“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
“Speaking In Code”: Race And Ethnicity Never Far From Presidential Campaign
The racially offensive remark by an unnamed adviser to Republican Mitt Romney– if the painfully thin Daily Telegraph story is to be believed — is likely to be described as the injection of race, ethnicity and nationality in what has been a colorblind campaign.
While the comment may be the most blatant reference to President Obama’s background in the 2012 race, it is hardly the first. Or the last.
“We are part of an Anglo-Saxon heritage, and he feels that the special relationship is special,” the adviser reportedly said of Romney, who arrived in London Wednesday. “The White House didn’t fully appreciate the shared history we have.”
Romney was born and raised in Michigan. Obama’s story is far more complicated. His mother was white and born in Kansas. His father came from Kenya. Obama was born in Hawaii and spent part of his childhood in Indonesia. He is Christian, but crazy rumors persist that he is Muslim with ties to terrorists. All of this allows the president to be easily characterized as different, exotic, less American and more foreign. As “other.” And Romney and his supporters have not shied from those types of descriptions.
In one recent example, former New Hampshire Gov. John H. Sununu told reporters in a call arranged by the Romney campaign that “I wish this president would learn how to be an American.” Sununu later walked back his remarks, saying “The president has to learn the American formula for creating business.”
Romney himself said of Obama’s approach to the economy in a speech last week in Pittsburgh: “His course is extraordinarily foreign.” He has repeatedly said Obama “doesn’t understand America.”
Romney and his team are certainly entitled to make robust criticisms of the president and his policies. There is a legitimate debate in this campaign over the role of the federal government and what kind of country we want to live in. Constant references to “America,” a word laced with images of patriotism and amber waves of grain, are nothing new to the campaign trail, where candidates are trying desperately to connect with voters.
But in this campaign, these criticisms are not made in a vacuum free of the politics of race and identity. Hillary Clinton ran into this tripwire during the 2008 Democratic primary when she said Obama’s support was waning among “hard-working Americans, white Americans.”
It would be far more enlightening for Obama’s critics to say exactly what they mean instead of speaking in code.
By: Beth Reinhard, National Journal, July 25, 2012
“Vote Republican Or The Economy Gets It”: The GOP Threat Behind All The “Fiscal Cliff” Talk
Greg Sargent has a fine post today about how Scott Brown has picked up on the Romney campaign’s effort to spin a mendacious take on the “you didn’t build that” quote, making it a double lie by tying it back to Elizabeth Warren (whose actual words were being paraphrased by what the president actually said). Indeed, Greg puts his finger on the broader message that both Republicans are trying to send:
The whole ”didn’t build that” dust-up is important, because the larger falsehood on display here — that Obama demeans success — is absolutely central to the Republican case against Obama. The Republican argument — Romney’s argument — is partly that Obama’s active ill will towards business owners and entrepreneurs is helping stall the recovery, so you should replace him with a president who wants people to succeed.
What makes this “vote Republican or the economy gets it” tactic devilishly effective is that its major premise—Obama hates “job creators”—doesn’t have to be true to wreak political damage so long as its minor premise—if “job creators” think Obama hates them they’ll stop creating jobs—is credible. And so it all turns into what amounts to blackmail: people like Mitt Romney are not “confident” in Obama’s stewardship of the economy, and if they don’t get ther way in November, they’ll tank the economy. This is also the threat behind all the “fiscal cliff” talk: we’re being told the financial markets will panic if there’s any chance the Bush tax cuts on the wealthy will lapse or that Pentagon spending will be cut at the end of the year. Somehow or another, the prospect of a Republican victory that will lead to very deep federal spending cuts, reductions in consumer buying power, and the elimination of many thousands of public sector jobs isn’t said to be a problem.
Now this is a very, very old game, certainly as old as the threats issued by business leaders at the behest of Mark Hanna in 1896 that votes for William Jennings Bryan would lose employees their jobs, or the eternal threats of non-unionized companies that they’d rather close their doors than submit to the indignity of collective bargaining. In reality, companies stay in business and investors keep investing not because they have the elected officials they’d prefer, but because they are making money. With profits being at near-record levels (even with the apparent recent softening), I don’t think we are really in any danger of capitalists “going Galt” because their executives’ marginal tax rates went back up to where they were when they were also doing very well in the late 1990s, or because their vast moral worth is being underappreciated by Barack Obama or Elizabeth Warren.
Still, the more aggressively ideological business leaders won’t lose a dime by issuing threats, so they and their political allies will keep doing so, reinforcing the GOP’s many efforts to convince persuadable voters that somehow or other, their jobs or their nest eggs depend on a Republican victory in November.
BY: Ed Kilgore, Contributing Writer,Washington Monthly Political Animal, July 23, 2012
“Romney Dog Whistle”: Obama’s Philosophy Is “Foreign To The American Experience”
Mitt Romney doubled down on his characterization of President Obama as a “foreigner” during an interviewwith CNBC’s Larry Kudlow Monday afternoon, insisting that the president believes that the government is responsible for the success of entrepreneurs and small businesses.
Romney’s comments continue to misrepresent Obama’s remarks at a July 17th event, during which Obama suggested that society as a whole contributes to the economic accomplishments of the individual. Republicans have seized on the remarks to advance the myth that the president espouses an “un American” governing philosophy:
KUDLOW: Why do you think President Obama, what did he mean, if you’ve got a business, you didn’t build it, someone else made that happen? He claims it’s being taken out of context. What do you think it means? Do you think this is Obama anti-business, anti-entrepreneur? Or do you think maybe he has been treated unfairly? […]
ROMNEY: This is an ideology which says hey, we’re all the same here, we ought to take from all and give to one another and that achievement, individual initiative and risk-taking and success are not to be rewarded as they have in the past. It’s a very strange and in some respects foreign to the American experience type of philosophy. We have always been a nation that has celebrated success of various kinds. The kid that gets the honor roll, the individual worker that gets a promotion, the person that gets a better job. And in fact, the person that builds a business. And by the way, if you have a business and you started it, you did build it. And you deserve credit for that. It was not built for you by government…. So his whole philosophy is an upside-down philosophy that does not comport with the American experience.
In reality, Obama’s contention that — “when we succeed, we succeed because of our individual initiative, but also because we do things together” — is something Romney himself has agreed with. For instance, during his speech at the Opening Ceremonies of the 2002 Winter Olympics, Romney said, “You Olympians, however, know you didn’t get here solely on your own power. For most of you, loving parents, sisters or brothers, encouraged your hopes, coaches guided, communities built venues in order to organize competitions.”
He echoed the same sentiment last week, saying, “I know that you recognize a lot of people help you in a business. Perhaps the bank, the investors. There is no question your mom and dad, your school teachers. The people who provide roads, the fire, the police. A lot of people help.”
By: Igor Volsky, Think Progress, July 23, 2012
“A Whole New Form Of Voter Suppression”: Do We Need A New Voting Rights Act?
Ten states have enacted voter-ID laws that will discriminate against minorities and seniors. But the Department of Justice can do little to stop the discrimination in five of them.
On Friday, two counties in Southern states requested that the Supreme Court reconsider a key element of the Voting Rights Act. Both Kinston, North Carolina and Shelby County, Alabama hope the Court will find that Section 5 of the Act—the one that requires states and counties with a history of voter suppression to get permission from the feds before implementing changes to election law—is unconstitutional. The government has previously justified Section 5 under the Fifteenth Amendment, which guarantees the right to vote and prohibits discrimination based on race. The counties—both in states with new voter-ID laws—argue that the provision violates the Tenth Amendment, which gives states the right to regulate elections. Furthermore, they claim it unfairly gives states different levels of sovereignty by treating some differently than others.
With voter-ID laws proliferating around the country, the Voting Rights Act has been in the national conversation for months now, and Section 5 has played a major role in the debate. Voter-ID laws create barriers to voting, particularly for poor and non-white voters who are more likely to lack the necessary photo ID. The effort to suppress the vote is exactly what the Voting Rights Act sought to prevent, and it’s come in handy. While the Bush administration’s Department of Justice approved Georgia’s strict voter-ID law—which became a national model—under Obama, the DOJ has blocked Texas and South Carolina from implementing theirs, finding them to have a discriminatory effect. (Decisions on Mississippi and Alabama’s laws are still pending.) Thanks to the proceedings, we’ve learned a lot more about the impact of these laws. Documents from Texas revealed that Hispanic registered voters were between 47 and 120 percent more likely to lack the necessary ID, while in South Carolina, minorities were almost 20 percent more likely to have no government-issued identification.
Because of Section 5, the Department of Justice has been able to stop voter-ID laws from going into effect in four states. The trouble is, Section 5 only applies to nine list states, based largely on what those states were doing 50 years ago. And with the voter ID frenzy that began after Republicans swept into power in 2010, the states working to suppress the vote don’t totally align with those that require preclearance. In recent years, ten states have passed strict voter-ID laws which require a voter to show government-issued identification to vote and will likely prevent hundreds of thousands from voting. But of those ten, only five require preclearance. Indiana, Kansas, Pennsylvania, Tennessee, and Wisconsin all got to enact their versions of these laws without any say from the feds. Across all of them, the impacts are similarly devastating for poor and non-white populations.
As more and more states pass laws that functionally disenfranchise poor and nonwhite voters, it’s increasingly clear that Section 5 is no longer sufficient. The Department of Justice needs a broader ability to be proactive in preventing voter discrimination. When the Voting Rights Act was passed in 1965, Congress authorized Section 5 for only five years, with the idea that it might not be necessary after that. Since then, however, the section has been reauthorized several times—most recently in 2006, when Congress renewed it for another 25 years. But the section no longer reflects the voting landscape. It seems logical that the Department of Justice’s role should be expanded, so that states not listed in Section 5 cannot implement laws that infringe on voters’ rights.
