In GOP Shutout, Were Dem Voters Shut Out? Ctd

Why Not Vote

Christopher Ingraham passes along the above chart on Americans who didn’t vote:

Republican vote-suppression efforts have already received plenty of attention, and rightfully so – it’s an embarrassment that one political party sees a smaller electorate as the path to victory. But voters turned back at the polls represent at best a tiny fraction of the 10 percent who didn’t vote for technical reasons. Pew’s numbers suggest there’s a lot of work to be done to help the 35 percent of voters who couldn’t accommodate a trip to the polling place in their work or school schedules.

Frank Barry dismisses Wendy Weiser’s claim that voter restrictions suppressed so much Democratic turnout last week as to influence the outcomes of some close elections:

Weiser’s argument has been picked up by other voting-rights advocates and pundits, but it falls apart upon closer scrutiny. Even with seven fewer days, early voting in North Carolina increased this year compared with 2010 — by 35 percent. Statewide turnout also increased from the previous midterm election, to 44.1 percent from 43.7 percent. Even if turnout was lower than it would have been without the new voting law — something that’s impossible to establish — it was still higher than it had been in four of the five previous midterm elections, going back to 1994. In addition, based on exit polls and voter turnout data, the overall share of the black vote increased slightly compared with 2010.

Rick Hasen, an expert on election law, says he’s skeptical about Weiser’s analysis, and rightly so. When voting-rights advocates fail to include any balancing points in their discussion of the election, they undercut their credibility and give ammunition to Republicans who suspect that they are mostly interested in electing Democrats.


In GOP Shutout, Were Dem Voters Shut Out?

Juan Thompson claims that voter suppression tactics were at least partly responsible for the turnout trouble among Democrats last week:

In Georgia … nearly 40,000 new voters mysteriously vanished from the rolls, possibly due to scrubbing by a controversial software system known as Crosscheck. Turnout was only 34%, which is down six percentage points from 2010.

Over the past two years Raphael Warnock, leader of Atlanta’s historic Ebenezer Baptist Church, worked with the New Georgia Project to register some 80,000 new and mostly black voters. New Georgia Project’s efforts was the state’s largest voter registration drive in 50 years, according to reports. “It’s a fundamental, basic American right to vote”, Warnock told me. Such thinking explains why he was so angry when half of those new voters failed to appear on the rolls this fall. “The Georgia Secretary of State’s office had no explanation at all as to where those voters went”, Warnock explained.

A person in the Georgia Secretary of State’s office declined comment (after alerting me to the fact that “the election’s over”). But earlier this year, that same office accused the New Georgia Project of voter registration fraud. In the end only 50 questionable forms were found. Georgia, it must also be noted, is one of 27 states using the controversial software Crosscheck to weed out supposed voter fraud.

Wendy Weiser of the Brennan Center for Justice even suggests that new restrictions may have suppressed enough votes to turn some close races:

In the North Carolina Senate race, state house speaker Thom Tillis beat Senator Kay Hagen by a margin of 1.7 percent, or about 48,000 votes. At the same time, North Carolina’s voters were, for the first time, voting under one of the harshest new election laws in the country — a law that Tillis helped to craft. Among other changes, the law slashed seven early voting days, eliminated same-day registration, and prohibited voting outside a voter’s home precinct — all forms of voting especially popular among African Americans. …

Some numbers from recent elections suggest that the magnitude of the problem may not be far from the margin of victory: In the last midterms in 2010, 200,000 voters cast ballots during the early voting days now cut, according to a recent court decision. In 2012, 700,000 voted during those days, including more than a quarter of all African-Americans who voted that year. In 2012, 100,000 North Carolinians, almost a one-third of whom were African-American, voted using same-day registration, which was not available this year. And 7,500 voters cast their ballots outside of their home precincts that year.

