A couple more huge, liberty-sucking elephants in the room

January 10th, 2008

The first of them is something we’ve made painfully slow progress addressing — voting suppression; yesterdays post gave us a look at the continuing Diebold worries. But what about Voter ID and roll purging — the “caging” of which Pubs appear to be so proud, which drove the lawyer purge we’re still investigating, and which defined Rove in those suspect prior elections?

Now the Right-tilting Supreme’s have the Indiana Voter ID case before them … and it isn’t looking “progressive” … but you didn’t think it would, did you? We’ve got a real problem with these Federalist Society guys, and with as much screaming as we all did back when they were cherry picked [to no avail,] that shrill warning still hasn’t found an echo chamber anywhere.

By the way — and again — I heartily recommend Jeff Toobin’s highly-readable book, The Nine, about the ascent of Rightwing influence in the Supreme Court — this IS the other elephant that shadows over us, and the relatively uncontested advent of Roberts and Alito is STILL the only party-productive thing Bush managed during his endlessly painful reign; that’s because it’s generational, barring impeachment of the judges. Pray for the good health of the remaining Supreme’s … one more tips the whole thing over.

Jude

The Court and Voter ID’s
New York Times Editorial
January 9, 2008

From the early indications, Americans are feeling enthusiastic about their constitutionally guaranteed right to vote. The Supreme Court should encourage, not frustrate, that enthusiasm when it hears a challenge today to a harsh voter identification law adopted by Indiana. The law aims to be an anti-fraud measure, but its main impact will be to disenfranchise large numbers of registered voters. The court should not let it stand.The idea of asking voters for ID may not sound unreasonable, but the devil is in the exclusionary details. Before the 2005 law, Indiana voters simply had to sign in at the polls and their signatures were compared to the ones on file. Now voters must present a current government-issued photo ID, generally a driver’s license.

The impact of that requirement falls unequally. Poor people, racial minorities and the elderly are especially unlikely to have driver’s licenses or other forms of ID required under the law. A study in Georgia, which enacted its own voter ID law, found that black voters were more than 83 percent more likely than whites not to have driver’s licenses or state-issued ID. Hispanics were nearly twice as likely not to have them.Another problem is that such laws are often applied in a discriminatory way. A study in New Mexico found that Hispanic voters were significantly more likely than non-Hispanics to be asked to show the legally required ID.In-person voter fraud is extremely rare, and there is no evidence of it occurring in Indiana. It says a lot about the Legislature’s motives that it did not apply the new ID rules to the kind of voting where there has been documented fraud: absentee voting. It is also not a coincidence that the people likely to be disenfranchised are from groups that vote disproportionately Democratic. Voter ID laws have been pushed across the country by Republicans. Despite the anti-fraud talk, the inescapable conclusion is that the laws are an attempt to shave a few percentage points off of a Democratic turnout.

This should not be a difficult case to decide. The court has ruled that the right to vote is so important that the Constitution requires that restrictions on it be given a strict review. The question the court must ask is “whether the exclusions are necessary to promote a compelling state interest.” Given that in-person voter fraud appears nonexistent in Indiana, there is no compelling interest here.Even if there were a genuine concern, there are plenty of “less-restrictive alternatives,” as the courts put it, to keep the process both clean and fair: requiring signatures, allowing poll watchers to challenge voters and imposing severe criminal penalties for anyone who tries to vote fraudulently.

Unfortunately, the court may be inclined to view this case through a political prism. If that happens, it may break down along the same 5-4 fault line that it did in Bush v. Gore. That would be terrible for both the court and the nation. The justices can strike a blow for their own reputation and for democracy by standing up for an obvious principle: that the right to vote cannot be taken away to serve the electoral purposes of a political party. ++

Justice Is Blind, but Can She Vote?
Marie Cocco, TruthDig
Jan 8, 2008

WASHINGTON-The most revealing indicator of the state of our democracy is not to be found in the snowdrifts of New Hampshire but in the marbled chamber of the U.S. Supreme Court. Soon enough, we will discover whether the court under Chief Justice John Roberts will become a partisan tool in the national Republican drive to place constraints on voting that are targeted at those who tend to support Democrats.

