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April 30, 2008

We Toad You So

Poor Dahlia Lithwick.

Back in January, the perpetually entertaining Ms. Lithwick was just certain that horridly conservative band of judicial activists on the Reich were perfervidly plotting to steal our collective cornflakes... and our right to vote, too!

A familiar maxim warns that a lie can travel halfway around the world before the truth can get its pants on. The half vast editorial staff were left ruefully pondering the truth of that dictum early this morning when the perpetually entertaining Ms. Dahlia Lithwick of SlateMag managed to muck up both the facts and the law before we could grab a cup of coffee and clear the cobwebs from our pea-sized brain.

The golden thread that runs through all of Ms. Lithwick's essays on jurisprudence is the distressing propensity of the Evil, Partisan Roberts Court to brutally oppress hapless orroyo toads, fluffy Angora kittens, people of cholor, and transgendered wolves longing to pick out a china pattern and settle down in The Hamptons. But today she warns of a particularly heinous danger lurking in our midst. Shockingly, the Roberts Court is determined to steal something you may not even have known you possessed: your Constitutional Right to vote. Ms. Lithwick reserves this stunner for the last paragraph of her magnum opus:

I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote.

There is just one problem with Ms. Lithwick's alarum. The justices are reviewing the constitutionality of an Indiana law, and contrary to her perfervid perorations, the right to vote is not among the rights explicitly guaranteed by the federal Constitution:

The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or gender. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members.

Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. It does require that Representatives be chosen and Senators be elected by "the People," and who comprises "the People" has been expanded by the aforementioned amendments several times. Aside from these requirements, though, the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote.

This week, we fear we are counting nine (count 'em -- nine!) justices who issued a unanimous smackdown on the subject of voter fraud.

'It doth well appear that this is not such a partisan issue as it might at first appear. Moreover, it would seem that even liberal justices see a legitimate state interest in preventing that most elusive of conservative boogeymen: voter fraud:

But this case, Crawford v. Marion County Election Board, also revealed a fundamental philosophical conflict between two perspectives rooted in the machine politics of Chicago. Justice John Paul Stevens, who wrote the decision, grew up in Hyde Park, the city neighborhood where Sen. Barack Obama – the most vociferous Congressional critic of such laws – lives now. Both men have seen how the Daley machine has governed the city for so many years, with a mix of patronage, contract favoritism and, where necessary, voter fraud.

That fraud became nationally famous in 1960, when the late Mayor Richard J. Daley's extraordinary efforts swung Illinois into John F. Kennedy's column. In 1982, inspectors estimated as many as one in 10 ballots cast in Chicago during that year's race for governor to be fraudulent for various reasons, including votes by the dead.

Mr. Stevens witnessed all of this as a lawyer, special counsel to a commission rooting out corruption in state government, and as a judge. On the Supreme Court, this experience has made him very mindful of these abuses. In 1987, the high court vacated the conviction of a Chicago judge who'd used the mails to extort money. He wrote a stinging dissent, taking the rare step of reading it from the bench. The majority opinion, he noted, could rule out prosecutions of elected officials and their workers for using the mails to commit voter fraud.

Three years later, Justice Stevens ordered Cook County officials to stop printing ballots that excluded a slate of black candidates who were challenging the Daley machine. The full court later ordered the black candidates back on the ballot.

Barack Obama has approached Chicago politics differently. He came to the city as a community organizer in the 1980s and quickly developed a name for himself as a litigator in voting cases.

In 1995, then GOP Gov. Jim Edgar refused to implement the federal "Motor Voter" law. Allowing voters to register using only a postcard and blocking the state from culling voter rolls, he argued, could invite fraud. Mr. Obama sued on behalf of the Association of Community Organizations for Reform Now, and won. Acorn later invited Mr. Obama to help train its staff; Mr. Obama would also sit on the board of the Woods Fund for Chicago, which frequently gave this group grants.

