Blog
By Myrna Pérez – 05/09/08
The story of the elderly Indiana nuns who were turned away from the polls because they lacked voter ID has won wide attention. Those who urge harsh voter ID laws, supposedly to block voter fraud, can't be too happy. So now they have started to respond. Their answer: attack the nuns!
John Fund, writing on the Wall Street Journal website, charges that the nuns could have voted, because they could have gotten "provisional ballots." Let's see: to get the ballots, the nuns, in their 80's and 90's, would have had to go first to the polling place ... then to the state Bureau of Motor Vehicles office ... then to the county seat within ten days. All to do something they could have done their entire lives, i.e., exercise their right to go to the polls and vote.
Or, he says, they could simply have voted absentee - again, something these voters never were forced to do before. It hardly seems fair to tell citizens, "You can vote without a drivers license, but only if you do it from hiding and make your plans long in advance." (P.S., if the goal is to prevent fraud, couldn't a trickster also vote absentee?)
There's a better answer. Let's stop passing laws that make it harder for eligible citizens to vote. Let's focus instead on passing laws to make the American voting system the best in the world. That would mean electronic machines that work and give paper records, professionalizing election administration so partisan hacks don't oversee elections, and a move to universal voter registration - where the government makes sure that eligible voters are on the rolls and can cast their ballots.
Improving democracy? As the nuns might say, it's time to get in the habit.
Tags: Voting Rights & Elections, Voter ID
By Bethany Foster – 05/09/08
Cross-posted from Gavel Grab
As Bert Brandenburg noted earlier this week, the Fourth Circuit delivered some good news for public financing advocates last Thursday by unanimously upholding North Carolina's system of public funding for judicial campaigns. This is a major victory for citizens concerned about fair and impartial courts.
The North Carolina decision is one of multiple recent developments on the public financing front. On the same day that the Fourth Circuit issued its decision, plaintiffs in Arizona filed an amended complaint against the matching funds provisions of that state's public funding program for statewide and legislative races. The case is back in the District Court after going up to the Ninth Circuit and then getting remanded.
Finally, in late March, a federal district court judge dismissed the core challenges to Connecticut's public financing law, ruling that the matching funds provided by that system do not violate the free speech rights of non-participating opponents and independent spenders.
Read the rest of this post here.
Tags: Democracy, Campaign Finance Reform, Public Financing, Fair Courts
By Maggie Barron – 05/08/08
How many lawyers does it take to run an Election
Protection Hotline? You can come up with your own punchline, but the actual
answer is about thirty at a time, in five hour shifts, sitting around a board
room table on an otherwise empty floor of a mid-town law firm, fielding
hundreds of calls from primary voters in Indiana
and North Carolina.
In terms of voting issues, the big
story was the group of elderly nuns who had been turned away from the polls
because they did not have current photo ID. (So much for the Supreme Court divining
that voter ID laws would probably not really impact any voters). Other calls
ran the gamut, from questions about polling location to reports of machine
malfunctions, from possible voter intimidation to confusion as to whether or
not people with felony convictions could vote. One North Carolina woman had been mistakenly
registered as a Republican, which meant she could not vote for either of the
Democratic candidates. Another called, upset that she had been asked to leave a
polling place because she was wearing a t-shirt with her chosen candidate's
name on it.
For all these anecdotes, there was a certain type of call,
perhaps the most basic, that has stuck with me. Throughout my shift, I answered
calls from people who had been registered, had moved, and had never gotten
around to changing their address on their voter registration record. For those
who had switched counties, this was a considerable problem. In both North Carolina and Indiana,
if voters move from one county to another without updating their addresses on
the voter registration rolls, they cannot vote. Unless they've moved within the
past thirty days, they can't go to their old polling place, and they can't go
to their new polling place. They might have been registered once, but not
anymore. Sorry.
This struck me as the most mundane, unnecessary reason to be
disenfranchised, which might have been why it bothered me so much. And it
doesn't just happen in these two states. As our Executive Director Michael
Waldman points out in his new
book, "in a country where one in six Americans moves in a year, government
does not routinely keep such people registered to vote, even if they stay in
their own state."
