“A Much More Difficult Response”: Should The Democrats Abandon Hope Of Getting Relief From Voter Suppression In The Courts?
Yesterday there were two rulings on voting rights cases, both of which were decided in favor of the liberal side of the argument. But don’t get too excited. I hate to be an eternal pessimist on this issue, but neither case is likely to turn out the way liberals and Democrats want. In fact, we’re almost at the point where — until the current makeup of the Supreme Court changes — liberals should keep themselves from ever thinking the courts are going to stop Republican efforts at voter suppression.
I’ll get to the consequences of that in a moment, but first let’s look at the two cases yesterday. The first was in Texas, where a federal judge struck down the state’s voter ID law. In refreshingly blunt language, the judge called the law an “unconstitutional poll tax,” and said that the legislators who passed it “were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.” Which is absolutely true, but that doesn’t mean the ruling is going to be upheld by a Supreme Court that has made it clear that they have little problem with almost any restrictions on voting rights.
But what about the Wisconsin case? There, the Supreme Court halted the implementation of a voter ID law yesterday, so doesn’t that mean they’re open to striking down voter ID laws? Not really. Ian Millhiser explains:
Although the Supreme Court’s order does not explain why the Court halted the law, a short dissenting opinion by Justice Samuel Alito provides a window into the Court’s reasoning. Alito begins his dissent by admitting that “[t]here is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.” In a 2006 case called Purcell v. Gonzalez, the Supreme Court explained that judges should be reluctant to issue orders affecting a state’s election law as an election approaches. “Court orders affecting elections,” according to Purcell, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” It is likely that the six justices who agreed to halt the Wisconsin law relied on Purcell in reaching this decision.
Just the other day, the Court allowed a North Carolina voter suppression law to go forward, but in that case the law had already been implemented. And that’s why we shouldn’t be encouraged by the Wisconsin ruling: it doesn’t imply that the Court believes these restrictions are unconstitutional, only that it would be a mess to have them take effect just a few weeks before the election. It’s a narrow question of election procedure.
It would be going too far to say that Democrats should just abandon all court challenges to these voting laws. You never know what might happen—by the time the next major case reaches the Supreme Court, one of the five conservatives could have retired. But the only real response is the much more difficult one: a sustained, state-by-state campaign to counter voting suppression laws by registering as many people as possible, helping them acquire the ID the state is demanding, and getting them to the polls. That’s incredibly hard, time-consuming, and resource-intensive work—much more so than filing lawsuits. But Democrats don’t have much choice.
By: Paul Waldman, Contributing Editor, The American Prospect, October 10, 2014
“Clever Assaults On The Right To Vote”: Restrictive Voting Laws Deserve Justice Department Scrutiny
In certain circles, it has become fashionable to believe that the Voting Rights Act is an outdated vestige of a crueler time, an unnecessary bit of bureaucracy that imposes its own injustices. Last year, the U.S. Supreme Court endorsed that view when it threw out one of the act’s more powerful provisions.
Those who believe that the Voting Rights Act is an artifact of a bygone era eagerly point out that the nation has elected its first black president — proof, they say, that racism is dead. In that view, the right to vote is guaranteed and each person is equally represented in the political system of this great democracy.
Eric Holder, the outgoing attorney general, knew better. He understood that the right to vote is under assault, and he did what he could to protect it, starting with a rehabilitation of the Civil Rights Division, which had fallen into dysfunction in the administration of George W. Bush. That may be Holder’s defining accomplishment.
During the Bush era, conservative partisans launched the most insidious onslaught against minority voting rights since the 1960s: the voter ID movement. Claiming, falsely, that the ballot needs more protection against fraud, they promoted restrictive voting laws in state legislatures around the country. Those partisans had their own agents within the Civil Rights Division, where they worked to ensure that dubious voter ID laws would not undergo any scrutiny.
Their mischief making has largely succeeded, not only in disenfranchising legitimate voters, but also in fooling the public about their intent. Polls show overwhelming support for laws that supposedly protect against fraud.
