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“Two Tiered Discrimination”: Separate And Unequal Voting In Arizona And Kansas Are About Nullification And Voter Suppression

In its 2013 decision in Arizona v. The Inter Tribal Council of Arizona, the Supreme Court ruled 7-2 that Arizona’s proof of citizenship law for voter registration violated the 1993 National Voter Registration Act (NVRA).

In 2004, Arizona voters approved Proposition 200, a stringent anti-immigration law that included provisions requiring proof of citizenship to register to vote and government-issued photo ID to cast a ballot. Last year, the US Court of Appeals for the Ninth Circuit blocked the proof of citizenship requirement, which it said violated the NVRA. Under the 1993 act, which drastically expanded voter access by allowing registration at public facilities like the DMV, those using a federal form to register to vote must affirm, under penalty of perjury, that they are US citizens. Twenty-eight million people used that federal form to register to vote in 2008. Arizona’s law, the court concluded, violated the NVRA by requiring additional documentation, such as a driver’s license, birth certificate, passport or tribal forms. According to a 2006 study by the Brennan Center for Justice, at least 7 percent of eligible voters “do not have ready access to the documents needed to prove citizenship.” The Supreme Court affirmed the lower court ruling, finding that states like Arizona could not reject applicants who registered using the NVRA form.

Now Arizona and Kansas—which passed a similar proof-of-citizenship law in 2011—are arguing that the Supreme Court’s decision applies only to federal elections and that those who register using the federal form cannot vote in state and local elections. The two states have sued the Election Assistance Commission and are setting up a two-tiered system of voter registration, which could disenfranchise thousands of voters and infringe on state and federal law.

The tactics of Arizona and Kansas recall the days of segregation and the Supreme Court’s 1896 “separate but equal” ruling in Plessy v. Ferguson. “These dual registration systems have a really ugly racial history,” says Dale Ho, director of the ACLU’s Voting Rights Project. “They were set up after Reconstruction alongside poll taxes, literacy tests and all the other devices that were used to disenfranchise African-American voters.”

In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections. It was hard enough to register once in states like Mississippi, where only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965. And when the federal courts struck down a literacy test or a poll tax before 1965, states like Mississippi still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws.

The Voting Rights Act ended this dichotomy between federal and state elections by prohibiting racial discrimination in voting in all elections. Section 5 of the Act, which the Supreme Court eviscerated earlier this year in Shelby County v. Holder, prevented states with the worst history of voting discrimination—like Mississippi—from instituting new disenfranchisement schemes. It was Section 5 that blocked Mississippi from implementing a two-tiered system of voter registration following the passage of the NVRA in 1993, which the state claimed applied only to federal elections. (A similar plan was stopped in Illinois under state court.) Arizona—another state previously subject to Section 5 based on a long history of discrimination against Hispanic voters and other language minority groups—is making virtually the same rejected argument as Mississippi in the 1990s, but, thanks to the Roberts Court, no longer has to seek federal approval to make the voting change. The revival of the dual registration scheme is yet another reason why Congress should revive Section 5.

The proposed two-tiered system of voting and the harmfulness of proof-of-citizenship laws warrant legal scrutiny. Over 30,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004. In Kansas, 17,000 voters have been blocked from registering this year, a third of all registration applicants, because the DMV doesn’t transfer citizenship documents to election officials. The ACLU has vowed to sue Kansas if the state continues its noncompliance with state and federal law.

Proof-of-citizenship laws and the new two-tiered voting scheme are the brainchild of Kansas Secretary of State Kris Kobach, who has done more than just about anyone to stir up fears about the manufactured threat of voter fraud. As the author of Arizona’s “papers please” immigration law and Mitt Romney’s nonsensical “self deportation” immigration plan, he’s fused anti-immigrant hysteria with voter-fraud paranoia. Kobach helped the American Legislative Exchange Council draft model legislation for proof of citizenship laws based on Arizona’s bill, which were adopted in three states—Alabama, Kansas and Tennessee—following the 2010 election.

To justify his state’s new voting restrictions (Kansas also has a strict voter ID law), Kobach told The Huffington Post, “We identified 15 aliens registered to vote,” but he seems unconcerned that 17,000 eligible Kansans have been prevented from registering. Moreover, there’s no evidence these fifteen alleged non-citizens actually voted—just as there’s no evidence that dead people are voting in Kansas, another erroneous claim from Kobach. As Brad Friedman noted, Kansas City Star columnist Yael Abouhalkah wrote last year that Kobach “has a way of lying” about the threat of voter fraud.

Kobach claimed in 2011 that sixty-seven non-citizens had illegally registered, out of 1.7 million on the state’s voter rolls, but he “was unable to identify a single instance of a non-citizen illegally casting a vote, or any successful prosecution for voter fraud in the state,” according to the Brennan Center. As I’ve asked before, why would a non-citizen, who presumably is in the United States to work, risk deportation and imprisonment in order to cast a ballot? Kobach once suggested in a radio interview that perhaps their coyote was paying them to vote, which defies all logic.

There’s also no evidence that using the NVRA’s federal form to register leads to higher incidents of voter fraud. “Nobody has ever been prosecuted for using the federal form to register to vote as a non-citizen,” Nina Perales, vice president of litigation at the Mexican-American Legal Defense Fund, told me earlier this year.

In reality, the two-tiered system of registration being set up in Arizona and Kansas has less to do with stopping voter registration fraud, which as shown is a very rare problem in both states, and more to do with “nullifying” federal laws that Republicans don’t like, such as Obamacare. There’s symmetry between shutting down the government and creating separate and unequal systems of voter registration. It’s a strategy that dates back to Jim Crow, when fierce segregationists like John Calhoun of South Carolina tried to prevent the federal government from taxing the Confederacy and Southern Democrats instituted a policy of “massive resistance” to the Supreme Court’s Brown v. Board of Education ruling desegregating public schools.

Wrote Sam Tanenhaus in “Why Republicans Are The Party of White People”:

When the intellectual authors of the modern right created its doctrines in the 1950s, they drew on nineteenth-century political thought, borrowing explicitly from the great apologists for slavery, above all, the intellectually fierce South Carolinian John C. Calhoun. This is not to say conservatives today share Calhoun’s ideas about race. It is to say instead that the Calhoun revival, based on his complex theories of constitutional democracy, became the justification for conservative politicians to resist, ignore, or even overturn the will of the electoral majority.

The Confederates and Dixiecrats of yesteryear are the Republicans of today.

 

By: Ari Berman, The Nation, October 15, 2013

October 19, 2013 Posted by | Voting Rights, Voting Rights Act | , , , , , , , | Leave a comment

“Arizona Versus The Right To Vote”: A Law Whose Sole Purpose Is To Disenfranchise Poor And Minority Voters

As part of a broader anti-immigration initiative in 2004, Arizona passed Proposition 200, a law requiring voters to provide proof of citizenship before registering to vote. One person affected by this law was Jesus Gonzalez, a custodian and naturalized American citizen who twice had his registration rejected by the state. Arizona couldn’t verify his naturalization number and erroneously identified his driver’s license as belonging to a non-citizen. Gonzalez’s case has reached the Supreme Court, which heard oral arguments about the constitutionality of Proposition 200 on Monday. The Court should rule that Arizona’s burdensome requirements are inconsistent with federal law and therefore illegal.

The Supreme Court has dealt with Republican legislators’ attempts to suppress voting before. In a highly dubious 2008 decision, the Supreme Court found that an Indiana statute—requiring a show of ID before hitting the ballot box—was not unconstitutional on its face, although it left open the possibility that the statute might be unconstitutional as applied. (The Indiana law was ultimately struck down by the Indiana Court of Appeals.) Because the Arizona law concerns voter registration, it is subject to another form of legal challenge.

