The Truth About Voter Suppression
The national trauma of the 2000 presidential election and its messy denouement in Florida and the U.S. Supreme Court made, for a brief moment, election reform a cause célèbre. The scrutiny of election administration went far beyond the vote counting and recounting that dominated headlines. The Florida saga cast a harsh light on the whole country’s archaic and fragmented system of election administration, exemplified by a state where hundreds of thousands of citizens were disenfranchised by incompetent and malicious voter purges, Reconstruction-era felon voting bans, improper record-keeping, and deliberate deception and harassment.
The outrage generated by the revelations of 2000 soon spent itself or was channeled into other avenues, producing, as a sort of consolation prize, the Help America Vote Act (HAVA) of 2002, an underambitious and underfunded law mainly aimed at preventing partisan mischief in vote counting. The fundamental problem of accepting 50 different systems for election administration, complicated even more in states like Florida where local election officials control most decisions with minimal federal, state or judicial oversight, was barely touched by HAVA. As Judith Browne-Dianis, of the civil rights group the Advancement Project, told me: “The same cracks in the system have persisted.”
But most politicians in both parties paid lip service to the idea that every American citizen had a right to vote, and that higher voting levels of the sort taken for granted in most democracies would be a good thing. “Convenience voting” via mail and early on-site balloting, or simply liberalized “absentee” voting, spread rapidly throughout the last decade, often as a way to minimize Election Day confusion or chicanery. In Florida itself, Republican Govs. Jeb Bush and Charlie Crist relaxed and then abolished the state’s practice of disenfranchising nonviolent felons for a period of time after their release.
No more. In the wake of the 2010 elections, Republican governors and legislatures are engaging in a wave of restrictive voting legislation unlike anything this country has seen since the Voting Rights Act of 1965, which signaled the defeat of the South’s long effort to prevent universal suffrage. This wave of activism is too universal to be a coincidence, and too broad to reflect anything other than a general determination to restrict the franchise.
Millions of voters are affected. In Florida new Republican Gov. Rick Scott signed legislation reversing Crist’s order automatically restoring the voting rights of nonviolent ex-felons. In one fell swoop, Scott extinguished the right to vote for 97,000 Florida citizens and placed more than a million others in danger of disenfranchisement. In a close contest for the Sunshine State’s 29 electoral votes, such measures could be as crucial to the outcome as the various vote suppression efforts of 2000.
As Ari Berman explained in an excellent recent summary of these developments for Rolling Stone, restrictive legislation, which has been introduced in 38 states and enacted (so far) in at least 12, can be divided into four main categories: restrictions on voter registration drives by nonpartisan, nonprofit civic and advocacy groups; cutbacks in early voting opportunities; new, burdensome identification requirements for voting; and reinstitution of bans on voting by ex-felons.
While new voter ID laws have clearly been coordinated by the powerful conservative state legislative lobbying network ALEC (American Legislative Exchange Council), other initiatives have spread almost virally. Virtually all of these restrictions demonstrably target segments of the electorate — the very poor, African-Americans and Hispanics, college students, and organizations trying to register all of the above — that tend to vote for Democrats.
Virtually all have been justified by their sponsors as measures to prevent “voter fraud,” a phenomenon for which there is remarkably little evidence anywhere in the country. As Tovah Andrea Wang, an election law expert at Demos, has concluded: “[L]aw enforcement statistics, reports from elections officials and widespread research have proved that voter fraud at the polling place is virtually nonexistent.” The Bush administration’s Justice Department tried to a scandalous degree to find cases of voter fraud to prosecute, and failed.
But as Marge Baker, executive vice president of People for the American Way, observes:
So-called anti-fraud laws are almost always thinly veiled attempts to prevent large segments of the population from making it to the ballot box … low-income voters, college students, people of color, the elderly. The people behind these laws know that there is no “voter fraud” epidemic. They just want to make it as difficult as possible for certain types of people to vote.
If so, is the motivation simply and purely partisanship? That’s the conclusion reached by former President Bill Clinton, who told a Campus Progress audience in July: “They are trying to make the 2012 electorate look more like the 2010 electorate than the 2008 electorate.”
