“Arizona Versus The Right To Vote”: A Law Whose Sole Purpose Is To Disenfranchise Poor And Minority Voters
As part of a broader anti-immigration initiative in 2004, Arizona passed Proposition 200, a law requiring voters to provide proof of citizenship before registering to vote. One person affected by this law was Jesus Gonzalez, a custodian and naturalized American citizen who twice had his registration rejected by the state. Arizona couldn’t verify his naturalization number and erroneously identified his driver’s license as belonging to a non-citizen. Gonzalez’s case has reached the Supreme Court, which heard oral arguments about the constitutionality of Proposition 200 on Monday. The Court should rule that Arizona’s burdensome requirements are inconsistent with federal law and therefore illegal.
The Supreme Court has dealt with Republican legislators’ attempts to suppress voting before. In a highly dubious 2008 decision, the Supreme Court found that an Indiana statute—requiring a show of ID before hitting the ballot box—was not unconstitutional on its face, although it left open the possibility that the statute might be unconstitutional as applied. (The Indiana law was ultimately struck down by the Indiana Court of Appeals.) Because the Arizona law concerns voter registration, it is subject to another form of legal challenge.
In 1993, Congress passed the National Mail Voter Registration (or “Motor Voter”) Act, which among other things created a federal form that would streamline the registration requirements. The law mandates that “each State shall accept and use” the federal form. As the story of Jesus Gonzalez highlights, Prop 200 placed an additional set of requirements on Arizonans before they are able to register. The key question presented by the challenge to Prop 200 is whether the Arizona requirements are inconsistent with federal law. If so, because of the Supremacy Clause of Article VI of the Constitution, the Arizona law is “pre-empted” by the Motor Voter Act and is invalid.
The case for pre-emption in this case is clear and persuasive. The statute unequivocally requires states to use the federal form. To permit states to add additional burdens on registration is inconsistent with the text and purpose of the statute, which was designed to create a streamlined and uniform process. Determining qualifications for people voting for federal offices is a clear federal power. Justice Kagan observed at the oral argument that the Arizona law “essentially creates a new set of requirements and a new form.” Prop 200, therefore, is at war with the federal statute whose purpose was to create a clear process for registration. As the Obama administration noted in its amicus brief, to uphold the Arizona law “would thwart the central purpose of [Motor Voter]: to streamline the process of registering to vote for federal office.”
Justice Scalia, while somewhat more restrained than in the previous oral argument dealing with an Arizona law that conflicted with federal authority, was typically candid about his political support for the objectives of the Arizona vote suppression initiative. Leaving little doubt about his sympathy for the Arizona law, he mocked the federal registration requirements, which make it a criminal offense to misrepresent one’s eligibility to vote. “So it’s under oath. Big deal.” Scalia snorted. “If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”
Scalia’s arguments are problematic for two reasons. First, whether or not Scalia thinks the federal requirements are sufficient is beside the point—Article I Section IV gives Congress the power to “make or alter” state voting regulations, so the judgment about what requirements are sufficient rests with Congress, not with Arizona or the Supreme Court. And even on its own terms his argument that the threat of a perjury conviction represents an insufficient deterrent is unpersuasive. Arizona provides no evidence that this kind of voter fraud is a problem. The problems of individual voter fraud the bill allegedly addresses are essentially non-existent, and even in theory it is impossible for individual fraudulent voters to alter the course of an election. And, in particular, it is extremely implausible to think that the illegal immigrants the bill targets are likely to risk attracting the attention of federal authorities by committing perjury on a form submitted to the federal government. It is hard to avoid the conclusion of one Arizona legislator that “was never intended to combat voter fraud. It was intended to keep minorities from voting.”
Scalia also mocked the idea that the additional Arizona requirements represented a substantial burden. “Enclosing your driver’s license number is that immense barrier?” he sarcastically asked Patricia Millet, the attorney representing the challengers. But the data proves Scalia is dead wrong to dismiss the extent of vote suppression caused by the initiative. “The district court,” Millet pointed out, “found that 31,550 people were rejected from voting because of Proposition 200.” This is a serious additional burden which shows that the inconsistency with federal law is not merely formal. The vote fraud Scalia and other Republicans are purportedly concerned with is imaginary, but the burdens created by the Arizona law are quite real.