Naomi Shavin’s early tally of calls into the Election Protection Hotline also painted a picture of an unusually problematic election:

The hotline handles calls from voters who need to know if they’re registered, find their assigned polling locations, and report difficulties in their attempts to vote. Yesterday, the national hotline had taken over 16,000 calls by 8 p.m., with 3.5 hours to go until polling ended. (By comparison, the hotline received 12,857 calls all day on Election Day in 2010.) Texas, Georgia, and Florida seemed to be experiencing a particularly problematic Election Day. The hotline took roughly 2,000 calls from each of those states. Chris Melody Fields, the manager for legal mobilization and strategic campaigns at Lawyers’ Committee for Civil Rights Under Law, said that the call center received hundreds of calls from Georgia yesterday morning aloneso many, in fact, that calls had to be rerouted to call stations for other states.

Meanwhile, True The Vote’s new fraud-reporting smartphone app only turned up a grand total of 18 reported irregularities and just one claim of voter impersonation in the entire week leading up to the election.

Did Non-US Citizens Elect Al Franken? Ctd

John Ahlquist and Scott Gehlbach take down the study that claimed they did, pointing out that its limitations “are, in fact, numerous”:

Their estimates rely on a key question from the Cooperative Congressional Election Study: “Are you registered to vote?” Notably, this is not the same question as “Are you registered to vote in the United States?” In principle, non-citizens could be registered to vote only in their home country and respond affirmatively, and truthfully, to the question on the survey.

(Respondents are asked for the Zip code at which they are registered to vote, but this could be interpreted as the Zip code at which non-citizens receive absentee ballots from abroad. Mexico, for example, has allowed absentee voting by mail from abroad since 2005.) If this sounds outlandish, consider that 20 percent (15 out of 75) of those non-citizens claiming to be registered in 2008 were in fact verified as not being registered to vote in the United States. Another 61 percent (46 of 75) could not be matched to either a commercial or voter database. That leaves only 14 out of 75 non-citizen respondents claiming to be registered in 2008 who were in fact confirmed as registered to vote in the United States.

This raises a more general point: The Cooperative Congressional Election Study, which focuses on the behavior of citizens, is ill-suited to examine the behavior of non-citizens, who make up about one percent of the sample. One consequence of this is that the number of respondents who report that they are not citizens yet vote or are registered to vote is quite small in absolute terms: in 2010, for example, only 13 respondents — not 13 percent, but 13 out of 55,400 respondents — reported that they were not citizens, yet had voted. Given the ever-present possibility of respondent or coder error, it takes a bit of hubris to draw strong conclusions about the behavior of non-citizens from such small numbers.

Update from a reader:

In your follow-up to the post about non-U.S. citizens electing Al Franken, it maybe worth noting:

1. The authors of the original study say a follow-up will be posted at the Washington Post any day responding to critics.

2. I investigated the study, specifically looking at the question of whether the public should be worried that Democrats will win tight 2014 elections because of noncitizen voters. On a scale of 0 to 10, with 10 being absolutely true, 0 being wildly false and 5 being half-true, I rated this claim a 4, meaning slightly false. Study author Jesse Richman responded that he agreed.

He said two things your voters may be especially interested in that are a bit of a walk-back from his original post: “Noncitizen voting might tip one or two extremely close races but is unlikely to tip the balance in the Senate, and certainly not in the House.” And: “More work is needed. We view our study as the beginning of the process, not the definitive work on the question.” You can read his full email reply here.

Did Non-US Citizens Elect Al Franken?

Jesse Richman and David Earnest used data from the Cooperative Congressional Election Study to estimate how many non-citizens may have voted in the 2008 and 2010 elections. Their findings suggest that these ineligible voters turned out in numbers large enough to swing some close races:

More than 14 percent of non-citizens in both the 2008 and 2010 samples indicated that they were registered to vote. Furthermore, some of these non-citizens voted. Our best guess, based upon extrapolations from the portion of the sample with a verified vote, is that 6.4 percent of non-citizens voted in 2008 and 2.2 percent of non-citizens voted in 2010.

Because non-citizens tended to favor Democrats (Obama won more than 80 percent of the votes of non-citizens in the 2008 CCES sample), we find that this participation was large enough to plausibly account for Democratic victories in a few close elections. Non-citizen votes could have given Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass health-care reform and other Obama administration priorities in the 111th Congress. Sen. Al Franken (D-Minn.) won election in 2008 with a victory margin of 312 votes. Votes cast by just 0.65 percent of Minnesota non-citizens could account for this margin. It is also possible that non-citizen votes were responsible for Obama’s 2008 victory in North Carolina. Obama won the state by 14,177 votes, so a turnout by 5.1 percent of North Carolina’s adult non-citizens would have provided this victory margin.