The prevalence of restrictive measures in key 2012 swing states certainly reinforces this impression. With Scott’s order Florida rolled back the early voting that played a key role in Obama’s 2008 victory. New voter ID laws were pioneered in Indiana, the red state most famously carried by Obama in 2008. A voter ID bill passed in the Legislature in North Carolina, but was vetoed by the governor, a Democrat.
Cynical as such actions may seem, they do reflect an ideology. For some conservatives, however, there is a deeper motive than partisanship that helps explain the rapid proliferation of restrictive legislation. It hearkens back to much older debates over the franchise that raged from the mid-19th to the mid-20th centuries: the belief that voting is a “privilege” rather than a right, and one best exercised by “responsible” or “productive” members of the community. And it’s not really surprising that old-school doubts about the very concept of “voting rights” have accompanied the dramatic rise to power of “constitutional conservatives” who strongly believe that no popular majority should have the power to modify fixed concepts of property rights and limited government as handed down by the Founders, who themselves acted (according to many Tea Partyers) according to a divine mandate.
You hear echoes of this ancient anti-democratic conviction scattered all across the Tea Party Movement and among many state legislators active in voting for restriction legislation. Tea Party Nation president Judson Phillips created a furor in November of 2010 by suggesting that voting should be restricted to property owners, as it often was prior to enactment of the 15th Amendment.
Minnesota House Speaker Kurt Zellers flatly claimed voting was “not a right” during debate over a photo ID bill (a statement he later partially walked back). So, too, did Florida state Sen. Mike Bennett in a similar debate. Republican legislators and party leaders in Wisconsin, Maine and New Hampshire said all sorts of disparaging things about the civic qualifications of college students in the process of seeking to keep them from voting on campus.
Suffusing much of this sentiment is the pervasive Tea Party fear that voters without “skin in the game,” that is, “property ownership or significant tax liability,” will be prone to voting for big government and “welfare” at the expense of “productive” citizens. Few would publicly go so far as right-wing author Matthew Vadim, who briefly became a Fox celebrity for his argument that registering poor people to vote is “like handing out burglary tools to criminals,” since they “can be counted on to vote themselves more benefits by electing redistributionist politicians.”
But throughout the conservative and Tea Party subculture you find countless people who subscribe to the “Cloward-Piven Strategy” (popularized by Glenn Beck) that liberals have been engaged in a deliberate effort for decades to buy votes with expanded welfare benefits. And from practically the moment the financial crisis exploded, a preferred conservative-activist interpretation (advanced most aggressively by presidential candidate Michele Bachmann) has involved an elaborate variation on the Cloward-Piven Strategy.
The story is that the obscure community organizing group ACORN utilized the provisions of the Community Reinvestment Act to destroy the housing and banking industries with mortgages for shiftless poor and minority borrowers who were then encouraged to elect “socialist” politicians like Barack Obama to bail them out. This particular conspiracy theory has been especially potent since ACORN’s often-clumsy voter registration efforts also happen to be at the very center of Republican claims of widespread voter fraud.
Conservative suspicions that letting poor people vote leads to “socialism” have been most evident in the strange furor among tax-hating Republicans about the number of Americans who do not have net federal income tax liability. These “lucky duckies” (as the Wall Street Journal famously called them in a 2002 Op-Ed deploring the low taxes paid by the poor) have no “skin in the game.” Thus, as the Journal put it, “can hardly be expected to care about tax relief for everybody else … [and] are also that much more detached from recognizing the costs of government.”
While it’s unlikely Republican politicians will come right out and advocate higher taxes on the poor (although some “fair tax” schemes calling for a shift to consumption taxes would have the same effect), the resentment of them as freeloaders who get to “vote themselves welfare” probably does operate as a fine rationalization for placing landmines on their path to the voting booth.
All in all, the conservative commitment to full voting rights, which used to be a bipartisan totem that Republican operatives undermined in the dark and out of sight, is probably dead for the foreseeable future. And the war on voting will continue.
By: Ed Kilgore, Salon, September 30, 2011
Rep Peter King’s “Mockumentary”: Investigation Into Bin Laden Movie Is About 2012
The 2012 campaign is now in full force. And it’s not because there have been several GOP primary debates, or that a Republican candidate has already dropped out of the race, or even because President Obama has interrupted his can’t-we-all-act-like-adults bit to criticize Congress.