Arizona’s latest attempt to interfere with federal law is particularly problematic given that it concerns the right to vote. Voting is a field in which greater uniformity is a particular virtue. The fact that standards for registration and voting vary not only between states but within states represents “local control” fetishism at its most inane. State and local administration of voting isn’t merely inefficient; the purpose and effect of this decentralization has been to disenfranchise poor and/or minority voters. In this case, Congress appropriately acted to create more uniform and streamlined standards for vote registration. Arizona should not be allowed to contradict federal law and invite other states to similarly disenfranchise voters.
By: Scott Lemieux, The American Prospect, March 19, 2013
“Shuffling To The Right”: While You Weren’t Looking, Michigan Turned Into Texas
The Michigan legislature’s lame duck session is only three weeks long, but the state house didn’t need more than 18 hours to move the state sharply to the right. During a marathon session Thursday and Friday, the state house passed a variety of very conservative bills on issues from abortion to gun control to taxes. You can’t say they’re not efficient. The state, which favored Obama by 9 points and has long been home to a moderate-progressive movement, may now have a set of laws that puts it on America’s more conservative end.
Perhaps most shocking for pro-choice advocates was the effort to restrict abortion rights—or, as Mother Jones put it, “the abortion mega-bill.” Assuming the governor signs the bill into law, women in Michigan will now have to buy separate insurance policies to cover abortion. Otherwise, even in cases of rape or miscarriage, the abortion will not be covered. Clinics that provide more than 120 abortions a year will now face significantly more stringent licensing and regulation standards, much stricter than most other medical facilities. Pro-choice advocates have argued the new building codes and other requirements could shut down many clinics. Which, of course, is likely the idea of the bill in the first place.
Another bill does away with a bunch of gun-free zones, allowing people with concealed weapons permits to carry said concealed weapons in schools, day cares, hospitals—just about everywhere. The law does, however, allow schools and private businesses to remain gun-free zones voluntarily. The bill was passed before the horrific shooting at Sandy Hook Elementary School, but there’s little indication that changes the calculus for gun-rights advocates. Steve Dulan, who heads the Michigan Coalition of Responsible Gun Owners, told the Petoskey News the measure would offer more protection from such shootings. “If you have pistol free zones they are actually mass murderer empowerment zones,” he said. Similar measures have been passed around the country, advocated by the conservative American Legislative Exchange Council (ALEC), with the idea being that an armed citizen might be able to take down a shooter. Some public safety officials, however, have pointed out that more guns can complicate the situation for law enforcement. When both are armed, it’s hard to tell the murderers from the do-gooders.
There’s more of course. One measure would require voters to declare their citizenship before they can cast a ballot. Another makes recalling elected officials more difficult by shortening the number of days during which signatures could be collected from 90 to 60.
The bills now go to Republican Governor Rick Snyder. Earlier this year, Snyder made headlines when he vetoed a voter-ID bill, bucking his party because, in his own words, “the right to vote is precious.” But there’s little indication he’ll be pushing back against fellow Republicans this time around. He already signed right-to-work legislation into law last Tuesday, which he previously didn’t support. The new law strikes a blow to unions in a state where they once commanded tremendous power, and now puts Michigan in the same category with states in the South and plains, where workers have had considerably less power.
It used to be that parties in each state had unique identities and different policy priorities. Republican parties in Midwestern manufacturing states looked different than those in the rural (and often more conservative) parts of the country. Now, as deep red states like Texas and Oklahoma start their legislative sessions in January, it seems, they can get some bill ideas from Michigan.
By: Abby Rapoport, The American Prospect, December 17, 2012
“A Deeply Ironic Twist”: Conservative Media Ignore GOP Voter Registration Fraud
Republicans passed new voting restrictions in more than a dozen states since the 2010 election that were purportedly designed to stop voter fraud. Yet, in a deeply ironic twist, the most high-profile instances of election fraud this cycle have been committed by Republicans in states with new voting restrictions.
The RNC-funded Strategic Allied Consulting, run by checkered GOP operative Nathan Sproul, is under criminal investigation in Florida for submitting fraudulent voter registration forms to election officials. (Sproul is still running voter-canvassing operations for conservatives in thirty states.) Sproul’s associate Colin Small, who had worked for Strategic Allied Consulting and as “Grassroots Field Director at the Republican National Committee,” was charged last week with eight felony counts and five misdemeanors for trashing voter registration forms in Virginia.
