The State of Wisconsin is having its own voter I.D. troubles, brought on by a stunningly rash decision by the 7th Circuit Court of Appeals to lift a stay on the enforcement of Wisconsin’s photo I.D. law. The timing was terrible, given the long lead times associated with running an election – the decision leaves Wisconsin voters and election workers in an untenable position, as there isn’t time to recall and resend thousands of absentee ballots, there isn’t time to implement the voter I.D. law prior to the registration deadline before the election, and there isn’t time for anyone who lacks I.D. to actually acquire such I.D.
It seems likely that the 7th Circuit en banc will reverse the decision, but who knows. The New York Times has come out with an editorial that summarizes the whole issue about as succinctly as anyone could desire.
For those of you using web readers, the link is: http://www.nytimes.com/2014/09/16/opinion/electoral-chaos-in-wisconsin.html?ref=opinion&_r=1
Charles Kuffner has linked to and commented on this interesting story from the Dallas Morning News investigative blog. Briefly, members of the Texas Democratic Party have asked the U.S. Department of Justice to investigate the 2010 armed raid by the Texas Attorney General’s office on the group Houston Votes.
So, why do I say that Abbott has played the race card?
In the body of the story, there’s this press-release response from the Abbott campaign, claiming that the executive director of Houston votes admitted that the group’s members had “fraudulently signed voter registrations and illegally collected information to sell to ACORN-linked Project Vote.”
There’s no mention of race within that sentence. But there is the word “ACORN.” On the right (and especially on the extreme fringe of the far right, e.g., among white supremacists who communicate their views online), “ACORN” is understood to mean “black,” or more particularly, to refer to a defined class of poor African-American voters who bear the brunt of white supremacist hatred. Illustrations of this odd but patently successful re-branding of ACORN by racists abound, most of them too vile and profanity-laced to cite politely (the link is to a follow-up story about Abbott supporter Ted Nugent’s description of President Obama as an “subhuman mongrel ACORN community organizing gangster.”) This story describes how the ACORN slander translated into racially-motivated threats in specific instances.
The well-placed (and baseless) smearing of Project Vote with the “ACORN” slander in a press statement is deliberate – it sends a message to the more openly bigoted hardcore racists in Texas, letting them know that Greg Abbott is on their side.
For those of you making use of web readers, the cited links are:
This is a familiar pattern, and one that we’ve seen at both the national and state level – as I had noted recently, one sure way to draw down the wrath of Republican Party members is to encourage voter registration among minority populations. For obvious reasons (such as the desire not to get voted out of office), Georgia Republicans have filed a criminal complaint against a group that has boosted African-American voter registration numbers.
Slate magazine has the story here: http://www.slate.com/articles/news_and_politics/politics/2014/09/stacey_abrams_new_georgia_project_shocks_georgia_s_gop_republicans_fighting.html?wpsrc=sh_all_dt_tw_bot
You’ve probably noticed that I usually don’t say much about campaign financing laws – that reflects a longstanding (and somewhat odd) division of labor brought about by the creation of the Texas Ethics Commission over two decades ago. The Elections Division at the Texas Secretary of State once housed an Ethics Section, but those days were long over by the time I got into the election law business, and I spent all my time thinking about the quotidian details of the voting process (i.e., where to set up the folding chairs and long tables at the polling places, making sure the machines were plugged in, and trying not to violate the Voting Rights Act).
But the ethics stuff is critically important – the role of “one dollar, one vote” in American politics is the most serious destabilizing factor that our government faces. In fact, future generations may one day point to this era as the one in which the United States explicitly transformed its form of government from an indirect representative democracy into a corporate oligopoly. Yes, I’m looking at you, U.S. Supreme Court.
But in the midst of the larger national turmoil caused by the escalating monetizing of elections, Greg Abbott has tried to steal a little of Wendy Davis’s thunder by arguing that her newly published biography allows for the injection of corporate money into her campaign, in violation of state ethics laws.
