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Ari Berman | The Nation

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Ari Berman

Ari Berman

 On American politics and policy.

Why We Still Need Section 5 of the Voting Rights Act

In 2006, Congress voted overwhelmingly to reauthorize Section 5 of the Voting Rights Act for another twenty-five years. The vote was 390-33 in the House and 98-0 in the Senate. Every top Republican supported the bill. “The Voting Rights Act must continue to exist,” said House Judiciary Chairman James Sensenbrenner, “and exist in its current form.” Civil rights leaders, including Julian Bond and Jesse Jackson, flanked George W. Bush at the signing ceremony.

Yet three days after the 2012 election, in which voter suppression played a starring role, the Supreme Court agreed to hear a conservative challenge to the constitutionality of Section 5, which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government. The challenge originates in Shelby County, Alabama, and is being supported by Republican attorneys general in Alabama, Arizona, Georgia, South Carolina, South Dakota and Texas. Ed Blum, director of the Project on Fair Representation, which is funding the lawsuit, told The New York Times that Section 5 “is stuck in a Jim Crow-era time warp.”

But past remains present to a disturbing degree in the South. It turns out that states and counties with a history of voting discrimination in 1964 are still trying to suppress the growing minority vote today. Consider, for example, that eight of eleven states in the former Confederacy passed new voting restrictions since the 2010 election. These included laws requiring government-issued photo ID to cast a ballot (Alabama, Mississippi, South Carolina, Tennessee and Texas), proof of citizenship to register to vote (Alabama and Tennessee), cutbacks to early voting (Florida, Georgia and Tennessee) and disenfranchising of ex-felons (Florida). All of these changes make it harder for minority voters to participate in the political process.

Section 5, which Attorney General Eric Holder has called the “keystone of our voting rights,” can’t stop all of these ills, but it remains the most effective tool the federal government has to object to discriminatory voting changes in the South. “The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years,” the Department of Justice argued in a recent court filing.

This election cycle, DOJ opposed voter ID laws in Texas and South Carolina, early voting cutbacks in Florida, and redistricting maps in Texas under Section 5. The federal courts in Washington sided with DOJ in three of four cases, and also blocked South Carolina’s voter ID law for 2012.

Doug Kendall, president of the Constitutional Accountability Center, reviews the recent court decisions:

On August 30, in Texas v. Holder, a three-judge court unanimously blocked Texas’ new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic.  The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available – a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card – and making it costly to obtain a so-called “free” election ID for use at the polls.  For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, “imposing an implicit fee for the privilege of casting a ballot.”  The “very point” of the Voting Rights Act, the court explained, was to deny “states an end-run around the Fifteenth Amendment’s prohibition on racial discrimination in voting.”

Likewise, on August 16, in Florida v. United States, three other judges unanimously held that Florida could not slash the period for early voting, explaining that “a dramatic reduction in the form of voting that is disproportionately used by African Americans would make it materially more difficult for some minority voters to cast a ballot.” Florida’s reduction in early voting, the court explained, was akin to “closing polling places in disproportionately African-American precincts.”  Noting that Congress enacted the Voting Rights Act to enforce the Fifteenth Amendment and “provide robust and meaningful protections for minority voting rights,” the court held that Florida could not suppress the vote through a significant reduction in the hours of early voting.  

Finally, on August 28, in Texas v. United States, in a yet another unanimous ruling, another three-judge court held that Texas’ new state legislative and congressional districts could not be squared with the Voting Rights Act, finding that new congressional, state senate and state house district lines had either the purpose or effect of diluting minority voting strength.  Importantly, because the court’s opinion, authored by George W. Bush appointee Judge Thomas Griffith, held that Texas had purposefully discriminated on account of race in both the congressional and state senate plans, Texas’ districting was both a violation of the Voting Rights Act and the Constitution.

In South Carolina’s voter ID trial, Judge Robert Bates, a George W. Bush appointee, specifically praised Section 5’s judicial review. “One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here,” Bates wrote. “Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be precleared."

In a separate case last year, Bates ruled against Shelby County’s challenge to Section 5. “This Court finds that Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions,” he wrote in September 2011.

During this election, Republicans didn’t even hide the fact that they were trying to limit the voting rights of Democratic-leaning minority voters. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—-voter-turnout machine,” said Doug Preisse, the chairman of the Republican Party in Franklin County, Ohio. Nor were Republicans subtle about their racial motivations. During South Carolina’s trial, it was revealed that GOP State Representative Alan Clemmons, author of the voter ID bill, received an email from a supporter of the law, Ed Koziol of Greenville, suggesting that if black voters received a reward for obtaining voter ID “it would be like a swarm of bees going after a watermelon.” To which Clemmons replied, “Amen, Ed, thank you for your support.”

Statements like these and the new voting restrictions passed by Republicans since 2010 indicate that Section 5 is as important now as it ever was. Court across the country signaled as much when they blocked ten major GOP-passed voter suppression laws this year.

