Georgia, Voting Rights, and the Second Great Disenfranchisement in America

 

            Georgia’s decision to restrict voting rights in partisan retaliation for Democrats flipping the state

should come as no surprise.  It is a continuation of a nearly generation long battle that is part of the Second Great Disenfranchisement in American history.  Like the first which occurred after Reconstruction ended in 1877, this one too is both partisan and aimed at people of color, especially at a time when the latter are about to take political control.

        Across Europe and the United States, the 1800s was the century of the battle for universal suffrage.  Democratic movements pushed for everyone to get the right to vote, including women, the indigent, and people of color. While the battle for universal suffrage began in the nineteenth century, apparent victory did not occur until the twentieth century.  In the United States, by the early 1970s federal laws and constitutional amendments achieved nearly universal suffrage, and enforcement of the 1965 Voting Rights Act significantly overcame the racial barriers that many states still maintained to prevent people of color from voting.

            But while the arc of American history has been an expansion of voting rights—an effort former Supreme Court Justice Thurgood Marshall referred to as expanding who was included in the promise of the Constitution’s “We the people”—there has also been a counter effort to suppress voting rights.  After the Civil War, the Republican Party embraced voting rights for the newly freed male slaves, while the Democratic Party opposed it.  When the 1876 disputed presidential election, Democrats conceded the election to the Republicans on condition that Reconstruction end.  This ushered in a 100-year-long Jim Crow era where literacy tests, grandfather laws, poll taxes, felon disenfranchisements, and outright lynching suppressed voting rights for African Americans.

            The first Great Disenfranchisement ended in the 1960s with 1964 Civil Rights Act and the 1965 Voting Rights Act and perhaps the 1993 Motor Voter Act.   But with universal franchise within grasp, the roots of the Second Great Disenfranchisement began.  It started with Barry Goldwater, George Wallace, and Richard Nixon defending states rights in the 1960s.  It continued into the 1990s with Republicans claiming Motor Voter would yield fraud.  And then post Florida 2000 and the disputed election between George Bush and Al Gore, the language turned to claims of voter fraud and the need to fix it via voter identification laws. 

Since then, there has been a generation long effort by Republicans to suppress voting rights, using the false claim of voter fraud as a pretext.  Now voter fraud has morphed into “stolen election” after Donald Trump lost the 2020 election and Joe Biden and the Democrats flipped Georgia, and with that, the control of the presidency and the Senate.  As the Brennan Center reports, 43 states have introduced more than 250 laws aimed at suppressing voting rights.   There is still no basis for the stolen election thesis,  as 60+  court cases after the 2020 elections showed, and according to Sidney Powell, Trump’s attorney, who, in response  to lawsuits challenging her claims of fraud, asserted that no reasonable  person would believe such assertions.  And with a conservative Supreme Court already having gutted the Voting Rights Act and poised to let states restrict franchise, the Second Great Disenfranchisement is in full bloom.  Georgia is at the center of the fight.

Georgia’s flip to voting for the Democratic Party presidential and US Senate candidates came as a surprise to many.  On one level perhaps its flipping vindicates Chief Justice Roberts’ majority opinion in Shelby County v. Holder when he pointed to statistics indicating parity in voter registration for Blacks and Whites across the South, insinuating that perhaps the VRA might no longer be needed.  Maybe Georgia in 2020 was proof that Jim Crow and voter suppression were left behind, and that the electoral college was no longer anti-majoritarian institution.

            Georgia was a surprise, but it was also a product of a perfect storm that may not be repeatable or serve as a harbinger for the rest of the South.  What happened in 2020 was a product of a concerted multiyear organizing strategy by Democrats and Stacy Abrams.  It also benefitted from a large Black voting population, a state with significant in-migration from the north to Atlanta, and college educated White suburban voters who disliked the incumbent president Donald Trump for among other things, his mishandling of the pandemic.

            Consider first the racial makeup of Georgia.  According to the 2019 Census Bureau American Community Survey population estimates, Georgia is 57.75% White, 42.25% non-White, with 31.94% African American.  Of the 11 states that made up the Confederacy, no other state has a high percentage of its population non-White.  The only state coming close is Mississippi at 41.97%. The latter, however, does not have as has a high percentage of the college educated as Georgia.  In 2020, 40% of the Georgia voters had a college education, with 14% of persons of color having a college degree.  Compare this to Mississippi where 30% of the voters had a college degree and approximately 8% of non-whites had college degrees.  In Georgia 61% of the voters according to exit polls were White, whereas in Mississippi it was 69%.   Finally, in Georgia 69% of Whites voters supported Trump and 88% of Blacks supported Biden, while in Mississippi 81% of White voters supported Trump while 90% non-White voter for Biden.

            What we learn from this brief comparison is that while racially polarized voting continues to exist in both states, the presence of more voters with a college degree somewhat mediated the partisan split in Georgia but not so much in Mississippi.  Nationally we know that in 2020 college-educated voters were much more likely to support Biden, confirming that Georgia voting patterns followed that trend.  Yet Georgia’s unique combination of racial demographics and education distinguished it from Mississippi and perhaps other former Confederacy states in setting the stage for the 2020 election results.

Given the above, one should not necessarily expect that the electoral college vote in Georgia in 2024 will produce similar results and perhaps protect minority rights.  And all of that was before the effort to suppress voting rights in that state.  Georgi flipped in part because people of color voted.  Suppress them in that state and a few others and the election in 2020 could have been different.  In fact, while Joe Biden won the presidency in 2020 by nearly seven million popular votes, he only won Arizona, Georgia, and Wisconsin by 19,457, 11,779, and 20,682 votes respectively, or collectively by 42,918 votes.  Suppress 43,000 votes and Trump would have won the electoral college again in 2020.

Elections have consequences.  That is why voter suppression is so important.  We are in the middle of the Second Great Disenfranchisement and 2021 will tell us whether the battle to protect voting rights will be won or lost.

