Let the Voting Games Begin — 2014 Graphics Edition, Voter Registration
From today’s New York Times piece detailing the latest round in changes to voting laws.
From today’s New York Times piece detailing the latest round in changes to voting laws.
As we gear up for the 2014 mid-term federal elections, today’s New York Times provides a great overview of the current state of voting laws.
"Pivotal swing states under Republican control are embracing significant new electoral restrictions on registering and voting that go beyond the voter identification requirements that have caused fierce partisan brawls.
"The bills, laws and administrative rules — some of them tried before — shake up fundamental components of state election systems, including the days and times polls are open and the locations where people vote….
"Voting experts say the impact of the measures on voter turnout remains unclear. Many of the measures have yet to take effect, and a few will not start until 2016."
Given our country’s perennial low turnout rate, it’s just mystifying why states spend so much time making our voting systems so complex and burdensome and scarcely any time trying to increase voter participation. Or maybe it’s not so much mystifying as depressing.
Once again, Ken Dentzer, Florida Gov. Rick Scott’s (R) handpicked Secretary of State, has unsuccessfully attempted to mount a massive purge of Florida’s voter rolls. And once again, he has been forced to abandon this effort due to his lack of an accurate list of who is and is not eligible to vote.
Your eyes might cross as you read the next paragraph. But bear with me.
Just yesterday the New York state legislature passed a bill that would commit it to the National Popular Vote interstate compact. If Governor Cuomo signs the bill into law, it could mean that in the next presidential election, New York state would cast all of its Electoral College votes to the winner of the national popular vote, not just the winner of the state vote.
Uncross those eyes: it’s important to how we elect our Presidents.
So here: a quick primer on how the Electoral College works.
It’s an undemocratic institution whose usefulness is long past. But it still poses a threat to our democracy. For under its rules, it’s perfectly possible that someone would win the overall popular vote in our nation but still not win the presidential election. It’s happened several times before—most recently in 2000. And the college has many other pernicious effects.
The National Popular Vote effort, which New York finally seems poised to endorse, is a clever way to fix the problem without a constitutional amendment. Basically each state that joins the compact agrees that it will throw its Electoral College votes to the national winner, not the state winner, which is how it’s done now.
So in New York’s case, that means that in 2016, if, say, Hillary Clinton wins in the state but Rand Paul wins nationwide, then New York will nevertheless cast its votes for Paul.
New York’s move this week does not guarantee that the National Popular Vote effort will succeed. For the compact does not go into effect until it has 270 Electoral College votes in hand (the number of votes it takes to elect someone President). Right now, it has 136. New York would add 29 more. So victory is in sight.
All She Wants is an Apology; Instead the FBI May Come A Knockin’
Previously published at the Brennan Center
One mid-summer week in the nineties, I found myself in the northernmost part of Idaho coaxing white supremacists down from their mountain hideaways. I was the line Democratic counsel on the Senate Judiciary Committee’s special investigation of the incidents at Ruby Ridge, Idaho, a tragic confluence of events that left one US Marshal and a mother and child shot dead on an arid western mountaintop.
So as the Canadian geese began their southern migration, I went out to Idaho with the Committee’s special counsel to interview witnesses and inspect evidence.
Oddly, when our plane to Idaho landed, we found an FBI agent had been on the flight with us. He bird-dogged us through the trip. He was a nice guy, so we didn’t mind too much when he tagged along on some of our field trips. And he certainly didn’t deter us, whatever his intentions.
My thoughts turned to that experience when last week the Senate floor erupted with an extraordinary speech by Senator Dianne Feinstein, chairman of the Senate Select Committee on Intelligence. She detailed what she called a “potential effort” by the CIA “to intimidate [the committee] staff” as it works on a report about the CIA’s “enhanced interrogation” program.
The CIA’s efforts, according to the Senator, have involved unauthorized searches of Committee computers, and, to put a cherry on top, a Department of Justice referral seeking a further FBI-led investigation of the Senate staff.