The authors acknowledge that the CCES’s samples of non-citizen respondents are quite small (339 in 2008 and 489 in 2010) and that their extrapolated guesses are not exact. They express more confidence, however, in their claim that Franken was elected with illegal votes. Interestingly, they also find evidence that voter ID laws would not have prevented all of these non-citizens from voting, as “[n]early three quarters of the non-citizens who indicated they were asked to provide photo identification at the polls claimed to have subsequently voted”. Still, this will be enough for champions of voter ID laws on the right to claim that they told you so, as Allahpundit does here:

Obama winning a state illegally in a presidential election is bad but will be dismissed on grounds that it didn’t affect the overall result. Flip North Carolina to McCain’s column and it’s still a giant blowout. Franken winning a Minnesota seat illegally is a different ballgame. He was the 60th vote for ObamaCare. Replace him in the Senate with Norm Coleman and the law probably never passes. The authors are arguing overtly that health-care reform was made possible only by illegal votes. There are a bunch of races this year that could end up with whisper-thin margins of victory as well — Perdue versus Nunn in Georgia, Cassidy versus Landrieu in Louisiana, Tillis versus Hagan in North Carolina, even Gardner versus Udall in Colorado. If Democrats eke out victories in a few of those by a few thousand or even a few hundred votes, why would you believe after reading this study that those victories were fairly earned? And remember, as a Twitter pal points out, the numbers in the study are based on non-citizens who admitted to voting when asked. How many voted and were smart enough not to cop to it?


[S]ome respondents might have mistakenly misreported their citizenship status on this survey (e.g. response error). For, as Richman et al. state in their Electoral Studies article, “If most or all of the ‘non-citizens’ who indicated that they voted were in fact citizens who accidentally misstated their citizenship status, then the data would have nothing to contribute concerning the frequency of non-citizen voting.” In fact, any response error in self-reported citizenship status could have substantially altered the authors’ conclusions because they were only able to validate the votes of five respondents who claimed to be non-citizen voters in the 2008 CCES.

It turns out that such response error was common for self-reported non-citizens in the 2010-2012 CCES Panel Study … To be sure, my quick analysis does not at all disprove Richman et al’s conclusion that a large enough number of non-citizens are voting in elections to tip the balance for Democrats in very close races. It does, however, suggest that the CCES is probably not an appropriate data source for testing such claims.

Meanwhile, Rich Lowry defends voter ID laws by turning to a GAO report suggesting “that the number of voters getting locked out by voter ID laws is diminishingly small”:

According to the GAO, in Kansas in 2012, 1,115,281 ballots were cast. There were 38,865 provisional ballots, and of these, 838 were cast for voter ID reasons. In Tennessee, 2,480,182 ballots were cast. There were 7,089 provisional ballots and of these, 673 were cast for voter ID reasons. In both states, about 30 percent of these voter ID-related provisional ballots were ultimately accepted. That means in Kansas and Tennessee, altogether about 1,000 ballots weren’t counted (and perhaps many of them for good reason), out of roughly 3.5 million cast. There you have it ladies and gentlemen, voter suppression! It is of such stuff that Jim Crow was made.

Chait dismantles this argument:

The GAO also studied the impact of vote restrictions in Kansas and Tennessee and found significant reductions in the African-American vote. Lowry says that the Republicans in those states “dispute the methodology,” and takes their side. What the dispute over methodology really shows is that the impact of one change in voting laws is extremely hard to prove. A natural response would be to fall back on the intuitive premise that raising the cost of voting reduces voting. But conservatives seem reluctant to apply their normal beliefs in markets to this question. …

Is it possible that some of the prospective voters who lacked the requisite identification did not show up at the polls at all? Lowry does not consider the possibility.

