“A Matter Of Basic Values”: Burden Of Proof In The Battle Over Voting Rights
One of the most predictable characteristics of the battle over voting rights in this country, which now largely centers on Republican efforts in a number of states to institute various photo ID requirements, is a very different take on the burden of proof. Again and again, progressives point to the signal lack of evidence of any “voter fraud” problem anywhere. In Texas, the state that has filed suit to strike down the entire preclearance procedure of the Voting Rights Act of 1965 because the Justice Department refused to preclear its new photo ID law, there have been during the last two election cycles a grand total of four allegations made to the Attorney General’s office of people ineligible to vote impersonating qualified voters. As Think Progress’ Josh Israel notes, these are pretty damning statistics:
Though [Gov. Rick] Perry has claimed Texas has endured “multiple cases” of voter fraud, even of the paltry 20 election law violation allegations the state’s attorney general handled in the 2008 and 2010 elections, most related to mail-in ballot or campaign finance violations, electioneering too close to a polling place, and a voter blocked by an election worker.
It is unclear how many Texans attempt to illegally check out library books while impersonating neighbors or dead people, each year. But in a state of more than 25 million people, the odds of being even accused of voter impersonation in the Lone Star State are less than one in 6,250,000.
Conservatives typically ignore these numbers and instead of answering “why” new and burdensome voting requirements need to be instituted, ask “why not,” comparing proposed voting hurdles to the identification often demanded for various legal or commercial transactions, or more indirectly, asking why honest people would object to verification of their identities? Others rely on public opinion polls to “prove” the reasonableness of voter ID laws, a particularly shaky argument for conservatives who in other contexts believe unnecessary regulations and mandates are intolerable regardless of public support for their purposes.
Aside from the obvious fact that people in both parties understand these requirements would have a disproportionate impact on people more likely to vote Democratic, this kind of dispute often misses the rather obvious point that many conservatives do not view participation in elections as a fundamental right of citizenship. Occasionally they even admit it, but more often that conviction is simply reflected in how the question of “voter fraud versus voting rights” is framed. Anyone viewing the right to vote as fundamental is most unlikely to support burdens placed upon it without a compelling case to show the burden is necessary. “It wouldn’t hurt you” arguments or comparisons to other transactions that do not involve the exercise of fundamental rights are irrelevant.
No wonder a growing number of conservatives favor repeal of the Voting Rights Act altogether. The reasoning is closely parallel to the now-common-place argument on the Right that the discrimination against people of color is largely a thing of the past, and that exceptional government efforts to fight such discrimination amount to a racist effort to discriminate against white people. If that’s the case, then “why not” make access to the ballot just like any other public service, many of which are conditional on compliance with all sorts of rules?
So while the debate over voting in this country often sounds like a competition of people with competing views of the facts, it’s really not: it’s a matter of basic values, and of the burden of proof borne by those who support or oppose a right to vote.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 26, 2012
“Denied The Right To Vote”: Texas Had ‘Fewer Than Five’ Voter Impersonation Cases Over Three Years
Earlier this month, the U.S. Department of Justice blocked a new Texas state law that would institute strict photo identification requirements for all citizens trying to vote. The DOJ refused to grant the law pre-clearance under the Voting Rights Act, noting that the bill would unfairly disenfranchise Hispanic voters.
Supporters of the bill say the law is needed to prevent voter impersonation. Gov. Rick Perry (R-TX) argued:
Texas has a responsibility to ensure elections are fair, beyond reproach and accurately reflect the will of voters. The DOJ has no valid reason for rejecting this important law, which requires nothing more extensive than the type of photo identification necessary to receive a library card or board an airplane. Their denial is yet another example of the Obama administration’s continuing and pervasive federal overreach.
How big has the problem been? According to the San Antonio Express-News:
Fewer than five “illegal voting” complaints involving voter impersonations were filed with the Texas Attorney General’s Office from the 2008 and 2010 general elections in which more than 13 million voters participated.
The Texas attorney general’s office did not give the outcome of the four illegal voting complaints that were filed. Only one remains pending, according to agency records.
And as ThinkProgress Justice previously reported, more people than that have been denied their right to vote due to these sorts of strict voter ID laws.
Though Perry has claimed Texas has endured “multiple cases” of voter fraud, even of the paltry 20 election law violation allegations the state’s attorney general handled in the 2008 and 2010 elections, most related to mail-in ballot or campaign finance violations, electioneering too close to a polling place, and a voter blocked by an election worker.
It is unclear how many Texans attempt to illegally check out library books while impersonating neighbors or dead people, each year. But in a state of more than 25 million people, the odds of being even accused of voter impersonation in the Lone Star State are less than one in 6,250,000.
