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Monthly Archives: June 2015

Models of Judicial Decisionmaking – Posner’s Change of Heart on Voter I.D.

The NY Times Magazine ran a well-written essay by Elizabeth Bazelon about how and when judges change their minds – with prominent mention given of Judge Richard Posner’s public mea culpa regarding his previous approval of a voter I.D. law. The essay isn’t primarily concerned with election law, but with the broader question of how and when judges have intellectual “cover” to change their opinions about something.

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With Friends Like These – Criticism of Clinton’s Campaign Push For Voting Rights Reform

On June 8, Rick Hasen posted a column on Slate in which he argued that Hillary Clinton’s spotlight on GOP efforts to restrict voting rights was detrimental to the larger goal of actual voting rights reform. Not surprisingly, this column drew an immediate and angry response from many commenters who took issue with Professor Hasen’s concern that a Presidential campaign is too vitriolic to encourage actual bipartisan improvements in voting rights.

In making his argument, Professor Hasen acknowledged that (1) Secretary Clinton’s criticism of GOP-led changes in voting laws are factually correct; and (2) that Secretary Clinton’s proposed reforms (universal Federal voting registration, online registration, etc) are sound and rational. In other words, Professor Hasen generally agrees with Secretary Clinton that state legislatures dominated by the GOP have eroded voting rights since 2011 (with such measures as restrictive picture I.D. requirements, limitations on registration, reductions in early voting, etc.), and that for the health of our nation’s democracy, these restrictions must be overturned.

It isn’t the message that Professor Hasen finds objectionable, but the forum in which that message is being aired – a Presidential campaign. In his view, “voting rights” as a Democratic Party candidate’s campaign talking point puts Republicans on the defensive. As the GOP circles the wagons, the intensity of the rhetoric diminishes the likelihood that a Republican lawmaker can save face while working to overturn disastrous laws like those enacted in Texas and North Carolina.

As a counter-example of bipartisan cooperation on improving the voting experience, Professor Hasen points to the overwhelming success of the Presidential Commission on Election Administration (PCEA), which substantially advanced the cause of online voter registration, improved voter convenience for early and absentee voting, and so on. The implication is that partisan rhetoric dampens enthusiasm for actual voting rights reforms. Why rock the boat? Why make enemies when the goal should be to improve access to the polls? Professor Hasen also argues that even a successful Presidential campaign is a poor mechanism for policy change, because the Executive Branch has very little in the way of effective tools for implementing changes in state election procedures.

Does Hillary Clinton’s campaign rhetoric really paint bipartisan cooperation on voting rights into a corner? I’m not so sure. Her harshest criticisms are aimed at two of her competitors (Rick Perry and Scott Walker) for their past actions; these potential GOP nominees couldn’t participate meaningfully in bipartisan improvements in voting rights even if they wanted to, and attacks against them for their hostility towards minority voters don’t particularly imperil any actual reform, and simply strengthen the polarizing stance of the two dominant parties. (the unofficial slogan of the GOP is “Protecting You From Undesirables.” The unofficial slogan of the Democratic Party is “Protecting You From People Who Think You are Undesirable.”)

Here’s the fatal flaw in Professor Hasen’s argument: he simultaneously discounts the political value of campaign rhetoric while paradoxically worrying about the political effect of campaign rhetoric.

Hillary Clinton’s campaign rhetoric regarding voting rights is either effective to influence government policy regarding voting rights reform (positively or negatively) or it is not. Statements by candidates for President regarding voting rights reform cannot simultaneously be regarded as both meaningless (due to the limited leverage allegedly afforded to federal executive control over state voting rights) and negatively powerful and promoting of intransigence among Republicans with respect to actual reform. The only acts that promote intransigence with respect to voting rights reform are those acts that actually have some chance of succeeding in making changes to voting rights.

Therefore, the only course available to Secretary Clinton is to continue treating voting rights reform as a campaign plank, because (1) either the usefulness and forcefulness of that plank comes from the credible threat that the campaign position will lead to an improvement in voting rights, or (2) the usefulness and forcefulness of that plank encourages clear “brand differentiation” among the candidates without endangering any potential for actual reform.

Could the U.S. Supreme Court Scuttle Representative Democracy?

Well, sure, if the justices wanted to, they could get rid of population-based apportionment of state legislative districts. It would be a dumb thing to do, but this is a court inured to the practice of doing dumb things.

The case in question is Evenwel v. Abbott – the plaintiff argues that Texas should not base state redistricting on the distribution of its population, but rather on the distribution of its voters. The motivation for the case is to strip power from urban areas in favor of the rural conservatives.

Central to the conservative argument is that apportionment of representation by population size “dilutes” the power afforded to voters by distributing representation based on both the voting population and all the other people (kids, foreigners, prisoners, non-voters) who happen to live in a state House or Senate district.

In other words, the plaintiff believes that government representatives do not serve all the people in their district. The plaintiff believes that government representatives serve only the people who vote, and everyone else can suck eggs.

Not surprisingly, every court that has heard the plaintiff’s argument has rejected it out of hand. Surprisingly, the U.S. Supreme Court didn’t just reject the argument out of hand, which has everyone worried. Needless to say, a decision favorable to the plaintiff would be devastating to the efforts of underrepresented minority populations to redress the inequalities they face.