The Ethical Obligation of Trump’s Legal Team to Give Up

 Donald Trump’s efforts to litigate himself to a second term are effectively done.  Hastening the end are

two things.  One, the reality that the voter fraud claims on which  he stakes his litigation strategy are baseless.  Two,  something that every first-year law student knows, the ethical and legal obligations of  (Trump’s) attorneys not to press arguments in court which are meritless or  frivolous.   This includes Rudy Giuliani as Trump’s legal manager.

There was never much of a chance Trump would succeed in overturning the presidential election results in court.  There was a fantasy that the legacy of Bush v. Gore that led to the Supreme Court handing Florida and the 2000 presidential race to George Bush would prevail again.  Yet that case was about varying standards to ascertain voter intent in an  election in one state where the margin between George Bush and Al Gore was simply a few hundred votes.  Bush’s legal term raised legitimate constitutional questions about Equal Protection and treating different voters differently.  Winning in court in that one state gave Bush the electoral votes he needed to win the presidency.

Here Trump is raising  questions about widespread voter fraud across multiple states where Joe Biden’s margin of victory is thousands if not tens of thousands of votes.  Trump would have to overturn election results in at least three states.

The basis of Trump’s arguments is not about voter intent but assertions of voter fraud and the counting of ballots.  Claims of voter fraud have been a Donald Trump mantra for years and also the basis of a partisan dispute over voting rights since at least Bush v. Gore.  Republicans are absolutely convinced there is widespread voter fraud in America and have made it part of their political rhetoric to motivate their base  and arguably to suppress voting,.  This is true even though  they have failed to produce an iota of credible evidence that widespread voter fraud exists and that it has affected the outcome of elections.

The Supreme Court in Crawford v. Marion County, 553 U.S. 181 (2008) gave credence to the voter fraud rhetoric when it upheld an Indiana voter identification law as a means to detect and deter voter fraud, even though the State conceded there it had no recorded and provable instance of such fraud in its entire history.  The Crawford case was a facial law suit that challenged the very validity of the ID law and therefore no evidence of fraud  needed to be produced by the State to win.

Election law suits are a different matter.  To successfully claim voter fraud, throw out votes,  or overturn election results one needs evidence.  Challengers carry the burden of proof and persuasion to show fraud—mere assertions are not enough.  In state and federal courts there are clear rules of evidence that define what is admissible, with mere hearsay, speculation, or rumor not enough.

Trump’s legal team is losing in court because it is unable to meet the legal evidentiary standards to prove fraud.  The rules are not stacked against the president and judges are not corrupt.  The problem is Trump does not have a legal case.  In many ways  his law suits regarding fraud are welcome—they finally put on trial claims of voter fraud that were untested in Crawford and judges are rejecting the arguments as baseless.  So are  many Republican officials who administer elections.  This should put to rest serious claims about voter fraud.

Trump’s lawyers may recognize the baselessness of the fraud claims and in recent days several legal teams have resigned, including in Pennsylvania.  They had to, possibility because they recognized that to press them further meant they could face disciplinary sanctions. 

Rule 11 of the Federal Rules of Civil Procedure bars attorneys from filing cases which are frivolous,  lacking evidentiary support, or which are meant simply to  “harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  If such litigation persists, courts may sanction attorneys.

Similarly Rule 3.1  of the Model Rules of Professional Conduct—the ethical code for lawyers—bars attorneys from bringing frivolous claims.  Every state has a version of Rule 3.1 and it imposes a sanctionable ethical obligation on attorneys that could potentially lead to disbarment.

Trump may make unfounded assertions of voter fraud and press them to the public. His attorneys cannot not.  Moreover, to the extent that Rudy Giuliani in managing Trump’s legal strategy is furthering frivolous assertions, he too could face  Rule 11 and Rule 3.1 sanctions.

Courts have been generous in letting Trump’s attorneys press their arguments and give them a hearing.  But they have failed to provide proof of fraud that will affect the outcome of the presidential election in even one state, let alone the multiple ones required to change the outcome of the election.  Attorneys’ ethical and legal obligations not to press meritless claims are now bringing a halt to the president’s legal strategy.

