Three Cheers for Dirty Tricks

The remarkable thing about Election 2006 is just how respectable it was.

At the end of every Oscar night, the man clutching the "best director" and "best picture" statues experiences a shuddering moment of regret. Yes, he won. Yes, he's notched a place in the history books alongside Kevin Costner and The English Patient. But unless he's James Cameron or Peter Jackson, he's won small. He hasn't broken any records, and his mind wanders: What if a few votes changed in the Best Actor's race? What if that Michel Gondry movie was nominated for "adapted" instead of "original screenplay"? Could I have won even more for a sweep?

That internal monologue is playing out in the crania of Democrats across the country, from newly-minted leaders like Dianne Feinstein to bloggers to journalists like Rick Perlstein. Just as Karl Rove argues that dumb luck pushed the Democrats over the finish line in a few dozen seats, Democrats argue that a dozen or more seats were within their grasp until the Republican Fraud Machine got grinding on all cylinders. Perlstein, author of the peerless conservative moment history Before the Storm, summed up the mood:

Republicans cheat. To what extend did their cheating on Election Day keep the will of the people from being fully registered? Just how close did it come to keeping the new majority from arriving? And what does the kind of cheating we saw Tuesday -- and its antecedents in the past and its likely echoes in the future -- portend for the project of turning liberalism once again into the dominant force in American politics?

All of these questions have answers – "to no extent," "not very close," and "portends pretty well, actually." Of all the dirty tricks that the parties (mostly Democrats) worried would steal the 2006 votes – electronic voting machines, sleazy attack ads, election day chicanery – only automated "robocalls" that harassed voters look like they might have changed a few outcomes. But more about those later. Those other terrifying problems, far from wrecking the campaign, actually represented some progress in the cleanest and most representative election the hyperpower's held in a very long time.

"Sleazy attacks."

Democrats, far more than Republicans, started the election cycle preemptively sweating the negative ads that the GOP would unleash. The consensus is that negative attacks from the Swift Boat Veterans for Truth threw the 2004 Kerry campaign so badly off its game that the candidate never recovered. (Kerry agrees; witness the insane overreaction to criticism of his "botched joke.") So bloggers watched the airwaves like hawks, crying havoc when they spotted Swift Boat backer Bob Perry spraining his check-writing hand for anti-Democrat TV ads. They blew an army of whistles when Republicans launched ads alleging Democrats would cripple US intelligence, bill taxpayers for phone sex, and get it on with Playboy playmates.

Surprise: Except for the Playboy spot, the ads fell flat. Some, like attacks on John Murtha in his rural Pennsylvania district, or attacks on Allan Mollohan in his nearby book of West Virginia, ended up backfiring – the huge dumps of money by out-of-state interlopers were so obvious as to rub voters the wrong way. As David Mark noted in his November 2006 Reason feature on negative campaigning, "In this age of instantaneous information via blogs, round-the-clock cable coverage, and other media, political attacks can be swiftly countered."

Even attacks that happened too close to the election to be rebutted, like the Maryland Republican Party's bogus election day flyers, were laughed out of the voting booth. Democrats seethed with complaints over pamphlets, handed out in black areas, that marked Republican Gov. Robert Ehrlich and Lt. Gov Michael Steele (a U.S. Senate candidate) as "Democrats." But voters who took the flyers entered a voting booth to find both men bearing the scarlet (R) next to their names. Black voters gritted their teeth and voted against the Republican ticket in a landslide.

"Faulty electronic voting."
The panic over Diebold, WinVote and other ATM-style voting machines that started in 2004 didn't end with the Democratic victory. California just elected a secretary of state who campaigned hard against Diebold; she's represented by a Sen. Dianne Feinstein who will "use her position [in the new Democratic majority] to examine reported problems with electronic voting machines."

She'll probably find out that electronic voting, paperless or spitting out reams of voting tickets, has massively cut down on lost votes and dirty tricks. And the lost votes and tricks of the paper voting era, especially the last decade or so of it, disproportionately smacked down the Democrats. Look at Florida 2000 – yes, just this one more time – where literally tens of thousands of votes were lost or miscounted simply because of voter error. Democrats could hardly count the votes they lost by telling voters "to vote on every page." (When the voters were transported from GOTV buses to polling stations they discovered that the vote for president extended to two pages, and punched a name on both, invalidating their votes.) As the New York Times reported, "More than 20 percent of the votes cast in predominantly African- American precincts were tossed out, nearly triple the majority white precincts. In two largely African-American precincts, nearly one-third of the ballots were invalidated."

Democrats sidestepped that nightmare in 2006. Electronic machines, with their cumbersome write-in technology, practically gift-wrapped Tom DeLay's old House seat for them. And the mostly electronic balloting of Virginia helped prevent last-minute fraud while speeding up the count of the vote, shorting out a recount that could have left the balance of the Senate hanging for months. All this from machines Democrats feared Republicans would rig and DNC Chairman Howard Dean had warned "are not reliable and … shouldn't be used."

"Harassing calls."

For an example of how the most heinous of the election day tricks still couldn't boost a losing campaign, look to Raj Bhakta. The (to use the nicest possible term) self-assured House candidate – best remembered for renting an elephant and mariachi band to make a point about the "circus" of border security – spent his meager election week budget on automated calls that introduced listeners to a screaming, hysterical woman who moaned, "I had an abortion performed on me." The call completely backfired, and Democratic Rep. Allyson Schwartz smashed Bhakta by 32 points, running 10 points ahead of what Kerry had scored in the district two years ago.

But Bhakta's calls aren't the focus of "dirty tricks" allegations. The focus is the National Republican Congressional Committee, which sponsored calls in close districts that began with the phrase "I'm calling with information about (Candidate X)" and hit targeted homes as many as one dozen times. Democrats allege that the calls flipped voters in four (or more) close races after voters listened to the first sentence and assumed the forces of Pelosi were pestering them during dinner. But listen to the calls, and the tone of the robo-caller gives away the game. It doesn't excuse the trick, but it reveals how lame it was, and how impactful it wasn't.

All of this is relevant because the impulse for newly-empowered Democrats to attack these elements of the election might be irresistible. Their attitude might be summed up by a non-officeholder, Markos Moulitsas, in his opinion of the robocallers: "These people need to end up in prison. Fines aren't good enough." But before they launch a new wave of campaign reforms (and campaign finance reforms), Democrats should consider how the worst "dirty tricks" of 2006 were the result of loopholes in previous campaign reforms.

Some suggestions: Don't wrap the system up in even more red tape. Let the multi-millionaires blow their money on junk ads, the companies that produce the smoothest e-vote machines get the big contracts, and introduce the robocallers to the existing Do Not Call lists. And if that doesn't work, the phone companies can always start billing the parties a little more for robotic calls. If they think irritating voters 10 times before bedtime is a good way of winning them over, let them put their money where their cybernetic mouths are.

David Weigel is an assistant editor of Reason. He lives in Washington, DC.