But make no mistake about it: Voter ID laws have next to nothing to do with protecting the ballot box. Instead, they are a relatively clever assault on the right to vote. As the nation has become browner, the GOP has found that neither its politicians nor its policies are popular among voters of color. So, rather than adopt a more inclusive brand of politics, the party has decided that denying the franchise to even a few hundred Democratic-leaning voters can be useful.
How do they accomplish that? Most of the state legislatures that have enacted such laws — and most of those are dominated by Republicans — have insisted that voters use a driver’s license as proof of identity. Research has shown that poor black and Latino voters, who usually vote for Democrats, are less likely to have automobiles than white voters.
Some elderly voters don’t even have birth certificates because they were born at home in an era when such documents were not required for daily life. In Texas, for example, voting rights groups say some rural residents would have to travel 100 miles to get proper documents.
But isn’t this necessary to prevent voter fraud? In fact, research has also shown that in-person fraud of the sort that voter ID laws are designed to prevent is virtually nonexistent. No matter what you’ve heard about voter fraud, you’ve probably not heard of a case of voter impersonation. In other words, no one shows up at the polls claiming to be John Boehner except John Boehner.
With that in mind, Holder entered the fray, sending Justice Department lawyers to challenge onerous voting requirements, including provisions in some states that sought to roll back conveniences such as early voting. They mounted successful challenges in Texas, South Carolina and Florida.
Even after the Supreme Court gutted the VRA, the Justice Department has kept up the good fight. It has filed suit against a restrictive law in North Carolina and joined lawsuits in Ohio and Wisconsin. Ultimately, some of those cases will likely end up before the nation’s highest court — and many civil rights lawyers are predicting the worst. A Supreme Court that doesn’t mind showing its partisan stripes could effectively abolish the Voting Rights Act.
But that will only make the work of the Civil Rights Division more important, not less. Here’s hoping that Holder’s successor is up to the job.
By: Cynthia Tucker, The National Memo, October 4, 2014
“An Important Voting Rights Victory”: Ohio Early Voting Cuts Violate The Voting Rights Act
Ohio keeps trying to cut early voting and the federal courts keep striking the cuts down.
Last year, Ohio’s Republican-controlled legislature cut a week of early voting and eliminated the “Golden Week” when voters can register and vote on the same day during the early voting period. GOP Secretary of State Jon Husted also issued a directive prohibiting early voting on the two days before the election, and on weekends and nights in the preceding weeks—the times when it’s most convenient to vote.
Today a federal court in Ohio issued a preliminary injunction against the early voting cuts, which it said violated the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act, ordering Ohio to restore early voting opportunities before the midterms. “African Americans in Ohio are more likely than other groups to utilize [early] voting in general and to rely on evening and Sunday voting hours,” wrote District Court Judge Peter Economus, a Clinton appointee. As a consequence, the early voting cuts “result in fewer voting opportunities for African Americans.”
The lawsuit was brought by the ACLU and the Ohio NAACP. In 2012, 157,000 Ohioans cast ballots during early voting hours eliminated by the Ohio GOP. Overall, 600,000 Ohioans, 10 percent of the electorate, voted early in 2012.
Blacks in Ohio were far more likely than whites to vote early in 2008 and 2012. “In the November 2008 election in [Cleveland’s] Cuyahoga County, African-Americans voted early in person at a rate over twenty times greater than white voters,” according to the Lawyers’ Committee for Civil Rights. In cities like Cincinnati, Columbus and Dayton blacks voted early in numbers far exceeding their percentage of the population.
There’s an important backstory here. Early voting became a critical reform in Ohio after the disastrous 2004 election. Once Democrats and minority groups began using it in large numbers, Republicans repeatedly tried to curb early voting. As I’ve previously reported:
In 2004, Ohio had the longest lines in the country on Election Day, with some voters—particularly in large urban areas—waiting as long as seven hours to vote. A DNC survey estimated that 174,000 Ohioans—3 percent of the state’s electorate—left without voting. George W. Bush won the state by just 118,000 votes.
