“Let’s Not Beat Around The Bush”: Voter ID Laws Have But One Intent, To Limit The Franchise
Belatedly, federal Judge Richard Posner has arrived at the obvious conclusion about voter identification laws: They are enacted as a barrier to the franchise, an un-American tactic hatched by conservatives to prevent certain people from voting. It’s too bad that his epiphany came so late.
Posner is one of the nation’s most respected conservative jurists. As a judge on the U.S. Court of Appeals for the 7th Circuit, he might have led the nation’s highest court to reject new restrictions around voting. Instead, in 2007, Posner wrote the majority opinion that upheld Indiana’s stringent law, setting the stage for the U.S. Supreme Court to reason that it did no harm to an unfettered franchise.
That was quite wrong, as Posner now acknowledges. While he disavowed his earlier endorsement of the law in a new book, Reflections of Judging, he went further in a video interview earlier this month with The Huffington Post, saying that the dissenting view was the right one.
In that dissent, the late Judge Terence Evans wrote: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” That about sums it up.
Still, I see in Posner’s late-arriving epiphany occasion for hope that debates about obstacles to voting, which have proliferated in states controlled by Republicans, will now proceed with more intellectual honesty. Let’s give up the preposterous justification that the barrage of new restrictions around the franchise — regulations that include limits on early voting — are intended to prevent voter fraud.
Recently, the consequences of those restrictions have been clear in Texas, which was among the states that rolled out new measures after the U.S. Supreme Court decimated the Voting Rights Act earlier this year. (Posner has had interesting comments about that decision too, dismissing its intellectual and legal foundations as non-existent. “The opinion rests on air,” he wrote.)
Eighty-four-year-old Dorothy Card, a Texas resident, has voted for six decades, but she stopped driving 15 years ago and doesn’t have a driver’s license, the ID preferred in voter-suppression states. By late last month, she had tried three times to obtain an ID that would allow her to vote in November elections, according to Think Progress, a left-leaning political blog. Her daughter said she would keep trying but with little expectation of success since each attempt required a different set of documents.
But perhaps the case that poses the biggest challenge for the Texas voter-suppression camp concerns a sitting judge, Sandra Watts. She was nearly barred from voting earlier this month because her name is listed slightly differently on her driver’s license than on voter registration rolls. Her driver’s license lists her maiden name as her middle name, while the voter registration roll lists her real middle name. As a consequence, she was told she’d have to vote using a provisional ballot, which would be checked to assure her identity.
As she told a Texas TV station, it’s not unusual for a married woman to condense her name by putting her maiden name in the middle. “I don’t think most women know that this is going to create a problem. That their maiden name is on their driver’s license, which was mandated in 1964 when I got married …” she said.
Meanwhile, there are no — zip, zilch, zero — comparable stories of fraud prevented by the new laws. Perhaps that’s because in-person fraudulent voting of the sort the new laws ostensibly prevent is virtually non-existent. Analyses have consistently shown that voter fraud is much more likely to occur through absentee ballots, which the voter-suppression crowd have usually ignored.
Here’s the not-so-hidden agenda behind voter ID laws: blocking the franchise for voters who lean toward Democrats. Those voters can be found easily enough among poorer blacks and Latinos, who tend to be less likely to own cars and to have driver’s licenses. Target them, and you can shave off several hundred or a few thousand votes — enough to win a close election.
That’s what Republicans are up to. Let’s hope Posner’s acknowledgment might at least spark more honesty about their motives.
By: Cynthia Tucker, The National Memo, October 26, 2013
“A Failure Of Democracy”: Judge Richard Posner’s Unforced Error On Voter ID And Non-Existent Voter Fraud
Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”
For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.
The law in question requires voters to show a photo ID at the polls as a means of preventing voter fraud. Opponents sued, saying it would disenfranchise those Indianans without photo IDs — most of whom were poor, elderly, or minorities. State officials said the law was necessary, even though no one had ever been prosecuted for voter fraud in Indiana.
Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)
Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”
But all the judges had the same record in front of them at the time. So what information did the dissenters rely on that Judge Posner and Justice Stevens did not? That’s the question raised in a smart critique by Paul M. Smith, who argued the plaintiffs’ case before the Supreme Court.
Mr. Smith pointed out that there was never any doubt the law would make voting harder for potentially tens of thousands of voters, and that the plaintiffs submitted numerous affidavits from voters who explained how they would be harmed by the law. Even if the actual number was lower, it was certainly higher than zero, which is the number of voter-fraud incidents recorded in Indiana when the law was enacted.
In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.”
Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”
That bizarre logic suggests that the judge’s problem was not a lack of information, but what former White House counsel Bob Bauer called “a failure of democratic imagination.”
Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.
By: Jesse Wegman, Editors Blog, The New York Times, October 22, 2013
“Only Division Is Over Tactics, Not Policy”: The Tea Party And Big Business Want The Same Things
Dave Weigel patiently explains today that there isn’t actually a brewing war between “the Tea Party” and Wall Street and “the business community.” There is, really, just the same fruitful alliance that birthed the Tea Party. Because as long as “the Tea Party” means “Republicans in control of the House,” that means “Democrats not in control of the House.” Which is good for business! (In a very dumb and short-sighted way, mostly.) As Weigel says: “No one’s looking to primary the average Class of 2010 Republican because he’s trying to repeal Dodd-Frank or challenge EPA rules or prevent any changes in tax law that would anger the donors.”
And “big business,” in the form of the Chamber of Commerce and other business-backed groups, has spent and will continue to spend a small fortune electing Republicans, including “Tea Party” Republicans, in order to help Republicans, including “Tea Party” Republicans, maintain control of the House and possibly take over the Senate. The shutdown and the default showdown didn’t stop that. There is still one party that is very committed to rolling back environmental and other regulations, preventing meaningful financial reform, and, most importantly, keeping taxes as low as possible on very wealthy people and corporations. The Tea Party is not opposed to any of those things.
There are really only two issues dividing “the business community” from “the Tea Party.” They are a) tactics and b) immigration. “The business community” wants the Republican Party to be competitive in national races — they’re also be fine with the Republicans trying to win elections through gerrymandering and voter suppression — while “the Tea Party” prioritizes purity over electability. (In fact most of them don’t see conservative purity as any sort of obstacle to electability, but they are wrong.) The backlash to Ted Cruz and the House “suicide caucus” was mainly a reaction to tactics, not a blow-up over policy.
Conservatives simply differed over the best way to force Democrats into accepting the roll-back of the ACA and/or a tax-cutting, social insurance-cutting long-term budget deal. Plenty of “establishment” Republicans still believe it is perfectly appropriate to use the debt ceiling, and the implicit threat of default, to extract policy concessions. Where Republicans split was on the wisdom of actually shutting the government down or merely threatening to, and on what precisely to demand in exchange for reopening the government. Grover Norquist attacked Ted Cruz for demanding the unachievable, but he doesn’t actually oppose defunding Obamacare. He just thought Paul Ryan had a better strategy for actually winning concessions. (Grover Norquist is right, by the way.)
Where there could actually be a break of some kind is in next year’s primaries, when Tea Party groups will fund some less-electable candidates against perfectly conservative members with more realistic grasps of the achievable. But if the Tea Party groups win those primaries, big business will still support their candidates. (The Chamber of Commerce donated to Mike Lee and Allen West in 2012.)
The biggest problem with the moderate fantasy of a new Moderate Republican rising from the ashes of Ted Cruz is that “big business” isn’t going to force the “Tea Party” to moderate its positions, it’s going to fight to get them to fight for their positions more effectively. People opposed to the goals of the Tea Party movement should be even more opposed of the business community reasserting control over the party. The end result of the “grown-ups” stepping in to squash the Tea Party would be more power to people like… Mitch McConnell, the man who’s done more than anyone else to block Barack Obama’s agenda. The actual policies being fought for, with few exceptions, wouldn’t change.