Emily Badger takes on another aspect of Lowry’s reasoning:

What stands out about this argument is the idea that any disenfranchisement would be OK, when a central rationale for voter ID laws in the first place is that any voter fraud is not. Researchers have repeatedly documented that voter fraud — especially of the kind that might be caught by ID laws — is exceptionally rare. The supporters of ID laws don’t always dispute this. But they often say, as Wisconsin Governor Scott Walker does here, that the scale of fraudulent voting is irrelevant[.] … If you’re absolutist about elections and feel that a single case of voter fraud averted by ID laws justifies their existence, then it doesn’t add up to also argue that any number of people disenfranchised by the creation of those laws is just the cost of protecting democracy.

Dahlia Lithwick sees a similar error at work in the way conservative judges have decided recent cases concerning Texas’s voter ID and abortion laws:

The 5th Circuit evinced a kind of Marie Antoinette approach to individual justice in these cases. When it shut down access to both voting and abortion in Texas, it indicated without precisely saying so that as long as citizens have fast cars and flexible work schedules, they are not burdened by Texas’ regulations. And seemingly there are no Texans without fast cars and vacation time in their view. At oral argument in the case about the shutdown of 20 Texas clinics, Judge Edith Brown of the 5th Circuit heard that abortion clinic closures would leave the Rio Grande area without any providers, forcing women who live there to drive 300 miles round trip to Corpus Christi. The judge sniffed, “Do you know how long that takes in Texas at 75 miles an hour? … This is a peculiarly flat and not congested highway.” …

It’s utterly baffling, this new math. Math that holds that seven incidents of vote fraud should push hundreds and thousands of voters off the rolls. Or that hundreds of thousands of women can be denied access to safe abortion clinics, supposedly to prevent vanishingly small rates of complications. I don’t know how we have arrived at the point where members of the judicial branch—the branch trusted to vindicate the rights of the poorest and most powerless—don’t even see the poor and powerless, much less count them as fully realized humans.

Democracy Is Too Good For You Plebs

After a two-hour meeting between Hong Kong officials and protest leaders made no real progress toward resolving the standoff, the demonstrations continued yesterday, including some 200 protesters marching to the home of the territory’s Chief Executive Leung Chun-ying. Many are reportedly outraged over comments Leung made to the foreign press on Monday insisting that open elections were unacceptable because they could give the poor too much of a voice:

In an interview with a small group of journalists from American and European news media organizations, [Leung’s] first with foreign media since the city erupted in demonstrations, he acknowledged that many of the protesters are angry over the lack of social mobility and affordable housing in the city. But he argued that containing populist pressures was an important reason for resisting the protesters’ demands for fully open elections. Instead, he backed Beijing’s position that all candidates to succeed him as chief executive, the top post in the city, must be screened by a “broadly representative” nominating committee appointed by Beijing. That screening, he said, would insulate candidates from popular pressure to create a welfare state, and would allow the city government to follow more business-friendly policies to address economic inequality instead.

Beinart ties this in with the debate over voter ID laws and early voting in the US, arguing that “Leung’s views about the proper relationship between democracy and economic policy represent a more extreme version of the views supported by many in today’s GOP”:

In 2010, Tea Party Nation President Judson Phillips observed that “The Founding Fathers … put certain restrictions on who gets the right to vote … one of those was you had to be a property owner. And that makes a lot of sense, because if you’re a property owner you actually have a vested stake in the community.”

In 2011, Iowa Representative Steve King made a similar observation, noting approvingly, “There was a time in American history when you had to be a male property owner in order to vote. The reason for that was, because [the Founding Fathers] wanted the people who voted—that set the public policy, that decided on the taxes and the spending—to have some skin in the game. Now we have data out there that shows that 47 percent of American households don’t pay taxes … But many of them are voting. And when they vote, they vote for more government benefits.”

In 2012, Florida House candidate Ted Yoho remarked, “I’ve had some radical ideas about voting and it’s probably not a good time to tell them, but you used to have to be a property owner to vote.” Yoho went on to win the election.

Philips, King, and Yoho are outliers. Most prominent Republicans would never propose that poor people be denied the franchise. But they support policies that do just that.

Vote Early, Vote Often?

