The Party of Lincoln and the Right to Vote

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As the fight over a constitutional right shifts to a dubious South Carolina measure, the GOP doubles down on restrictive voting laws.

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Delegates at the RNC convention in Tampa. (Reuters)

Who says federal judges don't have a sense of irony and timing? While Republicans convene in Tampa this week to figure out how to win more votes, a three-judge panel of jurists convenes in the nation's capital to evaluate the legality of a new state law that's designed to ensure that fewer registered voters are permitted to cast a ballot. The Party's convention in Tampa, the sound and the fury, the pomp and the circumstance, is all about Plan A. What's happening this week at the E. Barrett Prettyman Courthouse in Washington, D.C., is all about Plan B.

Last week, you may recall, the civil rights battle centered on Ohio, where Republican officials were trying to defend their decision to cut early-voting hours leading up to the November election. The week before that, the fight for voting rights was in neighboring Pennsylvania, where Republican officials were trying to defend the virtues of a restrictive new voting law after their House Majority leader was caught on tape confessing that the new law "is gonna allow Governor Romney to win the state of Pennsylvania." This week, the civil rights battle of our age comes home to the South -- to South Carolina.

The names, places, and disenfranchisement figures may be a little different, but the federal lawsuit styled South Carolina v. Holder is a familiar one. All over the country, in dozens of states, Republican lawmakers, fueled by the corporatist American Legislative Exchange Council, have enacted legislation aimed at curing voter fraud. No one has yet proven any measurable in-person voter fraud, mind you. But the politicians and bureaucrats supporting the new restrictions argue this doesn't matter; the mere possibility of future voter fraud is a good enough reason to burden voters.

Like Texas and Florida, South Carolina has sued the federal government to force the feds to permit the restrictive new law to take effect. Late last year, the DOJ's Civil Rights Division refused to grant "pre-clearance" to South Carolina because of concerns that the new law would impair minority voting rights. The Feds have the power to do this, for now anyway, under Section 5 of the Voting Rights Act -- the statutory provision that was enacted in 1965 and subsequently reauthorized by George W. Bush but which now looks likely to be struck down this coming term by the United States Supreme Court.

THE TAMPA TWO-STEP

Anticipating this week's litigation, aware that the issue of voting rights is a big deal this election season, the GOP's platform committee in Tampa last week officially endorsed these new voting laws as the national policy of the Republican Party. Doubling down, the GOP also endorsed even-more-restrictive voting procedures that would require already-registered voters to show proof of citizenship before voting. "I think it's important that the Republican Party stand firmly behind the principle that we verify citizenship," said Kris Kobach, the Republican Secretary of State from Kansas.

Here, then, is the direct connection between the "show us your papers" provisions of the Arizona immigration law (and its copycats all across the nation) and these restrictive voting laws. In the first case, the law is designed to identify and root out illegal immigrants. In the second case, the law is designed to identify and root out illegal voters. The difference, however, as a matter of fact and of law, is that restrictive voter laws are aimed not just at American citizens but at the narrower group of registered voters who have been fairly voting for years with the identification they already have. They've already shown their papers.

Last week, Ryan J. Reilly, of Talking Points Memo, offered rich detail about the platform story:

GOP delegates supporting the amendments alleged that Democrats were stealing elections through voter fraud.

"I think we have to acknowledge and be bold that people on the progressive side are willing to cheat in ways we could never before fathom," Tamara Hall from Montana said. Hall said she had a disabled daughter who cannot read, write, count or tell time who voted without her permission.

"For cookies and milk they had her vote," Hall said. "You have no idea the extreme these people will go to to steal an election."

With these words the party of Lincoln becomes the party of Tamara Hall. Republicans are convinced that they have both law and public opinion on their side. After all, doesn't everyone agree that elections should be as free as possible from voter fraud? And didn't the United States Supreme Court, in a 2008 case styled Crawford v. Marion County, rule that voter ID laws are valid even if they stem from partisan motives? What's so hard about getting a driver's license? Why do people need extra hours, on weekends, to get to the state offices for the new identifications? I've done it -- why can't everyone do it?

So far, It's been a brilliant bit of political marketing because it blends lofty aspirations -- with our technology, why shouldn't our elections be more accurate? -- with low currents of racism and prejudice. It's a mix of misplaced good intentions and alarming paranoia. The noble can endorse the measures by saying they will prevent fraud. The ignoble can see them for the votes they may prevent. No one, however, seems able or willing to step forward and identify, with any degree of reliable evidence, any measurable in-person voter fraud anywhere in America. No one. At least not yet.

"AN UNSPOKEN TRUTH"

Today, in South Carolina, registered voters do not have to present a photo identification to vote. They can use their driver's license, if they have one, or a non-driver photo identification, if they have one, or a voter registration card combined with the voter's signature on the poll list. The new South Carolina law, enacted in 2011, would require voters to present one of five different kinds of photo identification -- and would require hundreds of thousands of registered voters in the Palmetto State (white and black) to get a new form of identification in order to have their votes counted this fall.

When South Carolina notified the Justice Department last June that the state's new photo identification law had been passed, when state officials began to undertake the "pre-clearance" requirement contained in the Voting Rights Act, the state's attorney general wrote: "This office is not aware that the changes in the Act affect any minority or language groups adversely." Attached to the initial Section 5 submission to Washington was an extraordinary, one-page letter by GOP state representative Alan D. Clemmons. To the state's attorney general, in support of the legislation, Rep. Clemmons had written:

First let me say that it is an unspoken truth in South Carolina that election fraud exists. Though no one likes to speak about it, it is well known in politics that elections can be won and lost, based not on who votes but who votes for whom. Opponents of this bill often claimed that, based on their research, there were no instances of voter impersonation prosecuted in South Carolina, claiming that [the law] was a solution in search of a problem. In my years in South Carolina politics I know quite the opposite is true, as do opponents of this or other Voter I.D. legislation.

Just imagine what a different country America would be if our courts of law accepted as admissible evidence "unspoken truth" that "no one likes to speak about." Just imagine how easy it would be for lawmakers to enact and then justify their measures if all they had to do was rely upon "all their years" in local politics. What a slender reed upon which to justify significant new burdens on registered citizens who have accurately voted for decades. Ari Berman offers up a great quote and comeback in his recent work on this topic for The Nation:

Find me those people that think that this is invading their rights," said South Carolina Governor Nikki Haley, "and I will go take them to the DMV myself and help them get that picture ID." Yet given the number of registered voters in South Carolina who lack the new voter ID, transporting each one to the DMV would take Haley quite some time--seven years, four months, three weeks and five days, Think Progress calculated.

Whenever I write about this topic, the reader reaction is always: "I have to show my identification every day. What's the big deal?" But that's not what these laws are about. No one, in South Carolina or elsewhere, votes without first establishing their ID. The central question instead is how far these states may go to force registered voters, who have voted without incident for years, to obtain new forms of identification. Why don't poor people have driver's licenses? Because they can't afford cars. There is a constitutional right to vote -- men and women have died over it. There is no such right to drive.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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