Less than Fundamental: The Myth of Voting Rights

The Supreme Court’s recent Husted v. Philips Randolph Institute upholding Ohio’s voter purge law and Minnesota Voter Alliance v. Mansky striking down Minnesota’s political apparel ban are only latest cases declaring war on voting rights.  These cases are part of the second great disenfranchisement in American politics.  Like the first one after the end of Reconstruction, this one too aims to rig the election process, entrenching one set of interests in power.
The story of voting rights in America is one of exceptionalism.  In 1787 when the US Constitution was  drafted the right to vote was absent from the text.   The Constitution then (and still to this day because the Electoral College actually picks the president) did not a grant a right to vote for president, senators were chosen by the state legislatures, and while members of the House of Representatives could be selected by the people, who could vote was a matter of state law, with franchise generally limited to property-owning white males, at least 21 years old, who were citizens and members of a church or particular faith.
The traditional story of voting rights in America tells how franchise and democracy expanded over time.  First in the 1820s states started dropping property requirements to vote and began allowing qualified individuals the right to pick the electors who selected the president.    Then there would be the story of the adoption of Fifteen, Nineteenth, and twenty-sixth Amendments granting the right to vote to freed male slaves, women, and eighteen-year-olds.  There would also be the story of the Seventeenth Amendment allowing for direct popular vote of senators, the Twenty Fourth Amendment eliminating the poll tax, and the 1924 Indian Citizenship Act, and the 1965 Voting Rights expanding voting rights to Native-Americans and people of color.  These amendments and laws, along with Supreme Court cases such as US v. Classic and Harper v. Virginia Board of Elections, are part of an election law canon supposedly guaranteeing the right to vote as fundamental.
Except the right to vote in the United State is less than fundamental. The other side of the story of voting rights in America is how tenuous and contingent franchise is, and how much pressure there has also been to restrict it.  The United States is the only country in the world that still does not have in its Constitution an explicit clause  affirmatively granting a right to vote for all or some of its citizens.
The 15th, 19th, and 26th Amendments do not actually grant an affirmative right to vote–they merely prevent denial of franchise on account of race, gender, or age. One consequence of this less than fundamental right is that the US has one of the lowest rates of voting among democracies in the world.  Voting is stratified by race, class, and gender.  While most legal restrictions in place on franchise in 1787 have been eliminated, in reality the profile of those who vote today is almost identical to what it was back then.
With each push to expand franchise a counterpunch responded to contract it.  During the first  great enfranchisement after the Civil War, Congress enacted civil rights legislation and adopted constitutional amendments during Reconstruction in order to establish voting rights for freed male slaves.  It worked–electing many blacks to state and federal office–until Reconstruction ended in 1877 and the Jim Crow Era commenced.  Tools as explicit as lynchings were deployed to dissuade African-Americans from voting, but so too were felon disenfranchisement laws, poll taxes, literacy  tests, and grandfather laws.  These techniques successfully wipe out the right to vote for many for nearly another century.
But then the second great enfranchisement occurred during from the 1950s to 1970s.  Once  the 1965 Voting Rights Act and its subsequent amendments along with the  1993 Motor Voter Act began to make an impact, the backlash began. The first great disenfranchisement was a partisan affair pushed by Democrats.  This time it is Republicans.
It began with cries of voter fraud, even though there is no credible evidence that in-person  fraud at the polls is a serious problem.  The Supreme Court endorsed voter ID laws in its 2008 Crawford v. Marion County, and now 34 states have photo requirements.  These ID requirements are especially hard on the poor, people of color, new citizens, and the elderly; many of these groups lean Democrat.  In its 2013 Shelby County v. Holder the Court declared part of the Voting Rights Act unconstitutional, embolden states to take action such as closing polling places or cutting back on early voting.  And way back in 1974 the Court endorsed ex-felon disenfranchisement laws in Richardson v. Ramirez, stripping away the right to vote to millions of individuals, many of whom are poor and people of color.  Over time other limits on voting have been adopted by states, and the Court has come to accept them as routine and reasonable administrative regulations, failing to look at the impact the rules have on the voter.
Now we have  Husted v. Philips Randolph Institute and Minnesota Voter Alliance v. Mansky.  Supporters of these laws will say that these decisions either disenfranchise few, are necessary to prevent fraud, or protect free speech.  But they also put more burdens on voters to ensure they are registered to vote or require them to endure more pressure when they enter the ballot box to vote.   Voting has become an individual struggle–fighting both against the government and others to cast a ballot.  You are essentially on your own to figure out how to vote, and it appears the government will do little to help you.  No surprise that Justice Roberts in his Mansky majority opinion refers to the days of the nineteenth century when voting “was akin to entering an open auction place... where [c]rowds would gather to heckle and harass voters who appeared to be supporting the other side.”
Such a scene was intimidating.  This is what voting is turning into again.  Casting a vote is becoming again  an act of courage, meant not for the faint-hearted.  Whatever the election law fiction  is, the right to vote now is less than fundamental.

Elvis Sightings, Space Alien Abductions, and Election Rigging

I have spent way too much time in my career writing about voter fraud, or rather its absence.  Let me offer a few thoughts here about voter fraud and vote rigging.   Here are links to a two of my articles, one in a Harvard publication, the other in Mitchell Hamline Law Review.  I have read just about every credible (and non-credible) study there is on voter fraud and they largely disprove the theory of widespread in-person voter fraud.   Here are a few paragraphs from what I have written.

What evidence does exist documenting voter fraud?  Nationally, the three most persistent claims of voter fraud come from the Wall Street Journal’s John Fund, a report from the Senate Republican Policy Committee in Congress, and the Carter-Baker Report. None of these studies have documented provable and significant voter fraud.  The Carter-Baker report asserts that: “[W]hile election fraud is difficult to measure, it occurs.” Proof of this assertion is citation to 180 Department of Justice investigations resulting in convictions of 52 individuals from October 2002 until the release of the report in 2005. Yet while the Carter-Baker Commission called for photo IDs, it also noted that: “[T]here is no evidence of extensive fraud in U.S. elections” As with other studies, absentee voting is singled out as the place where fraud is most likely to occur.

As the Brennan Center stated in its analysis and response to the Carter-Baker call for a voter photo ID: “None of the Report’s cited examples of fraud stand up under closer scrutiny.”  Even if all of the documented accounts of fraud were true, the Brennan Center points out that in the state of Washington, for example, six cases of double voting and 19 instances of individuals voting in the name of the dead yielded 25 fraudulent votes out of 2,812,675 cast—a 0.0009 percent rate of fraud. Also, assume the 52 convictions by the Department of Justice are accurate instances of fraud.  This means that 52 out of 196,139,871 ballots cast in federal elections, or 0.00003 percent of the votes, were fraudulent. The chance of being struck by lightning is 0.0003 percent.
Similarly, Minnesota is devoid of significant in-person voter fraud.  The state has witnessed two close elections and recounts in 2008 with the senate contest between Al Franken and Norm Coleman and then in 2010 with Mark Dayton and Tom Emmer.  In both cases the recounts failed to show any real in-person voter fraud or impersonation at the polls.  Even in its oral arguments before the Minnesota Supreme Court in Coleman v Franken, Coleman’s attorney Joseph Friedberg, when asked by a Justice whether widespread voter fraud existed, conceded that it had not.

The Minnesota Majority has alleged many instances of voter fraud over the years.  Mike Freeman, Hennepin County Attorney, has investigated many of them in his jurisdiction.  He found none involving in-person voter fraud.  Yes, 40 ineligible felons voted, but voter ID would not prevent that because drivers’ licenses do not indicate criminal records.  In 2008 seven voter-impersonation charges were investigated by Minnesota county attorneys; there were no convictions.