In response to the long lines, Ohio adopted thirty-five days of early voting in 2008, including on nights and weekends. But following the large Democratic turnout in 2008, Ohio Republicans drastically curtailed early voting in 2012 from thirty-five to eleven days, with no voting on the Sunday before the election, when African-American churches historically rally their congregants to go to the polls. Voting rights activists subsequently gathered enough signatures to block the new voting restrictions and force a referendum on Election Day. In reaction, Ohio Republicans repealed their own bill in the state legislature, but kept a ban on early voting three days before Election Day (when 98,000 Ohioans voted in 2008), adding an exception for active duty members of the military, who tend to lean Republican.
These cuts disproportionately impacted black voters, who made up a majority of early voters in large urban areas like Cleveland’s Cuyahoga County and Dayton’s Montgomery County in 2008. Ohio Republicans brazenly tried to cut early voting hours in Democratic counties while expanding them in Republican ones. GOP leaders admitted the cuts in Democratic counties were motivated by racial politics. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine,” said Doug Preisse, the GOP chair in Columbus’s Franklin County.
These voter suppression efforts backfired in 2012. The Obama campaign successfully sued to reinstate early voting on the three days before Election Day (although Secretary of State Jon Husted limited the hours) and the overall share of the black electorate increased from 11 percent in 2008 to 15 percent in 2012.
Despite the public and legal backlash, Ohio Republicans pressed ahead with early voting cuts in 2013. Now they’ve lost in court, again. (Some Ohio Republicans are also trying to pass a new voter ID law. Nine hundred thousand Ohioans, including one in four African-Americans, don’t have a government-issued ID).
Judge Economus’s ruling could have broad significance. Ohio is once again a critical swing state in 2014, with competitive races for governor and secretary of state.
More broadly, the courts are split over how to interpret the remaining provisions of the Voting Rights Act in the wake of the Supreme Court’s gutting a key part of the law last June. This is the first time a court has struck down limits on early voting under Section 2 of the VRA. A Bush-appointed judge recently denied a preliminary injunction to block North Carolina’s cuts to early voting and the elimination of same-day registration, a lawsuit similar to the one in Ohio. A Wisconsin judged blocked the state’s voter ID law under Section 2, while a similar trial is currently underway in Texas.
As Rick Hasen points out, we still don’t know if the courts will consistently stop new vote denial efforts like voter ID and cuts to early voting. And the Roberts Court could very well overturn any good precedents in the lower courts.
The Ohio ruling is an important voting rights victory. But it won’t be the last word.
By: Ari Berman, The Nation, September 4, 2014
“The Wrong Kind Of People Voting”: Why Voter ID Laws Pose Long Term Danger To GOP
A trial begins today in a federal courtroom in Texas to determine the constitutionality of the state’s voter identification law, which is widely acknowledged to be the most restrictive in the nation. It has gone through a number of twists and turns: Passed in 2011, it was struck down in federal court in 2012 as a violation of the Voting Rights Act. Then in 2013 the Supreme Court gutted the VRA. Now the law faces a new trial based on a different VRA section.
In the end, the Republicans who passed this law may prevail, particularly since the only racial discrimination the conservative majority on the Supreme Court apparently finds troubling is the kind that might affect a white person somewhere. But Republicans may have underestimated just how much damage they continue to do to their party’s image by trying, anywhere and everywhere, to make it as hard as possible for the wrong people to vote.
True, voter ID is not at the forefront of the national debate. Majorities do tell pollsters that you should have to show ID to vote, since it has a certain intuitive appeal. But when the subject is actually debated and discussed in the news, it drives people away from the GOP — and not just any people, but precisely the people the party wants so desperately to improve among to stay competitive in national elections.
First, some background. While there is a certain amount of voter fraud in American elections, almost all of it happens through absentee ballots. The only kind of fraud prevented by voter ID laws is in-person voter impersonation, which is incredibly rare. As Zachary Roth has detailed, when Greg Abbott became the state’s attorney general, he vowed a crusade against the “epidemic” of voter fraud in the state. How many cases did he find that would have been stopped by the ID law? Two. Meanwhile, according to the state’s own figures, almost 800,000 Texans lack the appropriate state-issued ID to vote.