Not since the Supreme Court stopped the Florida presidential election recount in 2000 has a voting case been so significant, or so overflowing with partisan bile.

On Wednesday, the justices will hear a challenge to Indiana’s strict law requiring photo identification in order for a voter to cast a ballot at the polls. The state claims the law is necessary to stop voter fraud. Yet no one-not Indiana officials, not the U.S. Justice Department, which has taken the state’s side in the dispute, nor any commission-has come up with a single case in the state’s history in which an impostor showed up and cast a vote.

Never mind. In 2005, Republicans who controlled the Indiana Legislature and the governor’s mansion imposed the toughest photo identification requirement in the nation. Not coincidentally, studies have repeatedly shown that those least likely to possess photo identification-most commonly a driver’s license-are African-Americans, the poor, the elderly and the disabled. In short, they are more likely to vote Democratic. Challengers to the law have identified at least two Indiana voters who have infirmities that make it impossible for them to drive, according to The New York Times. They were prevented from casting ballots and having them counted after years of voting without difficulty.

Though the state set up a way for those without a license to obtain a photo ID, the process is complex, and eligible voters still can be denied. If, for example, a woman produces a birth certificate bearing her maiden name, rather than the married name under which she is registered to vote, she isn’t entitled to the identification. About 60 percent of those who have tried to get alternative IDs have been turned down, according to briefs filed with the Supreme Court.

To make their case before a court that is supposed to decide matters based on the facts and the law, Indiana and its supporters, including the Justice Department, invoke a compendium of allegations of this type of voter fraud or that. Facts seem to be notable for their absence.

The allegations they cite involve mostly news accounts of absentee ballot fraud, inaccurate registration rolls, and even tampering by election officials or poll workers. None of them would be prevented by requiring a photo ID from a voter. None involve an impostor who showed up and claimed to be someone else-the only type of fraud that requiring a photo ID would prevent.

“They’re not only newspaper articles, but they’re generally newspaper articles about allegations that a photo ID law would not prevent,” said Justin Levitt, counsel to the Brennan Center for Justice, which has filed a friend-of-court brief challenging the Indiana requirement.

The Justice Department is a party to this embarrassment, including in its brief an example of absentee ballot fraud in a mayoral primary. But the Indiana ID law has no bearing on absentee voters. The state still allows absentee ballots to be counted without a photo ID, on the basis of a signature checked against registration rolls. Still, the department argues that the mere “temptation” of voter fraud and the possibility of “undetected” wrongdoing is sufficient to support a law that constrains some legitimate voters from casting a ballot in person.

If this sounds remarkably similar to arguments some Republican officials made against certain U.S. attorneys-that they failed to prosecute “voter fraud” cases that turned out to be figments of the partisan imagination-that’s because it is. The voter identification proposals fare best in states where Republicans control legislatures and hold the governor’s office. They have been upheld on the votes of Republican judges, and over the objection of Democratic ones.

Partisan motives are supposed to have no part in the administration of free and fair elections. That is what the United States preaches abroad and what most Americans believed before Florida 2000. We can believe it again only if this Supreme Court rejects the hollow rhetoric of partisans and upholds the rights of all voters. ++

Reasonable or snake oil remedy? Supreme Court seems to think former for Indiana Voter ID law
David Edwards and Muriel Kane, Raw Story
Wednesday January 9, 2008

[open link for video]

Court seems to back Indiana voter ID law

A suit challenging an Indiana law that requires voters to present a photo ID at the polls was heard today by the Supreme Court. The law, which was passed by Indiana Republicans in 2005 on a party-line vote, has been criticized by Democrats as likely to disenfranchise elderly, poor, and minority voters, who are most likely to have trouble obtaining the necessary documentation.

Attorney Paul Smith, who represents the challengers, told the Associated Press that if this sort of fraud were actually occurring to any significant degree, we would be hearing stories about it. The fact that there are no reports of hundreds of dead people voting every year suggests it isn’t a problem.

“It’s a totally inefficient way to actually affect an election,” Smith said, explaining that if you’re serious about committing election fraud, “you want to be on the inside, or you want to have access to the voting machines.”