The one major issue where there is actually tension between the bottom-line priorities of the donor class and the desires of the activist movement is immigration. There are many obvious reasons why big business would prefer looser immigration restrictions, more guest-workers and visas for “highly skilled” immigrants. But for a popular movement still fueled by the tribal panic of aging whites, “more immigrants” is not a winning message. (It’s also true that “the donor class” is much more socially liberal than the grassroots activists, but same-sex marriage isn’t enough of a profit-booster to make it a fight worth having outside the “blue states” where it’s already popular.) Even on immigration, smart representatives of the donor class seem to be suggesting that they believe it’s better to let activist conservatives have their way than to create a genuine split in the party. Because what’s good for Republicans is good for rich people.
That will still be true in 2014 and in 2016. And that’s why when the next presidential election rolls around, the conservative grassroots and the money will fall in line behind whichever guy the GOP nominates, even if they disagree about him at first.
By: Alex Pareene, Salon, October 21, 2013
“Today’s GOP Confederates And Dixiecrats”: Amazing How The Only Group Voter Suppression Doesn’t Target Is White Men
The Republican defense of laws requiring identification to vote usually goes like this: “Who doesn’t have ID? And why can’t they get it?”
They’re forced to this defense because they can’t point to one election in modern American history that was swung by the phantom scourge of in-person voting fraud. They know they can’t because the Bush administration tried to find one for years and couldn’t.
These questions are rhetorical, because any serious attempt to answer them indicts the effort to make voting more difficult.
Who doesn’t have voter ID?
In 2012, “the state admitted that between 603,892 and 795,955 registered in voters in Texas lacked government-issued photo ID, with Hispanic voters between 46.5 percent to 120 percent more likely than whites to not have the new voter ID,” according to The Nation‘s Ari Berman.
And why can’t they get it?
The laws purposely make it difficult to get IDs. In Texas, residents had to pay a minimum of $22 to get the necessary documentation at a government office, such as the Department of Motor Vehicles. “Counties with a significant Hispanic population are less likely to have a DMV office, while Hispanic residents in such counties are twice as likely as whites to not have the new voter ID (Hispanics in Texas are also twice as likely as whites to not have a car),” Berman points out.
But Texas’s law doesn’t only make it more difficult for Latinos to vote, it also places an undue burden on one specific gender. Guess which one!
The New Civil Rights Movement‘s Jean Ann Esselink explains: As of November 5, Texans must show a photo ID with their up-to-date legal name. It sounds like such a small thing, but according to the Brennan Center for Justice, only 66 percent of voting age women have ready access to a photo document that will attest to proof of citizenship. This is largely because young women have not updated their documents with their married names, a circumstance that doesn’t affect male voters in any significant way. Suddenly 34 percent of women voters are scrambling for an acceptable ID, while 99 percent of men are home free.
Democratic strategist Alex Palambo points out, “Similar to how poor, minority, and elderly voters in Pennsylvania had trouble getting to the DMV to obtain a state ID or driver’s license before the election, women in Texas are having trouble getting an acceptable photo ID that matches their most current name.”
Palambo feels it’s more than a coincidence that voting is becoming more difficult for women just as State Senator Wendy Davis (D-Fort Worth) prepares to take on Texas attorney general Greg Abbott to replace Rick Perry as the state’s governor.
“Greg Abbott has a reason to be scared of Davis, his own popularity with women is low, most likely due to his strict reproductive health restrictions, gutting of childcare funding, and opposition to equal pay,” she notes. The party may also be thinking ahead to 2016, when another Democratic woman might be on the ballot.
Regardless, voter ID is a policy that seems designed to make it harder for everyone to vote, except white men.
