Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Tuesday, November 29
Specter's Letter to Gonzales on Civil Rights Enforcement
Senate Judiciary Committee Chairman Arlen Specter (R-PA) has written
this letter to Attorney General Alberto Gonzales regarding reports of lax civil rights enforcement by the Department of Justice.

Senator Specter's letter makes specific reference to a recent Washington Post story, which I blogged on here, reporting that DOJ is in the "midst of an upheaval" arising from the actions of political appointees acting contrary to the recommendations of career lawyers. Among the controversial decisions specifically noted in the article was DOJ's approval of GOP redistricting plans in Mississippi and Texas, and the dubious decision to preclear Georgia's photo ID requirement despite evidence that it would disproportionately impede black voters. Since the Post's story, a 51-page memo showed that the approval of Georgia's plan was against the recommendation of respected DOJ lawyers.

The letter from Specter to Gonzales cites concern that DOJ's apparently less vigorous enforcement of civil rights is the "a direct result of a change in political ideology." He asks Gonzales to report back with statisitics on enforcement. In a handwritten note at the end of the letter, Specter writes: "Al - I'd like a reply ASAP."

My take: Kudos to Senator Specter for demanding answers, in response to the alarming revelations that have recently come out regarding DOJ's activities (and inactivities). Such oversight by the Judiciary Committee is vital, if Justice is to reestablish its reputation as a trusted protector of civil rights -- especially the right to vote. That reputation has sustained considerable damage in recent weeks and months, and there may be reason to hope that congressional scrutiny may have some impact in steering Justice away from the partisan course that it seems to have taken.
Monday, November 28
Voter ID News
Voter ID laws continue to be the hottest issue in election administration. The Brennan Center for Justice has assembled the following compendium of news stories on voter identification in the past week (some may require registration):
Editorial in Athens-Banner Herald (GA) urges legislators to make ID free and available through local state governments, because doing so would "remove all reasonable arguments against requiring a photo ID at the polls.": "Minor changes to voter ID law may be prudent," Editorial Board, Athens Banner Herald, 11/22/05

Op-ed by photo ID legislation backer reframes requirement as an anti-fraud measure that will not chill voter turnout: "Nothing in this law will block blacks," Cecil Stanton, Atlanta Journal Constitution, 11/23/05

Article reports that former Michigan Attorney General stands behind his 1997 opinion calling photo ID requirements unconstitutional: "Former AG says requiring ID hurts vote rights," Kathy Barks Hoffman, Associated Press, in Lansing State Journal, 11/24/05

Sue Burmeister, Georgia photo ID law backer who accused African-Americans in her district of only voting when paid to do so, is asked to step-down from House leadership position: "Voter ID sponsor asked to step down, " Sonji Jacobs, Atlanta Journal Constitution, 11/24/05

Article on Indiana's new voter registration database reports that the database will allow poll workers to verify signatures from cards with signatures at the polls, and in the same breath trumpets photo ID as a means of verifying identities at the polls: "No more than one voter per person, please," Theophilus Hawkins Jr., Aurora Journal Press, 11/23/05

DOJ attorney's oped defends pre-clearance decision of Georgia photo ID law: "Voter ID bill not an obstacle for minorities," Bradley Schlozman, Atlanta Journal Constitution, 11/25/05

Arizona's new ID rule disenfranchises thousands with older licenses: "Thousands with older driver's license could cause voting snafu," pulled from the Arizona Republic, Tucson Citizen, 11/25/05

Editorial opposes town's photo ID requirement: "To ID or not to ID," Editorial Board, Baltimore Sun, 11/25/05

Article reports on New Hampshire GOP's legislative agenda. Includes photo ID requirement for EDR registrants: "Gatsas lays out GOP agenda," unattributed, Portsmouth Herald, 11/26/05

Article reports that both Democratic candidates for CA secretary of state have come out against photo ID: "Democrats may face off against each other," Michael Gardner, Copley News Service, 11/26/05

Article reports on growing tensions surrounding undocumented immigrants, mentions voter identification: "Policies on Illegal Immigrants at Odds," Anna Gorman and Jennifer Delson, LA Times, 11/27/05
The good news here is that it's becoming apparent that boosters of strict photo ID laws are on the defensive, in the wake of the recent federal court decision putting a halt to Georgia's ID law, and the absence of evidence to support the conclusion that they're necessary -- or even helpful -- when it comes to stopping fraud.