I previewed the fight over Section 5 before the Supreme Court in a recent Nation piece:

Rick Hasen, an elections expert at the University of California, Irvine, School of Law and author of The Voting Wars, predicts the Court will invalidate Section 5, noting that Chief Justice John Roberts led the charge against the expansion of the Voting Rights Act as a young lawyer in the Reagan Justice Department. “This is his signature issue,” Hasen says. The disappearance of Section 5 would be a devastating setback for voting rights, akin to the way the Citizens United decision eviscerated campaign finance reform.

But Debo Adegbile, acting president of the NAACP Legal Defense Fund, who successfully argued against overturning Section 5 during a previous challenge before the Court in 2009, believes the rulings against voter suppression laws this year will strengthen his side’s argument when they go back before the justices. “Today, the average person understands what Congress came to understand when they reauthorized the Voting Rights Act [by an overwhelming margin in 2006], which is that we have made a tremendous amount of progress. But the strain that runs through American politics of blocking voters is far from gone and rears its head in pernicious ways,” Adegbile says. “That changes the context of the conversation.”

Indeed, only a Supreme Court wholly divorced from reality would review the record on voting rights since Congress reauthorized the Voting Rights Act in 2006 and conclude that a key pillar of the law was no longer needed.

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How the GOP’s War on Voting Backfired

Since the 2010 election, Republicans passed new voting restrictions in more than a dozen states aimed at reducing the turnout of Barack Obama’s “coalition of the ascendant”—young voters, African-Americans and Hispanics.

“This is not rocket science,” Bill Clinton said last year. “They are trying to make the 2012 electorate look more like the 2010 electorate than the 2008 electorate.” By pushing voter suppression laws, Republicans wanted the 2012 electorate to be older, whiter and more conservative than the young and diverse 2008 electorate.

But the GOP’s suppression strategy failed. Ten major restrictive voting laws were blocked in court and turnout among young, black and Hispanic voters increased as a share of the electorate relative to 2008.

Take a look at Ohio, where Ohio Republicans limited early voting hours as a way to decrease the African-American vote, which made up a majority of early voters in cities like Cleveland and Dayton. Early voting did fall relative to 2008 as a result of Ohio Secretary of State Jon Husted’s cutbacks in early voting days and hours, but the overall share of the black electorate increased from 11 percent in 2008 to 15 percent in 2012. More than anything else, that explains why Barack Obama once again carried the state.

I spent the weekend before the election in black churches in Cleveland, and there’s no doubt in my mind that the GOP’s push to curtail the rights of black voters made them even more motivated to cast a ballot. “When they went after big mama’s voting rights, they made all of us mad,” said Reverend Tony Minor, Ohio coordinator of the African American Ministers Leadership Council. According to CBS News: "More African-Americans voted in Ohio, Virginia, North Carolina and Florida than in 2008." 

The same thing happened with the Latino vote, which increased as a share of the electorate (from 9 percent in 2008 to 10 percent in 2012) and broke even stronger for Obama than in 2008 (from 67-31 in 2008 to 71-27 in 2012, according to CNN exit polling). The share of the Latino vote increased in swing states like Nevada (up 4 percent), Florida (up 3 percent) and Colorado (up 1 percent). Increased turnout and increased support for Obama among Latinos exceeded the margin of victory for the president in these three swing states.

We’re still waiting on the data to confirm this theory, but a backlash against voter suppression laws could help explain why minority voter turnout increased in 2012. “That’s an extremely reasonable theory to be operating from,” says Matt Barreto, co-founder of Latino Decisions, a Latino-focused polling and research firm. “There were huge organizing efforts in the black, Hispanic and Asian community, more than there would’ve been, as a direct result of the voter suppression efforts.” Groups like the NAACP, National Council of La Raza, National Association of Latino Elected and Appointed Officials, and the Asian-American Legal Defense Fund worked overtime to make sure their constituencies knew their voting rights.

As Andrew Cohen of The Atlantic wrote:

If there is one thing this election has proven, if there is one thing I have come to know, it is that Americans don’t like it when their right to vote is threatened. The very people whose votes the Republicans sought to suppress came out to vote. In places like Akron and Orlando and Denver and Milwaukee, they came. They waited in long lines and endured the indignities of poll workers. Yet they were not cowed. Today is their day. A day when they can look at one another and appreciate that they are truly a part of the history of civil rights in this country.

There are, of course, major caveats to this theory. If voter ID laws had been on the books in states like Pennsylvania and Wisconsin, turnout might’ve shifted in the Republicans’ favor, as the political science literature suggests. (Nate Silver predicted that Pennsylvania’s voter ID law would’ve provided a net 1.2 percent shift to Republican candidates.) We don’t know how many voters were disenfranchised by voter ID laws in states like Kansas and Tennessee or didn’t vote in Florida because of long lines or a felony conviction or were forced to cast a provisional ballot in Ohio that will not be counted. Section 5 of the Voting Rights Act could be invalidated by the Supreme Court, which would be a devastating setback for voting rights, and new voting restrictions that were temporarily blocked in state courts could be ultimately upheld.

But, for now, the momentum is shifting away from the GOP when it comes to voting rights. For the first time, in Minnesota, voters defeated a photo ID ballot initiative.

