ANOTHER SUPREME OUTRAGE
POLITE FASCISM CONTRACTS THE
RIGHT TO VOTE
Indiana Democratic Party, et al., Petitioners 07-25 v. Todd Rokita,
Indiana Secretary of State, et al.
U. S. ____ ( 2008 ) Opinion of STEVENS, J.
They wear their robes but leave the hoods off, the polite justices of the Supreme Court. They write decisions then issue them in a formal setting, behind the columns of a capitol monument, with a history that confers a dignity not deserved. The Court embodies the dilemma of our modern culture. The most awful acts are committed with bland justification by polite people who hide behind institutional trappings; for the sake of the few, at the expense of the many.
When a vital right is denied to any group or class of citizens, the people suffer a great loss. They must endure mean spirited laws put forward as rational policy then contend with the dual reality of apparently legitimate institutions conducting blatantly illegitimate attacks on the people. Brutal bigots and snarling attack dogs have been replaced with somnolent justices affirming the outrages of smiling politicians and the bureaucrats who follow their orders. The net result is the quiet evisceration of our most important rights in a manner that puts the people into a light trance of continual acceptance.
The struggle for voting rights in the 1960’s represents one of the finest periods in our nation’s history. There was a rapid awakening to the decades of harsh reality endured by black citizens in the South. Most startling to the majority, unaware of this culture of injustice, was the near total absence of the right to vote for black citizens.
The issue of voting rights was and is fundamental to our political consciousness. The blatant violation of those rights, the effort to keep almost all black citizens from voting, created a national outrage. Unaffordable poll taxes just to vote, “literacy” tests arbitrarily administered to fail members of one race only, frequent intimidation at the polls, and the other flagrant indignities provided an immediate education to those who read, watched and listened. This generated broad support for voting rights legislation to expand the franchise to all citizens.
Most of those who had the rights were unable to tolerate the outrages they saw inflicted on their fellow citizens. Those who endured the violations laid down their bodies; risked and gave their lives. They would no longer tolerate the attack on their very existence as men and women of equal stature from those who abused them.
The Voting Rights Act of 1965 passed with overwhelming majorities in the U.S. Senate and the House of Representatives. It was sponsored in the Senate by the Republican leader, and was implemented with a certainty and clarity that shocked the perpetrators of a fraudulent election system. Voting rights did not confer the benefits of social justice. However, those rights did move to correct a key systemic inequality of political participation.
We were awake as a nation for a brief period, unified in the demand for the right to vote. The struggle to expand the franchise has been ongoing throughout our history from white male property owners to all white males. For a period after the Civil War, both black and white males voted until white supremacy regained control in the old South. The women’s suffrage movement was the last major expansion of the franchise before the great civil rights movement of the 1960’s and beyond which demanded voting rights for blacks and then Latinos.
A new trend has emerged, one that takes the nation back to the post-Reconstruction period of the 1880’s when black citizens lost their recently gained right to vote and participate in civic life.
Contracting the Vote
The April 28, 2008 decision upholding Indiana’s photographic identification (photo ID) law by the Supreme Court of the United States is a major blow to voting rights.
Bush versus Gore dissenter, Justice John Paul Stevens, spoke for the majority. In Crawford et al. versus the Marion County Board of Elections et. al., the Court decided that Indiana’s law was constitutional since it represents what may be a valid concern by the state, even though Stevens’ acknowledged that Indiana presented no evidence of in-person “voter fraud”, the alleged “threat” that made the law necessary.
Justice Stevens and the majority failed to consider that the Indiana law was passed on a straight party-line vote with only Republican legislators supporting it and all Democrats opposing. Why was it a party line vote? Like many other voter identification laws, Indiana’s version is clearly biased against potential Democratic voters and constituencies.
The Court majority was unimpressed by the fact that many voters won’t have a photographic identification, according to a number of studies. The Court ignored a recent study showing Indiana’s law will restrict the vote and that photo identification requirements are associated with 10% less turnout than is seen with less restrictive verifications.
Indiana‘s Voter Identification Law
The Court decision allows the Indiana law to stay in place. In order to vote, the law requires that registered voters present a current state or federal identification with a photograph that bears a name matching the voter’s name on the registration records. Indiana is one of the seven states requiring photographic identification (photo ID). The other states are Florida, Georgia, Hawaii, Indiana, Louisiana, Michigan, and South Dakota.
