Penn. Resists Voter Suppression

By William Boardman, Reader Supported News

30 August 12

Reader Supported News | Perspective

 

Partisan voter suppression outsmarts the law, for now.

cross the media, the headlines got it wrong when they claimed "Judge Upholds Voter ID Law in Pennsylvania," or some variation of that assertion. The judge didn't strike down the law, and it's still very much under challenge in the courts.

Even though it took Commonwealth Court Judge Robert Simpson some 70 pages to explain his decision, the decision did not "uphold" the law. The decision in Applewhite v. Commonwealth only denied the plaintiffs' application for a preliminary injunction. The grounds were as simple as they were legalistic: Judge Simpson found no basis for suspending the law at once because the plaintiffs' could not show it would be unconstitutional in every conceivable circumstance.

The legal issue is "facial constitutionality," or whether the voter ID law is unconstitutional on its face, which is a hard standard to meet. All other questions of substance remain untouched by this decision and remain to be litigated in further court actions, especially any that consider the law "as applied," or as it works in practice.

That's what the judge meant in the summary of his decision: "Petitioners' counsel did an excellent job of 'putting a face' to those burdened by the voter ID requirement. At the end of the day, however, I do not have the luxury of deciding this issue based on my sympathy for the witnesses or my esteem for counsel. Rather, I must analyze the law, and apply it to the evidence of facial unconstitutionality brought forth in the courtroom, tested by our adversarial system. For the foregoing reasons, I am constrained to deny the application for preliminary injunction, without prejudice to future 'as applied' claims." [Emphasis added.]

In other words, Judge Simpson's decision on the injunction has no weight whatsoever in any future challenge to the law and any claims of actual harm it may cause.

The judge's ruling is a grand example of where the law takes leave of reality. Majestically, logically, correctly perhaps - but insanely - the law here protects the deliberate, planned perpetration of injustice - Republican suppression of voting groups more likely to vote for Democrats.

This is not a matter of dispute. The voter ID bill was partisan and passed on a partisan vote, with no Democrat in the legislature voting for it. The Pennsylvania House Majority Leader Mike Turzai, a Republican from Allegheny, made the political strong arming crystal clear last June: "Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done."

Since Judge Simpson, 61, is an elected judge, he has a clear, apparent interest in how his decision might affect the electorate that put him in office. He did not discuss this possible conflict in his decision. He is also a Republican, serving a ten-year term that ends in December 2021, leading to speculation that his decision may have been partisan.

Other than that circumstance, however, there's no evidence to support suspicion, and at least one legal writer has looked at the question in detail for the Los Angeles Times and given the judge a pass.

The partisan nature of voter suppression isn't subtle. This isn't politics as usual. Both sides don't do it. Democrats used to suppress the black vote back when the "solid South" voted Democratic. But for at least the past fifty years, Democrats have worked to expand the vote. Perhaps because it has something to do with democracy.

Ever since 1964, the South has been increasingly safe for Republicans and there's an ugly racial element to that. Richard Nixon made that explicit with his so-called southern strategy, and Ronald Reagan affirmed it when he started his 1980 campaign in Philadelphia, Mississippi, while that community was still protecting the murderers of Civil Rights workers there in 1964.

Since January 2011, Republican majorities in eleven state legislatures have passed voter ID laws designed to skew the vote toward Republican candidates in those eleven states. The Brennan Center for Justice tracks these laws through its Democracy Program that "seeks to change the ways in which citizens participate in their government by fixing the systems that discourage voting, hinder competition and promote the interests of the few over the rights of the many."In Texas and South Carolina, with their long histories of suppressing minority voting, the US Justice Dept. has intervened to block both states from implementing their voter ID laws. In Wisconsin, Dane County Circuit Judge Richard Niess ruled in July that the Republican-passed voter ID law was unconstitutional on its face, writing in part: "A government that undermines the very foundation of its existence - the people's inherent, pre-constitutional right to vote - imperils its legitimacy as a government by the people, for the people, and especially of the people.... It sows the seeds for its own demise as a democratic institution. This is precisely what 2011 Wisconsin Act 23 does with its photo ID mandates." So saying, he issued a permanent injunction against the State of Wisconsin, preventing the state from further implementing the law. The state has appealed the decision.