The measure started with a double-digit lead, but opponents of voter ID were able to convince a purple-state electorate that such laws are unnecessary and discriminatory. This could be a harbinger of things to come in other swing states.

In a recent piece in The Nation, I wrote that voter suppression efforts have become the “new normal” in the GOP. Unless or until Republicans get serious about courting an increasingly diverse and younger electorate, they’ll continue to pass laws to undermine the political power of this growing constituency.

But they’ll do so at their own peril. Racial minorities made up 28 percent of the electorate in 2012, up from 26 percent in 2008, and voted 80 percent for Obama. “Romney matched the best performance among white voters ever for a Republican challenger—and yet he lost decisively in the Electoral College,” wrote Ron Brownstein of National Journal. Minorities also accounted for 45 percent of Obama’s total vote. That means that in the not-so-distant-future, a Democrat will be able to win the presidency without needing a majority of white votes in his or her own coalition. In a country with growing diversity, if one party is committed to expanding the right to vote and the other party is committed to restricting the right to vote, it’s not hard to figure out which one will ultimately be more successful.

The GOP thought the white, male vote would be enough to win this election. They were wrong. Check out Jon Wiener’s coverage here.

Voter Suppression on Election Day in Key Swing States

This afternoon the 1-866-Our-Vote Election Protection Coalition did another press briefing about voting problems nationwide on Election Day. The major issues are in the key swing states of Florida, Ohio, Pennsylvania and Virginia, in addition to New Jersey, which is struggling to cope with the aftermath of Hurricane Sandy and has extended voting until Friday at 5 pm. See the links for more information on voting reports in each state.

Let’s start with Pennsylvania. As I reported earlier, poll workers in the state are telling a number of voters they wrongly need ID to cast a ballot, and voters in Bucks and Montgomery County in the Philadelphia suburbs have been wrongly turned away from the polls. Signs in Bucks, Butler and Erie counties also wrongly told voters they needed photo ID to vote.

In addition, scores of longtime voters in Philadelphia and Pittsburgh have been told they are not on the voter rolls and must cast a provisional ballot. Such ballots will not be counted until up to seven days after the election. Philadelphia City Commissioner Stephanie Singer said the city had received as many provisional ballot requests as of 3 pm today as they had for all of 2008. Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights, said voters were not on the rolls due to administrative errors or an unannounced voter purge. First-time student voters have also been facing major problems in the state. “At least several hundred first-time voters going to polls near or on college campuses in Pittsburgh and Philadelphia are reporting apparently being left off the rolls at the locations on their voting cards and having to vote by provisional ballot,” according to US PIRG. “Additionally, the confusion is creating particularly long lines, further endangering turn out for voters in those precincts.”

A proliferation of provisional ballots is also a major problem in Ohio. In major counties like Hamilton (Cincinnati), voters are wrongly being told that the address on their voter ID must match their address on the voter rolls or else they must cast a provisional ballot. A proliferation of provisional ballots could determine the outcome and/or delay the results of the election in the Buckeye State, thanks to an eleventh-hour directive by Ohio GOP Secretary of State Jon Husted. In addition, there have been reports of voting machines breaking down in cities like Cleveland and Akron. Students are also being targeted in Ohio. According to Evan Gildenblatt, president of the student body at Kent State University: “Hundreds of students across state have been forced to file provisional ballots, have been intimidated and are being turned away for bogus ID req’s. As student body prez of the second-largest state school, I’m appalled.”

Florida has experienced long lines, power outages and broken voting machines. In Pinellas County, which includes St. Petersburg, 12,000 voters received a mistaken robocall from the supervisor of elections stating that Election Day was tomorrow. This seems to have an honest mistake and has since been corrected.

Finally, there have been long lines throughout Virginia, particularly in Democratic areas in Northern Virginia, Richmond and Hampton Roads. Five-hour lines were reported in Chesapeake.

As of 5 pm, the Election Protection Coalition had received 71,849 calls to its 1-866-Our-Vote hotline.

Three Major Election Day Voting Problems


The Election Protection Coalition call center

I attended a briefing in Washington this morning with voting rights advocates hosted by the Election Protection Coalition, which runs the 1-866-Our-Vote hotline. They are being inundated with calls from voters. In 2008, the hotline received 100,000 calls. As of 11 this morning, they’ve already received 35,000 calls.

Here are the three biggest problems the Election Protection Coalition were hearing of this morning. This list is by no means comprehensive, just a snapshot of potential election meltdowns. I’ve linked to the 866-Our-Vote page for each state below.

Problem #1: Problems with voting in states hit by Hurricane Sandy, particularly in New Jersey and New York. In New Jersey, for example, servers set up to handle ballots sent via e-mail have crashed due to volume. People affected by the storm don’t know where to go to vote. Polling places are not open, or not staffed, or the voting machines aren’t working. The highest concentration of calls to the 1-866-Our-Vote hotline is coming from New Jersey.

Problem #2: Poll workers in Pennsylvania wrongly telling voters they need photo ID to cast a ballot. According to the law, poll workers in Pennsylvania can ask voters for ID, but they are not required to show it in order to vote. However, that is not how the law is being enforced. Eric Marshall, co-director of Election Protection, says such problems are occurring across the state, although reports are that minority voters are being targeted in Philadelphia, Pittsburgh and Harrisburg. “Poll workers are asking black voters for ID but not white voters,” Marshall reported.

