The Window Closes

A lot of the carefully considered analysis of who will be voting for whom in the presidential primaries, and why, and the more speculative analysis about whether Donald Trump can defeat Hillary Clinton in the general election, if it comes to that, tends to ignore the question of just who will be allowed to vote in any of our elections. For the first time since the Jim Crow era, with its high poll taxes (for some people) and literacy tests (for some people) and few polling places available in certain neighborhoods, this year a whole lot of people are going to find it damned hard to vote. The analyses of who will come out on top in any primary and in the general election tend to gloss over the fact that many who want to vote, and are eligible to vote, will be turned away at the polls. No matter what the “voters” think, the Republicans may win everything at all levels by landslides – because those weren’t really voters after all. They were only Democrats.

Talking Points Memo covers today’s spat about this:

The Department of Justice is investigating the decision by election officials in Maricopa County, Arizona, to reduce the number of polling places by about two-thirds ahead of a presidential primary that was wrought with turmoil.

Elizabeth Bartholomew, a spokesperson for Maricopa County Recorder Helen Purcell, the county’s top election official, confirmed to TPM Monday that the local elections agency had received a letter from the feds Friday requesting the data the county used when it decided to set up only 60 vote centers.

That was the result of another letter:

Phoenix Mayor Greg Stanton had sent a letter to the Department of Justice requesting an investigation in which he argued that minority communities were disproportionately affected by the distribution of the vote centers.

Stanton had been embarrassed, for good reason:

Last month’s Arizona presidential primary made headlines for the chaos at polling places particularly in Maricopa County, the most populous county in the state. Voters waited for upwards of five hours to cast their ballots, which many blamed on the Arizona’s transition to the 60 vote centers, down from more than 200 polling precincts in 2012.

Voters also reported that they had not been properly registered for a political party, as is required in Arizona’s presidential preference election, as well as complications with the polling e-books, which were supposed to help administrators check in voters as they waited in line.

County officials said decision to use the 60 vote centers was motivated in part to save the county money. Vote centers – which allow voters to vote at any of the locations rather than just the single precinct they are assigned to – have been rolled out without issue in other states, prompting critics to wonder what kind of analysis the county did when deciding where and how many centers to set up.

The county will be asked about that, and this won’t be pretty, but this was predictable:

Before the Supreme Court gutted the Voting Rights Act in 2013, the county’s decision would have been vetted by federal officials, as Arizona was covered under the Voting Rights Act’s “preclearance” section before the Supreme Court invalidated a key provision in it.

That 2013 decision made this possible. Five of the nine justices, led by the late Antonin Scalia, held that the Voting Right Acts of 1965 really didn’t pertain to 2013 America – we now had a black president and all. States that had screwed over black “voters” way back then weren’t the same states now, and thus that “preclearance” stuff was nonsense – presuming those states guilty of something now for what happened in the distant past, before we had solved all our racial problems. It just wasn’t fair – and after all, if now, any state screwed over any minority, there were other parts of the law, and other laws, that allowed those minorities, after the fact, to seek redress. That would be after any election of course, but fair is fair. We cannot single out certain states to make them prove they are not trying to pull a fast one again. Everyone is innocent until proven guilty, right?

Fine – the Department of Justice is now investigating what happened in Maricopa County, after the fact, after certain sorts of people never got to vote. Yes, the results of the election might have been far different had they all been able to vote, but there’s always next time, maybe. Republicans are smiling, but they do miss Antonin Scalia.

That’s okay. Things are fine in another state:

Voter ID laws recently enacted by Republicans in Wisconsin could prevent 300,000 people of color and students, or 9 percent of the electorate, from voting in the April 5 primary and this fall’s general election.

As journalist Ari Berman reports at The Nation, “Wisconsin has historically run elections better than almost anywhere in the country, with consistently high voter turnout and reforms like Election Day registration in place since the 1970s.” But “all that changed when Scott Walker and the Republican legislature took over the state in 2011.”

In the 2016 election season, Wisconsin is “one of the country’s most important battleground states” and one of 16 states where Republicans have imposed new voting restrictions since 2012.

Why? As Berman explains… “If there’s large turnout of students, if there’s large turnout of voters of color, this tends to benefit Democratic candidates. If there’s lower turnout, that benefits people like Scott Walker.”

And they can always complain to the Justice Department after the fact, although there are dissenters:

At least one of Walker’s Republican colleagues admits that these restrictions are unjustified and repressive.