Acorn's efforts to register voters have been scandal-prone. St. Louis, Mo., officials found that in 2006 over 1,000 addresses listed on its registrations didn't exist. "We met twice with Acorn before their drive, but our requests completely fell by the wayside," said Democrat Matt Potter, the city's deputy elections director. Later, federal authorities indicted eight of the group's local workers. One of the eight pleaded guilty last month.

In Seattle, local officials invalidated 1,762 Acorn registrations. Felony charges were filed against seven of its workers, some of whom have criminal records. Prosecutors say Acorn's oversight of its workers was virtually nonexistent. To avoid prosecution, Acorn agreed to pay $25,000 in restitution.

Despite this record – and polls that show clear majorities of blacks and Hispanics back voter ID laws – Mr. Obama continues to back Acorn. They both joined briefs urging the Supreme Court to overturn Indiana's law.

Last year, he put on hold the nomination of Hans von Spakovsky for a seat on the Federal Election Commission. Mr. von Spakovsky, as a Justice Department official, had supported a Georgia photo ID law.

In a letter to the Senate Rules Committee, Mr. Obama wrote that "Mr. von Spakovsky's role in supporting the Department of Justice's quixotic efforts to attack voter fraud raises significant questions about his ability to interpret and apply the law in a fair manner." Of course, now an even stricter law than the one in Georgia has been upheld by the Supreme Court, removing Mr. Obama's chief objection.

The hold on the von Spakovsky nomination has left the Federal Election Commission with less than a quorum. As a result, the FEC can't open new cases, hold public meetings, issue advisory opinions or approve John McCain's receipt of public funding for the general election. Now Senate Majority Leader Harry Reid claims that, even without the von Spakovsky hold, filling the FEC's vacancies will take "several months."

All of this may be smart politics, but it is far removed from Mr. Obama's call for transcending the partisan divide. Then again, Mr. Obama's relationship to reform has always been tenuous. Jay Stewart, the executive director of the Chicago Better Government Association, notes that, while Mr. Obama supported ethics reforms as a state senator, he has "been noticeably silent on the issue of corruption here in his home state, including at this point, mostly Democratic."

So we have the irony of two liberal icons in sharp disagreement over yesterday's Supreme Court decision. Justice Stevens, the real reformer, believes voter ID laws are justified to prevent fraud. Barack Obama, the faux reformer, hauls out discredited rhetoric that they disenfranchise voters.

Acorn's national political arm has endorsed Mr. Obama. And its "nonpartisan" voter registration affiliate has announced plans to register hundreds of thousands of voters before the November election. An election in which Mr. Obama may be the Democratic candidate.

To which we can only respond with an age-old question:

Cui bono?

Who benefits from preserving the status quo? Who benefits from feeding racial divisions or from fostering the perception that asking for a freely available ID that imposes no race specific burden will disproportionately disenfranchise blacks?

Posted by Cassandra at April 30, 2008 07:44 AM

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"Who benefits from preserving the status quo? Who benefits from feeding racial divisions or from fostering the perception that asking for a freely available ID that imposes no race specific burden will disproportionately disenfranchise blacks?"
Ewww! Ewwww!
I would like to purchase a vowel and attempt to solve the puzzle!

The Modern D_mocr_t Party...

Posted by: bthun at April 30, 2008 08:11 AM


Posted by: Sluggo at April 30, 2008 09:07 AM

ACORN is full of a bunch of criminals. It is a criminal organization, intent on fostering voter fraud. ACORN is in deep trouble in Ohio also, and the Ohio Democratic party doesn't want to touch these guys with a ten-foot chad.

Ignorance is strength.

Obama's connection to this nefarious organization should be much more disturbing to people than the ranting of Rev. Wright. It is another "front" organization for MoveOn, with Comrade Soros or one of his lackeys pulling the strings from somewhere.

Posted by: Don Brouhaha-du-jour at April 30, 2008 09:24 AM

Mr. Brouhaha-du-jour,

You are absolutely correct in your assessment of the ACORN cretins. Just peruse the hits on ACORN and Voter Fraud...

I'm pleased as punch that the SCOTUS rendered a verdict that says free voter ID's are not an unreasonable expectation.