Problem #3: Voting machines are not working in the Ohio cities of Cleveland, Dayton and Toledo. The optical scan electronic voting machines are broken. These are heavily Democratic cities where Obama needs a big turnout to win.

UPDATE: I'm told by the Election Protection Coalition that this problem has been resolved.

For updated coverage of the fight against voter suppression, check out our Voting Rights Watch blog

Obama’s Ohio Early-Voting Advantage

Ain’t gonna let nobody turn me around
Turn me around, turn me around
Ain’t gonna let nobody turn me around
Keep on a walking, keep on a talking
Marchin’ on to freedom’s land


[Early voting lines in Cleveland on Sunday]

It was a cold, damp, windy weekend in Cleveland, but thousands of early voters in assembled outside of the Cuyahoga County Board of Elections and refused to be deterred. Volunteers passed out pizza, hot dogs and hot chocolate as voters waited for two hours on Saturday and Sunday to exercise their most basic constitutional right. State Senator Nina Turner, a ubiquitous presence in the area, worked the line to keep spirits up. “Think about what our ancestors went through,” she told the predominantly African-American crowd. “This is nothing.”

It probably didn’t feel this way for those waiting in line, but voters in Ohio were lucky to have this opportunity. The Ohio GOP legislature and Secretary of State Jon Husted banned early voting three days before the election, only to be overturned in court as a result of a lawsuit filed by the Obama campaign. In Cleveland’s Cuyahoga County—where Obama needs a big turnout to win the state—5,661 people voted early this weekend, compared to 6,457 in 2008. Turnout in Cuyahoga had surpassed 2008 levels until Hurricane Sandy hit and left many parts of the city without power. 

[UPDATE: 45,395 people voted early in person in Cuyahoga in 2012, compared to 54,340 in 2008, a decrease of 16 percent.  The combination of Sandy and early voting limits likely explains the decrease in turnout. Writes Norman Robbins of Northeast Voter Advocates: "This 'reduction' of about 9,000 early votes in 2012 compared to 2008 is totally expected on the basis of Sec. of State Husted's restrictions of early voting hours in 2012. In 2012, Sec. Husted cut away ALL 4 weekends of voting prior to the last weekend before election day that were available for in-person voting in 2008. In this time period in Cuyahoga County in 2008, 7,495 votes were cast. Sec.Husted also cut away about 3 weeks of extended business hour early voting (4:30 p.m. to 7 p.m.) which in 2008 had garnered about 1,632 early in-person votes in Cuyahoga County. Adding these votes cast in hours prohibited by the Sec of State in 2012 gives 7495+1632=9127 votes cast during early in-person hours in 2008 that were eliminated by Sec Husted in 2012."]

Still, the Obama campaign feels good about its chances in Ohio based on the early voting turnout, noting that 537,000 in-person early votes have been cast in 2012, compared to 460,000 in 2008. As of Monday, Ohioans in counties Obama carried in 2008 have already cast 903,645 ballots, either through in-person early voting or absentee voting, compared with 482,384 votes cast from counties McCain carried. According to the latest NBC poll, “In Ohio, 35 percent say they have already voted or plan to do so, and Obama is leading them, 62 percent to 36 percent. Yet Romney is up among Election Day voters in the Buckeye State, 52 percent to 42 percent."

On Sunday morning, Pastor Larry Harris rallied his congregation in a “Souls to the Polls” service at Mount Zion Baptist Church, the oldest church in the Mount Pleasant area. “This is the last hurrah, the last hee-haw, to make sure we get out the vote,” Harris said. Following the service, twenty-eight people got on buses and went down to the board of elections to cast their ballots—an act multiplied across the Ohio area. The effort by Ohio Republicans to limit voting rights in the state has made traditionally disenfranchised communities even more determined to exercise that right. “When they went after big mama’s voting rights, they made all of us mad,” said Reverend Tony Minor, Ohio coordinator of the African American Ministers Leadership Council. African-Americans comprise 28 percent of the population in Cuyahoga but made up 56 percent of early voters in 2008. Judging by the lines I saw in Cleveland, that number could be even higher in 2012.

The lines were long this weekend, but, unlike in Florida, things went relatively smoothly at the polls. But the real test will be on Election Day. Already, the Tea Party group True the Vote has requested that their “poll watchers” be let inside polling places in heavily African-American voting precincts in Columbus in order to challenge voters they believe are ineligible to cast a ballot. The Lawyers’ Committee for Civil Rights has set up forty-six dedicated phone lines to handle Ohio-related voting complaints through its 1-866-Our-Vote hotline. In 2004, an estimated 174,000 Ohioans, roughly 3 percent of the state’s electorate, left the polls without voting because of long lines. Hopefully, as a result of early voting, that won’t happen again.

If Obama wins Ohio, it will be a case study in the value of grassroots organizing and expanded electoral participation. “Things looks look well,” Congresswoman Marcia Fudge, who represents the Cleveland area, told me. “I’m one of those people who believes it’s not over until it’s over. But we will have done everything we know humanely possible to do, and if we do that, we will win.”


