Ken ‘Birther’ Bennett and voter disenfranchisement

How typical. The Arizona Republic editorializes today that it “has always opposed Prop 200’s voter ID requirements; we would have preferred a court decision tossing them out. But once the Supreme Court upheld them, it became clear the alternative encourages the worst of both worlds for voters.” Proof of citizenship: Let’s live with it.

And what is this alternative? “Secretary of State Bennett . . .  said he will continue to prepare the dual-track [ballot] system in the event of yet another court decision against Prop 200. Dual-track voter registration is, unquestionably, the worst possible outcome.”

Secretary of State Ken “Birther” Bennett has no legal authority to institute a dual-track ballot system that disenfranchises eligible U.S. citizens of their right to vote in Arizona elections, based solely upon the voter registration form they used to register.

This dual-track system is the brainchild of anti-immigrant activist Kris Kobach, of counsel with the Immigration Law Reform Institute, the legal arm of the anti-immigrant Federation for American Immigration Reform (FAIR), and currently the Secretary of State of Kansas. Kobach is the coauthor of Prop. 200 (2004) and SB 1070 (2010).  The dual-track system was originally discussed in 2004, but it was dropped because it is unconstitutional. Now Kobach and Ken “Birther” Bennett want to test the envelope of constitutional law.

Instead of acceding to this unconstitutional threat to disenfranchise eligible U.S. citizens of their right to vote in Arizona elections by Ken “Birther” Bennett, the Arizona Republic ought to be outraged and calling for his resignation and the resignation of his corrupt side-kick, Arizona Attorney General Tom “banned for life by the SEC” Horne, for using their offices to engage in disenfranchising eligible U.S. citizens of their right to vote.

The New York Times editorializes today, Suppressing the Vote:

If a federal judge’s disappointing ruling this week on a voter registration case is allowed to stand, state lawmakers around the country could well make it harder for eligible citizens to register to vote in federal as well as state elections.

[The repealed GOP Voter Suppression Act, HB 2305, could return with a vengeance in 2015.]

State officials in Kansas and Arizona had sued the United States Election Assistance Commission for refusing to include their strict proof-of-citizenship requirements on the federal voter registration form the commission prepares under the National Voter Registration Act, also known as the “motor voter” law.

The federal form requires only that voters state under oath that they are citizens, and while the commission includes certain state-specific instructions on the form, it denied the request by Kansas and Arizona because it found no evidence that noncitizens registering to vote was a “significant problem” in either state.

Federal District Judge Eric Melgren ruled on Wednesday that the commission had acted “in excess of its statutory authority” because the federal law “has not pre-empted state laws” that require documents proving citizenship. Under the Constitution, states have the power to decide who may vote, while the federal government has the final say in how, where and when voting occurs.

But the legal dispute should not distract anyone from recognizing the underlying purpose of laws like these and their close relative, voter ID laws. They are intended to keep eligible voters from the polls.

Republican lawmakers who work to impose higher bars to voting — either through proof-of-citizenship or voter ID laws — are well aware that many of those otherwise-eligible voters who struggle to come up with the required documents, which include a birth certificate, passport or driver’s license, are more likely to vote Democratic. Sometimes they even say it out loud, as Mike Turzai, the majority leader in the Pennsylvania statehouse, did in 2012 when he bragged that the state’s voter ID law was going to “allow Governor Romney to win the state of Pennsylvania.”

In recent months, it seemed that judges were beginning to see through the pretense of such laws, whose proponents insist they are necessary to protect “election integrity” despite the lack of any significant evidence that voter fraud of any kind exists.

In reality, as Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit wrote last year about voter ID efforts, these laws are “now widely regarded as a means of voter suppression rather than of fraud prevention.”

Nevertheless, Judge Melgren accepted at face value the claim by Kansas and Arizona that only “concrete proof of citizenship” can allow them to determine whether a voter is eligible. He ignored the fact that neither state had actually demonstrated that such proof was “necessary” to prevent fraud. Kansas officials identified at most 21 noncitizens who had registered to vote, out of more than 1.76 million registered voters in the state. The percentage of noncitizens alleged by Arizona to have registered improperly was similarly minuscule.

Republican-controlled state legislatures . . . write off entire segments of the public and then try to keep them from the polls, under the guise of battling fraud and illegal immigration. The courts have more than enough evidence by now, and they should see this ruse for what it is.

Regarding the duality of states having the power to decide who may vote, while the federal government has the final say in how, where and when voting occurs: there is a Harvard Law and Policy Review article by James Blacksher and Lani Guinier  soon to be published regarding the federal Voting Rights Act, which explains the origins of this construction is rooted in the jurisprudence of slavery. Here is an abstract. Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder:

The “equal sovereignty” principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be “citizens” within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to all the fundamental rights of citizenship guaranteed by the Privileges and Immunities Clause of Article IV, Section 2, including the right to vote, a result that would violate the equal sovereignty of the slave states. Black people, Chief Justice Taney wrote, could only enjoy those rights the sovereign people of each state chose to give them.