Republicans promoting these voter ID laws - and lately it's only Republicans who promote them - argue that the purpose is to prevent voter fraud. Preventing voter fraud is a laudable goal. In reality there is virtually no voter fraud in the United States, especially voter fraud that would be cured by voter ID. In the rare instances where voter fraud occurs, it's much more likely the Indiana Secretary of State, the state's top election official, Charlie White, convicted on six felony counts in January, who commits voter fraud - not some 95-year-old black woman with no birth certificate who had been voting for fifty years after half a lifetime of exclusion. White, while he was still in office, had been an ardent defender of voter ID laws to prevent voter fraud.

Voter fraud is rare in the United States, at least voter fraud by individual voters. Even in the Pennsylvania case, the state admitted before trial that it has no cases of voter fraud to offer as evidence of the need for a voter ID law. Voter fraud is only slightly more common than tsunamis in Arizona - the easiest cure for both non-existent problems is to do nothing. Unless, of course, you have some other purpose in mind, as Pennsylvania House majority leader Turzai made plain.

Disputes over voter ID laws are no small matter, no distraction from more important issues. Voter ID laws are a Republican effort to keep a minority party in office by keeping minorities from voting, an effort to rig the system itself.

The Republican victory dance when Pennsylvania's controversial voter ID law survived its first court test may prove premature, since the law still faces at least three other likely legal challenges.

The Public Interest Law Center of Philadelphia has already filed an appeal to the Pennsylvania Supreme Court, seeking to reverse the August 15 decision of Judge Simpson, denying an injunction to prevent the law from taking effect. At the same time, his decision in Applewhite v. Commonwealth expresses misgivings about both the statute and the legislative process that produced it.

Barring further impediment, the law goes into effect on September 17, well ahead of the November 6 election. Designed to suppress the Democratic vote, the law may disenfranchise more than 750,000 otherwise eligible voters from casting ballots, about ten per cent of the Pennsylvania electorate.

Reports vary as to the effectiveness of the Pennsylvania Dept. of Transportation's implementation efforts so far, but it is clear that there is much confusion about the ID law among officials and public alike. According to one report, 80 percent of Pennsylvania personnel who were supposed to help get voters their free ID failed to tell voters that their ID was free. The same report indicated that 29 percent of recipients had to pay to get their free IDS.

Regardless of however many voters end up losing their vote, Republicans think the number could be enough for them to win elections they would otherwise lose. That's the clear meaning of Mike Turzai's comment last June: "Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done." Judge Simpson, while finding in Turzai's favor on the injunction issue, nevertheless felt the need to call Turzai's remarks "troubling" and "tendentious."

In their appeal filed August 16, the Law Center asked the Supreme Court to hear the case on an expedited basis, before the law takes effect, and the court has agreed. The court has scheduled hearings to begin September 13, the Pennsylvania Cable Network will carry them live in their totality. This is likely to be the most watched court proceeding since Chief Justice Ron Castille decided about a year ago to let cameras in the courtroom.

The September hearing date is a rebuff to Pennsylvania Governor Tom Corbett, who argued for waiting till October. The Supreme Court currently comprises six justices, three Republicans and three Democrats. A tie vote would leave the law in place.

On a separate track, there's a another lawsuit pending in Pennsylvania's second-most populous county, Allegheny, which is majority leader Turzai's home county. In contrast to Applewhite v. Commonwealth which sought an injunction on behalf of voters who would lose their right to vote, the Allegheny County challenge was brought in June by county officials, following a 2-1 party-line vote by the county election board to challenge the law. The county executive and county controller argued that the law violates both the Pennsylvania constitution and federal laws protecting the right to vote. That suit is still pending.

Additionally, the county officials say the law will cost $11 million to implement, with the state paying none of it. "So the governor is creating another unfunded mandate for all 67 counties," Allegheny county controller Chelsa Wagner said.

