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“Disenfranchising The Electorate”: The Questions That Will Decide The Fate Of Voting Rights In North Carolina

Three lawsuits have been filed challenging North Carolina’s new voter suppression law, which I called the worst in the nation and Rick Hasen says is the most restrictive since the passage of the Voting Rights Act in 1965. Now comes the question: Will the challenges be successful? Here are three factors that will decide the outcome in North Carolina and the future of the VRA and voting rights more broadly.

1. Can Section 2 replace Section 5 of the VRA?

Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Court’s decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst history of voting discrimination to approve their voting changes with the federal government. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 “the heart of the VRA” and said “there’s no reason for Congress to take any action” to resurrect Section 5 with a new coverage map.

This is a clever and disingenuous marketing job. In truth, Section 2 has been used almost exclusively to protect majority-minority districts during redistricting and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasn’t filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. It’s difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. “This is one of the fixes we need from Congress,” says Spencer Overton, a professor at George Washington University Law School. “We need some better, clearer standards for Section 2. The law is not well-developed.” Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.

Under Section 5, the burden would have been on North Carolina to prove that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, DOJ or the courts would have almost certainly blocked its implementation. The strong evidence of racial discrimination in this case shows the urgent need for Congress to resurrect Section 5.

The outcome under Section 2 “will depend on a lot of discretionary factors instead of a straightforward law, which is why Congress needs to update the VRA,” says Overton. “It’s uncharted territory, so no one really knows what will happen,” says Dale Ho, director of the ACLU’s voting rights project. The federal lawsuits have been assigned to Judge Thomas Schroeder of the Middle District of North Carolina, a George W. Bush appointee regarded as an establishment Republican.

2. Did North Carolina Republicans intentionally discriminate against minority voters?

Lawsuits brought by the North Carolina NAACP and the ACLU ask that North Carolina be covered under Section 3 of the VRA, so that they must seek federal approval of their voting changes for a period of time, based on a “preponderance of evidence” of intentional discrimination. DOJ recently asked a court to do this with Texas. “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment, and thus coverage under Section 3(c) is mandated under the Voting Rights Act,” the ACLU plaintiffs in North Carolina write.

The lawsuits argue that clear evidence of the law’s discriminatory burden on African-Americans—who were disproportionately more likely to lack ID and to use early voting and same-day voter registration, for example—was presented during the legislative debate and that Republican sponsors of the bill did nothing to alter the legislation. “After Shelby County v. Holder, the courts are going to have to take these intent claims seriously,” says Penda Hair, co-director of the Advancement Project, which filed suit on behalf of the North Carolina NAACP.

But North Carolina could argue, like Texas, that its law was simply aimed at disenfranchising Democrats, not minorities, and thus is not intentionally discriminatory. Proving intentional discrimination in court is very difficult. One change Congress could easily make is for Section 3 to cover voting changes that have a discriminatory impact, not intent. Under that standard, North Carolina would almost certainly have to clear its voting changes with the feds for a period of time.

3. Will voter suppression efforts produce an electoral backlash among minority voters?

It’s almost considered a truism today that laws meant to disenfranchise minority voters will motivate more minority voters to cast a ballot in order to defend their most sacred right, since that’s what happened in 2012. But the backlash against voter suppression in the last election was the result of a number of unique factors: an extremely well-organized and well-funded Obama campaign, a poorly run Romney campaign that did almost no outreach to minority voters and the fact that many of the new voting restrictions were blocked or repealed in key battleground states like Ohio, Wisconsin and Pennsylvania.

We shouldn’t assume that such a backlash will become the new normal, especially as more onerous laws are put on the books in the wake of the Supreme Court’s decision. “The 2012 election was an anomaly, because of the candidate and campaign at the top of the ticket,” says Overton. “In primaries, off-year elections, midterms, the resources aren’t there to mobilize people to the polls.” And even if the impact of a new voting restriction is ultimately tempered or overcome, that doesn’t make attempts to restrict the right to vote any less immoral. “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts. But you shouldn’t have to redouble your efforts in order to vote.”

That said, North Carolina is one of the states where you could potentially see a higher turnout as a result of the legislature’s draconian overreach. First off, the Republican legislature is deeply unpopular, with a 20 percent approval rating, and so is the new voting bill, with 39 percent approving and 50 percent disapproving. Seventy percent of moderates and 72 percent of African-Americans dislike the legislation. Second, the well-organized Moral Monday coalition has been mobilizing people against the legislature’s actions for months and is strongly positioned to get a lot of people to the polls. Third, the litigation against the law will keep this story in the news and make more people aware of its onerous details. Fourth, there is a competitive Senate race in North Carolina that could decide the balance of power nationally, with Democrat Kay Hagan likely facing North Carolina Speaker of the House Thom Tillis, who was named “legislator of the year” by the American Legislative Exchange Council in 2011 and is closely tied to all of the unpopular legislation passed by the General Assembly.

