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Saturday, July 03, 2021

Blunt talk about voting rights

 I suspect that some readers will disllike this post, but in the midst of a crisis over democracy, we all need to speak our minds. That is especially true for  those of us who reject most of the propaganda now emanating from both sides of the political fence--and if you've been here long, you know that I count myself among those.

On the last day of its session, the Supreme Court upheld Arizona laws requiring particular procedures to vote.  One threw out votes cast at the wrong precinct; another bans the collection of large numbers of mail in ballots by private parties.  Virtually every red state is now passing such laws in response to controversies about the 2020 election, and the court system is evidently not going to overturn them.  It was thirteen years ago that the court upheld voter ID requirements at the polls.  Democrats up to and including President Biden call these laws "voter suppression" and compare them to other measures in effect during the Jim Crow era.  

Let me say before going any further that Republican legislatures are also passing another kind of election law that does represent a serious and unprecedented threat to our democracy.  These laws authorize state legislatures, most of which are now dominated by Republicans, to resolve disputes over election results, and thus, potentially, to declare Republicans winners on very dubious grounds.  They are a real danger in purple states and must be fought in purple states.  On the other hand, I simply do not believe that laws like the Arizona ones that the court just sustained really fit the definition of "voter suppression," and I think that the Democratic Party, rather than wring its collective hands and declare the death of democracy, should simply get to work on readily available means of counteracting them.

To Republicans, I suspect, the Democratic attitude seems to be that giving everyone the same right to vote, and the same access, is not enough: states must take affirmative action to make it easier for people to vote.  That is what mail-in voting--a target of many of the new laws--does.  It certainly seems to have worked very well last fall, and states seemed, in fact, to have devised excellent procedures to make sure that only valid votes were cast.  Yet mass mail in voting--as opposed to absentee ballots for people who literally cannot be at the polls on election day--is a very recent innovation, one which we managed without for centuries.  It did create significant vote-counting problems, since counting mail-ins didn't begin until the polls closed, delaying a final count in key states for many days.  And whether or not mail-in voting and the private collection of votes actually led to fraud last year, it doesn't seem unreasonable to me, in these polarized times, to think that they might--on the Republican side, if not the Democratic.  To put it another way, mass mail-in voting will inevitably create huge controversies and problems for as long as the nation remains as divided as it is today.

Among Democrats, I think, we are seeing the results of a strategy that they have pursued for about 70 years: the use of the federal court system to secure their objectives.  The Supreme Court from the 1950s through the 1970s outlawed school segregation, banned school prayer, expanded the rights of defendants, legalized birth control and abortion, ordered all states to create legislative districts of equal populations, blessed affirmative action in college admissions, and legalized school busing for integration.    More recently it legalized gay sex and gay marriage.  Some of these decisions enjoyed majority support among the electorate, others did not.  Many involved new interpretations of various parts of the Constitution, some more obvious than others. They had two unintended effects.  First of all, these decisions mobilized certain constituencies such as white southerners and religious conservatives for the Republican Party.  Secondly, they inspired a Republican counter-offensive designed to reverse many of these decisions by filling the Supreme Court and the other federal courts with conservative justices.  What nine men and women could decide, another nine justices could overturn.  We have now seen that happen with respect to gun rights, the Voting Rights Act, and many economic issues, and it may not be long before it happens with respect to abortion rights.  The enormous power of the Supreme Court on highly sensitive political issues, in fact, has made judicial appointments the most important domestic presidential power, and a completely partisan issue.