[Early voting lines in Cleveland on Saturday]

For more on the fight to preserve voting rights, check out Brentin Mock’s dispatch from Florida.

Eleventh-Hour GOP Voter Suppression Could Swing Ohio

Cleveland—Ohio GOP Secretary of State Jon Husted has become an infamous figure for aggressively limiting early voting hours and opportunities to cast and count a ballot in the Buckeye State.

Once again Husted is playing the voter suppression card, this time at the eleventh hour, in a controversial new directive concerning provisional ballots. In an order to election officials on Friday night, Husted shifted the burden of correctly filling out a provisional ballot from the poll worker to the voter, specifically pertaining to the recording of a voter’s form of ID, which was previously the poll worker’s responsibility. Any provisional ballot with incorrect information will not be counted, Husted maintains. This seemingly innocuous change has the potential to impact the counting of thousands of votes in Ohio and could swing the election in this closely contested battleground.

[provisional ballot image courtesy of Think Progress]

“Our secretary of state has created a situation, here in Ohio, where he will invalidate thousands and thousands of people’s votes,” Brian Rothenberg, executive director of ProgessOhio, said during a press conference at the board of elections in Cuyahoga County yesterday in downtown Cleveland. Added State Senator Nina Turner: “‘SoS’ used to stand for ‘secretary of state.’ But under the leadership of Jon Husted, ‘SoS’ stands for ‘secretary of suppression.’ ”

In 2008, 40,000 of the 207,000 provisional ballots cast in Ohio were rejected. The majority of the state’s provisional ballots were cast in Ohio’s five largest counties, which are strongly Democratic. Moreover, provisional ballots are more likely to be cast by poorer and more transient residents of the state, who are also less likely to vote Republican.

The number of discarded provisional ballots could rise significantly due to Husted’s directive. It’s also very likely that more provisional ballots will be cast in 2012 than in 2008, thanks to a wave of new voting restrictions in Ohio and nationwide. The Associated Press reported that 31 percent of the 2.1 million provisional ballots cast nationwide in 2008 were not counted, and called provisional ballots the “hanging chads of 2012."

A series of missteps by the secretary of state and new rulings by the courts have increased the use of provisional ballots and could delay the outcome of the election and the legitimacy of the final vote.

In Cuyahoga County (Cleveland) and Franklin County (Columbus), voters who requested absentee ballots were wrongly told they were not registered to vote and should cast provisional ballots. The Cuyahoga County Board of Elections quickly followed up with 865 such voters, but in Franklin County a sample of rejected absentee ballot requests found that 38 percent were mistakenly listed as “not registered,” according to an analysis by Norman Robbins of Northeast Ohio Voter Advocates. An untold number of would-be absentee voters could fall into this category in Ohio’s other eighty-six counties. “The deadline has passed to send these voters absentee ballots,” writes Robbins. “Therefore, there needs to be an immediate and broad public announcement that all voters who have been officially informed that they are ‘not registered’ and who believe they truly are registered, should definitely vote a provisional ballot so that their votes might be counted when better searches are done on their provisional ballots.” (A computer glitch by the secretary of state’s office also delayed the processing of 33,000 voter registration forms, which Husted just sent to local boards of elections this week).

Moreover, any voter who requested an absentee ballot but decides, for one reason or another, to vote in person must cast a provisional ballot. Of the 1.3 million absentee ballots sent to Ohio voters, 1.1 million have been returned, according to Husted’s office. But that still leaves up to 200,000 potential votes unaccounted for.

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Recent court decisions will also impact the counting of provisional ballots. The US Court of Appeals for the Sixth Circuit found that ballots cast in the “right church, wrong pew”—at the right polling place, wrong precinct—must be counted, despite Husted’s objections. But the court sided with Husted that ballots cast at the “wrong church, wrong pew”—at the wrong polling place and wrong precinct—won’t be counted, and that election officials are not required to tell voters that they’re at the wrong location.

A coalition of voting rights groups have filed an emergency injunction against Husted’s last-minute provisional ballot directive. Husted’s briefs are due in court by November 6. According to Ohio law, provisional ballots won’t be counted until ten days after the election. So, if the presidential election comes down to Ohio and the margin is razor-thin, as many are predicting, we won’t know the outcome until well after Election Day. And only then will we find out how many eligible voters were wrongly disenfranchised by the secretary of state.

For more on the final fight to protect voting rights this Election Day, check out "How Hurricane Sandy Will Impact the Election." 

How Hurricane Sandy Will Impact the Election

Thanks to a wave of new voting restrictions passed by Republicans, the 2012 election was already shaping up to be pretty chaotic before the arrival of Hurricane Sandy, which left 8.2 million households without power in 15 states and the District of Columbia.

The good news? All of these states should have power mostly restored by Tuesday. The bad news? Many of these states will still experience the potential for serious problems, either on Election Day or the days proceeding (early voting has already begun in a number of states affected by the storm). Problems could include: electronic voting machines without power and a shortage of backup paper ballots; polling places without power, damaged or moved; voters unable to reach their polling place or unable to mail in an absentee ballot by the deadline; election administration unprepared to deal with a multitude of new, unforeseen complications.