Even the conservative federal judge who wrote the majority opinion in the 2008 case that ultimately upheld that such laws were constitutional now admits the true agenda of these laws.
In his new book, Stephen A. Posner admits that he regrets his decision in Crawford v. Marion County Election Board, noting that the law it upheld is “now widely regarded as a means of voter suppression rather than of fraud prevention.”
The Reagan-appointed federal appeals court judge now agrees with Judge Terence T. Evans, his colleague who wrote the minority decision in Crawford. “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage Election Day turnout by certain folks believed to skew Democratic,” Evans wrote.
Posner admits that he wasn’t aware of the “trickery” inherent in the law when he made his decision just two years after a Republican Congress and president had renewed the Voting Rights Act, which was recently gutted by the Roberts court.
“I plead guilty to having written the majority opinion,” he writes in Reflections On Judging.
Perhaps he should have asked himself a question: Why would the party that claims to hate government regulation demand government regulation to solve a problem that doesn’t exist?
The answer — unfortunately — is sad and simple.
“The Confederates and Dixiecrats of yesteryear are the Republicans of today,” writes Berman.
By: Jason Sattler, The National Memo, October 20, 2013
“Two Tiered Discrimination”: Separate And Unequal Voting In Arizona And Kansas Are About Nullification And Voter Suppression
In its 2013 decision in Arizona v. The Inter Tribal Council of Arizona, the Supreme Court ruled 7-2 that Arizona’s proof of citizenship law for voter registration violated the 1993 National Voter Registration Act (NVRA).
In 2004, Arizona voters approved Proposition 200, a stringent anti-immigration law that included provisions requiring proof of citizenship to register to vote and government-issued photo ID to cast a ballot. Last year, the US Court of Appeals for the Ninth Circuit blocked the proof of citizenship requirement, which it said violated the NVRA. Under the 1993 act, which drastically expanded voter access by allowing registration at public facilities like the DMV, those using a federal form to register to vote must affirm, under penalty of perjury, that they are US citizens. Twenty-eight million people used that federal form to register to vote in 2008. Arizona’s law, the court concluded, violated the NVRA by requiring additional documentation, such as a driver’s license, birth certificate, passport or tribal forms. According to a 2006 study by the Brennan Center for Justice, at least 7 percent of eligible voters “do not have ready access to the documents needed to prove citizenship.” The Supreme Court affirmed the lower court ruling, finding that states like Arizona could not reject applicants who registered using the NVRA form.
Now Arizona and Kansas—which passed a similar proof-of-citizenship law in 2011—are arguing that the Supreme Court’s decision applies only to federal elections and that those who register using the federal form cannot vote in state and local elections. The two states have sued the Election Assistance Commission and are setting up a two-tiered system of voter registration, which could disenfranchise thousands of voters and infringe on state and federal law.
The tactics of Arizona and Kansas recall the days of segregation and the Supreme Court’s 1896 “separate but equal” ruling in Plessy v. Ferguson. “These dual registration systems have a really ugly racial history,” says Dale Ho, director of the ACLU’s Voting Rights Project. “They were set up after Reconstruction alongside poll taxes, literacy tests and all the other devices that were used to disenfranchise African-American voters.”
In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections. It was hard enough to register once in states like Mississippi, where only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965. And when the federal courts struck down a literacy test or a poll tax before 1965, states like Mississippi still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws.
The Voting Rights Act ended this dichotomy between federal and state elections by prohibiting racial discrimination in voting in all elections. Section 5 of the Act, which the Supreme Court eviscerated earlier this year in Shelby County v. Holder, prevented states with the worst history of voting discrimination—like Mississippi—from instituting new disenfranchisement schemes. It was Section 5 that blocked Mississippi from implementing a two-tiered system of voter registration following the passage of the NVRA in 1993, which the state claimed applied only to federal elections. (A similar plan was stopped in Illinois under state court.) Arizona—another state previously subject to Section 5 based on a long history of discrimination against Hispanic voters and other language minority groups—is making virtually the same rejected argument as Mississippi in the 1990s, but, thanks to the Roberts Court, no longer has to seek federal approval to make the voting change. The revival of the dual registration scheme is yet another reason why Congress should revive Section 5.