Allegheny County also filed a friend-of-the-court brief in Applewhite v. Commonwealth, making three arguments in support of petitioner Applewhite. The brief argued that the voter ID law violated two sections of the Pennsylvania Constitution, that it created an unfunded mandate that would cost taxpayers money while depriving some of them of their right to vote, and that it placed an unnecessary burden on the county to implement the law. "What is more," the brief argued, "no compelling state interest exists (indeed there is no state interest that has been identified) to justify these new burdens imposed on Pennsylvania voters."

The third legal challenge to Pennsylvania's voter ID law comes from the US Dept. of Justice, which has asked the state to respond to concerns that the partisan law discriminates against minorities. The Justice Dept. has asked the state for data on the Pennsylvania electorate, with a deadline that has now passed. Refusing to cooperate with the Justice Dept., Gov. Corbett says the probe is politically motivated and outside the department's authority. Corbett's general counsel cites the decision in Applewhite v. Commonwealth in defense of the voter ID law and offered to share all the state's documents prepared in defense of the law, on the condition that the Justice Dept. sign a confidentiality agreement.

The Justice Dept. could file a federal lawsuit under the 1965 Voting Rights Act, although that could prove controversial. The Mercury newspaper of Pottstown editorialized on August 24 in favors of Gov. Corbett's refusal to cooperate with "Attorney General Eric Holder's race-baiting Department of Justice." The paper argues that Judge Simpson "said the law is clearly constitutional" and that the Justice Dept. has "misapplied" the Voting Rights Act.

Meanwhile, an umbrella group called the Pennsylvania Voter ID Coalition, with 70 or more members, has hundreds of people on the ground educating voters and helping them get valid ID, which is more complicated that one might think. Even Governor Tom Corbett admitted he didn't know what would be a valid ID.

And if this coalition of unions and churches and lawyers and civil rights workers and many more is successful, then even if the courts fail to intervene, maybe enough people will be able to vote and frustrate the Republican effort to tilt the election unfairly.

So there's still a chance Pennsylvania will live up to the expectations of the state constitution's Article 1, Declaration of Rights, among them that "Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."

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William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

Money in Politics: Where Is the Outrage?

By Bill Moyers and Bernard Weisberger, Reader Supported News

30 August 12

 

e might wish the uproar from the convention halls of both parties these busy weeks were the wholesome clamor of delegates deliberating serious visions of how we should be governed for the next four years. It rises instead from scripted TV spectacles - grown-ups doing somersaults of make-believe - that will once again distract the public's attention from the death rattle of American democracy brought on by an overdose of campaign cash.

No serious proposal to take the money out of politics, or even reduce its tightening grip on the body politic, will emerge from Tampa or Charlotte, so the sounds of celebration and merriment are merely prelude to a funeral cortege for America as a shared experience. A radical minority of the superrich has gained ascendency over politics, buying the policies, laws, tax breaks, subsidies, and rules that consolidate a permanent state of vast inequality by which they can further help themselves to America's wealth and resources.

Their appetite for more is insatiable. As we write, Mitt Romney, after two fundraisers in which he raised nearly $l0 million from the oil and gas industry, and having duly consulted with the Oklahoma billionaire energy executive who chairs the campaign's energy advisory committee, has announced that if elected president he will end a century of federal control over oil and gas drilling on public lands, leaving such matters to local officials more attuned to industry desires. Theodore Roosevelt, the first great advocate for public lands in the White House, would be rolling in his grave, if Dick Cheney hadn't already dumped his bones in a Wyoming mining shaft during the first hours of the Bush-Halliburton administration.

We are nearing the culmination of a cunning and fanatical drive to dismantle the political institutions, the legal and statutory canons, and the intellectual and cultural frameworks that were slowly and painstakingly built over decades to protect everyday citizens from the excesses of private power. The "city on the hill" has become a fortress of privilege, guarded by a hired political class and safely separated from the economic pressures that are upending the household stability, family dynamics, social mobility, and civic life of everyday Americans.

