False Equivalence in the New York Times' Voting Rights Story

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Just a short Sunday post here to make a few points about the current kerfuffle over a recent The New York Times' piece on voting rights and voter fraud. The piece was posted last Sunday, led the paper Monday morning, and immediately generated reader criticism because it seemed (and seemed to me as well) to offer a significant degree of "false equivalence" between the factual and legal positions taken by the folks who support restrictive new voting laws and the factual and legal positions taken by the folks who are challenging those laws.

Because of this reaction, the voting rights piece became a subject of the paper's "Public Editor" column which appears in today's paper. "It ought to go without saying, but I'm going to say it anyway," wrote Margaret Sullivan, the paper's new ombudswoman. "Journalists need to make every effort to get beyond the spin and help readers know what to believe, to help them make their way through complicated and contentious subjects." Amen. But by that earnest standard the Times' piece on voting rights failed.

I agree with much of what Kevin Drum has written on the topic over at Mother Jones. He focused as much on the defensive reactions of the reporter and editor on the story as he did on the story itself. For example, Times' national editor Sam Sifton was quoted, in today's piece, as saying: "There's a lot of reasonable disagreement on both sides... It's not our job to litigate it in the paper. We need to state what each side says." That's absolutely right as far as it goes. But like the original piece itself it's not nearly enough. Since Sifton used the word "litigate" I'll start there, with some of the recent litigation that has surrounded the new laws.

The Times' piece did not mention, for example, the fact that Pennsylvania conceded during its voter ID trial that there was no in-person voter fraud in the state and that none was expected in the 2012 election. The state did so by means of a stipulation. Nor did the Times' piece mention the testimony of a Republican lawmaker in the South Carolina case (which still is pending in federal court in Washington) who told a federal panel of judges that there was no evidence of in-person voting fraud in South Carolina and that the new law enacted there wouldn't stop the sort of voter fraud that is occurring.

From a political perspective, there may be a level of "equivalence" in the number of people who either support or oppose these laws. Clearly the issue has become sharply partisan. But from a legal perspective, at least so far, it has been a rout in favor of those who believe the new laws would unlawfully disenfranchise registered voters. In other words, there is no "equivalence" in the way judges so far have evaluated these laws. So another troublesome aspect of the initial report was the implication it gave that more than one court has recently endorsed the restrictive voting laws. For example, from a high graph in last week's piece:

In the last few weeks, nearly a dozen decisions in federal and state courts on early voting, provisional ballots and voter identification requirements have driven the rules in conflicting directions, some favoring Republicans demanding that voters show more identification to guard against fraud and others backing Democrats who want to make voting as easy as possible (my emphasis).

I may be missing something but I can recall only a single substantive ruling "in the last few weeks" that has gone the way of the Republicans -- the Pennsylvania ruling now before that state's supreme court. By contrast, during the week of the Republican National Convention alone, I counted eight federal judges, including several Republican appointees, who voted down restrictive Republican election measures (including Texas' patently discriminatory redistricting plan). The score that week was 8-0. If there has been a Republican comeback in court since then on voting rights cases, I'm not aware of it.

Today's Times' piece, which looks broadly at "false equivalence," includes a quote from Ethan Bronner, the veteran and well-respected journalist who wrote the initial Times' report, who conceded that the lack of proof of in-person voter fraud should have been included in his story. This is a good start. "False equivalence" in legal reporting is unhelpful even when the courts are split 50-50 on a particular proposition. Here, they aren't. And they haven't been. Times' readers are simply telling the newspaper that they expect better on stories like this. And they should.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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