“Arizona’s Voting Rights Fire Bell”: The Disenfranchisement Of Thousands Of Its Citizens
It’s bad enough that an outrage was perpetrated last week against the voters of Maricopa County, Ariz. It would be far worse if we ignore the warning that the disenfranchisement of thousands of its citizens offers our nation. In November, one of the most contentious campaigns in our history could end in a catastrophe for our democracy.
A major culprit would be the U.S. Supreme Court, and specifically the conservative majority that gutted the Voting Rights Act in 2013.
The facts of what happened in Arizona’s presidential primary are gradually penetrating the nation’s consciousness. In a move rationalized as an attempt to save money, officials of Maricopa County, the state’s most populous, cut the number of polling places by 70 percent, from 200 in the last presidential election to 60 this time around.
Maricopa includes Phoenix, the state’s largest city, which happens to have a non-white majority and is a Democratic island in an otherwise Republican county.
What did the cutbacks mean? As the Arizona Republic reported, the county’s move left one polling place for every 21,000 voters — compared with one polling place for every 2,500 voters in the rest of the state.
The results, entirely predictable, were endless lines akin to those that await the release of new iPhones. It’s an analogy worth thinking about, as there is no right to own an iPhone but there is a right to vote. Many people had to wait hours to cast a ballot, and some polling stations had to stay open long after the scheduled 7 p.m. closing time to accommodate those who had been waiting — and waiting. The Republic told the story of Aracely Calderon, a 56-year-old immigrant from Guatemala who waited five hours to cast her ballot. There were many voters like her.
Phoenix Mayor Greg Stanton, whose government does not control election management, is furious about what was visited upon his city’s residents. The day after the primary, he wrote U.S. Attorney General Loretta E. Lynch asking her to open a Justice Department investigation into the fiasco. It was not just that there weren’t enough polling places, Stanton charged. Their allocation also was “far more favorable in predominantly Anglo communities.” There were fewer voting locations in “parts of the county with higher minority populations.”
In a telephone interview, Stanton made the essential point. Long lines are bad for everyone. But they particularly hurt the least advantaged, who usually have less flexibility in their schedules than more affluent people do. It is often quite literally true that poor voters can’t afford to wait.
“If you’re a single mother with two kids, you’re not going to wait for hours, you’re going to leave that line,” Stanton said. As a result, Stanton said, “tens of thousands of people were deprived of the right to vote.”
A Democrat, Stanton asked himself the obvious question: “Am I suggesting this was the intent of the people who run elections in Maricopa County?” His answer: “In voting rights terms, it doesn’t matter.” What matters, he said, is whether changes in practice “had a disparate impact on minority communities,” which they clearly did.
And there’s the rub. Before the Supreme Court undermined Voting Rights Act enforcement, radical changes in voting practices such as Maricopa’s drastic cut in the number of polling places would have been required to be cleared with the Justice Department because Arizona was one of the states the law covered. This time, county officials could blunder — let’s assume, for the sake of argument, that there was no discriminatory intent — without any supervision.
Now let’s look ahead to Election Day this fall. Michael Waldman, president of the Brennan Center for Justice, notes in his important new book, “The Fight to Vote,” that Republicans have “moved with strategic ferocity” to pass a variety of laws around the country to make it harder for people to cast ballots. The Brennan Center reports that 16 states “will have new voting restrictions in place for the first time in a presidential election.”
Imagine voting debacles like Arizona’s happening all across the country. Consider what the news reports would be like on the night of Nov. 8, 2016. Are we not divided enough already? Can we risk holding an election whose outcome would be rendered illegitimate in the eyes of a very large number of Americans who might be robbed of their franchise?
This is not idle fantasy. Arizona has shown us what could happen. We have seven months to prevent what really could be an electoral cataclysm.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 27, 2016
“The Supreme Court Fight Is About Democracy”: Conservatives Want To Bring Back Pre-New Deal Jurisprudence
There’s a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.
The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.
Some conservatives are quite open about this, and few have been more candid than George F. Will, my Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.
In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?
It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.
We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.
Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”
Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”
Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.
I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.