Republicans have done everything possible, through aggressive racial gerrymandering and onerous new voting restrictions, to protect their majorities in 2014 and beyond. In so doing, they’ve alienated a large segment of the electorate. The next election will be a good test case of the extent to which power-hungry politicians can successfully manipulate the democratic process in order to thwart the will of the people.

 

By: Ari Berman, The Nation, August 14, 2013

August 15, 2013 Posted by | Civil Rights, Voting Rights Act | , , , , , , , | 1 Comment

“Adolescent Nihilism”: The GOP’s True Believers Risk Nothing By Threatening Economic Catastrophe

So what’s it going to be for GOP hotheads in Congress this fall?

A soul-satisfying episode of adolescent nihilism culminating in a government shutdown and yet another debt/default scare? Or an abject capitulation to political (and fiscal) reality and an acceptance of the Republican Party’s role as the loyal opposition?

As I write, there’s just no telling. It’s partly a contest between the GOP’s electronic infotainment/Tea Party wing and the party establishment. Talk-radio shouters and cable TV entrepreneurs thrive on melodrama, and a substantial proportion of the Tea Party base follows excitedly along. Defund Obamacare! Shut it down! To those of us of a certain age, this has a ring of nostalgia, like Abbie Hoffman’s 1967 vow to levitate the Pentagon. I don’t know what they’re smoking down at RNC headquarters, but on CNN’s State of the Union, party chairman Reince Priebus made a lame attempt to blame President Obama.

“I think all Republicans are unified on one thing and that is defunding, delaying, getting rid of, eliminating Obamacare,” Priebus said. “So we have total unanimity on that issue and the question is what are the tactics?…So Mr. President, if you want to shut the government down because you want to continue to fund this monstrosity…then go ahead.”

Nice try. No cigar.

Having wasted countless hours on 40 — count ’em, 40 — votes to defund Obamacare, you’d think House Republicans might be getting the message. Their scheme’s DOA in the Senate, and even if it weren’t, the White House holds veto power. The GOP’s last constitutional chance to prevent 30 million Americans from buying affordable health insurance coverage expired with Mitt Romney’s presidential candidacy. End of story.

True, rising Republican celebrities like Senators Ted Cruz (R-TX), Rand Paul (R-KY), Marco Rubio (R-FL), Mike Lee (R-UT), and rising star Rep. Tom Cotton (R-AR) are breathing smoke and fire. However, it’s also true that none of these worthies hold leadership positions. Until very recently nobody knew who they were. They risk nothing by enrolling in a purely symbolic resistance.

Quite the opposite: True Believers in utopian right-wing crusades evaluate politicians according to their fervor, not their coherence. Did Ronald Reagan ever pay a political price for describing Medicare as the death knell of freedom? He did not.

Indeed, the best possible outcome for Senatorial rabble-rousers would be what now appears likely: A minority of GOP House moderates voting with Democrats to pass a continuing resolution, avoiding a party-line government shutdown that could doom the Republican Party’s national electoral chances. Speaker Boehner won’t have much choice but to allow it.

See, there’s nothing the Southern wing of the GOP loves more than a heroic defense of a lost cause. Save your Confederate dollars, boys, because…

Well, you know the rest.

Lately the party’s adult leadership has also taken to signaling the need for restraint regarding the National Debt. According to the Washington Post’s Greg Sargent, congressional Democrats scrutinize Wall Street Journal columnist Stephen Moore for signs of Republican establishment thinking.

Recently, Moore informed readers that “[t]he biggest underreported story out of Washington this year is that the federal budget is shrinking and much more than anyone in either party expected.”

Overall federal spending that peaked at $3.598 trillion in FY2011 due largely to recession-related costs will drop to $3.45 trillion by the end of FY2013. “The $150 billion budget decline of 4 percent,” Moore writes “is the first time federal expenditures have fallen for two consecutive years since the end of the Korean War.”

Also dropping is the annual federal budget deficit. Projections by the Congressional Budget Office show a $642 billion shortfall this year—less than half of the $1.3 trillion shortfall the Obama White House inherited from George W. Bush. It’s forecast to drop to $560 billion next year, and $378 billion in 2015.

Moore: “Already the deficit has fallen from its Mount Everest peak of 10.2 percent of gross domestic product in 2009, to about 4 percent this year. That’s a bullish six percentage points less of the GDP of new federal debt each year.”

In short, informed conservatives understand that there is no need whatsoever for a melodramatic standoff over raising the federal debt limit. No need to risk “the full faith and credit of the United States” by threatening default. Hostages need not be taken.