“There’s no manual for how to run an election in the wake of a natural disaster,” says Eric Marshall, director of legal mobilization for the Lawyers’ Committee for Civil Rights. “The storm creates a whole other set of complications. Before you had questions of: Did people have the right ID to vote? Would they be challenged at the polling place? Would they be on the voting rolls? Now you have another set of questions: Will there be electricity to power the voting machines? Are some of the polling places damaged? Can they relocate polling places in advance? Can people get to the polling place? Will there be less people voting because they have other concerns to deal with?”

As of Wednesday, power outages were the most severe in New Jersey (2.4 million homes and businesses without power), New York (1.9 million) and Pennsylvania (1.2 million). Sandy could depress Obama’s turnout in large blue states like New Jersey and New York, affecting the president’s popular vote total, while impacting the results in crucial battlegrounds like Pennsylvania and Virginia.

Let’s start with Pennsylvania. According to The Washington Post: “In Pennsylvania, officials said that getting all the polls open in all sixty-seven counties on Election Day may be problematic. About 1.2 million customers in Pennsylvania lost power in the storm, and utilities warned that full restoration might be more than a week away. All of the nine counties with the bulk of the power losses went for Obama in 2008.”

And on to Virginia. “Nine Virginia communities—including several in Northern Virginia that were key to President Obama’s victory in the commonwealth in 2008—remained closed for in-person absentee voting Tuesday in the aftermath of Hurricane Sandy,” reported the Post.

At least six states hit by the storm (Maryland, Pennsylvania, North Carolina, New Jersey, Virginia, West Virginia) use electronic voting machines with limited paper ballot backups. “In those locations, unless they have enough emergency paper ballots printed up to accommodate the entire electorate at precincts where power remains disrupted on Election Day, there could be very serious and unprecedented problems,” reports Brad Friedman of The Brad Blog. Friedman noted that in Pennsylvania, “in case of power loss, local election officials are encouraged to keep enough paper ballots on hand for 20 and 25 percent of their registered voters," reported the Pittsburgh Post-Gazette. That seems woefully inadequate given the magnitude of the storm.

States impacted by Sandy could extend polling hours on Election Day or during early voting. But any vote cast during extended hours within ten days of the election must be done via provisional ballot, notes Rick Hasen, author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. In 2008, 31 percent of the 2.1 million provisional ballots cast nationwide were not counted.

Hasen is urging states affected by the storm to print as many backup paper ballots as possible, open as many polling places as feasible, and ensure that all locations have power through the night. “We haven’t had anything like this in recent memory, on this scale,” he says.

Regardless of who wins the election, the most important part of the electoral process is that every eligible vote is counted. The integrity of the election was already under siege due to GOP voter suppression laws. Hopefully, Sandy won’t make a bad situation even worse.

(Infographic from the Huffington Post)

For more on Hurricane Sandy, check out Michelle Dean on FEMA, inequality and the need for better government.

Obama on Voter Suppression: 'It’s a Problem'

Civil rights activists, voting rights groups and Democratic leaders across the country—most notably Bill Clinton—have denounced the spate of new voting restrictions passed by Republicans since the 2010 election.

But this important topic didn’t come up in any of the presidential debates, and President Obama has been reluctant to weigh in on the controversy (although Michelle Obama gave a stirring speech at the Congressional Black Caucus Foundation gala in September about the right to vote).

So it was refreshing to hear Jay Leno, of all people, ask Obama about “voter suppression” on The Tonight Show last night. Leno spotlighted an ad campaign in Pennsylvania (which he wrongly labeled as Colorado), where the state asks voters to “show it”—photo ID, that is—even though the fine print notes that “voters will be asked, but not required, to show an acceptable photo ID on Election Day.” (The Pennsylvania ACLU has asked the judge who blocked the law to halt the misleading ads).

Obama’s response:

It’s a problem. Now the Justice Department handles all these cases, so I can’t weigh in on any particular state. Here’s one thing I know: that throughout our history, our country’s always been stronger when everybody’s had a voice. It took a long time to make sure the franchise expanded to everybody. But we should be thinking about ways to make it easier for folks to vote, not to make it harder for folks to vote.

That’s why this early voting is really terrific. In Iowa, I think 25 percent of the people have already voted. In Ohio, folks are already voting. In a whole bunch of states—Florida, Colorado—people can already vote, and that’s especially important for people who don’t have as much flexibility on the job. If you’re a factory worker and you’ve got to punch a clock and maybe your shift is one where you’ve got to be there right on time, you’ve got to take a bus to get to work, it just makes it tougher. So now people can vote [early] and we want to encourage everybody, regardless of who you’re voting for, make sure to take advantage of it, and find out if you can exercise early voting in your state.

(The exchange begins at 2:10.)