It’s because a congressman has called for an investigation into a Hollywood movie.
Kathryn Bigelow and Mark Boal, the director and screenwriter who made the Academy Award-winning film The Hurt Locker, are now at work on a movie about Osama bin Laden. This is not only understandable but predictable. Hollywood is in business to make money, and while Bigelow and Boal are surely many levels above the filmmakers who produce movies with men acting like frat boys and grown women paralyzed by inexplicable insecurity, this movie will certainly draw a crowd. But what House Homeland Security Committee Chairman Peter King worries about is that the Obama administration is providing the filmmakers with classified information to help them make the film.
White House spokesman Jay Carney dismissed the concerns as “ridiculous,” and while we can’t know for sure, it does seem a little silly. The military operation itself required intense secrecy and protection of classified information to be successful. Why release classified information now? And why would the filmmakers need classified information? We know how it started, and we know how it ended—with bin Laden shot by a U.S. Navy SEAL. That’s a pretty good movie right there, and one Americans exhausted by the toll of two wars and a recession will likely flock to see.
The real question here is not whether classified information is being given to Hollywood, but whether King’s genuine concern is timing. The movie is set to be released before the 2012 elections, arguably giving the embattled president a public relations boost right when he may need one. But does a movie make the difference? It’s unthinkable that the Obama campaign will not remind people of the huge military success of killing the most hated man in America; they don’t need Hollywood to do it. There may well be many films whose sourcing and facts are suspect—those would be the mockumentaries undoubtedly being created under the loose campaign finance rules in place since the Citizens United case was decided by the U.S. Supreme Court. Now, that’s something worth a congressional investigation.
By: Susan Milligan, U. S. News and World Report, August 16, 2011
The 11th Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution
The key passage in today’s opinion striking down part of the Affordable Care Act appears on page 113, where the two judge majority explains how they will determine whether this law is constitutional:
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.
A law requiring most Americans to either carry insurance or pay slightly more taxes clearly regulates the national market for health care. It determines how people will finance health care purchases. It lowers the cost of health insurance. And it protects that market from something known as an “adverse selection death spiral.” So that should have been the end of the case. The Court cites no provision of the Constitution limiting Congress’ authority to pass this law because no such provision exists.
Instead, it imposes two extra-textual limits on national leaders’ ability to solve national problems. If the law is somehow “unprecedented,” and if a decision upholding the law lacks vague and undetermined “meaningful limit[s]” on Congress’ authority that somehow upset the balance between federal and state power, then the law must be struck down even if the Constitution’s text says otherwise.
Yet even if these two novel limits are taken seriously, the court’s analysis still makes no sense. For one thing, the law is only “unprecedented” in the sense that it preferred a market-driven solution to the problem of widespread uninsurance over more government driven solutions such as Medicare. The truth is that Congress already requires nearly all Americans to purchase health insurance — and they have done so for many years. Every year the federal government collects taxes which are in no way optional. A portion of these taxes are then spent to buy health insurance for the elderly (Medicare) for the poor (Medicaid) and for children (SCHIP).
So the only real question in this case is whether the government is required to first take your money and then buy health coverage for you, or whether the Constitution allows Congress to cut out the middle man.
The Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Because the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. this requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective. Moreover, upholding the Affordable Care Act under Justice Scalia’s rule would require a court to do nothing more than hold that the Affordable Care Act is constitutional. There is no federal law which depends upon mandatory broccoli purchases, for example, in order to function properly in the same way that the ACA’s preexisting conditions provision can only function properly in the presence of an insurance coverage requirement. Accordingly, the court’s concern that upholding the law would destroy any limits on federal power is unwarranted.
As a final note, it is likely that conservatives will tout the fact that Judge Hull was appointed by President Clinton in the same way that progressives touted Bush-appointed Judge Sutton’s decision rejecting an ACA challenge. The two judges are not comparable, however. Judge Sutton is a former Scalia clerk who stood on the vanguard of the conservative legal movement for many years. Judge Hull, by contrast, is a compromise nominee Clinton selected in order to overcome obstruction from the Republican-controlled Senate.
Hull has a long record of conservative criminal and individual rights decisions. We now know that she is also very far to the right questions of federal power. That is unfortunate, but it also places her well to the right of some of the Supreme Court’s most conservative members.
