“A Much More Difficult Response”: Should The Democrats Abandon Hope Of Getting Relief From Voter Suppression In The Courts?
Yesterday there were two rulings on voting rights cases, both of which were decided in favor of the liberal side of the argument. But don’t get too excited. I hate to be an eternal pessimist on this issue, but neither case is likely to turn out the way liberals and Democrats want. In fact, we’re almost at the point where — until the current makeup of the Supreme Court changes — liberals should keep themselves from ever thinking the courts are going to stop Republican efforts at voter suppression.
I’ll get to the consequences of that in a moment, but first let’s look at the two cases yesterday. The first was in Texas, where a federal judge struck down the state’s voter ID law. In refreshingly blunt language, the judge called the law an “unconstitutional poll tax,” and said that the legislators who passed it “were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.” Which is absolutely true, but that doesn’t mean the ruling is going to be upheld by a Supreme Court that has made it clear that they have little problem with almost any restrictions on voting rights.
But what about the Wisconsin case? There, the Supreme Court halted the implementation of a voter ID law yesterday, so doesn’t that mean they’re open to striking down voter ID laws? Not really. Ian Millhiser explains:
Although the Supreme Court’s order does not explain why the Court halted the law, a short dissenting opinion by Justice Samuel Alito provides a window into the Court’s reasoning. Alito begins his dissent by admitting that “[t]here is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.” In a 2006 case called Purcell v. Gonzalez, the Supreme Court explained that judges should be reluctant to issue orders affecting a state’s election law as an election approaches. “Court orders affecting elections,” according to Purcell, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” It is likely that the six justices who agreed to halt the Wisconsin law relied on Purcell in reaching this decision.
Just the other day, the Court allowed a North Carolina voter suppression law to go forward, but in that case the law had already been implemented. And that’s why we shouldn’t be encouraged by the Wisconsin ruling: it doesn’t imply that the Court believes these restrictions are unconstitutional, only that it would be a mess to have them take effect just a few weeks before the election. It’s a narrow question of election procedure.
It would be going too far to say that Democrats should just abandon all court challenges to these voting laws. You never know what might happen—by the time the next major case reaches the Supreme Court, one of the five conservatives could have retired. But the only real response is the much more difficult one: a sustained, state-by-state campaign to counter voting suppression laws by registering as many people as possible, helping them acquire the ID the state is demanding, and getting them to the polls. That’s incredibly hard, time-consuming, and resource-intensive work—much more so than filing lawsuits. But Democrats don’t have much choice.
By: Paul Waldman, Contributing Editor, The American Prospect, October 10, 2014
On September 12, Wisconsin voting-rights groups began to scramble when the Seventh Circuit Court upheld the state’s voter ID law, one of the strictest in the country. By the end of September, the same court had narrowly declined to re-hear the case en banc—giving voters and election officials mere weeks before the state’s upcoming gubernatorial election to grapple with the law. Unless the Supreme Court overturns the decision in response to an emergency appeal filed Thursday by the ACLU, Wisconsin voters will have to show identification from a list of approved types at the November election. It’s hard to say how many people might be disenfranchised by the law, but in such a tight election, where Republican incumbent Scott Walker is neck-and-neck with Democrat Mary Burke, it doesn’t take many votes to swing the results.
In April, when District court judge Lynn Adelman issued an injunction against the law, he estimated that 300,000 registered voters across the state lack the IDs they need to vote. The judge arrived at that estimate by comparing the testimony of two witnesses, a statistical marketing consultant, Leland Beatty, and a professor at the University of Georgia, M.V. Hood III. Beatty and Hood both crunched through the DMV records with registered voter files to determine how many registered voters in the state lack either a driver’s license or state ID card, the two most common forms of identification. Using different methodologies, the two men produced different estimates. Hood said between 4.9 percent (167,351) and 10.9 percent (368,824) of registered voters lacked ID, while Beatty estimated 9.4 percent (317,735).
Even Hood’s low-end estimate of 167,351 disenfranchised voters is enough voters to swing a tight election. Walker won in 2010 by only 124,638 votes. According to the Huffington Post Pollster, Walker is currently leading Burke 48.3 to 46.3.
Walker’s supporters are more likely than Burke’s to show up at the polls in the first place. According to Marquette University’s latest polls, Walker leads by a five-point margin among those who say they are certain to vote. But, among those who aren’t as certain they’ll make it to the polls, Burke leads by an eleven-point margin. This gap is common in midterm elections, since Republican voters—usually white, wealthy, and older—have more time and resources to make it to polling stations for the elections that get less hype. The voter ID law might deepen this disparity, since it creates one more barrier to vote for those already on the fence.
