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October 31, 2013

Fisking Ornstein On “The Right To Vote”

I’m not sure which notion is more disturbing – that possibility that Norm Ornstein believes what he has written in this National Journal article or the possibility that he does not believe it and is instead intentionally lying to us in his article on voting.

It is becoming increasingly obvious that the Supreme Court decision in Shelby County v. Holder, which eviscerated the Voting Rights Act, is leading to a new era of voter suppression that parallels the pre-1960s era—this time affecting not just African-Americans but also Hispanic-Americans, women, and students, among others.

Well actually it isn’t, despite that expansive and alarmist claim. After all, the decision in Shelby County v. Holder did not “eviscerate the Voting Rights Act” – it struck down one provision based upon the fact that it is not rational to base contemporary policy upon statistics from an election that took place half a century ago. The bulk of the Voting Rights Act remains intact – the burden of proof now reverts to the federal government to prove racial discrimination. And no one’s vote is being suppressed.

The reasoning employed by Chief Justice John Roberts in Shelby County—that Section 5 of the act was such a spectacular success that it is no longer necessary—was the equivalent of taking down speed cameras and traffic lights and removing speed limits from a dangerous intersection because they had combined to reduce accidents and traffic deaths.

One could use that analogy – or one could recognize that keeping the overturned test is akin to continuing to treat a patient with antibiotics because they had pneumonia 50 years ago and the antibiotics still haven’t changed what is in the 50 year old medical records.

In North Carolina, a post-Shelby County law not only includes one of the most restrictive and punitive vote-ID laws anywhere but also restricts early voting, eliminates same-day voting registration, ends pre-registration for 16- and 17-year-olds, and bans many provisional ballots. Whatever flimsy voter-fraud excuse exists for requiring voter ID disappears when it comes to these other obstacles to voting.

“Restricts early voting”? Not really – there are the same number of hours of early voting, just fewer days. And last time I checked, there was no requirement in the Constitution for pre-registering those who will not be eligible to vote for years. As for doing away with same-day registration, long-standing Supreme Court precedent has held that there is nothing wrong with a 30-day deadline for registration. And as for the “flimsy voter-fraud excuse” – well, the US Supreme Court upheld such laws several years ago on the basis of that even if voter-fraud is uncommon, it is important enough an issue for states to require photo ID.

In Texas, the law could require voters to travel as much as 250 miles to obtain an acceptable voter ID—and it allows a concealed-weapon permit, but not a student ID, as proof of identity for voting. Moreover, the law and the regulations to implement it, we are now learning, will create huge impediments for women who have married or divorced and have voter IDs and driver's licenses that reflect maiden or married names that do not exactly match. It raises similar problems for Mexican-Americans who use combinations of mothers' and fathers' names.

In a recent election on constitutional issues, a female Texas District Court judge, Sandra Watts, who has voted for 49 years in the state, was challenged in the same courthouse where she presides; to overcome the challenge, she will have to jump through hoops and possibly pay for a copy of her marriage license, an effective poll tax on women.

The claim of a 250 mile round trip to obtain a proper photo ID is true – if one lives in one of the more remote, sparsely populated parts of Texas, it is possible but unlikely that you will need to make such a trip. Of course, something similar is true of going to vote on election day (folks sometimes have to travel as much as an hour, round trip, to reach polling places in some counties) – but Ornstein does not note that fact. The decision to allow a concealed-carry permit but not a student ID (which might not be government issued and does not require the stringent proof of ID of a concealed-carry permit) is not that outrageous – and that permit is only one of a number of forms of acceptable identification allowed under the law, as this video makes clear. Similarly, the “huge impediments” that Ornstein claims exist for women don’t really exist – the provision for folks with similar names on the two documents allow for a great deal of leeway on the part of election officials at the polling place (folks like me, the presiding judge in my precinct) to allow folks to vote if the names are similar -- and here’s another video that explains the issue quite well. And despite a few alarmist news reports (such as the false story Ornstein cites about one judge in one county who may – gasp! – have to get a copy of her marriage license to prove her identity), there have been relatively few folks in the state of Texas turned away or required to vote by provisional ballot over Voter ID issues. Not only that, but in Harris County, where there the city of Houston has a couple of significant city-wide races in addition to the county-wide referendum on the future of the Astrodome and a bevy of state constitutional amendment proposals, early voting is running significantly ahead of recent off-year turnout rates. Indeed, the media here in Texas reports that the law has caused virtually no problems statewide.

The Justice Department is challenging both laws, but through a much more cumbersome and rarely successful provision of the Voting Rights Act that is still in force. It cannot prevent these laws and others implemented by state and local jurisdictions, many of which will take effect below the radar and will not be challenged because of the expense and difficulty of litigation.

I'll just note that Ornstein's objection here is that in order to overturn a state law, the Justice Department is now required to go to court and prove it to be discriminatory rather than make such a declaration by fiat. Apparently the time and expense of due process of law -- not to mention the equality of all states under the law -- is an outrage that cannot be allowed to stand in the Land of Ornstein! And that he wants this power placed into the hands of what is demonstrably the most ideological and most corrupt Justice Department since the days of the Teapot Dome Scandal is evidence of his bad faith as well as his bad judgment.

Voter suppression is nothing new in America, as the pre-civil-rights era underscores. But it is profoundly un-American. The Texas law, promoted aggressively by state Attorney General Greg Abbott, the GOP choice for governor in next year's election, establishes the kinds of obstacles and impediments to voting that are more akin to Vladimir Putin's Russia than to the United States. Maybe we should change the state's name to Putinexas.

Oh, the humanity! Never mind that the only element of truth in the paragraph is that Attorney General Greg Abbott is a strong supporter of the new law -- Texas is now akin to the Russian thugocracy simply because it has a law that has not caused any of the problems that Ornstein is falsely claiming it has/will cause!

Looking at the demographics in Texas, the Republican authors of the law decided that suppressing votes was easier than changing either policies or approaches to appeal to the emerging elements of the state's electorate. In Virginia, with polls showing that Democratic gubernatorial candidate Terry McAuliffe's robust lead over Republican opponent Ken Cuccinelli is driven by a huge gender gap, it is not surprising that Republicans in Texas are trying to suppress the votes of women as much as those of Hispanic-Americans.

Of course, Ornstein has no data to work with here, but he has already divined that the law here in Texas is a voter suppression tool. Never mind that there is no indication of actual voter suppression -- it is the seriousness of the charge rather than its truth that matters!

A new Voting Rights Act would help to ameliorate some of these problems, especially if it applied nationwide (many of the restrictive laws are occurring in non-Southern states such as Indiana and Kansas). I have previously suggested a host of areas that could be included in a VRA 2.0 to make voting easier and more convenient. But despite the endorsement of a new VRA by influential Republicans such as Rep. Jim Sensenbrenner of Wisconsin, the odds of enacting new voting-rights legislation in today's thoroughly dysfunctional and hyperpartisan Congress are slim.

I guess that Norm Ornstein is suffering from amnesia. Efforts by Republicans to apply the Voting Rights Act nationwide -- or even to use data from more recent elections than those that brought us President's Johnson and Nixon -- were deemed to be anti-civil rights by Democrats in 2006. Only now, when the Supreme Court recognized that the old standard could no longer be justified due to the antiquated standard used to determine the application of one punitive provision, do the same folks who rejected such proposals deem them essential.

The effort should be accelerated. We need a modernized voter-registration system, weekend elections, and a host of other practices to make voting easier. But we also need to focus on an even more audacious and broader effort—a constitutional amendment protecting the right to vote.

Many, if not most, Americans are unaware that the Constitution contains no explicit right to vote. To be sure, such a right is implicit in the 15th, 19th, and 26th amendments that deal with voting discrimination based on race, gender, and age. But the lack of an explicit right opens the door to the courts' ratifying the sweeping kinds of voter-restrictions and voter-suppression tactics that are becoming depressingly common.

Now there is a nugget of a good idea there -- after all, how can anyone object to enshrining the right to vote in the Constitution? Well, other than anyone who is actively involved in administering elections -- based upon my experience I have a number of concerns. As I see it, the problem is that any such amendment would have the same issues as the current system -- or perhaps worse problems. Would such an amendment allow for states to require voter registration? Would it allow for registration deadlines, or would same-day registration become the norm? Would such an amendment overturn the explicit sanctioning of felon disenfranchisement that is found in the Fourteenth Amendment? Would voters be permitted to vote in any precinct under this amendment, rather than only in their home precinct? And what of early voting -- would it be mandatory in all states, with a constitutionally established number of days and hours of early voting? In other words, would the amendment have little effect on how we currently hold elections, or would it impose a nationwide one-size-fits-all set of standards that would make the running of elections more difficult and expensive -- and put one more nail in the coffin of the concept of federalism? Such an amendment might even be deemed a stealth repeal of the Electoral College by either Congress or the Courts! Frankly, the only one of Ornstein's proposals that I find particularly interesting is the weekend date for federal elections -- something that would require a constitutional amendment to accomplish.

An explicit constitutional right to vote would give traction to individual Americans who are facing these tactics, and to legal cases challenging restrictive laws. The courts have up to now said that the concern about voter fraud—largely manufactured and exaggerated—provides an opening for severe restrictions on voting by many groups of Americans. That balance would have to shift in the face of an explicit right to vote. Finally, a major national debate on this issue would alert and educate voters to the twin realities: There is no right to vote in the Constitution, and many political actors are trying to take away what should be that right from many millions of Americans.

Reps. Mark Pocan, D-Wis., and Keith Ellison, D-Minn., have introduced in Congress a constitutional amendment that would guarantee the right to vote. It has garnered little attention and no momentum. Now is the time to change that dynamic before more states decide to be Putinesque with our democracy.

And there you have my biggest reason for rejecting Ornstein's proposals and ridiculing his article -- they are based upon a partisan talking point for which he offers no proof whatsoever, namely that there is someone (Republicans) seeking to gain partisan advantage by stripping the ability to participate from Americans who don't vote for them. Given that Ornstein's underlying premise is so fundamentally dishonest, how can he even be taken seriously? And given that we have historically only amendment the Constitution when there is a demonstrable need to solve a critical problem, I'd argue that the burden for making the change is simply not met -- and that Ornstein's proposed amendment is akin to Prohibition, a symbolic change that will cause endless amounts of mischief due to the questions I raised earlier about its effects. I'm therefore quite pleased that the amendment Ornstein is pushing is gaining no traction.

By the way, here is the text of the amendment that Ornstein makes a push for at the end of this piece.

SECTION 1: Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.

SECTION 2: Congress shall have the power to enforce and implement this article by appropriate legislation.

So vague as to be meaningless with a grant of power potentially so expansive as to strip the states of any effective control over any election. Talk about your bad ideas!





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Comments on Fisking Ornstein On “The Right To Vote”

The voting rights act has been distorted by bureaucrats and regulations and misinterpreted by left wing judges for one purpose only; to make it easier for the left to steal elections through voter fraud. Everyone on the left knows this and they know instinctively that this law and all it's malevolent interpretations are necessary for them to continue to hold power. To this end they will lie in your face and in the face of facts. The end justifies the means.

|| Posted by GoneWithTheWind, November 1, 2013 01:14 PM ||

I can't find any quotes from Ornstein, Pocan, Ellison, or Holder about what the New Black Panther party did (refer to the WSJ article "Holder's Black Panther Stonewall.") Is this more of the selective, democrat outrage?

|| Posted by Mark, November 5, 2013 11:41 AM ||
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