Archive for the ‘Voting Rights’ Category

What’s Next In The Voting Rights Saga?

Friday, January 21st, 2022

After months of political maneuvering, all of it sideways, the mammoth Freedom To Vote Act, went to its grave this week.

So, what happens now? Short answer? Probably nothing. However….

If cool heads prevail (a big lift), I suggest there are three provisions of the Bill that warrant resurrection. Warrant in the sense they might have a ghost of a chance of becoming law.

First, there is the matter of how we treat election day in the U.S. Federal and Congressional elections happen on the Tuesday following the first Monday in November every two even-numbered years. Thus, the next one, our Midterms, happens on 8 November of this year, 2022. These Tuesdays are treated as any other work day, albeit a work day set aside to be voting day, too.

Why is that? Does treating Election day as a work day inhibit, or even discourage, a citizen’s inclination or ability to exercise the right to vote? And is voting a “right,” or a privilege? Ask anyone in the country that question, and they’ll answer it’s a right. So, why do we make it a shade difficult? Shouldn’t we do everything in our power to remove any barriers standing in the way of that right?

In all but seven of the 38 OECD member countries election day happens on the weekend, most often Sunday, or it is treated as a federal holiday. In some, election day spans more than one day; India’s, for example, begins on Thursday and ends the following Sunday. The UK, one of the seven, currently conducts elections on a Thursday, but there is a strong movement to change to Sunday. Along with the UK, the seven outliers are the Scandinavian countries, Canada, Ireland, and us.

One of the sections of the Freedom To Vote Act, Section 1011, would have made the Tuesday following the first Monday in November every two even-numbered years a federal holiday. For a country that prides itself as the leader of the free world for the last century, it doesn’t seem a long pull to make election day a federal holiday. At least, not to me. This would not require a Constitutional Amendment, just congressional approval. “Ay, there’s the rub.”

Second, there is the matter of congressional redistricting, which happens every ten years following our decennial census. Writing about this last week, I tried to demonstrate the fiasco this always causes, using North Carolina and Ohio as examples. Not to put too fine a point on it, but my old Army buddies would describe this every ten year bloodletting as a SNAFU of the first order.

The Freedom To Vote Act, in Sections 5000 to 5008, aimed to streamline redistricting and would have forbade partisan gerrymandering. It would have prohibited a state from doing anything in its redistricting efforts that would “materially favor or disfavor a political party.” But the Act’s redistricting provisions were long, complicated and aimed to eliminate every issue, no matter how significant (or not) perpetuating partisanship. I suggest smaller would be better. Given the proclivities of our political parties, especially when they’re in power, perhaps a simple prohibition on materially favoring or disfavoring a political party might be easier for our District of Columbia geniuses to swallow?

Finally, I’d like us think about the process by which we register to vote. As it stands now, if a person wants to vote, they have to register to do it. If one does not take the steps, make that go through the trouble, to visit the office of a city or town clerk, fil out the appropriate paperwork, and sign on the dotted line, one cannot vote.

Is this the way it should be in a country that views voting as a “sacred right?”

The Freedom To Vote Act would have made voting registration automatic when getting or renewing a driver’s license. It would have guaranteed a person could “opt out” of registration, but that would have taken an affirmative action on the part of the registrant. It would have provided grants from a federal Election Assistance Commission to fund the process. The newly registered voter would not be required to vote, but at least they would not have to jump through bureaucratic hoops to do so.

This is how The Freedom To Vote Act put it in Section 1002:

(3) AUTOMATIC REGISTRATION.—The term ‘automatic registration’ means a system that registers an individual to vote in elections for Federal office in a State, if eligible, by electronically transferring the information necessary for registration from the applicable agency to election officials of the State so that, unless the individual affirmatively declines to be registered or to update any voter registration, the individual will be registered to vote in such elections.

If you’re against automatic registration, I have to ask why? After all the political fighting of the last couple of years over voter registration, would not this be a solution everyone should embrace? That is, of course, unless you’d rather continue to make it difficult for certain people. I think we’re better than that.

There are some who will say these suggestions are not needed. Things are running fine. Voting’s not broken, so why fix it? If you are in that camp, I have some prime beachfront property I’d like to sell you just as soon as the tide goes out.

These three simple and doable enhancements to our voting laws would make voting easier and more fair, and would show the American people we value their participation in governing this great country. Further, adopting these improvements would demonstrate to our international friends and enemies alike that democracy is very much alive in this country and is not slowly dying as so many believe.

These measures will bind us together, not drive us apart.