Indiana Solicitor General Thomas Fisher told AP that there have, in fact, been several prosecutions for voter fraud in one Indiana county, and that “when citizens see that kind of fraud, they assume it happens all over.” He called the use of ID cards “a reasonable security measure … to protect the right to vote.”

However, Talking Points Memo reports that, when interviewed on television, Indiana’s Secretary of State was unable to come up with even one case of a prosecution in the state for voter impersonation.

Court seems to back Indiana voter ID law

The Supreme Court appeared ready Wednesday to uphold the nation’s strictest requirement that voters show photo identification before casting a ballot.The justices are faced with a partisan dispute that echoes the bitterly divided decision that sealed the 2000 presidential election for George W. Bush. Now, as then, the court seemed divided along ideological lines.

Wednesday’s arguments were over a challenge to an Indiana law, passed in 2005, that is backed by Republicans as a prudent way to deter voter fraud. Democrats and civil rights groups oppose the law as unconstitutional and call it a thinly veiled effort to discourage elderly, poor and minority voters - those most likely to lack proper ID and who tend to vote for Democrats.

But Justice Anthony Kennedy, often a key vote on the court, did not sound persuaded that the challengers had made their case.

“You want us to invalidate a statute on the ground that it’s a minor inconvenience to a small percentage of voters?” Kennedy said near the end of the lively session. Kennedy did, however, voice concern over some aspects of obtaining an ID, including the difficulty the poor have in getting the birth certificates that are needed to get photo ID.

More than 20 states require some form of identification at the polls. Courts have upheld voter ID laws in Arizona, Georgia and Michigan, but struck down Missouri’s. The Indiana case should be decided by late June, in time for the November elections.

The justices could use the case to instruct courts on how to weigh claims of voter fraud versus those of disenfranchisement.

Paul Smith, representing the challengers, told the justices that there is no evidence of in-person voter fraud in Indiana. He said the law is a subtle way “to skew the outcome on election days.”

Indiana Solicitor General Thomas Fisher said the vast majority of Indiana voters easily comply with the law. “You’re talking about an infinitesimal portion of the electorate that could be burdened,” Fisher said under sharp questioning from Justice David Souter.

Justice Samuel Alito, who appeared more sympathetic to Indiana’s case, posed the question that troubled several justices.

With little evidence of fraud or of voters who have been kept from voting, Alito said, “The problem I have is, where do you draw the line? There is nothing to quantify the extent of the problem or the extent of the burden.”

Chief Justice John Roberts, who grew up in Indiana, and Justice Antonin Scalia indicated strong support for the state law. Justice Clarence Thomas said nothing, but most often votes with his conservative colleagues.

When Smith said poor voters lacking ID have to visit the county courthouse within 10 days of an election and sign a sworn statement there to have their ballot counted, Roberts asked, “How far away is the furthest county seat? … County seats aren’t very far for people in Indiana.”

The court’s four liberal justices were more critical of the state.

Justice Ruth Bader Ginsburg focused her questions on the difficulties for indigent voters who lack IDs. Why, she asked, can’t the state allow those voters to sign a sworn statement on Election Day, which would eliminate the second trip to the county courthouse?

Told Indiana wants to avoid congestion at the polls, Ginsburg said the state wants to have it both ways because it argues relatively few people are affected by the law. “If there are so few of them, I don’t understand why they should be put to the burden,” Ginsburg said.

Souter and Justice John Paul Stevens both pressed Fisher on the state’s problems with voter registration rolls, which Fisher acknowledged are among the nation’s worst in terms of retaining the names of the dead and those who have moved. Indianans are not required to show photo ID to register.

“Is it the policy to have it tougher to vote than to register?” Stevens said. “That doesn’t make sense to me.”

Justice Stephen Breyer wondered why the state doesn’t just give photo IDs to newly registered voters who otherwise lack them. “That … would satisfy your anti-fraud interest much better than the way you have chosen,” Breyer told Fisher.

The consolidated cases are Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25.

According to Justin Levitt, a counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law, “requiring voter ID at the polls is a snake-oil remedy.”