At heart, this is a debate over how we define democracy. It’s also a struggle over whether government will be able to serve as a countervailing force to concentrated economic power.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 20, 2016
“An Electoral Gamble”: Why Working-Class Whites Can’t Propel Donald Trump To Ultimate Victory
If there’s one thing we know for sure about Donald Trump, it’s that he’s a candidate for white people.
This would seem to be an almost insurmountable problem in an increasingly diverse America, but some are beginning to suspect — either with hope or fear, depending on whom you ask — that Trump could win a general election by pulling in large numbers of working-class white voters who are responding to his message of alienation, anger, and resentment. As The Wall Street Journal recently put it, “Trump’s success in attracting white, working-class voters is raising the prospect that the Republican Party, in an electoral gamble, could attempt to take an unexpected path to the White House that would run through the largely white and slow-to-diversify upper Midwest.”
Indeed, if Trump were to win the White House, this would seem to be the only way. But it’s not going to happen.
The idea rests on a number of misconceptions, the first of which is that there are millions of blue-collar whites who would otherwise have voted Democratic, but who will vote for Donald Trump instead. As Chris Matthews said in January, “I think there’s a lot of Reagan Democrats waiting to vote for him.” The “Reagan Democrats” to which he refers were Democrats who crossed party lines to vote for Ronald Reagan in 1980.
The problem with this belief is that the Reagan Democrats are gone. Where did they go? They became Republicans. The phenomenon of Reagan Democrats was largely about race, the continuation of a process that began when Lyndon Johnson signed the Civil Rights Act and Voting Rights Act. Those socially conservative whites who had voted Democratic in the past shifted their allegiance, and they didn’t go back.
You can argue, and many people have, that the alienation of the Democratic Party from the white working class is a serious problem for them, and it’s part of what produces off-year defeats in years like 2010 and 2014. But because of the country’s changing demographics, the white working class becomes a smaller and smaller portion of the voting public with each election, particularly in presidential election years when turnout is higher across the board. That’s why Barack Obama could lose the white working class in 2012 by a staggering 26 points (62-36), and still win the election comfortably. So if you’re going to argue that Donald Trump will ride these voters to victory, you’d have to believe that he’d do not just better than Mitt Romney did with them, but hugely better, so much so that it would overcome the advantages the Democratic nominee will have with other voters.
Consider, for instance, the Latino vote. Mitt Romney won only 27 percent of Latinos in 2012, an abysmal performance that convinced many Republicans that if they didn’t “reach out” to this fast-growing segment of the electorate, they might be unable to win the White House any time soon. Latinos will be an even larger portion of the electorate this year than they were four years ago. Now think what will happen if Donald Trump, the man who made venomous antipathy toward immigrants one of the cornerstones of his campaign, becomes the GOP nominee. Not only would it be shocking if he got 20 percent of their votes, his nomination will almost certainly spur higher turnout among Latinos than we’ve ever seen before.
That’s another problem with the blue-collar whites theory of a Trump victory: It rests on the idea that he’d bring out large numbers of those voters who don’t vote often, but also requires that people opposed to Trump won’t be similarly motivated to turn out. “I find it just so implausible that we could have this massive white nativist mobilization without also provoking a big mobilization among minority voters,” political scientist Ruy Teixeira recently told The New Yorker. “It is kind of magical thinking that you could do one thing and not have the other.”
Now let’s talk about that Rust Belt. Even if you believe that Trump would do better in those states than recent Republicans have, it wouldn’t be enough unless he was absolutely crushing the Democrat everywhere. The reason is that Democrats start in an excellent position in the Electoral College. In 2012, President Obama won reelection with 332 electoral votes, a cushion of 62 more than he needed. That means that if the Democratic nominee can hold most of the states Obama won — including swing states heavy with Latinos, like Florida, New Mexico, and Colorado — she could lose Pennsylvania (20 electoral votes), Ohio (18 votes), and Michigan (16 votes) and still be elected president.
