[EL] secret ballot
Justin Levitt
levittj at lls.edu
Tue Dec 27 10:39:02 PST 2011
Any time Jim uses /italics/...
He's absolutely right, of course, that the plaintiffs in Indiana did not
present evidence of individuals who had attempted to vote but were
prevented from voting because they did not have the right kind of ID.
Indiana's challenged bill
<http://www.in.gov/apps/lsa/session/billwatch/billinfo?year=2005&request=getActions&doctype=SB&docno=0483>
was passed by the legislature on April 19, 2005, and signed into law on
April 27, 2005. William Crawford's original suit in state court was
filed on April 28, 2005; the Indiana Democratic Party's suit in federal
court was filed on May 2, 2005. The law's effective date was July 1,
2005, and the first statewide election in which it was applied was, I
believe, May 2, 2006 -- approximately one month after the federal
district court issued its (April 14, 2006) decision.
That is, the case had been filed and litigated at the trial level before
the ID law went into effect. The primary reason that plaintiffs didn't
present evidence at the trial court of people who had already been
prevented from voting because of the law was that they didn't have
access to a DeLorean DMC-12 with a flux capacitor
<http://en.wikipedia.org/wiki/DeLorean_time_machine>. Indiana's
pre-enforcement legal challenge didn't feature individuals who had been
disenfranchised by the law. That appears to have been a strategic
litigation decision. But either way, it doesn't contradict Morgan's point.
The Indiana plaintiffs did present evidence of individuals who alleged
that they would have difficulty obtaining the form of photo ID required
by the state. On appeal, amici (primarily but not exclusively the
League of Women Voters of Indiana
<http://www.brennancenter.org/dynamic/subpages/download_file_50864.pdf>)
presented the names of individual people who related great difficulty
obtaining the form of photo ID required by the state, some of whom were
unable to do so in time for one or more elections. (I've compiled more
here <http://www.judiciary.senate.gov/pdf/11-9-8LevittTestimony.pdf>,
from Indiana and elsewhere.) And South Carolina's Attorney General, in
a formal opinion
<http://www.scag.gov/wp-content/uploads/2011/08/andino-m-os-9319-8-16-11-Photo-ID-Voter-ID-legislation.pdf>
interpreting South Carolina's new law, stated in August of this year
that the state's provision for an exemption in the event of reasonable
hardship makes "allowances for those voters who have a valid reason,
beyond their control, which would prevent them from obtaining a Photo
ID. One such reason which is obvious is that there are numerous South
Carolinians, generally over age 50, who do not have a birth certificate."
This affects real votes, too. Indeed, at the Supreme Court, county
respondents
<http://www.brennancenter.org/dynamic/subpages/download_file_50977.pdf>
in the Indiana case stated "In the 2007 municipal election, some votes
of otherwise-eligible individuals were not counted because they did not
comply with the Voter Identification Statute." Since 2007, Mike Pitts
has documented (here <http://ssrn.com/abstract=1465529> and here
<http://ssrn.com/abstract=1287735>) hundreds of provisional ballots cast
in Indiana elections that were rejected because of the photo ID law. We
already know of at least one
<http://www.nwitimes.com/news/local/lake/article_99e4f7b7-45eb-54de-8c3b-38196a4abe43.html>
2010 Indiana election that appears to have been decided by the photo ID
law, where a provisional ballot wasn't counted because the right ID card
hadn't been shown. And all of that is limited to individuals who
actually voted despite lacking the correct ID, leaving out those who
would rather not spend the time waiting in line to complete a ballot
that they know won't be counted.
To bring the discussion full circle, legal provisions preventing
disclosure of identifying information of provisional voters make
follow-through particularly difficult here (Mike's articles recount the
difficulties in more detail). It may be difficult to see the proven
impact of photo ID laws on real individuals, because the identity of
those whose provisional ballots are uncounted because of photo ID laws
is itself kept confidential...
Justin
On 12/27/2011 5:03 AM, JBoppjr at aol.com wrote:
> A big lie repeated over and over again does not become true:
> "we should also realize that in the U.S., the secret ballot was widely
> used, as the voter identification measures currently are, to
> disfranchise poor, uneducated people,
> especially African-Americans in the South."
> When put to the test, the Plaintiffs in Indiana could not come up with
> /one person/ who was disenfranchised. No not one. Jim Bopp
> In a message dated 12/26/2011 5:23:32 P.M. Eastern Standard Time,
> kousser at hss.caltech.edu writes:
>
> In relation to Mark Scarberry's post, we should also realize
> that in
> the U.S., the secret ballot was widely used, as the voter
> identification
> measures currently are, to disfranchise poor, uneducated people,
> especially African-Americans in the South. By disfranchising
> African-Americans, it also greatly diminished the vote of the
> party to
> which they overwhelmingly adhered at the time, the Republicans, and
> partisan and racial purposes, then as now, could not be easily
> disentangled. As the (Democratic) Little Rock Arkansas Gazette wrote
> after the first election (1892) in which the secret ballot was
> used in
> that state:
>
> The Australian ballot works like a charm:
> It makes them think and scratch.
> And when a negro [sic] gets a ballot,
> He has certainly met his match.
>
> That was two years after the longest Senate filibuster in
> history up
> to that time had defeated the second strongest voting rights act that
> Congress considered before 1965, the Lodge Fair Elections Bill. (The
> strongest, in most respects, was the Enforcement Act of 1875, also
> defeated by a filibuster.) If the Supreme Court were to strip
> voters of
> the protection of the 1965 Voting Rights Act in the Shelby County
> case,
> a potential South Carolina voter id case, the Kinston or Alabama or
> Arizona or even Texas cases, then future election "reforms" might
> more
> overtly target their racial and partisan objects, as the secret
> ballot
> did more than a century ago.
> Morgan
>
> --
> Prof. of History and Social Science, Caltech
> surface mail: 228-77 Caltech, Pasadena, CA 91125-7700
> phone 626-395-4080, fax 626-405-9841
> home page:< http://www.hss.caltech.edu/~kousser/Kousser.html>
> . . . without the clarity that makes doubt productive,
> historians will never be able to fulfill their highest moral
> responsibility, to build a better world . . .
> -- from "The New Postmodern Southern
> Political History"
> Perfection . . . in any institution is a dangerous myth; there
> is only the repeated correction of imperfections. As long as
> there is discrimination, there will always be more work to do.
> -- from "The Strange, Ironic Career of
> Section 5 of the Voting Rights Act"
>
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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