Obama’s Justice Department has rightly opposed new discriminatory voting laws, such as voter ID laws in South Carolina and Texas, early voting cutbacks in Florida, and racially regressive redistricting maps in Texas, under Section 5 of the Voting Rights Act. The federal courts have sided with DOJ, refusing to preclear Texas’s voter ID law and redistricting maps, Florida’s early voting limits in five counties subject to Section 5, and South Carolina’s voter ID law for 2012. Overall, courts have blocked ten major voter suppression laws passed since 2010.

The Obama campaign has also successfully fought new voting restrictions in court, winning a major victory in Ohio to restore early voting three days before the election. The latest data shows the Obama campaign out-performing its early voting numbers from 2008 in Iowa, Florida, North Carolina and Ohio.

Yesterday, the Obama campaign released a new ad highlighting the Florida recount—an election decided by 537 votes—as a reason why Obama supporters shouldn’t sit this election out.

Voter suppression has reared its ugly head not only in Florida but in other crucial battleground states. The fight back against such efforts is now of the utmost importance. “This is the movement of our era,” Michelle Obama said last month, “protecting that fundamental right not just for this election, but for the next generation and generations to come.”

For more on the fight to preserve democracy, check out how undocumented immigrants are using grassroots activism to influence this election.

Many Unanswered Questions About Romney's Taxes

Barack Obama did a nice job of debunking Mitt Romney’s plan to cut taxes for the wealthy in the second presidential debate. He also pointed out that Romney, according to his tax estimate for 2011, paid a “lower tax rate than a nurse or a bus driver.” But Obama failed to make another significant point: Romney has still not released many crucial details about his tax returns.

The media have stopped pressing Romney for more information about his tax history, which is unfortunate, since there’s still a lot we don’t know. The 2010 tax return Romney released in January, which showed that he paid a rate of 13.9 percent in income taxes, did not provide details about his offshore accounts in places like Switzerland, Bermuda and the Cayman Islands. (In his 2011 tax returns, where he claimed to pay a rate of 15.4 percent, Romney did not check the box indicating he had any foreign accounts.) And he released only a brief summary of his taxes from 1990 to 2009, when he claims to have paid an average of 20.2 percent in federal income taxes.

Romney’s lack of financial disclosure is virtually without precedent. According to Fact-Check.Org:

It’s true that in the 2008 election, Republican nominee McCain released just two years of tax returns. But you have to go back more than 30 years—to President Ronald Reagan, who released one year’s return in 1980—to get to a major party nominee who released less than five years of tax returns.

Over those three decades, the number of years of released tax returns went from a high of 30 by Republican Bob Dole in 1996 to a low of five by Democrat Michael Dukakis in 1988.

In 2000, George W. Bush released nine years of tax returns and Al Gore released eight. John Kerry released twenty years in 2004. Barack Obama released seven years in 2008. McCain only released two years in 2008, but, aside from forgetting how many houses he owned, McCain’s financial accounting was far less complex than Romney’s. George Romney famously released twelve years of tax returns, saying, “one year could be a fluke, perhaps done for show.”

Here’s what we still don’t know about Romney’s taxes:

Along with his missing Report on Foreign Bank and Financial Accounts (FBAR) from 2010, Romney should have released a 990-T form for his IRA, which is for unrelated business taxable income. That includes income from private equity accounts, which Romney has in his IRA. The fact that Romney hasn’t released such a form “suggests he owns them through an offshore blocker corporation,” said Rebecca Wilkins, senior counsel for Citizens for Tax Justice. “That would be entirely at odds with his statement that his offshore investments have never saved him a dime in US income taxes.”

Romney’s massive, tax-free IRA is estimated to hold between $18 to $87 million. “You can hardly get your head around it,” said Wilkins. “Congress never, ever anticipated that anyone would have $87 million in their IRA.” Even by the standards of the super-rich, Romney’s IRA is super-sized. Wilkins did tax planning for wealthy clients for twenty-one years and said, “‘I never saw a $10 million retirement plan—certainly never saw anything in neighborhood of $87 million.” She said that, “the Treasury is losing somewhere between 250,000 and $3 million a year in tax revenues on Romney’s earnings from his IRA.”

Then there’s the manipulation of his tax returns from 1990–2009. “We know almost nothing about them and they’re completely misleading,” Wilkins said. “The way PricewaterhouseCoopers computed the average rate was a total joke.” The accounting firm took the rate from each year without accounting for how much Romney made in a given year. For example, if Romney paid 35 percent in taxes on $250,000 in income one year and 15 percent in taxes on $50 million another year, his weighted average “is going to be a lot lower than what he reported—closer to 15 percent,” Wilkins said.

Romney has said, “I never paid less than 13 percent” in taxes, but there’s no way to verify that claim based on the limited documentation his campaign has released. Nor can we say definitively that Harry Reid was wrong to suggest that Romney didn’t pay any taxes for a decade. “Unless we see the returns, you can’t say that’s not true,” said Wilkins. “It’s quite possible there were some years when he never paid taxes.”

Wilkins points to a few pieces of damning suggestive evidence. “In the early nineties, Romney made the decision at Bain Capital to move funds to the Cayman Islands to attract investors who didn’t want to pay taxes,” said Wilkins. Romney said in August that “big business is doing fine in many places” by exploiting “low tax havens around the world for their businesses.” Romney, evidently, has done the same.