Why do we do it like this? Some might be quick to offer the
line that voting is a privilege, the government shouldn't have to hold our hands,
voting is the voter's responsibility, etc. etc. Heaven forbid we "spoil" our
citizens by making it convenient to vote. True patriots don't need convenience!
Or something like that... Maybe some would feel that the voters I spoke to on the
phone have rightly learned their lesson and will be better citizens next time.
But I certainly didn't feel like delivering the civic scolding.
And yes, in this country it is the voter's responsibility to register, re-register, make it to
the polls, and jump through any other hoops on the way to the ballot box. But
this does not mean that it would be illegal, wrong, or a waste of time for the
government to facilitate registration and re-registration more than it does now.
The solution is fairly simple. People should be able to
register on Election Day. Eight states already allow this, and they have found
that it boosts
turnout by 5-7 percentage points, reduces confusion (and the need for
provisional ballots) when people try to vote but can't, and does not lead to
any increase in reports of voter fraud or bureaucratic malfunction. Just last
week, Senators Feingold and Klobuchar and Rep. Ellison introduced
a Federal Election Day Registration Bill, which would allow people to, you
guessed it, register on Election Day.
Or, when people change their address through the post
office, why can't they also change their voter registration? Will such
convenience turn us into a nation of softies and whiners? I doubt it. But it
will make our voter rolls a lot more accurate, which is in everyone's interests—those who lie awake at night fearing voter fraud and those who want as many
people to vote as possible.
It would not be difficult for the government to help people
get, and stay, registered. And look on the bright side. At least that will make
fewer lawyers necessary to run an Election Protection Hotline.
Tags: Democracy, Voting Rights & Elections, Election Day Issues
05/08/08
Cross-posted from Huffington Post
While the primary elections are winding down, the money primary will continue until the party conventions in August and the official start of the general election. The decisions by the remaining presidential candidates to defect from the presidential public funding system for the primaries make it clear that the system has become a fixer-upper.
The Presidential Election Campaign Fund, the bank account that holds public funding for the primary, Republican and Democratic national conventions and the general election, has grown to approximately $250 million. Like about 10 percent of other federal income tax filers this April, we both checked off the box to earmark $3 for the fund. Yet this election cycle, sadly, marks a high—or low—point for the number of viable presidential candidates who turned away public financing during the primary.
The amount actually distributed by the presidential fund is likely to reach an all-time low in the 2008 election season. At the end of 2007, a total of about $20 million was given to candidates who opted into the matching funds program. That's less than 2004's $27 million, and is even below the $25 million disbursed in 1976. It's become obvious that the system needs a makeover.
Why are fewer front-running candidates participating? Take this week's Indiana primary, where the two Democratic candidates spent nearly $10 million combined on paid advertising alone. In Pennsylvania, the pair spent an estimated $20 million total for April's primary, a record for the state. To receive public funding this cycle, a candidate had to agree to limit spending to $3.2 million in Indiana and $6.5 million in Pennsylvania under the FEC's formula.
To receive matching public funds in the primary—up to $250 for every donation up to the current federal limit for individuals of $2,300—candidates agree to abide by state-by-state spending limits set by an arcane formula: $200,000 plus cost of living adjustment since 1974, or the voting age population multiplied by 16 cents, whichever is greater. This formula is out-of-whack: each state has a unique political calculus, which varies among candidates and election cycles.
According to the Federal Election Commission's formula, does it make sense for the limits for New York, Florida and Texas to be roughly the same (respectively, $10 million, $9.5 million and $11.6 million)? On the other end of the spectrum, the limit for New Hampshire (and Maine and Vermont) is $841,000. Given the Granite State's "first-in-the-nation status" for the primaries, a cap of less than $1 million is not a 2008 reality.
There was little incentive for the three presidential front-runners to use the $42 million each available this year for the primary, given these spending limits, when they can raise similar sums in a single month. Unfortunately, the $85 million lump sum available per candidate for the general election may be headed for the similar fate if the presidential nominees of one or both parties turn it down. That would be the first time a party candidate rejected public financing in the general election since the program began in 1976.