Republicans claim that the voter registration fraud was committed by a few bad apples and pales in comparison to the fraud committed by ACORN in 2008. But ACORN was never funded by the DNC. And the abuses committed by Sproul and Small were far worse than those attached to ACORN. Unlike Strategic Allied Consulting, ACORN never changed the party affiliations on fraudulent voter registration forms and self-reported suspicious materials to election officials. Nor did ACORN ever destroy valid voter registration forms, as Small is accused of doing. (Not to mention that none of the fictitious characters falsely registered by ACORN workers, like Mickey Mouse, ever voted.)
Despite the right’s preoccupation with voter fraud, Sproul and Small have received scant coverage from conservative media outlets. Fox News, which ran 122 stories on ACORN from 2007–08, mentioned Strategic Allied Consulting only three times since the scandal broke in late September and hasn’t aired a single report on voter registration fraud in Virginia. Nor have National Review or The Weekly Standard, the pre-eminent conservative magazines, run an article about either case.
ACORN was far from perfect, but it did not deserve the witch-hunt treatment it received. In 2009, Peter Dreier of Occidental College and Christopher Martin of Northern Iowa studied the media’s shameful coverage of ACORN during the 2008 election and found:
• 82.8% of the stories failed to mention that actual voter fraud is very rare
• 80.3% of the stories failed to mention that ACORN was reporting registration irregularities to authorities, as required by law
• 85.1% of the stories about ACORN failed to note that ACORN was acting to stop incidents of registration problems by its (mostly temporary) employees when it became aware of these problems
• 95.8% of the stories failed to provide deeper context, especially efforts by Republican Party officials to use allegations of “voter fraud” to dampen voting by low‐income and minority Americans, including the firing of U.S. Attorneys who refused to cooperate with the politicization of voter-fraud accusations—firings that ultimately led to the resignation of U.S. Attorney General Alberto Gonzales
Republicans, it turns out, have committed the very voter registration fraud they once accused ACORN of perpetrating. Nor did new voting restrictions in states like Florida and Virginia, which could collectively make it harder for 5 million Americans to cast a ballot in 2012, prevent the fraud they were supposedly meant to combat.
By: Ari Berman, The Nation, October 23, 2012
“The Sound of Crickets”: Conservative Sites Silent About GOP Voter-Registration Fraud
What began last week as a trickle—a report from the Palm Beach Post that the Florida Republican Party was cutting ties with a firm that turned in “questionable” voter-registration forms in one county—has now grown into a pretty ugly flood. Turns out the Florida GOP paid the firm, Strategic Allied Consulting, to do voter registration, while the Republican National Committee paid the same firm millions to register voters in four other battleground states: Virginia, North Carolina, Nevada, and Colorado. The group allegedly submitted forms with dead voters’ information and fake information—and in some cases, may have changed voters’ party affiliations to Republican without alerting the voters. More disturbing, the firm the Republicans were paying, Strategic Allied Consulting, is one of several that GOP consultant Nathan Sproul has run over the last decade. Along the way, Sproul’s companies have been accused of everything from refusing to register Democratic voters to shredding the voter-registration forms of Democrats. Yet Sproul continued to get lucrative contracts from the GOP. And the conservative media has had precious little to say about it.
Josh Marshall called the news a “thunderclap of schadenfreude” and it’s hard to think of a more apt description. Republicans and their media backers have long criticized mass voter-registration drives, often pushed by progressive—if not necessarily partisan—groups. The 2008 ACORN voter registration non-scandal has been a cultural touchstone for the right. But what’s alleged against Sproul and Srategic Allied Consulting is is far more serious.
ACORN’s 2008 situation revealed problems not unusual to mass voter-registration drives. First, hundreds of thousands of voter-registration forms turned out to be duplicates; the voters were already registered and for whatever reason—likely because they weren’t sure—filled out a form anyway. That lead to hundreds of thousands of forms being rejected. Meanwhile, some paid canvassers faked voter-registration forms, filling them out for Mickey Mouse or John Smith. ACORN’s organizers flagged problematic ballots and turned information over to the authorities. In the end, several employees were charged with forgery. But there was no evidence that ACORN was trying to influence the outcome of an election, nor would any of these incidents result in voter fraud. Even if Mickey Mouse was registered to vote, it hardly means Mickey Mouse could cast a ballot. The canvassers were trying to make an easy buck.
