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Tuesday, May 1, 2007

Election by disenfranchisement?

Posted By on 05.01.07 at 04:12 PM

Forty-ninth Ward aldermanic challenger Don Gordon has come up with a novel tactic to reverse a bitter defeat: have a judge to throw out half of the votes cast in the election and declare him the victor.

Four-term alderman Joe Moore beat Gordon by 250 votes in their contentious runoff on April 17. A week later Gordon filed a lawsuit with the Cook County Circuit Court alleging that a significant number of people had voted more than once, voted under someone else's name, or voted though they weren't registered in the proper precinct. All told, his camp counted 334 potentially fraudulent votes in 22 of the ward's 42 precincts.

Even if his allegations were true--and it would take many long and costly hearings to determine this--there's a little problem: Gordon doesn't know who these supposed "fraudulent voters" voted for. For all anyone knows they could have cast ballots for him. And according to election law specialists I've talked to, a court can't compel voters to testify as to whom they voted for--that's privileged information.

The typical way of settling such matters is through proportional reduction. That is, if the court concludes that there were, say, ten unqualified voters in a precinct where Moore got 60 percent of the vote, six votes would be deducted from Moore and four votes from Gordon. But Moore's lead is too big to be overturned by proportional reduction.

So what's Gordon's solution? He's asking the court to throw out all the ballots cast in 22 of the 23 precincts captured by Moore. "Since the fraudulent votes cast in each of these precincts permeate the results in each precinct, and since the number is unknown, and since the fraudulent votes cannot be separated from the honest votes, all the foregoing precincts should not be counted," his suit argues.

Thus, the suit maniacally declares, "the election is reversed and [Gordon] is the winner and [Moore] is the loser because Gordon will have 2,120 votes and Moore will have 1,574 votes, and Gordon will be the winner with a majority of 546 votes." Gordon asks that he be given a "certificate of election and the right to be installed in office." 

As an election tactic it's pretty much unbeatable--it's tough to lose if you can disenfranchise half the voters to rig the count in your favor. In the world of election law it's what lawyers call a hail Mary: throw any old argument in the air and hope some judge buys it. 

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