“It’s just, I think, sad when a political party – my political party – has so lost faith in its ideas that it’s pouring all of its energy into election mechanics,” Republican state Sen. Dale Schultz said in 2014. “We should be pitching as political parties our ideas for improving things in the future rather than mucking around in the mechanics and making it more confrontational at our voting sites and trying to suppress the vote.”

On the other hand, winning matters – improving things in the future is impossible if you’re not in office at all, although this is getting absurd:

Among registered voters who may be kept from the polls is Johnny Randle, a 74-year-old African-American resident of Milwaukee who was forced to risk losing his Social Security payments when he was required to pay a fee he could not afford to fix his name on official documents. Others Berman identified “include a man born in a concentration camp in Germany who lost his birth certificate in a fire; a woman who lost use of her hands but could not use her daughter as power of attorney at the DMV; and a 90-year-old veteran of Iwo Jima who could not vote with his veterans ID.”

And then there are the students:

Student IDs from most public and private universities and colleges are not accepted because they don’t contain signatures or a two-year expiration date (compared to a ten-year-expiration for driver’s licenses). “The standard student ID at only three of the University of Wisconsin’s 13 four-year schools and at seven of the state’s 23 private colleges can be used as a voter photo ID,” according to Common Cause Wisconsin.

That means many schools, including the University of Wisconsin-Madison, are issuing separate IDs for students to vote, an expensive and time-consuming process for students and administrators. Students who use the new IDs will also have to bring proof of enrollment from their schools, an extra burden of proof that only applies to younger voters.

If those kids want to vote for Bernie they’ll have to jump through a lot of special hoops, and then there’s the state’s DMV as explained by Emily Mills in the Milwaukee Journal Sentinel:

Right now, the dirty little open secret of Wisconsin is that just 31 of our 92 DMVs maintain normal Monday through Friday business hours. Forty-nine of them operate only two days a week. One, in Sauk City, is open for just a few days a year. Only two are open at 5 p.m., and just three are open on weekends – for the whole state.

The Republicans, except for Dale Schultz, are laughing their asses off right now, because they’ve got this covered:

The voter-ID law is just one of many new voting restrictions passed by Republicans in Wisconsin since 2011. Most notably, the state legislature also eliminated early-voting hours on nights and weekends (GOP State Senator Glenn Grothman said he wanted to “nip this in the bud” before early voting in cities like Milwaukee and Madison spread to other parts of the state) and made it virtually impossible for grassroots groups to conduct voter-registration drives.

Two weeks earlier it was the same in North Carolina:

It took Ethelene Douglas two out-of-state trips, four excursions to the Department of Motor Vehicles, and the purchase of government documents for $86, over the span of two years, in order to obtain the right identification to vote this week.

In the 85-year-old’s home state of North Carolina, there are about 218,000 registered voters who don’t have a government-issued photo ID that is now required to vote. Not all of them will have Ms. Douglas’ patience – or access to the necessary resources, and as primary voters head to the polls Tuesday, at least 864 voters across the state have already been curtailed by the newly enforced voter ID law during the previous week of early voting.

Opponents of voter-ID laws argue that the requirements unfairly affect minorities, students, and low-income residents – demographics that are much more likely to vote Democrat than Republican.

Proponents of voter-ID requirements say that mandatory proof of identity is not intended to dissuade voters. Rather, they’re in place to prevent voter fraud. However, research has found minimal evidence that voter fraud exists in tangible levels.

That doesn’t seem to matter:

As of March, 36 states have adopted policies that require voters to show some form of identification when they vote. Research suggests that nationally, there are 3 million registered voters who don’t have a government-issued ID.

This year will be the first time for 16 states to enforce the provisions, and preliminary data show that in these states, Democratic voter turnout has substantially dropped. Eight of the 16 have held primaries as of March 3, and collectively, Democratic voter turnout was 285 percent worse in these states than states that don’t have recent voter ID laws.

That was the whole idea:

The smattering of new voter-ID laws were at least partially catalyzed by the 2010 election results, in which Republicans gained full control of 21 states. Then, in 2013, the Supreme Court gutted the Voting Rights Act so that seven states in the South are now no longer under federal oversight regarding disenfranchisement.

Dale Ho, director of the American Civil Liberties Union’s Voting Rights project, tells The Christian Science Monitor that five of these states have since adopted new voter-ID laws.

While the precise impact of these new voter-ID laws on this year’s election turnout remains at large, Mr. Ho says that is beside the point. Former US Attorney General Eric Holder cited in 2012 that 25 percent of African Americans and 8 percent of whites do not have government-issued photo IDs.