I suspect that many people have been led to believe that Trump could ride white working-class votes to victory in the fall because he has performed particularly well with such voters in the Republican primaries. It only takes a moment to realize the problem with this logic. The people voting in Republican primaries are overwhelmingly, guess what, Republicans. Yes, there are Republican-leaning independents voting in those primaries, too, but they’re mostly people who call themselves independent but consistently vote Republican. They’re already in the GOP’s camp; Trump would need them, plus a whole lot more.
That’s not even to mention the moderate Republicans who are repulsed by Trump and would either vote for the Democrat, vote for a third-party candidate, or just stay home. Donald Trump’s problem in the general would be that he has all kinds of voters who will oppose him, and be highly motivated to do so; he is easily the most unpopular candidate in either party. He might pick up a few extra votes from those who respond to his nativism and race-baiting, yet used to vote for Democrats. But there just aren’t enough of them, and it won’t be anything approaching what he’d need to win.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Week, March 8, 2016
“Assessing The Threats We Face”: Which Candidate Has Most Accurately Defined Those Threats And Offered A Way Forward
Obviously, Hillary Clinton’s firewall held – at least in South Carolina – where she beat Bernie Sanders by almost 50 points on Saturday. In doing so, she won 86% of the vote from African Americans. But perhaps even more importantly:
Black voters in South Carolina cast 6 in every 10 Democratic primary votes, according to CNN’s exit poll data. That ratio is huge — and sets a record-high in South Carolina black voter participation rate. The previous high was 55 percent, set in 2008, when the first black president was on his way to being elected.
For a while now, the question has been whether or not people of color – particularly African Americas – would turn out for the Democratic candidate in the numbers we saw when Barack Obama was on the ballot. At least in the South Carolina primary, they actually exceeded that benchmark.
That was surprising to some people. But perhaps a quick walk down memory lane explains what happened.
First of all, I’ve already noted how the nomination and election of Barack Obama was greeted with both hope and terror in the hearts of many African Americans. The hope was the culmination of something most thought they wouldn’t see in their lifetimes. Beyond that, the way this President and his family have handled themselves in office has been a great source of pride, while his accomplishments will give him a place of honor in our history. Therefore, in many Black homes he has been adopted as part of the family.
But the terror indicated that those who felt it were very aware of the fact that we had not reached a post-racial America. Almost immediately during the 2008 election Obama was accused by those on the right of “paling around with terrorists,” saw vicious attacks on his pastor and had his citizenship in this country questioned. Once he was elected, we witnessed unprecedented obstruction and disrespect of – not just his policies – but his very personhood. This country’s first African American president consistently faced an opposition that challenged his legitimacy in office.
Meanwhile, the courts and Republican legislators all over the country have been attempting to roll back the voting rights that so many African Americans fought and died for, and they are watching their sons and daughters be killed at the hands of police officers and vigilantes.
We are now witnessing a Republican presidential primary where the candidates are racing to outdo each other in their contempt for people of color. The field is being led by someone who has been embraced by white supremacists and just yesterday refused to disavow the support he is receiving from KKK groups – claiming he needs to do research to understand who they are.
With all of that, is it any surprise that African Americans would assume that this country is facing the threat of a confederate insurgency?
Into that mix comes the Democratic candidate Bernie Sanders, whose campaign is based on the idea that we are living in an oligarchy where both Parties have been captured by the forces of Wall Street. That defines the threat very differently than what many African Americans see and feel right now.
In addition, Sanders has a history of calling President Obama naive and suggesting that he should be primaried in 2012. One of his most prominent surrogates in the African American community once said that the President had a “fear of free black men” and just recently suggested that civil rights heroes like Rep. John Lewis and Jim Clyburn have been bought off by Wall Street.
Compare that to Hillary Clinton, who has embraced President Obama and promised to build on his legacy. Not only that…she recognizes the challenges we face in breaking down the barriers that divide us and keep people marginalized.
Clinton and Sanders have assessed the threats we face very differently. Voters are faced with a choice of which candidate has most accurately defined those threats and offered a way forward. It should come as no surprise to anyone why African Americans are vigorously aligned with Clinton’s vision.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, February 29, 2016
“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do
If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.
And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?
To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:
“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”
This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”
There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.
Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.
So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.
“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.
Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.
But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.
And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.
The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.
But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”
In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016
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