[EL] Browne-Dianis/Pildes comments
George Korbel
korbellaw at hotmail.com
Fri Aug 23 16:30:11 PDT 2013
Hold the phone. While at first blush the comment does sound strained-- think about it. In Texas we never had literacy tests and such, we just prohibited African Americans from voting in the Democratic Primary– the only game in town. To the extent that Hispanics tried to vote, they were often treated as African American. One of the cases that was decided by the Texas Supreme Court immediately prior to Brown held that Hispanics were not Black and so did not have to so to the Black Schools.
Consider that before the original Voting Rights Act authorized litigation over the Poll Tax, if I just paid a buck and a half I could receive my poll tax which would allow me to vote. There were drives all over the state by groups such as the American GI Forum, LULAC and NAACP. Money was available to help defray the cost of voting. It was not easy but it was doable even doable on a wholesale basis.
Of course the Poll tax was long gone when the special provisions of the Voting Rights Act were extended to Texas in 1975. We had permanent voter registration where I could register in Schools, at Fiestas, Bar B Que cook offs, menudo eating contests, outside High School Football games or even leaving Church on Sunday. And I could conduct a voter registration drive anywhere and everywhere I wanted. Groups such as the Southwest Voter Registration Project took that show on the road to every Middlesex village and farm
But that was then. And this is Now. Now if one does not have a state issued id and there are hundreds of thousands of registered voters who don’t, one has to get an id. These are primarily the poorest, least educated and most disenfranchised of our citizens. To vote he or she must get a state issued identity card.
To get the card we have to present documents including a birth certificate which runs into the $30.00 range. I don’t know about you but if my wife didn’t keep track of my birth certificate, I would loose it and have to spring for the thirty bucks. I can tell you from experience my clients do not usually have a birth certificate handy.
Then after buying the birth certificate the person would have to travel up to 100 miles in some areas of Texas to get the identity card. Or worse yet if he or she lived in Houston, there would be the incredibly poor bus transportation to get to a location where a voter id was available. I forgot to tell you that the locations are inconvenient. I guess I presumed you knew that. The more urbane of you will recall Loop 610 in Houston which seems to go on for ever. There is no place within Loop 610 to get an identity card. The bus trip would take at east an hour and even where there is bus transportation available the sites are usually a distance from the place where the person would be dropped off by the bus. But worst of all, I have spent up to 6 hours renewing my Driver’s License or waiting so that my Daughter could get hers. So one would have to add a day of lost time. The pattern is played out in Dallas and the rest of our urban areas.
I think $30.00, a two hour bus adventure in the Houston heat and traffic topped off by a 6 hour wait at a DPS office all the time wondering if I had paid all of my traffic tickets is more difficult than the registration procedures in effect when the Special Provisions of the Voting Rights Act first was applied to Texas– when I could just register on my way out of church on Sundays.
I have practiced civil rights law in Texas since 1971 and this is the biggest impediment to voting I have ever seen. But that is not the half of it. One of our Urban Voter administrators estimated that based on computer runs by the Texas Secretary of State the name as printed on the Voter ID and on the Registration certificate sufficiently differs on half of our 14, million voters so that they will have to cast a provisional ballot. So what is the problem. All they have to do is go to the court house within a few days after the provisional vote was cast and show the documents-- a birth certificate etc. and their vote will be counted. Another Houston Bus adventure. So that in order to register and vote half of our registered voters would have to for all intents and purposes reregister even if he or she had a Driver's license. In other words a voter purge of 7 million voters. At least it does not cost a voter anything to reregister but the time and inconvenience. Our cash strapped Counties will have to pay the freight for all of this purge and reregistration. To make matters worth a significant percentage of the voters have voter registration certificates with correct information and driver's licenses that are not. It is not free to make those changes.
One of the suggestions has been to encourage persons to vote by mail where they qualify so that the differences on the state id and on the registration are not even considered. Persons in nursing homes in particular have long expired driver's licenses and likely no birth certificate. How will they vote except by mail where one does not have to show an id. To me this is real irony. All of the significant fraud I have ever seen is in the mail balloting-- vote harvesting we call it. None is in the in person on election day voting. So go figure.
