“The Rest Of The Story”: What’s The Deal With The Pennsylvania Voter-ID Law?
The Keystone State goes to court this week over its voter-ID law. So what is that again? And where does the Department of Justice fit in?
We get it. Real-life court dramas are not as exciting as Judge Judy (and definitely not as exciting as Judge Joe Brown). So we totally don’t judge you for not knowing why the hell Pennsylvania’s voter-ID law is suddenly in court.
Of course, you thought you’d covered your bases when you read our early explanation of voter-ID laws. (If you didn’t, well, you only need to be a little embarrassed.) You know there’s basically no evidence of in-person voter fraud where one person impersonates another—the only type of fraud voter ID guards against. You know that the big fights were in Texas and South Carolina. So why is everyone so worked up about some court case in Harrisburg?
Well let us be quick and leave you plenty of time for Court TV.
So a bunch of states have voter-ID laws—what’s the big deal about Pennsylvania?
Well, not shockingly in a presidential election year, a lot of it boils down to politics. Pennsylvania is a swing state in a close election, so every vote each side can pull counts big. Most people believe voter-ID laws help Republicans win elections, because poor and nonwhite voters tend to vote Democratic and also tend to be the populations less likely to have the necessary ID. In case there was any doubt about those intentions, the state House majority leader told an audience that passing voter ID was “going to allow Governor Romney to win the state of Pennsylvania.” (He evidently didn’t get the whole memo about pretending we need this to combat nonexistent voter fraud.)
But as it turns out, the number of voters in Pennsylvania who might get disenfranchised is huge. The state law requires a government-issued photo id with an expiration date. The law was geared toward voters using an ID issued by the state Department of Transportation. During the debates earlier this year, the governor’s office said that 99 percent of state voters already had such an ID. But when the secretary of the commonwealth did a study in early July, it showed that as many as 758,000 people—or 9 percent of voters—didn’t have an ID from the Department of Transportation. Other studies estimate that there could be a million Pennsylvania voters without ID. That’s more than the margin of victory Barack Obama had in 2008.
While some people are worked up about what this means for the presidential election, there’s also this little-bitty other detail: that the right to vote is a cornerstone of our democracy. In Philadelphia (you know, that place where the Declaration of Independence was signed) as many as 18 percent of voters lack the necessary identification. Democrat or Republican, the whole denying-tons-of-people-their-right-to-vote thing has got some pretty upset as well.
Is someone trying to fight the law?
Damn straight someone is. Wednesday is the first day of court for a lawsuit brought by the American Civil Liberties Union (ACLU), the Advancement Project, and other voting-rights groups. This lawsuit argues that the voter-ID law violates the “free and equal” elections clause in the state constitution and adds a new and unnecessary burden to voters. The case has some pretty sympathetic plaintiffs, including a 93-year-old civil-rights activist who marched with Martin Luther King Jr. Several of the plaintiffs are elderly women of color who cannot get a photo ID because they cannot get copies of their birth certificates.
“What they’re saying in Pennsylvania is that the fundamental right to vote in Pennsylvania is broader than the right to vote under the Constitution,” says Jon Greenbaum, the chief counsel at the Lawyers Committee. That means that even though the Supreme Court said voter-ID laws didn’t violate the 14th Amendment, which guarantees the right to vote, the ACLU and others claim that it does violate Pennsylvania’s guaranteed right to vote.
Greenbaum says that if the court agrees that the right to vote in Pennsylvania is broader than it is under the 14th Amendment, then the state will likely have to prove that the voter-ID law is necessary to prevent voter fraud. That’s going to be tough, because the state has already admitted that there are no known cases of in-person voter fraud.
However, if the state decides that the right to vote in Pennsylvania is no different than it is under the U.S. Constitution, then the burden will be on the plaintiffs. They will have to show that this is an extreme burden for voters and one that will result in many people losing their right to vote. That would be a harder case for them to prove. Either way, the case is supposed to last about a week.
Why isn’t the Department of Justice bringing them to court? Didn’t they stop Texas’s and South Carolina’s laws?
