Tag Archives: vote suppression

As Long As I’m Revisiting The Constitution

A couple of days ago, I suggested investing the Electoral College with some of that “original intent” conservative jurists love to apply to our anything -but-original problems. Today, I’m revisiting–or to be more accurate, actually visiting for the first time–another part of the Constitution.

I’m going to file this under “you learn something new every day.” Or perhaps under “Well, this is certainly interesting.” (Or even more likely, “I must be missing something!”)

I don’t know why I haven’t ever focused on the language of Section 2 of the incredibly important Fourteenth Amendment. That section reads:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. (emphasis supplied)

Later Constitutional amendments extending the franchise would obviously mandate a somewhat different and more expansive reading of Section 2, but the language certainly would seem to provide a possible remedy to the rampant vote suppression being documented in several states.

This is not a subject I have previously researched, so I’d be grateful to any election lawyers–or other knowledgable folks– out there reading this who might answer the following questions:

  • Has there ever been litigation on the basis of this Section?( If so, please cite; if not, I assume the difficulty in establishing evidence of the percentage of votes suppressed would account for the lack.)
  • Who would have standing to bring a lawsuit? (It would seem to me that anyone improperly prevented from voting in a state would have standing, but the Court has narrowed standing doctrine in several ways–unfortunate ways, in my opinion–so perhaps not.)
  • What would count as probative evidence of the percentage of legitimate votes suppressed, the efficacy and intentional nature of suppression tactics, and how would a plaintiff acquire and verify such evidence? (Would the evidence compiled in Stacy Abrams’ new lawsuit suffice?)

If the evidentiary problems could be surmounted, wouldn’t this section provide a fitting remedy for the games currently being played by the GOP?

Wouldn’t it be wonderful if, for example, Georgia lost a couple of Congressional seats as a result of Brian Kemp’s egregious voter suppression tactics?

If lawsuits based on Section 2 are tenable, I would think simply bringing those suits–even if they were ultimately unsuccessful–would have a salutary effect. Perhaps the threat of losing representation would make some of those Republicans who are enthusiastically engaging in anti-democratic efforts to keep “some people” from voting (yes, Mississippi, we’re looking at you) might have second thoughts…..

I’m obviously missing something, but I’m not sure what. That said, I’m sure one of my more erudite readers can supply the answer.

 

Poll Taxes Were So Last-Century…

Tis the season–of voter suppression.

Vote suppression, of course, can’t be disentangled from the racism that was the subject of yesterday’s post. Efforts by the GOP to keep folks from the polls, after all, tend to be focused on black folks, and that has been true ever since poll taxes were instituted to keep former slaves from exercising their franchise.

Today’s Republicans are far more inventive–and far more overt. From Voter ID laws that are aimed at solving the  virtually non-existent problem of in-person “voter fraud,” to the chutzpah of Brian Kemp in Georgia, the GOP is pulling out all the stops to keep people of color from the polls. (And thanks to the Supreme Court’s evisceration of the Voting Rights Act, there are lots of stops to pull out.)

The New Yorker has an article titled “Voter-Suppression Tactics in the Age of Trump” that is well worth reading.It begins with a story.

African-Americans used to tell a joke about a black Harvard professor who moves to the Deep South and tries to register to vote. A white clerk tells him that he will first have to read aloud a paragraph from the Constitution. When he easily does so, the clerk says that he will also have to read and translate a section written in Spanish. Again he complies. The clerk then demands that he read sections in French, German, and Russian, all of which he happens to speak fluently. Finally, the clerk shows him a passage in Arabic. The professor looks at it and says, “My Arabic is rusty, but I believe this translates to ‘Negroes cannot vote in this county.’ ”

As the article notes, this old joke has a new saliency. It’s true that–thanks to litigation–literacy tests, poll taxes, and grandfather clauses meant to disadvantage minority voters have all been declared illegal. But new strategies have replaced them.

One need look no further than the governor’s race in Georgia to see their modern equivalents in action. The race between the Republican, Brian Kemp, Georgia’s secretary of state, and the Democrat, Stacey Abrams, the former minority leader of the state House of Representatives—who, if she wins, will be the first black female governor in the country—is a virtual tie. But Kemp has invoked the so-called exact-match law to suspend fifty-three thousand voter-registration applications, for infractions as minor as a hyphen missing from a surname. African-Americans make up thirty-two per cent of the state’s population, but they represent nearly seventy per cent of the suspended applications.

This isn’t Kemp’s first effort at disenfranchising minority voters. Historian Carol Anderson has written a book titled “One Person, No Vote,” in which Kemp is prominently profiled.