Voters who show up in person without a photo ID are offered a provisional ballot. The voter must return to the election board by noon ten days after the election with proof of identification, i.e., photo ID. Failing that, the voter must sign an affidavit asserting that either he or she can’t afford the identification or has a religious objection to being photographed. If there is no other challenge, the vote is counted. Sound complicated? How many would go through all these steps to cast a ballot? Why should anyone be required to do so?
You don’t need a photo ID at if you vote by absentee-by-mail (11% of Indiana voters used absentee-by-mail or in-person in the 2008 Indiana presidential primary). In addition, if you’re confined to your home or a facility for medical reasons or if you have a disability and can’t get to your precinct, a member of the state “travel board” will bring you a ballot and take your vote. There is no requirement for photo ID in either of these instances.
The False Alarm of Voter Fraud Used to Restrict the Vote
Voter fraud refers to in-person voting by individuals unqualified to vote. The alleged phenomenon of “voter fraud’ is the justification for restrictive voter identification laws like Indiana’s. Voter identification laws specify the identification that voters present before they’re allowed to cast a ballot. Supposedly, tight voter identification laws reduce voter fraud. Of course, if there is no voter fraud to speak of, there’s no legitimate justification to risk the right to vote by restrictive identification laws.
Voter fraud differs from election fraud, which refers to the wholesale theft of elections through manipulation of voting and tabulating machines, gerrymandering (the distortions of districts to secure elections), and other methods of rigging an entire election.
The Bush Justice Department made a major effort to document an epidemic of voter fraud. The U.S. Attorneys had extensive training and intense encouragement to make cases. The failed results of this effort are well documented and apparent from the total convictions displayed in the chart below. The political manipulations behind this effort were one of the causes of the U.S. Attorney’s scandal.
Does voter fraud happen at any degree of frequency? Are there hordes of unqualified voters who manage to vote illegally without detection?
The Politics of Voter Fraud, L.C. Minnite (p. 9)
This Federal statistics show hardly any voter fraud prosecutions by the Department of Justice. Where’s the epidemic of voter fraud or even a significant problem?
This evidence should be definitive. Only 38 cases of voter fraud were prosecuted from October 2002 through September 2005. Fourteen cases were dismissed and 24 resulted in guilty pleas or convictions.
There were 120 million voters casting ballots in the 2004 election. Add the total number of voters in all the other federal elections between October 2002 and September 2005. The total prosecutable cases of voter fraud that the U.S. Department of Justice could find consisted of 38 charged and 24 convicted. There is no epidemic of voter fraud.
Since voter fraud barely exists, there is no rationale for tightening voter identification requirements. Given the real risk of reducing turnout there is every reason to avoid any additional laws that inhibit voters and voting. Yet twenty-five states have significant voter identification requirements, including seven that mandate official photo identification. The Court gave a green light to all states to create meaningless identification requirements if it serves the majority interests in state legislatures.
Photo ID’s as an Effective Barrier to Voting
A statewide survey of 1,000 registered voters was conducted in Indiana in 2007 by the Institute for the Study of Ethnicity and Race, University of Washington. The study measured the impact of Indiana’s new voter identification requirement, the law upheld by the Supreme Court. The highly pertinent results below show the clear bias of the law:
Data from Tables 1.1, 1.1.b, and 2.1 (pp. 18-19)
Six percent fewer black registered voters reported sufficient voter identification for Indiana elections. Of the general population, a pool for new voters, nearly 12% fewer black citizens have sufficient identification.
In addition, the Indiana study found that 21% of registered voters without a high school diploma lacked sufficient identification to vote while 11.5% with a college diploma lacked sufficient identification.
Most pertinent to the 2008 presidential election, the study confirmed the political bias of the Indiana voter identification law. The study concluded:
“Among registered voters with valid ID, 41.6% consider themselves Republican8 and 32.5% are Democrats. In contrast, among registered voters without proper ID, 34.8% are Republican and 38.0% are Democrats. Beyond the exclusion of certain demographic groups outlined above, this data suggests that a greater number of Democrats are excluded from voting under Indiana’s voter identification laws. (p. 12).
A major study on the impact of voter identification was conducted by scholars at Rutgers University and the Moritz School of Law, Ohio State University. The authors analyzed 2004 election data from around the country. Turnout in states with photo ID requirements was 58.1% compared with 64.2% in states that required voters to give their name as the main requirement (Rutgers, 2006). That’s 10% lower turnout associated with a photo identification requirement.