Chill out, Nancy Grace—the Justice Department isn’t just hanging around watching American Idol. As it turns out, not all states get the same treatment when it comes to the old D of J. Texas and South Carolina are both listed under Section 5 of the Voting Rights Act. That section specifically targets states with a history of voter discrimination, and for the nine states listed, the law requires the feds to approve all changes to election laws. (It’s pithily known as “preclearance.”) So before Texas and South Carolina could implement their voter-ID laws, they had to show the Department of Justice that the laws would not have a discriminatory impact. Neither state succeeded, and the Justice Department prevented the laws from being implemented. (Now both states are suing the department. Fun times in court dramas!) However, Pennsylvania is not listed under Section 5, so it did not need to get preclearance to implement the law.
But the Justice Department just announced that it’s investigating whether Pennsylvania violated Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory intent or effect.
So what are the grounds of the investigation, and how is it different from the state lawsuit?
While the state constitution case is about the fundamental right to vote, the investigation dealing with Section 2 of the Voting Rights Act will likely be all about racial discrimination. The section forbids any election law that is intended to cause discrimination or that will, in practice, result in discrimination. Greenbaum says that will be the main focus of the Justice Department effort: whether this law will make it disproportionately harder for nonwhite voters to cast their ballot. While in Section 5 cases, it falls to the state to show that it’s not discriminating, in Section 2, the burden is on the department to prove that the state is discriminating.
Right now, the Justice Department is just collecting evidence—it’s asked for tons of documents in 16 different categories. (The paper cuts alone will probably lead to some bitter Pennsylvania state employees.)
If the department winds up taking Pennsylvania to court, in some ways it will be in uncharted territory. Section 2 of the Voting Rights Act is usually used for “voter dilution” cases like redistricting. For instance, a state violates Section 2 when it spreads out minority voters into different districts where their votes are a small percentage, rather than keeping them in a district together where they can elect their candidate of choice. But until the voter-ID fad hit, there weren’t many cases of states trying to deny voters their right. According to Greenbaum, while there’s a lot of precedent to show what you have to prove in a “voter dilution” case, there’s not much to go on when it comes to showing that voters are getting denied the right to vote.
Both the state lawsuit and any potential Justice Department case face a similar hurdle: Trying to prove the impact of a law before an election is a whole lot harder than waiting until the election is over. But the groups cannot wait until afterward to litigate, since that would mean waiting until people were denied the right to vote and the election outcome would already be decided. But litigating the cases now is much harder.
The reasons are obvious. Before an election, you must show the effect of the law before it’s put in place. After the election, you can show exactly what happened and who was denied the right to vote. Before the election, evidence is harder to collect. For instance, many people who currently lack ID may still get one before the election. That’s why it’s good that the ACLU case has focused on several plaintiffs who cannot get an ID no matter how hard they try, for lack of documentation.
A pre-election Section 2 case would likely be an even greater challenge. But Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice, says it’s certainly worth pursuing, particularly if the Justice Department can gather a lot of evidence from the state. “If Section 2 could never be used preemptively,” she says, “it would not be a sufficient protection of voting rights.”
So scratch it. This drama may give Judge Judy a run for her money.
By: Abby Rapoport, The American Prospect, July 25, 2012
“An Imagined Privilege”: Mitch McConnell’s Distorted View Of Free Speech
A newspaper will make you sign your name to a letter-to-the-editor so that you take ownership of the content and consequences of your 250-word rant against the injustices of the age. But when billionaire oil and gas tycoons sign their names to $250 million campaign donations, you and I have no right to know what favors their favoritism might have bought, or even who they are.
Or so says Senate Republican Leader Mitch McConnell. In a recent Washington Post op-ed warning of “the dangers disclosure can pose to free speech,” McConnell turns democracy on its head when he writes of the “alarming harassment and intimidation” being waged by the Obama administration in its attempt “to single out its critics” by using the FCC, IRS, SEC and even the Department of Health and Human Services as partisan enforcers to “silence” those who support causes and positions different from its own.