“Snake oil is back, and gumming up our elections,” Levitt writes in an op-ed for the Daily Press. “Like the old-timey liniments of dubious provenance, the new policies sound promising but don’t solve the problems advertised, and sometimes cause real harm.”

Excerpts from Levitt’s editorial:

For those without the right ID, it can be a burden to obtain: It takes ID to get ID. You have to spend time and money digging up or sending away for a birth or naturalization certificate, with an additional bureaucratic detour if you have changed your name. Then you have to leave work and trek - without a driver’s license - to a particular office during government hours.

The older or poorer you are, the harder this may become.

As a result, eligible citizens are left out in the cold. In one brief filed with the Supreme Court, defendant Marion County admitted that dozens of real voters, including many who had voted for years, were turned away from municipal elections held just a few weeks before, votes uncounted.

Snake-oil salesmen use familiar dodges to counter the hard data. They recycle the canard that government-issued photo ID must be ubiquitous because it is so often required. They claim that you must have the ID to fly, cash a check, buy cigarettes, rent a video. Though oft-repeated, this is not true. It is also beside the point. Nobody ever died for the right to rent a video. Men and women have given their lives to secure every eligible American citien’s inalienable right to vote.

Restrictive ID rules endanger that sacred trust, but for precious little reward. The laws are advertised as common- sense cures for voter fraud. Like Dr. Sibley’s Reanimating Solar Tincture, they don’t live up to their advertising.++

Meanwhile, On The Court
dday, Hullabaloo
01/07/08

Two major Supreme Court cases have been heard this week, and on each of them, it does not appear that the side of justice and the Constitution will be victorious. In the Kentucky case opposing the use of the lethal injection method in capital punishment, the conservative block was skeptical:

“This is an execution, not surgery,” Justice Antonin Scalia told the attorney who was representing two Kentucky inmates who say the use of the three-drug compound poses “an unnecessary risk of pain” to the dying man.

“Where does that come from, that you must find the method of execution that causes the least pain?” Scalia continued. “We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here.”

Yes, where the hell does that come from, this idea that punishment should not be cruel or unusual? What first-year law student pulled that out of their ass?

So, it appears that we’ll continue with a process that has been invalidated for the euthanizing of dogs.

In the other big case, the ruling on Indiana’s voter ID law, the Court again appeared unswayed by arguments about equal protection and the deliberate efforts to suppress voter turnout.

Only two Justices - Ruth Bader Ginsburg and John Paul Stevens - even hinted at the real-world fact that the photo ID law in Indiana is at the heart of a bitter, ongoing contest reaching well beyond Indiana. It is a dispute between Republicans worried over election fraud supposedly generated by Democrats to pad their votes, and Democrats worried over voter suppression supposedly promoted by Republicans to cut down their opposition.

The abiding question at the end: can a decision be written that does not itself sound like a political, rather than a judicial, tract? Can the Court, in short, avoid at least the appearance of another Bush v. Gore? [...]

It was apparent from the outset that the Court’s more conservative members were most interested in (a) finding that no one had a right to bring the constitutional challenge, at least at this stage, (b) putting off a challenge until the law has actually been enforced or at least until just before election day, or (c) salvaging as much as possible of the Indiana photo ID requirement on the theory that voter fraud is a problem that states have a legitimate right to try to solve. There was some hand-wringing, particularly by Justice Samuel A. Alito, Jr., over how difficult it is for a judge to “draw the line” on when a voting requirement would or would not pass a constitutional test [...]

In a notable way, therefore, it appeared that - once more - Justice Anthony M. Kennedy may hold the vote that controls the outcome. He displayed some skepticism about the challenge to Indiana’s law, somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place. Kennedy seemed ultimately to be looking for ways to assure voters who demonstrably would be significantly burdened by the law that they could challenge it, perhaps even before election day came around.

Count me as not sanguine that Alito’s handwringing will hold up. And Kennedy appears lost.

As has been said many times, this is a solution without a problem. The Indiana secretary of state, when pressed, could not come up with one documented instance of voter fraud in his state. Never has so much attention been paid to a crime that has not been proven to be committed. The agenda is as transparent as tissue paper.

