mykeystrokes.com

"Do or Do not. There is no try."

“Another Long And Ignoble Tradition”: Why The Supreme Court Is Allowing Texas To Hold An Unconstitutional Election

This weekend, the Supreme Court allowed Texas to apply new, stringent voting restrictions to the upcoming midterm elections, which could potentially disenfranchise hundreds of thousands of voters lacking proper identification. As Justice Ruth Bader Ginsburg explained in a short but brilliant dissent, this is a disaster for the citizens of Texas: the upcoming elections will be conducted under a statute that is unconstitutional on multiple levels.

How could this happen?

There is, admittedly, a quasi-defensible reason for the court’s latest move. The Supreme Court is usually reluctant to issue opinions that would change election rules when a vote is imminent. For example, the court recently acted to prevent Wisconsin from using its new voter ID law in the upcoming midterms, coming to the opposite result from the Texas case. That is the principle at work here, and on a superficial level it makes sense.

But as Ginsburg — joined by Justices Elena Kagan and Sonia Sotomayor — points out, the general reluctance to change election rules at the last minute is not absolute. In Wisconsin, using the new law would have created chaos. For example, absentee ballots would not have indicated that identification was necessary for a vote to count, so many Wisconsin voters would have unknowingly sent in illegal ballots.

In the Texas case, conversely, there is little reason to believe that restoring the rules that prevailed before the legislature’s Senate Bill 14 would have been disruptive. “In all likelihood,” the dissent observes, “Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements.”

And more importantly, some risk of disruption is a price worth paying to prevent an election from being conducted under unconstitutional rules. The Texas statute, which is extreme even by the standards of contemporary Republican vote-suppression efforts, is not remotely constitutional.

The Texas law has all the defects of every law that requires photo ID to vote. You don’t have to take my word for it — you can read the recent tour de force opinion of the idiosyncratic, immensely influential Judge Richard Posner of the Court of Appeals for the Seventh Circuit in Chicago. Posner initially wrote an important opinion upholding an Indiana voter ID law, which was ultimately upheld by the Supreme Court. But last week, he concluded based on new evidence that the laws are “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

The fundamental problem with the ID requirements is that they are a bad solution to a non-existent problem. Not only is voter impersonation exceedingly rare, even in theory it would be impossible to steal an election by having large numbers of people pretend they are other voters. Election thefts are accomplished by manipulating vote counts or manufacturing fake votes after the fact, not by having an army of impostors cast votes!

The costs in vote suppression, however, are real, and since voter ID laws don’t accomplish anything, even miniscule costs cannot be worth it.

But the Texas law is much worse than typical voter ID laws. As the Ginsburg dissent explains, “[I]t was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result,” and hence violates the Voting Rights Act (and, presumably, the Fourteenth Amendment). All voter ID laws are discriminatory in effect, but Texas public officials made little effort to hide the extent to which the laws were intended to suppress the minority vote to protect Republican incumbents from demographic change. Indeed, the only reason the law was able to go into effect in the first place was the Supreme Court’s notoriously shoddy 2013 opinion gutting the Voting Rights Act.

In and of itself, this should be enough to prevent the law from going into effect. But the legal deficiencies of Texas’ election law do not end there. None of the forms of ID required by the statute are available for free. As the dissenters note, the costs are not necessarily trivial: “A voter whose birth certificate lists her maiden name or misstates her date of birth,” Ginsburg explains, “may be charged $37 for the amended certificate she needs to obtain a qualifying ID.”

Texas is simply not constitutionally permitted to do this. The Twenty-Fourth Amendment forbids poll taxes, and the Supreme Court held in 1966 that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”

The fact that Texas’ law is unconstitutional twice over — both by being racially discriminatory and imposing a direct cost on voting — is not a coincidence. Even after racial discrimination in voting was made illegal by the Fifteenth Amendment, for nearly a century states were able to use formally race-neutral measures like poll taxes and literacy tests to disenfranchise minority voters. The Texas law is very much part of this long and ignoble tradition.

Unfortunately, the Supreme Court’s decisions in 2013 and 2014 allowing the Texas law to go into effect are part of another long and ignoble tradition: the Supreme Court collaborating with state governments to suppress the vote rather than protecting minorities against discrimination. As long as Republican nominees control the Supreme Court, this problem is likely to get worse before it gets better.

 

By: Scott Lemieux, Professor of Political Science at the College of Saint Rose in Albany, N.Y; The Week, October 20, 2014

October 21, 2014 Posted by | Texas, U. S. Supreme Court, Voter ID | , , , , , , | Leave a comment

“A Purposefully Discriminatory Law”: Ruth Bader Ginsburg Pens Scathing Dissent On Texas Voter ID Law

Supreme Court Justice Ruth Bader Ginsburg issued a six-page dissent early Saturday morning, blasting the court’s decision to allow Texas to use its new voter ID law in the November elections. She was joined in the dissent by Justices Elena Kagan and Sonia Sotomayor.

