process keeps moving forward. How can the process keep

moving forward without the Speaker wanting to proceed?”

So why does the source think

that signals are good? For one thing, the deadline for producing a complete list of alleged illegal

voters has been set for early next week. If the Speaker were more sympathetic to the challenge, he

might be giving the anti-Vo camp more time to collect their case.

So far, the allegations

include claims that 14 people voted twice, once via mail, and then again on election day. But our

source tells us that the 14 people in question happen to live on the same block. This leads our source

to believe that a “keying error” is a more likely explanation for the double count. (Frankly, we have

to admit that we don’t know enough about the “keying” process to make an independent assessment

about this.)

Here’s the tactical schedule:

• Dec. 14

  (Tuesday): Deadline for submission to Vo campaign of complete list of alleged “illegal

  voters.”

• Dec. 15 (Wednesday): Conference call between

  parties.

• Early January: Completion of discovery

  phase.

• Early February: Formal hearing on election contest in Texas

  legislature.

webposted Dec. 11–

gm

(SAN ANTONIO, TEXAS) MALDEF (the Mexican American Legal Defense and Educational Fund)

welcomed the court order released this afternoon by Travis County Judge John K. Dietz following his

declaration that the Texas school finance system is inadequate and inefficient.

Judge Dietz

granted final judgment in favor of MALDEF’s clients and found specifically that the current school

finance system violates the Texas Constitution because property-poor districts do not have

substantially equal access to facilities funding and do not receive sufficient funding to educate their

students, particularly when taking into account the larger proportion of limited English proficient and

low-income students in districts like the Edgewood Intervenors.

Because Texas continues

to rely primarily on local property taxes to fund public schools, and the property wealth of school

districts varies widely around the State, Judge Dietz concluded that the State must equalize school

funding with provisions similar to those in place today.

MALDEF celebrated this victory

for fair school funding with its clients, known as the Edgewood Intervenors in this case. The Edgewood

Intervenors are twenty-two property-poor and predominantly Latino school districts that joined this

latest round of litigation to remedy the continued inequality in school funding and ensure that they

would have the funds necessary to educate their students. Many of these districts were plaintiffs in

the original Edgewood school finance cases that led to the current funding system.

The

latest lawsuit, West Orange-Cove CISD v. Neeley, (“Edgewood V”) was brought by both property-rich

districts and property-poor districts, with neither party calling for the end of the equalization

measures known as “Robin Hood.” Dietz, the Chief Judge of the District Court in Travis County, issued

655 findings of fact and 24 conclusions of law based upon the evidence in a five week trial held in

August and September of this year.

“Today’s ruling supports the basic notion that every

schoolchild in Texas deserves a fighting chance and that educational opportunity depends on the fair

funding of schools,” said MALDEF President and General Counsel Ann Marie Tallman.

MALDEF Regional Counsel Nina Perales added: “Property-poor school districts have continued

to suffer from underfunding, even after our victories in the Edgewood cases. Judge Dietz’s ruling

recognizes the persistent inequality in school finance and sends a strong message to the Texas

Legislature that Latino students deserve better resources and a meaningful opportunity to learn.”

David Hinojosa, MALDEF Staff Attorney and co-lead Counsel for the Edgewood Intervenors

commented further: “Judge Dietz recognizes that our superintendents are doing all they can with the

resources they have, but that in the end, money does matter. The State of Texas erred by raising

academic standards for all Texas children yet only providing funding for a less-than-adequate

education.”

A key question in the school funding trial revolved around the definition of an

adequate education, with state’s attorneys arguing that minimal funds could only be demanded for a

narrow range of instructional purposes. In the following Conclusion of Law, Texas District Judge John

Dietz says that education is a more expansive concept:

(COL 10) This Court rejects

the notion that the general diffusion of knowledge requires expenditures only in the instructional

program described in Section 39.023 of the Education Code and that other expenditures are merely

“extraneous.” A district cannot provide a constitutionally adequate education without a sufficient

support network, which may include, but is not limited to, (a) adequate and well-maintained facilities;

(b) remedial and literacy programs to help Limited English proficiency, economically disadvantaged, and

other special needs students, (c) sufficient numbers of qualified teachers; (d) small class sizes, (e)

preschool programs to give a “head start” to special needs students; (f) dropout prevention programs;

(g) extracurricular activities to keep students in school and assist them with getting into colleges;

(h) nurses to keep students healthy; (i) security guards in certain schools to keep students safe; and

(j) guidance counselors to help students with course selection and with planning for college or

careers.