The Costs of Voter ID
What are the costs associated with adopting the amendment?  Minnesota will spend millions of dollars issuing identifications for those who currently lack them.  The Secretary of State has estimated that 215,000 Minnesota adults lack a state-issued ID. Minnesota and local governments will spend millions of dollars to implement the new ID requirements. Additionally, individuals will bear costs to secure these IDs.  In Weinschenk v. State19 the Missouri Supreme Court noted that approximately 3 percent to 4 percent of the state population lacked an appropriate identification to vote under its voter ID law.  It found that for many the costs of getting the ID were significant, even if the state issued it for free.  Many individuals lacked state birth certificates, or were born out of state, or naturalized, and they lacked the required documents to secure the state ID.  Many of these documents cost money, in addition to the time and ability to navigate the bureaucracy to obtain them.  For these reasons, the Missouri Supreme Court invalidated its voter ID law under its state equal protection and right to vote clauses.
Many of the individuals who lack valid IDs are the elderly in nursing homes, recent immigrants to the state, students away at school, and those who have recently moved into a new home or apartment.  Imagine trying to get your elderly mom or grandmother out of a nursing home and into a state driver’s license office to get new photo identification.  The costs to these individuals may be enough to disenfranchise or discourage them from voting.

Election Official Manipulation

If elections can be rigged, either party can do it.  The secretary of state (or commonwealth) is the chief election officer in each state and they would have the ability to manipulate the election system to the benefit of their favored candidate.  Of the 50 states, 27 are Republican.  Among the 11 swing states that are Colorado, Florida, Iowa, Ohio, Nevada, New Hampshire, New Mexico, North Carolina,  Pennsylvania, Virginia, and Wisconsin, only four, North Carolina, Pennsylvania, Virginia, and Wisconsin, are controlled by Democrats.  Republicans control nearly two-thirds of the secretaries of state in the critical swing states and presumably would not have an incentive to rig the election in favor of Clinton.

Zimmerman, Food Stamps, and Immigration: It’s All About Race

It’s all about race.  It always has been in America and it appears that it continues to be the case.  Three events in the news this week, the House cuts food stamps and refuses to act on immigration, along with the acquittal of George Zimmerman (Trayvon Martin), demonstrate that we have not achieved the race-neutral or color-blind society that so many believe we have achieved.

W.E.B. Du Bois wrote in 1903  that "the problem of the Twentieth Century is the problem of the color-line."  He was prophetic.  America’s struggle with race and the legacy would dominate the 20th century.  First it would be the legacy of separate but equal and the squashing of voting rights with Jim Crow.  Then it was Rosa Parks, Martin Luther King, Jr., and the civil rights movement that produced the 1964 Civil Rights, Act, the 1965 Voting rights Act, and affirmative action.   It looked like progress had been made and as 2001 arrived some argued that this would be the century of a post-racial America.  At least that seemed to be the prognosis with the election of Barack Obama in 2008.

Yet the illusion of a post-racial America was always greater than the reality.  Despite progress on many fronts, the color-line and race remain a powerful reality in America even before the events of the last week.  Schools as segregated today as they were in 1954 when the Supreme Court issued its Brown v Board of Education decision that supposedly ended separate but equal.  Residential segregation, especially in the north, remains high.  Racial profiling by police, which was a major issue until 9/11, persists, and the racial disparities in terms of educational outcomes, incarceration, wealth, and income, persist.  We continue to live in what political scientist Andrew Hacker described as Two Nations: Black and White,  Separate, Hostile, and Unequal.

The backlash against civil rights was manifest in the war against drugs.  It also has played out in opposition to the Motor Vote Act, claims of voter fraud, and efforts to institute voter ID.  Hostility to welfare in the 1990s was all about race, especially with the mythic welfare queen symbolized as an African-American woman.  And arguments that affirmative action was reverse discrimination and  unnecessary because we had entered a new era where race did not matter failed to appreciate how even with affirmative action people of color–especially African Americans–were still under-represented in colleges and universities across the country. 

Even Obama’s victories in 2008 and 2012 pointed to the continuing legacy of race.  Yes he won, but the racial polarization of voting was significant with 98% of African-Americans voting for him and a majority of whites in 2012 for Romney.  In 2008 there is evidence were he not Black Obama would have won even bigger than he did.  Obama won despite his race.

And then the Supreme Court weighed in.  In June it issued two opinions, one on affirmative action, one on voting rights, that vastly limited the ability of schools to diversity and the federal government to police states that seek to impede minority political rights.  As I suggested in an earlier column, we are witnessing the end of the second civil rights era and the coming of the second great disenfranchisement.

And now the events of the last week.  First, the Republican House makes it clear that it will not move on immigration and it passed a farm bill without authorizing food stamps.  Both moves are simply base politics.  The current base of the Republican party is old, white, and conservative.  It is hostile to taxes, immigration, and just doesn’t get it on race.  Opposition to immigration and food stamps will probably not cost Republican House members as votes in 2014, and instead it will help them.  With so few swing districts in America, few Republicans will fear voter retribution if they voted the way they did.  Instead, they stave off conservative challenges and shore up their political base.

Of course, such a strategy is of a short time horizon.  American demographics are changing and this vote does nothing to help the GOP reach out to Hispanics and other racial minorities who will become the new majority in America.  Even many in the GOP recognized the need to move on race, as evidenced by the 2013 Republican study entitled The Growth and Opportunity Project.  Yet getting a party to change to appeal to a new base when the old base remains hostile is nearly impossible.  The decision on immigration is simply another way that the GOP continues to shoot themselves in the foot.

The vote on food stamps is fascinating.  First, it is a story about welfare.  In passing the farm bill, the subsidies that have been approved overwhelming go not to the family farmer but to big agribusinesses.  Big corporate farms–generally owned by whites–again get their welfare.  Yet food stamps–welfare for the poor and middle class–get nothing.  The GOP continue to think that food stamps are only for the undeserving poor–the 47%ers–who are mainly racial minorities, but the reality is more whites, including suburbanites after the 2008 crash, get food stamps.  Again, such a vote endears the GOP to their base but does little to reach out to the real America who struggles.