Wednesday, November 23
"I'm Shocked, Shocked..."
Today's Atlanta Journal-Constitution has this op-ed from Rep. Cecil Staton, one of the chief supporters' of Georgia's recently enacted -- and even more recently enjoined -- photo ID law, HB 24. Rep. Staton's op-ed attempts to justify the law on the ground that it was needed to prevent fraud. He claims to be "deeply offended" by the suggestion that he or any other members of Georgia's legislature were motivated by racism. Rep. Staton's remark has the ring of Captain Renault's famously disingenous profession of shock in Casablanca, upon "learning" that gambling was taking place at Rick's Cafe. (The next line from the movie, incidentally, is "Here are your winnings, sir.")

In an effort to help Rep. Staton understand why anyone would make such a claim, let's take a look at what happened in Georgia:

- The state legislature passed a bill requiring government-issued photo ID in order to cast votes at the polling place, a requirement that's more stringent than any other state with the exception of Indiana.

- The legislature enacted this requirement over the objection of black legislators and the civil rights community, who warned that black voters -- not to mention elderly, disabled, and poor voters -- are less likely to have the requisite identification, since they're more likely not to drive.

- The state charges $20 for the requisite government-issued photo ID ... and this is putting aside the "tax" on voters' time in obtaining it.

- Georgia's legislature had no evidence of people going to the polling place pretending to be someone they're not, as the state's chief election official confirmed in sworn testimony, thus demonstrating the lack of any factual predicate to justify making all voters show ID at the polls.

- The state also failed to show while existing measures employed by other states, such as allowing voters without ID to sign an affidavit verifying they are who they say they are, are insufficient to prevent the impersonation of voters at the polling place (even if this were shown to be a problem, which it hasn't been).

- To the extent that their is any evidence of voting fraud, it's almost entirely with mail-in absentee ballots. Yet the state imposes no ID requirement for those who vote absentee, a group that generally tends to include a higher proportion of absentee and Republican-leaning voters.

In light of these developments, it ought not be surprising to anyone that many people perceive racism to be underlying the Georgia legislature's actions. Now, I'm not claiming that all the Georgia legislators who voted for the ID bill were motivated by racial prejudice, although the remarks by one of Rep. Staton's colleagues suggest that this is a possibility. In the end, whether this law was motivated by racial animus is less important than the effect it will have.

My friend Roy Saltman gets it exactly right in his letter to the editor of the Washington Post, comparing Georgia's law to a poll tax. As was the case with the poll tax, up until it was finally held unconstitutional in the 1960's, white legislators deny that the ID requirement has a discriminatory motivation -- and it's awfully hard to prove or disprove such motivation in court. In fact, the Supreme Court's decision striking the poll tax didn't rest it's holding on the state legislators' intent to hurt black voters, but instead on the effect that it would have on poor voters. Under both the Voting Rights Act and the Constitution, the impact on voters is what's critical.

In the course of his remarkable op-ed, Rep. Staton also takes some potshots at the Voting Rights Act, suggesting that it's unfair to make Georgia "endure" Justice Department scrutiny whenever it changes a voting practice. But as Tom Teepen explains in this op-ed, the Georgia ID law is a case in point for why the Voting Rights Act is still needed. If anything, this case supports the idea that the Act needs to be strengthened, to prevent partisan considerations from distorting the preclearance process, as appears to have occurred when the Justice Department allowed Georgia's ID law to go into effect.
Tuesday, November 22
Challenges to Voter Eligibility
Yesterday's Seattle Post-Intelligencer has this report on GOP challenges to voter eligibility in Washington state. They're targeting voters whose registration address is a private mailbox or commercial storage unit. This follows the razor-think 2004 gubernatorial election, in which Democrat Christine Gregoire narrowly edged out Republican Dino Rossi by 129 votes (out of some 2.9 million cast), over claims that some ineligible voters' ballots had been counted. Republicans claim that their goal is to prevent voter fraud, which Democrats claim that their goal is intimidation. Republicans are now challenging some 1,944 voter registrations.