By: Josh Israel, Think Progress, March 26, 2012
“Discriminatory Election Laws”: The GOP Assault On The Voting Rights Act
Last week the Department of Justice denied preclearance to Texas’s law requiring voters to present photo identification under Section 5 of the Voting Rights Act. Section 5 requires states and jurisdictions with a demonstrated history of passing discriminatory election laws to get approval from the DOJ for any change to laws governing the time, place or manner in which an election is conducted.
Within days Texas filed a challenge in federal court arguing that Section 5 is unconstitutional. Texas Attorney General Greg Abbott maintains that the federal government exceeded its authority and violated the Tenth Amendment when it passed the measure.
Conservative opponents of civil rights are eager to see that challenge succeed. Writing in National Review—which opposed the civil rights movement—vice chairman of the US Commission on Civil Rights and conservative scholar Abigail Thernstrom argues that Section 5 is outdated. National Review’s evolution on the subject is the standard conservative slither on civil rights. First you oppose it. Then, when society has evolved and you look like a bigot, you accept it. Then, as soon as humanly possible, you argue it was necessary at the time but no longer is.
“The Voting Rights Act was absolutely essential in ending the brutal regime of racial subjugation in the South, but it has become a period piece—anti-discrimination legislation passed at a time when southern blacks were kept from the polls by violence, intimidation, and fraudulent literacy tests,” writes Thernstrom. “Those disfranchising devices are as unlikely to return as segregated water fountains.” Thernstrom focuses most of her argument on the question of redistricting, and she argues that increasing residential integration and ethnic and socioeconomic diversity within minority communities makes the creation of majority-minority districts either unnecessary or impossible. “The notion of a ‘black community’ as the foundation of a black legislative district is also becoming an anachronism.”
There are two separate arguments being advanced by civil rights opponents: that Section 5 is unconstitutional because it falls outside the federal government’s enumerated powers, and that it is bad policy. Both are bogus. Section 5 is clearly constitutional, and we very much need it to protect the right to vote.
When Texas votes for seats in the House and Senate or the presidency, the results affect every American. Thus it is in the national interest to insure that elections are conducted fairly. “Not having discrimination in the electoral process is important to all of us,” says Hilary Shelton, director of the NAACP’s Washington Bureau.
Congress has the authority to regulate national elections, and it has the power under the Fourteenth and Fifteenth Amendments to the Constitution to protect the rights of African-Americans from state governments. “Congress has broad authority to regulate procedures for federal elections under Article I, Section IV of the Constitution,” notes Daniel Tokaji, an election law expert at Ohio State University. “Because Texas ID requirement would apply to federal elections, we don’t even need to get into the question of whether Section 5 falls within Congress’s Fourteenth and Fifteenth Amendment power.” While Tokaji agrees that imposing federal power over redistricting may raise some constitutional questions, the Texas complaint maintains that the federal government has no business telling states not to disenfranchise their citizens.
Moreover, contra Thernstrom, southern blacks are indeed being kept from the polls today. Case in point: the Texas voter ID law itself. Blacks and Latinos in Texas are disproportionately likely not to have driver’s licenses other forms of state-issued photo identification, as are poor people and the disabled. As the DOJ noted in making its decision, “According to [Texas’s] own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.” Texas did not collect data for African-Americans. But national studies have shown they too are less likely than whites to have the requisite ID. The DOJ has also recently denied preclearance to a similar law in South Carolina for the same reason. (South Carolina is also suing the DOJ, but they are not claiming that the law is unconstitutional, only that it is being incorrectly applied.)
This is not an isolated incident. Every time the VRA is renewed, Congress documents that it is still needed by examining allegations of vote suppression. “[Section 5] has stopped laws from going into effect that would restrict minority participation,” says Nancy Abudu, senior staff counsel at the American Civil Liberties Union. The most recent renewal was in 2006, when Republicans controlled both Houses of Congress and the White House, so it can hardly be characterized as a Democratic power grab. “[In 2006] Congress did a very good job of collecting the evidence of why Section 5 remains necessary,” says Abudu.
“The only places covered by Section 5 have a history of discrimination,” explains Shelton. “Every state under Section 5 was reviewed carefully for its record and complaints. [Opponents] are right: it is an extraordinary measure to take that is inconsistent with states’ rights. But these are states that have proven bad behavior. The law is protecting the participation of all eligible Americans.”