The 1974 amendments to the federal election law (FECA) establishing the current system were meant to safeguard the presidential campaigns from the influence of wealthy donors who could call the shots as campaign insiders on White House policy. The program worked well for two and a half decades, turning many long-shot candidates into household names: most notably and successfully, an Arkansas Governor named Bill Clinton.
But except for cost-of-living adjustments and a tripling of the check-off from $1 to $3, not much has changed with presidential public funding since its inception 30 years ago. For starters, it has failed to take into account the changing face of fundraising. Rare is the traditional rubber chicken dinner where candidates come face-to-face with supporters and sing for their supper. Following her victory in the Pennsylvania primary Sen. Clinton's campaign claimed it raised $10 in a 24-hour period. And, on the anniversary of the Boston Tea Party, GOP candidate Ron Paul raised over $6 million in a single day on the web. In a fairly recent phenomenon, independent expenditures and 527 advertising will likely total hundreds of millions of dollars by year's end.
The current $42 million cap for the primaries is ludicrous when candidates can collect as much in a month, which Sen. Obama's campaign reported last month and in February, when the total take was actually $55 million. The alternative is a primary lump sum grant that will free candidates from static state-by-state spending limits so they can tailor the money to their electoral needs. And with the recent arrival of front-loaded primaries and caucus, the public money should be distributed before December, since the campaigns begin in earnest months earlier.
In the general election, candidates who use the lump sum should be empowered to remain competitive even if facing a privately funded opponent who can spend without limits. State public funding systems have solved this problem by disbursing additional "fair fight funds" to match the money spent by nonparticipating candidates, up to a pre-set cap. Moreover, the rapidly growing amounts of money spent on independent expenditures require that we equip publicly funded candidates with the ability to respond. Candidates should be given more money to enable them to answer attacks and control their own message.
Late last year, Sens. Feingold (D-Wis.) and Collins (R-Maine) and Reps. Price (D-N.C. and Shays (R-Conn.) anticipated these issues and introduced the Presidential Public Funding Act. The bills do most of what's suggested here and more, including raising the check-off to $10 for individuals and $20 for couples to account for the increased grants.
In pointing out the failings of the current system, we're not suggesting that people should stop checking off their tax returns; We'll continue to do so. The system of public financing for presidential candidates plays a valuable role in democratizing the election and avoiding a spectacle in which contenders for the highest office in the land are seen groveling for dollars from wealthy special interests. We should do what it takes to save the system, which worked well for decades. The next Congress should consider and pass FECA, version 2.0.
Tags: Democracy, Campaign Finance Reform
By Justin Levitt – 05/02/08
> Cross-potsed from ACS Blog
On April 28, the Supreme Court handed down a decision in the Crawford cases,
rejecting a challenge to Indiana's law requiring voters at the polls to
provide certain types of government-issued photo identification. I had predicted
that the opinion would likely have impact far beyond Indiana, refining
the standard for justifying a burden on voters, and potentially
changing the ground rules for 2008 and beyond. But by and large, it
looks like I was wrong: though the rhetoric around the case grows ever
louder, in terms of the legal holding, this was far more a whimper than
a bang.
The decision was split, 3-3-2-1. Justices Stevens and Kennedy, and
Chief Justice Roberts, issued the "lead" plurality opinion, rejecting
the challenge to the law as overbroad in light of the limited evidence
in the record on the extent of the law's burdens.
Justices
Scalia, Thomas, and Alito would have gone much further, granting
blanket approval to any election law without intentional discrimination
or severe widespread impact. The latter, they hinted, would require a
showing of serious problems for the average elector. Absent that,
states could presumably feel free to forbid rich and poor alike from sleeping under bridges.
Justices
Souter and Ginsburg dissented, finding that the state had not
adequately justified the burdens of the law, even on the case's limited
record. Justice Breyer also dissented, writing separately to emphasize
that Indiana offered no defense of its law—the most restrictive in
the country—to justify restrictions above and beyond those in place
in other states.