Socrates said to understand a thing, you must first name it. As in Athens then, so in America now: The name for what's happening to our political system is corruption - a deep, systemic corruption.

How did we get here?

Let's begin with the judicial legerdemain of nine black-robed magicians on the Supreme Court back in the l880s breathing life into an artificial creation called "the corporation." An entity with no body, soul, sense, or mortality was endowed with all the rights of a living, breathing "person" under the Constitution. Closer to our own time, the Supreme Court of 1976 in Buckley vs. Valeo gutted a fair elections law passed by a Congress that could no longer ignore the stench of Watergate. The Court ruled that wealthy individuals could spend unlimited amounts of their own fortunes to get themselves elected to office, and that anyone could pour dollars by the hundreds of thousands into the war chests of political action committees to pay for "issue ads," clearly favoring one side in a political race, so long as a specific candidate or party was not named.

Money, the justices declared in another burst of invention, was simply a form of speech.

Then, just two years ago, the Roberts Court, in Citizens United vs. Federal Elections Commission, removed any lingering doubts that the marvelous "persons" that corporations had become could reach into their golden troughs to support their candidates and causes through such supposedly "educational" devices as a movie trashing Hillary Clinton.

Meaningful oversight of campaign expenditure, necessary if representative government is to have a fair chance against rapacious wealth, was swept away. Hail to a new era in which a modestly financed candidate is at the mercy of nuclear strikes from television ads paid for by a rich or corporate-backed opponent with an "equal right" to "free speech." As one hard pressed Connecticut Republican, lagging behind in a primary race against a billionaire opponent outspending him twelve to one, put it: "I'm fighting someone with a machine gun and I've got a pistol." When the votes were counted, even the pistol turned out to be a peashooter.

A generation ago the veteran Washington reporter Elizabeth Drew warned against the rising tide of campaign money that would flood over the gunwales of our ship of state and sink the entire vessel. Noah's Flood was a mere drop in the bucket compared to the tidal wave that has fulfilled Drew's prophecy. The re-election of every Member of Congress today is now at the mercy of corporate barons and private princes who can make or destroy a candidacy by giving to those who vote "right," or lavishing funds on opponents of those who don't.

Writing the majority opinion for Citizens United, Justice Anthony Kennedy would have us believe corruption only happens if cash passes from one hand to another. But surely as he arrives at his chambers across from Capitol Hill every morning, he must inhale the fetid air rising from the cesspool that stretches from Congress to K Street - and know there's something rotten, beyond the naked eye, in how Washington works.

Senator John McCain knows. Having been implicated in the Keating Five scandal during the savings and loan debacle 30 years ago, he repented and tried to clean up the game. To no avail. And now he describes our elections as nothing less than "an influence-peddling scheme in which both parties compete to stay in office by selling the country to the highest bidder."

For the ultimate absurdity of money's role, we must look to another group of happy billionaires, the corporate owners of the television stations which reap handsome profits for selling the public's airwaves to undisclosed buyers (also known as campaign contributors) who pollute the political atmosphere with millions of dollars spent on toxic ads designed to keep voters angry, dumb, or both. Every proposal is shot down or undermined that would make it a duty for those stations to devote free air time for public purposes in order to earn the licenses that they treat as permits to get rich. In one of the great perversions of the Constitution foisted on its subjects by their overlords, the public airwaves where free speech should reign have become private enclosures to which access must be bought. Free? It's about as free as Tiffany pearls.

Money rules. And in the foul air democracy chokes and gasps, the middle class falls behind, and the poor sink from sight as political donations determine the course and speech of policies that could make the difference in the lives of ordinary people struggling in a dog-eat-dog world.

The Devil must grin at such a sorry state of affairs and at the wicked Catch-22 at its core. To fight the power of private money, it is first necessary to get elected. To get elected it is necessary to raise astronomical amounts of private money from people who expect obedience in return. "That's some catch," says Yossarian to Doc Daneeka, and Doc agrees: "It's the best there is."