Gracious. You’d think from the frenzied tone of McConnell’s urgent admonition that Democrats had proposed using the NSA to spy on Republicans without FISA Court warrants, or to rendition them off to some secret prison where Moveon.org operatives would water-board Republicans in violation of the Geneva Convention into telling all they knew about Karl Rove’s evil designs over at Crossroads GPS. You’d never suspect from what McConnell has to say that what Democratic proponents of a federal Disclose Act really have in mind is the seditious idea that million-dollar campaign donors should be publicly accountable just like everyone else.
It’s true, concedes McConnell, just as Post columnist Ruth Marcus says, that he introduced a constitutional amendment in 1987 to put spending limits on self-funded millionaires. But that was then and this is now and, besides, everyone is entitled to make a mistake.
The punitive boycotts of their businesses that reactionary billionaires might face if the public caught wind they were bankrolling unpopular politicians or causes is no different, argues McConnell (ludicrously) from the chilling effect on political activity that groups like the NAACP endured during the Jim Crow 1950s, when the State of Alabama demanded the civil rights group make public its membership list, presumably so that local Ku Klux Klansmen could more easily target NAACP members for nailing to some tree.
McConnell’s backward ideas about free speech are no less radical than the peculiar ideas he has about governing, learned no doubt as a young lad sitting at the knees of those white-suited Kentucky Colonels while they sipped their bourbons and mint juleps and sneered at the unwashed masses as they rocked on their plantation’s front porches.
For we already know that McConnell’s response to the Republican Party’s loss of the White House and its shrinkage in the US Senate to just 40 members was to use the GOP’s dwindling minority to vacate the verdict of two national elections by doing everything in their power to prevent the Democrat’s duly-elected national majority from governing.
As the New York Times reported in 2010, even before President Obama took office, McConnell had a strategy for his party: “Use his extensive knowledge of Senate procedure to slow things down, take advantage of the difficulties Democrats would have in governing and deny Democrats any Republican support on big legislation.”
On nearly every major issue, McConnell used the Senate filibuster to essentially institutionalize minority rule by holding Republican defections “to somewhere between minimal and nonexistent,” says the Times. This allowed McConnell “to slow the Democratic agenda if not defeat aspects of it.”
When Democrats refused to capitulate to Republican obstructionism, McConnell accused them of “being inflexible,” says the Times. And when Democrats cleverly found ways around McConnell’s procedural obstacles he accused them of “arrogantly circumventing the American people.”
That is what McConnell did when President Obama broke a GOP blockade and appointed a director of the Consumer Financial Protection Board Republicans were determined to keep vacant after being unable to (democratically) prevent the agency from being created in the first place.
According to McConnell’s imperious presumptions, the Republican minority has the right to unilaterally overrule the decision of the duly-elected President of the United States and both houses of Congress by preventing a consumer protection bureau created to protect the American people against Wall Street abuses from doing its work. Therefore, according to McConnell, when the President staffs the agency so it can do the job Congress has authorized it to do, it’s somehow the President who has “arrogantly circumvented” the Constitution and the American people.
“Seriously?” asks an incredulous James Fallows of the Atlantic Monthly. “This kind of thing needs to be called out for what it is: nonsense.”
We can’t yet know the full consequence of McConnell’s obstructionism. But one result we do know is that Republicans may lose a once safe seat in the Senate after Maine Senator Olympia Snowe shook the political establishment last February by announcing she would be retiring after this term. The cover story was that Snowe was fed up with “partisanship” in general. But Snowe isn’t quitting because “partisanship” in Congress had become too much for her. She’s quitting because the Republican Party has.
As her cousin, Georgia Chomas, said: social conservatives and Tea Party activists had been hounding Snowe at her home in Maine while party leaders in Washington had been ignoring the issues she cared most about. “There was a constant, constant struggle to accommodate everyone, and a lot of pressure on her from the extreme right,” said Chomas, “And she just can’t go there.”
What we have with McConnell’s obscene definition of “free speech” is not a mechanism by which a free people governs itself but rather an imagined privilege for right wing billionaires to manipulate the political process behind the scenes, in secret, and outside the bounds of customary disclosure and accountability. It is another example of reactionary elements using the rights guaranteed to them by our liberal democracy to undermine the liberal democratic regime itself.