My take: What's most remarkable about this story is how underwhelming the evidence of "fraud" in Washington's election is. Despite the microscopic scrutiny to which the State of Washington's election system has been subjected, even GOP doesn't assert that they have evidence of deliberate fraud by voters. The most that they claim is less than 2000 people who registered at addresses they don't consider to be valid -- not necessarily due to any fraud or misrepresentation, and possibly because that's the mailing address they use. It's conceivable that some of these folks could be people who are homeless or for some other reason lack a permanent mailing address, and are therefore using a private mailbox.

While the evidence of fraud is scant, don't be surprised if partisan challenges to voter eligibility become a lasting part of the election landscape. This was a big issue in the weeks leading up to the 2004 election, and it's likely to recur in the future. At present, it doesn't appear that states have found a satisfactory way to safeguard voters' rights while at the same time allowing legitimate challenges to the few voters who really are ineligible.
Monday, November 21
More on ID and Voting Rights in Georgia
The A.P. reports that one of the sponsors of Georgia' controversial photo ID law is considering making some changes, apparently in response to a federal court order against the law issued last month. State Senator Cecil Staton says the changes might include allowing local government entities to issue photo ID to those who don't have it, and allowing citizens to get ID for free.

Such revisions would make a superficial difference but would have the same practical effect. They would still impose an impediment to voting, forcing people to wait in one line to get their photo identification, only for the privilege of waiting in another line to vote. In short, it's a tax on voters' time, one that will have a disparate impact on certain groups. Unfortunately, Senator Staton overlooks a much more obvious alternative: getting rid of the law entirely, given the absence of evidence of voters appearing at the polling place pretending to be someone they're not.

The AP report also notes the racial divide that lies just beneath the surface of the ID debate. Along with elderly, disabled, and poor citizens, African Americans are less likely to have state-issued photo-identification -- and ID laws thus impose a greater burden on them than on white voters. At least one Georgia legislator, Sue Burmeister of Augusta, reportedly was up front expressing a racial (if not racist) motivation for the law. According to the Justice Department's 51-page memo released last week: "Rep. Burmeister said that if there are fewer black voters because of this bill, it will only be because there is less opportunity for fraud. She said that when black voters in her black precincts are not paid to vote, they do not go to the polls." (Predictably, Burmeister denies making these statements.)

While it's not common for legislators to make such explicit statements suggesting a racial motivation for ID laws, these remarks are nevertheless telling. The reported justification for Georgia's ID bill bears a striking similarity to those made by white politicians in the South at the turn of the last Century, during which black voting rights were suppressed through such devices as literacy tests. The common rationale is that these measures were needed to promote "good government."

Yet amazingly, against this racially charged backdrop, some Georgia Republicans are mobilizing to oppose reauthorization of the Voting Rights Act according to this A.P. report. They claim that the provisions requiring Georgia and other states to obtain "preclearance" of electoral changes is unfair, asserting that they're being blamed for the "sins of [their] forefathers" -- and ones for which their party isn't even responsible to boot. Apparently, they've not been paying attention to the voter ID debate ... or to their own actions.
Thursday, November 17
Inside Justice: The Georgia ID Preclearance
The cloud over the U.S. Department of Justice's administration of voting rights grew darker still today. The Washington Post featured this blockbuster story on DOJ's controversial decision to preclear Georgia's photo identification requirement. The Post obtained a 51-page internal memorandum, in which a team of DOJ staff attorneys and analysts recommended that the Department object to Georgia's photo ID requirement. The Post story follows concerns, which I discussed here earlier this week (before knowing about the memo), that Justice's decisionmaking has become increasingly partisan under the present Administration.