I might add that history has come ful circle. One of the reasons that Congress extended the special provisions of the voting rights act to Texas in the middle 70s was because of an impending voter purge. The first Section 5 objection was to that voter purge. The first Injunction under Section 5 was to enjoin that purge. To me in retrospect, that purge would have been much less problematic than the implementation of this Voter ID procedure.
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From: pildesr at exchange.law.nyu.edu
To: lminnite at gmail.com; hchamber at richmond.edu
Date: Fri, 23 Aug 2013 16:08:09 -0400
CC: law-election at uci.edu
Subject: Re: [EL] Browne-Dianis/Pildes comments
I agree that, as a general matter, marginal changes in turnout levels do not directly measure the extent to which significant barriers to participation are present (though note that Section 4/5 of the VRA used turnout levels as one of its two proxies for concerns about unujustified barriers to participation). There can be other confounding factors. My point was limited to the 2012 election. At some point, turnout is so high it requires a lot more convincing evidence that there were unusually high barriers to participation. Long lines were a problem in some places (itself partly a product of high turnout); my analysis of the causes for that is here. But since Ms. Dianis did not, in fact, say, the 2012 election was the hardest one in decades for African Americans to vote and have their votes counted in, the discussion about 2012 that I initiated is moot.
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lorraine Minnite
Sent: Friday, August 23, 2013 9:33 AM
To: Chambers, Hank
Cc: law-election at UCI.edu
Subject: [EL] Browne-Dianis/Pildes comments
With Ms. Browne-Dianis comments clarified, the issue alluded to by Prof. Chambers remains. I agree with Prof. Chambers; turnout and voter suppression in the form of rule changes that constrict rather than expand opportunities to exercise voting rights are not connected in simple ways. As Prof. Chambers suggests, it is entirely possible for black turnout to expand in light of voting rule changes that demonstrably make it more difficult for some black voters to vote. Whether turnout goes up or down in any specific election is not the best measure of the impact of a voting rule change such as adopting a more restrictive photo ID requirement.
In my view, it would be useful to policymakers and to the public's understanding of the issues to require impact statements for voting rule changes the way we do in other policy arenas, specifically, environmental policy. These assessments could include analyses of the cost of the rule change, following pioneering work by the Brennan Center on the cost of implementing voter ID rules; the expected impact on various voter groups, especially those whose turnout rates are lower than average (i.e., low income voters, youth, the infirm elderly, the disabled, new citizens, first-time voters, etc.); the risk of voter fraud; and importantly, the impact on election administrators and the difficulty of administering an ever-changing set of detailed rules of differential application.
Lori Minnite
Sent from my iPad
On Aug 23, 2013, at 11:14 AM, "Chambers, Hank" <hchamber at richmond.edu> wrote:
Professor Pildes may or may not be correct about the accuracy of the statement attributed to Ms. Dianis. However, I do not see how turnout numbers necessarily disprove that 2012 was a tougher election for African Americans to have their votes counted than in any other recent election. It is possible that even though it may have been harder for African Americans to vote, cast a ballot and have their votes counted than in the recent past, African Americans were motivated to such an extent and African Americans persevered to such an extent that African American turnout was higher than white turnout-Hank
Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hchamber at richmond.edu
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Pildes, Rick [pildesr at exchange.law.nyu.edu]
Sent: Thursday, August 22, 2013 4:15 PM
To: Rick Hasen; law-election at UCI.edu
Subject: [EL] (no subject)
I am not going to post this, but to help try to keep things in perspective, I want to point out on the list that it’s not just the headline in the Daily Beast story that lacks rational perspective. That story also quotes Judith Browne Dianis, co-director of the Advancement Project, as saying that it was “harder for African-Americans to ‘vote, cast a ballot, and have a vote counted’ in 2012 than in any other recent election.
Of course, African-American turnout in 2012 was the highest in modern American history. Indeed, for the first time, the African-American turnout rate exceeded the white turnout rate. http://www.theatlanticwire.com/politics/2013/05/black-turnout-2012-state-by-state-maps/65053/. And keep in mind that early voting, for example, didn’t even exist in places like Ohio or Florida before 2004.
I’m not going to post because it is true that there were more laws enacted in the two years or so leading up to the election than in previous recent elections that could have made access more difficult for legitimate voters. Most of these laws were blocked or postponed; we do not know how much of an effect on turnout (of black or white) voters there would have been had all these laws been in effect (though newer voter ID laws were in effect in Georgia and Indiana). But it could not be more wrong to say that it was “harder for African-Americans to ‘vote, cast a ballot, and have a vote counted’ in 2012 than in any other recent election. Yes, we need to fix problems of long lines and many other unjustified obstacles. But statements like this one do a disservice to public discussion and are likely to get recycled if not flagged.
