And what does it tell us about U.S. elections?...
By Brad Friedman on 3/18/2014, 6:05am PT  

In a blog item on Monday, law professor Ilya Somin, of the Washington Post's right-leaning "Volokh Conspiracy" blog, declared the weekend's reported 96.7% vote in favor of Crimea joining Russia to be either fraudulent or the result of voter intimidation of some kind.

In the article, Somin called the results "dubious" and "highly improbable," declaring at least three times in his very short, 6-paragraph item that the referendum's results were "achieved" (his quotes) and/or "likely tainted by fraud or intimidation" --- the likelihood of which Somin describes as a "fact."

"It is highly improbable that 96.7% would have voted yes in a genuinely free vote, since the Crimean population includes large Ukrainian and Crimean Tatar minorities that are overwhelmingly opposed to a return to Russian rule," the George Mason University School of Law professor instructs. "Crimean officials are also reporting a high 83% turnout. If that figure is correct, it makes it unlikely that the 96.7% result is explicable by selective turnout. If, on the other hand, officials are lying about the turnout, they could be engaging deception about the vote margin as well."

Mainstream corporate media in the U.S. have a very difficult time reporting on real evidence of fraud in American elections, much less reporting it as "fact." But when it comes to elections overseas, particularly those which involve perceived geopolitical foes of the U.S., papers like the Washington Post seem to have little, if any, reluctance in offering exceedingly speculative arguments that all but declare elections held by others to be "fraudulent." (See this head-spinning irony, also involving Ukraine, just days after the very same disparity in Exit Polling, carried out by the same firm, resulted in questions about the legitimacy of results from Ukraine's November 2004 Presidential election, but not the still-disputed results of the 2004 Presidential elections in the U.S. just a week or two earlier.)

But 96.7% is, indeed, an outrageously high number for any election result. So how much legitimacy should be given to the results of the voting announced from the weekend referendum in Crimea, given what we know about the balloting and what we don't? And can the U.S. learn anything --- for better or worse --- about the way votes were cast and counted in Crimea?...

What choice?

For a start, no real choice was offered on the ballots, as many in the Western media took pains to note. At least, there was no choice to vote in favor of keeping the Crimean region as a semi-autonomous part of Ukraine, as it has been for many decades. Rather, the voters' choice was to either join Russia or allow the Russian-leaning Crimean legislature to decide for themselves who they would like to align with.

"Residents of Crimea, up to 60% percent of whom are Russian, were given a choice of either joining Russia or opting for more autonomy from Ukraine under the 1992 constitution. The status quo, in which Crimea is a semi-autonomous region of Ukraine, was not an option," reported USA Today.

Reuters offered more details, explaining that "there is no room on the ballot paper for voting 'Nyet' to control by Russia."

So, for a start, while the ballot offered two different questions, only one of which voters were allowed to check (or their ballots were to be considered "spoiled"), a Yes/No paradigm seemed to be offered, but wasn't really. The ballot question(s) themselves were rigged in favor of Russia.

Still, if the first option on the ballot, asking about reunification of Crimea with Russia as a part of the Russian Federation is considered "Da", and the second option, calling for "restoring the 1992 Constitution" was considered "Nyet", that still leaves a lot of voters who are said to have voted to join Russia, according to the officially reported results. The lack of an option to keep the status quo as is certainly tipped the entire affair towards Russia, but it doesn't tell us whether or not the "Da" option actually received 97.6% approval from voters.

'Intimidation'?

In his Washington Post item, Somin repeats again and again that the 97.6% number was "likely" the result of "fraud or intimidation". Either or both could be true, but he offers little actual evidence to prove either case.

The intimidation factor, on first blush, would seem fairly obvious. Crimea, by many media accounts, has been crawling with Russian troops --- or, at least, troops believed to be Russian, even though they wear no insignia --- for several weeks now. Referendum Day, many in the Western media suggested, was no different.

Here, for example, is a BBC report by Ben Brown from inside of a polling place in Simferopol. The same report includes footage of men in military fatigues standing in front of a Russian flag...

Our initial takeaway, when viewing the clip, was that the men seen in that report were stationed outside the polling place where Brown was reporting. But, after watching the clip a few times now, its clear that the footage of men in military fatigues was actually taken in front of the Crimean parliament building at a separate time. The use of the footage in the middle of Brown's report from the polling place seems to suggest an intimidating military presence at the polling place, though Brown did not include any such allegation in his report.