While there’s no evidence that ACORN’s errors had any impact on election outcomes, it didn’t stop the conservative feeding frenzy. Breitbart.com was particularly prolific and, let’s say, creative in its coverage of the non-scandal, with headlines like “ACORN Corruption Runs Deep” and, as ACORN began to shut down, “Gangster Group Will Be Bankrupt Soon But Fake Spinoff Groups Will Carry On the Corruption.” No worries about downplaying the news when a progressive group was involved.
The efforts by the Republican Party and Sproul are significantly more disturbing than ACORN’s error-prone registration cards, primarily because these incidents could affect election outcomes. The consultant, Nathan Sproul, had already established himself as a shady character in 2004, when one of his previous companies, Voters Outreach of America, was accused of major legal violations, including destroying Democrats’ voter-registration forms and refusing to register non-Republicans. By destroying Democratic voter registrations, as Sproul’s group allegedly did, people who believe themselves to be registered could be turned away at the polls. Furthermore, the track record of accusations, including the suspicious forms turned in this year, seem to indicate a top-down policy of the Republican Party more than poor decision-making by some low-level canvassers.
When the news broke, the Republican National Committee ended its relationship with Sproul. But that left an obvious question: If Sproul was accused of such suspicious activities in 2004, why was the RNC still doing business with him? After making a total of $8 million in 2004, Sproul had already made $3 million this year from the RNC alone. (He was also getting six-figure checks from several state parties, as Lee Fang reports.)
But oddly enough, in spite of all the questions this news seems to raise, Nathan Sproul and Strategic Allied Consulting barely seem to exist in the conservative corners of the media. A search at RedState yielded 0 results. So did a search at Breitbart.com. Even Matt Drudge, who never seems to let a juicy headline pass by, ignored one when it came to Sproul and his company—or to this actual evidence of a political party cavorting with genuinely sketchy voter-registration efforts. We must give Tucker Carlson’sThe Daily Caller credit, though: It did run a single republished AP story—one with no mention of Sproul’s long history with the GOP.
Compare that to the number of stories mentioning ACORN over the last four years: RedState has 68, The Daily Caller 128, and Drudge 166. A search for “ACORN” on Breitbart.com, meanwhile, reveals a staggering 1,450 entries.
Given how loudly these media sites have criticized legitimate and non-partisan voter registration drives for mistakes, in some cases effectively ending the efforts with a barrage of negative press, the silence here speaks volumes. Here is an actual example of the activity so many GOP activists are constantly searching for: evidence of voter- registration drives being used for partisan purposes.
But then again, there’s likely no time to write about a genuine case of voter registration manipulation when you’re so busy producing new stories about President Obama’s relation to ACORN, a group that no longer exists, five years after the fact.
By: Abby Rapoport, The American Prospect, October 5, 2012
“Southern De-Construction”: With Voter Suppression, The Confederacy Rises Again
On Sunday I attended a fascinating panel of Southern politics experts convened by UNC-Chapel Hill. One of the major takeaways from the session was how diverse the South has become. For instance, Charlotte, the host city of the DNC, is now 45 percent white, 35 percent African-American and 13 percent Hispanic.
Among baby boomers aged 55–64, the South is 72 percent white. Among kids 15 or under, the South is 51 percent white, 22 percent Hispanic, 21 percent African-American and 6 percent other (which includes Asian-Americans and Native-Americans). In North Carolina, people of color accounted for 61 percent of the 1.5 million new residents the state gained over the past decade. Since 2008, the black and Hispanic share of eligible voters in North Carolina has grown by 2.5 percent, while the percentage of the white vote has decreased by a similar margin. This increasing diversity allowed Obama to win the Southern states of Florida, North Carolina and Virginia in 2008—all of which are competitive again in 2012.
The region’s changing demographics are a “ticking time bomb for Republicans,” said Scott Keeter, director of survey research at the Pew Research Center. The Southern GOP is 88 percent white. The Southern Democratic Party is 50 percent white, 36 percent African-American, 9 percent Hispanic and 5 percent other. The GOP’s dominance among white voters—who favor Romney over Obama by 26 points in the region—has allowed Republicans to control most of the region politically. But that will only be the case for so long if demographic trends continue to accelerate. Yet instead of courting the growing minority vote, Republicans across the South are actively limiting political representation for minority voters and making it harder for them to vote.