So what to make of the mix? Justice Stevens'
plurality opinion is controlling, but it does not offer much specific
control. It affirms the "flexible" constitutional standard of Anderson v. Celebrezze:
courts must "weigh the asserted injury to the right to vote against the
‘precise interests put forward by the State as justifications for the
burden imposed by its rule.'" The more severe the burden, the hardier
the necessary justification. This balance, the plurality makes clear,
requires a "hard judgment." And that's most of the guidance the opinion
provided.
To be fair, the plurality did resolve a few pending
issues. For example, there was a question about whether cases
concerning a voter's right to cast a ballot (Dunn v. Blumstein, Bush v. Gore, Purcell v. Gonzalez) involved a different degree of scrutiny than ballot access cases asserting more indirect injury: with nary a mention of Dunn et al. in the Crawford plurality, it is now clear that the flexible Anderson standard applies across the board.
The opinion also makes clear that the Anderson
test does not function like a light switch, applying strict scrutiny to
laws causing severe burdens and giving a pass to all others. Instead,
the test is more like a dimmer: however slight the burden, "it must be
justified by relevant and legitimate state interests ‘sufficiently
weighty to justify the limitation.'" The "relevant" qualifier is
clearly significant: even slight burdens will be unjustified by
rationales that are "unrelated to voter qualifications." Thus, the poll tax, however small, remains unconstitutional.
Furthermore, gerrymandering aside,
the opinion puts the kibosh on the argument that a partisan lineup is
cause to question election laws that are otherwise justified. Overly
restrictive partisan effects from election laws, presumably, should be
sussed out by examining the burden on certain classes of voters, and
not through a roll call.
Beyond that, the case came down to the
facts in the record ... and the plurality thought this record too bare to
strike the law down across the board. Part of the problem is that the
case was a pre-enforcement challenge, brought before Indiana's law was
put into effect and therefore without direct evidence of past harm. But
the case record was also thin on reliable anticipatory statistics, and
somewhat thin on affidavits articulating the burdens that individual
voters could reasonably anticipate. These gaps provided a good part of
the reason (or the excuse) for the Court to reject the petitioners'
challenge. Without solid proof of burden in the record, Indiana's
justifications for its laws were good enough.
It's not entirely
clear what evidence of burden on voters is now required. The overall
feel is that the Court has made it more difficult for plaintiffs to
mount a facial challenge. But given the Court's headlong sprint from
facial challenges in other recent cases,
the language here is relatively modest. With enough proof that enough
voters will be sufficiently burdened—burdened, not blocked outright—a pre-election facial challenge still seems viable, albeit mildly
disfavored. And with enough proof that certain voters will be
sufficiently burdened, as-applied challenges are available to carve
exceptions from election laws of general application. "Enough" and
"sufficiently" are terms left to define another day.
To me, those
are substantial silver linings in a decision with much to criticize,
even without lamenting the result for ID-less Hoosiers heading into
next week's primaries. I've written elsewhere, for example, about the Crawford plurality's factual lapses. Moreover,
the Court's evidentiary standards imply that challenges will be easier
to win only after voters have lost their rights, yielding victories
profoundly Pyrrhic. And like Brad Smith (who has graciously allowed me
to excerpt his email to a private listserv), I am bewildered by the
unwarranted stature the Court seemed to grant the Carter-Baker
Commission's questionable research:
What
is the Carter-Baker Commission? It's not a government agency, elected
or even appointed by those who have been elected. It's not an academic
report subject to academic scrutiny or peer review. In the end, it's
just a bunch of guys (and gals) saying, "here's what we think." . . .
Whence the deference given to a private group like this? . . . They
just heard some "witnesses" and maybe looked at some other evidence and
then signed on to a report as their opinion. Well, heck, lots of people
have an opinion.