The clock is ticking for voting rights groups to organize in response to the law. Mike Wilder from Wisconsin Voices said that his group began educating voters and helping them procure identification a few days after the law was upheld in mid-September. But it’s not just the voters without identification in need of education. The majority of voters who have the necessary ID need to be reminded to bring it to the polls. A recent Marquette University poll found that 20 percent of voters didn’t know they needed their IDs to vote.
By: Claire Groden, The New Republic, October 6, 2014
“Blatant And Immediate”: The Supreme Court That Made It Easier To Buy Elections Just Made It Harder For People To Vote In Them
In case there was any remaining confusion with regard to the precise political intentions of the US Supreme Court’s activist majority, things were clarified Monday. The same majority that has made it easier for corporations to buy elections (with the Citizens United v. FEC decision) and for billionaires to become the dominant players in elections across the country (with the McCutcheon v. FEC decision) decided to make it harder for people in Ohio to vote.
Yes, this Court has messed with voting rights before, frequently and in damaging ways. It has barely been a year since the majority struck down key elements of the Voting Rights Act.
But Monday’s decision by the majority was especially blatant—and immediate. One day before early voting was set to begin in Ohio on Tuesday, the Supreme Court delayed the start of the process with a decision that will reduce the early voting period from thirty-five days to twenty-eight days.
Assaults on early voting are particularly troublesome, as the changes limit the time available for working people to cast ballots and increase the likelihood of long lines on Election Day. And changes of this kind are doubly troublesome when they come in close proximity to high-stakes elections, as they create confusion about when and how to vote.
American Civil Liberties Union of Ohio Executive Director Freda Levenson decried the ruling, calling it “a real loss for Ohio voters, especially those who must use evenings, weekends and same-day voter registration to cast their ballot.”
The ACLU fought the legal battle for extended early voting on behalf of the National Association of Colored People and the League of Women Voters, among others.
“To make (the Supreme Court ruling) even worse,” Levenson told the Cleveland Plain Dealer, “this last-minute decision will cause tremendous confusion among Ohioans about when and how they can vote.”
Ohio Republicans had no complaints. They have made no secret of their disdain for extended early voting, which has been allowed for a number of years and which has become a standard part of the political process in urban areas where voters seek to avoid the long lines that have plagued Ohio on past Election Days.
Ohio Secretary of State Jon Husted, a top Republican, has taken the lead in efforts to restrict voting. In June, he established a restricted voting schedule. Husted’s scheme was upset by lower-court rulings. In particular, the courts sought to preserve early voting in the evening and on Sundays, which is especially important for working people.
Fully aware of that reality, the Supreme Court scrambled to issue a 5-4 decision that “temporarily” allows the limits on early voting to be restored. Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, Antonin Scalia and Anthony M. Kennedy voted to allow Husted to limit voting, while Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan opposed the ruling.
Monday’s ruling was not a final decision; the Court could revisit the matter. But that won’t happen in time to restore full early voting before his year’s November 4 election.
The Court is sending a single of at least tacit approval of controversial moves by officials in other states—such as Wisconsin and North Carolina– to curtail early voting and access to the polls. Legal wrangling also continues over the implementation of restrictive Voter ID rules in those states and others—with special concern regarding Wisconsin, where a September federal appeals court ruling has officials scrambling to implement a Voter ID law that had been blocked by a lower-court judge.
Expressing disappointment that a narrow majority on the Supreme Court has permitted “changes that could make it harder for tens of thousands of Ohioans to vote,” Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice at the NYU School of Law, said, “Courts should serve as a bulwark against rollbacks to voting rights and prevent politicians from disenfranchising voters for political reasons.”
Weiser is right.
Unfortunately, the High Court is focused on expanding the influence of billionaires, not voters.
By: John Nichols, The Nation, September 29, 2014
“Judge Slams Voter Suppression Law”: ‘Why Does The State Of North Carolina Not Want People To Vote?’
Voting rights advocates in North Carolina caught a lucky break on Thursday, where it was revealed that the panel of three judges who would consider that state’s comprehensive voter suppression law included one Clinton appointee, Judge Diana Gribbon Motz, and two Obama appointees, Judges James Wynn and Henry Floyd. Last month, a George W. Bush appointee to a federal trial bench in North Carolina allowed the law to go into effect during the 2014 election, the panel of three judges from the United States Court of Appeals for the Fourth Circuit are now considering whether to affirm or reverse that decision. They heard oral arguments in the case on Thursday.
