[EL] True the Vote report

Wed Feb 27 14:33:58 PST 2013

True the Vote provides a nice report with information on voter ID laws and the politics surrounding these laws.  They do a service by aggregating the number of voter suppression reports by states and county.

That's the good news.  The bad news is that their conclusions about the relationship between voter ID and turnout are wrong, or more generously, unsupported by the evidence.

The report compares turnout in states in 2008 and 2012 and attributes EVERY CHANGE to the existence (or not) of a voter ID law.

Nothing else is considered, including those things that every observer knows are the primary drivers of voter turnout: the battleground status of the state, the competitiveness of other campaigns in the state, and overall campaign spending and election activity.

Compare two of the states they highlight: Colorado, Florida, Nevada, North Carolina, and Ohio.   In every state, total campaign spending was substantially higher.  In every state save one (Nevada) the ratio of campaign spending was much closer, in some cases dramatically so.

Campaign spending in 2012: http://www.cnn.com/ELECTION/2012/campaign-tracker/ and in 2008: http://www.cnn.com/ELECTION/2008/map/ad.spending/

I don't know what the impact of voter ID laws were on turnout, but I am confident that the True the Vote report doesn't shed much light on the question.

---
Paul Gronke                Ph:  503-517-7393
			               Fax: 734-661-0801

Professor, Reed College
Director, Early Voting Information Center 3203 SE Woodstock Blvd.
Portland OR 97202

EVIC: http://earlyvoting.net

On Feb 27, 2013, at 1:41 PM, Rick Hasen wrote:

> True the Vote Issues Report: “The 2012 Voter Suppression Myth”
> 
> Posted on February 27, 2013 1:33 pm by Rick Hasen
> Posted here.
> 
> <share_save_171_16.png>
> Posted in election administration, The Voting Wars | Comments Off
> Interesting DOJ/FEC Split in Danielczyk Case Raises Tricky Question for Election Lawyers
> 
> Posted on February 27, 2013 1:32 pm by Rick Hasen
> See this post at Inside Political Law.
> 
> <share_save_171_16.png>
> Posted in campaign finance, Department of Justice, federal election commission | Comments Off
> “Contractor Contribution Ban Defended by Watchdogs in Appeals Court Filing”
> 
> Posted on February 27, 2013 1:29 pm by Rick Hasen
> Press release: “Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Wagner v. FEC opposing an effort to overturn the 70-year-old ban on campaign contributions by federal contractors. The case is currently on appeal to the U.S. Court of Appeals for the District of Columbia after a federal district court upheld the ban in November of 2012.”
> 
> <share_save_171_16.png>
> Posted in campaign finance | Comments Off
> More Early Oral Argument Stories
> 
> Posted on February 27, 2013 1:24 pm by Rick Hasen
> Ari Berman at the Nation: “It quickly became clear inside the courtroom that there are four votes to uphold Section 5 and four votes to strike it down. Justice Kennedy, as is so often the case, appears to be the swing vote, although he certainly leaned toward the conservatives.”
> 
> Bob Barnes for WaPo: “The Supreme Court’s conservative justices strongly suggested Wednesday that a key portion of the Voting Rights Act is no longer justified and the time had come for Southern states to be freed from special federal oversight.”
> 
> David Savage for LA Times: “Justice Anthony M. Kennedy, whose vote may be decisive, said the states deserved to be treated equally and that Congress did not have reason to continue a law that puts the South under a special scrutiny.”
> 
> Richard Wolf for USA Today: “It’s easy to go broke guessing on the outcome of any Supreme Court argument,” said Edward Blum, director of the Project on Fair Representation, which solicited the challenge to the law. But he said the questions from Roberts and others “highlighted the justices’ skepticism about the differences in discrimination between the covered and non-covered jurisdictions. Those differences simply don’t exist any longer.”
> 
> Lyle Denniston for SCOTUSBlog: If Kennedy believes that there is no way to justify any longer that kind of oversight of nine states that have to do the most to obey the 1965 law, that law may well be doomed.   But it also was Kennedy who left the impression that he might be willing to go along with a potential way to short-circuit the case of Shelby County v. Holder, and allow the law to survive for some time more.
> 
> Andrew Cohen for The Atlantic: It never shocks me when Denniston is correct. I certainly wouldn’t bet against him. But my sense is that there will be no last-minute vote switch this time. There will be no ideological compromise. The Court won’t exercise judicial restraint in the face of clear legislative intent. In other words, it doesn’t matter that the Senate renewed the law by a vote of 98-0 in 2006. It doesn’t matter that the House of Representatives passed it by an enormous margin as well or that President George W. Bush held a signing ceremony. This Court clearly has had it in for this law for years now, and will, within the next four months, gut its most effective provision.
> 
> <share_save_171_16.png>
> Posted in Supreme Court, Voting Rights Act | Comments Off
> Pildes: Did Congress Abdicate Its Responsibility to Update the Voting Rights Act?
> 
> Posted on February 27, 2013 1:12 pm by Rick Hasen
> The following is a guest post from Rick Pildes:
> 
> In light of today’s oral argument concerning the constitutionality of Section 5 of the VRA, I remain deeply disappointed that Congress did nothing in 2006 either to update the scope of Section 5′s coverage or to explain why it continued to make sense to continue to cover all the areas (and only the areas) first put under Section 5′s unique regime in the 1960s (or, at latest, 1975).  Congress’ failure to do so now appears likely to be the basis for a Supreme Court decision that will hold Section 5 unconstitutional, to the extent oral argument foreshadows outcomes.
> 
> The House did not even consider evidence comparing race and voting issues in the covered and non-covered jurisdictions; it did not seem to consider these comparisons necessary or relevant.  The Senate Judiciary Committee was certainly told in 2006 that the failure to update the Act would put it in constitutional jeopardy.  But even there, the only major piece of evidence comparing the covered and non-covered jurisdictions before the Senate was “the Katz study,”  not designed for this purpose in the first place, and which subsequent academic work (here, here and here) has shown does not provide significant evidence that distinguishes between the covered and non-covered areas.  To be sure, meaningful distinctions might exist between covered and non-covered areas, or between some of the covered areas and those not covered.  But the record before Congress was simply not constructed with this comparative question very much in mind, let alone with that question being a central focus of the congressional process.
> 
> So why did Congress not look in more detail at what was going on in both the covered and non-covered areas and modernize Section 5, instead of simply extending Section 5 for another 25 years unchanged in coverage?
> 
> The actual answer is realpolitik:  it was politically easier for Congress to simply reaffirm the status quo, rather than confront the difficult policy and political questions posed by making judgments about where problems of race and voting rights were most acute today (are Ohio and Pennsylvania similar today to Virginia and North Carolina?).  As I wrote at the time in the Yale Law Journal online, in a short essay called Political Avoidance, Constitutional Theory, and the Voting Rights Act, by failing to update the Act:
> 
> Congress has, whether intentionally or not, in effect thrown down a gauntlet to the Court. The renewed VRA . . . makes no concessions to the[Court's] post-1982 Boerne doctrines nor to the social, political, and institutional changes since 1982. . . .  Section 5 stands at the intersection of race-conscious policymaking and federalism, the latter in the unique context of regionally specific legislation; in each of these domains, the Court has insisted  that legislation rest on an adequately documented foundation. [R]ealpolitik provides the best explanation for why Congress left the VRA’s essential structure and coverage unchanged. The question waiting in the wings is whether realpolitik provides an adequate justification when the Supreme Court confronts the inevitable constitutional challenge to the power of Congress to reenact the distinct coverage regime of section 5 for another twenty-five years.