Still, as Dan Tokaji notes, it could have been worse. Though voter ID laws have largely been partisan affairs,
the Court did not break down along typical 5-4 ideological lines. Six
Justices recognized that restrictive ID laws might unduly burden some
eligible voters, particularly poor and elderly citizens. The federal
courthouse remains available to these voters, though it will take a
hefty push to open the doors.
Tags: Democracy, Voting Rights & Elections, Voter ID
By The Thread -- VN – 05/01/08
"The Great Disenfranchisement of 2008 has begun," according to Daily Kos, on yesterday's Supreme Court decision to uphold Indiana's voter ID law. Dubbed the most important election case since Bush v. Gore, Crawford posed a challenge to the law, the most restrictive in the nation, which could disenfranchise thousands of eligible voters and could have a big impact on the November election. The Washington Post, LA Times, WSJ, NY Times, and USA Today all front the 6-3 decision, and there's also interesting analysis on Slate's Convictions blog, and from Rick Hasen at Election Law Blog.
There seemed to be no disagreement among the justices that these laws would make voting more difficult for some people. The question then hinged on whether the law was enough of a burden to be unconstitutional. And so the 6-3 decision allowed us a window into what our Supreme Court justices deem to be a "burden."
Indiana's law requires voters to show a current photo identification issued by either the state of Indiana or the federal government (no student or employee IDs, no utility bills, and no expired IDs allowed). Indianans can apply for free photo ID from the state, but in order to get one they must show another official document, like a birth certificate or passport, which do cost money to obtain.
For people who show up at the polls without ID, they can cast a provisional ballot that will only be counted (with few exceptions) if they appear at a county clerks' office within 10 days with the proper ID.
Stevens wrote in his lead opinion that there was not any "concrete evidence of the burden imposed on voters who now lack photo identification," and so concluded that Indiana's law did not pose a "severe burden," whereas Breyer saw the burden as "serious" and "uncomfortably close" to an actual monetary poll tax.
Scalia, Thomas, and Alito called the law "eminently reasonable." Scalia even implied in a footnote that the poll tax (struck down by the Supreme Court over forty years ago) would not be unconstitutional.
Many states with voter ID laws allow people to show alternative forms that are equally helpful in validating their identities.
Any decision that allows Hans von Spakovsky to say it has "vindicated the Bush Justice Department" should be met with pause. However, the 6-3 split "kept the door open to future lawsuits that provided more evidence," said Linda Greenhouse in the New York Times. In other words, voters can challenge these laws on their own once they can provide evidence that they were prevented from voting.
Talk about burdens. "With this decision, the Court has seriously watered down protections to the franchise by insisting that the rights of voters can be protected only after their rights have been abused," said Renée Paradis, counsel at the Brennan Center. "In putting virtually all the burden of proof on plaintiffs seeking to argue that laws illegally restrict their voting rights," said the Brennan Center's Wendy Weiser to the NY Times, "the decision makes it much tougher for voting rights groups to prevail in court."
This is a good time to remind Indianans that if they do have trouble voting next Tuesday, or encounter any confusion with ID requirements, they should call the Election Protection Hotline at 866-OUR-VOTE.
Tags: Democracy, Voting Rights & Elections, Voter ID
By Michael Waldman – 04/30/08
The Supreme Court issued a ruling in the most important voting case since Bush v. Gore. In Crawford v. Marion County, the Justices upheld Indiana's law requiring a government-issued photo ID as a condition of voting. (The Brennan Center coordinated the amicus briefs in opposition to the law.)
We're analyzing the decision and the road ahead, but here are a few things we know. The Court accepted our argument that there is no evidence of widespread voter fraud. Unfortunately, the Justices ruled that even though the Indiana law could disenfranchise real voters ... and even though there was no proof of voter fraud in the state ... the plaintiffs had not proven that Indiana violated the Constitution by imposing these rules. It left open the door for further challenges to laws where plaintiffs could prove injury.
What will this all mean?
First, we do expect that there will be a major push in state legislatures and Congress to pass very restrictive voter ID laws, this year or next. Whatever the merits or demerits of voter ID in theory, these proposals invariably are crafted to impact the poor, minorities, the elderly and others who simply lack the required photo ID. We are working with advocates to make sure they have our research on the impact of ID proposals.