The Fog and Filthy Air

Thursday, January 20th, 2022

Fair is foul, and foul is fair:
Hover through the fog and filthy air.
Macbeth, by William Shakespeare; Act I, Scene I

The hyperbole was flowing yesterday in the U.S. Senate. The feeble train wreck everyone saw coming finally happened. The John Lewis Voting Rights Advancement Act (VRAA), the Freedom To Vote Act, and the carve out to change filibuster cloture rules all died, each on its own rickety, broken down, separate gallows. Despite impassioned speeches, the end was anticlimactic — something like Macbeth without the murders.

And the nation yawned.

Credible polling data shows the majority of Americans care mightily about one issue: the economy, and more specifically, what inflation is doing to it. Yes, they care about COVID and how schools should deal with it (for the most part they’re hyper-critical), but it’s meat-and-potato time for most. The voting rights battle barely registers. In the latest AP/NORC poll, just 6% volunteered voting laws, voter fraud, or voting issues as the top problem the government should be working on in 2022.

Yet, there they were yesterday. The Democrats. Reaching for arrows from an empty quiver. It was Otto von Bismarck, the man who engineered the unification of Germany in 1870 and served as Chancellor until 1890, who said, “Politics is the art of the possible, the attainable ― the art of the next best.” While Republicans were busy annihilating voting rights legislation (with a little help from a couple of recalcitrant folks from West Virginia and Arizona), at yesterday’s ironically timed presser, President Biden suggested it’s on to the next best. Whatever that may be.

A little pity for Joe Biden is in order. He entered the White House in January of 2021 ready to wage war with one enemy, the COVID pandemic, on two fronts: medical and economic. Our economy, with its supply chain and labor issues, was a catastrophe and getting worse. But, and it’s a big but, were it not for the pandemic that won’t quit, the economy would have been rolling along just fine, and Donald Trump would probably be the guy having dinner most nights in the White House. But Trump’s ineptness allowed Joe Biden to be the one eating in the State Dining Room, and Biden believed if he could eradicate the pandemic he’d rescue the economy from disaster. Seemed like a good plan at the time.

Events have a way of surprising newly elected presidents; think 9/11 for George W. Bush. In Biden’s case, two rude surprises interrupted his agenda, if you don’t count Republicans’ all out dedication to obstructing whatever agenda that was.

In late March, legislators in 19 states controlled by Republicans began passing laws making it harder to vote in Black and Latino communities. The pandemic had caused states to modernize voting policies with things such as drop boxes, extended early voting, liberal mail-in voting rules, etc. This had the effect of increasing turnout in minority areas and led to the election of two Democrats to the Senate from Georgia, giving the Democratic Party what appeared to be control of the Senate. So, under the guise of enhancing voter integrity (after all, the 2020 election was rigged for Joe Biden with millions of fraudulent votes), changes had to be made. Access to easy voting had to be tightened.

In response to Republican efforts to limit the vote, voting rights became a huge issue ― within the D.C. Beltway. It consumed the literati and Democratic elites and distracted the Administration from its main job: eradicating the pandemic and getting the economy moving in the right direction. It sucked Joe Biden into its vortex and, once there, he could not escape. In retrospect, this was a terrible mistake, as Bismarck could have pointed out to him.

The second surprise came later in the year when inflation began to rise. At first, the Administration, as well as most economists and the Federal Reserve, thought the rise was temporary, and would perhaps extend as long as early 2022. However, it soon became apparent that there was one thing the inflation surge was not, and that thing was temporary.

Now, having thrown every bit of political capital he had left into the doomed-from-the-beginning voting rights fight (he doesn’t even mention the Build Back Better Act anymore), President Biden is a bit chastened. Yesterday, he admitted that, despite 36 years in the Senate and eight more playing second fiddle in the White House, being President is different. He admitted that his old friend Mitch McConnell, while still a friend, is focused on one thing and one thing only: making sure his old friend Joe looks bad all the time. With friends like these….

Where does he go from here? Having now proven his colleagues in the Democratic Party are just as capable as Republicans of sticking a knife in his back, he appears to realize winning small victories is preferable to no victories. He said yesterday he’ll no longer try to eat the elephant with one bite, but will cut up his legislative goals into little pieces and try that. Oh, and the Child Tax Credit is gone, as is free tuition at Community colleges. He said he’ll leave Washington more often to speak directly to people around the country. We’ll see how that goes, but I’m not optimistic.

Moreover, there’s another train wreck on the horizon. It’s called the midterms, and it’s arriving in November of this year. If the President thinks things are tough for him now, just wait till then.

Joe Biden has become trapped in the fog and filthy air surrounding and methodically crushing the soul of his Administration.



North Carolina And Ohio: Worlds Apart

Friday, January 14th, 2022

Law requires all the states to redraw their state and congressional districts in the year following the decennial census of the country. Once they do that their legislatures approve the new maps, and the maps become enacted law. Then the lawsuits begin.