The right to vote is integral to our political system, one of the defining acts of citizenship, and we should ensure it’s protected. Furthermore, who votes often determines which candidate wins. In 2012, the stakes could hardly be higher. Not including Alabama, where the law is not scheduled to take effect until 2013, the states with strict voter-ID laws comprise 127 electoral votes—almost half the number needed to win.
A report by the Brennan Center for Justice last week offered a devastating look at just how difficult getting ID actually is, and how many people are impacted. Nationwide, 11 percent of eligible voters lack the required ID; among African Americans, that number skyrockets to one in four eligible voters. Hispanics and seniors also disproportionately lack a government-issued photo ID. The Center’s report focuses on two key factors: the cost of acquiring the necessary documents, and the difficulties of getting to an office that issues IDs. Even in states that offer free IDs for voting, most still charge people to obtain the documents necessary to get that ID—and the costs are not insignificant. Birth certificates can run anywhere from $8 to $25. In Mississippi, there’s a special Catch-22: You need a birth certificate to get a government-issued ID, but you need a government-issued ID to get a birth certificate. Meanwhile, 10 million eligible voters live more than 10 miles away from a government office that can issue an ID—and in Alabama, Kansas, Mississippi, Texas, and Wisconsin, those ID issuing offices are closed on weekends.
While many of the most egregious examples are in Section 5 states, many are not. In Wisconsin, which does not have to preclear its election laws, more than 30 percent of the voting-age population lives more than 10 miles from an ID office. In Kansas, which also isn’t listed in Section 5, the voter-ID law shows similar problems with discrimination. Outside of Wichita, there’s one office that issues IDs for every 22,000 eligible voters; in downtown Wichita, there is one office for every 160,000. Twenty-two percent of Kansas’ black population lives in downtown Wichita where, in order to get their free IDs, they must wait much longer than their neighbors outside the city. In Tennessee, another state that doesn’t need preclearance, three rural regions have large populations but no offices that issue IDs.
Perhaps the best argument for expanding the Voting Rights Act is unfolding in Pennsylvania. Only a few months ago, the state legislature passed a strict voter-ID law that required a government-issued ID that included an expiration date. The state’s House majority leader, Republican Mike Turzai, openly touted it as a law that will guarantee that Mitt Romney wins the state. There’s reason for his confidence: A recent study from the Secretary of the Commonwealth in Pennsylvania showed that as many as 9 percent of state voters may lack necessary identification. In Philadelphia, a Democratic stronghold with a high number of African-American voters, it could be as high as 18 percent. Yet the DOJ cannot block the law.
For those states not listed in Section 5, challenges must be fought in the courts, where the bar is much higher. The DOJ or others can claim that voter-ID laws violate Section 2 of the Voting Rights Act, which prohibits discrimination either in practice or procedure. But Section 2 cases are difficult. “In order to bring a Section 2 case, you’d have to show two things. One, that there’s a significant racial disparity and two, that the burden of getting an ID is significant enough for us to care about,” Samuel Bagenstos, former deputy assistant attorney general, told Talking Points Memo. That means the DOJ will have a harder time winning a case against a voter-ID state before the November elections. Instead, the department may have to wait until the election is over and voters can testify to the discrimination. The DOJ may have to spend the 2012 election collecting evidence of discrimination—cold comfort for those whose votes are suppressed, particularly when their votes could change the outcome of a close presidential election.
Civic groups can also sue states for violating their constitutions. The ACLU has already brought suit against the Pennsylvania law on those grounds. In Wisconsin, a court found the voter-ID law violated the state constitution, and has granted a permanent injunction, though that decision is being appealed. These lawsuits require funding from civic groups that can afford and endure lengthy legal fights, of course, and the constitutional protections vary state to state.
The Voting Rights Act was passed at a time when certain states adamantly and openly refused non-white citizens the right to vote. These new laws are less obvious and more insidious, and have been implemented in states without voter-supression histories of Texas, South Carolina, and Georgia. But regardless of a state’s history, the result of voter-ID laws is still the same: Many, particularly those who are poor and not white, will lose their right to vote.
With a whole new form of voter supression spreading, it’s imperative that we look at new ways to safeguard that right. Norman Ornstein, among others, has called for an expanded Voting Rights Act. At the very least, the Department of Justice should have broader authority to examine discriminatory laws and at least hold up implementation as officials examine the potential impact. States like Pennsylvania should not be able to take away minority rights so easily, and with so little scrutiny. Unfortunately, as so many states move to make it harder for poor and nonwhite citizens to vote, the momentum is on the other side, with states and counties pushing to knock down Section 5 entirely and take away the procedural protections we do have in place, incomplete though they are.
By: Abby Rapoport, The American Prospect, July 23, 2012
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