Money, Power, Ruses, and the Right to Vote

The combination of these two trends suggest the makings of a remarkable shift in voting power. The people who are tripping over each other to defend the election rights of corporate interests, or special interests, the folks who say there should be more money as "speech" in elections, are the very same people who say that they must protect the integrity of the vote. They say they must root out even the type of "voter fraud" they concede they cannot find by making the old and the infirm, minorities and students, bear the burden of traveling to state offices to pay for new identification cards they have never before needed.

EVIDENCE

The right to vote, under the Constitution and federal statutory law, is not the same as the right to speak under the First Amendment and I am not making any doctrinal argument to the contrary. The standards are different. The precedent is different. The text of the governing law is different, obviously. Citizens United rests on a different branch of the tree than does the Supreme Court's 2008 decision in Crawford v. Marion County, the Indiana case in which the justices opened the doors to all these restrictive voter laws all around the country. But the two cases, and the way they've been interpreted subsequently, do have certain common themes.

One is the de-emphasis on evidence. When the Supreme Court this spring summarily rejected a Montana case that challenged the factual premises of Citizens United, when the five conservative justices behind the Citizens United ruling reversed a Montana Supreme Court ruling without even bothering to hold a hearing on the matter, the Court did so with a flip phrase--Montana had "failed to meaningfully distinguish" its case from the Citizens United case. That was it. The Court's conservatives weren't at all interested in evaluating how real evidence "on the ground" interacted with the logic of their recent precedent.

Rendering evidence irrelevant also is a theme in the Crawford case. There, the justices declared that state lawmakers did not need to prove actual voter fraud in order to justify the burden of requiring registered voters, American citizens, to get new forms of government identification. The mere threat of such fraud, the mere specter of it, was enough to justify laws that make it harder for millions of Americans to cast a ballot. And, indeed, when a Pennsylvania judge last month upheld that state's onerous voter ID law, one which could disenfranchise approximately 750,000 citizens, he cited that point: evidence doesn't matter when it comes to voter fraud (the case goes today before the Pennsylvania Supreme Court).

THE HEARING

It's a pity, in many ways, that Wednesday's hearing was overshadowed by the tragic news from Libya and the resulting political furor it caused. The issue of voting rights this election season is an enormous one. On the right, activists are organizing to place "poll watchers" at ballot boxes to challenge the votes of millions of American citizens. On the left, activists are mustering to watch the watchers. Unless there is clear direction from the federal courts, and ideally from the Supreme Court itself, the coming election could be even uglier, and more chaotic, than the Florida recount.

The Judiciary Committee is right to try to bring focus to the national fight over voting rights and voter fraud. It's right to try to point out that voting "integrity" and voting "accuracy" won't be heightened merely by precluding poor people, and minorities, and the elderly and students, from voting. The "accuracy" and "integrity" of our elections also will be heightened by the return of reasonable restrictions on the corrupting influence of the unfettered money that is pouring into our campaigns. It's not logical, it's not credible, to be in favor of one form of election restriction without being in favor of the other.

Which is why reading Everett Dirksen again after all these years is both enlightening and unnerving. He was right to say that "the right of a free citizen to vote is somehow a battle that is never quite fully won in any time or generation." Clearly, relentlessly, forcefully, one restrictive law, one court ruling, one bureaucrat choice at a time, the moment has come for our own generation to confront these choices, these challenges, these efforts to manipulate the law into disenfranchising American citizens. And with 53 days left until the election it is by no means certain how the challenge will be met or how the battle will turn out.

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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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