Monday, January 14, 2008

Taking Law School Classes Does Not a Lawyer Make

John Bambenek is a local blogger who tries oh-so-very-hard to be like Limbaugh, Savage, O'Reilly, and other conservative talk show hosts. John's problem is that his chosen medium is the written word, both newspaper columns and blog posts, which, as slower-paced media, allow for fact-checking. Unlike those he chooses to emulate, John is not in a position to make remarks backed up by squat and then move on to the next thing without being challenged. He tries to anyway, and what usually happens is this:

  1. John writes something that is, at first pass, clever, but is really very stupid and not based in what the rest of us call reality.
  2. Someone or some group of people call John on how specious his reasoning is.
  3. John backpedals and choses one of two options:
  • He responds, "That's not what I said/meant," when any informed observer can see otherwise.
  • He finds things that are related to what he is talking about, cites them as if they actually back him up, and claims victory.
As one might surmise, John and I have crossed pens before, on one of my favorite topics. While for that exchange he took the first option under point 3, Mr. Bambenek has gotten himself into yet another spot and gone for the second option. It seems that John, based upon his having taken a couple Law School classes, thinks himself qualified to write letters to state Attorney Generals interpreting their state's laws without making an ass out of himself.

More specifically, this bout of poor legal logic started when John announced that he had filed a complaint against Markos Moulitsas, the "Kos" of DailyKos for encouraging Democrats to take advantage of the Open Primary in Michigan and vote for Mitt Romney. The gist of John's argument is this:
Moulitsas' call could be felonious. Michigan state law clearly indicates that unqualified electors voting in elections is a felony. It also specifies that counseling or aiding someone to vote in an election they are unqualified for is also a felony. Election law clearly specifies that to vote in a party's primary, one must actually belong to that party.

Compromising the power of the vote in this country is a direct attack on the very foundation of our freedom. While much can be said about the closed primary system of which I am no fan, it is the law of the land and undermining that system for partisan gain is an invidious attempt to disenfranchise voters, and simply cannot be allowed to stand.

The parties do have free association rights which allow them the constitutional right to declare who are and are not members and, by extension, those who cannot interfere in the workings of that political organization. Republicans alone should choose Republican candidates. Democrats alone should choose Democrat candidates. The same goes for third parties.
In the comments on that post, a number of commenters bring up various arguments based on state statutes, which John then misreads or cherry-picks from to promote his own position. However, what I find most illustrative is the actual complaint he sent to the Michigan Attorney General. In it, we find the following deliciously wrong sentence:
Michigan state law 168.534 specifies who qualified electors for primary elections are, and not surprisingly, qualified electors may only vote in primaries for the party in which they are members of.
Michigan AG Mike Cox (or one of his staffers) will likely be surprised when he reads this letter, as 168.234 in fact says this:
A general primary of all political parties except as provided in sections 532 and 685 shall be held in every election precinct in this state on the Tuesday after the first Monday in August before every general November election, at which time the qualified and registered voters of each political party may vote for party candidates for the office of governor, United States senator, representative in congress, state senator, representative in the legislature, county executive, prosecuting attorney, sheriff, county clerk, county treasurer, register of deeds, county auditor, drain commissioner, public works commissioner, county road commissioner, county mine inspector, surveyor, and candidates for office in townships. A nomination for an office shall be made only if the official is to be elected at the next succeeding general November election.
Note that the wording is different - there is no limitation of electors (what MI state statute calls voters) to vote for their own party's candidates, the law only states that they may vote for party candidates. Further, this statute does not apply to Presidential primaries, as that office is omitted.

More evidence of the openness of the Michigan primary is seen in 168.575:
After the polls are opened at a primary election, any elector who is legally registered and qualified shall, before entering the booth or voting compartment, be furnished a party ballot, together with any other ballot or ballots to be voted at that primary election.
Here, too, the article "a" is used, rather than any posessive adjective, leaving an elector the legal option of choosing any party ballot, not necessarily his own.