Who would have thought that Greg Abbott would position himself as a champion of the enforcement of campaign ethics laws? There’s just one problem.
Section 253.100(d) of the Texas Election Code prohibits a corporation from directly supporting a candidate or cause – the money must instead be filtered through a general purpose political action committee. Greg Abbott argues that because Wendy Davis has published a book, and because that book is being circulated at a time coincident with the run-up to the November election, that the printing and promotion of the book constitute corporate spending in direct support of a candidate.
The problem is that if Section 253.100 of the Election Code is used to shut down the publication or distribution of a biography, such a use constitutes governmental prior restraint on free speech. The biography is reportage – it expresses the political opinions and development of ideas of the candidate. It is not a TV ad or rally for the candidate. The candidate is not handing out beer or hot dogs to voters. The candidate is speaking about her life. As the Texas Supreme Court ruled in In Re Newton, 146 S.W.3d 648 (2004), one cannot merely impose the prohibition against a specific kind of corporate spending without analyzing whether that limitation violates the First Amendment.
That book must be a good read for Abbott to be so fixated on tossing it in the fire.
As promised, here are what I refer to as the “anti-ACORN” laws (the story of the ACORN slander is fairly well-known, and has been better told by others. Briefly, conservatives targeted an innocuous and fairly successful national community service non-profit for perceived crimes involving voter registration, and managed to so thoroughly trash the non-profit’s reputation that all of its funding dried up and it ceased to exist.
That the organization was subsequently vindicated and found to be innocent was irrelevant, as those who attacked ACORN likely were indifferent to whether the non-profit had actually committed any crimes or not. ACORN’s crime, such as it was, was to be perceived as an unusually successful political organizer of Democratic Party voters). Convicted felon James O’Keefe (the notorious right-wing agent provocateur) was instrumental in crafting faked videos that contributed to ACORN’s downfall.
In the wake of the ACORN slander, a number of Republican-controlled states considered or enacted laws designed to handicap voter registration efforts using more formal statutory powers. Notable examples of these restrictions were enacted in New Mexico, Florida, Wisconsin, and (of course) Texas. (For a comprehensive survey of these restrictions, and an interactive map of the restrictions state-by-state, see http://www.brennancenter.org/analysis/voter-registration-drives).
The statutory suite enacted by the Texas legislature was one of the most restrictive in the country, and included the following elements:
- A new mandatory testing and certification requirement for people acting as volunteer deputy voter registrars (Tex. Elec. Code Sections 13.031(e) and 13.047);
- Additional grounds for cancelling volunteer deputy registrar’s commissions, and (in a cruel twist) the rejection of voter registrations collected by a “defrocked” volunteer deputy registrar after the cancellation of appointment (Tex Elec. Code Section 13.036);
- An in-person voter registration delivery requirement (which effectively shuts down statewide or non-county specific volunteer deputy voter registration) (Tex. Elec. Code Section 13.042); and
- New and existing provisions that place volunteers at risk of criminal prosecution (e.g., if the deputy voter registrar transcribes confidential information on the application form (Tex. Elec. Code Section 13.004); fails to meet the delivery deadline for returning the applications in person to the county voter registrar (Tex. Elec. Code Section 13.043); knowingly induces false statements on the voter registration form (Tex Elec. Code Section 13.007), or (and this was added in 2011), if the deputy voter registrar is compensated on a performance basis for delivering voter registration forms (Tex. Elec. Code Section 13.008)).
So voter registration drives became more heavily regulated in 2011. But what has the practical effect been of these new laws?
The Texas Attorney General’s investigation and raid of the Houston Votes organization (which had been prompted by a complaint from the notorious True The Vote organization) occurred in 2010, prior to the enactment of the most recent laws., but the raid reinforced the risks faced by the organizers of voter registration drives.
It appears that the most dangerous thing a non-profit can do these days is distribute voter registration applications to minorities and the poor. The destruction of ACORN didn’t salve conservative anger following the 2008 Presidential election, and it appears that nothing less than scorched earth will answer the efforts of non-profit organizations to get more Texans registered to vote.