Finally, is anyone really surprised by the Zimmerman acquittal? It was almost like an anti OJ Simpson trial.  Race mattered in both but in different ways.  With OJ, it was the rarity of a Black man acquitted  in the murder of a white woman.  But here it was the acquittal of a person accused of killing an African-American.  Granted that Zimmerman was part Hispanic, but the case was really painted as a white-black one. Five white women and one woman of color were on the jury.  It was a jury where race was an issue to start with.  Studies suggest that it is hard for a lone juror to resist others if there is not another person supporting her.  Six-person juries are less likely to find a second dissenter.  My point is that if race was a factor among the jury and its composition, a six-person jury made it more likely that a single person of color would find it hard to change the deliberations dynamics than were there a larger jury with more people of color on it.  Second, the stand your ground law in Florida made it hard to convict.  The law significantly favors  the use of guns to defend.  Third, the defense effectively used race throughout the trial, playing on fears of out of control black teenagers and crime to scare an all-female jury.  It was just predictable. 

Du Bois’ color-line has not really vanished.  It continues to be about race.

American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Evidence

Please note:  I am pleased to announce formally the publication of my new book, American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Evidence, which was just published by Palgrave-MacMillan.  The book describes how lawmakers often ignore evidence when making law, are guided by political myths, and  enact policies that are known in advance to fail.  I try to explain why legislators often enacted failed policies and are guided by political myths.  I also provide a catalog of about a dozen of the most frequently enacted failed policies and political myths.

Below you shall find a short essay describing the book followed by the official Hamline press release for the book.

I hope all of you read the book, especially at a time when Congress and state legislatures across the country have come back into session.

American Politics in the Age of Ignorance

Elections portend opportunities for change.  Change often involves both people and policy. As a nation we face critical questions about taxes, debt, and stimulating the economy and producing jobs.  Similar problems confront Minnesota legislators as they tackle a $1 billion plus debt.
    Unfortunately, despite the changes in people, many of the policies proposed, adopted, and implemented are not new and they will fail.  This will be true in 2013 both in Washington, D.C. and in Minnesota where nearly a quarter of the legislators will be new.
    This is not for lack of knowledge about their likely impact.  Instead, often ideas or public policies are proposed despite the fact that the best evidence indicates that they will be unsuccessful and ultimately fail.  Unmasking some of these proven failures and explaining why American politics seems condemned to enact them is the topic of my new book, American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Evidence (MacMillan-Palgrave, December 2012).
    Hope is great when it comes to miracles. Belief is terrific when it comes to the Tooth Fairy. But neither hope nor belief should guide the making of public policy to solve our nation’s or Minnesota’s pressing problems, especially now. The making of good laws and government programs should be driven by facts and good evidence regarding what does work, otherwise taxpayer dollars maybe wasted.  Unfortunately, often that is not the case.
    Elected officials often enact failed laws and are captured by political myths. There is a pack mentality among legislators who often turn to trendy and often untested ideas and the  need for quick fixes to make it look like they are doing something as elections approach or to  appease an impatient electorate.  Many elected officials are part time, with limited knowledge, expertise, and ability to gather critical information necessary to make good decisions.  Additionally, the power of money in politics, partisanship, special interest pressures, and sometimes simply ideology or even blindness to the facts–often willful–all contribute to situations where so called new ideas are really recycled old ones already proven to have failed.
    In almost every aspect of our lives we are taught to act upon the best available evidence at hand.  Successful  businesses are guided by data.  Sound medical diagnosis demands it.   Victorious military commanders need intelligence.  Public administrators are taught to use best practices when managing.  The public wants government to be successful and do what works at the most efficient price possible.  But there is a knowledge gap in American politics.  Social science and scientific research, as well as experimentation and past successes and government failures provide significant  evidence regarding what works or not, yet public officials often ignore this information when making policy.
    Neither of the two major political parties seems exempt from ignoring facts when making policy.  Republicans currently  seem particularly prone to make these mistakes.  Governor John Huntsmann, perhaps captured it well at the September, 2011 Reagan Library presidential debate: “Listen, when you make comments that fly in the face of what 98 out of 100 climate scientists have said, when you call into question the science of evolution, all I'm saying is that, in order for the Republican Party to win, we can't run from science.”   Republicans seem convinced, despite the best evidence, that tax cuts are the solution to almost any economic ill there is.  Or that immigrants are an economic drain on the economy.  Or that voter fraud is rampant, corrupting the integrity of U.S. elections.
    Yet Democrats are not innocent.  Despite the best evidence that taxes incentives are hugely  inefficient in terms of affecting business relocation decisions, they often support them.  Or despite overwhelming data that public subsidies for professional sports stadiums or conventions are bad economic investments, Democrats embrace them as tools of job production and revitalization.  Democrats have also joined Republicans in believing that “three strikes and you are out” criminal  penalty laws for repeat offenders deter crime, when again the best evidence contradicts this. 
    Faith, hope, or simply myth and ignorance often describe what the art of politics has become these days.  Evidence-based policy making is what the legislative process  should be about.  This is why legislators hold hearings–they are supposed to be gathering information to help make better policy.  Instead, the hearings are often charades, with policy makers having already made up their minds and the outcome of the proceedings already predetermined from the onset.
    Clearly  no one has all the answers.  Decisions are often made with limited knowledge, and experimentation  is a good idea and way to improve decision making.  Yet all this is different from the current practice of simply ignoring what the evidence says.  And the evidence does speak loudly.  American Politics in the Age of Ignorance documents  a dozen of the most frequent failed policies and political myths that are repeatedly repackaged and enacted.  They include:
*    Tax incentives are a good way to affect business relocation decisions.
*    High taxes serve as deterrent to work or business activity.
*    Enterprise zones are an efficient means to encourage economic development.
*    Public subsidies for sports stadia are a good economic development tool.
*    The building of convention and other entertainment centers are successful tools for economic development.
*    Welfare recipients migrate from state to state simply to seek higher benefits.
*    Three strikes laws and mandatory minimums are effective deterrents to crime.
*    Sex education causes teenagers to engage in sexual activity.
*    Legalization of drugs leads to increased drug usage.
*    Immigration and immigrants take jobs away from Americans and serve as a drain on the economy.
*    Voter photo identification is needed to address widespread election fraud in the United States.
*    Legislative term limits will dismantle incumbent advantages, break ties to special interests, and discourage career politicians.