Summary data from Rutgers study (p. 6)
In 2004, turnout was 10% higher in states where voter identification involved stating one’s name than in states where a photo ID was required.
The researchers backed out states with photo ID requirements and found that Latino and black turnout was down disproportionately in states with another intensive identification requirement, signing an affidavit stating that you are the voter that you claim to be (Rutgers, p. 11).
A recent study on Georgia’s voter identification law was conducted by scholars at the University of Georgia, Athens. They looked at the most common voter identification, a driver’s license. Race and age (being black, being young) were associated with the absence of a driver’s license. Blacks had a much higher probability than whites of lacking a driver’s license. Registrants without drivers’ licenses were 50% less likely to vote in a general election. Those without photo ID were significantly more likely to vote in Democratic rather than Republican primaries. These findings show the highly partisan impact of the requirement for photographic voter identification.
This evidence is clear. Voter ID laws have a negative effect on minorities and, it appears, younger and less educated voters as well. The requirement reduces turnout and, by doing so, it reduces the right of citizens to vote, all to prevent a non existent crime.
Partisan Evidence, Partisan Decision
In deciding for Marion County and the state of Indiana, the majority cited evidence from the federal Election Assistance Commission (EAC). The politically appointed commission administers the Help America Vote Act (HAVA). HAVA provides funding and sets standards for the nation’s voting technologies, voter registration databases, and other election systems. The EAC actively sought to suppress then rewrite two reports it had commissioned that showed voter fraud to be insignificant and found voter intimidation at polling places to be a problem. The EAC has a troubled record and is a source highly biased in favor of the current administration.
The Court cited the Carter-Baker Commission on Federal Election Reform co-chaired by James A. Baker III, who was the architect of the heavy-handed 2000 Republican effort that forced Bush into the White House. This effort included delaying tactics like the famous “preppy riot,” and other subterfuges to see that the Florida vote was not verified through a recount. The Commission also came under harsh criticism for the photo ID recommendation. This is hardly a serious source unless name-dropping is a criterion.
Most remarkably, the Court admitted that there was very little evidence proving that voter fraud even exists. In footnote 12 of the Stevens’ opinion, the Court evaluated evidence of voter fraud in Indiana and found no evidence of in-person voter fraud, the entire rationale for the law.
Stevens went looking elsewhere and claimed that “There remains scattered evidence of voter fraud.” And he found it — one instance — in the 2004 Washington gubernatorial race. Nineteen “ghost voters” were discovered (based on an oral opinion by a local judge) and a news report mentioned of one individual attempting in-person voter fraud. Twenty examples of voter fraud are all the Court could muster to affirm a law that may affect the vote of millions and change elections. (See comment on footnotes 11, 12, and 13)
“But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.” Justice John Paul Stevens, Majority Decision, Crawford et al. v. Marion County Election Board et al., Apr. 28, 2008
The partisan sources and justifications used to support Judge Stevens’ ruling should not be disregarded either. The evidence selection process speaks volumes about the Court’s intention to contract rather than expand the franchise
In addition to biased evidence, a most compelling argument for the partisan nature of the decision is found in the Indiana law. As mentioned, absentee by mail and absentee by hospitalization or due to disability voters do not have to present a photo ID when they vote.
Are absentee and in-person voters at equal risk for committing voter fraud? If so, then the Indiana law creates two classes of voters: in-person voters who are subjected to more restrictive voter identification and absentee voters who have less restrictive identification standards.
This is a glaring inconsistency. It gives an advantage to those who choose to vote absentee. Is there some reason to believe that this class of voters is inherently more honest than in-person voters? If not, using the Court’s own logic, the failure to identify and act on that inconsistency shows a less than serious attitude toward the supposed threat of “voter fraud.”
This decision resurrects a trend in voting rights not seen since the post-Reconstruction era following the Civil War. During the decade following the Compromise of 1877, black participation in civic life in the South was reduced to an absolute minimum by deliberate plan. The plan’s goal was to severely restrict the voting rights of black citizens.
Resurrecting the “Redeemer” Coalition
The “Compromise of 1877” settled the protracted dispute over the 1876 presidential election between Democrat Samuel J. Tilden and Republican Rutherford B. Hayes. Tilden had more popular votes but there was a dispute over the Electoral College count. A “blue ribbon” commission spent months trying to settle the dispute.