The internal Justice Deparment memorandum, dated August 25, 2005, concluded that Georgia had failed to meet its burden of showing that the ID law wasn't retrogressive, as to black voters. Four members of the five-person review team therefore recommended that the Department object -- i.e., that it not preclear Georgia's ID law -- a decision that would effectively have prevented it from going into effect. (The rationale of the fifth member, trial attorney Joshua Roberts, is not apparent.) According to the memo, the evidence available supported the inference that blacks were less likely than whites to possess the required photo ID. It notes that all black members of the state legislature but one opposed the ID requirement. The memo also discusses other non-retrogressive measures that could be taken, such as allowing other forms of ID.

The DOJ team found no direct evidence of a legislative intent to make black voters worse off. That's unsurprising, since no legislator is likely to be foolish enough to admit that a goal of a photo ID requirement is to disenfranchise black voters. But the absence of such intent is not sufficient. Preclearance should be denied where there is a retrogressive effect -- that is, where black voters would be made worse off. The team found that only one other state (Indiana) has an ID requirement that's comparable to Georgia's in its severity. All other states with comparable ID requirements have fail-safe mechanisms for voters who lack the required identification.

It didn't take much time for the powers-that-be within the Justice Department to reject the thoughtful and considered analysis of its career attorneys. On August 26 -- the day after the memorandum recommending objection -- the Chief of DOJ's Voting Section John Tanner precleared the plan.

My take: This most recent revelation is very troubling. It can only heighten concerns that DOJ has made its mission of protecting the voting rights of racial minorities subservient to partisan political interests. This makes it all the more important for Congress to consider means by which to check DOJ's power to preclear, which right now is effectively unreviewable. One possibility is to give individual voters a private right of action, where they believe that Justice has erroneously granted preclearance. Another is to take the power over preclearance away from Justice entirely, at least in certain types of cases, and place it in a bipartisan or nonpartisan panel.

Even if one could somehow dispute that DOJ has become increasingly politicized, there can now be no question that there is a strong perception that the Department is approaching its responsibilities in a less-than-evenhanded way. This is something that, painful though it may be, Congress must address as it considers the reauthorization of expiring provisions of the Voting Rights Act.
Wednesday, November 16
Why the Reform Initiatives Failed
The Reform Ohio Now measures went down in flames last week, as did California's Proposition 77 which would have created a nonpartisan redistricting commission. There's now been some time to survey the wreckage. Chris Elmendorf and Heather Gerken posted this comment on Balkinization last week. They recommend the creation of "citizen assemblies" like those used in British Columbia. These are randomly selected groups of citizens, which reach agreement on proposed reforms and then have the authority to present them to the electorate by way of referendum. My Election Law@ Moritz colleague Ned Foley has this weekly comment, suggesting that it was a mistake to package redistricting reforms with campaign finance reforms that some perceived to benefit labor unions. This made it easier, he suggests, to tar the redistricting and election administration reforms with the partisan label.

Having watched the Reform Ohio Now battles up close, my own view is that the result wouldn't have been any different on Issues 4 and 5 (the independent redistricting and election administration proposals), even if not packaged with Issue 3 (regarding campaign finance regulation). In fact, pre-election polling by the Columbus Dispatch showed Issue 3 prevailing among likely voters with Issues 4 and 5 going down handily. In the end, all three went down, Issue 3 by a slightly smaller margin.