By: Ben Adler, The Nation, March 21, 2012
“Pregnancy, Men And Gumball Machines”: Texans Fight Back Against Cuts To Women’s Health programs
It’s hard to overstate just how dire the situation is around women’s health care in Texas. The state has the third highest rate of cervical cancer in the country and one in four women are uninsured. After cutting family-planning funding by around two-thirds last legislative session, conservative lawmakers are now standing by their decision to cut off Planned Parenthood from the state’s Women’s Health Program, a move that ended $35 million in federal funding. (Here’s a timeline of the fight.) Governor Rick Perry, who bragged about the decision at the recent CPAC conference, has said he’ll find the money to keep the program—while still barring Planned Parenthood. No one seems to know exactly where he’ll find the money, given that the state has already underfunded Medicaid by $4 billion last session.
In the meantime, Planned Parenthood, which serves 40 percent of the 130,000 who rely on the Women’s Health Program, has already had to shut down more than a dozen clinics. Non-Planned Parenthood clinics, which may still be eligible for the program if the governor finds the money, are also struggling due to the drastic budget cuts to the program, and soon they may face increased demand. In spite of it all, women’s health advocates promise this fight is just beginning.
More than 300 protesters arrived on Tuesday to welcome Planned Parenthood’s “Women’s Health Express” bus (or as the organization’s president Cecile Richards calls it, the “don’t-throw-women-under-the-bus bus.”) After stopping at cities around the state, the entourage arrived across from the state capitol to protest new policies. It was diverse, both in terms of age and ethnicity, as were the speakers on stage, almost all of whom were female. It was also the second protest of the day—100 women showed up earlier as part of a weekly protest against the decision called “Seeing Red.”
The signs were quite creative. Planned Parenthood had some stating “Don’t Mess With Texas Women” or “No to metas con las mujeres de Tejas.” Then there were the homemade ones: “Dump Anita’s Husband” “Perry screws 130,000 women so who’s the slut?” and, possibly the funniest, “If men could get pregnant, birth control would be available in gumball machines.”
The program featured women who used the Women’s Health Program. At first, Delia Henry read nervously from a script, telling her story of relying on Planned Parenthood for information about her sexual health when her single father was too embarrassed to talk to her. Later, as part of the Women’s Health Program, she discovered she had diabetes during a routine blood test. “This program saved my life,” she said to applause.
In the crowd were women with similar stories. Sarah Jeansonne was there with her two daughters, explaining to them that politicians were trying to take away health care for women. The issue was hardly just politics for her. “It was a public clinic that told me I was pregnant with this one,” she said, caressing her daughter’s blonde hair. “It wasn’t planned. What if that wasn’t there?” She began to tear up.
“We all used Planned Parenthood at one time,” Jeansonne’s friend Kelly Taggle said. “Something has to fill in the gaps.”
The program featured everything from country singers to the Austin mayor, but undoubtedly the crowd favorite was state Representative Dawna Dukes, in red patent leather pumps to show she was “seeing red.” Dukes began with a story of getting excited to speak at her church, founded by her grandmother and where all her siblings had been married. Then she was told she could not speak. At first it was out of fear the church would appear to favor one candidate over another. “I’m unopposed,” she told the crowd.
Later, she said, the church called her back to tell her the U.S. Congress of Bishops barred her from speaking because she supported the Women’s Health Program on her website.
“I’m mad as hell,” she thundered. “I have not the time to go round and round and neither do Texas women.”
Dukes excoriated the governor, pointing out that the state’s Legislative Budget Board, the independent board that runs the state’s calculations, had called the program the most cost effective in Texas and recommended it be expanded. While Perry blames the Obama administration for the change in rules, Dukes was quick to point out that the rules for the program were conceived in 2007, under then-President George W. Bush. “Don’t blame Barack,” she said as the crowd cheered. “Blame your stupid recommendations under the Capitol dome!”
By the time Planned Parenthood President Cecile Richards took the stage, the clapping was pretty much nonstop. Richards kept her remarks short. “We do more to prevent unintended pregnancies than any organization in the country,” she said, a frequent point among the speakers.
Then she moved to politics. “We’re the biggest tent,” she said. “By God, women’s health care does not come with a political label.”
“The Fundamental Right To Vote”: Second Judge Strikes Down Wisconsin’s ALEC-Inspired Voter ID Law
A Dane County judge has declared Wisconsin’s American Legislative Exchange Council-inspired voter ID law unconstitutional, making him the second judge in one week to block the law’s unnecessary burdens on the right to vote.
“The people’s fundamental right of suffrage preceded and gave birth to our Constitution,” wrote Dane County District Judge Richard Niess, “not the other way around.”