Claims of intimidation were offered side-by-side with the reportage from several different Western journalists and media outlets at polling places, which almost all seemed to indicate Crimean voters were turning out in landslide numbers to vote in favor of joining Russia. Such reports were based on interviews with voters as well as observations of unfolded, hand-marked paper ballots dropped into the clear ballot boxes featured at each polling place.

"We've talked to quite a few people after they've cast their votes here, and every single one of them said that they had voted for option number one [joining Russia] on the ballot paper," the BBC's Brown reported. Most of the voters, he added, were ethnic Russians, who are in the majority in Crimea.

"I've had a glimpse at these transparent ballot boxes," CNN's Diana Magnay reported from in front of a polling place in Perevalnoya. She explains that many voters are dropping their ballots in without folding them up first, allowing observers, if they wish, to see which option they have chosen. "I have not seen a ballot paper that does not have a cross at the top --- i.e. saying 'we are for Russia,'" she said.

Even Rupert Murdoch's Wall Street Journal conceded that "inside the dozens of transparent ballot boxes viewed by Wall Street Journal reporters across Crimea, not a single vote against joining Russia could be seen."

The pro-Ukrainian Kyiv Post reported similarly, detailing a polling station inside a Simferopol music school where "the scene was quiet" and "All voters the Kyiv Post spoke with there said they had cast their ballots in favor of joining Russia."

CNN's Magnay also noted in her report that Perevalnoya is actually a military base itself, but that the commander there explained that if any troops were to come out to vote, they "would be coming out in civilian clothing, apparently so as not to cause any provocation." She referred to troops guarding the gates of the base, pointing out that this particular base has not sworn allegiance to Russia, as has been the case at others. No members of the military (or even, simply men in fatigues) are seen in her report outside or inside the polling station.

"It's been a steady stream of people going into that polling booth behind me," she reported. "They're very happy at the prospect of this vote. I've talked to the head of the Electoral Commission there who's looked over seven elections in her time and she says that the turnout now is much stronger and everyone is much happier than before."

"The mood among Russians was festive after polling stations closed at 8 p.m., with a concert held in the city's center square," USA Today reported, underscoring the upbeat nature of those who came out to vote. "Thousands turned up brandishing flags and dancing to live pop music."

In one breath, USA Today's report explains that "not a single armed guard was seen in the vicinity of Polling Station No. 08086, at a Crimean gymnasium on Simferopol's Kiev Street." In the next, they quote a Ukrainian professor in Simferopol asking, "How can you vote with Russian troops around?" (That same professor may not be too reliable. He is also quoted telling the paper that "Crimea will never join Russia, it will lead to war.")

The Kyiv Post reported an incident in which they say "half a dozen paratroopers in uniform" were "watching over voters," at one polling station, though they did not include photographs of the incident.

Even WSJ reported on "the festive air of the vote," and quoted an ebullient local election official. "People are coming here as if for a celebration," precinct deputy chairwoman Elena Kondratyukh is quoted as saying in Gvardeyskoye. "It's like how our parents took us to vote."

So, there are reports of intimidating military presence --- Russia does have military bases in Crimea, after all --- but little evidence of direct intimidation by troops at the polls. Also, people were happy, streaming in to vote, and seemed to be doing so in huge numbers to join Russia, at least by the accounts of even the most Western-leaning media outlets.

These reports hardly seem to bear out Somin's repeated charges of "intimidation" in his WaPo piece.

Boycott

Both the Ukrainian and Western governments had condemned the entire referendum vote as "illegitimate" since its inception almost two weeks ago. As far as not offering an option for voters to choose to keep the status quo, they certainly have a point. They also claim that the vote itself is "illegal," as it violates whichever version of the Ukrainian constitution they are currently recognizing as the 'legitimate' one. The Crimeans are not allowed to vote on leaving the Ukrainian federation and joining Russia, these folks argue.

We're no experts in Ukrainian governance or constitutional law, so we'll take their word for it. But even in doing so, that does not speak to whether or not the reported results of the referendum itself actually reflect the will of the voters, as Somin argues strongly in the Washington Post that they do not.

As in this country, a broad section of the population simply chose not to turn out to the polls at all. In doing so, their voices were not heard in the results.