In 2012, after the Asian American Legal Advocacy Center, in Atlanta, discovered that many of its clients who were naturalized citizens were not on the voter rolls, despite having registered, the group raised the issue with Kemp’s office. “In a show of raw intimidation,” Anderson writes, “Kemp ordered an investigation questioning the methods that the organization had used to register new voters.” In 2014, Kemp investigated the New Georgia Project, a voter-registration initiative that Abrams had founded. In a similar vein, officials in Jefferson County last week ordered a group of African-American senior citizens off a bus taking them to an early-voting site, on the ground that the transportation, which had been organized by the nonpartisan group Black Voters Matter, was a “political activity.”

The article characterizes these and similar (if somewhat less blatant) efforts elsewhere as an attempt to place a white thumb on the demographic scale.

Georgia is far from the only state making an effort to curtail–rather than encourage–voting.  The Brennan Center reports that ninety-nine bills designed to diminish voter access were introduced last year in thirty-one state legislatures. And as early voting has started, we are seeing reports of machines that “flip” voters choices from Democratic candidates to their Republican opponents.

If and when Congress is controlled by elected officials willing to put the interests of the country above the partisan interests of their party, reinvigoration of the Voting Rights Act and measures to protect the franchise need to be priority number one.

Meanwhile, massive turnout next Tuesday will be needed in order to overcome gerrymandering and the various voter suppression and misinformation efforts that are being employed by Republican politicians who want to win at all costs–even if one of those costs is the integrity of our democracy.

 

People Without Power

I’m old enough to remember the 60s slogan “Power to the People!”  And I’ve lived long enough to see “the people”–at least the people who vote– overpowered.

I’ve written periodically about the various ways in which America’s systems have become undemocratic–about gerrymandering, vote suppression, the Electoral College–but Ezra Klein puts it all together in a truly chilling essay for Vox. 

Brett Kavanaugh was nominated to the Supreme Court by an unpopular president who won 3 million fewer votes than the runner-up. He was confirmed by a Senate majority that represents a minority of the country. He was confirmed despite most Americans telling pollster after pollster they did not want him seated on the Supreme Court.

As Klein points out, a constitutional system built in America’s founding era, structured to address the issues of that era, is currently making the country both less democratic and less Democratic.

Since 2000, fully 40 percent of presidential elections have been won by the loser of the popular vote. Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber. Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.

Kavanaugh now serves on a Supreme Court where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office, and where the 5-4 conservative majority owes its existence to Senate Majority Leader Mitch McConnell’s extraordinary decision to deny Merrick Garland a hearing. This Court will rule on the constitutionality of gerrymandering, voter ID laws, union dues, campaign finance, Obamacare, and more; that is to say, they will rule on cases that will shape who holds, and who can effectively wield, political power in the future.

When it is all put together, it amounts to a bloodless coup. (“Bloodless” in the sense that the GOP has taken power without force of arms. Not so bloodless if you think of people who are dying for lack of access to medical care although majorities favor Medicare-for-All, or consider the rising suicide rate being attributed to despair, or factor in the deaths that will occur as a consequence of ignoring climate change.)

Sandy Levenson teaches Constitutional law at the University of Texas, and has been warning about waning democracy and American government’s lack of legitimacy for several years. The article quotes him warning “At some point, people will get so angry that they will either talk about secession or start engaging in more direct measures, whether it takes the form of rioting or violence.”

Klein’s article goes into some detail about the original reasons for our unrepresentative systems–the compromises that were “baked into” the Constitution in order to get it ratified. As he points out, any free political system must determine how to ensure that different interests can engage in balanced competition. The problem in our system is that what we balanced for–large and small states– is no longer what’s competing.

The compromises made to calm the divisions between places is exacerbating the divisions between the parties, as Republicans dominate rural areas while Democrats cluster in urban centers.

By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.

It is not difficult to imagine an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned, and where all this power is used to buttress a system of partisan gerrymandering and pro-corporate campaign finance laws and strict voter ID requirements and anti-union legislation that further weakens Democrats’ electoral performance.

For those inclined to dismiss this analysis as overheated, Klein says

If this seems outlandish, well, it simply describes the world we live in now, and assumes it continues forward. Look at North Carolina, where Republican legislators are trying to change the state Constitution to gain power over both elections and courts. Look at Wisconsin, where state Republicans gerrymandered the seats to make Democratic control a near impossibility. Look at Citizens United, which research finds gave Republicans a 5 percentage point boost in elections for state legislators. Look at Georgia, where the GOP candidate for governor currently serves as secretary of state and is executing a voter purge designed to help him win office.

Klein references a number of changes that are being proposed, but whatever we might think of those changes, they won’t even be considered unless Democrats can overcome the odds and win control of both the House and Senate.

Pundits are always insisting that whatever election is imminent is “the most important of our lifetime.”

This one is.

The Slog of Sustained Opposition

The recent special election votes in Virginia, New Jersey and even more recently, Oklahoma, gave Democrats and anti-Trump Republicans a sorely-needed infusion of hope. A lot can happen in a year, of course, but there are several promising omens for 2018 in the magnitude of the wins and the repudiation of divisive and ugly campaign tactics.