John Fund argues against early voting:

Consider that for all of the hullabaloo about early voting, studies have shown it hasn’t increased overall voter turnout. Curtis Gans, director of the Committee for the Study of the American Electorate, notes turnout is down even in states that have made it easier to vote through Election Day registration or early voting.

Gans and other observers are also concerned that early voters won’t have the same information as those who vote on Election Day. They may miss out on candidate debates or be unable to factor in other late-developing election events. “Those who vote a month in advance are saying they don’t care about weighing all the facts,” says Adams, the former Justice Department official. One secretary of state I interviewed compared early voting that takes place before debates are finished with jurors in a trial who stand up in the middle of testimony and say they’ve heard enough and are ready to render a verdict.

In response, Chait proposes “a perfect solution that would address Fund’s professions of deep social commitment to a single national voting day while also addressing concerns about the inconvenience”:

You’d simply have to make Election Day a national holiday.

Sadly, Fund — who does not mention this idea in his most recent article — has previously dismissed it on the grounds that creating a holiday on a Tuesday would lead to people skipping work on the preceding Monday. (It “might do little more than create a de facto Saturday to Tuesday four-day weekend,” he wrote, in 2005.) So that’s out, too.

Furthermore, Ian Millhiser notes that efforts to cut back on early voting often have discriminatory effects, and sometimes even discriminatory intentions:

[A]s Judge Peter Economus explained in a decision suspending the Ohio cuts to its early voting days that were later reinstated by the Supreme Court, “a greater proportion of blacks not only cast [early] ballots than whites but do so on early voting days that” were eliminated by the new voting schedule. Additionally, some states have made early voting cuts that seem designed to diminish minority voting. After Florida’s early voting cuts helped produce six hour voting lines in 2012, one GOP consultant admitted that voting was eliminated on the Sunday prior to Election Day because “that’s a big day when the black churches organize themselves.” (Additionally, low-income voters are particularly likely to use early voting. As a federal court noted in 2012, “early voters have disproportionately lower incomes and less education than election day voters.” Thus they are likely to have less flexibility to show up to the polls on a particular day.)

Phyllis Schlafly, meanwhile, wants to end it simply because it benefits Dems. Nicole Hemmer attributes the Republican preoccupation with voter ID laws and other means of restricting voting to “a broader conservative discomfort with mass democracy”:

Take the recent push to repeal the 17th Amendment. Ratified in 1913, the 17th Amendment established the direct election of senators, who had previously been appointed by state legislatures. Since 2010, a number of big-name conservatives have arrayed themselves behind the repeal, including Justice Antonin Scalia, Sen. Ted Cruz and radio talk-show host Mark Levin. Proponents of repeal placed states’ rights ahead of democratic processes. In justifying his call for repeal, one conservative writer explained, “The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty.” …

Yet this skepticism about democracy and universal suffrage never receives top billing when conservatives call for voter ID laws. In part, that’s because open opposition to voting doesn’t go over well with the general public, as conservative writer Matthew Vadum discovered in 2011 after his piece “Registering the Poor to Vote Is Un-American” generated intense backlash. And in part it’s because conservatism’s anti-democratic strain coexists uneasily with its anti-establishment populism, a contradiction that the movement has never reconciled.

Lastly, Yglesias contends that it’s time we amended the Constitution to establish an affirmative right to vote:

A constitutional right to vote would instantly flip the script on anti-fraud efforts. States would retain a strong interest in developing rules and procedures that make it hard for ineligible voters to vote, but those efforts would be bounded by an ironclad constitutional guarantee that legitimate citizens’ votes must be counted. A state that wanted to require possession of a certain ID card to vote, for example, would have to take affirmative steps to ensure that everyone has that ID card, or that there’s a process for an ID-less citizen to cast a ballot and have it counted later upon verification of citizenship. …

But beyond the politics, it’s a good idea on the merits. It would enshrine in our Constitution a principle that we already believe: that the right to vote is an inherent attribute of citizenship and a cornerstone of civic equality.