As Cass points out, even Justice John Paul Stevens, in writing the decision to uphold the law said,

"Indiana's own experience with fraudulent voting in the 2003 Democratic primary for East Chicago mayor — though perpetrated using absentee ballots and not in-person fraud — demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election."

"The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed. ... In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes 'excessively burdensome requirements' on any class of voters."

"Finally we note that petitioners have not demonstrated that the proper remedy — even assuming an unjustified burden on some voters — would be to invalidate the entire statute."

"In their briefs, petitioners stress the fact that all of the Republicans in the General Assembly voted in favor" of the law "and the Democrats were unanimous in opposing it. ... It is fair to infer that partisan considerations may have played a significant role in the decision to enact" the law and "if such considerations had provided the only justification for a photo identification requirement, we may assume" that the law "would suffer the same fate as the poll tax. 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."

For once I find that I can Harrumph! what Justice Stevens said.

Posted by: bthun at April 30, 2008 10:11 AM

Apologies on the format contusion above...
There should be four paragraphs in that blockquote, not just the first.
I blame text editor hot-key malfeasance because it could not be my fault.

Posted by: bthun at April 30, 2008 10:16 AM

Naturally, I take a different view of all this. Fraudulent candidates have a constitutional right to votes cast by fraudulent voters, and fraudulant voters have an equally constitutional right to have their fraudulaent votes count for fraudulaent candidates. The only question should be whether, once fraudulently elected, any votes cast by fomer fraudulent candidates should be counted along wwitht the votes of non-fraudulent candidates elected non-fraudulently. That answer is, of course, "It depends."

Posted by: spd rdr at April 30, 2008 11:05 AM

I find your overuse of "fraud", the absence of vowels in your name and your lack of faith in the Force disturbing, Mr rdr.

Posted by: Darth Brouhaha, still du jour at April 30, 2008 12:58 PM

Mr. rdr, that gave me a headache.

Posted by: Mark at April 30, 2008 01:18 PM

Happy to oblige.

let me put this is terms that even a layman could understand - were there ever one to be found:

A candidate that intends to deceive voters is "fraudulent."

All candidates intend to deceive voters to some degree, otherwise we would wouldn't vote for any of them.

Ergo, all candidates are fraudulent, to some degree.

A voter who intends to deceive the election officials is fraudulent.

Some voters attempt to deceive the election officials.

Ergo, some voters are fraudulent.

Should fraudulent voters successfully elected a fraudulent candidate (no one cares about fraudulent voters who fail to elect their fraudulent candidate) they find that they get fradulent representation - precisely what they deserve for voting fraudulently. As we all know, the prime test for constitutionality is "fairness," and this is perfectly fair to fraudulent voters.

As for those who did not vote fraudulently - who cares? The candidate chosen would be fraudulent anyway. You can't expect to reward non-fraudulent voters who elect fraudulent candidates, can you?
It wouldn't be fair.

Posted by: spd rdr at April 30, 2008 02:10 PM

Why is it those of the legal persuasion have the God granted ability to take a simple concept and render it utterly opaque in the least comprehensible avalanche of verbiage the English language can render?

I do believe if highly likely my leg is being pulled. On the other hand....

Posted by: Mark at April 30, 2008 02:45 PM

Oh, it's not that opaque.

Mr. rdr is having fun with you.

Substitute "dishonest" for "fraudulent" (something of a legal term), and his discourse is a little clearer.

I think.

Posted by: Don Brouhaha-du jour at April 30, 2008 03:02 PM

I was about to say something about going down the rabbit hole but with my luck, I'd find myself on trial for vectoring the topic using fraudulent misrepresentations as opposed to well grounded, pseudo-factual misrepresentations...

Anyway, I think I'll remain silent. Well, mostly silent.

Posted by: bthun at April 30, 2008 03:24 PM

Suppose, if you will, that a completely honest candidate was running for office (now take a drink and compose yourself). This completely honest candidate received a number of votes from fraudulent voters, but not enough to change the outcome of the election. Is the completely honest candidate then a fraudulent representative if he does not represent the interests of the fraudulent voters who voted for him or her. And if he or she does represent the fraudulent voters, then hasn't he or she become a fraudulent representative? What is the completely honest candidate to do?

