[EL] NY Times op-ed (“Voter Suppression’s New Pretext”)

[Joe La Rue]

Sigh. Once again, because some of us actually think that only those who are legally qualified to vote should be allowed to, we must be racists. It gets old. But progressives were successful in convincing many people that the only reason anybody would oppose Mr. Obama and his policies is because of racism. Ms. Winfrey just recently again raised that accusation; for, obviously, the only reason one could possibly disagree with Mr. Obama's policies is because one is racist. No doubt progressives will once again be successful here with their charges of racism too.

It's brilliant strategy: it takes the focus off problematic ideas (i. e., people fraudulently voting ), and casts in a bad light those who would defend the integrity of our elections.

I agree, I suppose, that racism is getting clever at avoiding detection. These days, it seems to me, it is to be found in the minds and hearts of those who take such delight in accusing their political opponents of being racists. They can't argue with ideas. So they resort to name calling; and that, it seems, based on race. That's right: they accuse me of being a racist only because of my skin color. They would not make that accusation against a person of color who, like me, believes that only those who are legally qualified to vote should do so. That seems like the very definition of racism, doesn't it?

Those of you accusing me, and people like me, of racism might be careful looking in mirrors. You just might find a racist looking back at you.

> On Nov 17, 2013, at 4:42 PM, "David A. Holtzman" <David at HoltzmanLaw.com> wrote:
> 
> The New York Times positioned Prof. Hasen’s op-ed right below a powerful graphical and quantitative demonstration (originally published with this) of a Bradley Effect, and a powerful piece by Charles M. Blow, titled “Disrespect, Race and Obama.”  Blow’s piece focuses on backlash to black successes, and has an in-column subhead, “Racism is getting clever at avoiding detection.”  Rick’s op-ed is on partisanship as “Voter Suppression’s New Pretext” (masking race), and has a Times illustration (it’s great, as Rick says below) showing the word “PARTY” largely masking “RACE”.  
> 
> Rick essentially asks for heightened judicial scrutiny of laws that regulate voting.  He writes that federal judges “should hold that when a state passes a law that burdens voters, it must demonstrate, with credible evidence, that the burdens are justified by a good reason and that the laws are tailored to their intended purpose.”  At first read, it’s an appealing and seemingly difficult ask.  Then again, I thought something like that was supposed to be the rule already, because voting is fundamental, sorta.  Maybe there’s a subtlety in there about “when” the state must find or marshal the “credible evidence.”
> 
> And the ask wouldn’t be a cure-all.  Even narrowly-tailored restrictions can inflict wide, and possibly intended, collateral damage.  Plus, party success, or even the success of a particular candidate, can be, to many, a “good reason.”
> 
> Now race is an equal protection matter, and a bad reason to make it harder for people to vote.  Party is an equal opportunity (or equal opportunism) matter, and since so many people are firmly aligned with a party, to them, at least, it’s a good reason for election laws.
> 
> Yet nothing is either-or (good-or-bad) these days.  Felon disenfranchisement burdens racial minorities, probably deliberately.  Still, there must also be a good reason for it, or it wouldn’t be constitutional.  Gerrymandering, have-ID-with-you laws, inconvenient polling places, and no-excuse vote-by-mail, are about BOTH race and party AND MORE because modern political consultants consider all the variables they can.  Consultants thrive on complexity, and would be happy to be your tailors.
> 
> To banish some of this complexity, one thing to do would be to make voter registration universal, automatic, and irreversible.  (Even if somebody renounces their citizenship -- you think after that they’re still gonna vote?)
> 
> The arguments accompanying Rick’s ask have some weaknesses which might be addressed by universal voter registration (another appealing, but non-cure-all, ask).  For instance, even if “it is artificial to separate race and party under current political conditions,” it does not necessarily follow that “outside redistricting, partisanship has no place.”  Just because most of a race prefers one party, we need not shed party designations on ballots, party caucus rooms, “minority” and “majority” designations of parties, other government recognition of (all or some) parties, and party politics in general.  (There might be other reasons to get rid of state support for parties.)  And voters       need not drop the crutch.
> 
> (*In* redistricting, by the way, California recently amended its constitution to minimize partisanship using a citizens’ commission.  The U.S. Supreme Court may have said partisanship in redistricting is ok, but California’s Prop. 11 could be the model for a U.S. Constitutional Amendment to change that.)
> 
> The op-ed says, “Our elections should be conducted such that all eligible voters (and only eligible voters) can easily register, and cast a vote that will be accurately counted”  And Rick calls the aforementioned ask, “my proposal to protect all voters.”  The problem there is, a person isn’t an eligible voter unless she or he is registered to vote, and isn't really a voter until after casting a vote.  So Rick really means *potential* voters in asking for his formulation of heightened scrutiny.  
> 
> Universal registration would largely get rid of that common logical flaw.  Personally, I’d like to see it happen.  In a non-partisan non-discriminatory race-free way.
> 
>   - dah
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>> On 11/15/2013 8:39 PM, Rick Hasen wrote:
>> “Voter Suppression’s New Pretext”
>> 
>> Posted on November 15, 2013 8:27 pm by Rick Hasen
>> I have written this oped for the NY Times.  It begins: “IT’S the latest fad among state officials looking to make voting harder: We’re not racist, we’re just partisan.”
>> 
>> Another snippet:
>> 
>> Shifting the debate away from the “race versus party” question toward protecting voters has many virtues. The Supreme Court isn’t interested in expanding race-based remedies these days, and the Justice Department’s suits against North Carolina, Texas and Wisconsin face an uphill battle. Yet the justices might well find a voter protection principle appealing. In 2012, lower courts started to push back against Republican overreach in voting laws. Richard A. Posner, a federal appellate judge in Chicago, recently expressed doubts about having upheld Indiana’s voter-ID law, which he now sees as a means of voter suppression. The pivotal swing vote on the Supreme Court, Justice Anthony M. Kennedy, also seems troubled by partisan considerations in state election law.
>> 
>> If courts accepted my proposal to protect all voters, the Justice Department would not have to prove some legislators are racists. It would give new life to the goals of the Voting Rights Act and would protect not only minorities, but also other populations — for example, college students, who appear to bear the brunt of voter-ID laws.
>> 
>> If Republican legislatures were full of Don Yeltons who mouth off to “The Daily Show,” proving a racial motivation would be easy. But they are not, and we need a new tool beyond race or party to protect everyone’s voting rights.
>> 
>> I have a fuller discussion of these issues in my forthcoming Harvard Law Review Forum piece, Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere.
>> 
>> The Times piece includes a great graphic.
>> 
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> 
> -- 
> David A. Holtzman, M.P.H., J.D.
> david at holtzmanlaw.com
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