The reality is that redistricting and election administration are complicated subjects. Even those of us who devote our lives to studying these sorts of things found our eyes going bleary trying to understand what the Ohio measures would do. This isn't meant as a criticism. The point is that these sorts of things are inherently complex, and thus hard for ordinary voters to understnd. It's difficult enough to try to explain to non-experts why our current system of drawing districts is flawed, much less the detailed competitiveness formula that Issue 4 would have required to fix the problem. It's much more difficult to educate the general public, which gets most of its information from sound bites in 30-second TV spots in which both sides claim that the other side is trying to pull the wool over voters eyes and protect the power of incumbents and/or bureaucrats. With such complex ballot measures, it's practically impossible for voters to determine who's telling the truth. The safe, one might even say rational, choice for the average voter is to preserve the status quo by voting "no." You know what they say about the devil you know ....

So for those who think there is a serious problem in how we draw districts and administer our elections (and I include myself in this group), what is to be done? The lesson I draw from Ohio and California's experience is that building public support is a long-term enterprise, of which these measures were just the first step. Perhaps citizens assemblies might be a part of this process, but establishing such bodies and giving them the power to do what Elmendorf and Gerken suggest is likely to be a long-term project also. It might be helpful here to take a page from the playbook of campaign finance reformers, who spent many years educating the public and building public support for their cause, and have achieved some successes. Many voters still don't understand the details of campaign finance reform ... but know (or at least think) that they like it.

Despite the crushing defeats in Ohio and California, I don't think reformers should give up. Instead, they should dig in and recognize that they're in for a long, hard fight if they hope to win the public's hearts and minds.
Monday, November 14
Can Justice Be Trusted?
Yesterday's Washington Post had this story on the upheaval within the U.S. Department of Justice. The Post reports that the Bush Administration's political appointees have driven away veteran career lawyers, who have served Justice loyally through previous Republican and Democratic administrations.

The report puts a special focus on voting rights issues, noting that: "Longtime litigators complain that political appointees have cut them out of hiring and major policy decisions, including approvals of controversial GOP redistricting plans in Mississippi and Texas." According to the Post:
The Bush administration has filed only three lawsuits -- all of them this year -- under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial case was the Justice Department's first reverse-discrimination lawsuit, accusing a majority-black county in Mississippi of discriminating against white voters.
The Post also discusses the recent, equally controversial decision to approve Georgia's new photo ID law, despite the evidence that it would have a disparate impact on racial minorities -- and the scant evidence that this requirement would do anything to prevent fraud.

This story follows a report by NPR's Morning Edition last month, which is available here. That report pointed to signs that the decisionmaking process on voting rights issues has become more politicized than ever under the current administration. It also included some unusual letters from DOJ, which tend to support the conclusion that the Department's recent actions in the area of voting rights are driven by partisan political considerations, rather than a concern with protecting racial minorities from electoral discrimination. I've previously discussed the DOJ's dubious opinion letters regarding the Help America Vote Act here and here.

My take: The evidence that DOJ has become more politicized than ever continues to mount. While some of these decisions might plausibly be defended, if they were standing alone, taken together they paint a picture of a department in which the protection of civil rights has taken a back seat to the advancement of Republican political interests. This is particularly troubling in the area of voting rights, in which our federal laws largely depend upon a Justice Department that is above the partisan fray. While political considerations have undoubtedly affected DOJ's decisionmaking in prior administrations, the dominance of those considerations in this administration seems unprecedented.

What can be done about this? If Justice indeed can't be trusted, then there are two major policy implications in the elections area, one having to do with the Voting Rights Act, the other with the Help America Vote Act.

Starting with the VRA, the debate over the reauthorization of the Act -- key provisions of which expire in 2007 -- provides the opportunity to consider whether the preclearance procedure should be altered. One possibility would be to provide affected voters with a private right of action, when they believe that DOJ has wrongly precleared an electoral practice that would have a retrogressive effect on minority voters. In the case of Georgia's recent ID law, for example, DOJ precleared this law finding (with little evidence) that it wouldn't have a retrogressive effect on African American voters. In order to guard against partisanship by DOJ, those voters might be given a right to challenge such preclearance decisions in court. This would effectively put the evidentiary burden on DOJ, to make a showing that Georgia's law doesn't make black voters worse off.

