Thirty-three states now have passed voter ID laws. Nebraska nearly
joined them last year, but my previous proposal was filibustered by a
small group of opponents. We nearly broke the filibuster with 30 votes
in favor of ending the delay, but 16 senators voted against the motion.
Link.
A House panel has advanced legislation requiring Arkansas voters to show photo identification before they can cast a ballot… The panel last week delayed a vote on the measure so that a fiscal impact study could be performed. Link to story.
So say Virginia Democrats about Senator Mark Obenshain’s support of voter ID.
Now where have I heard this term before? Hmm, wasn’t there a time when the most outrageous thing you could do is call someone un-American? Wasn’t there no greater sin in political discourse than to make the charge against political opponents? Perhaps I am confusing things; perhaps not.
A few days ago, I took note of a pinhead study purporting to measure racism in the hearts of Americans. Naturally, the study contorted the absurdist methodology into an argument that Section 5 of the Voting Rights Act should be preserved. Some took the absurdity seriously enough to post it without critical comment. New Jersey Oregon Kentucky Maine North Dakota Connecticut Colorado Minnesota
Since clumsy statistics are now relevant to the Section 5 debate, here’s another fact: more hate crimes per capita occur in states not covered by Section 5. In fact, they occur in northern states. The FBI says so. The worst states for hate crimes (Hate crimes per capita: pop:hatecrimes)
Massachusetts
Granted, hate crimes are not tightly related to voting laws. But neither can one credibly squeeze the absurd methodology in the previous study into voting laws. One could argue violently acting out on racial prejudices (hate crimes) is more relevant to voting laws than silently and peacefully holding those same prejudices. None of this is to be taken too seriously, and that’s my point. It is irresponsible to be posting absurd studies in the first place and trying to argue with a straight face it relates to Shelby v. Holder. Any port in a storm, I suppose.
Members of the House have proposed legislation that would prevent
people from straight-ticket voting in federal elections, a measure they
hope will weaken voters’ allegiance to the major parties. Currently, 14 states allow straight-ticket voting, which lets voters
pick all the Republicans or Democrats with a single punch or mark on the
ballot. Link to story
Non citizens registered to vote, forged applications.
We’ve heard a great deal about how eliminating Section 5 and requiring plaintiffs to rely on Section 2 will saddle victims of discrimination with the awful “burden” shift.
If Section 2 is so “burdensome” to plaintiffs, maybe Sullivan and Cromwell can take the case for free. After all, they spent (or some might say wasted considering they lost) enormous amounts of money attacking South Carolina Voter ID in the preclearance context under Section 5.
One of the most powerful (or literally, burdensome) parts of Section 5 is the burden shift. Advocates of Section 5 like to say that Section 2 is inadequate because the burden shifts to the plaintiffs to bring and prove a case.
As I said yesterday at the Florida International University law school – the plaintiffs indeed carry the burden in a Section 2 case – just like they do in every single other cause of action in American law! It isn’t a radical departure from legal traditions to require plaintiffs to actually prove a case in court with evidence, rather oppose an election change with DOJ bureaucrats with innuendo about racial intent.
In theory, that’s an attractive principle. But let’s examine it in practice as it relates to Sullivan and Cromwell.
In the South Carolina Voter ID lawsuit, the League of Women Voters intervened. This intervention cost the taxpayers of South Carolina significant amounts of money. The wolf pack of intervenors demanded deposition time, conducted depositions and were allowed to engage in expensive and burdensome discovery. Sullivan and Cromwell paid the freight, or perhaps more appropriately, their paying clients did. (peruse a sample). This third party intervention burden was a topic in my brief in the Shelby v. Holder case.
Obviously there is lots of money and lawyer time at Sullivan and Cromwell to throw at Voting Rights Act litigation, money we’d presume would still be available for Section 2 cases. If so, then perhaps the “burden” on a plaintiff isn’t so bad if Section 5 is struck down. After all a plaintiff can still call the lawyers at Sullivan and Cromwell at 202-956-7500 and ask them to give a Section 2 defendant as hard of a time as they gave South Carolina.
“Telling people they should be voting only if they’re voting among
those of their own kind and encouraging racial segregation and racial
gerrymandering is quite at odds with the original ideals of the Voting
Rights Act and the civil rights movement,” said Roger Clegg, president
and general counsel at the Center for Equal Opportunity.
Clegg,
speaking at a recent Heritage Foundation panel discussion, said Section
5 is to blame for less-competitive congressional districts and more
ideological polarization in Washington.
Link to full story.
Once upon a time, professors cared about election fraud. Unlike today, when the only thing you will find the academy write about voter fraud is that it is a conspiratorial and overblown invention by a squad of writers, there was a time when the rule of law mattered more than obfuscation. “Several years ago the ballots of a number of the precincts in Chicago were recounted with the result that the recount tabulations showed a total difference from the original returns in many precincts running into thousands of votes.”
A tip of the hat to Joseph P. Harris, PhD, a professor at the University of Washington, in 1934, who wrote this report: