“After Voter Suppression”: Focusing The Nation’s Attention On The Magnitude Of The Problem
So much has happened in so many parts of the judicial system regarding Voter ID and other recent efforts to restrict the franchise that it’s hard to get a fix on the big picture. But at the New Yorker, Jeffrey Toobin has seen the future of SCOTUS action on voting rights in its rulings on Wisconsin (halting implementation on grounds of timing) and Texas (giving that state the green light) Voter ID laws, and it’s not good:
The Wisconsin and Texas rulings were just preliminary requests for emergency relief, and the Supreme Court may yet hear the cases in full on the merits. But there seems little chance that a majority of the current Court will rein in these changes in any significant way. In courtrooms around the country, it’s been made clear that these Republican initiatives have been designed and implemented to disenfranchise Democrats (again, usually of color). But the Supreme Court doesn’t care.
So Toobin thinks it’s time to make a mental adjustment back to the mid-1960s, when hostile state laws and practices on voting were overwhelmed by the sheer moral and physical presence of people exercising the rights they still had and participating in elections whatever the difficulty:
Certainly, the obstacles for voters in the contemporary South do not compare to those that the civil-rights pioneers, black and white, faced until the early nineteen-sixties. In the Freedom Summer of 1964, the still nascent civil-rights movement coalesced around an effort to register voters in Mississippi. It was during that summer that the infamous murders of the civil-rights workers James Chaney, Andrew Goodman, and Michael Schwerner took place. In addition, of course, black Mississippi residents endured less well-known but equally horrific abuse from state authorities during this time. In those days before the Voting Rights Act, the effort did not succeed in registering great numbers of voters, but it did focus the nation’s attention on the magnitude of the problem.
So it could today. In light of the changes in the state laws, it’s difficult but not impossible to register voters and make sure that they get to cast their ballots. And it’s absolutely mandatory in a democracy for that to be done.
The title of Toobin’s essay is “Freedom Summer, 2015.” It’s sobering to realize that’s what we may need to restore voting rights long thought to be relatively secure. But it’s also a reminder that reactionaries who fear democracy (not just judicial conservatives, but the Con Cons who think “losers” have forfeited the right to have any say in what “winners” do with their money and power) have been defeated before in more extreme circumstances.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, October 28, 2014
“Modern-Day Voter Suppression”: A Poll Tax By Another Name Is Still A Poll Tax
For supporters of voting restrictions, opposition to voter-ID laws seems practically inexplicable. After all, they argue, having an ID is a common part of modern American life, and if these laws prevent fraud, the requirements deserve broad support.
We know, of course, that the fraud argument is baseless, but it’s often overlooked how difficult getting proper identification – never before necessary to cast a ballot in the United States – can be in practice. To that end the Brennan Center for Justice at NYU published a report this week on “stories from actual voters” in Texas who are facing disenfranchisement for no good reason. Emily Badger flagged one especially striking example:
Olester McGriff, an African-American man, lives in Dallas. He has voted in several Texas elections. This year when he went to the polls he was unable to vote due to the new photo ID law. Mr. McGriff had a kidney transplant and can no longer drive; his driver’s license expired in 2008. He tried to get an ID twice prior to voting. In May, he visited an office in Grand Prairie and was told he could not get an ID because he was outside of Dallas County. In July, he visited an office in Irving and was told they were out of IDs and would have to come back another day.
He is unable to get around easily. Mr. McGriff got to the polls during early voting because Susan McMinn, an experienced election volunteer, gave him a ride. He brought with him his expired driver’s license, his birth certificate, his voter registration card, and other documentation, but none were sufficient under Texas’s new photo ID requirement.
One person was prohibited from voting because his driver’s license ”was taken away from him in connection with a DUI.” Another Texan discovered he’d need a replacement birth certificate and a new ID, which required a series of procedural steps and a $30 fee he’d struggle to afford.
