Archive for the 'Voting Rights' Category

The Pence Commission on Voting Fraud

February 8, 2017
posted by Bob Bauer

President Trump’s arrangement for an inquiry into election voting fraud is fatally compromised by political self-interest. Before the November election, he insisted that voter fraud might cost him the victory. After he had won, he decided that it robbed him of success in the popular vote. He put the number of illegal voters at 3 to 5 million, all of it allegedly committed at his expense.

And having taken this position, he is not only looking back. He is already a candidate for reelection, and this project would serve his purpose of reducing the risk of another popular vote disappointment. So he will establish a presidential commission to look into voting fraud, and he intends to appoint as its chair his Vice President, who was his presidential running mate in the last election and will very probably be on the ticket again 2020

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This process has lacked credibility from the start, and if it were only a matter of appreciating the nature and limitations of this political project, then not much more attention would need to be paid to it. But in what happens next, once this Pence Commission is formed and launched, the long-term cost to bipartisanship in voting reform could prove high.

There has been to this point room for bipartisan cooperation on election reform, and it has been productive. This is not to say that the political parties don’t fight over these issues, and sue each other, or that self-interest and outright chicanery is not evident in legislation, regulation, administrative interpretation and positions taken in litigation. But there has been over the same time that the “voting wars” have broken out, Democrats, Republicans, and others have done what they could to figure out where, in the interests of voters, the partisan brawling could give way to measured, professionally disciplined discussion of real problems and feasible reforms to improve the voting experience for all citizens.

This cooperation has occurred in support of special studies like the one undertaken by the Presidential Commission on Election Reform. It continues through other programs, such as those sponsored by the Bipartisan Policy Center. BPC in fact recruited to this work a former Commission member, a Democrat, and a former Republican Secretary of State, a Republican, who were paired in the leadership of this work. The Commission, the BPC and other similar initiatives have counted on, received and benefitted enormously from engagement on a bipartisan basis with the National Association of Secretaries of State, the National Association of Election Directors and other election administration professionals. These relationships provide access to reliable information and to the best judgment of experienced officials and experts. The keys are bipartisanship and professionalism.

President Trump’s Voter Fraud “Investigation”

January 26, 2017
posted by Bob Bauer

President Trump has more detail to provide on what he means by a “major investigation” into voter fraud. Already, however, he has drawn sharp objections to his preoccupation with illegal voting, including from within his own party and the National Association of Secretaries of State, on the basis that there is no evidence to support his claim. His own press secretary seems to have retreated to the position that "he [the president] believes what he believes."

But it cannot be lost in this debate that the President is taking an extraordinary step with the contrivance of some sort of “investigation,” whatever the form takes. He is moving, openly and aggressively and within days of his inauguration, to use his public office to advance his personal political interests as a candidate for office. One such interest, apparently, is to contest the popular vote count of the 2016 general election--his election. The second, it is fair to assume, is to do everything necessary to establish the fraud he is convinced is rampant and push for measures he deems helpful to his next election campaign.

The first of these objectives is quirky. It is not the usual course of events that a candidate challenges the outcome of an election that he won. But it is still his own election and he intends now, as President, to put the 2016 popular vote margin in question for his own political benefit, to satisfy--as he sees it--a political need.

The second of these interests is his own reelection. Until we learn otherwise, Mr. Trump will be a candidate for re-election in 2020. Now, as president, he intends to order up some investigation with implications for this candidacy. Critical commentators have touched on this concern to some degree, warning that this investigation might be intended to feed into the broader GOP initiative on voter ID and other restrictions on the franchise. The investigation would serve to spur proposals for further additional restrictions that, while unwarranted as policy but designed to burden voters, could discourage or impede voting primarily in communities with high Democratic support. This is a possible, perhaps even a likely, outcome, and it both deeply objectionable and sure to spark a new round of voting rights litigation. But the context in which the President has raised the issue is not his party’s programmatic attention to voter fraud, but his election, the 2016 election, and his conviction that it cost him millions of votes.

The voting rights and campaign finance wars have been fought on terrain largely shaped by two major and controversial decisions: the Crawford case on voter ID requirements, and Citizens United on independent spending. Critics have lamented Crawford’s naiveté about the stated value and inevitable partisan misuses of ID requirements, but it seemed that supporters had going for them the “common sense” judgment that voters required to have an ID to board a plane can be reasonably asked to produce one to vote. So one might have thought that Crawford was here to stay, even as the Justice who wrote for the Court, John Paul Stevens, has expressed regret.

Citizens United got more bad press in many quarters for opening up direct corporate political spending and for giving a boost to Super PACs. Its author, Anthony Kennedy, continues to defend it. He points to the silver lining: the court’s brief, arguably cursory, salute to disclosure, even as Kennedy concedes it is not yet working in practice as he had hoped it would. The critics who think the court flipped open the Pandora’s Box of campaign finance have put whatever hopes on the antidote of disclosure, and more speculatively on a constitutional amendment to overturn the case’s core permissiveness.

In light of developments of recent weeks, it is interesting to consider where the law set in motion by these cases is heading.

As the courts work their way through claims against ID and other voting restrictions, they continue on a course of “softening" voting impediments but not eliminating them altogether. They remain reluctant to deny states the authority to enact rules, on virtually non-existent evidence, to protect against in-person voter fraud. Remedies are then fashioned that provide relief to voters facing a “reasonable impediment” to voting but the question has been legitimately raised: how much of an impact can these sorts of measures be expected to have?

Like the right to a provisional ballot provided for under HAVA, these other remedies-- like accommodating indigent voters with access to cost-free identification--help voters, but only a limited number. The reach and effectiveness of these measures depend upon the states’ performance of their obligations: the information they provide to voters, and the good faith and competence with which they administer the remedies. The same may be true of more robust remedies, like the option recently ordered for Wisconsin, affording access to an affidavit alternative to documentary identification.

Still “softening” is useful. Political actors—notably, parties and presidential campaigns--and nonprofit voting organizations have dramatically improved upon their capabilities in effectively advising voters about remedial options and assisting them in exercising them. Voters are not, then, entirely dependent upon state officials for help. In successive election cycles, the effectiveness of these partisan and nonprofit voter protection programs has improved, each rebuilt successfully on the experience of the last.

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 

Buckley v. Valeo, 424 U.S 1, 27.  

This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down.  The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.

In the years following, enough has not proven to be as good as a feast.  And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it.  Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption.  Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.

The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system.  This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy.  Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions.  In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy.  So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.