One op-ed after another is now declaring that the Democrats have lost the Supreme Court as a means of "protecting" voting rights and stopping "voter suppression."  I would argue, however, that the only votes that the Arizona laws "suppress" are those of people who couldn't be troubled to find out where their proper polling place was--not an unreasonable obligation, it seems to me, to place on adult citizens of a democracy.  Truly disabled people, as far as I know, still have the right to vote from home.  In short, the Democratic Party could respond to the curtailment of mail-in voting simply by making a more determined, well-organized effort to get its voters physically to the polls and procure them whatever identification they need.  They should begin that effort now, in preparation for the 2022 elections, and if those elections reveal that some areas don't have enough polling places to accommodate their voters, there will be time to exert effective pressure to correct that before the critical year of 2024.  Democrats must recognize that they will not be able to count on the Supreme Court to enact their agenda for the foreseeable future.  That means they have to use other, more fundamental democratic tools, led by getting voters to the polls.   That is not a challenge that any serious political party should be afraid to accept.

10 comments:

Bozon said...

Professor
Great post!

"...Among Democrats, I think, we are seeing the results of a strategy that they have pursued for about 70 years: the use of the federal court system to secure their objectives..." DK

One can look back at Republicans' use and abuse of the "federal system", Reconstruction, and the resultant following on of Jim Crow under Republicans, over a similarly long 70 year Republican controlled period, as somehow analogous.

I view both Reconstruction and Jim Crow, and the LIEO Democratic monopolization of the
Supreme Court, and the subsequent Republican resurgence of Court appointments, with indifference.

All the best

PJ Cats said...

Dear Prof. Kaiser,

seen with my continental European eyes, the threat to American democracy seems that it is at all necessary to have these discussions. Apparently, there are some systemic deficiencies that should be remedied, but can't. No proportional representation, too much power in the Supreme Court, First Past The Post, gerrymandering, voter suppression (why would any government hinder anyone from voting? I'd argue putting up any obstacle counts as voter suppression. That has nothing to do with the inversion of this argument into 'affirmative action' to get people to vote. Every voter should be given the chance to vote.) and, well, the opportunity to have this discussion at all and charge it politically, culturally and ethnically. As I said, to me it just seems very strange and frankly undemocratic by definition.

Stuart Mitchell said...

Professor:

I fully agree with you that new laws that take power from non-partisan election boards and giving it to state legislatures are vastly undemocratic. More than that, they are scary as hell. The 2020 elections, including the Republican insurrection on January 6, demonstrated that that party has no qualms about finding and using some technicality to disenfranchise millions of voters. That is precisely the reason for such laws.

With respect to wrong precinct voting, I don't think it generally will affect many voters, and I agree that responsible voters should find their correct precinct. (For what it's worth, the individual cases I've heard about, voters who show up and/or vote in the wrong precinct, tend to be Republicans, including Trump himself, although he may have been a Democrat at the time.)

With respect to mail-in voting, however, I disagree with you. First, you say, "To Republicans, I suspect, the Democratic attitude seems to be that giving everyone the same right to vote, and the same access, is not enough: states must take affirmative action to make it easier for people to vote." But not all people have the same access. Not everyone can take time off from their jobs to vote. Not everyone has access to the necessary transportation. And, in case you've missed it, the new laws in Georgia (not specifically the Arizona law before the Court) and elsewhere tend to reduce the times and places when votes may be cast in person.

You then state that (mass) mail-in voting is a recent innovation which wasn't available for centuries. In my view, that is irrelevant. To the extent that mail-in voting increases voter participation, I think that is a benefit to our democracy. And I think the data show increases in voter participation. Indeed, I believe that is the reason Republicans are so eager to restrict it. Greater voter participation makes it harder for minorities to control government, and Republicans are in the minority. That they hold power in more than half of the fifty states is more due to partisan gerrymanders (and, to some extent, to laws that restrict the ability to vote) than to majority rule.

Then, you point to vote-counting problems, specifying a delay in final count in key states. I submit that states may correct that problem by allowing election authorities to begin counting mail-in votes before election day. That is not impossible and many states, including mine (Minnesota) allow for that.

Finally, you say, "And whether or not mail-in voting and the private collection of votes actually led to fraud last year, it doesn't seem unreasonable to me, in these polarized times, to think that they might--on the Republican side, if not the Democratic. To put it another way, mass mail-in voting will inevitably create huge controversies and problems for as long as the nation remains as divided as it is today." Here you demonstrate the power of the Big Lie. Assert ``FRAUD'' loudly and without evidence, over and over, and people will come to believe it. Republicans created this controversy. We should not give up a valuable enhancement to citizens' abilities to vote in order to appease those who lie about it.