To hear opponents of voting rights tell it, voter-ID laws sound simple and easy. The practical reality is obviously far different – and in all likelihood, the laws’ proponents know this and don’t care. Indeed, a federal district court recently concluded that Texas’ law was designed specifically to discriminate against minority communities.
Under the circumstances, it seems hard to deny that we’re talking about a policy of modern-day poll taxes.
Jonathan Chait’s recent take of the larger dynamic summarized the issue perfectly.
During the Obama era … [Republicans] have passed laws requiring photo identification, forcing prospective voters who lack them, who are disproportionately Democratic and nonwhite, to undergo the extra time and inconvenience of acquiring them. They have likewise fought to reduce early voting hours on nights and weekends, thereby making it harder for wage workers and single parents, who have less flexibility at work and in their child care, to cast a ballot.
The effect of all these policies is identical to a poll tax…. It imposes burdens of money and time upon prospective voters, which are more easily borne by the rich and middle-class, thereby weeding out less motivated voters. Voting restrictions are usually enacted by Republican-controlled states with close political balances, where the small reduction in turnout it produces among Democratic-leaning constituencies is potentially decisive in a close race.
The simple logic of supply and demand suggests that if you raise the cost of a good, the demand for it will fall. Requiring voters to spend time and money obtaining new papers and cards as a condition of voting will axiomatically lead to fewer of them voting.
There is ample reason to believe that for Republican opponents of voting rights, this is a feature, not a bug. For all the rhetoric about “voting integrity” and imaginary claims about the scourge of systemic “voter fraud,” the underlying goal is to discourage participation, and in the process, improve GOP candidates’ odds of success.
By: Steve Benen, The Maddow Blog, October 30, 2014
“Shame On Texas And The U.S. Supreme Court”: A Capitulation To Voter Suppressors Everywhere
In allowing Texas’ voter identification law to go into effect, at least for the November election, the U.S. Supreme Court last week showed the nation precisely what it meant in 2013 when its conservatives struck down the heart of the Voting Rights Act in Shelby County vs. Holder.
It is hard to chronicle in a short space the ways in which the Texas law, one of the most discriminatory voting laws in modern history, runs afoul of constitutional norms and reasonable standards of justice. State lawmakers rammed through the measure, jettisoning procedural protections that had been used for generations in the state Legislature. By requiring registered voters to present a certain kind of photo identification card, and by making it difficult for those without such cards to obtain one, the law’s Republican architects would ensure that poor voters, or ill ones, or the elderly or blacks or Latinos — all likely Democratic voters — would be disenfranchised, all in the name of preventing a type of voter fraud that does not materially exist.
These lawmakers — and for that matter the U.S. 5th Circuit Court of Appeals and the Supreme Court judges who now have sanctioned the law’s implementation for next month’s election — were shown mountains of evidence on what the law’s discriminatory impact would be on minority communities. Witness after witness testified that the new law amounted to a poll tax on people who had, even in the deepest recesses of Texas, been able for decades to adequately identify themselves before lawfully casting their ballot.
What was Texas’ strongest argument against all this evidence? That a state may establish financial and practical hurdles that preclude the poor from voting so long as it — purportedly — does not discriminate against voters by race. For now, this nonsense is the law of the land in Texas.
And as Congress dithers over an amendment to the Voting Rights Act and state lawmakers continue to churn out legislation on voting that widens the nation’s divides, the high court’s ruling essentially endorses the following judicial construction — a capitulation, really, to vote suppressors everywhere — to be the law of the land in America: That even when a state with a long history of discrimination in voting practices is found to have intentionally discriminated against minority citizens by restricting their voting rights, even when a trial judge says so and even in the absence of a contradictory appellate finding on the scope and effect of that discrimination, the state still is entitled to implement those discriminatory practices in a national election.
The six Supreme Court justices who allowed the Texas law to go into effect did not write a single word about the trial judge’s extensive findings of intentional discrimination in the law’s creation or implementation. The 5th Circuit judges, who overturned that trial judge’s ruling, evaded the vital issue by noting, in passing, that those complicated issues could be resolved later, when the federal judiciary evaluated the case on the merits.