"Ethnic Tatars --- Sunni Muslims who make up 12 percent of Crimea's population --- said they would boycott the vote despite promises by the regional authorities to give them financial aid and proper land rights," Reuters reported.

"This is my land. This is the land of my ancestors. Who asked me if I want it or not? Who asked me?," Shevkaye Assanova, "a Crimean Tatar in her 40s," is quoted as telling the news agency. "For the rest of my life I will be cursing those who brought these people here. I don't recognise this at all. I curse all of them," she says.

Her curses and her "vote" --- the one she didn't cast --- were ignored. "Those who stay away will also not influence the outcome, since the result will simply be based on the option preferred by a majority of those voting," Reuters explained.

They went on to report: "A local Tatar television channel broadcast the count at one small polling station. It took just a few minutes for officials to stack up the papers, virtually in a single pile. One gave the result as: '166 for, 2 against, 1 spoiled'. By 'for' she clearly meant the first option on the paper, for union with Russia."

In addition to the Tatar population refusing to vote, "Many ethnic Russians and Ukrainians who don't want Crimea to leave Ukraine have stayed silent," the WSJ reports. "They cite pressure from friends and relatives as well as the tense atmosphere on the streets, where militias have been patrolling with Russian flags."

The paper cites Denis Matsola, "a 26-year-old left-wing activist from Simferopol, who says he considers himself Russian but would rather Crimea remain part of Ukraine."

"I didn't go. I boycotted," Matsola told the WSJ reporters, adding that "among those he knows who also want Crimea to stay within Ukraine, he knows only one person who actually went to vote."

With ethnic Tatars comprising 12% of the local population, and an unknown number of Russians and Ukrainians who might have voted against joining Russia but refusing to turn out at all, the massive "Da" vote becomes still easier to envision, even without "intimidation and fraud".

But democracy, such as it exists in either Crimea or the U.S., does not rely on whether elections results are believable. It relies on the ability of the governed --- winners and losers alike --- to be able to oversee the results, so that they may have confidence in knowing that the results are legitimate.

'Fraud'?

As in certain places in the U.S., Crimean authorities refused to allow certain international observers --- specifically, the ones from the U.N.'s Organization for Security and Cooperation in Europe (OSCE) --- to oversee the referendum. (You may recall when Texas Attorney General Greg Abbott did the same before the 2012 Presidential election, and threatened to arrest OSCE representatives who entered polling places.) Instead, only international observers believed to be friendly to Crimean's Russian initiative were reportedly allowed to serve as official international observers.

Barring peaceful observers from anywhere is never a good sign for any democracy. It wasn't when it was done in Texas or Iowa or Ohio in recent Presidential elections in the U.S., and it wasn't over the weekend in Crimea. If there's nothing to hide, there's no reason to bar any and all observers from any democratic election.

"If respected international election observers had been allowed to watch the vote on whether Crimea should to join Russia or merely gain greater autonomy from Ukraine, they would have found plenty to criticize. Violations could be spotted everywhere," the pro-Ukrainian Kyiv Post reported on Monday, describing the referendum as "deeply flawed" and "held under the intimidating presence of at least 21,000 Russian soldiers, who invaded in late February."

The two options on the ballot --- to join Russia now or to join it later (as those critical of the two options have described them) --- were each printed on the ballot in Ukrainian, Russian and Tatar.

Those who were registered and chose to vote were given a paper ballot at their polling station. They then stepped behind a curtain to hand-mark the paper ballot with a pen, before emerging from the booth, and dropping the ballot into a transparent ballot box that was supposedly kept visible to all voters at all times. The BBC's James Reynolds did a decent job of walking folks through the voting process (see his short video report here) from inside a polling station in Simferopol on Saturday, as voting was ongoing.

There were no computers involved in marking, recording or tabulating ballots at the polling stations --- that part of the process was at least, if not far more, transparent than most elections in the U.S. The transparent ballot boxes ensured that there were no ballots "pre-stuffed" into them before voting began, and their visibility to observers throughout the day meant that it would be very difficult to either add votes illegally or swap them out for different boxes --- at least without being noticed.

One such moment occurred as a CNN videographer captured what appeared to be one man dropping two different ballots into a box. (See the moment just after the 2 minute mark in this CNN video.) But unlike previous fraudulent elections --- for example the one that ultimately led to the "Orange Revolution" in Ukraine in 2004 and even Vladimir Putin's own recent election in Russia --- when blatant irregularities were caught on video tape and posted almost immediately on the Internet, no such video evidence of massive fraud in the Crimea referendum, so far, has been made available.