As in the Obamacare charade, Republican posturing on the debt would only risk catastrophe for the sake of certain defeat.

Alas, but herein lies the rub: The great majority of GOP voters out in the wilderness beyond the Hudson and the Potomac not only don’t know these facts, they’re constitutionally incapable of accepting them.

To followers of politicians like Rand Paul and Ted Cruz, fears of fiscal collapse, runaway inflation and social chaos aren’t political ideas, but fixed beliefs scarcely amenable to arithmetic or reason.

And their Antichrist is Barack Obama.

 

By: Gene Lyons, The National Memo, August 14, 2013

August 15, 2013 Posted by | GOP, Government Shut Down | , , , , , , , | Leave a comment

“Hiding From Town-Hall Hollering”: GOP Now In Awkward Position Of Disappointing Far-Right Activists They Worked So Hard To Rile Up

About a month ago, the House Republican Conference produced “exceptionally detailed” guides for their members on how best to survive the lengthy August recess. Party officials offered some rather remarkable advice in the “planning kit,” including “planting questions” so local events remain on message.

Of course, that assumes lawmakers will actually host local events in the first place. The New York Times reports today that this summer, many members of Congress have suddenly lost their interest in town-hall forums.

Though Republicans in recent years have harnessed the political power of these open mic, face-the-music sessions, people from both parties say they are noticing a decline in the number of meetings. They also say they are seeing Congressional offices go to greater lengths to conceal when and where the meetings take place. […]

With memories of those angry protests still vivid, it seems that one of the unintended consequences of a movement that thrived on such open, often confrontational interactions with lawmakers is that there are fewer members of Congress now willing to face their constituents.

A unnamed Senate Republican aide told the NYT, “Ninety percent of the audience will be there interested in what you have to say. It’s the other 5 or 10 percent who aren’t. They’re there to make a point and, frankly, to hijack the meeting.”

I don’t want to sound unsympathetic. I’ve never worked for a member of Congress, but I imagine it’s quite frustrating when you go to the trouble of organizing an event and “planting questions,” only to see some local troublemakers derail your plans.

Of course, I’d remind these lawmakers that democracy can be messy, and that hiding from constituents doesn’t seem especially healthy.

The Times piece doesn’t quantify the observation, so it’s hard to say with confidence whether there’s been a significant drop in the number of town-hall discussions or if this is just something “people from both parties say they are noticing.” Once the recess ends, it’d be interesting to see an official tally to bolster the point — counting up all of the meetings held by all of the members, and comparing the totals to previous years.

But if the argument is based on a real trend, it’s worth considering in detail why, exactly, members who used to love town-hall meetings suddenly changed their mind.

It’s easy to blame annoying loudmouths who show up and cause trouble, but I find it hard to believe this is a new phenomenon.

Rather, I think there are two other angles to this. The first is that the Republican Party base is starting to push for things Republican Party lawmakers don’t want to deliver — a government shutdown, national default, impeachment, hearings into the president’s birth certificate, a special committee to investigate Benghazi conspiracy theories — and town-hall forums put GOP officials in an awkward position of disappointing the far-right activists the party has worked so hard to rile up.

The second is the flip-side: the Republican Party base is pushing for extremism, many Republican officials are going along, and invariably someone catches this on video.

Note, for example, that three GOP members of Congress have embraced the birther conspiracy theory in the last two weeks — and in each instance, they were speaking at a town-hall forum, being egged on by birther constituents.

In other words, we’re looking at a dynamic in which Republicans (a) will be pressed to say something stupid; or (b) will go ahead and say something stupid.

Is it any wonder so many members are hiding?

 

By: Steve Benen, The Maddow Blog, August 13, 2013

August 14, 2013 Posted by | GOP, Right Wing | , , , , , , , | Leave a comment

“Someone Please, Alert The Media!”: The Budget Deficit Is Shrinking Rapidly And Most Americans Don’t Know It

The deficit is down 37.6 percent for the first 10 months of the 2013 budget year, according to the Congressional Budget Office. But a new survey conducted by Google at Paul Krugman’s request finds that more than 50 percent of Americans think it’s still growing.

Last year the government spent $973.8 billion more than it took in for the first 10 months of the budget year. The deficit for the same period this year is $607.4. This year’s deficit is projected to be $670 billion.

As a share of gross domestic product, the deficit was recently as high as 10.1 percent in 2009, when the deficit was $1.4 trillion. It is now closer to 2 percent of GDP, which means the deficit has been cut by more than half since then, in both actual dollars and as a share of GDP.

A poll in February found that only 6 percent of Americans were aware the deficit was shrinking. The new survey finds that a little over 17 percent of those polled know the deficit is shrinking, with only 8.3 percent giving the correct answer: that it has decreased by a lot.