Reports Mother Jones:

Romney has investments in a number of well known tax havens, including Ireland, Luxembourg, the Cayman Islands, and Bermuda. Until 2010, he held a few million in the Swiss bank UBS, which in 2009 was forced to pay the US $780 million in fines and penalties for helping more than 17,000 Americans commit tax fraud by hiding as much as $20 billion overseas. The total value of Romney’s offshore investments is unknown, but his tax returns have revealed that he has at least $30 million invested in the Cayman Islands, in at least 12 different Bain Capital funds.

Similarly, Romney was chair of the audit committee at Marriott from 1993-1998 when the hotel chain undertook what Peter Canellos, a former chair of the New York State Bar Association Tax Section and Ed Kleinbard, a law professor at USC, called “perhaps the largest tax avoidance scheme in history.” According to Bloomberg: “During Romney’s years on the board, Marriott’s effective tax rate dipped as low as 6.8 percent, compared with the federal corporate statutory rate of 35 percent.” Said Wilkins: “There’s no way he didn’t know about it. If he was willing to sign off on it for Marriott, why wouldn’t he do that himself?”

Why does this matter? “We can see in the Romneys’ returns a myriad of ways that high-income taxpayers can reduce their tax rates that just aren’t available to ordinary taxpayers,” said Wilkins. “The returns confirm what most Americans believe about the federal income tax system—that it’s rigged in favor of the rich. And we know from Romney’s tax proposals that he has no plans to change that.”

Under Romney and Ryan’s tax plans, people making over $1 million would get an average tax cut of between $250,000 to $400,000 a year, according to Citizens for Tax Justice. Romney can only pay for that massive tax cut for the wealthy by exploding the deficit, like George W. Bush did, or by drastically cutting the social safety net, as Ryan has proposed to do. Either policy would be unpopular, which is why Romney has released so few details about how he’d pay for his tax cuts. Romney’s tax history gives us a clue as to how he would govern—and that’s why the candidate wants to leave us in the dark.

For more on Mitt’s tax returns, check out Ben Adler on “Romney’s Ungenerous Donations.”

Conservative Media Ignore GOP Voter Registration Fraud

Republicans passed new voting restrictions in more than a dozen states since the 2010 election that were purportedly designed to stop voter fraud. Yet, in a deeply ironic twist, the most high-profile instances of election fraud this cycle have been committed by Republicans in states with new voting restrictions.

The RNC-funded Strategic Allied Consulting, run by checkered GOP operative Nathan Sproul, is under criminal investigation in Florida for submitting fraudulent voter registration forms to election officials. (Sproul is still running voter-canvassing operations for conservatives in thirty states.) Sproul’s associate Colin Small, who had worked for Strategic Allied Consulting and as “Grassroots Field Director at the Republican National Committee,” was charged last week with eight felony counts and five misdemeanors for trashing voter registration forms in Virginia.

Republicans claim that the voter registration fraud was committed by a few bad apples and pales in comparison to the fraud committed by ACORN in 2008. But ACORN was never funded by the DNC. And the abuses committed by Sproul and Small were far worse than those attached to ACORN. Unlike Strategic Allied Consulting, ACORN never changed the party affiliations on fraudulent voter registration forms and self-reported suspicious materials to election officials. Nor did ACORN ever destroy valid voter registration forms, as Small is accused of doing. (Not to mention that none of the fictitious characters falsely registered by ACORN workers, like Mickey Mouse, ever voted.)

Despite the right’s preoccupation with voter fraud, Sproul and Small have received scant coverage from conservative media outlets. Fox News, which ran 122 stories on ACORN from 2007–08, mentioned Strategic Allied Consulting only three times since the scandal broke in late September and hasn’t aired a single report on voter registration fraud in Virginia. Nor have National Review or The Weekly Standard, the pre-eminent conservative magazines, run an article about either case.

ACORN was far from perfect, but it did not deserve the witch-hunt treatment it received. In 2009, Peter Dreier of Occidental College and Christopher Martin of Northern Iowa studied the media’s shameful coverage of ACORN during the 2008 election and found:

• 82.8% of the stories failed to mention that actual voter fraud is very rare
• 80.3% of the stories failed to mention that ACORN was reporting registration irregularities to authorities, as required by law
• 85.1% of the stories about ACORN failed to note that ACORN was acting to stop incidents of registration problems by its (mostly temporary) employees when it became aware of these problems
• 95.8% of the stories failed to provide deeper context, especially efforts by Republican Party officials to use allegations of “voter fraud” to dampen voting by low‐income and minority Americans, including the firing of U.S. Attorneys who refused to cooperate with the politicization of voter-fraud accusations—firings that ultimately led to the resignation of U.S. Attorney General Alberto Gonzales

Republicans, it turns out, have committed the very voter registration fraud they once accused ACORN of perpetrating. Nor did new voting restrictions in states like Florida and Virginia, which could collectively make it harder for 5 million Americans to cast a ballot in 2012, prevent the fraud they were supposedly meant to combat.

For more coverage of voter suppression, check out The Nation’s joint project with Colorlines.com, Voting Rights Watch 2012.

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