Money, Power, Ruses, and the Right to Vote

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A Senate Judiciary Committee hearing highlights the hypocrisy of restrictive voter laws in the age of Citizens United.

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Voting in 1923, four-plus decades before the right was finally protected for all citizens. (Library of Congress)

On March 15, 1965, in the heat of the moment for what would become known as the Voting Rights Act, just eight days after a young John Lewis had his skull cracked by a lawman on the Edmund Pettus Bridge, just a few hours after President Lyndon Johnson addressed a joint session of Congress on civil rights, Republican Senator Everett Dirksen issued his own weekly radio and television report to his Illinois constituents.

At the time, Sen. Dirksen was the ranking Republican member of a Senate Judiciary Committee controlled by James Eastland, the racist Democratic senator from Mississippi, the man who had called the ominous disappearance in his state of civil rights workers Schwerner, Cheney, and Goodman "a publicity stunt." Of the need for federal legislation to protect the rights of minority voters, Sen Dirksen, the Senate Minority Leader, said this:

There has to be a real remedy. There has to be something durable and worthwhile. This cannot go on forever, this denial of the right to vote by ruses and devices and tests and whatever the mind can contrive to either make it very difficult or to make it impossible to vote.... All this is then by way of saying that the job of freedom in all its glorious aspects never seems to be quite consummated. Freedom and its attributes, the right of a free citizen to vote is somehow a battle that is never quite fully won in any time or generation and so now the torch is lighted for us and the mantel falls on our shoulders to carry on where those before us left off.

The measure, as everyone now knows, passed into law. And it is fair to say that, in the intervening 47 years, tens of millions of Americans have been able to exercise, freely and fairly, without harassment or intimidation, a basic right of citizenship that had been broadly denied in law and fact to their ancestors. No reasonable Republican today would dare argue against the principles of the Voting Rights Act. But no Senate Republican has spoken out against state voter identification laws that federal judges have found to be discriminatory, either. America, and the GOP, have both come a long way since Sen Dirksen's eloquent appeal.

2012

On Wednesday, in the heat of another pitched American battle over voting rights, one that is playing out in courthouses and state capitals all across the nation, the Senate Judiciary Committee met yet again to remind us of how tenuous the right to vote still is in this country. Perhaps the stakes aren't as high in 2012 as they were in 1965. Perhaps the new generation of "ruses and devices and tests" employed to suppress the vote will be rejected by the courts. Or perhaps not. It's simply too soon to know. But it's not too soon to worry. And it is certainly not too soon to begin to see disheartening patterns.

The hearing was called "The Citizens United Court and the Continuing Importance of the Voting Rights Act" and, as the title suggests, it was an attempt by the Democratic leadership on the Committee to connect together on Capitol Hill two legal trends of recent vintage, each beginning in 2010. The "Citizens United Court" part of the presentation focused on the United States Supreme Court and the five-member conservative majority which dramatically increased the role of corporate power in American elections (and gutted campaign finance regulations) when it gave the world the Citizens United ruling in January 2010.

The "Continuing Importance of the Voting Rights Act" portion of the Committee program focused on the relentless conservative offensive against voting rights this election cycle -- the restrictive voter identification laws, the renewed bans on early voting hours, the restrictions on voter registration efforts, all of which are designed to make it harder for millions of Americans, millions of Americans who have voted fairly and accurately for years, to do so again this year. Voter fraud is the battle cry of these ALEC-infused efforts and there are, indeed, plenty of allegations about it. So far, however, there has been precious little proof.

TWO SHIPS IN THE NIGHT

So what do these two themes have in common? Nothing-- and that's the point. On the one hand the conservative Court reached out (in Citizens United) to make it easier for corporate interests, and special interests, to play a role in elections and the result this cycle has been dismaying and obvious. In the name of hoary first amendment principles, granted for the first time to corporations, the richest and most powerful interests in America have been given even more power to influence the outcome of elections. Anyone with a television or a computer or a mailbox, anyone living in a swing state, knows this is so.

On the other hand, while corporate power over elections has increased, GOP lawmakers have enacted a new generation of state voter laws to make it harder for individuals to play a role in elections. And not all individuals, mind you, but those American citizens, those registered voters, who are most likely to have the fewest resources or the best access to the machinery of politics. These voter laws aren't about requiring voters to prove who they are when they vote-- voters already have to do that. They are about further dividing elections into "haves" and "have nots" by requiring people who can't afford cars, for example, to get certain kinds of ID.

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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