The Dred Scott decision was one of the provocations that led to the Civil War and to the adoption of the Reconstruction amendments to the Constitution. Section 1 of the Fourteenth Amendment, ratified in 1868, overruled Dred Scott’s holding that freedmen and their descendants were not citizens, and it prohibited the states from abridging “the privileges or immunities of citizens of the United States.” Section 5 of the Fourteenth Amendment gave Congress the power to enforce the Privileges or Immunities Clause. But black voting rights were unpopular in the northern states, as well as in the South. Referendums on black suffrage had been defeated in many northern states in 1867, including Ohio, Kansas, and Minnesota. So the drafters of the Privileges or Immunities Clause had to concede, at least for the time being, that it did not guarantee the franchise. Instead, they placed in Section 2 of the Fourteenth Amendment a threat to reduce Congressional representation for states who denied the franchise to any of its “male inhabitants.” The Reconstruction Republicans forced the former Confederate states, still under military rule, to enfranchise blacks as a condition for being readmitted to Congress. Then in 1870 they adopted the Fifteenth Amendment, which prohibited denying or abridging the right to vote on account of race. The door was left open, however, for a future Congress to give the Privileges or Immunities Clause its plain meaning by enforcing the right to vote of every American citizen.

The Supreme Court moved immediately to close the door to such future Congressional action by judicially neutering the Privileges or Immunities Clause. The 1873 Slaughter-House Cases reaffirmed Dred Scott’s holding that power to define the fundamental rights of citizenship belonged to the states, not to the federal government. A year later, in Minor v. Happersett, the Court rejected the claim of women suffragists that the Fourteenth Amendment Privileges or Immunities Clause guaranteed them the franchise. The Constitution does not give anyone the right to vote, the Court said.

The former slave states wasted little time taking the Court’s cue. By the turn of the century they had disfranchised their black citizens and had openly established regimes of white supremacy that racially segregated nearly all aspects of life in the South, without fear of penalty by a Congress engaged in reconciling whites North and South.

* * *

African Americans remained disfranchised in the South until, through generations of bloody sacrifice, they finally got Congress to use its power to enforce the anti-discrimination provision of the Fifteenth Amendment and pass the Voting Rights Act of 1965. At first the Supreme Court upheld Congress’ authority to enact and to re-enact the Voting Rights Act, but eventually it began to push back. Now, in Shelby County, a five-four majority has struck down the coverage formula in the 2006 amendments to the Voting Rights Act, relieving the Southern states from having to obtain federal preclearance before implementing changes in their voting practices. But, by invoking the unwritten doctrine of “equal sovereignty,” Chief Justice John Roberts’ opinion for the Court forces us to revisit the racially discriminatory origins of that doctrine and its role in undermining the Privileges or Immunities Clause.

The authors argue that the appropriate response by Congress to Shelby County would be reasserting its explicit constitutional authority to interpret the Privileges or Immunities Clause. Adoption of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments and the Court’s repeated acknowledgment of a constitutional right to vote have effectively overruled the Slaughter-House Cases and Minor v. Happersett. The American people of the twenty-first century should demand that Congress enact statutes expressly proclaiming what no one today can deny, that the right to vote is the paramount privilege or immunity of citizenship in the United States. Congress should exercise its Fourteenth Amendment power to enforce the Privileges or Immunities Clause and begin establishing uniform national standards for the administration of all elections, federal, state, and local, that guarantee full access to the franchise for all American citizens.

* * *

[The Voting Rights Act] re-enactment based on Congressional authority to enforce the right to vote under the Privileges or Immunities Clause, rather than on the anti-discrimination provisions of the Equal Protection Clause and the Fifteenth Amendment, would render irrelevant the Supreme Court’s call for comparing the states’ current records of voting discrimination. It would emphatically repudiate the racially tainted equal sovereignty principle relied on in Shelby County and finally renounce the legacy of Dred Scott by proclaiming African-American citizens’ full membership in the sovereign people of the United States.

I strongly encourage lawyers handling voting rights cases to begin incorporating this argument for Congressional authority to enforce the right to vote under the Privileges or Immunities Clause into their pleadings, in addition to the standard Equal Protection Clause anti-discrimination and 15th Amendment theories.

An express Constitutional Amendment guaranteeing the franchise to all American citizens, securing a constitutional right to vote, would also overrule the Slaughter-House Cases and Minor v. Happersett. It is the last remaining vestige of slavery and Supreme Court-sanctioned segregation in American law. It is long past time for it to end.