The rationale behind these hollow displays of justice is perverse, saying it would be more unfair now to force Texas to go back to the old voter identification laws, the ones that had worked well for decades, than it would be to require voters to get the new identification the law demands.
The swift passage of this Texas law — it was blocked by the Voting Rights Act until the 2013 Supreme Court ruling in Shelby County, then began to be hustled through the state Legislature on the very day that case was decided — is unassailable proof that intentional racial discrimination still exists in these jurisdictions. The trial judge so found, in page after page of documentation, that Texas state officials, emboldened by the Shelby County decision, devised a way to make it harder for blacks and Latinos to have their votes counted. Read her opinion for yourself.
Only three justices on the Supreme Court — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — had the courage to call the high court’s ruling the sham that it is. Ginsburg wrote in the dissent that there was ample proof the Texas law discriminates, and no proof that it doesn’t. There was ample proof, she wrote, that state officials relentlessly fought against amendments to the measures that would have ameliorated the discrimination, and no proof that the new restrictions will solve whatever perceived voter fraud problems lawmakers fear. About 600,000 registered voters could be disenfranchised, Ginsburg warned.
Some stoic commentators have noted that the Supreme Court did not rule on the merits of the Texas law — that the justices may well strike it down next year, or the year after that, when it inevitably comes back to them following a ruling on the merits at the 5th Circuit. I don’t buy it. And even if this court ultimately does strike down this odious law, where precisely do the disenfranchised citizens of Texas in the November election go to get their votes back? Nowhere, which is the point of the Texas law and the ultimate effect of the judiciary’s shameful tolerance of it.
By: Andrew Cohen, The Los Angeles Times; The National Memo, October 24, 2014
“In Service Of Ideological Gain”: Chris Christie Just Exposed His Entire Party’s Deceitful Voter Suppression Plan
Every now and again a Republican state party operative or elected official will drop the ruse and admit that the purpose of state-level voter restrictions isn’t to curtail voter impersonation fraud or to cut election costs, but to keep the wrong kinds of people from voting.
Usually the admission is purely cynical, as when Pennsylvania’s House Majority Leader Mike Turzai said, “Voter ID … is gonna allow Governor Romney to win the state of Pennsylvania.” (It didn’t.) Other times it’s suffused with racism—the forefather of vote suppression—as when Don Yelton, then a Republican precinct chairman from North Carolina, appeared on “The Daily Show” last year to announce that “the law is going to kick the Democrats in the butt… If it hurts a bunch of lazy blacks that want the government to give them everything, so be it.”
Governors, senators and national operatives are better at keeping a lid on this kind of candor. But as evidence that voter fraud is a right-wing superstition mounts, alongside evidence that the GOP’s remedies measurably suppress the vote, savvier arguments for voting restrictions are reducing toward either naked appeals like Turzai’s and Yelton’s or toward a kind of post-modernist denial of objective reality in service of ideological gain.
“Would you rather have Rick Scott in Florida overseeing the voting mechanism, or Charlie Crist?” New Jersey Governor Chris Christie asked this week at a Chamber of Commerce event in Washington. “Would you rather have Scott Walker in Wisconsin overseeing the voting mechanism, or would you rather have Mary Burke? Who would you rather have in Ohio, John Kasich or Ed FitzGerald?”
Christie went on, “The fact is it doesn’t matter if you don’t really care what happens in these states, you’re going to care about who is running the state in November of 2016, what kind of political apparatus they’ve set up and what kind of governmental apparatus they’ve set up to ensure a full and fair election in 2016.”