Several provisions are at issue in this case that all make it more difficult for residents of North Carolina to cast a vote. One provision cuts a week of early voting days. Another restricts voter registration drives. A third implements a strict voter ID law, although that provision does not take effect until 2016, so it would be reasonable for the court to decide not to suspend it during the 2014 election.
One provision that received a great deal of attention from the judges during Thursday’s oral arguments in this case is a change to the state law that causes ballots to be tossed out if a voter shows up in the wrong precinct. For the last decade, voters who showed up at the wrong precinct would still have their votes counted in races that were not specific to that precinct, so long as they voted in the correct county. The new law prohibits these ballots from being counted at all. According to the Associated Press, that means thousands of ballots will be thrown out each election year.
Judge Wynn, the only member of the panel who lives in North Carolina, appeared baffled by this provision. Explaining that he lives very close to a precinct that is not his assigned polling place, he asked the state to justify why his vote should be thrown out if he did not travel to a precinct that is further away from his home. At one point, his questions grew quite pointed — “Why does the state of North Carolina not want people to vote?” Wynn asked. At another point, he described a hypothetical grandmother who has always voted at the same place. Why not “let her just vote in that precinct?” he wondered?
An attorney defending the North Carolina law spent a great deal of his time at the podium arguing that it would be too disruptive for a court to suspend parts of North Carolina’s election law this close to the November elections. As a legal matter, this is a strong argument. In a 2006 case called Purcell v. Gonzalez, the justices reinstated a voter ID law that had been halted by a lower court. They explained that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
Yet the judges seemed skeptical of this argument as well, questioning what evidence the state could show that voters would actually be confused. When an attorney argued that restoring lost voting rights could be logistically challenging for the state, Judge Floyd asked whether “an administrative burden [can] trump a constitutional right?”
The argument that judges should heed Purcell‘s warning and be cautious about changing voting law close to an election also did not convince a much more conservative panel considering another voter suppression law in Wisconsin. Earlier this month, a panel of three Republican judges reinstated a voter ID in a single page order issued the same day that they heard oral arguments in the case. At the time, election law expert Rick Hasen criticized this order as a “very bad idea,” in part because of the reasons stated in Purcell. There are already early signs that Hasen was correct.
The Wisconsin case is already making its way to the Supreme Court, and the North Carolina case is likely to wind up there as well, especially if the Fourth Circuit rules against the state’s law. Should both cases come before the justices, that means that they will be confronted with one case where a court changed a state’s election law in a way that Democrats generally approve of, and another case where a court changed the state’s election law in a way that Republicans generally approve of. Both of these changes, moreover, would be made close to an election.
If the conservative Roberts Court really meant what it said in Purcell, then it is likely to allow the North Carolina law to go into effect while suspending the Wisconsin law. Should it allow both laws to take effect, however, that would raise serious concerns about whether the justices are willing to apply the same rule to every case, regardless of whether the rule benefits Democrats or Republicans.
By: Ian Millhiser, Think Progress, September 29, 2014
Forty years ago, at a point when Americans were profoundly concerned about declining voter participation, democracy advocates proposed a fix: “instant voting.”
To remove barriers and increase participation in elections, the argument went, officials should make it possible for citizens to show up at a polling place, register to vote and then cast a ballot.
Instead of jumping through registration and participation hoops over a period of weeks, even months, people could just vote.
A handful of states—Maine, Minnesota and Wisconsin—began to implement the idea and something exciting happened: turnout soared.
But the approach was controversial.
In my home state of Wisconsin, then-Governor Pat Lucey implemented the reform.
Lucey, who died last week at age 96, was a remarkable figure. He helped build the modern Democratic Party of Wisconsin, ushering an an era of two-party competition for a state where in the mid-1950s virtually every top official was a Republican. He was close to the Kennedys, playing especially important roles in the John Kennedy’s 1960 presidential run and Bobby Kennedys 1968 race. He bid for the vice presidency in 1980 as the running mate of liberal Republican John Anderson on a “national unity” ticket. As a prominent realtor in Wisconsin, he championed open housing as a part of a broad commitment to civil rights. As governor, he forged a strong university system, established fair and equitable funding for public schools, reformed criminal justice and the courts, fostered labor-management cooperation and economic growth, and appointed the first woman to the state Supreme Court.
But some of Lucey’s greatest accomplishments were as a political reformer, who championed open government and campaign finance reform—and who fought to make it easy to vote.