In 1993, Congress passed the National Mail Voter Registration (or “Motor Voter”) Act, which among other things created a federal form that would streamline the registration requirements. The law mandates that “each State shall accept and use” the federal form. As the story of Jesus Gonzalez highlights, Prop 200 placed an additional set of requirements on Arizonans before they are able to register. The key question presented by the challenge to Prop 200 is whether the Arizona requirements are inconsistent with federal law. If so, because of the Supremacy Clause of Article VI of the Constitution, the Arizona law is “pre-empted” by the Motor Voter Act and is invalid.

The case for pre-emption in this case is clear and persuasive. The statute unequivocally requires states to use the federal form. To permit states to add additional burdens on registration is inconsistent with the text and purpose of the statute, which was designed to create a streamlined and uniform process. Determining qualifications for people voting for federal offices is a clear federal power. Justice Kagan observed at the oral argument that the Arizona law “essentially creates a new set of requirements and a new form.” Prop 200, therefore, is at war with the federal statute whose purpose was to create a clear process for registration. As the Obama administration noted in its amicus brief, to uphold the Arizona law “would thwart the central purpose of [Motor Voter]: to streamline the process of registering to vote for federal office.”

Justice Scalia, while somewhat more restrained than in the previous oral argument dealing with an Arizona law that conflicted with federal authority, was typically candid about his political support for the objectives of the Arizona vote suppression initiative. Leaving little doubt about his sympathy for the Arizona law, he mocked the federal registration requirements, which make it a criminal offense to misrepresent one’s eligibility to vote. “So it’s under oath. Big deal.” Scalia snorted. “If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”

Scalia’s arguments are problematic for two reasons. First, whether or not Scalia thinks the federal requirements are sufficient is beside the point—Article I Section IV gives Congress the power to “make or alter” state voting regulations, so the judgment about what requirements are sufficient rests with Congress, not with Arizona or the Supreme Court. And even on its own terms his argument that the threat of a perjury conviction represents an insufficient deterrent is unpersuasive. Arizona provides no evidence that this kind of voter fraud is a problem. The problems of individual voter fraud the bill allegedly addresses are essentially non-existent, and even in theory it is impossible for individual fraudulent voters to alter the course of an election. And, in particular, it is extremely implausible to think that the illegal immigrants the bill targets are likely to risk attracting the attention of federal authorities by committing perjury on a form submitted to the federal government. It is hard to avoid the conclusion of one Arizona legislator that “was never intended to combat voter fraud. It was intended to keep minorities from voting.”

Scalia also mocked the idea that the additional Arizona requirements represented a substantial burden. “Enclosing your driver’s license number is that immense barrier?” he sarcastically asked Patricia Millet, the attorney representing the challengers. But the data proves Scalia is dead wrong to dismiss the extent of vote suppression caused by the initiative. “The district court,” Millet pointed out, “found that 31,550 people were rejected from voting because of Proposition 200.” This is a serious additional burden which shows that the inconsistency with federal law is not merely formal. The vote fraud Scalia and other Republicans are purportedly concerned with is imaginary, but the burdens created by the Arizona law are quite real.

Arizona’s latest attempt to interfere with federal law is particularly problematic given that it concerns the right to vote. Voting is a field in which greater uniformity is a particular virtue. The fact that standards for registration and voting vary not only between states but within states represents “local control” fetishism at its most inane. State and local administration of voting isn’t merely inefficient; the purpose and effect of this decentralization has been to disenfranchise poor and/or minority voters. In this case, Congress appropriately acted to create more uniform and streamlined standards for vote registration. Arizona should not be allowed to contradict federal law and invite other states to similarly disenfranchise voters.

 

By: Scott Lemieux, The American Prospect, March 19, 2013

March 25, 2013 Posted by | Civil Rights, Voting Rights | , , , , , , , | Leave a comment

   

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