This is why we need government issueed voter fraud identification. Any fraudulent voter can should be apply for a fraudulent voter i.d. - completely free of charge, of course - at any motor voter location. When the fraudulent voter appears at the polling place, he, she, or the occasional it, simply flashes his, her, or its fraudulent voter i.d., and is handed a fradulent ballot to complete - which is them immediately shit-canned. No longer will a completely honest candidate toss and turn all night long worrying about whether he or she is honestly representing fraudulent voters, fraudulently representing honest voters, or if the FBI is going to peak in his or her freezer. Problem solved.

Posted by: spd rdr at April 30, 2008 04:04 PM

Mr. rdr is a notorious prankster and quite good with language. He imagined the exact phraseology that would send me into a tailspin.

I have always thought clarity of expression a goal worth seeking. There is a quote from Winston Churchill that I find remarkable like him.

Lady Astor: Sir, if you were my husband, I would poison your drink.

Winston Churchill: Madam, if you were my wife, I would drink it.

It was never wise to swap witticisms with Churchill.

Lady Astor: Mr. Churchill, you're drunk!

Winston Churchill: Yes, and you, Madam, are ugly. But tomorrow, I shall be sober.

Oooh! another...

George Bernard Shaw telegrammed Winston Churchill just prior to the opening of Major Barbara: "Have reserved two tickets for first night. Come and bring a friend if you have one."

Churchill wired back, "Impossible to come to first night. Will come to second night, if you have one."

Language is art, not science.

Posted by: Mark at April 30, 2008 04:05 PM

"... or if the FBI is going to peak in his or her freezer."

Is that like a runner "hitting the wall"?

Posted by: Ministry of Lust at April 30, 2008 04:22 PM

"...the FBI is going to peak in his or her freezer."

Nope. The FBI peaked in the 'fifties and have been on the downslope ever since...

Posted by: BillT at April 30, 2008 04:47 PM

*bada boom, bada bing*

Posted by: Cassandra at April 30, 2008 06:32 PM

"The FBI peaked in the 'fifties and have been on the downslope ever since..."

Wasn't that when J. Edna Hoover was running the FBI?

Posted by: Ministry of Lust at April 30, 2008 06:37 PM

If you're peeked by the FBI and your wads of Franklin's on ice are peeped, just claim that it's the normal cash-flow liquidity from your Bill_Jefferson Franchised Cagey-Cajun Import/Export Congressional FavorsЯUS® bid'ness.

Remember kids, crime does not pay... unless you are an elected member of the Congress. And don't forget to ask mom and dad to get you and Rin-Tin-Tin your very own voter ID cards from specially marked packs of ACORN Ain'tGowannaBeDisenfranchised bubble gum.

We now return you to your fraudulent campaign coverage, currently in progress.

Posted by: bthun at April 30, 2008 06:56 PM

I live in Indiana and am a little familiar with the law that SCOTUS ruled on. All it requires is that you have a photo id when you vote. If someone doesn't have one, they can get one free at the BMV. The BMV is staying open extra hours between now and the primary so that people who need a photo id can get one FREE.

I'm sure local party people would be glad to give someone a ride if they need it.

I can't see how this is disenfranchising anyone from voting honestly. If you aren't willing to make that minimum effort, you probably should not be voting anyway.

Posted by: Schnauzer at April 30, 2008 07:50 PM

Kinda the point the Majority Opinion on this case made. "Can you find one person this has impacted?" Uh... no, but the danger is real!

Hmm... maybe if you spent less time trying to fight a case based upon the idea that there is a universal Right to Vote that would be infringed, and more time actually GETTING PEOPLE ID'S... this wouldn't be a problem.

And again, if you can't be bothered to get an ID, chances were you probably weren't going to bother to cast a legitimate vote anyway.

Posted by: MikeD at May 1, 2008 12:24 PM