Yesterday, I wrote about a State Court Panel of the North Carolina Superior Court’s decision, rendered on Tuesday of this week, to uphold that state’s recently enacted election redistricting maps, maps the Court strongly affirmed were examples of extreme partisan gerrymandering in every respect in every district. Why? Because the Court said history had shown that’s the way the legislature and the state’s electorate wanted it regardless of which Party was in power.

It’s about 480 miles from Raleigh, capitol of North Carolina, to Columbus, capitol of Ohio. But from yesterday’s ruling on the same subject by the Ohio Supreme Court, you’d think they were on separate planets.

The three signers of the North Carolina decision are Republicans, and in the Ohio Supreme Court there is also a Republican majority. But on a 4-3 vote, with Chief Justice Maureen O’Connor, a Republican, siding with the three Democratic Justices, the Court invalidated the GOP’s recently-drawn legislative maps.

The Ohio Constitution requires mapmakers to attempt to match the statewide voting preferences of voters over the past decade. That amounts to 54% for Republican candidates and 46% for Democratic candidates. According to the decision, “The commission is required to attempt to draw a plan in which the statewide proportion of Republican-leaning districts to Democratic-leaning districts closely corresponds to those percentages.” The Court ruled that did not happen. What did happen was extreme partisan gerrymandering.

Until November 2015, Article XI of Ohio’s constitution specifically allowed, and the Court upheld, partisan gerrymandering. However, in that year Ohio voters overwhelmingly approved an amendment to the constitution repealing Article XI and replacing it with a new version, which established a new process for creating General Assembly districts. The amendment provided for the creation of a seven-member Ohio Redistricting Commission, composed of elected officials, such as the Governor and other legislative leaders. The Ohio Redistricting Commission that drew up the new maps under dispute consisted of five Republicans and two Democrats.

The Ohio commission is responsible for redistricting the boundaries of the 99 districts of the House of Representatives and the 33 Senate districts in the year immediately following the release of the federal decennial census. This is the same procedure followed in North Carolina and in every other state. However, Section 6 of Ohio’s new Article XI mandates: “No general assembly district plan shall be drawn primarily to favor or disfavor a political party.” Further, “The statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.”

And that’s not all. The Court’s majority, interpreting the state’s constitution, wrote, “To adopt a plan under Section 1(C) (of Article XI), at least two members of each of the two largest political parties represented in the General Assembly must be in the majority voting for the plan.” Wow! The Ohio Supreme Court’s interpretation of the state’s constitution is requiring Republicans and Democrats to work together to establish state voting districts. With respect to gerrymandering, the Court has handcuffed the partisan Commission.

The Ohio Supreme Court’s decision is 146 pages (Thank you very much; North Carolina’s was 260.). The beginning of it gives a highly readable history of the drawing up of the maps. Anyone interested in an application of the quote about laws and  sausages misattributed* to Germany’s Iron Chancellor Otto von Bismarck should read pages 6 through 21. Enough said.

Because 2 February 2022 is the deadline in Ohio for candidates for legislative offices to submit petitions and declarations of candidacy, the Court ordered the Commission to meet, draw up, and submit new redistricting maps to the Court within ten days of its decision.

In yesterday’s column I wrote about North Carolina’s two decade charade in which the Party out of power repeatedly calls for an Independent Commission to formulate map redistricting, rather than elected officials. That is, until they come to power, when it suddenly doesn’t seem like such a good idea. In Chief Justice O’Connor’s concurring opinion she begins by saying she agrees with everything in the Court’s decision and order. But then she goes into depth about how Ohio’s voters might want to amend the Constitution again in order to create such an Independent Commission in an attempt to stop all the partisanship, or at least slow it down. She analyzes Arizona’s decision to do just that. In my next column, I’ll examine the Arizona change and report on its results thus far.

But for the moment, ask yourself this: Are we one country, or are we fifty countries? Are the shenanigans that go on every ten years in every state capitol what we really want for America? Or, do we want one, unified system that insures all elections, at least at the federal level, are governed by the same rules?

I’d love to know how America’s voters, not America’s legislators, would answer those questions.

*The true author is now  believed to have been American poet John Godfrey Saxe, who said it in 1869, 25 years before Bismarck. Saxe’s exact quote is, “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”




North Carolina Shows The Difficulty Of Passing Voting Rights Legislation

Thursday, January 13th, 2022

Is extreme partisan gerrymandering unconstitutional? That’s the question a three-judge State Court panel of the North Carolina Superior Court answered this week with a firm “NO.” And they took 260 pages to do it. I know, because I read every one of them so you wouldn’t have to.