Eight of eleven states in the former Confederacy have passed restrictive voting laws since the 2010 election, as part of a broader war on voting undertaken by the GOP. Some of these changes have been mitigated by recent federal and state court rulings against the GOP, yet it’s still breathtaking to consider the different ways Republicans have sought to suppress the minority vote in the region.
– Laws mandating strict forms of government-issued identification to cast a ballot were passed in Alabama, Mississippi, South Carolina, Tennessee and Texas. Virginia tightened a looser voter ID law. A federal court blocked Texas’s discriminatory voter ID law last week and will rule on South Carolina’s law shortly. Mississippi and Alabama must also receive preclearance for their voter ID laws—which are scheduled to go into effect in 2013 and 2014—from a federal court in Washington or the Department of Justice under Section 5 of the Voting Rights Act. According to a 2005 study by the Brennan Center for Justice, 11 percent of US citizens don’t have government-issued IDs, but the number is 25 percent among African-Americans.
– Laws requiring proof of citizenship to register to vote were passed in Alabama and Tennessee. Restrictions on voter registration drives were enacted in Florida and Texas. Florida’s law has been overturned by a federal court. Texas’s law has also been blocked by a state judge. Data from the 2004 and 2008 elections in Florida show that “African-American and Hispanic citizens are about twice as likely to register to vote through drives as white voters,” according to Project Vote.
– Early voting periods were reduced in Florida, Georgia and Tennessee. African-Americans in states like Florida were twice as likely to cast ballots during early voting as white voters. According to University of Florida political scientist Daniel Smith, 800,000 voters in Florida cast ballots during early voting hours in 2008 eliminated by the GOP. A federal court overturned the law in the five Florida counties covered by Section 5 of the Voting Rights Act.
– Florida also prevented felons convicted of non-violent crimes from voting after they’ve served their time, which disenfranchised nearly 200,000 Floridians who would have been eligible to vote in 2012. Blacks are 13 percent of registered voters in Florida but 23 percent of disenfranchised felons.
– Only three Southern states—Arkansas, Louisiana and North Carolina—did not pass restrictive voting laws since 2010. North Carolina Democratic Governor Bev Perdue twice vetoed efforts by North Carolina Republicans to pass a strict voter ID law before the 2012 election. If GOP gubernatorial candidate Pat McCrory wins in November, it’s all but certain a tough voter ID law will be among the first pieces of legislation he signs.
– In conjunction with these new voting restrictions, Republicans all across the South used their control of state legislatures following 2010 to pass redistricting maps that will lead to a re-segregation of Southern politics, placing as many Democratic lawmakers into as few “majority minority” districts as possible as a way to maximize the number of Republican seats. “Their goal is to make the Republican Party a solidly white party and to make the Democratic Party a majority African-American one,” says Kareem Crayton, professor of law at UNC-Chapel Hill and an expert on voting rights in the South. The Texas redistricting maps, which a federal court ruled last week were “enacted with discriminatory purpose,” are simply a more extreme version of an effort that has been replicated in virtually every Southern state to undercut black and Hispanic political representation.
The consequences of these changes will be to make it harder for growing minority populations to be able to cast a ballot in much of the South and to make the region more segregated politically at a time when it is becoming more diverse demographically. “The net effect is that the potential for any coalition to exist in the Democratic Party of moderate-to-progressive whites and African-American voters is pretty much decimated,” says Crayton. Obama is betting he can once again turn out such a coalition in states like Florida, North Carolina and Virginia, but that task has become tougher in 2012. The outlook for state and local Democrats in the region is far bleaker.
The regression in the South today when it comes to voting rights is eerily reminiscent of tragic earlier periods in the region’s beleaguered racial history. “After Reconstruction, we saw efforts by conservative whites in Southern state legislatures to cut back on opportunities for black Americans to cast a ballot,” says Crayton. “It’s hard to dismiss the theory that what we’re seeing today is a replay of that scenario.”
Today, four southern states (Alabama, Georgia, South Carolina, Texas) are supporting a constitutional challenge to Section 5 originating in Shelby County, Alabama. When Republicans in Tampa yearned for the good ‘ol days, it was hard not to get the feeling that they were thinking of a time in the South when the Voting Rights Act of 1965 and the Civil Rights Act of 1964 did not exist.
By: Ari Berman, The Nation, September 4, 2012
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