The judge rebuffed assertions by Governor Scott Walker and legislative Republicans that they possessed the authority to impose new burdens on voting. “[D]efendants’ argument that the fundamental right to vote must yield to legislative fiat turns our constitutional scheme of democratic government squarely on its head,” he wrote.
“A government that undermines the very foundation of its existence – the people’s inherent, pre-constitutional right to vote – imperils its legitimacy as a government by the people, for the people, and especially of the people. It sows the seeds for its own demise as a democratic institution.”
The case was brought by the League of Women Voters and tried by the law firm Cullen, Weston, Pines & Bach.
Judge Niess’ decision comes less than a week after a Wisconsin State Court judge temporarily enjoined the same voter ID law — Act 23 — on grounds it likely violated the state constitution, but only until that court could hear a full trial. Niess’ decision, also decided under the Wisconsin Constitution, permanently invalidates the law. Governor Walker’s Department of Justice says they will quickly appeal the decision.
Voting Protected by Wisconsin Constitution
Article III, Section 1 of the Wisconsin Constitution provides that all state residents who are U.S. citizens and over age 18 may vote, and Section 2, according to the decision, “authorizes the government to exclude from voting those otherwise-eligible electors (1) who have been convicted of a felony and whose civil rights have not been restored, or (2) those adjudged by a court to be incompetent or partially incompetent, unless the judgment contains certain specifications.”
According to Judge Niess, Section 1 and 2 provide the exclusive basis for creating laws that implement the constitutional requirements for voting. “The government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily created qualifications not contained in Article III, such as a photo ID,” he wrote.
“By enacting Act 23’s photo ID requirements as a precondition to voting, the legislature and governor have exceeded their constitutional authority.”
Wisconsin passed Act 23 in May on a contentious, party-line vote. Four lawsuits challenging the law have since been filed. Wisconsin Republicans assert that the law should be upheld because the U.S. Supreme Court decided in 2008 that Indiana’s relatively similar voter ID law did not violate the U.S. Constitution. However, two of the four lawsuits are challenging Act 23 under the Wisconsin Constitution, which unlike the U.S. Constitution expressly protects the right to vote. Wisconsin’s voter ID law is also more strict than Indiana’s, and evidence indicates it will place more burdens on a greater number of people.
Voter ID’s ALEC Roots
Wisconsin’s voter ID law bears many elements of the ALEC model Voter ID Act. ALEC began to focus on voter ID shortly after the highest general election turnout in nearly 60 years swept America’s first black president into office with strong support from college students and African-Americans. Soon after the 2008 elections, “Preventing Election Fraud” was the cover story on the Inside ALEC magazine, and ALEC corporations and politicians voted in 2009 for “model” voter ID legislation.
Around 34 voter ID bills modeled after the ALEC template were introduced in 2011. Those bills have been coming under increasing scrutiny in recent months.
Judge Niess’ decision came on the same day that the U.S. Department of Justice blocked Texas’ ALEC-inspired voter ID law on grounds it would suppress the Latino vote. Last December, the D.O.J. blocked South Carolina’s voter ID bill as discriminatory against people of color. Texas and South Carolina are two of several states with a history of discrimination requiring federal pre-clearance for changes to voting laws or procedures under the 1965 Voting Rights Act. Wisconsin is not subject to pre-clearance.
“The right to vote belongs to all Wisconsin citizens”
While last week’s state court decision by Judge David Flanagan focused on how the voter ID law “is addressed to a problem which is very limited” and “fails to account for the difficulty its demands impose upon indigent, elderly and disabled citizens,” Judge Niess issued his decision based solely on the legislature’s constitutional authority to regulate voting. “It is not necessary to consider the human cost of photo ID requirements in order to expose their constitutional deficiencies,” he wrote. “They are unconstitutional on their face.
But, Judge Niess wrote, “there is no harm in pausing to reflect on the insurmountable burdens facing many of our fellow constitutionally qualified electors should Act 23 hold sway.”
“Mostly they would consist of those struggling souls who, unlike the vast majority of Wisconsin voters, for whatever reason will lack the financial, physical, mental, or emotional resources to comply with Act 23, but are otherwise constitutionally entitled to vote.”
While noting that “where it exists, voter fraud corrupts elections and undermines our form of government,” Niess stated that “voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster.”
Niess wrote:
“Where does the Wisconsin Constitution say that the government we, the people, created can simply cast aside the inherent suffrage rights of any qualified elector on the wish and promise – even the guarantee – that doing so serves to prevent some unqualified individuals from voting?
It doesn’t. In fact, it unequivocally says the opposite. The right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority for whom Act 23 poses little obstacle at the polls.”
By: Brendan Fischer, Center for Media and Democracy, March 13, 2012
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