By: Ian Millhiser, U. S. News and World Report, August 12, 2011
The World According To Clarence Thomas And Ayn Rand
The Los Angeles Times highlights some of Justice Clarence Thomas’s more extreme solo opinions, most of which seem to be rooted in this: every year Thomas has his new clerks come to his home to watch a movie—”the 1949 film version of the classic of libertarian conservatism, Ayn Rand’s The Fountainhead.”
Explains a lot, and not just his willingness to be the only (often crazy) dissenter on key cases.
Among them, he has declared that the Constitution gives states a right to establish an official religion. Prisoners, he wrote, have no constitutional right to be protected from beatings by guards. Teenagers and students have no free-speech rights at all, he said in an opinion Monday, because in the 18th century, when the Constitution was written, parents had “absolute authority” over their children.Two years ago, the court ruled that a school official could not strip-search a 13-year-old girl to look for two extra-strength ibuprofen pills. Thomas — alone — dissented, calling the search of her underwear “reasonable and justified.”
Alone, he voted to strike down a key part of the Voting Rights Act that is credited with giving blacks political power in the South. And he was the lone justice to uphold the George W. Bush administration’s view that an American citizen could be held as an “enemy combatant” with no charges and no hearing….
“He is the most radical justice to serve on the court in decades,” said Erwin Chemerinsky, dean of the UC Irvine Law School and a liberal constitutional scholar. He “would change the law dramatically and give little weight to precedent. It’s easy to overlook how radical [he is] because his are usually sole opinions that do not get attention.”
He’s the Federalist Society’s dream Justice, a true “constitutional conservative.” Ed Kilgore writes about the radicalism of the movement in reference to Michele Bachmann, but it’s applicable here.
…[C]onstitutional conservatives think of America as a sort of ruined paradise, bestowed a perfect form of government by its wise Founders but gradually imperiled by the looting impulses of voters and politicians. In their backwards-looking vision, constitutional conservatives like to talk about the inalienable rights conferred by the Founders—not specifically in the Constitution, as a matter of fact, but in the Declaration of Independence, which is frequently and intentionally conflated with the Constitution as the part of the Founders’ design. It’s from the Declaration, for instance, that today’s conservatives derive their belief that “natural rights” (often interpreted to include quasi-absolute property rights or the prerogatives of the traditional family), as well as the “rights of the unborn,” were fundamental to the American political experiment and made immutable by their divine origin….The obvious utility of the label is that it hints at a far more radical agenda than meets the untrained eye, all the while elevating the proud bearer above the factional disputes of the conservative movement’s economic and cultural factions.
On the economic side of the coin, most mainstream politicians are not going to publicly say that the monstrosities they associate with ObamaCare, “redistribution of wealth,” or Keynesian stimulus techniques are rooted in their desire to reverse the New Deal, as well as a long chain of Supreme Court decisions that also happened to make possible the abolition of segregation. But many conservative activists actually think that way, and have in mind as their goal nothing so modest as a mere rollback of federal social programs to the levels of the Bush or even the Reagan administration. Bachmann and other candidates can talk to most voters as though they are simply trying to defend America from a vast overreach by the 44th president. But to the radicalized conservative base that dominates contests like the Iowa Caucuses, the constitutional conservative label hints broadly at a more audacious agenda ultimately aimed at bringing back the lost American Eden of the 1920s, if not an earlier era.
It’s an interesting concept for Thomas to align with, given that he would have been considered only 3/5ths of a man “in the 18th century, when the Constitution was written.” Or perhaps he’s interpreting it as three out of five African-Americans being counted, and assuming he’d of course be among the three. Of course, if we returned to his preferred era of governance, he could be in prison on the basis of his marriage alone. And it’s a pretty safe bet, had so many of the laws he has dissented from so strenuously not been passed and upheld, the last place he’d find himself now is on a seat in the highest court of the land.
All of which would only be an interesting quirk of Thomas’s personality if he weren’t part of an increasingly extreme majority on the court, manifesting this hard-right, highly corporatist, and dangerous philosophy. That he’s guided by Ayn Rand should be enough to put his place on the court in question, if his ethical lapses alone weren’t enough to do so.
By: Joan McCarter, Daily Kos, July 5, 2011
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