Both Sections 534 and 575, as well as many other sections throughout the election code, make use of the phrase "registered and qualified", or variations thereof, to describe electors. This phrase is defined in section 492, which lays out the qualifications for registering as an elector:
Every person who has the following qualifications of an elector, or who will have those qualifications at the next election or primary election, shall be entitled to be registered as an elector in the township, city, or village in which he or she resides. The person shall be a citizen of the United States; not less than 18 years of age; a resident of the state for not less than 30 days; and a resident of the township, city, or village on or before the thirtieth day before the next regular or special election or primary election.
One will note that party status has nothing to do with the qualifications of an elector - so John's assertion that "qualified electors may only vote in primaries for the party in which they are members of" seems odd in that, by its inclusion, he highlights the adjective "qualified" as if it means something beyond the basic requirements for voting in the state of Michigan.

Further nails in John's argument are hammered home by Section 615c, of which subsections 1 and 2 read as:
(1) In order to vote at a presidential primary, an elector shall indicate in writing, on a form prescribed by the secretary of state, which participating political party ballot he or she wishes to vote when appearing to vote at a presidential primary. In fulfilling the requirements of this subsection, the secretary of state shall prescribe procedures intended to protect or safeguard the confidentiality of the participating political party ballot selected by an elector consistent with this section.

(2) An elector shall not be challenged at a presidential primary based upon the participating political party ballot selected by the elector. An elector may be challenged only to the extent authorized under section 727.
Not only is the elector merely stating what ballot he or she wants, but challenges to that choice are explicitly stated to be illegal. The legal bases for challenges are listed under section 727, subsection 1:
(1) An election inspector shall challenge an applicant applying for a ballot if the inspector knows or has good reason to suspect that the applicant is not a qualified and registered elector of the precinct, or if a challenge appears in connection with the applicant's name in the registration book. A registered elector of the precinct present in the polling place may challenge the right of anyone attempting to vote if the elector knows or has good reason to suspect that individual is not a registered elector in that precinct. An election inspector or other qualified challenger may challenge the right of an individual attempting to vote who has previously applied for an absent voter ballot and who on election day is claiming to have never received the absent voter ballot or to have lost or destroyed the absent voter ballot.
Your eyes do not deceive you, there is no reference to party affiliation in that statute either. Neither is there in any other election statute that I could find, though I encourage everyone to look for themselves.

At this point, it seems rather certain to a person (such as myself) doing a plain reading of these statutes that, as far as Michigan state law is concerned, Michigan's open primary is precisely that, open. Although I readily admit that open primaries are stupid, it is the choice of the people of the State of Michigan, and their elected representatives, to have such a system. While cross-over voting does violate the spirit of the primary, there is no legal barrier to it, and both parties have engaged in such activities in Michigan in the past with no legal repercussions.

This brings us to the allegation that John brings against Kos, that Markos has committed a felony by violating 168.932a, subsection c:
(c) A person who is not a qualified and registered elector shall not willfully offer to vote or attempt to vote at an election held in this state. A person shall not aid or counsel a person who is not a qualified and registered elector to vote or offer to vote at the place where the vote is given during an election.
Again, this law rests upon the definition of a "qualified and registered elector". As we saw in section 492, this merely deals with age, citizenship, and residency, with nothing to do with party status or affiliation at all. As Kos has not encouraged anyone to fraudulently vote under section 492, he has not violated section 932a.

Having demonstrated that John Bambenek is quite blatantly wrong, one wonders why he engaged in this little stunt at all. While I have no doubt that John will see fit to enlighten us as to his logic (or lack thereof), I can think of a few scenarios.
  1. John was alarmed by what he read at DailyKos, checked the MI statutes, did not read section 492, projected his own preconceptions onto the text of sections 234 and 932a, and then filed his complaint in good faith.
  2. John saw what Kos had posted, wanted to score some quick political points, read sections 234 and 932a as confirming his thoughts, did not bother to find and read section 492, and sent off his letter thinking to cause Kos some legal problems at the expense of the state of Michigan.
  3. John saw what Kos had posted, read all applicable laws including section 492, and decided to send off his letter to the Michigan Attorney General anyway and post about such on his blog in the hope of creating some bad press for DailyKos - discrediting the site and discouraging people from engaging in crossover voting.

Myself, I currently lean towards the second explanation, as it is suggested by John's consistent misreading of the law. I am open to being convinced that either of the other scenarios, or even ones I did not think of, are actually the case.

If you go John's original post, I posted a rough version of the legal analysis section post as a comment.

A major kudos goes out to the anonymous commenter on an earlier thread that pointed out this whole mess to me.