Where is the outrage at this corruption? Partly smoothed away with the violence, banality, and tawdry fare served up by a corporate media with every regard for the public's thirst for distractions and none for its need to know. Sacrificed to the ethos of entertainment, political news - instead of getting us as close as possible to the verifiable truth - has been reduced to a pablum of so-called objective analysis which gives equal time to polemicists spouting their party's talking points.

As ProPublica journalists recently reported: "Someone who gives up to $2,500 to the campaign of President Barack Obama or challenger Mitt Romney will have his or her name, address and profession listed on the FEC website for all to see. But that same person can give $1 million or more to a social welfare group that buys ads supporting or attacking those same candidates and stay anonymous." But when is the last time you heard one of the millionaire anchors of the Sunday talk shows aggressively pursue a beltway poobah demanding to learn about the perfidious sources of the secret money that is poisoning our politics?

At our combined ages we've seen it all; hope no longer springs eternal. We know the odds against reversing the hardening grip of the monied interests are disheartening. Those interests are playing to win the ferocious class war they launched 40 years ago with a strategy devised by the corporate lawyer Lewis Powell (later a Supreme Court justice) and a call to arms from the Wall Street wheeler-dealer William Simon, who had been Richard Nixon's treasury secretary. Simon argued that "funds generated by business" would have to "rush by multimillions" into conservative causes in order to uproot the institutions and the "heretical" morality of the New Deal. He called for an "alliance" between right-wing ideologues and "men of action in the capitalist world" to mount a "veritable crusade" against everything brought forth by the long struggle for a progressive America. Business Week noted at the time "that some people will obviously have to do with less... It will be a bitter pill for many Americans to swallow the idea of doing with less so that big business can have more."

This was not meant to be. America was not intended to be a winner-take-all country. Our system of checks and balances - read The Federalist Papers - was to keep an equilibrium in how power works and for whom. Because of the vast sums of money buying up our politics, those checks and balances are fast disappearing and time is against us.

We are losing ground, but that's the time when, more than ever, we need to glance back at the progressive crusades of a century ago to take note of what has been forgotten, or rather what braying blowhards like Rush Limbaugh and Glenn Beck have been distorting or attempting to flush down the memory hole. Robbing a nation of its historical memory is the most devastating of all larcenies because it opens the door to far worse crimes.

We have been here before. The two of us have collaborated in studying the example of the populists and progressives who over a century ago took on the financial and political corruptors. They faced heavy odds, too - a Supreme Court that exalted wealth as practically a sacred right, the distortion by intellectual and religious leaders of the theory of evolution to "prove" that the richest were the fittest to rule, the crony capitalism of businessmen and politicians.

With government in the grip of such exploiters, child labor was a fact of life, men and women were paid pittances for long hours of work and left unprotected from industrial diseases and accidents, and workers too old to be useful to employers any longer were abandoned to starvation or the poorhouse. No model laws existed to protect them.

But these pioneers of progressivism were tough citizens, their political courage fueled by moral conviction. They sensed, as the Kansas editor William Allen White wrote, that their country had fallen into the hands of self-seekers, their civilization needed recasting, and a new relationship must be forged between haves and have-nots. When the two major parties failed them they gave full throat to their discontent by fighting from outside, and when Theodore Roosevelt's breakaway Progressive Party held its organizing convention in l912 - exactly one hundred years ago - they shook the rafters with "The Battle Hymn of the Republic." Oh, for such defiance today!

From the fighters of that era came a renewal of the social contract first set forth in the preamble of the Constitution - the moral and political notion of "We, the People." Equitable access to public resources was its core, so that when the aristocrat De Tocqueville came here from France in the l830s he marveled at the egalitarian spirit he found in the new country. Public institutions, laws and regulation, as well as the ideas, norms, and beliefs embedded in the American mythos pointed to a future of prosperity open to all. That ideal survived the fires of the civil war and then the hard, cold cruelties of the industrial era and the First Gilded Age because people believed in and fought for it. They neither scorned nor worshipped wealth but were determined it would not rule.

It was on these foundations that the New Deal built the structure now under attack, with the support of a Depression-stricken nation which realized that we were all in it together - as we were in the war against fascism that followed.

