On Voter ID laws in a “post-racial” America

Voter ID laws are controversial — bizarrely — so controversial in fact that our first post-racial presidency (as promised and aborted) steps in yet again to attack a state on ridiculous racial grounds. South Carolina enacted a voter ID law, and the Department of Justice invalidated it because the Attorney General claimed — against the facts and several Democrats — it would discriminate against minorities.

What is a voter ID law? It says when you show up to vote, you have to produce some identification that shows you are who you say you are so that you’re actually eligible to vote. Like they do in Canada. As opposed to showing up to vote and pretending you’re eligible when you’re not. Much like you produce an ID to get on a airplane, or you produce an ID when you’re driving and the police pull you over, or you produce an ID when you want to cash a check, or you produce an ID when you apply for a Social Security card, or you produce an ID when you use a credit card and there’s a question about whether you’re the actual owner of the credit card (to prevent credit card fraud).

This should be obvious. This should be a basic requirement around which everyone rallies because it contributes to the integrity of elections. And the integrity of elections matters enormously because democracy is fragile and turns precisely on the integrity of elections. We respect democracy only because we elect the people for whom we actually vote. We respect democracy only because we have good reason to believe that eligible voters choose our elected representatives.

South Carolina passed a voter ID law that requires a voter to present a South Carolina driver’s license or other photo ID — a passport, military ID, or a voter registration card with a photo issued by South Carolina election officials (issued for free). Even if a voter shows up at a polling place without an acceptable ID, he can still vote a provisional ballot that will be counted if he brings an ID to election officials before the results are certified. If a voter has a religious objection or a “reasonable impediment” that prevents him from getting a free photo ID, then the voter can simply fill out an affidavit in which he outlines his objection or impediment and swears that he is who he says he is. His provisional ballot will then be automatically counted unless local election officials have evidence that “the affidavit is false.”

In other words, the South Carolina law makes it as easy as possible to vote — whether or not you have a valid ID — but simply tries to ensure a threshold requirement that you are who you say you are. To which the Department of Justice objects. Using Section 5 of the 1965 Voting Rights Act, the Department of Justice squashed the South Carolina law as “discriminatory,” even though the Department of Justice approved a virtually identical Georgia law in 2005, and the Supreme Court approved a virtually identical Indiana law in 2008.

Why? In Austin, Texas, Attorney General Eric Holder said, “Are we willing to allow this era – our era – to be remembered as the age when our nation’s proud tradition of expanding the franchise ended?” Then the NAACP’s Ben Jealous made it plain: “You saw it after the Civil War. You see it now after the election of the first black president.” The race card, the very cynical very-not-post-racial race card. And the race card in contempt of the facts.

Voter ID laws do not suppress minority turnout — quite the opposite. University of Missouri professor Jeffrey Milyo discovered that after voter ID, turnout increased in Democrat-majority districts. University of Delaware professor Jason Mycoff found that voter ID did not decrease turnout.

Rhode Island enacted a voter ID law, which is to say, Democrats did it. Rhode Island Democratic Representative Jon Brien said, “those who are opposed to voter ID never let the facts get in the way of a really good emotional argument.”

African-American Democrat Artur Davis in Alabama apologized for opposing voter ID laws: by claiming that voter fraud wasn’t an issue, and that anti-fraud laws were racist, “I took the path of least resistance on this subject for an African American politician.” And then he said:

Voting the names of the dead, and the nonexistent, and the too-mentally-impaired to function, cancels out the votes of citizens who are exercising their rights — that’s suppression by any light. If you doubt it exists, I don’t; I’ve heard the peddlers of these ballots brag about it, I’ve been asked to provide the funds for it, and I am confident it has changed at least a few close local election results.

We should be beyond this. We should be beyond this as a polity even without Barack Obama and Eric Holder’s Justice Department, who promised a post-racial America and who could have delivered that promise but failed miserably and cynically.

Voter ID laws make simple sense. Opposition favors election fraud and race-baiting. And that is our post-racial presidency.

Judicial Nomination Politics: Don’t Punish Lindsey Graham For This One

President Obama’s nominee for the Supreme Court, Elena Kagan, gets a thumbs-up from the Senate Judiciary Committee, with South Carolina Republican Lindsey Graham joining the Democrats in voting Yes.  The Washington Post‘s Dana Milbank praises Senator Lindsey Graham’s vote, prompting a fierce denunciation from Ed Whelan and others.