SCOTUS Split On Voter ID

In a ruling issued at the unusual hour of 5 am on Saturday morning, the Court allowed Texas’s voter ID law to remain in place for the upcoming elections, citing concerns about disrupting the voting process. But not all of the justices were on board:

A majority of justices rejected an emergency request from the Department of Justice and civil-rights groups to keep the state from enacting a law that requires citizens to produce prescribed forms of photo identification before they could cast a ballot, while three justices—Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan—dissented. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” wrote Ginsburg.

The order was delayed, apparently, because Ginsburg insisted on issuing a dissenting opinion. Rick Hasen digs into her six-page dissent, which he sees as laying the groundwork for a future battle:

Importantly, Ginsburg concluded that the effect of the law in its entirety would be to diminish voter confidence in the system. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” she wrote.

The Texas case will likely make it back to the Supreme Court, perhaps next year, after the 5th Circuit takes a full look at the case. While the Supreme Court’s vote on the stay order in the Texas case does not tell us for sure how things will go when the court gets to the constitutional merits of the challenge, the five conservative justices on the Supreme Court are likely to let Texas put its ID law in place because of their general view of the scope of the Constitution and the Voting Rights Act. No doubt Justice Ginsburg knows this.

How Judis understands the motivation behind the law:

[Gov. Rick] Perry claimed that the law would “uphold the integrity of our state’s electoral process and insure our state has passed the proper protections against voter fraud.” The law, which requires a photo ID, was intended to prevent voter impersonation, but as [judge Nelva Gonzales] Ramos pointed out, Texas had uncovered exactly two cases of voter impersonation from 2001 to 2011. Its real purpose was to forestall a demographic time bomb that could threaten Texas’ Republican majority. From 2000 to 2010, 78 percent of Texas’s population increase consisted of African-Americans and Hispanics, who could be expected to support Democrats rather than Republicans. If those population trends were to continue, and if the new Hispanic voters (who made up the bulk of the population increase) were to flock to the polls, Republicans could be doomed.

Scott Lemieux admits that there is “a quasi-defensible reason for the court’s latest move”:

The Supreme Court is usually reluctant to issue opinions that would change election rules when a vote is imminent. For example, the court recently acted to prevent Wisconsin from using its new voter ID law in the upcoming midterms, coming to the opposite result from the Texas case. That is the principle at work here, and on a superficial level it makes sense.

But as Ginsburg — joined by Justices Elena Kagan and Sonia Sotomayor — points out, the general reluctance to change election rules at the last minute is not absolute. In Wisconsin, using the new law would have created chaos. For example, absentee ballots would not have indicated that identification was necessary for a vote to count, so many Wisconsin voters would have unknowingly sent in illegal ballots.

In the Texas case, conversely, there is little reason to believe that restoring the rules that prevailed before the legislature’s Senate Bill 14 would have been disruptive.

Ultimately, the court may end up backing Ginsburg’s contention that the law is unconstitutional, but Ian Millhiser complains that letting it stand even for one election is dangerous, and looks to history for the reason why:

For much of the Jim Crow Era, the South was a one party region. General elections were largely formalities, and the Democratic Party’s candidate was all but guaranteed victory. So, in 1923, Texas tried to prevent African Americans from voting by enacting a law providing that “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” When this law was struck down by the Supreme Court, Texas enacted a new law allowing the state Democratic party to establish rules that only permitted “white democrats” to vote in the primary. When that law was struck down, the state party passed a resolution, pursuant to no law whatsoever, providing that only “white citizens” may vote in a Democratic primary. This action by the state Democrats was ultimately upheld by the Supreme Court, although the justices reversed course nine years later.

The lesson is that, if you allow a voter suppression law to go into effect for just one election, then the supporters of that law are likely to come up with a new way to suppress the vote if the first law is ultimately struck down. And even if the second voter suppression law is ultimately struck down, this cycle can continue forever so long as each law is allowed to be in effect for just one election.