For the most part, all of these ideas are false based upon significant evidence.  In many cases, enactment or support for these ideas has produced the exact opposite effect from what was intended.
    Be warned–look to see many of these ideas again recycled, proposed, and reenacted again this year in Minnesota and across the country.  But the persistence of this failed policies and myths should not be read as a wholesale indictment of government or of democracy.  Government in America has accomplished a significant amount, ranging from putting a man on the Moon, winning several world wars and the cold war, helping find a cure for polio, and so much more.  The list is impressive and often overlooked.  The Marshall Plan, the building of the interstate highway system, clean water, sewers, fluoridation, Head Start, the Tennessee Valley Authority, and countless other famous and mundane activities demonstrate the capacity of governments to be successful and make meaningful differences in the lives of Americans.  Yet despite these accomplishments, government can still improve.  It can execute better if simply if does what seems to make sense—learn from the past and from the evidence to make future choices better informed.


FOR IMMEDIATE RELEASE:                                                                                         CONTACT:
January 10, 2013                                                                                            Gail Nosek: 651-523-2511
                                                                                                                            gnosek01@hamline.edu

HAMLINE UNIVERSITY PROFESSOR DAVID SCHULTZ AUTHORS
AMERICAN POLITICS IN THE AGE OF IGNORANCE

ST. PAUL, Minn. (January 10, 2013) – Hamline University professor David Schultz, noted expert on elections, politics, and public policy, has released his latest book. In American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Evidence, Schultz explains why he believes elected officials are frequently captured by political myths and enact laws that are known to fail.

"There is a pack mentality among legislators who often turn to trendy and untested ideas and the need for quick fixes.” Schultz said. “The power of money in politics, partisanship, special interest pressures, and sometimes simply ideology or even blindness to the facts all contribute to situations where so-called new ideas are really recycled old ones already proven to have failed."

In American Politics in the Age of Ignorance, Schultz speaks to a knowledge gap. He argues that social science, scientific research, experimentation, past successes, and government failures provide significant evidence regarding what works and what doesn’t, yet public officials often ignore this information.

In addition to explaining why policy makers often ignore good research, American Politics in the Age of Ignorance also documents a dozen of the most frequent failed policies and political myths that are repeatedly repackaged and enacted. Among the myths and failed policies examined are: the role of taxes in economic develop, public subsidies for sports stadiums, illegal immigration, voter fraud, and abstinence-only sex education. The book can be found at Amazon.com, though the publisher, and other bookstores.

Schultz is a professor of public administration and government ethics at Hamline University School of Business. He has taught classes on American government and election law for more than 25 years. Schultz is the author and editor of 25 books and 90 articles on American politics and law and is a frequently quoted political analyst in the local, national, and international media.  Schultz drew on these experiences, plus him time working in government and on political campaigns, to write American Politics in the Age of Ignorance.

Hamline University attracts a diverse group of 5,000 undergraduate and graduate students who develop their passions working alongside professors invested in their success. Challenged to create and apply knowledge in local and global contexts, students develop an ethic of inclusive leadership and service, civic responsibility, and social justice. Hamline students are transformed in and out of the classroom to discover truths that shape the way they see and are able to change the world.

An American in Ukraine: Thoughts on Politics, Domestic and Abroad

Fade to Black: The End of the Orange Revolution

    Americans often times don not realize how good our election system actually.  Some bitterly complain–with little evidence to support their contentions–that the American political system is perforated with voter fraud and that election officials are biased and do a bad job counting ballots.  Consider ourselves lucky.

For the last week I have been teaching and lecturing in Kyiv (Kiev) Ukraine.  I was invited to lecture on election law at the school of law at Taras Schevecheno University.  I was also asked by the US State Department to give two additional lectures on American democracy.  One for the history department at Schevecheno University, the other at the Ukrainian National Library.  All of my public lectures were packed with students and members of the public eager to learn about America.  They also wanted to talk about their elections.

Ukraine is having its national elections on October 28.  Yet unlike the United States, the prospect of a fair election is nil.  Ukraine was part of the USSR but in 1991 achieved independence.  Its democracy has struggled, with the turning point–or so it appeared–reached in 2004 when a rigged election was thrown out by its Constitutional Court and a new fair election was ordered.  Ukrainians took to the streets in what was called the Orange Revolution, demanding free and fair elections.  It looked like they got what they wanted.  Yushchenko, a reformer looking to the west, had defeated Yanukovych to become president.  In 2006 free parliamentary elections produced a governing coalition electing Yuliya Tymoshenko as prime minister.  But then in 2010 elections,  Yanukovych barely defeated Tymoshenko in elections that were barely fair and free.  In 2010 local elections were held, and they were not free.

Yet now it appears that the Orange Revolution is perhaps ready to fade to black. Yanukovych and his governing coalition have jailed the leading opposition candidate  Tymoshenko on trumped up charges.   Yanukovych’s supporters are trying to enact a defamation law to criminalize criticism  of the government.  Opposition candidates and parties are being removed from the ballot.  Few expect the elections to be fair.

Whether people will take the streets again I do not know.  Kyiv is politically odd.  I see opposition  commercials on television and there is a permanent encampment protesting Tymoshenko located not far from Independence Square.  Students are openly critical of the government but yet there seems realization that the election results are already known and that perhaps more restrictions are on the way.

Lessons for America
America’s political system is far from perfect.  Money corrupts the political process for one.  The choice of candidates is often lousy and the two major parties provide voters with often mediocre options.  Yet the opposition is not jailed.  We have no real evidence of voter fraud or vote buying with two close elections in Minnesota demonstrating a political system 99.9%+ free from errors.  Studies across the country further prove the general integrity of our political system and generally how fair and impartial the administration of our elections.  We have the right to openly criticize the  government and a right to vote.