“Even if a handful of properly registered voters are denied the right to participate, that’s a real problem,” he says. “It’s bad policy, and from our perspective, it violates federal law.”

Antonin Scalia and the Roberts court didn’t think so, or suggested individuals could seek redress after the fact, but there are ironies:

Democrats aren’t the only ones vulnerable. Even after Reba Bowser presented two different birth certificates, an expired driver’s license, a Social Security card, a Medicaid card, and her house lease to the DMV, the 86-year-old, who has voted Republican since Eisenhower, was still denied by North Carolina.

Oh well – that’s a small price to pay – and it is good to have had the Supreme Court on your side in these matters for years, but sometimes you can push it too far:

The Supreme Court unanimously ruled on Monday that states may count all residents, whether or not they are eligible to vote, in drawing election districts. The decision was a major statement on the meaning of a fundamental principle of the American political system, that of “one person one vote.”

“We hold, based on constitutional history, this court’s decisions and longstanding practice, that a state may draw its legislative districts based on total population,” Justice Ruth Bader Ginsburg wrote for the court.

As a practical matter, the ruling mostly helped Democrats and upheld the status quo. … Had the justices required that only eligible voters be counted, the ruling would have shifted political power from cities to rural areas, a move that would have benefited Republicans.

The court wasn’t going to go there:

The case concerned a clash between two theories of representative democracy. One seeks to ensure “representational equality,” with elected officials tending to the interests of the same number of people, whether they are voters or not. The other tries to ensure that only those who have political power in the form of a vote control the government.

Justice Ginsburg sided with the first theory. “Nonvoters have an important stake in many policy debates – children, their parents, even their grandparents, for example, have a stake in a strong public-education system – and in receiving constituent services, such as help navigating public-benefits bureaucracies,” she wrote in her majority opinion. “By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.”

The decision was more notable for what it did not do than for what it did. As Justice Ginsburg noted, “all states use total population numbers from the census when designing congressional and state-legislative districts.”

In short, what were you thinking? Only one justice gave them an out:

Only Justice Thomas said he would have allowed states to draw districts based on eligible voters if they wished to.

“The Constitution does not prescribe any one basis for apportionment within states,” Justice Thomas wrote. “It instead leaves states significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters or to promote any other principle consistent with a republican form of government.”

“The Constitution leaves the choice to the people alone – not to this court,” Justice Thomas added.

And one justice gave them sympathy:

Many political scientists say there are practical obstacles to counting only eligible voters, a point Justice Alito echoed. “The decennial census required by the Constitution tallies total population,” he wrote. “These statistics are more reliable and less subject to manipulation and dispute than statistics concerning eligible voters.”

But the decision was still unanimous, and the Atlantic’s Garrett Epps examines that:

Bull markets tempt investors into unwise wagers.

History, I suspect, will so regard the appellants in Evenwel v. Abbot, the “one-person-one-vote” (OPOV) case decided Monday. In Evenwel, the Court unanimously rejected an advocacy group’s invitation to throw American politics into turmoil, and in the process to shift power from immigrants to natives, from non-whites to whites, from young people to the aging, and, by coincidence, from the Democratic to the Republican Party.

The needed votes, it now appears, were never there. The Court’s decision was unanimous; equally important, the majority opinion by Justice Ruth Bader Ginsburg attracted six of the Court’s eight justices, including Chief Justice John Roberts and Justice Anthony Kennedy. Even more importantly, the six-justice majority not only decided against the conservative theory, it made it much harder for advocates to pursue the conservative theory in future cases.

That stings, and the background is this:

Beginning in 1962, a series of landmark cases held that states couldn’t consciously favor some kinds of voters over others. The skew was toward rural districts, regarded as more virtuous than what used to be called “the mob,” meaning people in urban areas.

The language of these cases was sometimes inexact, but the basic rule was clear: within a rough 10 percent margin, districts were to be drawn on the basis of raw population – counting, that is, not only voters but those who, by age, criminal conviction, or citizenship status, could not cast ballots. In only one case did the Court permit any deviation from that principle; that case, Burns v. Richardson, approved a Hawaii map that counted only permanent residents of the state. Hawaii argued that its circumstances were unique: Because it had so many military personnel and tourists, it said, its map would be distorted by counting them. The Court approved that Hawaii map – “only because” it “produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.”

The principle rested there until 2013. Then the Project on Fair Representation rushed into federal court to challenge the new Texas senate map. (PFR’s other major recent cases have been Shelby County v. Holder, which gutted the Voting Rights Act’s “preclearance” requirement, and Fisher v. Texas, which seeks to do the same to affirmative action in higher-education admissions.)

Let that sink in. The Project on Fair Representation brought the case that blew up the Voting Rights Act of 1965 – they were the ones who convinced Antonin Scalia and the Roberts court that it had to go – and they want to do the same to affirmative action, but here they went to the well once too often: 

PFR cited language from the one person, one vote cases that used the term “voters”; the Equal Protection Clause, they argued, required “citizen voting-age population” (CVAP) rather than total population as the basis for drawing districts. CVAP districting would upend the maps of all 50 states – reducing the clout of cities and boosting suburbs and exurbs, which tend to be whiter, older, and more conservative.

In other words, it would restore much of the effect, if not the justification, of the old, pre- one person, one vote system.

Because it was a challenge to a districting map, federal statutes required it to be heard by a three-judge district court. Late last year, that court rejected the claim, holding that states could use either total population or CVAP – it was “a choice that the Supreme Court has unambiguously left to the states.”

Losers in three-judge cases are entitled to an appeal. Unlike a petition for review, the Supreme Court must decide an appeal, either by hearing argument or by summarily affirming the decision below. By choosing to appeal, PFR unknowingly set the stage for a major defeat.

They were just too clever:

Recall that the lower court said that states could choose either total population or CVAP. The plaintiffs asked the high court to hold that states must choose CVAP. The state of Texas asked the justices instead to affirm the District Court’s rule that states could use either.

The seven-justice majority disappointed both sides. Reviewing the language and history of the Constitution generally, and the Equal Protection Clause in particular, Ginsburg concluded, “the rule appellants urge has no mooring in the Equal Protection Clause.” Texas’s current map was fine; but the Court wouldn’t agree that the state could have used CVAP if it chose. Ginsburg wrote that “we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.”

If the Court had held that either basis was okay, it seemed predictable that some conservative legislatures would move to use CVAP. After Monday, that would be unwise. Go ahead and try to use CVAP, the opinion suggests. Somebody will sue you and then, a few million dollars later, you’ll find out whether it’s okay. Oh, and if you read this opinion, you know it probably isn’t.

And that was that:

Ginsburg’s citations to the thought of the Framers, and the debates over the Fourteenth Amendment, are irrelevant, Alito suggested, because “the fight over apportionment was about naked power, not some lofty ideal about the nature of representation.”

Epps says everyone got it:

Apportionment is always about power – but seldom more nakedly than in Evenwel.

In fact, at Vox, Dara Lind says this was about the relationship between demographics and political power:

After all, some groups are more likely to be eligible to vote than others. Nearly 80 percent of white people in America are citizens over the age of 18; fewer than half of Hispanics in America fit that description.

In practice, then, carving up congressional districts based on eligible voters would result in fewer representatives for heavily Hispanic and Asian parts of the US. And, unsurprisingly, the seats it would have gotten rid of would have mostly been Democratic.

Voting rights groups were seriously concerned about what would happen if the Supreme Court told states to ignore people who weren’t eligible to vote when drawing up districts. When the court heard oral arguments in December, the Southern Poverty Law Center called the case “a frontal assault on the core of the 14th Amendment, which was enacted after the Civil War to give equal representation and protection to all people.”

Luckily for those groups, the Court ultimately rejected the Evenwel plan soundly: “History, precedent, and practice suffice to reveal the infirmity of appellants’ claims,” Ginsburg wrote. And it did so unanimously.

Still, there’s this:

Two conservative justices – Clarence Thomas and Samuel Alito – both wrote concurring opinions agreeing that it wasn’t constitutional to force a state to ignore population, but signaling that it would be okay if a state decided to count population in a different way (i.e., by only counting adult citizens).

It’s not clear whether there are more than two votes on the Court to get rid of the standard that every person counts in districting. Chief Justice John Roberts and Justice Anthony Kennedy joined the Court’s liberals in signing onto Justice Ginsburg’s opinion, which didn’t address Texas’s proposal one way or the other. But it’s fair to bet that the fight over what “one person, one vote” actually means will continue.

Perhaps it will, but that’s only two guys. President Trump will have to appoint a whole lot of justices to fix this. The current ones don’t really die off that fast – and the immediate problem for the Republicans is Donald Trump’s likely candidacy. Women hate him. Is there a way, this time, right now, to make sure women find it next to impossible to vote? That’s a problem. The window seems to be closing on that sort of thing.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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