A number of online media outlets have sent reporters to Corpus Christi to cover the opening of Veasey v. Perry (the consolidated federal lawsuit contesting implementation of the 2011 Texas voter I.D. law), but for my money, the most detailed and accurate day-to-day coverage of the trial is coming from the Brennan Center for Justice at NYU (available at http://www.brennancenter.org/texas-voter-id-trial.
I’m guessing that mainstream news coverage is likely to flag and falter a bit as the trial continues for the next three weeks or so, simply because the trial schedule is a little too languid and stretched-out to generate sustained interest across multiple news cycles. That’s a shame, because while there may not be showy rhetorical fireworks every day of the trial, the meat of the evidence lies in a series of expert reports that make for surprisingly good reading (at least for fans of public policy analysis and massive demographic surveys – and hey, that’s all of us here, right?) (Highlights include Dr. Gerald Webster’s report, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5162.pdf, Dr Barry Burden’s rebuttal of the State’s experts, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5152.pdf, and Drs. Barreto and Sanchez’s rebuttal of the State’s experts, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey520.pdf).
It’s no secret why the Brennan Center is providing a constant twitter feed, daily recaps of testimony, detailed trial background stories, and profiles of the key witnesses and evidence as they are presented. The attorneys for the Brennan Center are insiders who have a dog in the hunt – they represent one of the plaintiffs in NAACP et al. v. Steen et al., which was consolidated with Veasey v. Perry for the sake of judicial economy, and so the Brennan Center staff are intimately aware of the ebb and flow of the trial, coordinating their legal arguments with the arguments being made by the other plaintiffs.
The Brennan Center’s coverage is by necessity biased strongly in favor of the plaintiffs’ arguments, and so in this respect its website coverage differs from an objectively neutral reporting of the trial. Normally, inherent bias would make me hesitate to recommend this sort of “press release” news coverage offered by a party to a lawsuit, and I would favor more neutral sources, such as the Moritz College of Law repository (which scrupulously offers all documents from both sides of a dispute, and never editorializes or favors one side or another) (the Veasey v. Perry documents are available at http://moritzlaw.osu.edu/electionlaw/litigation/VeaseyV.Perry.php).
However, party bias in reporting is less of a problem in Veasey v. Perry than it would be in most other lawsuits, given that the defendant State of Texas has more-or-less capitulated with respect to the evidentiary elements of the lawsuit. In other words, (and obviously with a few quibbles), the State apparently concedes that the plaintiffs’ descriptions of the facts are more-or-less accurate.
Rather than offering anything more than a token rebuttal of the plaintiffs’ evidence, the State apparently takes the position that as a matter of law, a photo I.D. requirement (even if such a requirement imposes a disproportionate financial burden on minority voters, or disproportionately discourages minority voters from voting) isn’t illegal per se, but is justified as long as there is public support for more restrictive voting procedures. In other words, it is irrelevant (in the State’s view) whether there actually is any danger of illegal voting or not – what is critical is whether or not the bulk of voters (i.e., the non-poor, non-minority voters) are in favor of imposing an additional burden on voting.
In other words, the State of Texas is arguing that while the 2011 picture I.D. law may be a discriminatory, ineffectual and badly-conceived law, and while the law may or may not be intentionally badly-conceived, it is not an intentionally discriminatory law.
The State has claimed (as an affirmative defense) that Texas is unfairly picked on by the Department of Justice, and that this lawsuit is being mean, and stuff. (at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey4481.pdf). For a stinging rebuttal of this argument, see: http://moritzlaw.osu.edu/electionlaw/litigation/documents/veasey4911.pdf. As any person who has presided over a child’s temper tantrum knows, the defensive rejoinder that someone is “being mean, and stuff” is rarely relevant or germane to the issue at hand, and that general observation holds true in this case.