But in the succeeding fat years the nation forgot something - the words of the great progressive senator Robert LaFollette from Wisconsin: "Democracy is a life and demands constant struggle." Constant struggle. No victory can be taken for granted, no vigilance relaxed. Like the Bourbon kings of France, the lords of unrestrained, amoral capitalism never forgot anything. They learned from their defeat how to organize new strategies and messages, furnish the money to back them, and recapture control of the nation's life. And in the absence of genuine, fight-to-the-finish resistance, they are winning big-time.

Think of where we are now. One party is scary and the other is scared. The Tea Party, the religious right, and a host of billionaires dominate the Republican Party. Secret money fills its coffers. And in the primaries this year almost every Republican inclined to compromise to make government work went down before radical and well-funded opponents with a fundamental "anti-government" mindset.

Yet even now President Obama says he is sure the Republicans will be willing to negotiate if he is re-elected. Sure, and the wolves will sit down with the lamb.

Nor is that all. In Wisconsin, salvo after salvo of campaign cash for union-busting Governor Scott Walker defeated the effort to recall him. In Pennsylvania a hardline judge has given his approval to a voter ID law specifically targeted to making it harder for low-income would-be voters to register. And such laws are proliferating like runaway cancer cells in state after state. The Tea Party and right-wing Christians furnish the shock troops of these assaults, but those who could be counted on for sturdy defense are not immune to the grinding pressures of nonstop fundraising. Democratic incumbents and challengers, in national and state canvasses likewise garner corporate contributions - including President Obama, whose fundraising advantage is about to be overtaken by Mitt Romney and the Deep Pockets to whom he is beholden. And at both conventions the prime time show is merely window-dressing; the real action occurs at countless private invitation-only parties where CEOs, lobbyists, trade associations and donors literally cash in their chips. Writing in the New York Times, for example, Nicholas Confessore reports how The American Petroleum Institute will entertain with a concert and panels, all the while promoting an agenda that includes approval of the Keystone XL pipeline, opposition to new transparency rules for American energy companies operating abroad, and the expansion of oil production on those public lands Mitt Romney is preparing to turn over to them.

Does this money really matter? Do owls and bats fly by night? Needed reforms are dead on arrival on the floor of Senate and House. Banking regulations with teeth? Mortgage relief? Non-starters when the banks' lobbyists virtually own Washington and the President of the United States tells Wall Street financiers he is all that stands between them and the pitchforks of an angry mob. Action on global warming? Not while the fossil fuel industries and corporate-back climate deniers have their powerful say in the matter. Cutting bloated military expenditures? Uh-uh, when it means facing a barrage of scare stories about weakening our defenses against terrorism. Spend money on modernizing our rail system or creating more public transportation in our auto-choked city streets? What heavy artillery the auto, gasoline and highway construction lobbies would rain down on any such proposal.

All of which would make a Progressive Rip Van Winkle shake his head in disbelief and grind his teeth in fury. "Where is the passion we shared for driving money from politics?" he would ask.

Where indeed? Not on the floor of either of these conventions. You are unlikely to hear the name of Theodore Roosevelt praised by Republicans or of Franklin Delano Roosevelt by the Democrats, except in perfunctory terms (It was FDR, after all, who said he feared government by money as much as government by the mob.)

Each party will sing the obligatory hosannas to the middle class, give the silent treatment to the working poor, and bellow forth the platitudes of America's "spirit of enterprise and innovation" that will restore our robust economy and world leadership. If the stagnant recovery and sufferings of the unemployed and underemployed get any mention, it will be to blame them on the other party. As for taking on the predatory rich, forget it.

Our advice: Learn something from the emptiness of what you see and hear - and if it doesn't make you mad as hell and ready to fight back against the Money Power, we are all in real trouble.

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The journalist Bill Moyers and the historian Bernard A. Weisberger have collaborated on several television series, including A Walk Through the 20th Century and Report from Philadelphia: The Constitutional Convention. They are now working on The Fighting Spirit: The People vs. The Gilded Age.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.