The Party of Lincoln and the Right to Vote

By Andrew Cohen

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.

THE FEDERAL RESPONSE

Predictably, the Justice Department wasn't impressed with South Carolina's restrictive law. Last August, the Feds, in writing, asked state officials to provide federal investigators with more information about the way in which the new measure would be implemented. How would affected voters be notified of the change in the law, the Justice Department wanted to know, and how would state election officials be trained to know the difference? And why were there apparent differences in the directives relating to the replacement of lost or defaced identification cards?

Within a few weeks, South Carolina had responded. The state's letter of September 13th was a reasonable bit of business but for the fact that the new law could throw nearly a quarter of a million registered South Carolinian voters off the rolls. Three months later, the feds lowered the boom. In a December 23, 2011 letter, Thomas E. Perez, an assistant attorney general, informed South Carolina that it had failed to meet its burden of establishing that its new law would not have a discriminatory effect. Here is the essence of the federal argument:

Put differently, although non-white voters comprised 30.4% of the state's registered voters, they constituted 34.2% of registered voters who did not have the requisite DMV-issued identification to vote. Non-white voters were therefore disproportionately represented, to a significant degree, in the group of registered voters who, under the proposed law, would be rendered ineligible to go to the polls and participate in the election.<.p>

An examination of the county-by-county rates of total registered voters without DMV-identification raises additional concerns. Across the state's 46 counties, the rate of registered voters without DMV-issued identification ranges from a low of 6.3% to a high of 14.2%. Notably, seven counties with the highest percentages of registered voters who lack DMV-issued identification are also among the ten counties in South Carolina that have the highest percentage of voting-age persons who are non-white.

The absolute number of minority citizens whose exercise of the franchise could be adversely affected by the proposed requirements runs into the tens of thousands. According to the state's statistics, there are 81,938 minority citizens who are already registered to vote but who lack DMV-issued identification.

These data showing significant racial disparities in the proposed photo identification requirement are of course as available to the state as they are to the Attorney General. However, both in the state's initial submission and in the subsequent communications between us during the course of our review, the state has failed entirely to address the disparity between the proportions of white and non-white registered voters who lack DMV-issued identification.

South Carolina sued. "The changes have neither the purpose nor will they have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority," wrote Paul Clement, the hired-gun conservative lawyer who handled both the immigration and health care challenges last term at the Supreme Court. "South Carolina's photo identification law does not bar anyone from voting, but merely imposes on voters a responsibility to obtain an approved photo identification card and to bring it to the polls."

THE HEARING

Which brings us to South Carolina v. Holder and the aforementioned E. Barrett Prettyman Courthouse in Washington, scene of so many of the most famous episodes in American legal history. On Monday, the lawyers delivered their opening statements to the three-judge panel (the use of the panel, and the venue in Washington, come from the language of the Voting Rights Act itself). And then the testimony began. The trial is expected to last all week, and, if Monday is any indication, it's likely to be a bumpy ride. Here is how the Associated Press covered the morning session of the hearing:

During morning testimony, state Sen. George "Chip" Campsen III cited examples of fraud that he took into consideration while drafting early versions of South Carolina's law. These included vote buying, voter rolls indicating a woman who showed up at the polls had already voted, and press reports of voters being registered in both South Carolina and North Carolina.

But under questioning from Justice Department attorney Anna Baldwin, Campsen, a Republican, said the examples he gave did not involve the type of fraud that requiring photo identification would address.

"None of the examples you gave in your testimony involved incidents of impersonation?" Baldwin asked.

"Correct," Campsen answered. He also said he could not find cases of voter impersonation in South Carolina, but added that the state lacks the tools to root them out.

At this point, you would think, a reasonable judge might have stopped the proceedings to ask of the witness: Did you folks down there ever consider spending the time and money to investigate the extent of voter fraud in your state before you decided to impose these new voting burdens upon hundreds of thousands of your fellow South Carolinians? And perhaps that's a question someone will answer as the week goes on. In the meantime, the practical impact of the new law is as plain today as it was a century ago. James Rosen and Rebecca Cohen at McClatchy, in their report, offered this exchange:

Campsen, the South Carolina state senator who authorized the law, testified for more than 4 1/2 hours, enduring 90 minutes of tough grilling from Garrard Beeney, a New York lawyer representing national interest groups that have intervened in the case against South Carolina. Among the groups are the NAACP and the American Civil Liberties Union.

In one charged exchange, Beeney ridiculed the claim that blacks without acceptable photo identification would be protected by provisions in the South Carolina law allowing them to sign an affidavit and cast a provisional ballot.

Campsen acknowledged that affidavits must be notarized under separate state law and that notaries charge for their services.

"If you walk in (to a voting precinct) and you have to pay a notary, you don't think that's a poll tax?" Beeney asked in reference to one of the most odious of former Jim Crow laws.

"I don't think they (notaries) would charge," Campsen responded. "I don't think it will be administered that way."

It was precisely this sort of ambiguity in the administration of the new law which convinced the Justice Department to block it. And it is precisely this sort of bureaucratic nuance which allowed Southern states for generations to harass black citizens over the right to vote. Before, the fight was over voter registration. Now, the fight is over whether registered voters may cast a ballot. It's a distinction without a difference when it comes to civil rights. This is why South Carolina struggles even now to justify its law based upon facts or logic. Here's how TPM's Reilly covered Monday's developments at the trial:

Speaking with TPM during a break in the federal trial over whether the law violates the Voting Rights Act, Attorney General Alan Wilson defended its provision that allows voters to use things like military identification and passports to cast a ballot but bans them from using student IDs.

Wilson said the reason was that students were largely "transient" and a school identification card "doesn't prove you're a resident." He said voters using passports and military IDs, even those with out-of-state addresses, were known to be residents of the state because they were registered to vote in the state.

When TPM pointed out that college students who had out-of-state licenses were in the same situation, another attorney on South Carolina's team jumped in to contradict Wilson, insisting the state law was about proving identity rather than residency. After that line of questioning, Wilson said he wouldn't be speaking with reporters about the case until closing arguments on Friday.

Attorney General Wilson, incidentally, is the stepson of Rep. Joe Wilson, the Republican who notoriously shouted "You Lie" during a 2009 speech on Capitol Hill by President Barack Obama. And Friday, incidentally, is the day many court watchers expect a federal court ruling in Texas v. Holder, another Republican challenge to another Justice Department decision to prevent another discriminatory voting law to take place. When it comes to civil rights, and voting rights, the party of Lincoln -- the party of Everett Dirksen -- sure has come a long way.


This article available online at:

http://www.theatlantic.com/national/archive/2012/08/the-party-of-lincoln-and-the-right-to-vote/261588/