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“The Courts’ Baffling New Math”: By What Logic Do Hundreds Of Thousands Of People Simply Stop Counting?

The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the court with the utmost reverence and solicitude.

This is important and vital, and one doesn’t want to slag the court for the boundless attention and care it lavishes upon the most obnoxious speakers in America. After all, the First Amendment is kind of the constitutional gateway drug, the portal to the rest of the Bill of Rights. And without securing meaningful protection for the rights to speak, assemble, worship, and publish, so many of our other rights might be illusory. Great. Stipulated.

That makes it extra weird whenever the assorted (lets call them largely “conservative”) justices of the Roberts court, and judges on lower courts across the land, turn their attention to the protection of other rights—equally crucial but perhaps less sexy—like, say, the right to vote or to obtain an abortion. That’s when the nameless, faceless rights seekers all blur into oblivion, a great unwashed mass of undifferentiated shadow people. And that is when some judges find it all too simple to bat these rights away with a stroke of the pen.

In the past few weeks, it’s been astonishing to contrast the regard afforded to individual speech rights with the cavalier dismissal of other, equally precious hallmarks of democracy.

There was no better reminder of this phenomenon than watching the justices simply write off the voting rights of what may well amount to 600,000 Texas voters, many black and Latino, last weekend, in the wee hours of the morning, without stated reasons or written opinion. As Richard Hasen has explained, after a nine-day trial, a district court determined that there were “hundreds of thousands of voters potentially unable to get IDs because they were hours away from the government offices issuing IDs.” The 5th Circuit Court of Appeals was not much bothered by the fact that hundreds of thousands of Texans would be forced to travel for hours to obtain proper ID for the midterms, and the Supreme Court agreed. Meh, what’s a few hundred thousand disenfranchised voters when you have “electoral integrity” to protect?

This is of course the same 5th Circuit Court of Appeals that, only weeks earlier, was not much bothered by the prospect that 900,000 women in Texas will soon live more than a 150 miles away from the nearest clinic offering a safe and legal abortion, or that 750,000 would live more than 250 miles away, if Texas’ draconian new abortion restrictions are allowed to stand and a majority of reproductive health clinics must shut down. For now, at least, the Supreme Court has blocked the law, in another unsigned order. But the staggering lack of concern for not just hundreds, not just thousands, but tens or hundreds of thousands of women was all over the 5th Circuit’s opinion.

The 5th Circuit evinced a kind of Marie Antoinette approach to individual justice in these cases. When it shut down access to both voting and abortion in Texas, it indicated without precisely saying so that as long as citizens have fast cars and flexible work schedules, they are not burdened by Texas’ regulations. And seemingly there are no Texans without fast cars and vacation time in their view. At oral argument in the case about the shutdown of 20 Texas clinics, Judge Edith Brown of the 5th Circuit heard that abortion clinic closures would leave the Rio Grande area without any providers, forcing women who live there to drive 300 miles round trip to Corpus Christi. The judge sniffed, “Do you know how long that takes in Texas at 75 miles an hour? … This is a peculiarly flat and not congested highway.”

Looking at the 5th Circuit’s screwy fractions earlier this month, Amy Davidson noted that it’s astonishing on its face that the judges who agreed to shut down Texas reproductive health clinics would deny one-sixth of Texas women reasonable access to a clinic. More astonishing still is the fact that the judges were perfectly aware that this burden would fall most heavily on women without cars, who couldn’t afford to take several days off work to travel to distant clinics. And that was OK. These facts of life affected their conclusions not at all.

The idea that judges would simply vaporize the interests of hundreds of thousands of poor and minority voters is perhaps just as amazing. By what logic do thousands of abortion-seekers and would-be voters simply stop counting?

A panel of judges on the 7th Circuit Court of Appeals was similarly unfazed by the possibility that 300,000, or 9 percent, of Wisconsin voters would be disenfranchised by that state’s new voter ID law. Whether it’s 500,000 voters or 300,000 voters or almost a million women, these numbers are just not capable of moving the judicial heartstrings.

Perhaps these hundreds of thousands of people—a seeming multitude to you and me—are dismissible because they are poor or minorities or just women, or in any event people who don’t drive really fast cars. As Judge Richard Posner painstakingly explained in his dissent in the Wisconsin voter ID case, the cost of obtaining the appropriate documentation to vote under the new Wisconsin law is somewhere in the range of $75 to $175. Adjusted for inflation, he noted, that is higher than “the $1.50 poll tax outlawed by the 24th amendment in 1964.”