You Can’t Hurry The Supremes

Dahlia Lithwick puzzles over the recent spate of high-impact SCOTUS decisions that came in the form of injunctions and cert denials. She looks to explain why “unsigned, unexplained reasoning is the new black”:

Between the state legislatures getting way out in front [o]f the court’s doctrine on voting rights and abortion, and the court’s decision to hang back and wait for conflicting decisions from different circuit courts in the marriage equality cases, what we seem to be witnessing is a Supreme Court that is dealing with events moving at lightening speeds. It may be attempting to impose what [former acting solicitor general Walter] Dellinger describes as “procedural dignity” upon the process. Even when the court issues late-night stays and unsigned orders, the court is clarifying that it gets the last word, even when the last word is haughty silence.

Thus, in the voting rights context, the court is merely ensuring that states do not put new systems in place immediately prior to the midterm elections. In the marriage equality context, the court is simply affording the states the opportunity to arrive at the correct conclusions on their own schedules.

And in the Texas abortion context, the court is reacting to a set of Texas regulations that appear to completely reinterpret (if not blatantly disregard) the rule announced by the court itself in its 1992 decision in Planned Parenthood v. Casey. As Greenhouse notes, the 5th U.S. Circuit Court of Appeals more or less ignored Casey when it ruled on the Texas abortion regulations: “In holding that the forced closing of every abortion clinic south and west of San Antonio, requiring women to travel hundreds of miles to exercise their constitutional right, was not an undue burden in purpose or effect, the Fifth Circuit ruled in blatant disregard of the Casey standard.” Really, was the court going to permit that to happen? When the court bats these issues away, it’s merely saying that nobody rushes the highest court in the land. Not even Texas.

Does Voter ID Inherently Discriminate?

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Dara Lind highlights a new study illustrating the subtle ways in which race influences white Americans’ opinions of voter ID laws:

The study, which was conducted by two University of Delaware professors and a Pennsylvania high school student, was fairly straightforward. It asked people whether they supported or opposed laws that required people to show a form of government-issued ID at the polls.  Some respondents were shown a picture alongside the question, of either a white voter or a black voter, and others weren’t shown a picture at all. The researchers found that black and Hispanic respondents were about equally likely to support or oppose the laws regardless of who was featured in the picture. And white respondents were as likely to support the law when they saw a picture of a white voter as they were when they saw no picture at all. But when the picture alongside the question showed a black voter, more whites supported voter ID .…

The study isn’t too surprising. Similar research has shown that whites are more likely to support harsh criminal justice policies, like stop-and-frisk, when they see images of or hear statistics about black prisoners. And voter ID is like stop-and-frisk in one important respect: it’s a race-neutral policy in theory, but in practice it ends up disproportionately harming people of color.

Bouie puts the study in context of a growing body of evidence that voter ID laws have discriminatory effects, even though that may not be their intent:

Likewise, a 2013 study from researchers Keith G. Bentele and Erin E. O’Brien found a tight relationship between race, Republicans, and voter ID. If a state elected a Republican governor, increased its share of Republican legislators, or became more competitive while under a Republican, it was more likely to pass voter ID and other restrictions on the franchise. Moreover, states with “unencumbered Republican majorities” and large black populations were especially likely to pass identification laws.

For Bentele and O’Brien, this comes down to partisanship. “These findings demonstrate that the emergence and passage of restrictive voter access legislation is unambiguously a highly partisan affair, influenced by the intensity of electoral competition,” they write. Even with the context of the other studies, I think this is right. Voter ID boosters don’t hold anti-minority animus as much as they want to maximize political advantage.

Chris Ingraham hopes the tide is turning against these laws:

The legal justification for voter ID laws stems from a 2008 Supreme Court ruling that the laws are generally applicable and nondiscriminatory, meaning that they’re not meant to reduce turnout among a particular group. But studies this year have demonstrated strong evidence for discriminatory intent behind the laws. The University of Delaware study adds to this body of evidence. It also seems that the judiciary is starting to agree: Courts have blocked the enactment of voter ID requirements in Wisconsin and Texas this year, citing these disproportionate impacts.

Even more notably, Judge Richard Posner, the Ronald Reagan appointee whose 2008 ruling in favor of voter ID was upheld by the Supreme Court, has had a change of heart. In a blistering opinion released last week, he concludes that the case for voter ID laws is at odds with the evidence.