“The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” Ginsburg wrote.

Ginsburg disputed the Fifth Circuit court of appeals’ argument that is was too close to the November election to stop the law. Early voting begins on Monday in Texas.

“In any event, there is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral process,” she wrote. “Texas need only reinstate the voter identification procedures it employed for ten years (from 2003 to 2013) and in five federal general elections.”

Ginsburg argued that the Fifth Circuit was remiss to ignore the findings of a full trial in district court, which found that the law was “enacted with a racially discriminatory purpose and would yield a prohibited disriminatory result.”

District Court Judge Nelva Gonzalez Ramos struck down the law earlier this month on the grounds that it would serve as a deterrent to a large number of registered voters, most of them black or Hispanic. “Based on the testimony and numerous statistical analyses provided at trial, this Court finds that approximately 608,470 registered voters in Texas, representing approximately 4.5% of all registered voters, lack qualified SB 14 ID and of these, 534,512 voters do not qualify for a disability exemption,” Gonzalez Ramos wrote.

Ginsburg echoed these findings in her dissent, though Texas officials dispute these figures. “The potential magnitude of racially discriminatory voter disenfranchisement counseled hesitation before disturbing the District Court’s findings and final judgment,” Ginsburg wrote. “Senate Bill 14 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.”

Ginsburg pointedly added that “racial discrimination in elections in Texas is no mere historical artifact. To the contrary, Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970.”

 

By: Braden Goyette, The Huffington Post Blog, October 18, 2014

 

October 19, 2014 Posted by | Discrimination, Ruth Bader Ginsburg, Voter ID | , , , , , , , | Leave a comment

“Texas’ Poll Tax In Disguise”: A Republican Voter Exclusion Campaign

In 1964, the American people enacted the 24th Amendment, to prevent the exclusion of the poor from the ballot box. In his speech last week at the NAACP convention, U.S. Atty. Gen. Eric H. Holder Jr. wasn’t indulging in election-year rhetoric when he condemned Texas’ 2011 voter photo identification law as a poll tax that could do just that. He was speaking the hard legal truth.

The Justice Department would be right to challenge this new law as an unconstitutional poll tax. The department has temporarily blocked the Texas law under special provisions of the Voting Rights Act that prevent states with a history of discrimination from disadvantaging minority groups. But the

attorney general should go further and raise a 24th Amendment challenge against Texas and other states that are joining the effort to bar the poor from the polls. This exclusionary campaign should not be allowed to destroy a great constitutional achievement of the civil rights revolution.

The 24th Amendment forbids the imposition of “any poll tax or other tax” in federal elections. Texas’ law flatly violates this provision in dealing with would-be voters who don’t have a state-issued photo ID. To obtain an acceptable substitute, they must travel to a driver’s license office and submit appropriate documents, along with their fingerprints, to establish their qualifications. If they don’t have the required papers, they must pay $22 for a copy of their birth certificate.

If they can’t come up with the money for the qualifying documents, they can’t vote. But the 24th Amendment denies states the power to create such a financial barrier to the ballot box.

Texas’ violation is particularly blatant. In drafting its law, the Legislature rejected a provision that would have provided free copies of the necessary documents. Rather than paying for this service out of the general revenue fund, it chose to disqualify voters who couldn’t pay the fee. This is precisely the choice forbidden by the Constitution.

The 24th Amendment doesn’t only invalidate the $22 tax. Texas also can’t impose unnecessarily arduous certification procedures. The Supreme Court took up this issue shortly after the amendment was ratified in 1964. The state of Virginia had told its citizens they could avoid its $1.50 poll tax only if they filed a formal certificate establishing their residency. Lars Forssenius and others refused to comply, and a near-unanimous Supreme Court in 1965 agreed with them. Chief Justice Earl Warren wrote in the ruling that the state’s administraton of its residency certificate requirement was a “real obstacle to voting in federal elections” that “abridged” the franchise. He emphasized that constitutional end-runs were not permitted. “For federal elections,” he explained, “the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed.”

This broad functional view of taxation is firmly rooted in our constitutional tradition. In his recent opinion in the healthcare case, for example, Chief Justice John G. RobertsJr.adopted the same approach in finding that the “penalty” imposed by the Affordable Care Act was the functional equivalent of a tax.

But in Warren’s ruling, the same broad approach to taxation led to a very different conclusion. Unlike Roberts, Warren was not marking out the boundaries of congressional power. He was restricting the power of the states to impose unnecessary administrative barriers that were the functional equivalents of poll taxes.