By no coincidence, Republicans in each of those states have already imposed disenfranchising restrictions, which makes it clear that Christie sees these kinds of laws as an existential necessity, the key to Republican self-perpetuation. In Christie’s mind, American election outcomes are a direct function of partisan control of states. Republicans, who “oversee the voting mechanisms,” need to win so that they can continue to “oversee the voting mechanisms.” If they don’t win now, they’ll lose control of the voting mechanisms ahead of an election in which fundamentals will favor the Democrats, and be doomed.
There’s a blinkered and an unblinkered way to interpret such a view. The former—a more generous interpretation—is that Christie believes, against all evidence, that when Republicans lose control of the voting apparatus, fraud becomes rampant and cheaters swing elections to Democrats. The latter, to quote the Washington Monthly’s Ed Kilgore, is that Christie is “treating the right to vote as discretionary, depending on [his] party’s needs, which makes voter suppression just another day at the office”—that he believes Republicans must cheat to win now, so that they can live to cheat another day.
Neither of these readings flatters Christie. If the extent of voter fraud were an open question, Christie could make a real, but contestable case that GOP-backed voting restrictions yield election outcomes that more closely resemble the will of the voting public. But this is not an open question. What we know about voter fraud, and the right’s insistence on fighting it by limiting the franchise, makes its anti-fraud agenda a mirror image of its rejection of climate science. Republicans oppose the regulatory remedies to climate change, so they question its existence. They support the regulatory remedies to voter fraud, so they insist it exists.
In that way, voter fraud is the dark matter of Republican politics. Except that unlike dark matter, whose existence can be inferred from the way it tugs at the outer stars of our galaxy, the only way to infer that voter fraud swings elections to Democrats is to stipulate that Democratic victories are intrinsically aberrant.
This, again, is the charitable view. The simpler view is that Christie et al understand that voting restrictions suppress the Democratic vote, and see that as a feature rather than a bug. Either way, it suggests that conservatives will cling to the voter fraud myth, in the same way they cling to the myth that upper-bracket income tax cuts pay for themselves; or that they will posit the exact same voter suppression tactics as the solution to other problems, real or imagined.
Earlier this week, Vox’s Matthew Yglesias reprised his argument for building a movement to create a constitutional right to vote. The argument has three prongs. A Voting Rights Amendment would serve as a valuable organizing tool, until adopted; if adopted, it would flip the burden on Republicans, to demonstrate that their efforts to restrict voting don’t violate the Constitution; and it would be hard to defeat along the way, because the substantive and moral arguments for a Voting Rights Amendment are incontestable. Pair it with a national Election Day holiday, and Republicans would have a much harder time sculpting the electorate. The alternative is that Democrats will continue to expend tremendous energy and capital to beat back tactics Republicans are unlikely to abandon on their own.
By: Brian Beutler, The New Republic, October 22, 2014
“Silent Treatment”: The Supreme Court And Voting Rights
The Supreme Court’s weirdly busy October brings to mind an old Cadillac commercial showing a sedan gliding silently down the highway, driver calm and confident in a hermetic, leather-appointed cabin, while the announcer intones, “quietly doing things very well.” Whether the justices are doing their jobs well depends on your point of view. But there is no disputing that they have been doing their most consequential work in uncharacteristic silence in recent weeks. The justices’ moves on gay marriage, abortion and voting rights have been delivered all but wordlessly, as Dahlia Lithwick of Slate recounts. The notable exception to the rule is Ruth Bader Ginsburg, the justice who refused to hold her tongue over the weekend, when six of her colleagues permitted Texas to enforce its new photo identification law in the November elections.
The Court’s announcement came down at the ungodly hour of 5am on Saturday. It followed a federal district court decision on October 9th that the Texas law was discriminatory in both intent and effect and “constitutes a poll tax”—a ruling that was stayed by the Fifth Circuit Court on October 11th. The stay prompted an emergency appeal to the Supreme Court via Antonin Scalia, the justice assigned to the Fifth Circuit. The six justices who denied the request to lift the stay before dawn on October 18th were mum as to why; they released no reasoning for the decision, which effectively gives Texas’s questionable voter law a pass. But Justice Ginsburg and her clerks apparently ordered pizza and downed some Red Bull on Friday evening, pulling an all-nighter to compose a six-page dissent, which Justices Sonia Sotomayor and Elena Kagan joined. (Rick Hasen asks why Justice Stephen Breyer, the fourth liberal justice, did not sign on to the dissent; one strong possibility is that he was asleep.)