Bozon said...

Professor
Northern white voters, who had elected Lincoln mainly to get rid of negroes, never dreamed that he would free them without transportation, put 100,000 of them in the Union Army, that then Radical Republicans would multi vote them in gangs marched around Southern polling stations, and actually put them in political control as a race of Southern states and cities, or allow them to migrate North.

Jim Crow was a national phenomenon seen mostly in the South, but negroes were not free to migrate North unfettered with Northern states' diverse regulations.

Voting, as well as control of Congress and the Supreme Court, is what a ruling party can make of it over against the states and their citizens, north south east or west.

All the best

Nick said...

Professor,

I agree that Democrats need to put far more resources into voter mobilization than they have historically, and the Trump years may have finally taught them to do that. But casting aspersions on mail-in voting is so plainly a suppression tactic that it can’t be left alone.

I’ve been voting my mail for 20 years in Washington and California, along with millions of others, with zero issue. Since 10 years ago we can even track our ballot status online. The modern tools of signature checking, barcodes, databases and process controls are essentially the same that are used to transact trillions of dollars in our economy and they work perfectly well for the simpler task of vote counting. They prevent the kind of ballot box stuffing that was common in the 19th century; our voting systems pre-punch cards were far more prone to manipulation.

Most of the reported “concerns” about mail voting are the product of paranoid imagination. The problem with appeasing paranoia is that it has no end. No matter what is done to alleviate those “concerns”, the paranoid mind will just spiral into more and more outlandish ones and calls for suppression. Laws and procedures need to be based on facts.

Bozon said...

Professor

Re Nick's and others' remarks, and your post.

The globalization and sharing of IT, like so much else about the West's LIEO, not excluding such other things as the wanton sharing of dangerous virology research, has long demonstrated now that the West is merely a dying rogue faux tech civilization near the bottom.

Voting by mail, in person, or virtually, no matter at all now.
Cryptocurrencies, faux facts, ransomeware arbitrage, no matter at all any longer.

The West has long been self burnt toast, and the Rest has known it for decades now.

All the best

jostonjustice said...

Kaiser is wrong to imply that the Democratic Party or Democratic officials were behind the Supreme Court decisions that ordered school desegregation (Brown v. Board etc.) and the criminal procedure revolution (Mapp v. Ohio, Gideon v. Wainwright, and Miranda v. Arizona). Criminal defense attorneys brought the latter decisions seeking to vindicate rights guaranteed to their clients under the Bill of Rights. Brown was also brought by lawyers (including, notably, Thurgood Marshall) representing actual clients in five jurisdictions seeking to vindicate constitutional rights guaranteed to them under the 14th Amendment. The backlash against those decisions, eventually led by Republicans, confirms the Framers’ wisdom in protecting federal judges by granting them tenure “during good behavior.”

Bozon said...

Professor

Why not have a little even blunter talk about voting.

This is just one species of drift:

"...Democrats must recognize that they will not be able to count on the Supreme Court to enact their agenda for the foreseeable future..." DK

Whichever party cannot take all three branches, even for just one four year term, condemns the country to another four years of useless aimless pointless drift.

Drift has been the general rule here since 1776 rather than the esception.

And people wonder why some get jaded with voting.

Usually their own candidate had no intention of fulfilling a party platform after getting elected. One sees this relentlessly throughout our history.

All the best

Nick said...

I would add that mail voting protects voters from polling place closures, long lines and voter harassment, all time-honored Republican tactics for undermining voting, which is a likely explanation for why they make up reasons not to like it.

Nick said...

I would add that mail voting protects voters from polling place closures, long lines and voter harassment, all time-honored Republican tactics for undermining voting, which is a likely explanation for why they make up reasons not to like it.