Yet all of that is being threatened.  The cries of voter fraud and efforts to restrict franchise worry me.  Restrictions seeking to be put in place across the country to make it more difficult to vote compromise the integrity of our democracy.  Stories of partisan election officials and legislatures trying to limit franchise too smack of vote rigging.  Laws that make it difficult for third parties to access the ballot are fearful.  And of course now watch some of our political debates where political honesty and truth seem secondary to winning.  We are not Ukraine but we certainly are not the model of democracy we like to believe we are.

The lesson of Ukraine for the United States is that we take our political system for granted.  We should not be creating a democracy that attempts to disenfranchise voters and make it difficult for  parties to campaign and gain access to the ballot.  Students in Kyiv worry that the rich are buying  elections in their country.  We too should worry the same and not let those who argue cynically that money is speech win the argument.  Some I know who argue that money is speech content they are merely neutrally looking out for the rights of us all, including the poor, to give money to the candidate of their choice.  Anatolie France once said the rich and poor equally have the right to sleep under the bridge.  Some equality, some choice.  We can do better as a country, and we should.

Life in Kyiv
    Kyiv is a beautiful city.  I spent a lot of time just hiking it in between lectures and sampling  wonderful food.    The best part of the city is the architecture of the old churches.  The city is old, founded around 980 CE, and some of the churches approach 1000 years old.  At some future point I will post a few of my pictures.  Beyond the buildings, the people are very friendly and there is a love for flowers, tea, and sweets here that is great.  Wonderful pastry shops and places for treats are everywhere.  This city has one of the best subways (Metros) I have every ridden, and I get could get anywhere for hardly a cost.  One of my colleagues took me to the Kyiv Opera House to see a terrific contemporary ballet.  The opera house was stunning and the ballet excellent.

My favorite events here were the talks with the students and the public.  My public lecture at the Ukraine National Library was standing room only and the questions from the audience great.  The same was true with the student lectures, but the talk I gave in the history department to them was especially fun.  Students here are still excited by Obama, even if the same is no longer true in the USA.  The history department chair had spent some time at the University of Iowa and we had common friends.  In fact, there is another funny story here.  One of my law colleagues here had visited the country of Georgia recently and she ran into one of my former students from Moscow State University.  This is truly a small world!

Final Thoughts on the American Elections
    Amazing how much Obama threw away with his horrible first debate.  He all but had the presidency sew up and destroyed it.  The numbers now suggest that his leads in the swing states are  disappearing too.  What happened?  Simply put, Obama failed to demonstrate a passion or install a passion among his supporters and swing voters and he finally gave those doubtful about voting for Romney to consider him a viable alternative.  Obama needs to shift the momentum in his second round with Romney, otherwise the swings will continue to shift and it will be more and more difficult for him to win.  Obama does have voter registration and money on his side, but that may not be enough.

Off to Malta to lecture!

Voter ID: A Costly, Unnecessary Abuse of the Constitution

This blog appears in the August, 2012 Minnesota Bench & Bar Journal.

From its 1858 statehood Minnesota has been a leader in voting rights.  We take pride in the fact that Minnesota leads in the nation in voter turnout, and it has a history and bipartisan tradition of encouraging citizen engagement.  Minnesota is also a state of common sense, embodying a pragmatic “If it ain’t broke don’t fix it” mentality.  It is for these two reasons and the cost borne to the state and individuals that the proposed amendment requiring voter identification at the polls should be rejected.

Minnesota’s Constitutional Tradition

Minnesota in its constitutional convention was one of the first states to debate voting rights for African-Americans.  Even though both the United States and Minnesota supreme courts have declared voting to be a fundamental right,¹ it is textually explicit in Article VII of the State Constitution. Among the 211 previous attempts to change Minnesota’s constitution, 12 adopted amendments have addressed individual rights, with five of them seeking to expand voting rights.  In the entire history of the state only one constitutional amendment, in 1896, restricted voting rights.  Here it limited the practice in place that allowed aliens or noncitizens to vote in Minnesota.  Minnesota’s tradition then is one of expanding the franchise, not limiting it.

The voter ID amendment is an abuse of our constitution and tradition.  Minnesota’s Bill of Rights offers more protection for individuals than found at the federal level. We protect freedom of conscience and privacy more vigorously than does the U.S. Bill of Rights. We also protect some rights—hunting and fishing, and peddling farm produce—that are not found at the federal level. We have constitutionalized our commitment to education and support for the environment and the arts. This reflects our culture and who we are.

The voter ID amendment wrongly sidesteps the political process and challenges our state identity. Instead of trying to use the normal legislative process, it is an effort to bypass it and our legacy.

The Absence of Fraud

Some will claim that voter photo identification is needed to prevent voter impersonation and fraud at the polls. The reality is that in-person voter fraud is so insignificant in Minnesota and around the country that one has a better chance of being struck by lightning than having it affect the outcome of an election.³

What evidence does exist documenting voter fraud?  Nationally, the three most persistent claims of voter fraud come from the Wall Street Journal’s John Fund,⁴ a report from the Senate Republican Policy Committee in Congress,⁵ and the Carter-Baker Report.⁶ None of these studies have documented provable and significant voter fraud.  The Carter-Baker report asserts that: “[W]hile election fraud is difficult to measure, it occurs.”⁷ Proof of this assertion is citation to 180 Department of Justice investigations resulting in convictions of 52 individuals from October 2002 until the release of the report in 2005.⁸ Yet while the Carter-Baker Commission called for photo IDs, it also noted that: “[T]here is no evidence of extensive fraud in U.S. elections”⁹ As with other studies, absentee voting is singled out as the place where fraud is most likely to occur.¹⁰ 

As the Brennan Center stated in its analysis and response to the Carter-Baker call for a voter photo ID: “None of the Report’s cited examples of fraud stand up under closer scrutiny.”¹¹ Even if all of the documented accounts of fraud were true, the Brennan Center points out that in the state of Washington, for example, six cases of double voting and 19 instances of individuals voting in the name of the dead yielded 25 fraudulent votes out of 2,812,675 cast—a 0.0009 percent rate of fraud.¹² Also, assume the 52 convictions by the Department of Justice are accurate instances of fraud.  This means that 52 out of 196,139,871 ballots cast in federal elections, or 0.00003 percent of the votes, were fraudulent.¹³ The chance of being struck by lightning is 0.0003 percent. 