The best you can say about the Texas law and others like it is that the motivation for them isn’t so much old-style racism as naked partisanship. The problem today’s Republicans have with black people voting isn’t the fact that they’re black, it’s the fact that they’re Democrats. Republicans also want to make it hard for Latinos to vote, and young people, and urban dwellers who don’t drive. When they wrote into the Texas law that a student ID from a state university wouldn’t count as identification but a concealed carry gun permit would, they made it quite clear that the point was to discriminate on the basis of your likelihood to vote Democratic. These laws often are accompanied by measures doing things like restricting early voting, particularly on Sundays when many black churches conduct voting drives.
So let’s dispense with the laughable notion that the reason many Republican-controlled states have passed a voter ID law is nothing more than deep concern for the integrity of the ballot. With the exception of the claim that laws mandating absurd restrictions on abortion providers are really just about protecting women’s health, there is probably no more disingenuous argument made in politics today. Yes, Democrats who oppose these laws are also thinking about their party’s political fortunes. But one side wants to make it easy for people to vote, and one side is trying to make it harder.
The success of voter ID laws in suppressing votes has been mixed. Some studies have found little or no impact on turnout, while others have shown significant declines in it. Where the laws fail to achieve their goal of suppressing votes, it’s probably because Democrats often undertake substantial effort to counteract them by registering people and helping them acquire the proper identification.
In any case, this law and others like it may well end up surviving. While this year courts have struck down voter ID laws in Pennsylvania and Wisconsin, the laws are likely to get a friendly hearing from the conservatives on the Supreme Court, which first upheld a voter ID law in 2008. And for Republicans, the calculation seems straightforward enough. They know that the groups with whom they’re strongest, like older white voters, homeowners, rural voters, married voters, and so on, are the ones most likely to have driver’s licenses and therefore not find an ID law to be a hindrance. Make voting an extra hassle for the wrong kind of voters, and you may get a few thousand, or a few hundred thousand, to stay home — making the difference in a close election.
But for a party that is struggling to appeal to precisely those demographic groups targeted by voter ID laws, such short-term gains risk getting swamped by long-term damage to its image. The voter ID debate reinforces everything the GOP doesn’t want people to think about it: that it’s the party of old white people, that it has contempt for minorities, that it knows nothing about the lifestyles and concerns of young people (who are far less likely than their parents were to get driver’s licenses), and that it will do virtually anything to win. You can’t spend a bunch of energy doing something that will make it harder for, for instance, Latinos to cast ballots, then turn around and say, “By the way, if you manage to make it past all these obstacles we’ve put in your path, we’d really like your vote.” But so far, few in the GOP seem to understand that.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, September 2, 2014
“Compassionate Paleolibertarianism”: Rand Paul Offers Free Eye Exam With Deportation
Not long ago, Rand Paul appeared at a fund-raiser for full-time immigration hawk and occasional racist Steve King, where he found himself uncomfortably close to a young Mexican immigrant, causing him to panic and flee. Now Paul tells Breitbart News he supports the House bill that would end President Obama’s policy of granting relief from deportation to undocumented immigrants who were brought here as children.
As Sam Stein points out, Paul has been telling Republicans they need to reach out to nonwhite voters and show them they care. In an odd bit of timing, Paul’s endorsement of draconian immigration policy coincides with his trip to Guatemala to perform free eye surgery. It was just Rand Paul and some Guatemalans who need medical care. Plus a wee entourage consisting of “three television cameras, three photographers, six reporters, a political aide, two press secretaries, [and] conservative activist David Bossie.” Basically, your standard medical crew, in other words. You could risk getting medical treatment without the director of such films as Battle for America (starring Dick Morris) standing by, but why risk it?
One might detect a dissonance between Paul’s warm-and-fuzzy medical mission and his hard-line stance toward Dreamers. But it actually fits together quite sensibly. The 2016 hopeful opposes universal health insurance, and he wants to deport half a million people who grew up in America. But Rand Paul will personally provide every deported immigrant with a free eye exam. Call it compassionate paleolibertarianism.
By: Jonathan Chait, Daily Intelligencer, New York Magazine, August 22, 2014
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