A better understanding of free speech and why it is valued “as a method of attaining moral and political truth” is provided by Walter Lippmann. In his Essays in the Public Philosophy, Lippmann lists free speech among those “traditions of civility” which support self-government itself. But it is not just any speech that Lippmann defends, or which the Founding Fathers enshrined in our First Amendment, but speech “conceived as the means to a confrontation of opinion.”
The classic defense of freedom of speech comes from John Milton who, in 1644’s Areopagitica, asks; “Who ever knew Truth put to the worse in a free and open encounter?”
But it is a free and open encounter, says Lippmann in his typically high-minded way, that must never be treated “as a trial of strength” but rather as “a means of elucidation.”
In his wonderful new book, Our Divided Political Heart, E.J. Dionne, Jr., devotes an entire chapter to the idea that America is “One Nation, Conceived in Argument.”
But for speech to be truly “free” it must also be open to rebuttal and refutation, says Lippmann, for when genuine debate is lacking freedom of speech does not work since “unrestricted utterance leads to the degradation of opinion.”
It is sophistry, says Lippmann, “to pretend that in a free country a man has some sort of inalienable or constitutional right to deceive his fellow men. There is no more right to deceive than there is a right to swindle, to cheat, or to pick pockets.”
But that is exactly what many conservatives do claim today when they insist on the repeal of the Fairness Doctrine, which is why its elimination has been so destructive of the kind of debate Lippmann says is central to the proper working of democracies.
The discarding of the long-standing requirement that access to the public’s airwaves meant giving equal time to opposing points of view, gives to demagogues like Rush Limbaugh, Sean Hannity and (fill in the name of your favorite “leftist” broadcaster here) three or four hours of uninterrupted air time each day to inject their unchallenged poison directly into our politics, where as Lippmann says the “chaff of silliness, baseness and deception” can become so “voluminous” that it “submerges the kernels of truth” and produces such “frivolity” and “mischief” that free speech can no longer be preserved against those who “demand for a restoration of order or of decency.”
If there is a dividing line between liberty and license, says Lippmann, “it is where freedom of speech is no longer respected as a procedure of the truth and becomes the unrestricted right to exploit the ignorance and incite the passions of the people. Then freedom is such a hullabaloo of sophistry, propaganda, special pleading, lobbying and salesmanship that it is difficult to remember why freedom of speech is worth the pain and trouble of defending it.”
Fabrications and falsehoods are not expressions of freedom but applications of brute force. And where truth is unable to confront error in a live debate – as it cannot do on conservative talk radio unlimited by the Fairness Doctrine or in the negative advertising purchased by the billionaires McConnell means to keep nameless and faceless — then “some regulation is necessary” in order to reestablish that element of “confrontation” upon which the “right” to free speech is predicated, says Lippmann.
Conservatives once swore by the magical properties of “competition.” Yet, how characteristic of Mitch McConnell that his distorted view of political speech is so perfectly aligned with the diseased view he has of the American Republic he hopes to create, one in which a cabal of wealthy oligarchs are given a blank check in the name of “freedom” to deploy their over-sized financial resources in order to suffocate whatever democratic impulses still beat in America today.
By: Ted Frier, Open Salon Blog, July 11, 2012
“Civic Engagement”: Will Mitt Romney Condemn Voter Suppression At NAACP Convention?
Mitt Romney is going to address the 103rd convention of the National Organization for the Advancement of Colored People Wednesday.
Good. In recent years, Republican politicians have tended to criticize the NAACP, when they should be reaching out to the nation’s oldest civil rights organization. Romney’s acceptance of the group’s invitation is the right response and he gets credit for showing up at the convention in Houston.
The Republican presidential contender’s topic Wednesday will be “civic engagement.”
Very good. In the United States, a republic that bends toward democracy, the highest form of civic engagement has historically taken the form of voting. Americans have suffered and struggled and died for the right to vote.
As NAACP President Benjamin Todd Jealous wisely notes: “If you let someone diminish the power of your vote you will already have lost a battle.”
Unfortunately, the NAACP and allied groups have been forced to re-fight too many old battles on behalf of voting rights in recent years.