Sorry Ed, you marshal facts well and ably point out some of the biases in Milbank’s piece — but I’m with Senator Graham on this one.  It’s a bad idea to demonize Senator Graham on this vote.  I’ve written of my own skepticism about Elena Kagan, in particular, her hypocritical, and, I believe, indefensible, position with respect to the Don’t-Ask-Don’t-Tell policy imposed upon the military by President Clinton and Congress.  But I don’t think that position disqualifies her categorically from confirmation as a Supreme Court Justice when the elected president of the United States says she is qualified.

I agree with Senator Graham.  Elections have consequences.  One consequence — of, I hope, ever greater notoriety — is that conservative presidents nominate conservative jurists to the bench, and liberal presidents nominate liberal jurists to the bench.  I want every American, of every stripe, to appreciate that consequence, because it is one of the most significant — and, given the power of our judiciary, one of the most far-reaching.  Senator Graham’s vote promotes that understanding.  And whenever henceforth we are tempted as a nation to vote for a presidential candidate, despite our disagreement with his or her political philosophy, let the opinions that Elena Kagan will write remind us of consequences.

Conservatives are upset, and not entirely without reason, that Senator Graham’s vote is a kind of “unilateral disarmament,” a gesture that Democrats do not make when Republican presidents nominate judges.

Certainly the nomination of Samuel Alito bears out that accusation.  Samuel Alito was confirmed in January 2006 by a largely party-line vote of 58-42, with four moderate Democrats (if you include the late Senator Byrd as a moderate) voting Yes, and even one Republican, Chafee of Rhode Island, voting No.  By Democrats, there was virtually no deference to the president’s nominee.

The nomination of John Roberts the year before presents a more interesting and textured picture.  John Roberts was a brilliant and eminently qualified jurist.  Indeed, he had been credited by Supreme Court insiders with authoring the “best brief that the Justices [of the Supreme Court] had ever seen.”  Justice Ruth Bader Ginsburg called him the “best” advocate to come before the Supreme Court.  He was a supremely qualified jurist on all but possibly ideological grounds (i.e., he was conservative).

John Roberts was confirmed in September 2005 by a vote of 78-22, with all 55 Republicans and 22 of the 44 Democrats voting Yes.  The roster of No votes is a compendium of Most Reliably Liberal Senators Ever, including Chuck Schumer, who acknowledged that even Roberts’ opponents called him “one of the best advocates, if not the best advocate, in the nation,” but nevertheless voted No, Ted Kennedy, Joe Biden, Barack Obama, Barbara Boxer, Dick Durbin, and Tom Harkin.

Interestingly, the No votes also included some notable moderates, most visibly Hillary Clinton and Evan Bayh — and there you have one key to the politics of judicial confirmation votes.  Nothing in the admirable Senator Bayh’s record or pronouncements would have predicted a No vote on perhaps the most qualified jurist to be nominated for the Supreme Court in our lifetime.

Yet he voted No.  Unprincipled?  By strict standards of principle, yes, because his vote was driven by his presidential aspirations, and everyone knows, when you’re contemplating a presidential primary, you need to tack left if you’re a Democrat and tack right if you’re a Republican.  So whatever the actual views of Bayh and Clinton on the qualifications of John Roberts, presidential primary politics obliged them to establish bona fides with the base and say No to a conservative.

Bayh stunned the political world in February by announcing his retirement from the Senate, and set off a bit of a firestorm with his denunciation of partisan politics.  Perhaps Bayh, by all accounts a good and decent man with integrity, remembered his vote against John Roberts and how he was himself swept into the partisan politics he came to denounce with such vehemence.

On a smaller scale, Senate primary campaigns likewise dictate the partisan votes of senators when presidents nominate Supreme Court justices.  As a political calculation, what senator from a conservative state wants to invite serious challenge in the primary because he or she voted for a liberal jurist?  And what senator from a liberal state wants to invite serious challenge in the primary because he or she voted for a conservative jurist?  That calculation is aggravated by the possibility that the jurist in question might author a controversial high-profile opinion, with which challengers may tarnish the sitting senator by association.

Indeed, Lindsey Graham’s vote in favor of Kagan has already produced exactly such rumbling in South Carolina.  An unnamed political operative in South Carolina said of Graham’s primary challengers in 2014, “it’s no longer a question of ‘if’ but ‘who’ and ‘how many.'”

That’s politics.  If Lindsey Graham is punished in South Carolina for his Elena Kagan vote — either by losing the primary or by being weakened in the primary and thus losing the general to a Democrat — then we have our answer about the politics of judicial confirmation votes.  You always vote against the nominee of a president from the other party.

But that would be most unfortunate.  It would eliminate any fair assessment of nominees, and it would squander the possibility of signaling powerfully to Americans that national elections have consequences.

[Also published at The Daily Caller.]