Octogenarian Supreme Court justices are not known for burning the midnight oil, but Justice Ginsburg had an unusually good reason to do so in Veasey v Perry. The Texas law she opposed is a transparent attempt to help Republican candidates by keeping racial minorities, who vote overwhelmingly for Democrats, home on Election Day. In the words of the trial judge, the law “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.” Justice Ginsburg’s wee-hours dissent drew on the district court’s ruling to issue a scathing rebuke to the Fifth Circuit and, by implication, to the six justices who refused to lift the Fifth Circuit’s stay. “In light of the ‘seismic demographic shift’ in Texas between 2000 and 2010, making Texas a ‘majority-minority state,’ ” Justice Ginsburg wrote, “the District Court observed that the Texas Legislature and Governor had an evident incentive to ‘gain partisan advantage by suppressing’ the ‘votes of African-Americans and Latinos.’ ”
Justice Ginsburg also criticised the law’s defenders who claim it is necessary to fight voter fraud: “Texas did not begin to demonstrate that the Bill’s discriminatory features were necessary to prevent fraud or to increase public confidence in the electoral process.” The upshot is disturbing: by refusing to act, the Supreme Court majority is allowing a law to take effect that “may prevent more than 600,000 registered Texas voters (about 4.5% of all registered voters) from voting in person for lack of compliant identification…A sharply disproportionate percentage of those voters are African-American or Hispanic.”
What was the majority’s reasoning for deferring to the Fifth Circuit, and by extension to Rick Perry, the governor of Texas? We don’t know; they didn’t tell us. The rationale probably has to do with Purcell v Gonzalez, a 2006 case in which the Court decided that courts should be wary of changing voting rules too close to an election. But Purcell does not lay down an ironclad rule against last-minute changes. And as Rick Hasen writes, “[i]t appears to be unprecedented to let a law that was deemed racially discriminatory go into effect simply to avoid the risk of voter confusion and election administration inefficiency.” If the six justices voting to let Texas law take effect thought that voter confusion was more worrisome than racial discrimination, they should have put that reasoning down on paper.
John Rawls, an influential political philosopher who died in 2002, described the Supreme Court as an “exemplar of public reason”, a tribunal that accounts for its decisions with reasoned reference to the laws and traditions of the country. “It is the only branch of government,” Mr Rawls wrote, “that is visibly on its face the creature of that reason and of that reason alone”:
To say that the court is the exemplar of public reason also means that it is the task of the justices to try to develop and express in their reasoned opinions the best interpretation of the constitution they can, using their knowledge of what the constitution and constitutional precedents require.
Echoing Kant, for whom the “publicity” of public decisions is a key component of a constitutional republic and is, indeed, the “transcendental principle of public right”, Rawls insisted that “the court’s role…is part of the publicity of reason” to which citizens should enjoy full and unfettered access. Normally the justices acquit themselves quite well in this regard: they spend months drafting and polishing lengthy opinions in argued cases, and they release their decisions to be consumed, interpreted and scrutinised by everybody. But this month, by keeping their reasoning close their robes on several big decisions, the justices are falling down on their duty to share what they are thinking.
Six justices allowing Texas to enforce a voter-identification law that a federal judge had characterised, in a 147-page decision, as a racist poll tax—and to do so with pursed lips—is not merely rude. It is a breach of the Court’s legitimacy in a constitutional democracy. When the stakes are this high, all the justices should follow Justice Ginsburg’s lead and stay up all night to explain to America just what they are up to and why.
By: Steven Mazie, Democracy in America, The Economist, October 22, 2014
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