Applying Warren’s approach to the present day has large practical implications. The estimated number of registered voters in Texas without valid IDs ranges from 167,000 (according to the state) to more than 1 million (according to the federal government). The Justice Department also emphasizes that minority groups are disproportionately affected. What is more, 10 other states have passed similar laws in the last two years alone. All these statutes raise fundamental problems under the 24th Amendment.

Curiously, these problems have been overlooked in the escalating wave of challenges to this recent round of exclusionary legislation. Civil rights lawyers have focused instead on more familiar texts such as the Voting Rights Act and the 14th Amendment. Though these provisions are important, they were created in response to a host of other issues. The poll tax amendment, in contrast, was focused on the very problem that now threatens again to undermine our democracy: imposing costs on the poor that prevent them from voting.

The attorney general was right to recall the amendment from legal obscurity, and to insist that we remember the determined effort by the civil rights generation to end this disgraceful practice forever.

 

By: Bruce Ackerman and Jennifer Nou, The Los Angeles Times, July 15, 2012

July 15, 2012 Posted by | Civil Rights, Election 2012 | , , , , , , , | Leave a comment

How States Are Rigging The 2012 Election

An attack on the right to vote is underway across the country through laws designed to make it more difficult to cast a ballot. If this were happening in an emerging democracy, we’d condemn it as election-rigging. But it’s happening here, so there’s barely a whimper.

The laws are being passed in the name of preventing “voter fraud.” But study after study has shown that fraud by voters is not a major problem — and is less of a problem than how hard many states make it for people to vote in the first place. Some of the new laws, notably those limiting the number of days for early voting, have little plausible connection to battling fraud.

These statutes are not neutral. Their greatest impact will be to reduce turnout among African Americans, Latinos and the young. It is no accident that these groups were key to Barack Obama’s victory in 2008 — or that the laws in question are being enacted in states where Republicans control state governments.

Again, think of what this would look like to a dispassionate observer. A party wins an election, as the GOP did in 2010. Then it changes the election laws in ways that benefit itself. In a democracy, the electorate is supposed to pick the politicians. With these laws, politicians are shaping their electorates.

Paradoxically, the rank partisanship of these measures is discouraging the media from reporting plainly on what’s going on. Voter suppression so clearly benefits the Republicans that the media typically report this through a partisan lens, knowing that accounts making clear whom these laws disenfranchise would be labeled as biased by the right. But the media should not fear telling the truth or standing up for the rights of the poor or the young.

The laws in question include requiring voter identification cards at the polls, limiting the time of early voting, ending same-day registration and making it difficult for groups to register new voters.

Sometimes the partisan motivation is so clear that if Stephen Colbert reported on what’s transpiring, his audience would assume he was making it up. In Texas, for example, the law allows concealed handgun licenses as identification but not student IDs. And guess what? Nationwide exit polls show that John McCain carried households in which someone owned a gun by 25 percentage points but lost voters in households without a gun by 32 points.

Besides Texas, states that enacted voter ID laws this year include Kansas, Wisconsin, South Carolina and Tennessee. Indiana and Georgia already had such requirements. The Maine Legislature voted to end same-day voter registration. Florida seems determined to go back to the chaos of the 2000 election. It shortened the early voting period, effectively ended the ability of registered voters to correct their address at the polls and imposed onerousrestrictions on organized voter-registration drives.

In 2008, the U.S. Supreme Court, by 6 to 3, upheld Indiana’s voter ID statute. So seeking judicial relief may be difficult. Nonetheless, the Justice Department should vigorously challenge these laws, particularly in states covered by the Voting Rights Act. And the court should be asked to review the issue again in light of new evidence that these laws have a real impact in restricting the rights of particular voter groups.

“This requirement is just a poll tax by another name,” state Sen. Wendy Davis declared when Texas was debating its ID law early this year. In the bad old days, poll taxes, now outlawed by the 24th Amendment, were used to keep African Americans from voting. Even if the Supreme Court didn’t see things her way, Davis is right. This is the civil rights issue of our moment.

In part because of a surge of voters who had not cast ballots before, the United States elected its first African American president in 2008. Are we now going to witness a subtle return of Jim Crow voting laws?

Whether or not these laws can be rolled back, their existence should unleash a great civic campaign akin to the voter-registration drives of the civil rights years. The poor, the young and people of color should get their IDs, flock to the polls and insist on their right to vote in 2012.

If voter suppression is to occur, let it happen for all to see. The whole world, which watched us with admiration and respect in 2008, will be watching again.

By: E. J. Dionne, Opinion Writer, The Washington Post, June 19, 2011

June 26, 2011 Posted by | Class Warfare, Conservatives, Constitution, Democracy, Elections, Equal Rights, GOP, Governors, Guns, Ideologues, Ideology, Journalists, Lawmakers, Media, Politics, Press, Pundits, Republicans, Right Wing, State Legislatures, States, Supreme Court | , , , , , , , , , | Leave a comment

   

%d bloggers like this: