Sunday, September 09, 2012 4:02:42 AM
New Voting Laws: Bending the Arc of History Away From Justice
President Lyndon B. Johnson holds the signed Voting Rights Act of 1965.
(AP)
By Andrew Cohen [ http://www.theatlantic.com/andrew-cohen/ ]
Sep 3 2012, 4:58 PM ET
Lyndon Johnson was riled up.
The Texas senator hadn't yet announced his candidacy for the presidency, wouldn't announce it until it was too late as it turned out, but there he was, privately campaigning, secretly moving to assure key journalists that he was not the scourge of civil rights they thought he was. As Senate Majority Leader, he had helped pass the 1957 Civil Rights Act, had he not? Breaking through nearly a century of Southern intransigence on civil rights, he had herded the "old bulls" of the Senate, some of them unabashed racists, into passing a federal law that made it easier for blacks to vote.
So there he was, in April 1960, already playing catch up to the aggressive Kennedy machine, on an airplane with a journalist named Howard B. Woods, the editor of a black newspaper called the St. Louis Argus. And Johnson was in full throat. Here's how Robert Caro, in Passage of Power, his masterful new installment [ http://www.nytimes.com/2012/05/06/books/review/the-passage-of-power-robert-caros-new-lbj-book.html?pagewanted=all ] of his colossal biographical series on the life and times of Johnson, recounts what happened next:
The Senator, tie-less and in shirtsleeves, was eating cookies and drinking a tall, and stiff, Scotch, but when Woods ask him about the civil rights bill "which seems to please no one," saying, "Senator, the bill, as it was finally passed, was admittedly watered down," Johnson forgot about the cookies and the Scotch, and leaned forward across the table, looking Woods "straight in the eye" in a way the editor found quite memorable.
"When we say every man has a right to vote, that is not watered down," Lyndon Johnson said." The important thing in this country is whether or not a man can participate in the management of his government. When this is possible, he can decide that I'm no good." George Reedy slipped into the seat next to Woods, but Johnson didn't need Reedy now. "Civil rights are a matter of human dignity," he said.
"It's outrageous that all people do not have the dignity to which they are entitled. But we can't legislate human dignity -- we can legislative to give a man a vote and a voice in in his own government. Then with his vote and his voice he is equipped with a very potent weapon to guarantee his own dignity." [Emphasis added.]
Just four years later, Johnson, successor to a martyred president, astonished the country and the world by using his preternatural political skills to push passage of the Civil Rights Act of 1964. The next year, he used the same combination of bluff and bluster, of carrot and stick, to push passage of the Voting Rights Act of 1965. The old Senate bulls were done, finished. Those two pieces of federal legislation brought the vote to millions of Americans who had been effectively disenfranchised because of their race. American politics has never been the same since.
Today, the trumpet calls again on civil rights and voting rights. In the past few weeks, I've written a great deal about the topic, joining the ranks of journalists like Ari Berman [ http://www.thenation.com/authors/ari-berman ] and Rachel Maddow [ http://video.msnbc.msn.com/the-rachel-maddow-show/48808597 ] and Ryan Reilly [ http://talkingpointsmemo.com/ryan_j_reilly.php ] in trying to chronicle and make sense of Republican efforts all over the country to suppress the ballots of millions of registered voters. I have done so because I believe that these laws -- photo identification requirements, bans against early voting -- are similar in their discriminatory nature and effect to some of the most odious Jim Crow laws the nation endured during the first half of the last century.
Last week, as one federal judge after another struck down these new measures, as one court after another called out Republican lawmakers for the lack of evidence supporting the push to stop "voter fraud," it dawned on me that this national debate suffers, as so many do these days, from a lack of a common starting point. There is so much fear. There is so much ignorance. There is so much exaggeration. Here are six of the most frequent comments I get when I write about voting rights followed by my attempts at a few answers that perhaps can get us talking about this in a more productive way.
MYTHS AND MACHINATIONS
1. We need these new voter ID laws to stop voter fraud. This is a logical starting point because no one is for voting fraud. But no state lawmaker, attorney general, or election law expert has yet come into court this year and established that in-person voting fraud is actually happening. For example, in Washington last week, in the federal trial over South Carolina's voter identification law, the Associated Press reported [ http://www.miamiherald.com/2012/08/27/2970625/trial-opens-challenging-south.html ] that State Sen. George "Chip" Campsen III "testified that he could not find cases of voter impersonation in South Carolina, but added that the state lacks the tools to root them out."
In Pennsylvania last month, where the Republican House Majority Leader proudly proclaimed that his state's new voter identification laws would give the state to Mitt Romney, officials also were forced to concede at trial in a stipulation [ http://tpmmuckraker.talkingpointsmemo.com/2012/07/pennsylvania_voter_id_no_in_person_voter_fraud.php ] that there is no evidence of in-person fraud. In Texas, the statistics reveal 50 prosecuted incidents of voter fraud in the past ten years -- an average of 5 per year [ http://www.theatlantic.com/politics/archive/2012/03/how-voter-id-laws-are-being-used-to-disenfranchise-minorities-and-the-poor/254572/ ] -- in a state with a population of more than 25 million. This is what opponents of these laws mean when they talk about the measures being a solution without a problem.
2. We need these new voter ID laws to stop illegal immigrants from voting. This is the uglier version of the sentiment identified above, a complaint that links the myth of widespread voter fraud with the growing realization [ http://abcnews.go.com/US/militias-hate-groups-grow-response-minority-population-boom/story?id=16370136 ] that America is slowly but surely losing its white majority. The question of illegal immigration, and how America ought to deal with it, is a legitimate policy question our political leaders need to resolve. But there is even less evidence that illegal immigrants are voting in our elections than there is evidence that in-person voting fraud is a legitimate problem among American voters.
What often is lost in the political debate over these new restrictive laws -- what's lost in the faux outrage over voting integrity -- is the central fact that registered voters in these states (and everywhere) don't just walk up today to the ballot box and cast their votes. Even without the restrictive new laws, registered voters have to prove who they are, either by providing identification or by matching their signatures on voting cards or by other means. These new laws are all about rejecting these forms of identification in favor of new ones that require, in some cases, a great deal of effort to obtain.
3. The new voter laws do not create substantial burdens on registered voters. This is the most common response to challenges to the new breed of voting laws. If someone can't find the time to get a new ID, then why should they be able to vote? If I have to show identification to buy a bottle of whiskey (or Sudafed [ http://www.theatlantic.com/politics/archive/2012/08/why-south-carolinas-most-sacred-right-is-in-jeopardy/261704/ ]) why shouldn't someone have to show a photo identification to cast a ballot? If I can get a photo ID to drive a car why can't someone get one to vote? Here we see clear evidence of the great financial divide in American life -- the widening gap between the haves and the have-nots.
There are some registered voters for whom the new requirements probably aren't an unreasonable burden. But there are many more for whom it is. In Texas, for example, there was testimony at the voter ID trial in July that some residents -- registered voters, who have voted accurately without incident for years -- would have to travel 200 or 250 miles [ http://electionlawblog.org/wp-content/uploads/texas-voter-id.pdf ] to get the new form of identification. In the South Carolina case, there was testimony last week that some registered voters would have to make a 70-mile, round-trip journey to get the new forms of identification. Are these not unconstitutional burdens?
4. The new Republican voter laws are the results of reasonable compromises between and among state legislators. This is false. In South Carolina, for example, we learned just last week [ http://www.theatlantic.com/national/archive/2012/08/in-south-carolina-shockingly-candid-talk-about-voter-discrimination/261760/ ] that a compromise voter ID law, which had bipartisan and biracial support, was rejected by conservative radicals in favor of the current law that is about to be struck down by another panel of federal judges. The same thing occurred in Texas, where state lawmakers refused to keep state offices open longer to accommodate the working-class people who couldn't get their new IDs between 9 and 5.
The same is true, incidentally, in the fight over early voting laws. Early voting hours are a national success -- allowing voters who have to work regular hours on the first Tuesday in November to cast their ballots at a more convenient time. Yet in Ohio and in Florida [ http://www.miamiherald.com/2012/08/17/2956305/federal-court-rejects-florida.html ], Republican officials sought to restrict those hours without offering a legitimate reason to do so. In Ohio, the official reason offered by the Republican Secretary of State -- that his election officials couldn't manage the extra work -- was immediately challenged by nonpartisan election officials there who said that they could, in fact, "make it work [ http://www.theatlantic.com/politics/archive/2012/08/americas-new-war-over-civil-rights/261301/ ]."
5. There are many restrictions upon the right to vote -- what's so vital about another such restriction? It's true, the Supreme Court has said repeatedly that states may impose reasonable burdens upon voters. No one disputes that this is so. Like any other right, the right to vote is not absolute. On the other hand, as Lyndon Johnson said 50 years ago, and as mainstream politicians today recognize, the right to vote is the foundation for the exercise of virtually all other civil rights because it helps enable those rights; it helps turn them into remedies.
If there were proof of widespread in-person voting fraud, or if were were proof that such fraud is on its way, the Republican officials pushing their restrictive new laws would have a legitimate argument to make. They could argue, for example, that it's reasonable to protect against 1,000 fraudulent votes by burdening 100,000 voters. The specific matrix isn't the point. The point, as Garrett Epps made last month here [ http://www.theatlantic.com/national/archive/2012/08/why-pennsylvanias-voter-id-law-is-unconstitutional/261218/ ] at The Atlantic, is that there has to be some factual basis for the imposition of the burdens contemplated by these laws. So far, those facts have been absent from courtrooms all across the country.
6. Burdening the rights of voters to cast their ballots is not the same as disenfranchising voters. The right to vote is useless if the right cannot be exercised. That's the lesson that Rep. John Lewis, the civil rights icon, has been trying to teach as he speaks out [ http://www.theatlantic.com/politics/archive/2012/08/rep-john-lewis-make-some-noise-on-new-voting-restrictions/261549/ ] about the similarities between the civil rights movement of the 1950s and the voting rights movement today. That's what's so cynical and self-defeating about these new disenfranchising measures -- like their predecessors during Jim Crow they purport to be racially neutral when it fact they are discriminatory in both their intent and their effect.
These new laws require people who are poor to pay for the cost of new identification cards -- even though those people have voted fairly and accurately for decades. The new laws require people without cars to travel hundreds of miles to get their new ID cards. They require people who are old or frail or sick to present themselves for inspection at state offices. And they do so by rejecting more reasonable alternatives -- like the new voting identification law in Virginia [ http://www.theatlantic.com/politics/archive/2012/08/why-south-carolinas-most-sacred-right-is-in-jeopardy/261704/ ], for example, which passed Justice Department scrutiny under the Voting Rights Act.
POSTSCRIPT
On voting rights in America, the arc of the universe has indeed been long, centuries long, from the three-fifths compromise in the Constitution to the poll tax to the literacy test. But it has always bent toward justice. These new laws seek to bend the arc backward again, to take away from people their effective right to vote because of their financial position, or because of their immobility, or because of their age or illness. And to do so despite the fact that these people, all these people, have been voting for years, for decades, by proving at the ballot box that they are who they say they are.
"Asking for an ID to verify who you are is not racist," an angry commentator wrote to me on Monday afternoon, "it's just common sense." Indeed, it is. And, indeed, such ballot verification happens all the time in every state in every election prior to the passage of all these restrictive new laws. There are ways to make America's elections more accurate. There are ways to do so that do not threaten to disenfranchise millions of Americans. There are ways to do so in a bipartisan, biracial fashion. That was Lyndon Johnson's challenge a generation ago and it is the challenge today for elected officials everywhere.
Copyright © 2012 by The Atlantic Monthly Group (emphasis in original)
http://www.theatlantic.com/technology/archive/2012/09/new-voting-laws-bending-backward-the-arc-of-justice/261889/ [with comments]
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Voter Suppression, Then and Now
Kevin Stanton
By DAVID W. BLIGHT
Published: September 7, 2012
New Haven
SUPPRESSING the black vote is a very old story in America, and it has never been just a Southern thing.
In 1840, and again in 1841, the former Frederick Bailey, now Frederick Douglass, walked a few blocks from his rented apartment on Ray Street in New Bedford, Mass., to the town hall, where he paid a local tax of $1.50 to register to vote. Born a slave on Maryland’s Eastern Shore in 1818, Douglass escaped in an epic journey on trains and ferry boats, first to New York City, and then to the whaling port of New Bedford in 1838.
By the mid-1840s, he had emerged as one of the greatest orators and writers in American history. But legally, Douglass began his public life by committing what today we would consider voter fraud, using an assumed name.
It was a necessary step: when he registered to vote under his new identity, “Douglass [ http://memory.loc.gov/ammem/doughtml/tl1.html ],” a name he took from Sir Walter Scott’s 1810 epic poem “Lady of the Lake,” this fugitive slave was effectively an illegal immigrant in Massachusetts. He was still the legal “property” of Thomas Auld, his owner in St. Michaels, Md., and susceptible, under the federal fugitive slave law, to capture and return to slavery at any time.
It was a risky move. If required, the only identification Douglass could give the registrar may have been his address in the town directory. He possessed two pieces of paper, which would only have endangered him more. One was a fraudulent “Seaman’s Protection Paper,” which he had borrowed in Baltimore from a retired free black sailor named Stanley, who was willing to support the young man’s escape.
The second was a brief three-line certification of his marriage to Anna Murray, his free black fiancée, who joined him in New York just after his escape. A black minister, James Pennington, himself a former fugitive slave, married them, but on the document he called them Mr. and Mrs. “Johnson.” Douglass was at least the fourth name Frederick had used to distract the authorities on his quest for freedom. He once remarked that a fugitive slave had to adopt various names to survive because “among honest men an honest man may well be content with one name ... but toward fugitives, Americans are not honest.”
Should this fugitive, who had committed the crime of stealing his own freedom and living under false identities, have been allowed to vote? Voting reforms in recent decades had broadened the franchise to include men who did not hold property but certainly not to anyone who was property.
Fortunately for Douglass, at the time Massachusetts was one of only five Northern states that allowed suffrage for “free” blacks [ http://www.americanprogress.org/issues/race/news/2012/02/24/11076/voter-suppression-battle-just-the-latest-fight-to-protect-the-vote/ ] (the others were Vermont, Maine, New Hampshire and Rhode Island).
Blacks in many other states weren’t so lucky. Aside from Maine, every state that entered the Union after 1819 excluded them from voting. Four Northern states — New York, Ohio, Indiana and Wisconsin — had reaffirmed earlier black voter exclusion laws by the early 1850s. A few blacks actually voted in New York, but only if they could pass a stiff property qualification. The sheer depth of racism at the base of this story is remarkable, since in no Northern state at the time, except New Jersey, did blacks constitute more than 2 percent of the population.
We do not know when Douglass cast his first vote. It might have been in 1840, in the famous “log cabin and hard cider” campaign mounted by the Whig Party for its candidate, Gen. William Henry Harrison. If so, he likely supported the Liberty Party’s James G. Birney [ http://www.ohiohistorycentral.org/entry.php?rec=37 ], who represented the first genuinely antislavery party, however small, in American history; it achieved some strength in the Bay State.
In 1848 he spoke at the national convention of the newly formed Freesoil Party, and after 1854, haltingly at first and later wholeheartedly, he joined and worked for the new antislavery coalition known as the Republican Party, which ran and elected Abraham Lincoln in 1860. To this day, that “Grand Old Party” still calls itself the “party of Lincoln” and still claims Frederick Douglass as one of its black founders.
And indeed Douglass saw himself as a founder of that party, but only many years after a group of English antislavery friends purchased his freedom in 1846 for £150 ($711 at the time in American dollars). Douglass was in the midst of a triumphal two-year speaking tour of Ireland, Scotland and England; when he returned to America in 1847, he moved to New York in possession of his official “manumission papers.” He was free and legal, eventually owned property and could vote. Valued and purchased as a commodity, he could now claim to be a citizen.
In Douglass’s greatest speech, the Fourth of July oration [ http://www.lib.rochester.edu/index.cfm?page=2945 ] in 1852, he argued that often the only way to describe American hypocrisy about race was with “scorching irony,” “biting ridicule” and “withering sarcasm.” Today’s Republican Party seems deeply concerned with rooting out voter fraud of the kind Douglass practiced. So, with Douglass’s story as background, I have a modest proposal for it. In the 23 states where Republicans have either enacted voter-ID laws or shortened early voting hours in urban districts, and consistent with their current reigning ideology, they should adopt a simpler strategy of voter suppression.
To those potentially millions of young, elderly, brown and black registered voters who, despite no evidence of voter fraud, they now insist must obtain government ID, why not merely offer money? Pay them not to vote. Give each a check for $711 in honor of Frederick Douglass. Buy their “freedom,” and the election. Call it the “Frederick Douglass Voter Voucher.”
Give people a choice: take the money and just not vote, or travel miles without easy transportation to obtain a driver’s license they do not need. It’s their “liberty”; let them decide how best to use it. Perhaps they will forget their history as much as the Republican Party seems to wish the nation would.
Such an offer would be only a marginal expense for a “super PAC” — plus a bit more to cover the lawyers needed to prove it legal under federal election law — and no one would have to know who paid for this generous effort to stop fraud. Once and for all, the right can honestly declare what the Supreme Court has allowed it to practice: that voters are commodities, not citizens.
And, if the Republican Party wins the election in November, this plan will give it a splendid backdrop for next year’s commemoration of the 150th anniversary of its great founder’s Emancipation Proclamation.
David W. Blight [ http://www.yale.edu/history/faculty/blight.html ], a professor of history at Yale, is writing a biography of Frederick Douglass.
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Related
Court Blocks Texas Voter ID Law, Citing Racial Impact (August 31, 2012)
http://www.nytimes.com/2012/08/31/us/court-blocks-tough-voter-id-law-in-texas.html
Related in Opinion
Op-Docs: Voter ID Wars (September 5, 2012)
http://www.nytimes.com/2012/09/05/opinion/voter-id-wars.html [next below]
Editorial: Justice for Voters in Texas and Florida (August 31, 2012)
http://www.nytimes.com/2012/08/31/opinion/justice-for-voters-in-texas-and-florida.html
Times Topic: United States Elections
http://topics.nytimes.com/top/opinion/united-states-politics/index.html
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© 2012 The New York Times Company
http://www.nytimes.com/2012/09/07/opinion/frederick-douglass-and-voter-fraud.html [ http://www.nytimes.com/2012/09/07/opinion/frederick-douglass-and-voter-fraud.html?pagewanted=all ]
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Voter ID Wars
Video [embedded]
Voter ID Wars: In the second episode of an Op-Docs series “Electoral Dysfunction,” the political humorist Mo Rocca explores controversial voter identification laws, which could benefit Republicans.
[ http://www.nytimes.com/video/2012/09/05/opinion/100000001761419/electoral-dysfunction-voter-id-wars.html ( http://nyti.ms/SlEpB0 )]
By MO ROCCA
Published: September 5, 2012
If you’ve only got 30 seconds to make your case in the debate over photo ID laws — which require voters to show up at the polls with a government-issued photo ID — it’s much easier to argue in favor of the laws.
“You need a photo ID to get on an airplane or rent a movie from Blockbuster. Get over it!”
While investigating voting in America for the documentary film “Electoral Dysfunction [ http://www.electoraldysfunction.org/ ],” I heard versions of this line over and over from the laws’ backers. The message is clear: “If you’re too lazy to get a government-issued photo ID, then you probably don’t deserve to vote. And please, let’s not forget 9/11.” (The airplane reference is a handy conversation-stopper.)
But voting rights are worth at least 60 seconds of our attention. So here’s why these laws hurt more than they help:
The only crime these laws address is voter impersonation — someone showing up at the polls and claiming to be someone else in order to cast a fraudulent vote. (I know, sounds almost delightfully madcap.)
There are so many problems with the way we run elections in this country. Voter impersonation is not one of them. Indiana, one of the first states to pass a strict photo ID law, has never convicted anyone for it. Ditto Pennsylvania, which passed an even stricter law.
It’s an extremely rare crime — 10 cases nationwide over a 12-year period during which hundreds of millions of votes were cast — and for good reason. The penalty is severe — up to five years in prison and a $10,000 fine — and the perpetrator nets only one vote. If you’re going to steal an election, there are far better options. (Hire a 16-year-old to hack into the computer touch-screen voting system — the one without a paper trail — in use in about a third of American states [ http://www.countingvotes.org/ ].)
These laws are a solution in search of a problem. Why not a law criminalizing child abduction by space aliens? Well, can you prove it isn’t happening?
But even if these laws prevent only a tiny number of fraudulent votes, aren’t they worthwhile? No.
There are a lot of people who don’t have current government-issued photo ID — for example, more than 5 percent of registered voters in Texas. (Until now a bank statement or utility bill [ http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx ] has sufficed.) The federal court that last week invalidated the new Texas photo ID law pointed out that more than one-quarter of the state’s counties lack an operational D.M.V. office, meaning some Texans would need to take a 250-mile round trip to get ID. Many prospective voters would have to pay $22 for the cheapest set of documents needed to obtain one (and that’s with Texas waiving the charge for the ID itself). The law imposes, the court wrote, “strict, unforgiving burdens on the poor.” These are the people who will be turned away from the polls (or thrown a sop in the form of a provisional ballot, which has about as much chance of being counted as a Ron Paul delegate at the Republican National Convention).
What’s more, there is no “right” to fly on an airplane. Comparing airplane travel to voting rights is like comparing having cable TV to the right of a trial by jury. (Actually, there is no constitutionally guaranteed right to vote [ http://www.nytimes.com/2012/08/29/opinion/the-right-to-vote.html ], which is partly why these laws have passed judicial muster. Now that’s a real problem.)
Oh, and Blockbuster? We’re living in the Netflix age. And they don’t require a photo ID.
Mo Rocca is a correspondent for “CBS Sunday Morning” and the host of “Electoral Dysfunction,” a feature-length documentary airing on PBS in October, from which this Op-Doc — the second in a series of four — is adapted.
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Related in Opinion
Video: Opinion: Charles Blow and Mo Rocca
http://video.nytimes.com/video/2012/09/05/opinion/100000001763049/opinion-charles-m-blow-and-mo-rocca.html
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© 2012 The New York Times Company
http://www.nytimes.com/2012/09/05/opinion/voter-id-wars.html [with comments]
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A Legitimate President or a New American Apartheid?
By Glenn W. Smith and James Moore
Posted: 09/03/2012 9:56 am
Both sides don't do it.
And when journalists shrug their shoulders and say the democratic process is little more than the two main parties throwing around distortions and untruths, they are failing to do their jobs and helping to take our country to a dangerous place. Candidates must be confronted for their blatant falsehoods. Lies cannot be allowed to stand unchallenged because it enables the election of the dangerously unprincipled and puts the nation at great risk.
We end up with an illegitimate president.
But the current problem in this election is about more than simple lies. The Romney campaign is using tactics that are clearly designed to complement the outright lying and distortions of the president's record, which are serving to encourage bigoted resentment among white voters in swing states. An even more cynical tactic being utilized is to disenfranchise poor and minority voters to keep them away from the polls on Election Day. Because the Citizens United Supreme Court ruling unleashed corporate money, the Romney campaign and its associated super PACs are able to spend hundreds of millions of dollars from secret donors in pursuit of this strategy.
As unlikely as a Romney victory may seem after the campaign's clunky and sometimes embarrassing national convention, his strategy forces us to consider a question that we avoided in 2000. What, exactly, constitutes a legitimate presidency? If the candidate is carried into office floating on a raft of lies that has deceived the voters, do we recognize his power? The candidate has spent unknown tens of millions to foment unrest with a lie that the president eliminated Welfare to Work provisions of federal assistance laws with an executive order, which is patently and demonstrably untrue. (Point of clarification: the president made it easier, at the request of numerous governors, for state's to design their own welfare to work programs as long as they adhered to federal requirements and moved more people into work.)
Romney's running mate seems to lie almost pathologically and exaggerates his performance time in a marathon by more than an hour. He is either too insecure to serve beside a president or he has trouble discerning reality from what he wants to be true, which serves as an explanation for why he thinks his budget plan won't decimate American institutions and infrastructure.
The country should be prepared for an election-day nightmare if the Pants on Fire Pair win by a margin smaller than the number of demonstrably disenfranchised voters in Cleveland or Philadelphia or Miami.
The question we ask is not an alarmist one. Rather, it is as important to our democracy as it is to a family stocking up on flashlights, food, and drinking water before a storm makes landfall. If victory comes through callous lying, cynical voter suppression and the kind of dog whistle race-baiting that gives confidence to an attendee of the GOP convention to throw peanuts at a black journalist and call her an animal, are there are any circumstances under which Americans would judge an election outcome illegitimate? Because if that line hasn't been crossed by the Romney campaign we may be in more trouble as a country than we've yet been able to realize.
There may be a second election that comes in the days after the vote. In 2000, Karl Rove led the Bush campaign down to Florida to challenge the outcome of the vote and launched an immediate psychological war on network news shows. What the cable reporters never showed were corporate jets from companies like Enron flying in with hundreds of young Republicans in Brooks Brothers suits. They eventually showed up on TV yelling and creating chaos outside of recount centers as if there were a spontaneous outburst. America succumbed to national anxiety and the term constitutional crisis became currency on talk shows. Al Gore was backing away from exacerbating the crisis even before the Supreme Court ruled Bush had won. This time, democrats, on behalf of the integrity of American democracy, need to be ready to defeat any attempt to steal the election.
The high court's ruling certainly did not make case law but it sent the unmistakable message that the need to maintain the illusion of electoral legitimacy trumped all questions about the actual integrity of the voting process. In other words, no matter the circumstances, it is more important to maintain an illusion of democracy than to actually have a democracy. Shrugging acceptance of the Romney strategy would guarantee the same ending. No matter how illegitimate or unconstitutional the election process, anyone challenging that legitimacy would be accused of causing yet another constitutional crisis.
The facts of 2012, however, are that Romney is causing such a crisis by building a campaign around voter disenfranchisement and fundamentally dishonest and racist campaign themes, and all of it funded with blank checks from secret donors.
We have to consider the possibility that Romney's strategy is taking us in the direction of a de facto political apartheid. The lies represent only one stretch of fence being constructed. Suppression of voters through impossible to meet registration laws are attempts to disenfranchise poor and minorities that are decidedly more likely to vote for Mr. Obama. Fortunately, progressives won huge victories recently in Ohio, in the Texas redistricting and Voter I.D. cases and in Florida, where Republicans had placed requirements on voter registration groups that had virtually shutdown voter registration efforts for progressive organizations. Legal avenues for challenging those sane and protective court rulings, however, have not yet been exhausted. The American legal system, if it eventually upholds these discriminating regulations placed on voters in conservative state legislatures will have approved a key element of a new apartheid.
Waiting to ask a question about a legitimate election and president until after the results are being reported is almost irresponsible. The question will be the focus of blame for prompting a constitutional crisis when the actual cause will be Romney's political practices. During inaugurals, Americans consistently take pride in the peaceful transition of power but can that be considered an absolute virtue under any circumstances? And what is the alternative to passive acceptance when the facts require the rejection of an election outcome as illegitimate?
We think the question needs to be raised. We are in an extreme circumstance in which one candidate's strategy includes the manipulation of voting procedures to disenfranchise a significant segment of qualified American voters. We raise the question rhetorically. We are trying to start a conversation. The fundamental question: Are there any circumstances under which an American election outcome would be considered illegitimate? If so, what would we then do about it?
We are not challenging Romney's personal legitimacy as a candidate for president, which is the tactic the GOP has used on the president with birtherism insinuations and campaign phraseology like "We are the real America." Instead, we are simply asking if America must accept the illusion of a fair and open democracy after it is made abundantly clear that the election system is anything but fair and open.
And if we don't accept it, then what?
Copyright © 2012 TheHuffingtonPost.com, Inc. (emphasis in original)
http://www.huffingtonpost.com/glenn-w-smith/a-legitimate-president-or_b_1851785.html [with comments]
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How A Republican Appeals Court Just Made Citizens United Even Worse
By Ian Millhiser on Sep 6, 2012 at 11:20 am
One of the few silver linings on the Supreme Court’s election-buying decision in Citizens United was its holding that — although corporations are now free to spend as much money as they want to elect their preferred candidates — such spending could still be subject to disclosure laws [ http://www.law.cornell.edu/supct/html/08-205.ZO.html ] so long as those laws bear a “substantial relation” to “‘providing the electorate with information’ about the sources of election-related spending.” The most Republican federal court of appeals in the country [ http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Eighth_Circuit ] just wiped away much of this silver lining, however, striking down a Minnesota law requiring corporations seeking to buy elections to register their political fund and make regular public disclosures of its activities.
In an opinion joined by six of the court’s Republican appointees [ http://www.ca8.uscourts.gov/opndir/12/09/103126P.pdf ], the U.S. Court of Appeals for the Eighth Circuit effectively reduced the Supreme Court’s endorsement of disclosure laws into a ban on disclosure rules that corporations might find inconvenient:
Perhaps most onerous is the ongoing reporting requirement. Once initiated, the requirement is potentially perpetual regardless of whether the association ever again makes an independent expenditure. The reporting requirements apparently end only if the association dissolves the political fund. To dissolve the political fund, the association must first settle the political fund’s debts, dispose of its assets valued in excess of $100—including physical assets and credit balances—and file a termination report with the Board. Of course, the association’s constitutional right to speak through independent expenditures dissolves with the political fund. To speak again, the association must initiate the bureaucratic process again.
Under Minnesota’s regulatory regime, an association is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term morass of regulatory red tape.
The plaintiffs in this case were represented by GOP anti-campaign finance crusader James Bopp, who frequently represents anti-abortion and anti-gay groups [ http://www.minnpost.com/politics-policy/2012/09/companies-groups-can-spend-affect-mn-elections-without-disclosure-appeals-co ]. One of the likely consequences of Bopp’s victory is that corporate donors seeking to promote an anti-gay ballot initiative [ http://thinkprogress.org/lgbt/2012/06/08/496722/over-100-religious-leaders-in-minnesota-unite-to-defeat-anti-gay-legislation-on-november-ballot/ ] seeking to write marriage discrimination into the Minnesota constitution will not be subject to disclosure.
Five judges, including three Republicans, dissented from this expansion of Citizens United. In the Citizens United opinion itself, only Justice Thomas [ http://www.law.cornell.edu/supct/html/08-205.ZX1.html ] broke with the Court’s endorsement of disclosure laws. Thomas also believes that national child labor laws [ http://thinkprogress.org/justice/2011/09/19/321978/justice-thomas-who-thinks-federal-child-labor-laws-are-unconstitutional-complains-about-judicial-activism/ ] are unconstitutional.
© 2012 Center for American Progress Action Fund (emphasis in original)
http://thinkprogress.org/justice/2012/09/06/805011/republican-court-of-appeals-makes-citizens-united-even-worse/ [with comments]
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Karl Rove's Donor Plan Could Run Afoul Of IRS, Congressional Report Suggests
By Dan Froomkin
Posted: 08/31/2012 6:10 pm Updated: 09/01/2012 10:20 am
WASHINGTON -- A new report [ http://big.assets.huffingtonpost.com/PoliticalAdsIssueAdvocacyorCampaign.pdf ] from Congress' nonpartisan research arm suggests that the Internal Revenue Service won't have much patience with the argument from groups like Karl Rove's Crossroads GPS that the ads it buys shouldn't be counted as political campaign activity.
The claim that ads attacking candidates aren't political -- as long as they avoid words like "vote" or "elect" -- is key to the empire of shadowy non-disclosing political groups [ http://www.opensecrets.org/outsidespending/summ.php?cycle=2012&chrt=V&disp=O&type=U ] that Rove, the Koch Brothers and other major political players have created.
By insisting that most of their budget goes toward "issue advocacy," rather than influencing elections, these groups exploit a loophole that allows certain non-political groups to keep their donors secret.
The Aug. 30 report from the Congressional Research Service [ http://big.assets.huffingtonpost.com/PoliticalAdsIssueAdvocacyorCampaign.pdf ] (CRS), first reported by Diane Freda for Bloomberg BNA, reviews IRS rulings on what qualifies as issue advocacy, and strongly indicates that the Rove-style ads wouldn't be a tough call for the agency -- which could revoke an organization's tax-exempt status.
For instance, a recent $4.2 million Crossroads GPS ad buy [ http://www.huffingtonpost.com/2012/08/23/crossroads-gps-obamacare-stimulus_n_1824444.html ] attacked four Democratic Senate candidates, using the figleaf of calling on them to do such things as repeal health care or "cut the debt" -- as if there was imminent action about to be taken on the Hill.
The CRS report notes, however, that "when there is no pending legislative vote or other non-electoral activity, the IRS rulings suggest it can be difficult for an ad to avoid being classified as campaign activity."
Crossroads GPS publicly released [ http://www.propublica.org/article/read-the-tax-returns-from-karl-roves-dark-money-group-donors-still-a-myster ] its 2010 and 2011 tax filings in April, claiming tax-exempt status as a social welfare group under section 501(c)(4) of the tax code.
But the IRS has not yet approved its status. Should the IRS conclude that the group is primarily political in nature, the results could be politically explosive. Tax experts tell The Huffington Post [ http://www.huffingtonpost.com/2011/05/25/irs-karl-rove-crossroads-tax-law-donor-disclosure_n_866428.html ] that political groups that don't disclose their donations and expenditures to the IRS are subject to a 35 percent penalty on all donations that should have been disclosed but weren't and another 35 percent for the expenditure of that donation.
So a reclassified group could be on the hook for a 70 percent tax bill -- and might have to disclose its donors, to boot.
Campaign finance reform groups, including Democracy 21, argue that 501(c)(4) status should be denied to any group -- Republican or Democratic -- that is trying to disguise its political nature in order to avoid disclosure.
“We have long believed that groups like Karl Rove’s Crossroads GPS, Priorities USA and American Action Network are abusing the tax laws and are not entitled to tax-exempt status as 501(c)(4) 'social welfare' organizations," Democracy 21 President Fred Wertheimer told HuffPost on Friday. "That’s why we have sent a series of complaints [ http://www.democracy21.org/index.asp?Type=B_PR&SEC=%7B91FCB139-CC82-4DDD-AE4E-3A81E6427C7F%7D&DE=%7B995AF969-530F-4377-B56F-D593F766BB1C%7D ] to the IRS asking for these groups to be investigated and for the IRS to take appropriate action against them.”
But even the smallest indication [ http://www.huffingtonpost.com/2012/03/08/irs-political-groups-501c4-_n_1333389.html ] that the IRS was pushing back on c4 status led Republican congressional leaders to accuse the IRS of pursuing a political vendetta.
Jonathan Collegio, a spokesman for Crossroads GPS, could not be reached for comment Friday.
The groups do have one thing going for them: IRS decisions in this area are based on individual determinations, rather than "bright line" rules. For instance, even when an ad refers to candidates or to voting in an upcoming election, the IRS states that "the communication must still be considered in context before arriving at any conclusions.”
Nevertheless, the factors the IRS takes into account appear to be commonsense -- and therefore inauspicious as far as Rove and others are concerned.
The reports notes among the key factors in determining that an ad has crossed the line into campaign intervention:
• whether it identifies a candidate for a given public office by name or other means
• whether it expresses approval or disapproval for any candidate’s positions or actions
• whether it is delivered close in time to an election
• whether the issue it addresses has been raised as one distinguishing the candidates
• whether it is part of an ongoing series by the group on the same issue and not timed to an election
• whether the communication is targeted at voters in a particular election
The report comes as congressional Republicans have shut down any legislative attempts [ http://www.huffingtonpost.com/2012/08/30/campaign-finance-disclosure_n_1837841.html ] to close disclosure loopholes.
But a recent federal district court ruling [ http://www.huffingtonpost.com/2012/04/27/fec-disclosure-ruling_n_1460145.html ] has nevertheless forced Rove and others to make some quick adjustments."
The ruling, in a suit brought by Rep. Chris Van Hollen (D-Md.), partly closes the c4 loophole by requiring disclosure of the donors paying for any ad that mentions federal candidates -- without expressly advocating for their defeat or victory -- within 30 days of a primary or convention, or 60 days of a general election.
Oddly enough, the loophole remains open for ads that expressly advocate for or against the candidates. So groups like Rove's quickly adjusted -- either by stopping their ads in the presidential race, which had already entered that time frame -- or by abandoning issue advocacy.
As NPR reports [ http://www.npr.org/blogs/itsallpolitics/2012/08/30/160337319/end-of-the-tell-president-obama-ads ], the Koch-brothers-backed Americans for Prosperity recently began a $25 million ad campaign flatly telling voters to vote against Obama.
That solved the problem for now, but in the long run, will only make it harder for them to prove to the IRS that they are not primarily intervening in elections.
Copyright © 2012 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/2012/08/31/karl-roves-donor-plan-afoul_n_1847834.html [with comments]
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President Lyndon B. Johnson holds the signed Voting Rights Act of 1965.
(AP)
By Andrew Cohen [ http://www.theatlantic.com/andrew-cohen/ ]
Sep 3 2012, 4:58 PM ET
Lyndon Johnson was riled up.
The Texas senator hadn't yet announced his candidacy for the presidency, wouldn't announce it until it was too late as it turned out, but there he was, privately campaigning, secretly moving to assure key journalists that he was not the scourge of civil rights they thought he was. As Senate Majority Leader, he had helped pass the 1957 Civil Rights Act, had he not? Breaking through nearly a century of Southern intransigence on civil rights, he had herded the "old bulls" of the Senate, some of them unabashed racists, into passing a federal law that made it easier for blacks to vote.
So there he was, in April 1960, already playing catch up to the aggressive Kennedy machine, on an airplane with a journalist named Howard B. Woods, the editor of a black newspaper called the St. Louis Argus. And Johnson was in full throat. Here's how Robert Caro, in Passage of Power, his masterful new installment [ http://www.nytimes.com/2012/05/06/books/review/the-passage-of-power-robert-caros-new-lbj-book.html?pagewanted=all ] of his colossal biographical series on the life and times of Johnson, recounts what happened next:
The Senator, tie-less and in shirtsleeves, was eating cookies and drinking a tall, and stiff, Scotch, but when Woods ask him about the civil rights bill "which seems to please no one," saying, "Senator, the bill, as it was finally passed, was admittedly watered down," Johnson forgot about the cookies and the Scotch, and leaned forward across the table, looking Woods "straight in the eye" in a way the editor found quite memorable.
"When we say every man has a right to vote, that is not watered down," Lyndon Johnson said." The important thing in this country is whether or not a man can participate in the management of his government. When this is possible, he can decide that I'm no good." George Reedy slipped into the seat next to Woods, but Johnson didn't need Reedy now. "Civil rights are a matter of human dignity," he said.
"It's outrageous that all people do not have the dignity to which they are entitled. But we can't legislate human dignity -- we can legislative to give a man a vote and a voice in in his own government. Then with his vote and his voice he is equipped with a very potent weapon to guarantee his own dignity." [Emphasis added.]
Just four years later, Johnson, successor to a martyred president, astonished the country and the world by using his preternatural political skills to push passage of the Civil Rights Act of 1964. The next year, he used the same combination of bluff and bluster, of carrot and stick, to push passage of the Voting Rights Act of 1965. The old Senate bulls were done, finished. Those two pieces of federal legislation brought the vote to millions of Americans who had been effectively disenfranchised because of their race. American politics has never been the same since.
Today, the trumpet calls again on civil rights and voting rights. In the past few weeks, I've written a great deal about the topic, joining the ranks of journalists like Ari Berman [ http://www.thenation.com/authors/ari-berman ] and Rachel Maddow [ http://video.msnbc.msn.com/the-rachel-maddow-show/48808597 ] and Ryan Reilly [ http://talkingpointsmemo.com/ryan_j_reilly.php ] in trying to chronicle and make sense of Republican efforts all over the country to suppress the ballots of millions of registered voters. I have done so because I believe that these laws -- photo identification requirements, bans against early voting -- are similar in their discriminatory nature and effect to some of the most odious Jim Crow laws the nation endured during the first half of the last century.
Last week, as one federal judge after another struck down these new measures, as one court after another called out Republican lawmakers for the lack of evidence supporting the push to stop "voter fraud," it dawned on me that this national debate suffers, as so many do these days, from a lack of a common starting point. There is so much fear. There is so much ignorance. There is so much exaggeration. Here are six of the most frequent comments I get when I write about voting rights followed by my attempts at a few answers that perhaps can get us talking about this in a more productive way.
MYTHS AND MACHINATIONS
1. We need these new voter ID laws to stop voter fraud. This is a logical starting point because no one is for voting fraud. But no state lawmaker, attorney general, or election law expert has yet come into court this year and established that in-person voting fraud is actually happening. For example, in Washington last week, in the federal trial over South Carolina's voter identification law, the Associated Press reported [ http://www.miamiherald.com/2012/08/27/2970625/trial-opens-challenging-south.html ] that State Sen. George "Chip" Campsen III "testified that he could not find cases of voter impersonation in South Carolina, but added that the state lacks the tools to root them out."
In Pennsylvania last month, where the Republican House Majority Leader proudly proclaimed that his state's new voter identification laws would give the state to Mitt Romney, officials also were forced to concede at trial in a stipulation [ http://tpmmuckraker.talkingpointsmemo.com/2012/07/pennsylvania_voter_id_no_in_person_voter_fraud.php ] that there is no evidence of in-person fraud. In Texas, the statistics reveal 50 prosecuted incidents of voter fraud in the past ten years -- an average of 5 per year [ http://www.theatlantic.com/politics/archive/2012/03/how-voter-id-laws-are-being-used-to-disenfranchise-minorities-and-the-poor/254572/ ] -- in a state with a population of more than 25 million. This is what opponents of these laws mean when they talk about the measures being a solution without a problem.
2. We need these new voter ID laws to stop illegal immigrants from voting. This is the uglier version of the sentiment identified above, a complaint that links the myth of widespread voter fraud with the growing realization [ http://abcnews.go.com/US/militias-hate-groups-grow-response-minority-population-boom/story?id=16370136 ] that America is slowly but surely losing its white majority. The question of illegal immigration, and how America ought to deal with it, is a legitimate policy question our political leaders need to resolve. But there is even less evidence that illegal immigrants are voting in our elections than there is evidence that in-person voting fraud is a legitimate problem among American voters.
What often is lost in the political debate over these new restrictive laws -- what's lost in the faux outrage over voting integrity -- is the central fact that registered voters in these states (and everywhere) don't just walk up today to the ballot box and cast their votes. Even without the restrictive new laws, registered voters have to prove who they are, either by providing identification or by matching their signatures on voting cards or by other means. These new laws are all about rejecting these forms of identification in favor of new ones that require, in some cases, a great deal of effort to obtain.
3. The new voter laws do not create substantial burdens on registered voters. This is the most common response to challenges to the new breed of voting laws. If someone can't find the time to get a new ID, then why should they be able to vote? If I have to show identification to buy a bottle of whiskey (or Sudafed [ http://www.theatlantic.com/politics/archive/2012/08/why-south-carolinas-most-sacred-right-is-in-jeopardy/261704/ ]) why shouldn't someone have to show a photo identification to cast a ballot? If I can get a photo ID to drive a car why can't someone get one to vote? Here we see clear evidence of the great financial divide in American life -- the widening gap between the haves and the have-nots.
There are some registered voters for whom the new requirements probably aren't an unreasonable burden. But there are many more for whom it is. In Texas, for example, there was testimony at the voter ID trial in July that some residents -- registered voters, who have voted accurately without incident for years -- would have to travel 200 or 250 miles [ http://electionlawblog.org/wp-content/uploads/texas-voter-id.pdf ] to get the new form of identification. In the South Carolina case, there was testimony last week that some registered voters would have to make a 70-mile, round-trip journey to get the new forms of identification. Are these not unconstitutional burdens?
4. The new Republican voter laws are the results of reasonable compromises between and among state legislators. This is false. In South Carolina, for example, we learned just last week [ http://www.theatlantic.com/national/archive/2012/08/in-south-carolina-shockingly-candid-talk-about-voter-discrimination/261760/ ] that a compromise voter ID law, which had bipartisan and biracial support, was rejected by conservative radicals in favor of the current law that is about to be struck down by another panel of federal judges. The same thing occurred in Texas, where state lawmakers refused to keep state offices open longer to accommodate the working-class people who couldn't get their new IDs between 9 and 5.
The same is true, incidentally, in the fight over early voting laws. Early voting hours are a national success -- allowing voters who have to work regular hours on the first Tuesday in November to cast their ballots at a more convenient time. Yet in Ohio and in Florida [ http://www.miamiherald.com/2012/08/17/2956305/federal-court-rejects-florida.html ], Republican officials sought to restrict those hours without offering a legitimate reason to do so. In Ohio, the official reason offered by the Republican Secretary of State -- that his election officials couldn't manage the extra work -- was immediately challenged by nonpartisan election officials there who said that they could, in fact, "make it work [ http://www.theatlantic.com/politics/archive/2012/08/americas-new-war-over-civil-rights/261301/ ]."
5. There are many restrictions upon the right to vote -- what's so vital about another such restriction? It's true, the Supreme Court has said repeatedly that states may impose reasonable burdens upon voters. No one disputes that this is so. Like any other right, the right to vote is not absolute. On the other hand, as Lyndon Johnson said 50 years ago, and as mainstream politicians today recognize, the right to vote is the foundation for the exercise of virtually all other civil rights because it helps enable those rights; it helps turn them into remedies.
If there were proof of widespread in-person voting fraud, or if were were proof that such fraud is on its way, the Republican officials pushing their restrictive new laws would have a legitimate argument to make. They could argue, for example, that it's reasonable to protect against 1,000 fraudulent votes by burdening 100,000 voters. The specific matrix isn't the point. The point, as Garrett Epps made last month here [ http://www.theatlantic.com/national/archive/2012/08/why-pennsylvanias-voter-id-law-is-unconstitutional/261218/ ] at The Atlantic, is that there has to be some factual basis for the imposition of the burdens contemplated by these laws. So far, those facts have been absent from courtrooms all across the country.
6. Burdening the rights of voters to cast their ballots is not the same as disenfranchising voters. The right to vote is useless if the right cannot be exercised. That's the lesson that Rep. John Lewis, the civil rights icon, has been trying to teach as he speaks out [ http://www.theatlantic.com/politics/archive/2012/08/rep-john-lewis-make-some-noise-on-new-voting-restrictions/261549/ ] about the similarities between the civil rights movement of the 1950s and the voting rights movement today. That's what's so cynical and self-defeating about these new disenfranchising measures -- like their predecessors during Jim Crow they purport to be racially neutral when it fact they are discriminatory in both their intent and their effect.
These new laws require people who are poor to pay for the cost of new identification cards -- even though those people have voted fairly and accurately for decades. The new laws require people without cars to travel hundreds of miles to get their new ID cards. They require people who are old or frail or sick to present themselves for inspection at state offices. And they do so by rejecting more reasonable alternatives -- like the new voting identification law in Virginia [ http://www.theatlantic.com/politics/archive/2012/08/why-south-carolinas-most-sacred-right-is-in-jeopardy/261704/ ], for example, which passed Justice Department scrutiny under the Voting Rights Act.
POSTSCRIPT
On voting rights in America, the arc of the universe has indeed been long, centuries long, from the three-fifths compromise in the Constitution to the poll tax to the literacy test. But it has always bent toward justice. These new laws seek to bend the arc backward again, to take away from people their effective right to vote because of their financial position, or because of their immobility, or because of their age or illness. And to do so despite the fact that these people, all these people, have been voting for years, for decades, by proving at the ballot box that they are who they say they are.
"Asking for an ID to verify who you are is not racist," an angry commentator wrote to me on Monday afternoon, "it's just common sense." Indeed, it is. And, indeed, such ballot verification happens all the time in every state in every election prior to the passage of all these restrictive new laws. There are ways to make America's elections more accurate. There are ways to do so that do not threaten to disenfranchise millions of Americans. There are ways to do so in a bipartisan, biracial fashion. That was Lyndon Johnson's challenge a generation ago and it is the challenge today for elected officials everywhere.
Copyright © 2012 by The Atlantic Monthly Group (emphasis in original)
http://www.theatlantic.com/technology/archive/2012/09/new-voting-laws-bending-backward-the-arc-of-justice/261889/ [with comments]
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Voter Suppression, Then and Now
Kevin Stanton
By DAVID W. BLIGHT
Published: September 7, 2012
New Haven
SUPPRESSING the black vote is a very old story in America, and it has never been just a Southern thing.
In 1840, and again in 1841, the former Frederick Bailey, now Frederick Douglass, walked a few blocks from his rented apartment on Ray Street in New Bedford, Mass., to the town hall, where he paid a local tax of $1.50 to register to vote. Born a slave on Maryland’s Eastern Shore in 1818, Douglass escaped in an epic journey on trains and ferry boats, first to New York City, and then to the whaling port of New Bedford in 1838.
By the mid-1840s, he had emerged as one of the greatest orators and writers in American history. But legally, Douglass began his public life by committing what today we would consider voter fraud, using an assumed name.
It was a necessary step: when he registered to vote under his new identity, “Douglass [ http://memory.loc.gov/ammem/doughtml/tl1.html ],” a name he took from Sir Walter Scott’s 1810 epic poem “Lady of the Lake,” this fugitive slave was effectively an illegal immigrant in Massachusetts. He was still the legal “property” of Thomas Auld, his owner in St. Michaels, Md., and susceptible, under the federal fugitive slave law, to capture and return to slavery at any time.
It was a risky move. If required, the only identification Douglass could give the registrar may have been his address in the town directory. He possessed two pieces of paper, which would only have endangered him more. One was a fraudulent “Seaman’s Protection Paper,” which he had borrowed in Baltimore from a retired free black sailor named Stanley, who was willing to support the young man’s escape.
The second was a brief three-line certification of his marriage to Anna Murray, his free black fiancée, who joined him in New York just after his escape. A black minister, James Pennington, himself a former fugitive slave, married them, but on the document he called them Mr. and Mrs. “Johnson.” Douglass was at least the fourth name Frederick had used to distract the authorities on his quest for freedom. He once remarked that a fugitive slave had to adopt various names to survive because “among honest men an honest man may well be content with one name ... but toward fugitives, Americans are not honest.”
Should this fugitive, who had committed the crime of stealing his own freedom and living under false identities, have been allowed to vote? Voting reforms in recent decades had broadened the franchise to include men who did not hold property but certainly not to anyone who was property.
Fortunately for Douglass, at the time Massachusetts was one of only five Northern states that allowed suffrage for “free” blacks [ http://www.americanprogress.org/issues/race/news/2012/02/24/11076/voter-suppression-battle-just-the-latest-fight-to-protect-the-vote/ ] (the others were Vermont, Maine, New Hampshire and Rhode Island).
Blacks in many other states weren’t so lucky. Aside from Maine, every state that entered the Union after 1819 excluded them from voting. Four Northern states — New York, Ohio, Indiana and Wisconsin — had reaffirmed earlier black voter exclusion laws by the early 1850s. A few blacks actually voted in New York, but only if they could pass a stiff property qualification. The sheer depth of racism at the base of this story is remarkable, since in no Northern state at the time, except New Jersey, did blacks constitute more than 2 percent of the population.
We do not know when Douglass cast his first vote. It might have been in 1840, in the famous “log cabin and hard cider” campaign mounted by the Whig Party for its candidate, Gen. William Henry Harrison. If so, he likely supported the Liberty Party’s James G. Birney [ http://www.ohiohistorycentral.org/entry.php?rec=37 ], who represented the first genuinely antislavery party, however small, in American history; it achieved some strength in the Bay State.
In 1848 he spoke at the national convention of the newly formed Freesoil Party, and after 1854, haltingly at first and later wholeheartedly, he joined and worked for the new antislavery coalition known as the Republican Party, which ran and elected Abraham Lincoln in 1860. To this day, that “Grand Old Party” still calls itself the “party of Lincoln” and still claims Frederick Douglass as one of its black founders.
And indeed Douglass saw himself as a founder of that party, but only many years after a group of English antislavery friends purchased his freedom in 1846 for £150 ($711 at the time in American dollars). Douglass was in the midst of a triumphal two-year speaking tour of Ireland, Scotland and England; when he returned to America in 1847, he moved to New York in possession of his official “manumission papers.” He was free and legal, eventually owned property and could vote. Valued and purchased as a commodity, he could now claim to be a citizen.
In Douglass’s greatest speech, the Fourth of July oration [ http://www.lib.rochester.edu/index.cfm?page=2945 ] in 1852, he argued that often the only way to describe American hypocrisy about race was with “scorching irony,” “biting ridicule” and “withering sarcasm.” Today’s Republican Party seems deeply concerned with rooting out voter fraud of the kind Douglass practiced. So, with Douglass’s story as background, I have a modest proposal for it. In the 23 states where Republicans have either enacted voter-ID laws or shortened early voting hours in urban districts, and consistent with their current reigning ideology, they should adopt a simpler strategy of voter suppression.
To those potentially millions of young, elderly, brown and black registered voters who, despite no evidence of voter fraud, they now insist must obtain government ID, why not merely offer money? Pay them not to vote. Give each a check for $711 in honor of Frederick Douglass. Buy their “freedom,” and the election. Call it the “Frederick Douglass Voter Voucher.”
Give people a choice: take the money and just not vote, or travel miles without easy transportation to obtain a driver’s license they do not need. It’s their “liberty”; let them decide how best to use it. Perhaps they will forget their history as much as the Republican Party seems to wish the nation would.
Such an offer would be only a marginal expense for a “super PAC” — plus a bit more to cover the lawyers needed to prove it legal under federal election law — and no one would have to know who paid for this generous effort to stop fraud. Once and for all, the right can honestly declare what the Supreme Court has allowed it to practice: that voters are commodities, not citizens.
And, if the Republican Party wins the election in November, this plan will give it a splendid backdrop for next year’s commemoration of the 150th anniversary of its great founder’s Emancipation Proclamation.
David W. Blight [ http://www.yale.edu/history/faculty/blight.html ], a professor of history at Yale, is writing a biography of Frederick Douglass.
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Related
Court Blocks Texas Voter ID Law, Citing Racial Impact (August 31, 2012)
http://www.nytimes.com/2012/08/31/us/court-blocks-tough-voter-id-law-in-texas.html
Related in Opinion
Op-Docs: Voter ID Wars (September 5, 2012)
http://www.nytimes.com/2012/09/05/opinion/voter-id-wars.html [next below]
Editorial: Justice for Voters in Texas and Florida (August 31, 2012)
http://www.nytimes.com/2012/08/31/opinion/justice-for-voters-in-texas-and-florida.html
Times Topic: United States Elections
http://topics.nytimes.com/top/opinion/united-states-politics/index.html
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© 2012 The New York Times Company
http://www.nytimes.com/2012/09/07/opinion/frederick-douglass-and-voter-fraud.html [ http://www.nytimes.com/2012/09/07/opinion/frederick-douglass-and-voter-fraud.html?pagewanted=all ]
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Voter ID Wars
Video [embedded]
Voter ID Wars: In the second episode of an Op-Docs series “Electoral Dysfunction,” the political humorist Mo Rocca explores controversial voter identification laws, which could benefit Republicans.
[ http://www.nytimes.com/video/2012/09/05/opinion/100000001761419/electoral-dysfunction-voter-id-wars.html ( http://nyti.ms/SlEpB0 )]
By MO ROCCA
Published: September 5, 2012
If you’ve only got 30 seconds to make your case in the debate over photo ID laws — which require voters to show up at the polls with a government-issued photo ID — it’s much easier to argue in favor of the laws.
“You need a photo ID to get on an airplane or rent a movie from Blockbuster. Get over it!”
While investigating voting in America for the documentary film “Electoral Dysfunction [ http://www.electoraldysfunction.org/ ],” I heard versions of this line over and over from the laws’ backers. The message is clear: “If you’re too lazy to get a government-issued photo ID, then you probably don’t deserve to vote. And please, let’s not forget 9/11.” (The airplane reference is a handy conversation-stopper.)
But voting rights are worth at least 60 seconds of our attention. So here’s why these laws hurt more than they help:
The only crime these laws address is voter impersonation — someone showing up at the polls and claiming to be someone else in order to cast a fraudulent vote. (I know, sounds almost delightfully madcap.)
There are so many problems with the way we run elections in this country. Voter impersonation is not one of them. Indiana, one of the first states to pass a strict photo ID law, has never convicted anyone for it. Ditto Pennsylvania, which passed an even stricter law.
It’s an extremely rare crime — 10 cases nationwide over a 12-year period during which hundreds of millions of votes were cast — and for good reason. The penalty is severe — up to five years in prison and a $10,000 fine — and the perpetrator nets only one vote. If you’re going to steal an election, there are far better options. (Hire a 16-year-old to hack into the computer touch-screen voting system — the one without a paper trail — in use in about a third of American states [ http://www.countingvotes.org/ ].)
These laws are a solution in search of a problem. Why not a law criminalizing child abduction by space aliens? Well, can you prove it isn’t happening?
But even if these laws prevent only a tiny number of fraudulent votes, aren’t they worthwhile? No.
There are a lot of people who don’t have current government-issued photo ID — for example, more than 5 percent of registered voters in Texas. (Until now a bank statement or utility bill [ http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx ] has sufficed.) The federal court that last week invalidated the new Texas photo ID law pointed out that more than one-quarter of the state’s counties lack an operational D.M.V. office, meaning some Texans would need to take a 250-mile round trip to get ID. Many prospective voters would have to pay $22 for the cheapest set of documents needed to obtain one (and that’s with Texas waiving the charge for the ID itself). The law imposes, the court wrote, “strict, unforgiving burdens on the poor.” These are the people who will be turned away from the polls (or thrown a sop in the form of a provisional ballot, which has about as much chance of being counted as a Ron Paul delegate at the Republican National Convention).
What’s more, there is no “right” to fly on an airplane. Comparing airplane travel to voting rights is like comparing having cable TV to the right of a trial by jury. (Actually, there is no constitutionally guaranteed right to vote [ http://www.nytimes.com/2012/08/29/opinion/the-right-to-vote.html ], which is partly why these laws have passed judicial muster. Now that’s a real problem.)
Oh, and Blockbuster? We’re living in the Netflix age. And they don’t require a photo ID.
Mo Rocca is a correspondent for “CBS Sunday Morning” and the host of “Electoral Dysfunction,” a feature-length documentary airing on PBS in October, from which this Op-Doc — the second in a series of four — is adapted.
*
Related in Opinion
Video: Opinion: Charles Blow and Mo Rocca
http://video.nytimes.com/video/2012/09/05/opinion/100000001763049/opinion-charles-m-blow-and-mo-rocca.html
*
© 2012 The New York Times Company
http://www.nytimes.com/2012/09/05/opinion/voter-id-wars.html [with comments]
===
A Legitimate President or a New American Apartheid?
By Glenn W. Smith and James Moore
Posted: 09/03/2012 9:56 am
Both sides don't do it.
And when journalists shrug their shoulders and say the democratic process is little more than the two main parties throwing around distortions and untruths, they are failing to do their jobs and helping to take our country to a dangerous place. Candidates must be confronted for their blatant falsehoods. Lies cannot be allowed to stand unchallenged because it enables the election of the dangerously unprincipled and puts the nation at great risk.
We end up with an illegitimate president.
But the current problem in this election is about more than simple lies. The Romney campaign is using tactics that are clearly designed to complement the outright lying and distortions of the president's record, which are serving to encourage bigoted resentment among white voters in swing states. An even more cynical tactic being utilized is to disenfranchise poor and minority voters to keep them away from the polls on Election Day. Because the Citizens United Supreme Court ruling unleashed corporate money, the Romney campaign and its associated super PACs are able to spend hundreds of millions of dollars from secret donors in pursuit of this strategy.
As unlikely as a Romney victory may seem after the campaign's clunky and sometimes embarrassing national convention, his strategy forces us to consider a question that we avoided in 2000. What, exactly, constitutes a legitimate presidency? If the candidate is carried into office floating on a raft of lies that has deceived the voters, do we recognize his power? The candidate has spent unknown tens of millions to foment unrest with a lie that the president eliminated Welfare to Work provisions of federal assistance laws with an executive order, which is patently and demonstrably untrue. (Point of clarification: the president made it easier, at the request of numerous governors, for state's to design their own welfare to work programs as long as they adhered to federal requirements and moved more people into work.)
Romney's running mate seems to lie almost pathologically and exaggerates his performance time in a marathon by more than an hour. He is either too insecure to serve beside a president or he has trouble discerning reality from what he wants to be true, which serves as an explanation for why he thinks his budget plan won't decimate American institutions and infrastructure.
The country should be prepared for an election-day nightmare if the Pants on Fire Pair win by a margin smaller than the number of demonstrably disenfranchised voters in Cleveland or Philadelphia or Miami.
The question we ask is not an alarmist one. Rather, it is as important to our democracy as it is to a family stocking up on flashlights, food, and drinking water before a storm makes landfall. If victory comes through callous lying, cynical voter suppression and the kind of dog whistle race-baiting that gives confidence to an attendee of the GOP convention to throw peanuts at a black journalist and call her an animal, are there are any circumstances under which Americans would judge an election outcome illegitimate? Because if that line hasn't been crossed by the Romney campaign we may be in more trouble as a country than we've yet been able to realize.
There may be a second election that comes in the days after the vote. In 2000, Karl Rove led the Bush campaign down to Florida to challenge the outcome of the vote and launched an immediate psychological war on network news shows. What the cable reporters never showed were corporate jets from companies like Enron flying in with hundreds of young Republicans in Brooks Brothers suits. They eventually showed up on TV yelling and creating chaos outside of recount centers as if there were a spontaneous outburst. America succumbed to national anxiety and the term constitutional crisis became currency on talk shows. Al Gore was backing away from exacerbating the crisis even before the Supreme Court ruled Bush had won. This time, democrats, on behalf of the integrity of American democracy, need to be ready to defeat any attempt to steal the election.
The high court's ruling certainly did not make case law but it sent the unmistakable message that the need to maintain the illusion of electoral legitimacy trumped all questions about the actual integrity of the voting process. In other words, no matter the circumstances, it is more important to maintain an illusion of democracy than to actually have a democracy. Shrugging acceptance of the Romney strategy would guarantee the same ending. No matter how illegitimate or unconstitutional the election process, anyone challenging that legitimacy would be accused of causing yet another constitutional crisis.
The facts of 2012, however, are that Romney is causing such a crisis by building a campaign around voter disenfranchisement and fundamentally dishonest and racist campaign themes, and all of it funded with blank checks from secret donors.
We have to consider the possibility that Romney's strategy is taking us in the direction of a de facto political apartheid. The lies represent only one stretch of fence being constructed. Suppression of voters through impossible to meet registration laws are attempts to disenfranchise poor and minorities that are decidedly more likely to vote for Mr. Obama. Fortunately, progressives won huge victories recently in Ohio, in the Texas redistricting and Voter I.D. cases and in Florida, where Republicans had placed requirements on voter registration groups that had virtually shutdown voter registration efforts for progressive organizations. Legal avenues for challenging those sane and protective court rulings, however, have not yet been exhausted. The American legal system, if it eventually upholds these discriminating regulations placed on voters in conservative state legislatures will have approved a key element of a new apartheid.
Waiting to ask a question about a legitimate election and president until after the results are being reported is almost irresponsible. The question will be the focus of blame for prompting a constitutional crisis when the actual cause will be Romney's political practices. During inaugurals, Americans consistently take pride in the peaceful transition of power but can that be considered an absolute virtue under any circumstances? And what is the alternative to passive acceptance when the facts require the rejection of an election outcome as illegitimate?
We think the question needs to be raised. We are in an extreme circumstance in which one candidate's strategy includes the manipulation of voting procedures to disenfranchise a significant segment of qualified American voters. We raise the question rhetorically. We are trying to start a conversation. The fundamental question: Are there any circumstances under which an American election outcome would be considered illegitimate? If so, what would we then do about it?
We are not challenging Romney's personal legitimacy as a candidate for president, which is the tactic the GOP has used on the president with birtherism insinuations and campaign phraseology like "We are the real America." Instead, we are simply asking if America must accept the illusion of a fair and open democracy after it is made abundantly clear that the election system is anything but fair and open.
And if we don't accept it, then what?
Copyright © 2012 TheHuffingtonPost.com, Inc. (emphasis in original)
http://www.huffingtonpost.com/glenn-w-smith/a-legitimate-president-or_b_1851785.html [with comments]
===
How A Republican Appeals Court Just Made Citizens United Even Worse
By Ian Millhiser on Sep 6, 2012 at 11:20 am
One of the few silver linings on the Supreme Court’s election-buying decision in Citizens United was its holding that — although corporations are now free to spend as much money as they want to elect their preferred candidates — such spending could still be subject to disclosure laws [ http://www.law.cornell.edu/supct/html/08-205.ZO.html ] so long as those laws bear a “substantial relation” to “‘providing the electorate with information’ about the sources of election-related spending.” The most Republican federal court of appeals in the country [ http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Eighth_Circuit ] just wiped away much of this silver lining, however, striking down a Minnesota law requiring corporations seeking to buy elections to register their political fund and make regular public disclosures of its activities.
In an opinion joined by six of the court’s Republican appointees [ http://www.ca8.uscourts.gov/opndir/12/09/103126P.pdf ], the U.S. Court of Appeals for the Eighth Circuit effectively reduced the Supreme Court’s endorsement of disclosure laws into a ban on disclosure rules that corporations might find inconvenient:
Perhaps most onerous is the ongoing reporting requirement. Once initiated, the requirement is potentially perpetual regardless of whether the association ever again makes an independent expenditure. The reporting requirements apparently end only if the association dissolves the political fund. To dissolve the political fund, the association must first settle the political fund’s debts, dispose of its assets valued in excess of $100—including physical assets and credit balances—and file a termination report with the Board. Of course, the association’s constitutional right to speak through independent expenditures dissolves with the political fund. To speak again, the association must initiate the bureaucratic process again.
Under Minnesota’s regulatory regime, an association is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term morass of regulatory red tape.
The plaintiffs in this case were represented by GOP anti-campaign finance crusader James Bopp, who frequently represents anti-abortion and anti-gay groups [ http://www.minnpost.com/politics-policy/2012/09/companies-groups-can-spend-affect-mn-elections-without-disclosure-appeals-co ]. One of the likely consequences of Bopp’s victory is that corporate donors seeking to promote an anti-gay ballot initiative [ http://thinkprogress.org/lgbt/2012/06/08/496722/over-100-religious-leaders-in-minnesota-unite-to-defeat-anti-gay-legislation-on-november-ballot/ ] seeking to write marriage discrimination into the Minnesota constitution will not be subject to disclosure.
Five judges, including three Republicans, dissented from this expansion of Citizens United. In the Citizens United opinion itself, only Justice Thomas [ http://www.law.cornell.edu/supct/html/08-205.ZX1.html ] broke with the Court’s endorsement of disclosure laws. Thomas also believes that national child labor laws [ http://thinkprogress.org/justice/2011/09/19/321978/justice-thomas-who-thinks-federal-child-labor-laws-are-unconstitutional-complains-about-judicial-activism/ ] are unconstitutional.
© 2012 Center for American Progress Action Fund (emphasis in original)
http://thinkprogress.org/justice/2012/09/06/805011/republican-court-of-appeals-makes-citizens-united-even-worse/ [with comments]
===
Karl Rove's Donor Plan Could Run Afoul Of IRS, Congressional Report Suggests
By Dan Froomkin
Posted: 08/31/2012 6:10 pm Updated: 09/01/2012 10:20 am
WASHINGTON -- A new report [ http://big.assets.huffingtonpost.com/PoliticalAdsIssueAdvocacyorCampaign.pdf ] from Congress' nonpartisan research arm suggests that the Internal Revenue Service won't have much patience with the argument from groups like Karl Rove's Crossroads GPS that the ads it buys shouldn't be counted as political campaign activity.
The claim that ads attacking candidates aren't political -- as long as they avoid words like "vote" or "elect" -- is key to the empire of shadowy non-disclosing political groups [ http://www.opensecrets.org/outsidespending/summ.php?cycle=2012&chrt=V&disp=O&type=U ] that Rove, the Koch Brothers and other major political players have created.
By insisting that most of their budget goes toward "issue advocacy," rather than influencing elections, these groups exploit a loophole that allows certain non-political groups to keep their donors secret.
The Aug. 30 report from the Congressional Research Service [ http://big.assets.huffingtonpost.com/PoliticalAdsIssueAdvocacyorCampaign.pdf ] (CRS), first reported by Diane Freda for Bloomberg BNA, reviews IRS rulings on what qualifies as issue advocacy, and strongly indicates that the Rove-style ads wouldn't be a tough call for the agency -- which could revoke an organization's tax-exempt status.
For instance, a recent $4.2 million Crossroads GPS ad buy [ http://www.huffingtonpost.com/2012/08/23/crossroads-gps-obamacare-stimulus_n_1824444.html ] attacked four Democratic Senate candidates, using the figleaf of calling on them to do such things as repeal health care or "cut the debt" -- as if there was imminent action about to be taken on the Hill.
The CRS report notes, however, that "when there is no pending legislative vote or other non-electoral activity, the IRS rulings suggest it can be difficult for an ad to avoid being classified as campaign activity."
Crossroads GPS publicly released [ http://www.propublica.org/article/read-the-tax-returns-from-karl-roves-dark-money-group-donors-still-a-myster ] its 2010 and 2011 tax filings in April, claiming tax-exempt status as a social welfare group under section 501(c)(4) of the tax code.
But the IRS has not yet approved its status. Should the IRS conclude that the group is primarily political in nature, the results could be politically explosive. Tax experts tell The Huffington Post [ http://www.huffingtonpost.com/2011/05/25/irs-karl-rove-crossroads-tax-law-donor-disclosure_n_866428.html ] that political groups that don't disclose their donations and expenditures to the IRS are subject to a 35 percent penalty on all donations that should have been disclosed but weren't and another 35 percent for the expenditure of that donation.
So a reclassified group could be on the hook for a 70 percent tax bill -- and might have to disclose its donors, to boot.
Campaign finance reform groups, including Democracy 21, argue that 501(c)(4) status should be denied to any group -- Republican or Democratic -- that is trying to disguise its political nature in order to avoid disclosure.
“We have long believed that groups like Karl Rove’s Crossroads GPS, Priorities USA and American Action Network are abusing the tax laws and are not entitled to tax-exempt status as 501(c)(4) 'social welfare' organizations," Democracy 21 President Fred Wertheimer told HuffPost on Friday. "That’s why we have sent a series of complaints [ http://www.democracy21.org/index.asp?Type=B_PR&SEC=%7B91FCB139-CC82-4DDD-AE4E-3A81E6427C7F%7D&DE=%7B995AF969-530F-4377-B56F-D593F766BB1C%7D ] to the IRS asking for these groups to be investigated and for the IRS to take appropriate action against them.”
But even the smallest indication [ http://www.huffingtonpost.com/2012/03/08/irs-political-groups-501c4-_n_1333389.html ] that the IRS was pushing back on c4 status led Republican congressional leaders to accuse the IRS of pursuing a political vendetta.
Jonathan Collegio, a spokesman for Crossroads GPS, could not be reached for comment Friday.
The groups do have one thing going for them: IRS decisions in this area are based on individual determinations, rather than "bright line" rules. For instance, even when an ad refers to candidates or to voting in an upcoming election, the IRS states that "the communication must still be considered in context before arriving at any conclusions.”
Nevertheless, the factors the IRS takes into account appear to be commonsense -- and therefore inauspicious as far as Rove and others are concerned.
The reports notes among the key factors in determining that an ad has crossed the line into campaign intervention:
• whether it identifies a candidate for a given public office by name or other means
• whether it expresses approval or disapproval for any candidate’s positions or actions
• whether it is delivered close in time to an election
• whether the issue it addresses has been raised as one distinguishing the candidates
• whether it is part of an ongoing series by the group on the same issue and not timed to an election
• whether the communication is targeted at voters in a particular election
The report comes as congressional Republicans have shut down any legislative attempts [ http://www.huffingtonpost.com/2012/08/30/campaign-finance-disclosure_n_1837841.html ] to close disclosure loopholes.
But a recent federal district court ruling [ http://www.huffingtonpost.com/2012/04/27/fec-disclosure-ruling_n_1460145.html ] has nevertheless forced Rove and others to make some quick adjustments."
The ruling, in a suit brought by Rep. Chris Van Hollen (D-Md.), partly closes the c4 loophole by requiring disclosure of the donors paying for any ad that mentions federal candidates -- without expressly advocating for their defeat or victory -- within 30 days of a primary or convention, or 60 days of a general election.
Oddly enough, the loophole remains open for ads that expressly advocate for or against the candidates. So groups like Rove's quickly adjusted -- either by stopping their ads in the presidential race, which had already entered that time frame -- or by abandoning issue advocacy.
As NPR reports [ http://www.npr.org/blogs/itsallpolitics/2012/08/30/160337319/end-of-the-tell-president-obama-ads ], the Koch-brothers-backed Americans for Prosperity recently began a $25 million ad campaign flatly telling voters to vote against Obama.
That solved the problem for now, but in the long run, will only make it harder for them to prove to the IRS that they are not primarily intervening in elections.
Copyright © 2012 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/2012/08/31/karl-roves-donor-plan-afoul_n_1847834.html [with comments]
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