Finally, a “compromise” emerged. Tilden withdrew his claim on the presidency in return for a promise by Hayes to withdraw federal authority from the South. This ended the participation of black citizens in elective politics as voters, candidates, and office holders. During Reconstruction, blacks voted in large numbers, won elective office, and served at all levels of government. This multi-cultural democracy ended just a few years after the compromise when white domination returned to the South.
The Democratic Party of the South was the political arm of this effort, while the Ku Klux Klan and other groups carried out paramilitary and terror functions (murder, rape, lynching, etc.). Those participating in the political arm were known as “The Redeemers,” whites who sought “redemption” from the difficulty they experienced sharing power with black citizens.
A true moment of redemption for white supremacy came when the Supreme Court of the United States issued the Williams versus Mississippi decision. This decision allowed other states in the South and elsewhere to adopt the voter suppression provisions of the Mississippi Constitution which were specifically designed to restrict the voting rights of black citizen’s rights and minimize their participation in civic life.
Plaintiff Williams sought to have his murder conviction overturned because he’d not been tried by a jury of his peers. A black citizen, Williams pointed out that juries were chosen on the basis of voter rolls. When they registered to vote, blacks were routinely discriminated against through a variety of means, including the literacy test required to register. White registrars routinely failed blacks and passed whites regardless of the results. Williams argued that he had not received a trial by jury of his peers, since black Mississippians were systematically excluded from the jury.
The Court failed to take this obvious fact into account and decided:
[The Mississippi Constitution and laws] “… do not on their face discriminate between the races, and it has not been shown that their actual administration was evil; only that evil was possible under them.” Williams v. Mississippi, Supreme Court of the U.S., Apr. 25, 1898
The justices either didn’t know or didn’t care that the Mississippi Constitution had been constructed by the Redeemers and others with the specific intent of keeping black voters from voting.
The affirmation of the Mississippi Constitution by the U.S. Supreme Court in Williams was followed by the spread of that document’s deliberately conceived methods of voter suppression and voter disenfranchisement to states throughout the South and the nation. Poll taxes, literacy tests, and felon disenfranchisement had their origins in this document, one the Court affirmed. While detached from their historical origins, provisions of the Mississippi Constitution of 1890 are well placed in state constitutions across the country.
A Court and Government against the People
The Court must have known that the millions at risk of losing their voting rights are predominantly black, less educated, and young. Yet the Court made the most political decision since it held its own “election of nine” in 2000 to give Bush the presidency.
This Court also resurrected a doctrine that discriminates against minority citizens that mirrors the Williams versus Mississippi case of 1898. The Court’s majority redeemed the once-vanquished doctrine of restricting and contracting the vote.
This is the Court that allows torture by federal authorities; sits idly by as habeas corpus is removed from our laws; allows our votes to be counted in private by partisan corporations; sanctions illegal wars declared only by the president; and rarely misses an opportunity to support the interests of large corporations over those of citizens. Now the Court is collaborating with those who would restrict the vote.
In order to remain connected to reality, it’s time to admit and proclaim the obvious fact — our country is approaching a lawless state. The highest court issued a blatantly political decision that denies the vote in a way that places one political party at a significant disadvantage as we approach a presidential election and, more importantly, threatens to disenfranchise millions.
As it did this, the Court denied the most fundamental tenet of our political history — the right of all citizens to select their representatives. Today it’s the poor and minorities. Which segment of the population will be losing its right to vote next?
How will the people ever fully restore the vanishing right of habeas corpus (see note) and other civil liberties? How will the movement for social justice ever be revitalized?
Election fraud has now been expanded in scope to include the nation’s highest court, which has become the enemy of the people. Justice Stevens should read his own words from his dissent in Bush versus Gore:
“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Justice John Paul Stevens, Dissent, Bush v. Gore, Dec.12, 2000
Special thanks to The Scholar for his inspiration and to Jill Hayroot, Susannah Pitt, and Alexis Collins for their comments.
Permission granted to reproduce this article in whole or in part with attribution of authorship, a link to this article, and acknowledgment of Images used.
Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat & Felon Disenfranchisement in the USA, 1850 to 2002, A. Behrens, C. Uggen, & J. Manza, American Journal of Sociology, Nov. 2003.