Deficit poll

The perception that the deficit is still growing has been fed by Republicans including House Minority Leader Eric Cantor (R-VA), who recently said the deficit is growing and Senator Rand Paul (R-KY), who said last week that we have trillion-dollar deficits.

What’s causing the deficit to drop so drastically? Probably even too quickly?

Economic growth, lower spending, increased taxes, and windfalls from government-sponsored mortgage corporations Fannie Mae and Freddie Mac brought on by the resurgent housing market.

Republicans are intent on keeping the so-called sequester in place, which will cut government spending by $85 billion, leading to the loss of up to 1,600,000 jobs. The government is only funded through September 30 and the debt limit will need to be raised soon after that. House Republicans have vowed to use both deadlines to demand even more cuts in spending, along with a delay in or defunding of Obamacare.

 

By: Jason Sattler, The National Memo, August 13, 2013

August 14, 2013 Posted by | Deficits, Public Opinion | , , , , , , , | 1 Comment

“A Symbol Of Defiance Between GOP Lawmakers”: Will Republicans Shut Down The Government To Spite Karl Rove?

Most Republicans in Congress agree on one thing: Obamacare needs to go. How to get rid of the health care law, however, is a bit more complicated.

The GOP is split between those who believe the sole way to combat The Affordable Care Act is by opposing all fall spending bills that contain funding for the law—resulting in a government shutdown – and those who believe in any strategy that will not involve such extreme action.

Leading the government shutdown movement is Senator Mike Lee (R-UT), arguing: “If you fund this thing, you own it.” In Lee’s world, Republicans who do not believe closing the government is the appropriate measure to combat the Affordable Care Act are automatic backers of the law.

Lee’s intricate plan involves the GOP-controlled House passing a bill funding the government, which would contain a rider from Rep. Tom Graves (R-GA) that would defund the Affordable Care Act — and leaving the ultimate decision to shut down the government or pass the bill with that rider included up to Senate Democrats.

“Would they choose to shut down government? Or do the right thing?” Lee asked of Senate Democrats.

This is a plan that Republican political consultant Karl Rove quickly rejected. According to Politico, Rove “concluded Lee’s effort would backfire and be a replay of 1995, a government shutdown often blamed on the GOP.”

Still, Lee and other Tea Party lawmakers, including Senators Ted Cruz (R-TX) and Marco Rubio (R-FL), believe a government shutdown is the only option. Lee referred to any strategy besides his as an example of Republicans “caving.”

Rove warned, “This is the one strategy, the one tactic that might be able to guarantee that the Democrats pick up seats in the Congress in 2014.”

Rove’s comment echoed a similar thought from Senator Bob Corker (R-TN), who called the effort “self-defeating.” Other Republican leaders have termed it “silly” and “stupid.”

According to the Washington Post, several GOP leaders have realized that Rove’s approach may not be an effective way to prevent the government shutdown. Publicly condemning the strategy can easily backfire; tackling it openly, as Rove did, has already resulted in those in favor of the shutdown painting its opponents as scared and weak Obamacare backers, not willing to “defeat Obama tyranny.”

The Rove-Lee debate on Sean Hannity’s radio show proved that even with Rove pointing out just how ineffective, counterproductive and unnecessary a government shutdown would be, Lee’s position won’t change; instead, it grows more steadfast. Rove’s words serve as Lee’s evidence that the Republican Party is too “weak-kneed” to make a move against the president, and the only way to prove to Rove and other GOP leaders that they are actually impeding the Republican Party, rather than strengthening it, is, perhaps, to call for a government shutdown.

As long as Republican leaders fight publicly, they provide those in favor of the shutdown their greatest argument: Republican leadership is weak, and it’s time to take a stronger and more combative stance against Obamacare, even if it means closing down the government. Suddenly, a shutdown is seen as the ultimate measure of GOP loyalty and leadership.

The government shutdown has become more than just a position on Obamacare; it is a symbol of defiance between GOP lawmakers.

If Rove — or any Republican, for that matter — keeps  publicly calling out the strategy’s obvious idiocy, he is just pushing his more conservative counterparts in Congress to go through with the effort.

Because of this, several GOP leaders have begun to lobby House Republicans privately, rather than openly bash their strategy.

National Review’s Robert Costa reported that, “House insiders say Boehner and Cantor had talked much of their conference away from the edge,” and Republicans are “now confident that House Republicans will not tread into a shutdown battle with the Obama White House.”

Just a week ago, Rubio argued that the government shutdown was “no longer an ideological thing,” and he’s right. Now it is a deeper split in the already divided GOP.

 

By: Elissa Gomez, The National Memo, August 13, 2013

August 14, 2013 Posted by | GOP, Government Shut Down | , , , , , , , | Leave a comment

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