….keep reading here.
A federal judge in Kansas on Wednesday ordered federal election authorities to help Kansas and Arizona require their voters to show proof of citizenship in state and local elections, in effect sanctioning a two-tier voter registration system that could well set a trend for other Republican-dominated states.
Bloody Sunday and the Voting Rights Act Today
We’re at roughly the mid-point in the 49th Anniversary of the voting rights marches in Alabama that provided the final impetus for passage of the Voting Rights Act of 1965.
On March 7, 1965, civil rights marchers trying to cross a bridge in Selma were brutally attacked by state police. The images (see above) of the incident shocked the nation. On March 16, Martin Luther King, Jr. led another group of protesters across that same bridge and with them walked to the state capitol, Montgomery, where on March 25 he led a voting rights rally of about 25,000 people strong. Shortly after the events, the Voting Rights Act was passed.
But last year, the Supreme Court hobbled one of that act’s key provisions—the so-called pre-clearance section that required certain states and localities get advance approval from the US Department of Justice for changes in voting processes.
Since that ruling, two things have happened. First, Congress has begun the process of passing a new version of the Voting Rights Act that would pass the Supreme Court’s test. But the effort faces stiff hurdles and all eyes are turning to Virginia Republican Representative Eric Cantor, who is the House Majority Leader. Last weekend, he went to Alabama to help commemorate Bloody Sunday. But when and how will he actually help? That’s the critical question probed in this illuminating article from last week’s Roll Call.
Meanwhile, as efforts to reinvigorate the act languish, the full effects of the Supreme Court’s decision are beginning to be felt. Just yesterday, the NAACP Legal Defense Fund released its latest survey of state and local law changes to voting process. And, um, the trend is clear: no one is really trying to make voting any easier.
Here’s my favorite example: One North Carolina County Board of Elections voted to eliminate an early voting site and election-day polling precinct on a university campus. The same county also is considering a plan to combine three precincts into one to serve 9,300 voters, making it the third-largest voting precinct in the state. That one precinct site has 35 parking spaces, is a mile away from the university, along a campus road with no sidewalks.
With about a year to go before the 50th anniversary of Bloody Sunday, it really is time to pick up the pace on giving the Voting Rights Act new life.
(originally published at the Brennan Center)
Pity the 17th Amendment. It gets no respect. Not only was the 100th anniversary of its adoption largely ignored last year, but 2014 brings fresh calls for its repeal.
For those who can’t just rattle off the constitutional amendments, a refresher: the 17th Amendment provides for the direct popular election of U.S. Senators. Prior to its adoption in the spring of 1913, Senators were selected by state legislatures.
In the last five years or so, roughly contemporaneous with the emergence of the Tea Party, a growing number of politicians and scholars have begun calling for the eradication of the amendment.Prominent politicians, jurists and thinkers, from Sen.Ted Cruz and Justice Antonin Scalia to Sen. Mike Lee and conservative columnist George Will, have either backed the amendment’s repeal or sharply criticized it. The two current candidates for lieutenant governor in Texas also supported its repeal, before they didn’t.
This month, National Review columnist Charles C.W. Cooke unleashed the latest salvo on the democratic election of senators. The amendment is an “ugly violation” of the spirit of the Constitution. It injured a fundamental structural element of our government. Cooke argues: “To ensure that they had a working mechanism by which to resist the expansion of federal power, the architects of our Constitution hard-wired the state legislatures into its structure; with the 17th Amendment, progressives pulled out that wiring like punch-drunk Jacobins.”
Defenders of the amendment, Cooke believes, are democracy fetishists who fail to grasp that America is a republic.
If there was even the remotest chance that the amendment would be revoked, it would be easy to dismiss the repeal movement as yet another cynical effort to ensure Republican domination of the Senate. Given the current partisan divide in the state legislatures, picking Senators the old-fashioned way would mean a 13-seat Republican pick up in the chamber and likely a semi-permanent majority.