More key excerpts at “Read More” below.

What

does it mean to have enough local money or “meaningful discretion” in a school budget? For Judge

Dietz, it means that local districts can dedicate ten percent of their available tax revenues toward

“enrichment.”

(COL 14) The Texas Supreme Court has held that a district must have

“meaningful discretion” in setting its property tax rates for a local ad valorem tax to remain

constitutional under Article VIII, section 1-e of the Texas Constitution. The Court concludes that a

district has meaningful discretion only when it can devote, at a minimum, 10% of its taxing capacity,

or approximately 15 cents of tax effort to raise additional revenues to enrich its programs beyond what

is required to provide a “general diffusion of knowledge” and comply with state and federal

mandates.

Adding together the broad definition of education and the ten percent

test for “enrichment” funding, Judge Dietz rules that schools cannot systematically raise enough

money under the tax limit imposed by the state of $1.50 per $100 of taxable

property.

(COL 17) Because the West Orange Cove Plaintiffs have also

established a systemic/statewide violation, this Court declares that the Texas school finance system is

presently in violation of Article VIII, section 1-e of the Texas Constitution

(COL 20)

Because the West Orange Cove Plaintiffs have established that the school finance system fails to

recognize or cover the costs of meeting the constitutional mandate of adequacy, or the Legislature’s

statutory definition of a comprehensive adequate program, this Court declares that the State’s school

finance system is financially inefficient, inadequate and unsuitable, in violation of Article VII,

section 1 of the Texas Constitution.

“Robin Hood”

lives.

(COL 22) The disparate property values among Texas public school

districts, coupled with the State’s continued reliance on local property taxes for the majority of

funding for the Texas school finance system, requires the State to maintain equalization provisions

similar to those at present, in order to ensure an efficient system among public free

schools.

In fact “Robin Hood” needs to do a better job equalizing funds,

especially to pay for facilities.

(COL 23) The prohibition on the use of Tier 2

funds for facilities, combined with the Legislature’s failure to make the IFA and/or EDA programs

statutorily permanent and the Legislature’s inadequate funding of the IFA program, means that property

-poor districts do not have substantially equal access to facilities funding in violation of the

efficiency and suitability provisions of article VII § 1 of the Texas

Constitution.

And the state needs to increase its financial support for districts

that serve bilingual, impoverished, and other special needs students.

(COL 24)

The current funding capacity of the Texas school finance system fails to provide Intervenor districts

with sufficient access to revenue to provide for a general diffusion of knowledge to their students, in

violation of the efficiency, suitability and adequacy provisions of Article VII § 1 of the Texas

Constitution, particularly when taking into account (1) the inadequacy of the weight adjustments for

bilingual, economically disadvantaged, and other special needs students and (2) the greater burden

borne by Intervenor districts of the inadequacy of those weights, given their student populations,

which are disproportionately LEP and economically disadvantaged.

The Legislature

has until Oct. 1, 2005 to fix the system.

1. In addition to the declaratory

relief described … above, this Court hereby enjoins the State Defendants from giving any force and

effect to the sections of the Education Code relating to the financing of public school education

(Chapters 41 and 42 of the Education Code) and from distributing any money under the current Texas

school financing system until the constitutional violations are remedied. The effect of this

injunction shall be stayed until October 1, 2005, in order to give the Legislature a reasonable

opportunity to cure the constitutional deficiencies in the finance system before the foregoing

prohibitions take effect.

Posted at IndyMedia Houston / Austin / North Texas
/ LA / NYC