As for HAVA, the politicization of Justice provides added reason for federal courts to conclude that this statute may be enforced by private parties. If only the Department of Justice has the power to enforce HAVA's provisions, it can be anticipated that they will do so in a partisan manner. As far as I'm aware, only one circuit court (the Sixth Circuit) has yet ruled on the issue of thether there's a private right of action under HAVA. In the litigation preceding the fall 2004 election, the Sixth Circuit allowed Ohio and Michigan voters to challenge state election officials' decisions regarding provisional voting, which were alleged to violate HAVA. Although the Sixth Circuit ultimately rejected those voters' HAVA claims, it did find they had a right to sue -- over the objections of DOJ, which argued that it should have the exclusive power to enforce this law.

The recent revelations regarding Justice make it even more vital that private plaintiffs' be able to sue to enforce their rights under HAVA and the VRA If Justice can't be trusted to enforce voting rights in an evenhanded fashion, it's essential to allow voters to enforce their own rights in court. Otherwise, the rights conferred by these laws might be eviscerated.
Friday, November 11
Documenting Voting Discrimination
The Voting Rights Initiative at the University of the Michigan lawsuit yesterday released its final report on 323 lawsuits brought under Section 2 of the Voting Rights Act since it was amended in 1982. The VRI consists of over 100 law students, working under the direction of Professor Ellen Katz. The press release announcing the report and VRI website states:
Forty years after Congress outlined provisions to prevent racial discrimination in electoral practices, a new report released today (Nov. 10) by the University of Michigan indicates violations persist.....

With the central provisions of the Voting Rights Act expiring in 2007, Congress must determine whether it should renew these provisions, make substantive alterations to them or simply let them lapse. To make this determination, Congress needs information about the past and present status of minority participation in the political process--which is the impetus for the U-M report....

The report provides the first catalogue of findings of voting discrimination made by federal judges in published lawsuits brought under Section 2 of the Voting Rights Act since 1982. It also provides a snapshot of complex cases under this provision, representing a larger set of lawsuits filed, since only an estimated one in five Voting Rights Act lawsuits filed ended in a court decision that may be analyzed...
The information is available free of charge on VRI's website. This should be an invaluable resource for researchers interested in studying the implementation of the Voting Rights Act, as well as Congress as it considers other provisions of the law whichwill expire in 2007 unless renewed.

Another recently released source of information on voting rights that promises to be of great use is the U.S. Commission on Civil Rights, "Reports on Voting." Jack Chin and Lori Wagner have compiled five volumes of the commission's reports on voting from 1959 to 2001. The reports can be ordered through W.S. Hein & Co.
Thursday, November 10
Voting Problems in (Yup, You Guessed It) ...
The AP has this report on some of the issues that emerged in Ohio's election on Tuesday, mostly surrounding the slowness of the count. It appears that the transition to new voting technology is largely responsible -- 44 of Ohio's 88 counties were reportedly using new optical-scan or touchscreen voting equipment. Per Ohio law, the new touchscreens must generate a contemporaneous paper record (aka, "voter verified paper audit trail" or "VVPAT"). Some of the problems have to do with the width of paper used for absentees, which evidently created difficulties in feeding the ballots into counters.

Lucas County (Toledo area), which is using Diebold's TSx with the VVPAT, was the last to report its results, at around 9 am. State officials plan an investigation, according to this Toledo Blade story. Montgomery County (Dayton area) didn't report its results until 7 am. There were also problems in Sandusky County, which uses an optical scan system. Optical-scan readers refused to accept some of the ballots, forcing a manual count. Clermont County also had problems with its optical-scan system, according to this Cincinnati Enquirer story. Ballots jammed when fed into optical-scanners and, although there were only around 42,000 ballots, the count wasn't finished until 7:44 am (second-last in the state).

Meanwhile, evidently speaking from some alternative universe, Secretary of State Ken Blackwell proclaimed that it was a "great day for Ohio voters," with his office "overwhelmed with positive reports." The Secretary of State's office does have this nifty interactive map of which type of system is being used in each county.