Also - brownie points go out to any/all readers of mine who can find out what John was saying when Laurel Prussing was running in the Democratic primary for Mayor of Urbana and all the local Republicans were up in arms about Prussing's people enforcing the closed primary.

UPDATE: Wow, this exploded, with the mess landing on John. Now we wait and see how toxic the fallout will be for him.


John Bambenek said...

During the Urbana Mayoral race I said, "Should have run a Republican candidate.", not sure if its in print though. But since Illinois has a substantially similar system as Michigan, the fact that there was a court case on the very question I'm raising might give you pause.

Open primaries are unconsitutitional, I pointed out where. Michigan law does make it very easy to have a pseudo-open primary system which is why I suspect the law was written as such. My complaint doesn't touch on challenging voters, but challenging Kos for counseling fraudulent votes. A vote may not be challengable on election day, that doesn't make it not fraudulent. Using that to derail me is making a different case and criticizing. Close, but no cigar. Though I would argue that challenging, say, the Democrat Party Chairman in picking a Republican ballot wouldn't be tossed on its face as you suggest. By the way, because something isn't explicitly allowed, doesn't make it illegal.

"challenges to that choice are explicitly stated to be illegal" Show me where, because the section doesn't say that challenges to party affiliation cannot be challenged explicitly, arguably implied (and I'd disagree), but certainly not explicit.

But in short, your analysis hinges on what can be challenged on election day... you'd have a point if I was talking about challenges. In fact, the laws I cite have nothing to do with challenges and those violations can take place even if a challenge cannot.

The Squire said...

John - I made my argument on the definition of a "qualified elector," and then outlined the permissiveness of the open primary system upon that base. The law you cite saying that Kos committed a felony rests upon that definition - which makes no mention of party affiliation at all. You have no case unless you can show that to be a "qualified elector", a term with a specific legal definition in MI, one must belong to one political party or another. Without that upon which to base your claim, you have nothing.

As for the court case, IIRC the Judge told the Urbana GOP that they had no case based upon IL law - which, I think, has rather different language compared to the permissive statutes in MI. I'll look tonight and pull the relevant laws.

As for challenges of electors based upon ballot choice being illegal, see Section 615c, subsection 2.

The Squire said...

...Or apparently I won't write more about primary elections under IL law, cos I can't find the statutes involved.

Narc said...

I am personally amused at the fact that Mr. Bambenek says over at Illinois Reason that he has seen no refutation of his argument, just rhetoric. If this blog post, quoting and analyzing the particular passages from Michigan law isn't refutation, I don't know what would be.

Rob_N said...

Narc, that'd be "over at Illinois Review"... not over at Illinois Reason. ;)

But thanks all the same.


Squire, it is spectularly stupid that Mr. Bambenek would come here and try to move the goalposts after filing a criminal complaint.

That's the great thing about the law -- it doesn't move just because some dope can't interpret it correctly.

The Squire said...

Narc: It looks like John's in denial mode now, lest his fragile ego be shattered by his realization of how wrong he was.

Rob_N: Most/all of John's publicity stunts are spectacularly stupid, as are most/all of his arguments when he manages to wander onto topics where I have some degree of competency. It's enough anecdotal evidence for me to consider it a full-time behavior.

Rob_N said...

The Squire says, "It's enough anecdotal evidence for me to consider it a full-time behavior."

...Spectacularly so.

prairie biker said...


Get this through your thick head. Open primaries ARE NOT unconstitutional. Go back and read those Supreme Court opinions you lifted from Wikipedia. In it (Tashjian, I believe it was) you will find how the justice giving the court's opinion lists how many states have open systems and how many have closed and where he says that IS NOT the issue. The issue is one of free association (1st Amendment) for the parties.

Just admit you're wrong and stop being so hard-headed about these things. You have no business trying these manuevers because you never read the rules correctly and have no clue what you are doing. Trust me, if the parties and campaign teams aren't pulling these tricks (because they at least know they won't work and have legal basis, no matter how sketchy) there is no way a pathetic little fundie blogger who spends most of his time babysitting servers in a windowless basement and playing play station is going to suddenly have the stroke of genius to determine the course of American politics for our future and make these tricks work for him.

Just. Give. It. Up.

prairie biker said...

sorry, that should say "... have NO legal basis"