Pat Lucey believed in high-turnout elections. And Lucey was enough of a structural reformer to recognize that policies could contribute to making lofty rhetoric about popular democracy into an Election Day reality. Indeed, his support for Election Day voter registration was so significant that it helped to make this particular reform central to a national debate about how to expand the electorate.
In the mid-1970s, Lucey and his legislative allies moved to enact what the national media referred to as “instant voting”—a new set of rules designed to allow citizens to simply show up at a polling place, register and cast a ballot. This was a radical change from the restrictive rules that were in place in much of the country, many of which had their roots in the machinations of big-city bosses and Southern segregationists who were disinclined toward expanding the electorate.
When Wisconsin enacted rule changes to remove barriers to voting, it was national news. The New York Times highlighted Wisconsin’s 1975 plan for “easy and instant voting.” Critics screamed that this was a recipe for fraud, expressing particular concern about language that allowed for registration with a Wisconsin driver’s license, a student ID or fee card “or any other ID judged to be acceptable by local election officials.” There were demands for monitoring of elections by the US attorney’s office in Milwaukee and the Federal Bureau of Investigation. But after a review of the 1976 election, officials confirmed that the FBI “found no evidence of fraud or voter theft.”
What was found was high turnout. In November 1976, 210,000 Wisconsinites—11 percent of the total electorate—registered at the polls. The Times reported that “in Milwaukee, for example, registration in 1974 was at the comparatively high level of 65 percent. After Wisconsin adopted Election-Day registration in 1976, registration jumped to 86 percent.” Hailing the Wisconsin accomplishment, along with more modest advances in Minnesota (which also embraced Election Day registration), the paper argued that all America should “trust democracy by enlarging it.”
President Jimmy Carter agreed. He tried to take the Wisconsin model national, with a proposal for universal Election Day registration. It never quite happened. This country continues to have a patchwork of different registration rules, some of them absurdly restrictive. And there have been efforts in a number of states, including Wisconsin, to eliminate Election Day registration and limit related reforms such as those allowing for early voting.
These are moves in the wrong direction. So wrong that they have frequently been blocked by responsible legislators and the courts. But Maine Governor Paul LePage and his allies actually did eliminate Election Day registration in that state in 2011—only to have it restored by a 60-40 popular vote in November of the same year. Former American Civil Liberties Union of Maine Director Shenna Bellows, who helped get the issue on the ballot and who now is a US Senate candidate, said at the time, “Maine voters sent a clear message: No one will be denied a right to vote.”
Voters like Election Day registration, and for good reason—Election Day registration works.
As Demos notes:
Voting rights advocates have long argued that no voter should lose their access to the ballot just because they missed a registration deadline, or because a paperwork error left them off the rolls. Any number of studies have found that turnout will get a boost if people can register on Election Day, and that argument is backed up by the (data analyzed Nonprofit VOTE, a nonpartisan group that encourages nonprofits to engage voters).
Among states that allow residents to establish or update their registration the same day they vote, turnout was 71.3 percent on average—far above the 58.8 percent for the remaining states. Five of the Same Day Registration states appear in the top 10.
This effect can’t be explained away by other factors. For example, one useful predictor of voters’ inclination to participate was the margin in the presidential race—turnout was highest in the 10 swing states where the Obama and Romney campaigns battled most intensely. But even among these 10 swing states, the three that allow Same Day Registration easily beat out the others in turnout, with Colorado the only exception.
Unfortunately, Election Day registration is not universal, as Pat Lucey, Jimmy Carter and the reformers of the 1970s hoped it would be.
According to the Brennan Center for Justice, less than a third of US states “currently offer, or have enacted laws which provide for Election Day registration, allowing eligible citizens to register or update their records on Election Day.” Several states have moved recently to create the option, including California, Maryland and Hawaii. But most Americans, especially those in Southern states with historically low turnout patterns, don’t have it.
So Congressman Keith Ellison, D-Minnesota, has proposed a Same Day Registration Act, which would amend the Help America Vote Act of 2002 to require states with a voter registration requirement to make same-day voter registration—or revision of an individual’s voter registration information—available at the polling place on the date of election itself. The Ellison proposal would also make those options available during early voting periods. The congressman says the United States can and must “ensure [that] our nation lives up to its ideals and protects the most fundamental right in our democracy.”
That was what Pat Lucey did almost four decades ago with his push for “instant voting.” History has proven Lucey and the voting advocates of the 1970s right. They recognized, as we all should, that the promise of democracy is made real when voting is easy and turnout is high.
By: John Nichols, The Nation, May 16, 2014