While I can't agree with Blackwell's characterization based on the reports thus far, it's far too early to characterize Ohio's semi-transition to new technology a failure. There are worse things that can go wrong than having counts come in late -- foremost among them, having them come in inaccurately, or losing a lot of votes as is always the case with the bad old punch card. As I'm quoted as saying in the AP report, any transition to new voting technology will involve some glitches. Instead of rushing to pronounce the election either a "great day" or a "disaster," what we need is a careful analysis of what went wrong, what went right, and what improvements can be made.
Tuesday, November 8
Election Night 2005
It's been a lively off-year election season, here in Ohio and elsewhere. Here are some of the highlights from the day:

- In Ohio, the Reform Ohio Now measures (Issues 2, 3, 4 and 5) all appear to be going down to defeat. The measures would have instituted no-fault absentee voting, lower campaign contribution limits, independent redistricting, and independent election administration. The feed from the Secretary of State's website can be found here. Also, there have been some scattered problems reported with new voting machines in some Ohio counties.

- In Massachusetts, the ACLU and other civil rights groups went into court to stop alleged voting rights violations in Lawrence, MA, but their motion to extend or postpone the election was denied. The lawsuit was filed on behalf of Latino voters, who alleged that more than half the city's voters -- a disproportionate number Latinos -- were placed on "inactive" status without notice. Plaintiffs' TRO motion may be found here.

- The U.S. Department of Justice has sent election observers to 16 jurisdictions in 7 states. Among them are San Diego, CA; Boston, MA; and Kings, New York.

- More bad news for California Governor Arnold Schwarzenegger. He showed up at his polling place in Brentwood, CA today, only to be told that he'd already voted according to this L.A. Times report. The governor's staff was first told that he'd have to cast a provisional ballot ... but in fact he was allowed to cast a regular ballot. Would that all voters were treated the same way. No news just yet on the fate of Proposition 77, the independent redistricting initiative backed by the Governator, but results will be posted here.
Monday, November 7
Denying the Vote in Arizona
Today's L.A. Times has this excellent report on Arizona's Proposition 200, which requires voters to establish their citizenship and present identification in order to vote. Though ostensibly designed to prevent undocumented immigrants from voting, election officials say that it will in reality prevent tens of thousands citizens from voting on election day. In Maricopa County, where Phoenix is located, election officials say that over 10,000 people have been rejected because they couldn't prove their citizenship. In Pima County, where Tucson is located, it's reported that 60% of those who tried to registered were at first rejected.

Defenders of the law argue that it's been "too easy" for people to vote. But how many of those people were undocumented immigrants? Undoubtedly very few. In Pima, for example, the chief deputy registrar reported that all of those rejected appeared to be U.S. citizens, but many had recently moved to Arizona and thus didn't have proper documentation. For someone who's not legally in this country, attempting to vote or even to register is a high risk, low reward strategy -- more than that, it's downright foolish. And there's precious little evidence that it happens on more than an isolated basis. More than likely the vast majority of these prevented from voting in Arizona are U.S. citizens. And when the evidence is in, it's a safe bet that a disproportionate number of them will be Latinos and Native Americans.

If the L.A. Times reporting is accurate, then what's going on in Arizona is a travesty. Immigrant-bashers are playing upon the public's xenophobia to prevent tens of thousands of people from voting. More clearly than anything else we've seen, the events in Arizona expose ID requirements as the disenfranchisement strategy that they are. What remains to be seen is whether the courts will stand up to stop such vote denial schemes, and thereby protect the fundamental right to vote.
Sunday, November 6
Will the Reform Ohio Now Measures Pass?
On Tuesday, Ohioans will be voting on four constitutional amendments designed to improve the state's election system. Issue 2 would institute no-fault absentee voting. Issue 3 would impose campaign contribution limits, reversing the legislature's action last year which quadrupled limits to state candidates. Issue 4 would create an independent redistricting commission, which would be required to draw competitive election districts. Issue 5 would create an independent election administration commission, to take over the duties now served by the Secretary of State. More information on the four measures can be found here, on the Election Law @ Moritz website, which also includes links to both sides' websites.