That doesn't mean it didn't happen, however.

The Kyiv Post says there were reports of a number of "alleged referendum violations." They say the violations "included Russian citizens being allowed to vote, ballots being printed on ordinary office paper, journalists being denied access to polling stations and the presence of armed or uniformed men outside stations." They also note that Mikhail Malyshev, the head of the Crimean election commission, disputed the reports, claiming that "not a single official complaint had been filed."

He conceded a problem with "dead souls", as the Kyiv Post described names of deceased people who were listed on the voting rolls. "In the 2004 Ukrainian presidential election which started the Orange Revolution, the use of 'dead soul' votes was one of the key mass violations," the paper notes.

"Malyshev said any 'dead souls' included in lists were the result of problems with the Kyiv authorities, who he said had made it very difficult for Crimea to draw up proper voter lists in time for the referendum. But he insisted the names were simply mistakes and had not been used to register false votes."

As in the U.S., in the small number of instances where "dead people" have voted, it's usually quite simple to prove since death records can be compared with voting records. In the U.S., the claim of zombie voters is offered time and again, while time and again (see South Carolina and Colorado and Texas recently, as just three examples) such extraordinary claims are almost always easily debunked. Are they as easily debunked in Crimea? Only if officials make poll books, listing the signatures of those who voted, available to the public and the media so they can be cross-checked against databases to determine if the voters were actually alive. But, even if some "dead souls" somehow managed to vote over the weekend, there would have to have been a whole lot of those zombie voters to change the ultimate referendum results.

But what of those results? Based on what we've been able to learn about the tabulation processes from media reports --- and, as you can tell, it's not always easy with something as controversial as this referendum to separate the reliable reports from the less so (particularly in a different language) --- while the transparency for much of the voting and tabulation process appears to have been excellent, there seems to be one huge gap in the Crimean process which could allow for wholesale theft of the referendum results.

The Kyiv Post reports that while results were counted publicly at the polling place, those results were not posted at each individual polling station. Rather, they were "reported directly to the central electoral committee."

As we've detailed for many years at The BRAD BLOG, in order for the citizenry (and the media) to be able to oversee their own elections, they must be able to oversee all aspects of the tabulation. To do that, ballots must be publicly counted at the precinct, with results posted there before ballots are moved anywhere. If it's impossible for the citizenry to independently track the decentralized (precinct-based) counts, the numbers can be changed to just about anything after they reach the central tabulation point and before the totaled results are publicly announced.

Making matters more troubling in Crimea, the Kyiv Post reports that, after polls closed, some journalists from the paper and even some Russian journalists were "aggressively barred from watching the vote count in one polling station in central Simferopol."

"The lone observer at the polling station said Crimean election officials had every right to ban everyone from the vote count except for those people actually conducting it, a violation of democratic election principles," the Kyiv Post declared. They added, "Other reports suggested this was not an isolated incident." They did not, however, link to or describe any other such reports.

In the case of Crimea's referendum, there seem to be very few reports detailing actual evidence of wholesale fraud. Many claims are being made, but, so far, there seems scant hard evidence to buttress those claims. Still, as we frequently explain after American elections as well, sometimes it is days, weeks or even months before problems from any particular election come to light. Of course, American elections include computers, so it's far easier to hide malfeasance and/or fail to notice malfunction inside of the lost transparency that electronic voting and tabulation systems bring to elections.

(Moreover, as always, we welcome any tips to blatant incidents that you feel we may not yet have seen.)

It's nice that Washington Post offers many different voices on its pages and web pages these days, but it's somewhat remarkable that extraordinary allegations like those made by its "Volokh Conspiracy" blogger, George Mason University law professor Ilya Somin, are allowed to offer such extraordinary repeated allegations of "intimidation and fraud" in an election at the center of an international crisis, without being required to offer support for those startling assertions.

At the same time, it serves as a stark reminder that concerns about election fraud elsewhere are perfectly welcome in the U.S. corporate mainstream media, while far more demonstrable evidence of fraud and malfeasance in U.S. elections is often never allowed the light of day from the very same publications.

We suppose, as always, it comes down to whose ox is being gored.

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