Second, we are moving to strike down other barriers to voting and fair elections. Coincidentally, the day after the Crawford opinion came down, we filed a we filed a federal lawsuit to strike down Florida's restrictions on voter registration groups. (The suit was filed on behalf of the Florida League of Women Voters.) The restrictions are so severe the League—hardly a radical fringe group!—has been forced to shut down its registration activities. Our board chair, James Johnson, is co-counseling the case with us.
Ultimately, it would be a huge missed opportunity to simply focus on stopping bad laws. We see a thrilling surge of citizen engagement and participation in this election. This should be the time to craft new voter registration laws to make sure that every citizen who wants to vote, can vote. In the coming weeks we will be putting forward a draft proposal for universal voter registration, including Election Day Registration, for Congress and others to consider.
We're eager to hear your thoughts, so please let us know if we can answer any questions on these or other issues.
Best regards,
Michael Waldman
Executive Director
Tags: Democracy, Voting Rights & Elections, Voter ID
By Justin Levitt – 04/30/08
In the past, we've analyzed press reports on alleged
instances of voter fraud, and found reason to
question some of the conclusions. In a post moments ago, we questioned the Supreme
Court's devotion to accurate factual reporting, in a decision that otherwise
accurately characterized flawed press reports. And now, we come full circle,
finding factual inaccuracies in the press around the Supreme Court's decision
itself. Whew.
Most of the damage is confined to editorials and columnists—and, fortunately, some pieces are far more careful than others. Still, there
are some opinions floating around that are dangerously unhinged from fact.
Let's start with the most common myths and misstatements.
An editorial
repeats the misconception that Indiana
is the norm: "in 20 states, some form of photo identification is necessary
before voting." Another report
claims that "about 25 states" have laws like Indiana's. Wrong. The real number is 3: Indiana,
Georgia, and Florida—and in Florida,
your ballot will still count even if you don't have photo ID. The photo ID
states are the real outliers here.
A columnist
parrots the misconception that photo ID is required for all sorts of daily
activities: "Here are just a few activities that require identification:
alcohol and tobacco purchases, boarding an airline, entrance to a casino,
senior discounts at retail stores, check cashing, passport purchase, border
crossings, prescription purchases, and, in some instances, the use of a credit
card to make a retail purchase." Not if
he's talking about photo ID, they don't. Giving credit for the accurate
responses (border crossings, some credit card purchases), and a very generous
half-credit for the responses that are only accurate some of the time (alcohol
and tobacco, casino, senior discounts, check cashing, prescription purchases),
he ends up with a 50%. In my school, that got an F.
A report
furthers the misconception that "lawyers challenging the law didn't produce a
single voter injured by it." Not true.
In part because the law was challenged before
it went into effect, there was no testimony in the official record from voters who
had already been prevented from
voting. But there was evidence of several voters without valid ID who would
have difficulty obtaining that ID. And
since the law went into effect, papers
submitted to the Supreme Court shows that in one county alone, dozens of voters
in the 2007 off-year municipal election cast ballots that could not be counted
solely because of the photo ID law.
And then there's Hans von Spakovsky. You can't blame the reporting
here: they just quote him. But his assertion that
the Crawford decision "confirms the
validity of photo ID laws" is as wrong as his claim that the decision
vindicates the DOJ for approving Georgia's 2005 ID law. The Court
case didn't say photo ID laws were OK: it said that there wasn't enough
evidence in this particular case—which was brought before the law ever went
into effect—to strike the law down. While it may now be harder to get the
proof necessary, future ID laws that disenfranchise vulnerable populations are
as constitutionally suspect as they ever were.
And the Court certainly
didn't say that the DOJ was right to approve Georgia's law in 2005. Crawford addressed an Indiana
law under the Constitution; the DOJ addressed a Georgia law under the Voting Rights
Act. Different laws, different standards, different analysis. The only
similarity is that both results were wrong.
Tags: Democracy, Voting Rights & Elections, Voter ID
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