Issues 4 and 5 are particularly worth watching, since they address issues that have assumed national prominence in recent years. Issue 4 seeks to deal with the problem of legislators drawing "safe" districts to protect themselves, the consequence of which has been for there to be very few districts that are competitive. Issue 5 seeks to stop state chief election officials performing their duties in a manner that benefits their own party, a concern that emerged in Florida five years ago and in Ohio last year. What happens with respect to both of these initiatives could have nationwide implications, especially since they represent novel approaches to problems that have attracted attention in a number of states.

What's not at all clear is whether any or all of these measures will pass. A recent poll by the Bliss Institute at the University of Akron found stronger support for Issues 2 and 3, than for Issues 4 and 5 (both of which were supported by less than 44% of "likely voters"). But these estimates should be taken with a grain of salt, given that it's difficult to predict who will actually turn out in this off-year election. The Bliss poll found that a majority of "aware citizens" supported both measures. It's thus conceivable that a lower turnout could actually mean that these measures have a greater chance of passing.
Wednesday, November 2
Should the VRA Be Amended?
The answer is yes, according to Brenda Wright of the National Voting Rights Institute and Mark Posner of American University (and formerly of the Department of Justice). Both of them testified before the House Judiciary Committee yesterday, arguing that Section 5 of the Voting Rights Act should be amended to correct the Supreme Court's interpretation in Reno v. Bossier Parish School Board (2000).

In Bossier Parish, the Court held that the fact that an intent to discriminate based on race isn't sufficient to deny preclearance of voting changes under the VRA. The Justice Department thus can't block a districting plan that's intended to diminish minority voting strength. In Bossier Parish itself, blacks constituted 20% of the population but there had never been a black elected to the school board. There was evidence that the school board meant to keep blacks off the board. But according to the Supreme Court, this wasn't enough to deny preclearance. What must instead be shown is that the plan has a retrogressive purpose -- in other words, that it's meant to make racial minorities worse off than they were before -- or a retrogressive effect.

It will obviously be the rare case in which a plan can be shown to have a retrogressive purpose but not a retrogressive effect. Thus, as a practical matter, Bossier Parish renders the "intent" prong of Section 5's test a virtual nullity. Wright and Posner make strong arguments that Congress should amend the law to reverse this interpretation.

The next hearing before the House Judiciary Committee is scheduled for November 9.
Tuesday, November 1
Indiana Photo ID Lawsuit
With all the attention that the Georgia photo ID law has gotten in the past few weeks, the similar law recently enacted by the Indiana legislature has largely escaped attention. But on Monday, the Indiana Democratic Party filed a motion for summary judgment challenging Senate Enrolled Act 483, which requires voters to show photo ID issued by the United States or the State of Indiana if they wish to have their votes counted. The Indiana Civil Liberties Union has a companion case, in which it's also filed a motion for summary judgment. The briefs and supporting documents in both cases may be found here on the EL@M website.

Under Indiana's new law, those who lack the requisite photo identification may cast a provisional ballot, but it will only be counted if the voter signs an affidavit certifying that they are 1) indigent, or 2) have a religious objection to being photographed. Those affidavits, moreover, won't be available at the polls but only at county boards of election offices after election day. How many voters are likely to run this gauntlet just to vote? You take a guess.

According to plaintiffs, there's very little evidence that Indiana voters have gone to the polls pretending to be someone they're not -- the only form of fraud that an ID requirement could even possibly address. At any rate, the legislature lacked such evidence at the time that it enacted this bill. The IDP makes claims based on the Civil Rights Act of 1964, the Voting Rights Act, and the constitutional right to vote under the Fourteenth and First Amendments, arguing that the ID law imposes an unequal burden on the state's voters.

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Moritz College of Law The Ohio State University