These two cases reveal just how partisan, and really cowardly, the Court has become, as the arguments showed an unwillingness to engage on the Constitutional questions, while looking to uphold the rulings on narrower, more technical grounds. This has been the Roberts Court agenda since he rose to Chief Justice.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

That article by Ronald Dworkin is important. Go read it. (I’ll be here.)

And let’s be very clear about what each and every Republican candidate has said, with total unanimity, on the subject of judges.

Rudy Giuliani
“I will nominate strict constructionist judges with respect for the rule of law and a proven fidelity to the Constitution — judges in the mold of Justices Scalia, Thomas and Alito, and Chief Justice Roberts.”

Mitt Romney
“I think the justices that President Bush has appointed are exactly spot-on. I think Justice Roberts and Justice Alito are exactly the kind of justices America needs.”

Fred Thompson
“I like Roberts and Alito and Scalia and Thomas. One of the best things that I got to do as a private citizen was to help get Justice Roberts through the confirmation process… We’re in a heck of a lot better shape because of Roberts and Alito, and one more gain would put us in even better shape.”

Mike Huckabee
“My own personal hero on the court is Scalia, not least because I duck-hunted with him.”

John McCain
“One of our greatest problems in America today is justices that legislate from the bench, activist judges. I’m proud that we have Justice Alito and Roberts on the United States Supreme Court. … [When asked whether he admires any Supreme Court justice in particular] Of course, Antonin Scalia… I admire how articulate he is, but I also from everything I’ve seen admire Roberts as well.”

The two parties have more than a dime’s worth of difference on this, and the Supremes had better be right at the top of the issues that we talk about in the fall. ++

Voter fraud fraud
Boston Globe editorial [from my archives]
December 13, 2007

IT MADE for a tantalizing news story: Thousands of people who cast votes in the 2004 presidential election in New Jersey were actually dead. Newspapers wrote articles with grabber headlines like “GOP Sees Dead People” and “Dead Man Voting.” Except that a more careful analysis of the allegations found flaws in the match between the voting rolls and death lists, and none of the claims was ever substantiated.

New Jersey’s state Republican Party also claimed that 4,397 people had voted twice in 2000, and another 6,572 voted both in New Jersey and in one of five other states. But a systematic review by the Brennan Justice Center at New York University Law School found most of the matches ignored different middle names, dates of birth, or other discrepancies. All told, the center found that eight of the 3.6 million New Jersey voters in 2004 intentionally cast invalid votes - a “fraud rate” of four ten-thousandths of one percent.

These fraud alarm bells - even if they are false alarms - distract Americans from real problems in the democratic process, from electronic voting machines that leave no paper trail to campaign tactics that confuse or intimidate voters. Also, supposed fraud is often used to build support for stiffer voter requirements, such as government-issued IDs, which would almost surely drive down participation among poorer, older, and less-educated voters. “The voter fraud phantom drives policy that disenfranchises legitimate voters without a corresponding benefit,” the Brennan Center’s report concludes.

The center calls its report the most systematic assessment of voter fraud claims ever published. It analyzed fraud allegations, case by case, from Wisconsin to New Hampshire to Missouri, and found most were “grossly inflated.” The vast majority of claims or suspicions could be traced to a mere typo or other clerical error.

Overheated allegations that criminals with felony convictions were voting in the 2004 gubernatorial race in Washington state, for example, turned out to be explained by problems with the vote-by-mail system in that state, or by the fact that many of the voters in question had juvenile dispositions that do not disqualify a person from voting.

In the current anti-immigrant environment, charges of voting by noncitizens are on the rise. But given that criminal prosecution and deportation await anyone caught, it’s no surprise that most claims turn out to be based on outdated or inaccurate information.

In fact, voter fraud is a remarkably inefficient way to steal an election. So many individual acts need to be coordinated - each with its own risk of discovery - that the cost is greater than the likely benefit. And yet lurid tales of massive fraud continue. It’s enough to make a citizen wonder if what’s really going on is an attempt at voter suppression. ++

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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Entry Filed under: Political Waves