But no one really thinks the amendment will be stripped from the Constitution. So it’s worth examining the psyche of this mini-movement. What does it say about our current understanding of American democracy?
The intellectual underpinnings of the repeal movement seem to rest on two intertwined concepts: one, that America is not a democracy, but a republic; and two, that a federalist system which gives strong weight to states’ rights is a critical means of maintaining liberty. The concepts are not new, but the surge in hostility toward a 100-year-old amendment probably lies in the extraordinary resentment of the Affordable Care Act felt by a large segment of the population. The anti-17th Amendment movement can be seen as a cousin of the neo-nullification movement—making headlines this week in South Carolina (again!) where the state Senate is debating a toned-down version of an anti-Affordable Care Act bill.
There’s some odd thinking going on here. (Not in South Carolina but about the 17th Amendment…well, yes, in South Carolina too, but that’s another column). Supporters of the amendment’s rescission seem to think that if we just alter how Senators are elected, from millions of people to a few hundred, then they will be more likely to represent “states” not pesky people.
Now, I don’t know about you, but I’m not entirely sure how to know what a “state” wants. Unless state legislators have special access to a secret cave in their home state where they can listen to oracular pronouncements from their state’s spirit, then best I can tell state legislators speak for the state because they are elected by the people from the state.
When, through most of the 19th century, state legislatures had the opportunity to express their state’s will in selecting Senators, they did not cover themselves in glory. Bribery and intimidation were semi-regular occurrences. Deadlocks were common. The state legislature of Delaware was at such an impasse that the Blue Hen state had no Senators for four years from 1899. In 1850, Indiana’s legislature deadlocked and failed to send one of its Senators to Washington for two years. Overall, from 1891 to 1905, there were 45 stalemates that significantly delayed the selection of Senators.
The problem was so acute that by 1912, a year before passage of the 17th Amendment, 29 legislatures had tossed senator selection to popular referenda. They let the people vote for Senator, and then the legislature ratified the election. Incidentally, as Slate columnist David Schleicher points out, the historical evidence seems to support that prior to the 17th Amendment, state legislative elections turned into polls on who the legislator would select as Senator, effectively nationalizing local elections and hindering effective state-level governance.
Repealing the 17th Amendment isn’t going to fix anything that’s wrong with our democracy (or is it republic?) or with our federalist system. One hundred Senators are not going to magically inhale the spirit of their state in lieu of irritating human politics. Because, here’s the secret: state’s rights are protected by the structure of the Senate itself, two Senators per state regardless of population and a filibuster rule (still in place for legislation). Indeed, with the filibuster Senators from 21 states representing less than 10 percent of the population can block all legislation. Oh, and there are court challenges too. Let’s not forget that part of the Affordable Care Act was struck down on federalism grounds.
Something else is going on here, though. A deep dissatisfaction with democracy or democratic results. A yearning for republican governance—wise men (a few women might sneak in) and structures that defy popular will and protect minority rights. I get it. Some people really are unhappy with the Affordable Care Act. But specific policy battles are not going to be won (or forestalled) by magic wand changes to government structure.
Finally, let’s get one thing straight about republics versus democracies. In the modern era, both of them rely on the consent of the governed expressed via elections for their legitimacy. Everyone who has governing authority derives his or her power via election. He or she was either actually elected or was appointed, hired or confirmed by someone who was. The legitimacy of our government flows only via elections. Telescoping that process with senators, taking one step out of the process (i.e. eliminating state legislators’ role) was a smart move 101 years ago.
So call me a democracy fetishist. Though as fetishes go, it seems rather…boring.
It never stops. So time to get back to blogging regularly on the issues, because the sun never sets on electoral dysfunction.
I’ve been writing regularly for the Brennan Center recently on democracy issues, so am going to start cross-posting some of those pieces here.
Anyway, fasten your seat belts. It’s going to be another bumpy ride this election cycle.
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