There’s an equally obvious and far more troubling problem with the math on the other side of the ledger, as Michael Hiltzik points out, where people are worried about infinitesimal percentages of potential fraud. Wisconsin Gov. Scott Walker defended his state’s voter ID law by claiming it is worthwhile whether it stops “one, 100, or 1,000” illegal votes. Kansas Secretary of State Kris Kobach, another big fan of voter ID, similarly argued recently that a glitch that would result in the disenfranchising of 12,000 people wouldn’t be a “major problem” because they represent a “tiny percentage” of Kansas’ voters. Walker and Kobach pooh-pooh the disenfranchisement of tens or hundreds of thousands of state voters in order to fight the scourge of vote fraud, of which there were seven incidents in Kansas in the past 13 years, and two documented in Texas. It’s not just bad that real votes and real abortions are blocked to deter an imaginary problem (vote fraud and botched abortions). It’s that even if the problems were genuine, the math still wouldn’t work.

It’s utterly baffling, this new math. Math that holds that seven incidents of vote fraud should push hundreds and thousands of voters off the rolls. Or that hundreds of thousands of women can be denied access to safe abortion clinics, supposedly to prevent vanishingly small rates of complications. I don’t know how we have arrived at the point where members of the judicial branch—the branch trusted to vindicate the rights of the poorest and most powerless—don’t even see the poor and powerless, much less count them as fully realized humans.

This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?


By: Dahlia Lithwick, Slate, October 24, 2014

October 27, 2014 Posted by | Democracy, U. S. Supreme Court, Voting Rights | , , , , , , , | 3 Comments

“One More Barrier To Voting”: Scott Walker Could Win Thanks To Wisconsin’s Voter ID Law

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 bancgiving 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 votersusually white, wealthy, and olderhave 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

October 7, 2014 Posted by | Scott Walker, Voter ID, Voter Suppression | , , , , , , | Leave a comment

“What’s A Speaker To Do?”: It’s Not Looking Good For Boehner’s Anti-Obama Lawsuit

When House Speaker John Boehner (R-OH) announced his plan to sue President Barack Obama for delaying enforcement of the Affordable Care Act’s employer mandate, the reviews were swift and negative. Legally, the lawsuit seemed destined for failure. Politically, it looked like a dud that could actively backfire on the GOP.

Two months later, things aren’t looking much better for House Republicans’ quest to scramble the balance of power in Washington.

On Tuesday, a federal appeals court tossed out a different lawsuit challenging the Obama administration’s employer mandate delay. The 7th Circuit Court of Appeals in Chicago ruled that the Association of American Physicians and Surgeons had no right to sue.

Politico’s Jennifer Haberkorn reports:

A unanimous three-judge panel threw out the case only three days after oral argument, a breakneck speed.

The physicians’ group argued that the Obama administration doesn’t have the right to delay the implementation of the employer mandate, particularly without delaying the individual mandate, too. The doctors said they are harmed because when people pay the penalty, they have less income to buy medical care from them.

“The [Supreme] Court has rejected efforts by one person to litigate about the amount of someone else’s taxes (or someone else’s subsidies, which are taxes in reverse),” Judge Frank Easterbrook wrote for the three-judge panel, which also included Judges William Bauer and Richard Posner. All three were nominated to the bench by Republican presidents.

This creates an obvious dilemma for Boehner and the House GOP, who are expected to advance a very similar argument. Making matters worse, their original legal team has jumped ship.

On Friday, The New York Times reported that attorney David B. Rivkin Jr., who had agreed to take the case on behalf of House Republicans, “withdrew from the case under pressure after facing criticism that he had taken on an overly partisan lawsuit.” The report adds that some of Rivkin’s partners feared that the suit would hurt the firm’s credibility, presumably due to its divisive nature and extremely long odds for success.

The new attorney handling the suit, William A. Burck, has recently popped up in the news for helping House Republicans sue Attorney General Eric Holder to turn over documents related to the “Fast and Furious” gun-running scandal, and for defending former Virginia first lady Maureen McDonnell in her corruption trial (neither ended particularly well).

So what is Speaker Boehner to do? He could abandon his plan in the name of fiscal conservatism, and save $350,000 for the taxpayers (and his caucus from a lot of embarrassment). But Republicans still have plenty of fundraising to do before Election Day, so expect them to plow ahead — and to refuse to rest until Obamacare is fully implemented.


By: Henry Decker, The National Memo, September 23, 2014

September 24, 2014 Posted by | House Republicans, John Boehner, Politics | , , , , , , | 1 Comment


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