As I write this, two voting rights bills are ricocheting around congress looking for homes. They are the John Lewis Voting Rights Advancement Act (VRAA) and the Freedom To Vote Act.

In 2013, the Supreme Court struck down a provision of the Voting Rights Act of 1965 that required states with a history of voting rights abuses to get Department of Justice approval for changes they wished to make to their voting rules. The Court said Congress should come up with a new formula for doing that, and that is what the VRAA tries to do. The VRAA:

  • Modernizes the Voting Rights Act of 1965’s formula determining which states and localities have a pattern of discrimination;
  • Ensures last-minute voting changes do not adversely affect voters by requiring officials to publicly announce all voting changes at least 180 days before an election; and
  • Expands the government’s authority to send federal observers to any jurisdiction where there may be a substantial risk of discrimination at the polls on Election Day or during an early voting period.

The other bill, the Freedom To Vote Act, is specifically aimed at combating voter suppression and voter subversion. One of its provisions would ban partisan gerrymandering. Which gets us back to North Carolina.

The State Court’s lengthy decision:

  • Summarized the procedural history. A key point is state voting maps are drawn up by the state legislature every ten years to reflect decennial census data. The Court takes the time to describe how the Party in power at that time always wants to stay in power (what a surprise) and historically has taken steps to do that. It describes how from 2000 to 2010, when Democrats were in power, Republicans offered legislation every year to create an independent commission to set the maps, rather than the legislature. All the bills failed. From 2010 to 2020, when Republicans held power (they still do), Democrats offered the same legislation every year to create the same independent commission. Amazingly, those bills failed, too. The State Court concluded the legislature demonstrated that drawing the maps would be a legislative function, i.e., political, rather than a judicial function.
  • Described how the currently enacted maps were drawn. The Republican controlled legislature established four rooms in the State House, each with encrypted computers where the maps would be created. The map drawing was transparent to both legislators and the public. The process took four months, after which the maps were debated and passed into law. Democrats made many challenges, all of which were defeated. The vote to approve the maps was strictly party-line.
  • Analyzed the extreme partisan gerrymandering claims brought by the plaintiffs. A series of experts, having designed a number of mathematical models, testified persuasively that every one of the 120 state voting districts and every one of the 14 congressional districts were intentionally created with extreme partisan gerrymandering. The Court devoted 158 pages of its decision to these claims, and in every case found for the plaintiffs. The Court said clearly that the plaintiffs were right. All the districts were the result of extreme partisan gerrymandering, which would guarantee Democrats would never win more than four of North Carolina’s 14  Congressional seats.
  • Denied the claims of Plaintiffs and ruled in favor of the Republican defendants. In describing North Carolina’s history of partisan gerrymandering, going all the way back to 1665 to do it, the three-judge panel (all Republicans) ruled that because the decennial  map drawing had been amply demonstrated to be a political process, rather than judicial, and even though the Court might believe the process to be “repugnant,” over decades the history had shown this was the way both parties wanted it, and, therefore, it reflected the will of the electorate. The court ruled extremely partisan maps are “permissible,” and that no one had been able to prove at what point they became impermissible.

Gerrymandering has been with us since 1812, when Elbridge Gerry, Governor of Massachusetts, drew the long and thin salamander-looking state senate district in Massachusetts. Both parties relish it, except when they’re not in power. Then, it’s “Let’s create an independent commission to do it the right way!”

Banning partisan gerrymandering is only one of the 24 provisions in the Freedom To Vote Act. But I think North Carolina has demonstrated it’s complicated. As are the other 23 provisions. If you peel the onion all the way down, it’s hard to pretend the current political battle isn’t a fight about states’ rights. Do we have a unified, federally designed system to insure free and fair elections in every state, or is it every state for itself? Is there any room for compromise on these bills?

This question has been with America since its founding. For example, on this date in 1833, President Andrew Jackson, the favorite president of that well-known historian Donald Trump, stared down his former Vice President John C. Calhoun over the South Carolina Nullification Crisis. The state had nullified a federal tariff that favored Northern manufacturing over Southern agriculture. Calhoun saw federal law supremacy as a serious threat to slavery. Consequently, he and his South Carolina neighbors were having none of this tariff thing, and they were preparing to go to war to resist. Jackson responded to South Carolina’s ire with a Proclamation to the people of South Carolina. Considered the greatest state paper of the era, Jackson promised to uphold the federal tariff and warned “disunion by armed force is treason.” In that instance, bloodshed was averted by a compromise offered by Henry Clay that provided for a reduced tariff and enabled Calhoun to save face.

Where’s Henry Clay when you need him?