The proposed two-tiered system of voting and the harmfulness of proof-of-citizenship laws warrant legal scrutiny. Over 30,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004. In Kansas, 17,000 voters have been blocked from registering this year, a third of all registration applicants, because the DMV doesn’t transfer citizenship documents to election officials. The ACLU has vowed to sue Kansas if the state continues its noncompliance with state and federal law.
Proof-of-citizenship laws and the new two-tiered voting scheme are the brainchild of Kansas Secretary of State Kris Kobach, who has done more than just about anyone to stir up fears about the manufactured threat of voter fraud. As the author of Arizona’s “papers please” immigration law and Mitt Romney’s nonsensical “self deportation” immigration plan, he’s fused anti-immigrant hysteria with voter-fraud paranoia. Kobach helped the American Legislative Exchange Council draft model legislation for proof of citizenship laws based on Arizona’s bill, which were adopted in three states—Alabama, Kansas and Tennessee—following the 2010 election.
To justify his state’s new voting restrictions (Kansas also has a strict voter ID law), Kobach told The Huffington Post, “We identified 15 aliens registered to vote,” but he seems unconcerned that 17,000 eligible Kansans have been prevented from registering. Moreover, there’s no evidence these fifteen alleged non-citizens actually voted—just as there’s no evidence that dead people are voting in Kansas, another erroneous claim from Kobach. As Brad Friedman noted, Kansas City Star columnist Yael Abouhalkah wrote last year that Kobach “has a way of lying” about the threat of voter fraud.
Kobach claimed in 2011 that sixty-seven non-citizens had illegally registered, out of 1.7 million on the state’s voter rolls, but he “was unable to identify a single instance of a non-citizen illegally casting a vote, or any successful prosecution for voter fraud in the state,” according to the Brennan Center. As I’ve asked before, why would a non-citizen, who presumably is in the United States to work, risk deportation and imprisonment in order to cast a ballot? Kobach once suggested in a radio interview that perhaps their coyote was paying them to vote, which defies all logic.
There’s also no evidence that using the NVRA’s federal form to register leads to higher incidents of voter fraud. “Nobody has ever been prosecuted for using the federal form to register to vote as a non-citizen,” Nina Perales, vice president of litigation at the Mexican-American Legal Defense Fund, told me earlier this year.
In reality, the two-tiered system of registration being set up in Arizona and Kansas has less to do with stopping voter registration fraud, which as shown is a very rare problem in both states, and more to do with “nullifying” federal laws that Republicans don’t like, such as Obamacare. There’s symmetry between shutting down the government and creating separate and unequal systems of voter registration. It’s a strategy that dates back to Jim Crow, when fierce segregationists like John Calhoun of South Carolina tried to prevent the federal government from taxing the Confederacy and Southern Democrats instituted a policy of “massive resistance” to the Supreme Court’s Brown v. Board of Education ruling desegregating public schools.
Wrote Sam Tanenhaus in “Why Republicans Are The Party of White People”:
When the intellectual authors of the modern right created its doctrines in the 1950s, they drew on nineteenth-century political thought, borrowing explicitly from the great apologists for slavery, above all, the intellectually fierce South Carolinian John C. Calhoun. This is not to say conservatives today share Calhoun’s ideas about race. It is to say instead that the Calhoun revival, based on his complex theories of constitutional democracy, became the justification for conservative politicians to resist, ignore, or even overturn the will of the electoral majority.
The Confederates and Dixiecrats of yesteryear are the Republicans of today.
By: Ari Berman, The Nation, October 15, 2013
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 