> 
> Similarly, Professor Nate Persily, writing about the legislative process in 2006, concluded that any debate “about the purpose and utility of section 5 itself . . . likely would have led to the complete unraveling of the bill.”
> 
> If today’s argument accurately predicts the outcome, it seems to suggest that realpolitik is going to be an insufficient explanation to meet a majority of the Court’s judgment about what constitutional doctrine requires in this area.
> 
> Rick Pildes
> 
> <share_save_171_16.png>
> Posted in Supreme Court, Voting Rights Act | Comments Off
> No Hope: Reading the Tea Leaves in the Voting Rights Case
> 
> Posted on February 27, 2013 1:05 pm by Rick Hasen
> Yes, it is true that most of us (including me) predicted the Supreme Court would strike down section 5 of the Voting Rights Act back in 2009 in the NAMUDNO case.  In that case, however, the Court punted, with a serious warning to Congress (not heeded to fix the Act).  And we all remember Jeffrey Toobin running to CNN after the oral argument in the health care case to predict it would fall.  It didn’t, as Chief Justice Roberts blinked.  But I’ve read the transcript from today’s oral argument and I have no hope that the Voting Rights Act will continue in its current form after the Supreme Court is done with it in the Shelby County case.
> 
> So why will things be different this time?
> 
> First, there’s the issue of respect for the Supreme Court. In the conservative Justices’ minds, there seems no doubt that the Court is miffed that Congress didn’t fix the Act’s (in their view) outdated coverage formula after NAMUDNO. Justice Kennedy seems to think the reason Congress didn’t update in the first place is that they didn’t want to take the time or were too lazy.  That’s not it at all—it is that it is hard to come up with a politically acceptable new coverage formula which would pass in the current Congress.  (Justice Scalia for his part believes that simply overturning the VRA would be a radioactive move for politicians, something I believe is no longer true—witness Rick Perry dissing the Voting Rights Act section 5 during a Republican presidential debate and getting nary a mention.)  Congress had four years to react to NAMUDNO and did nothing.
> 
> Second, the real action here in this case is with Chief Justice Roberts or Justice Kennedy. (Alito and Scalia expressed clear hostility to the law, and Thomas already in NAMUDNO said it was unconstitutional.) The thought that the Chief Justice would blink (or be a “statesman”) not once (in NAMUDNO), not twice (in the health care case), but thrice in four years seems unbelievable. And this is Roberts’ signature issue.  Remember, he’s the Justice who said that it is “a sordid business” to divvy people up by race, and that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”  Since he was in the Reagan administration he’s supported a weakened Voting Rights Act.  And now he’s given Congress time to fix the problem and they haven’t.
> 
> And that leaves Justice Kennedy.  Liberals always pin their hopes on him, but they are usually disappointed (outside the context of social issues such as (sometimes) abortion and gay rights). But he’s been very hostile to the VRA and very strong on federalism and the sovereignty and dignity of states. One might say that is a signature issue for him. Reading his questions at oral argument, he is clearly troubled by the Act, and believes it is outdated (claiming that the Marshall Plan was great for then, but this is now).  Justice Kennedy seems to believe, wrongly in my view, that section 2 and the use of preliminary injunctions, could do the same work as section 5.  In a future post I’ll explain why this is wrong (the burden of proof is different, the substantive standard is different, and the threat of section 2 litigation is not the same bargaining chip as Section 5 is).
> 
> The one area of hope which some observers see from Justice Kennedy in today’s oral argument is the suggestion that even if the Act is not constitutional as to some covered jurisdictions, Alabama would be covered under any provision of the Act. I think people are overreading this exchange. Justice Kennedy did not seem convinced—it seems more likely he would buy Justice Scalia’s point that if Congress wants to cover Alabama, let it pass a statute covering Alabama and then justify it.
> 
> Let me be clear. If Justice Kennedy or the Chief want to use this as a way to get around a finding of unconstitutionality they clearly could. After all, the Justices in NAMUDNO all (aside from Thomas) engaged in a disingenuous act of statutory interpretation to avoid striking down the Act last time. But this time what is different is that I don’t see Kennedy or the Chief having any appetite to do so.
> 
> <share_save_171_16.png>
> Posted in Supreme Court, Voting Rights Act | Comments Off
> ELB is Back Up!
> 
> Posted on February 27, 2013 1:04 pm by Rick Hasen
> So sorry for the inconvenience. ELB’s servers were just overwhelmed with requests to visit the site following today’s oral argument in the Shelby County.  We’ll be moving to a better server soon.  And I’ve created electionlaw2.blogspot.com if the site goes down again until we transition.
> 
> Thanks for your patience.
> 
> <share_save_171_16.png>
> Posted in Uncategorized | Comments Off
> More Early Reports from Oral Argument
> 
> Posted on February 27, 2013 9:50 am by Rick Hasen
> [Apologies if you have trouble getting through.  A link from HuffPo seems to have temporarily overwhelmed the servers.]
> 
> Adam Liptak NYT:  A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members. Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”
> 
> Ryan Reilly HuffPo: Justice Antonin Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the “perpetuation of racial entitlement,” saying that lawmakers had only voted to renew the act in 2006 because there wasn’t anything to be gained politically from voting against it. “Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?” Scalia wondered during oral argument in Shelby County v. Holder. He said that the Voting Rights Act had effectively created “black districts by law.”
> 
> Sahil Kapur TPM: Oral arguments showed a sharp divide along ideological lines and suggested that the conservative majority is strongly inclined to overturn Section 5 of the half-century-old law.
> 
>  
>  
> <share_save_171_16.png>
> Posted in Supreme Court, Voting Rights Act | Comments Off
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
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> rhasen at law.uci.edu
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