Michael Hiltzik digs into Posner’s opinion and explains why it’s such a BFD:

Posner’s dissent in the Wisconsin voter ID case is especially telling, because he wrote the so-called Crawford decision in 2007 upholding Indiana’s voter ID law, in which he was upheld by the Supreme Court. But he has since recanted. In a 2013 book, he accepted the view that such laws are properly regarded as “a means of voter suppression rather than fraud prevention.” That’s the view that informs his latest opinion.

“There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud,” he writes, “and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” More specifically, he observes, photo ID laws are “highly correlated with a state’s having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting by minorities, particularly blacks.” In Wisconsin, according to evidence presented at trial, the voter ID law would disenfranchise 300,000 residents, or 9% of registered voters.

On the other hand, Noah Feldman argues that Posner’s heart hasn’t changed – the evidence has:

A close reading of Posner’s opinion indicates that the judge hasn’t so much reversed his earlier view as he has taken seriously data that were unavailable in 2007. The numbers, as Posner now interprets them, do strongly suggest that the purpose of voter ID laws is to make it more difficult for poor people, especially blacks and Latinos, to cast votes. According to Posner, he wasn’t wrong in 2007. It’s just that then, there was no basis to assume that Indiana was trying to exclude minority voters. Now, there’s evidence in favor of that view.

A Long Drive To Get An Abortion In Texas, Ctd

The Fifth Circuit ruling from earlier this month that upheld Texas’s strict new abortion law – and would force most of the state’s abortion clinics to shut down – has been blocked by SCOTUS:

The justices addressed two parts of the Texas law that the United States Court of Appeals for the Fifth Circuit had provisionally let stand while it considered an appeal. One of them required all abortion clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other required doctors performing abortions to have admitting privileges at a nearby hospital. The Supreme Court, in an unsigned order apparently reflecting the views of six justices, blocked the surgical-center requirement entirely and the admitting-privileges requirement as it applied to clinics in McAllen, Tex., and El Paso.

Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. said they would have allowed the law to be enforced.

Amy Davidson compares the abortion ruling to another Fifth Circuit decision issued yesterday, which will allow Texas to enforce its voter ID law in the upcoming election:

These legal fights are about access, but they’re also about timing.

Texas bans abortions after twenty weeks. Women’s lives are not always set up in ways that allow them to simply drive hundreds of miles away, on any day they like, without making what can be complicated arrangements for work, school, or child care. For some, even gas money becomes a factor. (In that way, it would have worked as a regressive tax, too.) By the time everything is in place, a woman may have lost the chance to control her body and her future. And once you haven’t voted in an election, you’ve lost your chance—the vote won’t be re-run.

Robyn Pennacchia reviews why the admitting privileges requirement is spurious:

While this might sound reasonable if one doesn’t think too hard about it, the fact remains that you do not actually need your doctor to have “admitting privileges” in order to go to a hospital. If an emergency happens, you just go to the hospital emergency room, and they are required to care for you regardless of who your doctor is, whether or not you have even seen a doctor in the last 15 years, the reason you are there, and, indeed, whether or not you have insurance. In practice, a doctor having “admitting privileges” means pretty much nothing–but many hospitals, particularly in Texas, will not issue them to doctors performing abortions for fear of retribution from conservative donors and lobbyists.

Jonathan Adler expects more abortion-related news out of SCOTUS in the near future:

This case is likely to return to the Supreme Court later this term, and other abortion cases may reach the One First Street as well.  Most observers expect some or all of this law will be upheld by the Fifth Circuit, which would create a circuit split. (The U.S. Court of Appeals for the Seventh Circuit struck down similar requirements last December, and SCOTUS denied certiorari over the summer.) …

This is not the only abortion case that appears headed to the court.  As I noted here, the appellate courts are split on the constitutionality of state-level restrictions on the use of abortion-inducing medications.  Several states have enacted laws barring the off-label use of such drugs to induce abortions. As I understand it, such restrictions make it very difficult to use such drugs as abortifacients.  Such rules have been upheld in several circuits, but not in the Ninth, and a cert petition is now pending in that case. (Arizona filed last month and replies are due November 10.)