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Thursday, August 22, 2013 3:46 PM
To: law-election at UCI.edu
Subject: [EL] more news 8/22/13
Will DOJ Seek Preliminary Injunctive Relief in Texas Voter ID Case? Will It Get It?
Posted on August 22, 2013 12:44 pm by Rick Hasen
Remember this exchange from the oral argument in Shelby County?
JUSTICE KENNEDY: Well, I — I do think the evidence is very clear that Section — that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965. No doubt about that.
GENERAL VERRILLI: And I think it remains true -
JUSTICE KENNEDY: But with — with a modern understanding of — of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it’s not clear — and — and with the fact that the government itself can commence these suits, it’s not clear to me that there’s that much difference in a Section 2 suit now and preclearance. I may be wrong about that. I don’t have statistics for it. That’s why we’re asking.
GENERAL VERRILLI: I — I don’t — I don’t really think that that conclusion follows. I think these under the — there are thousands and thousands of these under-the-radar screen changes, the polling places and registration techniques, et cetera. And in most of those I submit, Your Honor, the — the cost-benefit ratio is going to be, given the cost of this litigation, which one of the — one of the reasons Katzenbach said Section 5 was necessary, is going to tilt strongly against bringing these suits.Even with respect to the big ticket items, the big redistrictings, I think the logic Katzenbach holds in that those suits are extremely expensive and they typically result in after-the-fact litigation.
Now, it is true, and the Petitioners raised the notion that there could be a preliminary injunction, but I really think the Petitioner’s argument that Section 2 is a satisfactory and complete substitute for Section 5 rests entirely on their ability to demonstrate that preliminary injunctions can do comparable work to what Section 5 does. They haven’t made any effort to do that. And while I don’t have statistics for you, I can tell you that the Civil Rights Division tells me that it’s their understanding that in fewer than one-quarter of ultimately successful Section 2 suits was there a preliminary injunction issued.
So I don’t think that there’s a basis, certainly given the weighty question before this Court of the constitutionality of this law, to the extent the argument is that Section 2 is a valid substitute for Section 5, I just don’t think that the — that the Petitioners have given the Court anything that allows the Court to reach that conclusion and of course…
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Posted in Department of Justice, Supreme Court, voter id, Voting Rights Act | Comments Off
“Voting Wars Redux in Texas”
Posted on August 22, 2013 12:24 pm by Rick Hasen
CJR on resources for journalists.
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Posted in The Voting Wars | Comments Off
Question of the Day: Is Attack on VRA Section 2 Next?
Posted on August 22, 2013 12:09 pm by Rick Hasen
“Wonder if Texas will argue if sec[tion] 2 is unconstitutional.”
–Franita Tolson
Indeed, this has been one of my main worries about the next shoe to drop.
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Posted in Supreme Court, The Voting Wars, Voting Rights Act | Comments Off
Ari Berman on DOJ’s Texas Moves
Posted on August 22, 2013 11:48 am by Rick Hasen
Here, at The Nation.
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Posted in Department of Justice, election administration, The Voting Wars, Voting Rights Act | Comments Off
“Was 2012 The Worst Year Ever for Voting Rights?”
Posted on August 22, 2013 10:56 am by Rick Hasen
The Daily Beast reports.
Very good piece but terrible headline. Think of any year before 1965′s enactment of the Voting Rights Act, for example.
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Posted in election administration, The Voting Wars | Comments Off
The Present Day Ramifications of the Supreme Court’s 1964 Decision on Designing Democratic Institutions in Colorado?
Posted on August 22, 2013 10:55 am by Richard Pildes
For those of you who teach (as I do) the amazing one-vote, one-person case of Lucas v. The Forty-Fourth General Assembly of the State of Colorado, or for others wishing to understand urban v. rural conflicts in the design of democratic institutions, this Washington Post story today is worth a look — with a nice graphic image.
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Posted in Uncategorized | Comments Off -- Rick HasenChancellor's Professor of Law and Political ScienceUC Irvine School of Law401 E. Peltason Dr., Suite 1000Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
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