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Stealing Democracy
Posted: 7/3/06With the publication of his new book, Stealing Democracy: The New Politics of Voter Suppression, Spencer Overton has made a major contribution to a national understanding and discussion of the challenges in securing, in these times, the right to vote. Meant for the general reader, written clearly, compellingly and with a feel for the human rather than only "policy" dimensions of the issue, Overton brings his considerable expertise and his moral passion to a wide audience. It is a relief, really, to have Overton’s serious approach published not too long after the simplistic self-indulgences of Robert F. Kennedy’s recent mistreatment of many of the same issues in Rolling Stone. Overton cares deeply about these issues, but unlike Kennedy, he understands their range and complexity—and the steady commitment required to address them successfully. And he realizes that voters—individual citizens—will have to take up the cause and not only on the occasion of the last election in which their favored candidate came up short. Overton deals one-by-one with the issues on the voting rights agenda: redistricting, election administration, renewal of the Voting Rights Act, the special pressures now being generated by the "anti-fraud" campaign. One of his themes—justifiably—is that the regulation and administration of elections is a standing invitation to self-interested manipulation by parties and candidates. Reforms, he argues, must come to terms with this as a fact of political life; and these reforms will come to pass unless voters, rising up and refusing to take it anymore, demand them. Of all the issues that he covers, redistricting seems to most seriously test this proposition. For as he acknowledges, "most voters ignore redistricting." Stealing Democracy at 27. For all the attention paid to this issue, voters seem prepared to find in other places their fair measure of competition. Overton notes, for example, that meticulous redistricting strategies in California in 2000 produced a 100% incumbent re-election rate two years later. No competition to be found here, but the political process came obstreperously alive the following year, in the same state, when voters recalled Governor Gray Davis and elected Arnold Schwarzenegger in his place. Voters may simply ignore redistricting for their own reasons, looking to other venues for the expression of discontent or for the quenching of their competitive thirst. Like any problem, moreover, the solution to a problem should count as a palpable improvement. The "independent" commissions favored by Overton and others strike some as substituting one kind of political bias for another—the defeated California initiative would have conferred line-drawing responsibility on retired judges—and they do so at the expense of the political accountability provided for under a system in which elected representations make the decisions. Voters may indeed not hold representatives accountable, at least not for the most part; but then again, they seem to lack the requisite motivation, which should tell us something. Overton’s analysis of the problem of self-interest seems tighter, and the solutions (partial as they may be) more promising, when he addresses the dismal spectacle of partisan election administration. Here there is no reason to prize partisan choice, and every reason, in a matter of management, to expunge it. There are worthy proposals available for discussion, noted by Overton, such as Rick Hasen’s suggestion that state election administrators be nominated by the Governor and approved by the legislature on a super-majority vote. More nonpartisan election administration—which means that likes of Kenneth Blackwell cannot both run an election and also serve as Co-Chair of his party’s Presidential ticket—ought to be within reach. If it is not, there is probably little hope for meaningful reform of any kind. Overton devotes a chapter more generally to "patchwork democracy," the thousands of election systems running at all levels of government. It is not working, as Overton shows concisely and clearly. Rather than run good elections, the imperative for the various jurisdictions seems to be to run the "cheapest" ones. Id. at 55. Planning is poor; problems with machinery abound; misallocation (or questionable allocation) of resources result in entirely different qualities of elections for different voters and communities, which predictably means better—much better— elections for the well-to-do. Professor Overton would not completely replace state and local responsibility, but he would have the federal government prescribe minimum standards, including uniform voting procedures and baseline requirements for the allocation of machinery. One of his more engaging suggestions is that states and localities should have to produce, after elections, "democracy statements" of the "strengths and weaknesses of the adequacy and implementation not only of polling-place practices but also of pre-Election Day administrative functions such as voter purges and the processing of voter registration forms." Id. at 63. Two chapters deal effectively with questions of race and politics, and here Professor Overton answers critics who wonder how much race still "matters" and who, for this reason, question the continued utility of the Voting Rights Act. Yes, it matters, writes Overton:
Id. at 81. And, "because race is inherited," the damage done in targeting voters on that basis will last for generations. Overton argues that, with the expansion of Asian-American and Latino populations—and thus voting populations—the most exacting attention is properly paid to race-based targeting. From this point, Overton proceeds to make the case for continued importance of the Voting Rights Act, including the provisions, such as the Section 5 "pre-clearance" provision, now up for renewal. Overton spends some space in refuting the suggestion that compliance with the pre-clearance requirements is too costly: he literally takes his case to the level of dollars and cents. He recognizes that recent actions of the Bush Administration puts in question the suitability of the Department of Justice as impartial enforcer of section 5’s requirements, and his solution is simple: leave the Department in continuing charge of pre-clearance for all elections other than US House, statewide and state legislative elections, which would become the exclusive responsibility of the federal courts. Overton also takes on at some length, and also effectively, the current attack on the provisions securing language minority assistance. In his final chapter, Overton confronts the current argument, mounted by John Fund, among others, that the principal voting rights issue of the time is "fraud." He neatly picks apart the main arguments, and he suggests, more particularly, that anti-fraud measures, which undeniably burden the franchise, should be based on hard data, so far missing from the free-form, anecdote-laden argumentation tendered by Fund and others. Quite reasonably, Overton asks why anti-fraud measures, so loosely argued, should fall in the first instance on voters. We have documented cases of misconduct by election officials, and those officials have in their power to perpetrate fraud on a wide scale. Why not direct attention there first? And Overton argues that there are other anti-fraud measures directed against voter impersonation—proposed by Rick Hasen and Edward Foley, among others—which do not have the same potential (and some would say, intention) as current photo ID enactments and proposals to result in egregious discrimination against minorities, the elderly and those on the lower end of the socio-economic scale. In the end, Professor Overton argues, we have to take voting seriously—citizens, and not only activists—or we will have in 2008 what we have suffered in 2000 and 2000: more unfairness, more arbitrariness, more uncertainty about who really, truly, won. What is refreshing—in fact, moving—about Spencer Overton’s call to action is his insistence on individual responsibility:
Id. at 184. Bob Bauer |