Republican legislators in states across the country, working in conjunction with the corporate-funded American Legislative Exchange Council — and, it was recently learned, the Republican National Committee — have sought to enact and implement so-called “Voted ID” laws. These laws have been condemned by good government groups, including the League of Women Voters and Common Cause, as assaults on voting rights.
The Voter ID laws, new restrictions on same-day registration and early-voting, purges of voting lists and other voter suppression schemes pose particular threats to civic engagement by African American voters and others who have historically faced discrimination based on their race, ethnicity or national origin.
“Our democracy is literally under attack from within. We have wealthy interests seeking to buy elections and when that ain’t enough, suppress the vote,” says Jealous. “There is no battle that is more important or urgent to the NAACP right now than the battle to preserve democracy itself. Let me be very clear, our right to vote is the right upon which our ability to defend every other right is leveraged.”
At the convention in Houston, Jealous and other NAACP activists have made the defense of voting rights a central focus. They are right to do so, especially in Texas, where local Republicans have been calling for the elimination of the Voting Rights Act — and where a newly-passed Voter ID law has been described by Attorney General Eric Holder as a 21st-century variation on the “poll tax.”
The question that Romney must answer Wednesday is a simple one: Which side is he on?
Is Romney on the side of the NAACP and campaigners for voting rights — including Republicans like his father, George Romney — or is he on the side of those who would suppress the vote?
If the prospective Republican nominee for president is really interested in “civic engagement,” he will call out those in his own party who seek to suppress voting rights.
By: John Nichols, The Nation, July 10, 2012
“With Eyes Wide Shut”: Right Wing Spins The Media With “Job-Killer” Claims
The media is indiscriminately using the term “job-killer” to describe government policies and programs, but without verifying or substantiating the claims, according to a new study. Use of the phrase by major media outlets has exploded since President Obama took office and rapidly circulates throughout the press with little or no fact checking of the “job killer” allegations.
“Job-Killing” Rhetoric From the Right
“The news media, by failing to seek to verify allegations made about government policies and proposals, typically act more like a transmission belt for business, Republican, and conservative sources than an objective seeker of truth when it comes to the term ‘job killer,'” its authors found.
The independent study, Job Killers in the News: Allegations without Verification, conducted by Prof. Peter Dreier of Occidental College and Christopher R. Martin of the University of Northern Iowa, reviewed the use of the term “job-killer” in stories from The New York Times, The Wall Street Journal, The Washington Post and The Associated Press going back to 1984.
The vast majority of the “job-killer” allegations were directed at federal or state government policies to regulate business (particularly policies towards the environment, taxes, health care, and raising the minimum wage). Most of the sources for the “job-killer” charges came from business spokespersons and Republican Party officials, but in around 17 percent of the articles and editorials, news outlets used the phrase without citing a source. In 91.6 percent of the stories about “job killing” government policies, the media failed to cite any evidence or quote an authoritative source to corroborate the claim.
“With little or no fact checking of ‘job killer’ allegations, Americans have no way to know if there is any evidence for these claims or whether they are simply a cynical political ploy used to discredit opponents’ policy ideas,” Dreier and Martin noted.
Indeed, according to the authors, “There is no correlation between the frequency of the phrase ‘job killer’ and unemployment rate. Instead, ‘job killer’ allegations correspond much more closely with political cycles,” particularly during election season and under Democratic administrations.
“Job-killer” allegations were barely used under the Clinton administration and virtually disappeared during the eight years George W. Bush was president — despite job growth under Clinton and job loss under Bush — and skyrocketed once Barack Obama became president. The number of news stories alleging that a particular government policy would be a “job killer” increased 1,156% between the first three years of the George W. Bush administration and the first three years of the Obama administration.
“The cavalier nature in which the ‘job killer’ allegations are reported suggests that term is used loosely by those who oppose government regulations, and they can get away with it because news organizations fail to ask—or at least report – whether they have any evidence for the claims they make,” the study’s authors wrote.
The Wall Street Journal was the most likely news organization to use the phrase with no attribution.
By: Emily Osborne, Center For Media and Democracy, June 22, 2012
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