That said, I think the most important lesson–the most significant “takeaway”–has largely been overlooked, probably because it simply reinforces what has been conventional political wisdom for eons.

Elections are all about TURNOUT.

Democrats in Virginia won races for their House of Delegates despite running in massively gerrymandered districts, reminding us that the “art” of gerrymandering relies on previous voting patterns. When large numbers of citizens who haven’t previously voted cast their ballots, so-called “safe” districts are a lot less safe.

In a recent column for the Guardian, Rebecca Sollnit makes an important point. Reviewing the election that gave us Donald Trump, she suggests that his narrow victory was likely attributable to–and vindicated– the GOP’s intense and persistent emphasis on vote suppression tactics.

You can’t count the votes that weren’t cast, and you can make a case that the election was sabotaged without taking them into account. But when you add up the different means of disenfranchisement – voter ID laws and illegitimate enforcement of them, the Crosscheck program, voter roll purges, reduction of polling places, gutting the Voting Rights Act – you see that millions of poor, student and nonwhite voters were denied one of their basic rights as citizens, along with more than six million disenfranchised because of felony convictions.

That is a huge chunk of the electorate, and had half of them voted, it would have given us a wildly different outcome – in fact, it probably would’ve dictated significantly different campaigns and candidates.

Good government groups have brought lawsuits challenging most of these suppression mechanisms, and I am cautiously optimistic that at least some of those suits will succeed. But as helpful as that would be, the 2018 remedy lies elsewhere: in civic activism that vastly increases turnout, including in, but not limited to, the populations that have been the target of these suppression efforts.

Unlike countries like Australia, where there is mandatory voting, in the United States we rely on voluntary exercise of the franchise–and even where intentional efforts to suppress the vote are absent, we haven’t made voting easy or convenient. As a result, those of us who are focused upon ousting the corrupt and illegitimate cabal that is the Trump Administration face a daunting–but not insurmountable–challenge. We must register and turn out hundreds of thousands of previously absent voters.

Large turnouts have almost always favored Democrats. That’s doubly true in the Age of Trump. The big question–what we used to call the 64 Thousand Dollar Question–is whether we can sustain the remarkable increase in political and civic participation triggered by the results of the 2016 Presidential election.

Does the resistance have stamina enough for the long slog? Are volunteers prepared for the tedium of house-to-house registration and GOTV efforts? Will enough of us resist the normalization of the daily eruptions of thuggery and ignorant belligerence, and keep our eyes on the prize–the restoration of competent and ethical government?

A year can seem like an eternity, but a dogged and sustained effort that dislodges and replaces Paul Ryan and Mitch McConnell and gives us a sane cohort of lawmakers actually interested in the public good would be a wonderful reward for persistence–and the beginning of the end of an incompetent, shameful and destructive administration.

Why Can’t We Be More Like Oregon?

As I’ve previously noted, early in the session, Indiana’s legislature moved quickly to kill a bill that would have kept our polling places open for two extra hours. (Indiana’s polls are the nation’s earliest to close). It was just one more effort to suppress the votes of people–mostly elderly, working poor and/or black–who might vote for the “wrong” party.

If we really wanted our citizens to vote (“we” clearly don’t), we’d take a leaf from Oregon’s book.

Call it “motor voter” on steroids.

New legislation signed into law today in Oregon paves the way for the state to one day have close to 100% voter registration. The new law takes the federal “motor voter” law to new levels and registers a person to vote when they obtain or renew a state driver’s license or ID – and it’s partially retroactive.

The law dictates that once residents interact with the state DMV – whether to get a license or ID for the first time, or renew an existing one – they’ll become registered to vote if they aren’t already. The registration will be provisional for 21 days, during which time applicants will be notified of their new status and be given a chance to become affiliated with a political party or to opt-out of the voting process altogether. In essence, Oregon will now be the first state to approach voting with an “opt-out” mindset, as opposed to “opt-in.”

I’ve written before about the virtues of Oregon’s vote by mail system, which is not only convenient, but allows time for thoughtful consideration of ballot choices. Every registered voter is automatically sent a ballot about two weeks before Election Day, and can either mail their ballots back or return them in person.

According to the Oregonian, 

Because of Oregon’s careful signature verification process, fraud and other electoral mischief are virtually nil.

Recounts in extremely close races are based on paper ballots of every vote — not receipts or electronic voting machines. So there’s no danger in Oregon of software hackers casting ersatz votes by the thousands — not to mention no electricity to operate electronic voting machines or impassable roads and polling places 3 feet underwater.

In the 2014 midterm election, 53.5% of Oregon’s registered voters actually voted. The state was fifth in voter turnout

Indiana was dead last. Gee–I wonder why.