Similarly, Minnesota is devoid of significant in-person voter fraud.  The state has witnessed two close elections and recounts in 2008 with the senate contest between Al Franken and Norm Coleman and then in 2010 with Mark Dayton and Tom Emmer.  In both cases the recounts failed to show any real in-person voter fraud or impersonation at the polls.  Even in its oral arguments before the Minnesota Supreme Court in Coleman v Franken,¹⁶ Coleman’s attorney Joseph Friedberg, when asked by a Justice whether widespread voter fraud existed, conceded that it had not.

The Minnesota Majority has alleged many instances of voter fraud over the years.  Mike Freeman, Hennepin County Attorney, has investigated many of them in his jurisdiction.  He found none involving in-person voter fraud.  Yes, 40 ineligible felons voted, but voter ID would not prevent that because drivers’ licenses do not indicate criminal records.¹⁷ In 2008 seven voter-impersonation charges were investigated by Minnesota county attorneys; there were no convictions.¹⁸

Some election fraud may exist, but it is de minimis in Minnesota.  It takes place not at polling places but as studies have repeatedly pointed out, in the absentee voting process which will not be addressed by voter ID.

The Costs of Voter ID

What are the costs associated with adopting the amendment?  Minnesota will spend millions of dollars issuing identifications for those who currently lack them.  The Secretary of State has estimated that 215,000 Minnesota adults lack a state-issued ID. Minnesota and local governments will spend millions of dollars to implement the new ID requirements. Additionally, individuals will bear costs to secure these IDs.  In Weinschenk v. State¹⁹ the Missouri Supreme Court noted that approximately 3 percent to 4 percent of the state population lacked an appropriate identification to vote under its voter ID law.  It found that for many the costs of getting the ID were significant, even if the state issued it for free.  Many individuals lacked state birth certificates, or were born out of state, or naturalized, and they lacked the required documents to secure the state ID.  Many of these documents cost money, in addition to the time and ability to navigate the bureaucracy to obtain them.²⁰  For these reasons, the Missouri Supreme Court invalidated its voter ID law under its state equal protection and right to vote clauses.

Many of the individuals who lack valid IDs are the elderly in nursing homes, recent immigrants to the state, students away at school, and those who have recently moved into a new home or apartment.  Imagine trying to get your elderly mom or grandmother out of a nursing home and into a state driver’s license office to get new photo identification.  The costs to these individuals may be enough to disenfranchise or discourage them from voting.

Legal Issues

Finally there are the legal issues surrounding voter ID that could delay implementation for years and cost million to defend.  The Supreme Court did uphold Indiana’s voter identification law, but it was a facial challenge.  The Court did note that as applied challenges are possible if the law is discriminatory. In Minnesota, challenges to the voter ID amendment could range from violation of the single-subject rule²¹ to concerns over vagueness in determining what constitutes a “valid” photo identification as described in the amendment’s description.

Conclusion

The voter ID amendment is bad public policy.  It runs against the grain of the state’s constitutional tradition of expanding rights and encouraging voting, it is not needed given the absence of significant in-person fraud, and it will be costly to the state and citizens.

Notes

¹ Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); State ex rel. South St. Paul v. Hetherington, 240 Minn. 298, 303, 61 N.W.2d 737, 741 (1953).

² “Wisconsin Recall Exit Polls: How Different Groups Voted,” New York Times (06/05/2012) http://tinyurl.com/7h7oey8 (site last visited on 07/23/2012).

³ David Schultz, “Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement,” 34 William Mitchell L. Rev. 484 (2008); David Schultz, “Lies, Damn Lies, and Voter IDs: The Fraud of Voter Fraud,” Harv. L. & Pol. Rev. On-line (03/17/2008). Available at http://tinyurl.com/28j5qcq (site last visited on 07/23/2012).

⁴ John Fund, Stealing Elections: How Voter Fraud Threatens Our Democracy. San Francisco: Encounter Books, 2004.

⁵ United States Senate Republican Policy Committee. “Putting an End to Voter Fraud” (2005). Document located at http://rpc.senate.gov/_files/Feb1504VoterFraudSD.pdf (site last visited on 01/02/2012).

⁶ Center for Democracy and Election Management, American University.  “Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform” (2005), [hereinafter Carter-Baker Commission].  Document located at http://www.american.edu/ia/cfer/report/full_report.pdf (site last visited on 07/23/2012).

⁷ Id. at 45.

⁸ Id.

⁹ Id.

¹⁰ Id. at 46.

¹¹ Wendy Weiser et al., Response to the Report of the 2005 Commission on Federal Election Reform. New York: Brennan Center for Justice (09/19/2005), p. 9 (emphasis omitted). Available online at http://tinyurl.com/d7vamom (site last visited on 07/23/2012).

¹² Id.

¹³ Id. at 10.

¹⁴ 553 U.S. 181 (2008)

¹⁵ Indiana Democratic Party v. Rokita. 2006. 458 F.Supp.2d 775, 792 (D. Ind. 2006).

¹⁶ 767 N.W.2d 453 (Minn. 2009).

¹⁷ Mike Freeman, “Hennepin County Attorney:  Historically We Expand Voting Rights,” Star Tribune (02/20/ 2011).

¹⁸ Jay Weiner, “Voter ID issue advances at Capitol, but facts continue to get in the way,” Minnpost, located at http://tinyurl.com/7fthfpg (04/25/2011) (site last visited on 07/23/2012).

¹⁹ 203 S.W.3d 201 (Mo. 2006).

²⁰ Id. at 214-15.

²¹ Minnesota Constitution, Article IV, section 17:  “No law shall embrace more than one subject, which shall be expressed in its title.”